GCRM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 736

GCRM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 736 (14 March 2024)
Division:GENERAL DIVISION
File Number: 2023/9701
Re:GCRM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member N A Manetta
Date of decision: 14 March 2024
Date of written reasons: 15 April 2024
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review made by a delegate of the Respondent on 8 December 2023 and substitutes a decision that the cancellation of the Applicant’s Class AH Subclass 101 Child visa be revoked.
................[SGD]..................
Senior Member N A Manetta
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where the visa has been previously mandatorily cancelled – where Applicant has reoffended after being released into the community – Tribunal finding the Applicant’s recidivist risk is mitigated by his ongoing rehabilitation – Tribunal finding circumstances surrounding the Applicant’s minor child strongly favour revocation – Tribunal finding that factors in favour of revocation outweigh factors against revocation and that there is another reason to revoke the mandatory cancellation decision – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 790
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member N A Manetta
15 April 2024

After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments. I note that my oral reasons were prepared urgently as the hearing had ended only two days before the last day by which I was required in law to give my decision.
[1] These reasons contain certain standard paragraphs, especially [5] and [21].
This is an application by ‘GCRM’, whose identity is subject to a confidentiality requirement and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of a decision of the respondent’s delegate dated 8 December 2023. By this decision, the delegate declined to revoke the cancellation of the applicant’s visa, which had come about earlier, and mandatorily so, under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The cancellation came about after the applicant was found guilty of a number of offences involving theft and armed robbery and was sentenced to three concurrent terms of imprisonment, the longest of which was three years and five months. He was required to serve part of these sentences in jail on a full-time basis. His visa was required to be cancelled under the Act in these circumstances.
The applicant made a timely application for an internal review. The delegate who considered that application had two questions to address under section 501CA(4)(b) of the Act. The first question was whether the applicant passed the so-called ‘character test’.[2] The delegate[3] found that the applicant could not pass this test given his lengthy term of imprisonment. This conclusion was undoubtedly correct given the provisions in section 501(6)(a) and (7)(c) of the Act. The second question the delegate had to address was whether there was ‘another reason’ for the cancellation decision to be revoked. In this regard, the delegate was required to apply any direction issued under section 499 of the Act. The delegate applied Direction no. 99 (‘the Direction’).[4] Having weighed the considerations required to be addressed under the Direction, the delegate found that, on balance, non-revocation of the cancellation decision was the preferable outcome. It followed that there was not ‘another’ reason for the cancellation decision to be revoked, and the delegate formally declined to revoke the cancellation.
[2] See section 501(6) of the Act.
[3] The delegate’s reasons were before me at Ex R1, 19ff.
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must address the same two questions. I have already indicated that the first question was answered correctly by the delegate. When addressing the second question, I too must apply the Direction.
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error but reaches the correct or preferable decision on the evidence adduced before it.[5] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it. Equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[5] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, Mr Wilkinson appeared for the applicant; Mr Kyranis, for the respondent.
STATEMENT OF DECISION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of South Sudan. He was born in 1998 (apparently in a Kenyan refugee camp) and was 26 years of age at the time of the hearing before me. He had a very difficult childhood, which included separation from his parents. The ongoing conflicts in South Sudan led him to spend substantial periods on the move and some time in refugee camps in neighbouring countries. The applicant’s childhood was not the subject of explicit oral evidence before me; but I note the delegate refers to the applicant having lived on the streets of South Sudan for a decade, during which time he experienced physical and sexual abuse.[6] The delegate also accepted that there was a significant level of violence in South Sudan due to the war and social instability.[7] I note also the following observation of the sentencing Court that considered the applicant’s most recent offences:
‘I have seen the reports about your childhood and your family. I am not going to put you through me (sic) repeating those here. I’ll just simply summarise them by saying they are truly horrible. They’re just unspeakable. As I say, I won’t go through them.’[8]
[6] Ex R1, 24 [37].
[7] Ibid.
[8] Ibid, 53.
