FLLB and Minister for Home Affairs (Migration)

FLLB and Minister for Home Affairs (Migration) [2018] AATA 3661 (2 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4117
Re:FLLB
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:2 October 2018
Place:Sydney

The Tribunal affirms the decision under review.
...........................[SGD].............................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – Class XB Subclass 202 Global Special Humanitarian visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – serious criminal convictions – protection of the Australian community – nature and seriousness of conduct to date – risk to the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength nature and duration of ties – hardship in the event of removal – South Sudan – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA, commenced 22 December 2014.
Direction No. 75, Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b), commenced 5 September 2017.
REASONS FOR DECISION
Dr L Bygrave, Member
2 October 2018
INTRODUCTION

The applicant, FLLB, is 28 years old. He has resided in Australia since 24 February 2007 on a Global Special Humanitarian (subclass 202) visa (visa).
On 19 June 2017, the Department of Immigration and Border Protection (the Department) issued the applicant with a notice advising that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
On 17 July 2017, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act.
On 5 July 2018, a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the visa cancellation decision and, on 18 July 2018, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
The matter was heard in Sydney on 11 and 12 September 2018. The applicant did not have legal representation; he attended the hearing and gave oral evidence in person.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by section 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
Pursuant to section 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.
The applicant does not pass the character test in section 501(6) of the Act because his criminal record, set out in part in paragraphs 22 to 24 below, meets the statutory definition of a “substantial criminal record” in section 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act. Under section 499(1), the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which commenced on 22 December 2014 (the Direction).
Direction No. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Under the heading of “General Guidance” at paragraph 6.2, the Direction states in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below [in paragraph 6.3] are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Part C of the Direction sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Other considerations in Part C relevant to this matter are:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia; and
(c)the extent of impediments if removed.
EVIDENCE
The applicant was born in 1990. The applicant’s country of origin is South Sudan; his mother and father were from South Sudan. While the evidence is understandably not clear, it seems the applicant’s father remained in South Sudan and has passed away. The applicant’s family escaped the war in South Sudan in the late 1980s, initially travelling to Ethiopia and then onto Kenya. The applicant grew up in Kakuma refugee camp in Kenya. The applicant’s mother passed away in Kenya when the applicant was young and he was then raised by his eldest sister and brother.
The applicant came to Australia when he was 17 years old. The applicant’s document for travel to Australia show he arrived in Australia as a minor accompanied by his older brother, older sister, a cousin and nephew. This document reports the applicant’s place of birth as “Sudan”.[1] Case notes linked to the travel document show the applicant’s brother is identified as a “Christian male Dinka from Bor”.[2]
[1] Exhibit R-S58, p 145.
[2] Exhibit R-S56, p 143.
In his personal circumstances form dated 7 July 2017, the applicant listed seven brothers and sisters who are all now residing in Australia. The applicant is the youngest of his siblings, who range in age from 31 years old to “in their 50s”. The applicant also listed two cousins and five uncles who are close family members, as well as other uncles, aunts, nieces, nephews and cousins, living in Australia.
Two of the applicant’s sisters, both of whom gave evidence on the applicant’s behalf at the Tribunal hearing, reside in Adelaide. Other family members live in Sydney, Brisbane and Canberra. The applicant stated at the hearing that some of his family members were Australian citizens but he was unable to provide supporting evidence to the Tribunal. The applicant also stated that he did not have any family members or know anyone currently living in South Sudan.
In his evidence to the Tribunal, the applicant said that when he arrived in Australia in 2007, he attended English language lessons for six months and then completed high school until year 11. He left school because he began drinking alcohol and became involved with the “wrong people”. He relied on social security payments except for short periods in about 2015 to 2017 when he was employed as a labourer. The applicant told the Tribunal that, if he is released into the Australian community, he wants to start his own business and study to become a social/youth worker. He said he will reside with his sisters in Adelaide.
Criminal record
The applicant’s criminal record is detailed in his National Police Certificate dated 7 December 2017, which records that he has been convicted of 47 offences since 2011.[3] Some of these offences are repeated in his National Police Certificate because the applicant did not comply with the sentence initially imposed by the Court and the offence was subject to a “call up” by the Court. I also note that the applicant’s offences were dealt with in the Children’s Courts until May 2012 (when he was 22 years old) because police documents incorrectly recorded his date of birth as 1994, rather than 1990.[4] The applicant advised the Tribunal he was aware of this error in police records but had not corrected the mistake.
[3] Exhibit G-G2, pp 19-23.
[4] For example, see Exhibit R-S7, p 16.
The applicant was first convicted of criminal offences on 29 June 2011 when he appeared before the Children’s Court on charges of assault occasioning actual bodily harm (domestic violence) and common assault (domestic violence). He was convicted of a further eight offences in the Children’s Courts in 2011 and 2012, which included offences of common assault, possess prohibited drug and resist officer in the execution of duty. The Children’s Courts dealt with these offences either with “dismiss with caution” or a good behaviour bond.