The applicant came to Australia when he was 16 years of age. The sentencing remarks to which I have just referred indicate that the applicant did not drink much between the ages of 16 and 18. The remarks also record that the applicant began to consume alcohol overseas at about the age of 12 and that at that stage of his life, he drank ‘as much as he could get his hands on’.[9] This was disputed before me by the applicant, who referred to a lack of alcohol in South Sudan and the prevalent cultural norm of abstinence. It does not much matter in my opinion where the truth of the matter lies. What is important is that the applicant began drinking heavily approximately two years after his arrival in Australia, and, in fact, he began to binge-drink from the age of 18 onwards.
[9] Ibid, 54.
The applicant and his sister, A, were sponsored to come to Australia by their father, with whom they had lost contact. It would appear that that the applicant’s father eventually rediscovered his lost children’s whereabouts fortuitously.
As I say, the applicant and his sister came to Australia when the applicant was 16 years of age. The applicant attended a Catholic college on his arrival in Australia. He said he was subject to bullying there and that he struggled to make friends, which I find plausible despite the avowedly Christian ethos of the school. His education in Australia has been very limited to date. His English was described as elementary by the person who tutored him as an adult in Shalom House.[10] He has had only one job (outside Shalom House) and that was in a fast-food business on a part-time and casual basis. The applicant had had no other reliable employment (before entering Shalom House): he was dependent upon social- welfare benefits before entering Shalom House.
[10] Shalom House is a drug-addiction rehabilitation facility. The tutor in question was Ms Miriam Anderson, who gave evidence before me. The applicant entered Shalom House shortly after his offending in June 2021.
The applicant’s criminal record was before me.[11] I need not describe it in detail. The offending is described in the internal review delegate’s decision, which I have read carefully.[12] It is sufficient to observe that the offending is extensive. It involves severe violence, theft, and robbery on multiple occasions. Appearances before the Magistrates Court commenced when the applicant was just 18 years of age.
[11] Ex R1, 38ff.
[12] Ibid, 20ff, [15]ff.
As a result of certain offences committed in 2016 and which were the subject of sentences in December 2017, the applicant was jailed. They involved two counts of aggravated robbery. The violence the applicant inflicted on these occasions was quite extreme, and a noteworthy feature is that the violence was gratuitous. It is described in the transcribed sentencing remarks, which were before me, and which I have read carefully.[13] Again, I need not set out the description.
[13] Ibid, 83.
In early 2018 the applicant was also sentenced by the Perth Magistrates Court to two years imprisonment in respect of certain burglary offences. As a result of these convictions, the applicant’s visa was cancelled. The internal-review delegate refused to revoke the cancellation decision, and this Tribunal, on review, initially affirmed the delegate’s decision. The Tribunal’s decision was quashed by the Federal Court and a rehearing of the applicant’s application was ordered. On that further hearing, the cancellation of the applicant’s visa was revoked by the Tribunal (differently constituted). The Deputy President’s decision and reasons dated 2 December 2020 were before me.[14] His decision had the effect of reinstating the applicant’s visa.
[14] Ibid, 173ff.
As a result of the Deputy President’s decision, the applicant was released into the community. He had been in jail or detention for some four years and four months by the time of his release. He soon began to re-offend, however. There are relatively minor offences of giving false evidence of personal details to police in the course of their investigations as well as a breach of a bail undertaking. In addition, there are two counts of stealing. A large number of offences were the subject of sentences on 11 August 2021 and these appear in the criminal record. Fines and community-based orders were imposed at that point. It is quite clear that the applicant was being given every opportunity to rethink his behaviour and address his persistent defiance of the law. He did not do so effectively.
I now turn to the offending which has led to the most recent jail sentences. There were three counts charged: one of stealing, which received a sentence of six months; one of attempting to steal, which received a sentence of nine months; and one of aggravated armed robbery which received a sentence of three years and five months. The sentences commenced on 27 May 2022.