The applicant’s National Police Certificate records the following offences that resulted in the Court imposing sentences of imprisonment:
·Court date: 3 February 2014. Offence: two counts of resisting and assaulting police officers and one count of affray. Sentence: 12 months suspended sentence.
On 3 December 2015, one count of resisting officer and the count of affray were called up (and subsequently confirmed on 8 February 2016), and a 12 months custodial sentence, with a 4 months non-parole period, was imposed.
·Court date: 5 June 2014. Offence: assaulting police officer in execution of duty and assault occasioning actual bodily harm (domestic violence). Sentence: 12 months suspended sentence.
On 16 June 2015 (confirmed on 16 October 2015), the offences of assault of both a police officer and occasioning actual bodily harm were called up and a 12 months custodial sentence, with a 4 months non-parole period, was imposed.
·Court date: 7 April 2017 (confirmed on 9 October 2017). Offence: two counts of assault occasioning actual bodily harm. Sentence: 16 months intensive correction order after serving 8 months in prison.
As a result of his offences, the applicant has spent the following periods in imprisonment:
·53 days (28 February 2015 – 22 April 2015);
·139 days (30 May 2015 – 16 October 2015);
·122 days (3 December 2015 – 2 April 2016); and
·235 days (17 February 2017 – 9 October 2017).[5]
[5] Exhibit G-G15.
The applicant was transferred to immigration detention when his period of imprisonment concluded on 9 October 2017. An incident report shows the applicant has been involved in four minor incidents and one major incident while in detention.[6] The major incident of serious assault occurred on 21 October 2017 and the applicant was named as one of the main aggressors in a fight between detainees.[7]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT
[6] Exhibit G-G12, p 69.
[7] Exhibit G-G12, pp 70-71.
Paragraph 13.1 of the Direction outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
The applicant’s criminal record, set out in paragraphs 22 to 24 above, is extensive. It shows a pattern of repeated criminal offending by the applicant in Australia over a period of seven years, including while in detention after the cancellation of his visa.
The applicant’s criminal offending includes violence-related incidents, which have mainly consisted of either assault of police officers or resisting officers in the execution of their duty, common assault or assault occasioning actual bodily harm (domestic violence).
The applicant’s visa was mandatorily cancelled because of his conviction of two counts of assault occasioning actual bodily harm on 7 April 2017, which resulted in an intensive correction order for 16 months imposed by the Court on 9 October 2017.
In sentencing remarks in the Blacktown Local Court on 7 April 2017, Magistrate Hiatt described the applicant’s offence of assault occasioning actual bodily harm and his criminal history as follows:
It’s a matter in which I would assess the objective seriousness of the offence of assault occasioning actual bodily harm by reference to the evidence, where you’ve struck the victim at least ten to 15 times, causing the injuries identified…, which required, ultimately, suturing of the nose and the corrective procedure in relation to the victim’s nose, to be above mid-range in relation to matters of a like nature that come before the Court…
[Insofar as the applicant’s] background is concerned, you have a very significant history in regard to matters involving violence, both in the Children’s Court jurisdiction and in the adult jurisdiction. And certainly, based upon the matters which are recorded…, which are almost exclusively matters involving violence, including offences of assault occasioning actual bodily harm, stalk, intimidate, and affray; certainly a circumstance where, in my view, it’s an aggravating factor in regard to the matters on penalty, as a consequence of history of convictions in regard to like offences…
[You] are a significant threat to the community in relation to your particular actions and functioning within the community, in terms of the way that you mete out violence towards other people; certainly a circumstance where I’m of the view firmly, in relation to this particular matter, having regard to your background and the other circumstances and the objective seriousness of the offence, that there is no other penalty appropriate other than one by way of custodial sentence. I’m clearly satisfied that the threshold in regard to s 5 has been crossed…[8]
[8] Exhibit R-S44, pp 118-119.
The applicant’s evidence to the Tribunal in relation to his past offences was unclear and confused. When asked to describe incidents relating to convictions of common assault (domestic violence) from June 2011 until the present, the applicant was only able to explain two occasions involving physical altercations with one of his sisters. In these explanations, he denied he was at fault and said that his sister hurt herself either by hitting her head as she fell or scratched herself climbing to the ground after he locked her outside on a balcony. Similarly, in relation to offences involving assault or resisting police officers, the applicant blamed the police for questioning and detaining him, despite police fact sheets in 2013 and 2015 describing the applicant as extremely intoxicated/injured and police intervening to protect him from further injury.[9]
[9] Exhibits R-S25, pp49-52; R-S14, pp 27-29.
On balance, I found the applicant’s evidence unconvincing. While the applicant accepted that his friends were the “wrong people” and he had a problem with heavily drinking alcohol, his evidence to the Tribunal repeatedly blamed other people for his criminal offences. For example, he blamed his sister’s behaviour or the actions of police when he was intoxicated and involved in incidents of assault. The applicant’s evidence is inconsistent with both the extent of his recorded criminal convictions as well as the sentences imposed by the Courts. I note that the Courts initially imposed relatively lenient sentences on the applicant, including warnings, good behaviour bonds and community service orders. The applicant only received sentences of imprisonment after he continued to offend and did not comply with the requirements of his bonds and complete his community service order.[10]
[10] Exhibit R-S4, p 8.
Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that:
·The applicant’s record of criminal offences in Australia includes serious and violent offences. He has received sentences of imprisonment for his offending.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
·The applicant has continued to offend while in detention.
·There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department.

I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
In a written statement dated 20 June 2018, the applicant noted:
I am tired of coming to jail. I have woken up to [my]self, I wants [sic] to change my life and be a better person. I want to get a better relationship with my family. It hasn’t been good since I started going to prison. I want the relationship to be stronger, like it was before. They have lost trust in me and I want to change that.
I participated in the young offenders program while I was in Oberon. It involved rock climbing, hiking, employment skills, English literacy classes. I found it very helpful and it made me want to do good things when I get out.
I also participated in the alcohol and drug program. I learned the negative effects of alcohol in my life and how I could make a positive change. It made me want to stop getting into trouble and become a better person. When I am out of detention, I plan on changing the group of people I used to spend time with as they often influenced me to drink. I now recognise that these friends and my drinking was what made me offend. I no longer speak to them and I’m determined to avoid them.
I am realising how my behaviour affected my family and how it was affecting me. I was homeless, my family kicked me out because I would come home drunk. I had no support network and was by myself. I would stay at home for a month or two and then get kicked out, on and off. I didn’t try hard enough to change anything. Now I realise I want to change and I have to do something.[11]
[11] Exhibit G-G10, pp57-58.
At the Tribunal hearing, the applicant accepted that he had started but not completed rehabilitation courses in relation to alcohol issues and anger management. This is confirmed in a letter from Youthlink dated 13 April 2018, which stated the applicant attended the Follow-on Youth Recovery Support Team from April to December 2016 but showed “sporadic engagement throughout the period of support and often struggled to attend appointments due to work”.[12]
[12] Exhibit G-G10, p 64.
There is minimal evidence before the Tribunal that demonstrates the applicant has taken responsibility for his criminal offending and is remorseful for his behaviour. The applicant’s evidence to the Tribunal either downplayed or denied the seriousness of his offences. This was also reflected in the oral evidence of the applicant’s sisters, who stated they believed the extent of his criminal behaviour was that he had “got into some fights”. The applicant also consistently blamed the behaviour of other people – his sister, his friends, the police, a shopkeeper, a fellow detainee – as the cause of his offending. He showed limited insight into his offending, except to state that his friends and alcohol contributed to his behaviour.
There is no information before the Tribunal, apart from the applicant’s verbal assurances, that indicate the applicant will not commit further offences if he is released into the Australian community. I place limited weight on the applicant’s verbal assurances in view of his past offending behaviour in the community, limited engagement with rehabilitation programs and continued offending while in immigration detention.
In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal behaviour including repeated offences with police officers, common assault and offences of assault occasioning actual bodily harm (domestic violence). I cannot be satisfied on the basis of the evidence before the Tribunal that the applicant will not reoffend if he is released into the Australian community.
On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
In his personal circumstances form dated 7 July 2017, the applicant sets out that he has 10 to 15 nieces and nephews.[13] At the Tribunal hearing, the applicant gave evidence about six nieces and nephews who are under the age of 18 years; three nephews who are the children of his older brother; a niece and nephew who are the children of his oldest sister; and a 21-month-old niece who is the daughter of his sister.
[13] Exhibit G-G6, p 39.
An undated statement from the applicant’s niece, who is 14 years old and lives in Adelaide, filed with the Department noted:
[The applicant] is not only my uncle but one of my friends. I haven’t seen him in a while but from the times he came to visit me and my little brother he has been a great uncle/role model. He is kind, caring, helpful and funny. No matter what he is the one I always count on to have a positive attitude and to put a smile on everyone’s face…
I know from stories that my mum tell me; that [the applicant] and his siblings went through a hard time growing up. His mother which is my grandmother died when he was very young and they had nothing but each other. I feel like this traumatised him and affected with [sic] his mindset on things.
[The applicant] always calls us on the phone whenever he can. He always asks how we doing and never talks about himself or his problems. This shows that he is not selfish and cares a lot about his family and the people around him. I believe that my brother, my little cousin and I need our uncle in our lives. He has missed out on a lot while he has been gone and we wish him to come back and be a part of our lives, he means a lot to us.[14]