The sentencing remarks of the Court were before me.[15] I accept them and rely on them. All three offences occurred on the one day; namely, 4 June 2021. That morning the applicant, together with two juvenile co-offenders, was in a car park in Joondalup, in suburban Perth. I point out here that the applicant was then aged 23, and his two co-offenders, 13 and 14, respectively. The applicant threw a brick through the driver’s-side window of a car to gain access to it. He tried unsuccessfully to start it, but then managed to push it out of its parking bay. In the event, the offenders were unable to steal it. This offending, which constituted an unlawful attempt to steal a motor vehicle, received nine months’ imprisonment. The second count occurred just five minutes later. A 67-year-old had pulled up in his car in the same car park. He was standing near his car when he was approached by the applicant and his two accomplices. They surrounded the man. One of the co-offenders produced a large kitchen knife and aimed it at the victim, approximately 30 cm from his chest. One co-offender demanded the car keys, money, the mobile phone, and its password. The victim complied. The three offenders rummaged through the vehicle before driving it away. This was the offending that consisted of aggravated robbery. It received a sentence of three years and five months. The third offence consisted of stealing number plates with a view to attaching them to the stolen car. This offending attracted a sentence of six months.
[15] Ex R1, 52ff.
Shortly after committing these offences, the applicant sought admission to a residential rehabilitation centre known as ‘Shalom House’. He had earlier sought admission, but unsuccessfully so, as he had attempted to smuggle marijuana into the house with him.
He was accepted on this second occasion, however. He commenced the program. In September 2021, while he was on the program, he made a full confession at a police station. According to the prosecution’s submissions to the sentencing Court, the applicant ‘demonstrated a level of remorse not often seen among offenders’.[16] The applicant pleaded guilty early on and was given a 25 per cent discount. The applicant remains in prison at the time of my decision today.[17] I accept his evidence that his parole application will be considered on 25 March 2024, and that he occupies, on account of his good behaviour, a favourable position in the jail and presently resides in a more liberally run unit. I accept his evidence that he was denied parole recently because of the Prisoner Review Board’s desire that he should complete a further course or courses, that he has now completed the course or courses in question, and that he believes he will be granted parole when the Board next meets.
[16] Ibid, 48.
[17] 14 March 2024.
So far as the applicant’s personal life is concerned, he is the father of a child, D, born in November 2021. At the time of his most recent offending, the applicant and his partner, the mother of his child, had separated; or, if they had not formally separated, they were at least no longer cohabiting. At the time of the hearing before me, they remained separated.
REASONS
Having set out the relevant facts in summary form, I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat here:
‘[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.’
I turn now to apply the Direction. Paragraph 8.1(1) requires decision-makers to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I must bear in mind that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I acknowledge this principle. It has particular force, in my opinion, to gang violence, which can cause great harm.
Subparagraph (2) requires me to consider the nature and seriousness of the applicant’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. So far as the nature and seriousness of the applicant’s conduct to date is concerned, I am required to address the matters listed in paragraph 8.1.1(1)(a) to (h). Much of the applicant’s offending has been seriously violent and antisocial, including his most recent offending. The applicant must bear responsibility, in my opinion, for the use of the knife against the 67-year-old victim in the carpark. The applicant’s co-offenders were barely teenagers while the applicant was 23. He knew that one of them was carrying a knife.[18] As the adult ringleader, the applicant bears responsibility for the behaviour of the entire group that day.
[18] Ex R1, 55.

There can be profound and ongoing psychological consequences for victims, including senior Australians, when they are threatened at close range with a significant weapon, and when they are outnumbered with no chance to escape. This sort of violent offending is extremely confronting, and quite prevalent in parts of Australia. Overall, I regard the applicant’s offending as very serious because it has been so strongly antisocial and because it extended to gratuitous violence.[19]
[19] See sentencing remarks at Ex R1, 83, and paragraph (a) of paragraph 8.1.1(1).
I must have regard to the sentences imposed by the Courts.[20] The most recent sentences were long ones. It is quite clear that the Court’s sentencing options had been reduced substantially by the applicant’s continual offending. A sentence of three years and five months after a discount is a very long sentence and marks out the gravity of the offending in all the circumstances. It was not the first long sentence that the applicant has received.