[14] Exhibit G-G11, p 67.
While this statement shows a close and caring relationship between the applicant and his niece, the applicant and his sister told the Tribunal that he has not seen either his niece or nephew since 2012. He also has never met his 21-month-old niece. The applicant provided minimal evidence about the children of his brother, who he has not seen since 2015-2016 when he stayed with them for about five months.
There is no evidence before the Tribunal that the applicant plays a parental role in the lives of any of his nieces or nephews. However, I acknowledge the written statement by the applicant’s niece, which indicates the applicant is a valued and important part of her family and life.
While I find this primary consideration weighs in favour of the applicant, I do not place substantial weight on this consideration because the children also have parents and other family members present in their lives.
PRIMARY CONSIDERATION 3 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 13 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[15] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[15] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant has resided in Australia since 2007 when he was 17 years old. He attended school until year 11 and has participated in soccer and basketball activities in his local community. The applicant was reliant on social security payments until he was employed for short periods as a labourer from 2015 to 2017. He told the Tribunal that he has an offer of employment if he is released from detention; however, this has not been confirmed in a letter from his potential employer.
I believe the Australian community would have sympathy for the applicant’s past and his experiences growing up in the difficult circumstances of a refugee camp in Kenya without his parents. As the applicant described in his written statement dated 20 June 2018:
My family and I were surrounded [by] nothing but fear. Where I was and came from their [sic] were no education and economy, life was hard and making the best out of what we had seem[ed] impossible.[16]
[16] Exhibit G-G9, p 59.
Nonetheless, the applicant has demonstrated a long-term pattern of repeatedly committing serious offences and disregard for the Australian law and judicial system. In assessing all the relevant evidence against the requirements of the Direction, I find the applicant’s past circumstances cannot excuse his consistent and serious criminal offending since 2011.
On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 65
Paragraph 14 of the Direction sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation. Relevant considerations in this matter are international non-refoulement obligations, the strength, nature and duration of the applicant’s ties to Australia, and extent of impediments if he is removed.
There is no evidence before the Tribunal that other considerations including the impact on Australian business interests and the impact on victims are relevant to these proceedings.
International non-refoulement obligations
Paragraph 14.1(1) of the Direction articulates Australia’s non-refoulement obligations in accordance with international human rights treaties and, in particular, 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”.
The Direction, at paragraphs 14.1(2) and (4), also states:
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
…
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
Relying on paragraph 14.1 of the Direction, the Minister provided written submissions that “consideration of non-refoulement obligations is only relevant…if the person is unable to make an application for a protection visa”.[17] At the hearing, the Minister’s representative further submitted that the applicant’s visa cancelled by the Department on 19 June 2017 is a permanent visa and it is open for the applicant to apply for a protection visa.
[17] Respondent’s Statement of Facts, Issues and Contentions, 31 August 2018, para 57.
The applicant made claims regarding non-refoulement obligations in his written statement dated 20 June 2018. The applicant expressed fear due to his memories of war, hearing gunshots and knowing “people were dying by the sounds of families crying”.[18] The applicant also noted that he was unsure about his citizenship and whether he may be stateless. While I accept that these are real and valid concerns by the applicant, it is my view that these issues relate to impediments if his visa cancellation is not revoked and he is returned to South Sudan rather than a claim of non-refoulement.
[18] Exhibit G-G9, p 59.
In considering non-refoulement obligations, I also have regard to the decision made on 10 May 2018 by Flick J in Ali v Minister for Immigration and Border Protection.[19] In view of Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Direction No. 75) made by the Minister under section 499 of the Act on 5 September 2017, Flick J held that:
To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.[20]
[19] [2018] FCA 650.
[20] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [30].