[20] See paragraph (b) of paragraph 8.1.1(1).
There is no doubt that the applicant’s offending has been frequent. I also believe there is a trend of increasing seriousness. I say this for several reasons. First, the applicant had become older. Whilst the court acknowledged there was still an element of youth associated with the applicant’s most recent offending,[21] it remains a fact that he was an adult at the time and no longer a teenager. Secondly, the applicant had persisted in offending despite an earlier jail sentence and the earlier cancellation of his visa. He had spent a considerable amount of time in jail and then in detention before his release into the community. If a person enters jail and immigration detention, the consequences of further offending are not theoretical: they have assumed the character of a lived experience. This applicant reoffended notwithstanding his earlier incarceration and experience of detention. Thirdly, the sentencing Court on 12 December 2017 referred to the offending on that occasion as ‘escalating in seriousness’.[22] It involved breaches of various requirements to be of good behaviour, which aggravated the offending. That offending, like the most recent offending, involved younger juvenile co-offenders.
[21] Ex R1, 56.
[22] Ex R1, 90.
There is a cumulative effect of repeated offending, and I take that into account.
I must also take into account whether the non-citizen has reoffended since formally being warned or since otherwise been made aware in writing about the consequences of further offending.[23] The applicant has been through an extensive Tribunal process once before in relation to his offending. As I have said, he reoffended notwithstanding the lived experience of jail and detention for over four years. It was quite clear, in my opinion, that his offending was largely out of control: the prospect of the loss of liberty had failed to offer an effective deterrent. That lack of control in the applicant’s life may well have something to do with the dysfunction of his earlier life and with the failure of his familial relationships, including with his partner. I cannot say that definitely, but self-evidently it is one reasonable hypothesis. Importantly, he was unable at that point in his life to redirect his life to more prosocial choices. That he should be consuming alcohol and smoking methamphetamine at the age of 23 with two children (aged 13 and 14) before committing offences with them betokens a strongly antisocial stance.
[23] Paragraph 8.1.1(g) of the Direction.
I turn now to consider the applicant’s risk to the Australian community. Paragraph 8.1.2 (1) provides that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for risk of becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. I bear this principle in mind.
In assessing risk, I must have regard to two matters ‘cumulatively’ under paragraph 8.1.2(2). First, I must have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. Secondly, I must have regard to the likelihood of the non-citizen engaging in that further criminal or other serious conduct.
So far as the first matter is concerned, I note that the use of knives by gangs can have unpredictable consequences. Young offenders are frequently in an elevated psychological state, ‘charged up’ so to speak, when they execute their crime. In this case, the offenders had also been drinking and abusing methamphetamine. What would have happened, one wonders, if the victim had decided to defend himself, or had tried to break away from the circle? It is not farfetched to suppose that a violent confrontation would have ensued. That confrontation could well have entailed a fatal stabbing. Stabbing the victim might not have been part of the plan, but it could easily have eventuated that day. In my opinion, it is extremely serious for an adult to lead a gang and to encircle a person with a view to threatening him. All in all, there is an obvious prospect of very serious harm that arises from this sort of behaviour.
Moreover, there are obvious and serious consequences when people are dispossessed of their property.[24] Generally speaking, violence and theft make society a far less safe and congenial place for all community members, some of whom may begin to fear to use public spaces, and with justification. The crimes the applicant has committed are very damaging to the fabric of a well-ordered community.
[24] The sentencing Court referred to the damage to the victim’s car as “more than $15,000”: see Ex R1, 55.
I must have regard to the likelihood of the applicant committing further offences. I note that the sentencing Court decided that the applicant’s risk was ‘moderate/high’ in the future ‘if he does not remain abstinent from substances’.[25] I agree with that assessment. Indeed, if he returned to substances, the risk would be high, in my opinion.
[25] Emphasis added.