Consequently, I find in the circumstances of this matter, where the applicant has not set out any specific claim of non-refoulement and it is open for the applicant to apply for a protection visa, that any potential submissions by the applicant in relation to non-refoulement should be addressed in accordance with Direction No. 75 if or when the applicant applies for a protection visa.
Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of the applicant’s ties to Australia, paragraph 14.2(1) of the Direction provides that:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In his personal circumstances form dated 7 July 2017, the applicant stated
All my family live here in Australia, my brothers and sister, uncles and cousins.
My sisters and brothers are my parents, mum and dad passed away back in Africa.
I have no other home country, Australia is my only home country.[21]
[21] Exhibit G-G5, p 32.
The applicant’s evidence to the Tribunal confirmed that his siblings and extended family members reside in Australia. He confirmed he thought his sister was his mother when he was young. He also explained he found not remembering his mother “difficult” and said this made him “quiet, emotional and sad”.
Two sisters of the applicant provided written statements and gave oral evidence at the Tribunal hearing. The applicant’s sisters also acknowledged the difficulties faced by the applicant including not knowing his parents, his experiences seeing “horrible thing[s] that a young child shouldn’t have seen” in Kakuma refugee camp, and a lack of role models in his life.[22]
[22] Exhibit G-G11, p 68.
Given the strength of the applicant’s ties to his family in Australia, I am satisfied that consideration of the applicant’s ties to Australia weighs in his favour. However, the weight I give this consideration must be reduced because of the short period the applicant has spent contributing positively to the Australian community.
Extent of impediments if the applicant is removed
The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in South Sudan. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant is 28 years old. He identifies as Christian and a member of the Dinka ethnic community. There is no evidence before the Tribunal that the applicant has any health problems.
In the applicant’s written statement dated 20 June 2018, he submitted that he has the following significant concerns:
I do not have Kenyan citizenship, and I am not sure whether I have South Sudanese citizenship. It is possible that I am stateless… It would not be safe for me…
I have no ties to South Sudan or Kenya… I do not speak the Kenyan language and would not be able to communicate at all if I was sent back. I would suffer great stress, anxiety, financial and emotional hardship as I would be alone and I would be homeless and again fearing for my life.
I have never been to South Sudan. I can speak a little bit of Dinka, but I do not know of any family I have there currently. My whole family is in Australia now. If I was sent back, I would be unable to support myself.[23]
[23] Exhibit G-G10, pp 59 and 61.
The Minister provided a “Country Information Report on South Sudan” prepared by the Department of Foreign Affairs and Trade (DFAT) on 5 October 2016 (DFAT Report) for the purpose of informing protection status determinations.[24]
[24] Exhibit R-S59.
The DFAT Report describes the creation of the new Republic of South Sudan in 2011 after two civil wars in 1955-1972 and 1983-2005, which were estimated to have resulted in the deaths of more than 1.5 million people. The population of South Sudan is estimated as 12.04 million people; approximately 36 per cent of the population is Dinka and the majority of the population is Christian. However, the humanitarian situation in South Sudan:
…is dire and has been aggravated by the recent escalation in conflict. As of August 2016, 1.6 million people were internally displaced, including 190,000 people in Protection of Civilian Camps run by the UN Mission in South Sudan, and a further 818,950 South Sudanese people seeking refuge in surrounding countries. The Government accepted the deployment of a 4,000 ‘Regional Protection Force’ in early September 2016, in addition to the roughly 12,000 UN Mission in South Sudan personnel already serving in South Sudan.[25]
[25] Exhibit R-S59, p 151.
I also note other relevant parts of the DFAT Report include the following information about the economy, healthcare and employment:
2.12 South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy…
2.14 Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015, contributing to increasing levels of crime.
2.17 South Sudan’s population has extremely poor access to healthcare. Accurate data prepared by the Government on health indicators is often non-existent or outdated…
2.19 Data collected prior to the outbreak of conflict in December 2013 found that 76 per cent of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12 per cent of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However, as at 2016, DFAT assesses that as the security and economic situation deteriorated, employment opportunities (both in the formal and informal sectors) have also worsened.[26]
[26] Exhibit R-S59, pp 151-153.

The security situation in South Sudan is described in the DFAT Report as follows:
2.30 Conflict continues between the Government’s Sudan People’s Liberation Army and the Sudan People’s Liberation Movement in Opposition SPLA-IO in Upper Nile State, Unity State and Jonglei State. Incidents of conflict in Central Equatoria Estate and Eastern Equatoria Estate are also rising, particularly following the recent escalation of conflict in Juba in July 2016. As a result, there are significant numbers of internally displaced people throughout South Sudan.
2.31 While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba.[27]
[27] Exhibit R-S59, p 154.
In relation to refugee convention claims, the DFAT Report assesses the situation for a person of Dinka ethnicity and Christianity in the following paragraphs:
3.7 Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because of the Dinka dominated government currently has almost unencumbered control over Juba.
3.15 Christianity is the dominant religion in South Sudan…
3.18 Overall…DFAT assesses that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone…
5.20 Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence.[28]
[28] Exhibit R-S59, pp 156-158 and 170.
In response to a request from the Tribunal for updated information on the current political and security situation in South Sudan, the Minister filed the following documents on 19 September 2018:
·“South Sudan 2017 Human Rights Report” published by the United States Department of State on 20 April 2018 (USDOS Report);
·“South Sudan: CI180703160558597 – Status of South Sudan peace agreement – ceasefire” dated 5 July 2018; and
·news articles regarding the most recent peace agreement in relation to the conflict in South Sudan.
News reports refer to the most recent peace agreement agreed on 12 September 2018, seeking to end five years of civil conflict. The various reports conclude that, despite this peace agreement, the situation in South Sudan remains unpredictable.
Based on the information before the Tribunal, it is clear that the impediments faced by the applicant if he returns to South Sudan – particularly in terms of potential employment and personal security – are immense.
The applicant raised concerns about his citizenship and the possibility that he is stateless. In response, the Minister produced a report by the Department of Home Affairs in relation to the applicant’s background, noting his parents were from Sudan, which is dated 7 August 2018 (DHA Report).[29]
[29] Exhibit R-S60.
The DHA Report quotes the USDOS Report, which refers to Article 8 of The Nationality Act 2011 of South Sudan and notes that:
Citizenship is derived through birth if a person has a South Sudanese parent, grandparent, or great-grandparent on either the mother’s or the father’s side, or if a person is a member of one of the countries indigenous ethnic communities. Individuals may also derive citizenship through naturalization. Birth in the country is not sufficient to claim citizenship.[30]
[30] Exhibit R-S60, p 175.
Based on the information provided in the DHA Report and USDOS Report, I accept that the applicant could theoretically obtain recognition of his South Sudanese nationality. I note, however, there is no evidence before the Tribunal that the applicant has obtained South Sudanese citizenship to date.
The Minister’s written submissions on 19 September 2018 stated that the DFAT post in Nairobi (Kenya) has worked with the South Sudanese embassy in Nairobi to obtain travel documents for “returnees” to South Sudan. There is also evidence that “returnees” have been provided with “post removal support”. Nonetheless, despite this potential assistance, in view of the ongoing civil conflict in South Sudan it is likely that there will be impediments for the applicant in the practical exercise of obtaining travel documents.
Based on the evidence before the Tribunal, I find there would be substantial impediments to the applicant commencing a life in South Sudan and this weighs heavily in the applicant’s favour.
CONCLUSION
The first and third primary considerations weigh against the revocation of the cancellation decision. The second primary consideration weighs for the applicant but, for the reasons set out in paragraph 47 above, I place minimal weight on this consideration.
In regard to the other considerations, I find the international non-refoulement obligations have limited relevance to this decision. The applicant’s ties to Australia and the impediments to the applicant’s removal from Australia weigh heavily for revoking the cancellation of the applicant’s visa.
Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[SGD]..........................................
Associate
Dated: 2 October 2018

Date(s) of hearing: 11 and 12 September 2018

Date final submissions received: 19 September 2018

Applicant: In person

Solicitors for the Respondent: Mr W Sharpe - Minter Ellison

[2018] AATA 3661

2 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	11 and 12 September 2018
Date final submissions received:	19 September 2018
Applicant:	In person
Solicitors for the Respondent:	Mr W Sharpe - Minter Ellison