The Court further said, without elaboration that might have been helpful, that ‘accordingly’ the applicant’s risk of offending is somewhere ‘in the middle range of the scale’. The Court had earlier referred to several matters. First, it had referred to the history of violent offending and to the applicant’s poor stress and coping skills. It noted that he had been unable to establish direction and independence in his life. The Court then referred to the applicant’s positive response in recent months to treatment and to his good progress at Shalom House. The Court also referred to support from family but noted that the applicant had offended despite this. The Court then referred to the psychological assessment of recidivism as moderate/high if the applicant did not remain abstinent. It then noted the risk of offending as somewhere in the middle range of the scale. From this I infer that the Court did not accept that the applicant’s progress at Shalom House had made such a difference that he could be considered to be at a low risk of offending. Presumably, his abstinence from alcohol and drugs was not judged to have made a critical difference to his risk outlook at that stage. I take into account that view of the matter as I am required to do.
There are, however, further matters to consider as at the date of my decision today. The applicant is approximately two years older now. He has had the further experience of jail. Of course, I appreciate that he had already experienced jail and faced the threat of deportation before his latest offences. At that point in his life, those experiences did not work any deterrent effect. I accept that the prospect of jail and deportation do not hold sufficient deterrence for this applicant.
At this point in his life, however, it would appear that jail, combined with his earlier experience at Shalom House, has effected a positive rehabilitative effect, which is one of the intended purposes of incarceration. I have not based this on the evidence of the applicant solely. He has been abstinent from alcohol and drugs for a considerable period of time now. He has engaged in faith-related activities in jail that I accept have assisted in his moral formation. There is a reference from the prison chaplain to the Prisoners Review Board.[26] He has a plan, which is realistic, to move back into Shalom House if he is released into the community. He will be re-accepted there according to the evidence before me.[27] He is regarded very highly by those who have been involved in that organisation.[28] They gave evidence before me. He thrived in Shalom house, it would appear. The sentencing Court accepted, as I have said, that good progress had been made. According to those who gave evidence before me, Shalom House is a challenging rehabilitative residential centre. The applicant worked there and was very disciplined. He wishes to return there and to work towards gaining custody of his daughter, D. Visits with D can be facilitated in family accommodation located on the premises.
[26] Exhibit A22.
[27] See statement of Mr Peter Lyndon-James, CEO and founder of Shalom House, dated 8 February 2024 at Ex A21 .
[28] See written statements at Exs A16 and A15.
The applicant’s decision to return to Shalom House is an important one because it implies an immediate recommitment to a controlled and supportive environment which has helped the applicant in the past and in which the sentencing Court noted, as I say, that the applicant had made good progress. The evidence before me also suggests that the applicant is strongly attached to his daughter, D. His daughter is currently in his sister’s care, but she has arranged for the child to enter foster care as she is no longer in a position to look after her.
I do believe the applicant when he says he would re-enter Shalom House if he were released into the community. I accept that he entered Shalom House of his own volition after he committed the last series of crimes. That decision appeared to be a watershed in his life. The applicant realised that he was on a downward spiral, as he indeed was. It was after he had committed the most recent offences that he acknowledged how desperately he needed help. There was no other reason for his entering Shalom House. These factors are important.
All in all, I believe the risk of reoffending at this time to be low, but it will depend, in my opinion, on the applicant re-entering Shalom House to progress through the remaining stages of the program and also upon his total abstinence from alcohol and drugs. While he is engaged with that program, and while he continues to improve and see his daughter regularly, I do believe he will stay away from substances and continue to improve his life with prosocial choices. I bear in mind, however, that this factor is to be considered ‘cumulatively’ with the nature of harm to individuals or the Australian community should the non-citizen reoffend.
I turn now to the consideration of family violence under paragraph 8.2 of the Direction. The respondent referred to an alleged incident of family violence involving the applicant and D’s mother, his then partner. This incident is said to have occurred in Western Australia in a caravan park.[29] I do not doubt that the police received a report from the applicant’s partner in this regard. The applicant admitted in his evidence that there had, indeed, been an argument, but he maintained in his evidence that no physical violence occurred. The incident is said to have occurred on 3 April 2021.
[29] Ex R3, 50.
On my review, I am not prepared to act on the basis that what the applicant’s partner alleged to police about being punched in the throat is true. My reasons for this conclusion are as follows. First, the police found the complainant uninjured at the premises. The caravan appeared in order with no signs of disturbance. The police had to remind the victim of the alleged punch to the throat when they attended on site. The victim is recorded as not being frightened. She did report being pregnant, and it would appear she may well have been since her daughter, D, was born some seven months later. It would seem strange that she would not be fearful for the baby given the violence she says she had suffered. I note that the report records that she has been ‘emotionally and mentally abused’, but there is no reference to past physical assaults. In fact, the victim said that she had never previously been hit or threatened by the applicant, and no formal complaint was made in the event. Finally, although the victim had enquired about obtaining a violence restraining order, the report records that she declined the card that provided this information when the police offered it to her, which seems odd. All in all, the police report better supports an inference that there was no physical violence on that occasion. In any event, it does not provide me with an appropriate level of confidence that physical violence occurred.
I do not discount the seriousness of arguments, verbal abuse, and severe discord in domestic situations, but I am unable to discern whether the argument the applicant admitted he had with his partner extended beyond a loud and abusive interaction. I do not think there is a firm evidentiary base to require me to weigh this consideration, and I note the respondent based its submissions in this regard squarely on an occurrence of physical violence, which I am not satisfied occurred.
I must take into account the strength, nature, and duration of the applicant’s ties to Australia: see paragraph 8.3 of the Direction. I do believe that the applicant’s sister, A, would be affected by his departure. They have a close bond from their joint and traumatic childhood in South Sudan. I would regard that as the applicant’s only real link to Australia (apart from his daughter, D). I do give it some weight.
I must have regard to the best interests of minor children in Australia under paragraph 8.4 of the Direction. I regard reinstatement of the visa to be in D’s best interests. I accept that there has been limited contact between the applicant and D caused by his incarceration. She is only two years of age. I accept, however, that contact has been maintained to a substantial extent within the confines of incarceration. I accept also that there was contact at Shalom House where the applicant’s interactions with his daughter were observed and favourably commented upon.[30]
[30] Statements of Ian Rayner (Ex A19); statutory declaration of Miriam Anderson (Ex A20); statement of Gavin Lyndon-James dated 5 March 2024 (Ex A21) and his oral evidence; oral evidence of Ms Noelene Bell.
I accept the truth of A’s evidence that she is not in a position to continue to provide care, and that D will be transferred later this month to the care of certain foster carers, who also have charge of D’s half-sister. It appears D’s mother is not able to look after the children. While a foster carer can perform the role of a parent well, I believe that it is substantially in D’s interests that the applicant maintain contact with her because he is the biological father and because the biological mother does not have primary care of the child. It would be difficult for D to accept later in life that her father was unable to offer her support in circumstances where her mother has not remained the primary carer. As commendable as the system of foster parenting is, and as commendable as the generosity of foster parents can be, the absence of a biological parent in a child’s life poses a difficult situation. I accept that it would be possible for the applicant to have at least supervised access to the child and that this can be facilitated with the assistance of Shalom House.
I accord D’s interests considerable weight. As I have said on previous occasions, children are very often the victims of the dysfunction brought about by the poor actions of one or other parent. D’s prospects of developing into a confident adult with a responsible outlook will depend on the foundations of affection and care she receives in her childhood and adolescence.
I must take into account the expectations of the Australian community under paragraph 8.5. I bear in mind paragraph 8.5(1). The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious misconduct, the Australian community, ‘as a norm’, expects the Government not to allow him or her to remain in Australia. I accept that there are serious character concerns arising in respect of the applicant. His violence has been quite extreme in the past, and there has been a very lengthy history of antisocial and defiant offending. One of the victims of his most recent offending was described by the sentencing Court as vulnerable, which is also a relevant factor: see paragraph 8.5(2)(c) of the Direction.[31]
[31] See Ex R1, 55.
I accept that the ‘community expectations’ consideration counts substantially against the applicant. I note that I am not to assess the expectations in any particular case, but am to apply them as given in the paragraph: see paragraph 8.5(4). I note that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: see paragraph 8.5(3).
I must have regard to so-called ‘other’ considerations under section 9, including the impediments the applicant would face on removal to South Sudan. The applicant has raised in material before me the very serious consequences that would befall him if he returned there. This material includes the Deputy President’s earlier decision as well as much of the material the Deputy President had before him on that occasion, when the applicant was legally represented.[32] The respondent did not provide evidence that contradicted either the factual conclusion reached by the Deputy President that South Sudan is in an extremely dire state or the material underlying the conclusion. In the short time available to me, I have verified that the Deputy-President’s assessment of the situation in the South Sudan is not out of date. I agree with his analysis of the situation there. Accordingly, the most serious consequences could befall this applicant if he were returned. He belongs to an ethnic group that is widely discriminated against, and the situation in South Sudan is generally one of wide impoverishment and unpredictable violence and conflict.
[32] See Ex A5.
I accept that I must reach my assessment having regard to what is generally available to other citizens.[33] Nonetheless, the applicant’s minority status as well as his lack of connection with the country (as he has no relatives there) would make navigating the challenges of South Sudan more difficult for him than for others. In this sense, he would face challenges that others in the South Sudanese community do not face in the same way.[34] This consideration counts very substantially in the applicant’s favour on the assumption that a result of a decision by me to affirm the decision under review would be his deportation. Whether or not the applicant presently suffers from a mental illness, the situation in South Sudan poses very serious obstacles to someone returning there who is of Kakwa ethnicity.[35]
[33] See paragraph 9.2 of the Direction.
[34] See, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92 at [47].
[35] See the Tribunal’s conclusion at Ex R1, 202 [83].
On the facts before me, however, it is open to doubt that he would face deportation if I affirmed the decision under review. The decision of the Deputy-President, to which I have referred, made clear that the applicant is owed non-refoulement obligations,[36] and nothing appears to have changed in the intervening period. I accept that conclusion and the reasoning underpinning it. There is another distinctly possible outcome, apart from deportation, if I affirm the decision under review. That possibility is that the applicant will make an application for a protection visa. He gave evidence before the Tribunal on the last occasion (before the Deputy President) that he would,[37] and Mr Wilkinson submitted to me that he would make such an application, although the applicant gave evidence that he was not sure.
[36] Ex R1, 205 [90].
[37] See Ex R4, 38.

Based on what appears in the Deputy President’s decision, there is a very strong case that the applicant is owed non-refoulement obligations. As the law presently stands, the applicant may not be refouled to South Sudan in this circumstance.[38] Equally, however, it seems more likely than not that the Government would decline a protection visa to the applicant on character grounds under section 501(1) of the Act. The delegate made clear his or her view that there is a significant risk that the applicant will reoffend as his rehabilitation had already failed several times in the community.[39] That same point was reiterated in in the respondent’s submissions to me. The applicant’s offending has been, self-evidently, serious, including his most recent offending, which involved the leadership of a gang where a knife was held out to threaten the victim.
[38] See section 197C of the Act.
[39] Ex R1, 28 [61] – [62].
If the applicant were refused a protection visa on character grounds, but it were accepted that Australia owed him non-refoulement obligations, the result would be immigration detention. Ongoing detention would persist until a third-country option were found or the applicant were granted a special visa by the Minister (under section 195A of the Act for example) or, at the latest, until his detention had ceased to be lawful. This scenario presupposes a possibly lengthy time in detention.
The respondent submitted that the recent High Court decision in NZYQv Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 now means that the applicant’s detention could not be said to be ‘indefinite’. This is true if ‘indefinite’ is taken to mean ‘on a quasi-permanent basis’. The High Court decided in NZYQ that once there is ‘no real prospect of the removal of a detainee from Australia becoming practicable in the reasonably foreseeable future’, a detainee may no longer be detained lawfully.
Conversely, however, until that point is reached, detention remains lawful. Detention may be lawful, therefore, for some considerable time while the Government explores options for resettlement of a detainee overseas. Detention may still be ‘indefinite’ in the sense in which the word was used in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463; namely, prolonged detention without a fixed end date in sight.[40] As the plurality in WKMZ made clear, ongoing detention must be weighed against the background that liberty is a fundamental common law right.[41]
[40] See at [123] of the plurality’s reasons.
[41] Ibid.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. This has proved to be a difficult task. This is a case where a persistent offender who has already been found guilty of very serious violence and who has had his visa cancelled once before, has reoffended and had his visa cancelled again. Viewed in its totality, the applicant’s offending has been antisocial in the extreme. It has involved serious violence on occasion. The possible consequences for the Australian community are very real and serious. Gang violence is deplorable and is a real social problem in Australia. There have been many instances in Australia where gang violence has escalated and resulted in serious injury. The Direction speaks strongly against this type of behaviour in a number of ways: it refers to violent behaviour in the sections dealing with the ‘protection of the Australian community’ and with ‘community expectations’, for example. I must take into account the fact that the Tribunal has already given this applicant an opportunity to reform himself. That opportunity was squandered. The Direction plainly refers to a non-citizen’s presence in Australia as a privilege: it is not a right that non-citizens enjoy.
I must also take into account, however, the interests of minor children. That is a primary consideration. D is an innocent victim of the dysfunction in her family arising from a delinquent father and an unstable mother. The evidence before me from those associated with Shalom House shows that the applicant has made a determined effort to reform himself, and there are some grounds for optimism. It is noteworthy, for example, that the applicant has used his earnings to pay off the fines that he has accrued in the past in respect of his criminal offending. The Court found him genuinely remorseful. The applicant’s improved moral insight would appear to have come about through the intervention of the Shalom House program. I believe the applicant’s commitment to his daughter is genuine. Whilst any return to delinquency would risk further disruption to D’s life ─ and I must weigh that risk ─ it will be important for D to have access to her father as a positive role model in her life, and he is someone who may be expected to support her financially in the future if he is allowed to remain.
I should weigh also in my opinion the two likely scenarios of deportation to South Sudan or ‘indefinite’ detention in the sense in which indefinite detention was described by the plurality in WKMZ. These are not, of course, added together as considerations as they are strictly alternative hypotheses.
In my opinion, if I assume that deportation to South Sudan eventuated, revocation of the cancellation decision would be the preferable decision having regard to all factors that I must weigh under the Direction. The situation South Sudan is so dire that I must weigh returning the applicant there very carefully indeed.
On the other hand, if I assume that ongoing detention would eventuate as a result of my decision to affirm the decision under review,[42] then very real concerns also arise. I do not have any evidence before me about any likely timeframe for the making of investigations into the resettlement of the applicant in a third country, which, whilst possible, would presumably be difficult given his criminal record, his antisocial tendencies, and limited employment record. I have no evidence before me as to a point in time when a person like the applicant would receive a special visa from the Australian Government if third-country options proved unfruitful.
[42] Because the applicant made an application for a protection visa, was found to be owed non-refoulement obligations but was refused a visa on character grounds.
I accept the guidance of the plurality in WKMZ that I must give serious weight to such an infringement on liberty. It is a most serious matter, and the duration of detention, whilst now circumscribed by the High Court’s recent decision in NZYQ, may still be lawfully lengthy as options for removal are explored and weighed. Here, too, I think the preferable decision favours revocation.
These conclusions obviate the need to decide which of the two outcomes is more likely as a result of my decision because in either case the result is the same. I am clear that one or other of these outcomes is far more likely than the applicant being granted a protection visa or being granted a visa under section 195A or 197AB of the Act in the near term.
FINAL CONCLUSION
It follows in my assessment, after weighing the various considerations under the Direction, that, on balance, the cancellation decision ought to be revoked. To return to the language of the Act, I am satisfied that there is ‘another reason’ for the cancellation decision to be revoked for the purposes of section 501CA(4)(b)(ii). My formal decision will be to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s
visa be revoked.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

...............[SGD]..................
Associate
Dated: 15 April 2024

Dates of hearing: 11, 12 and 14 March 2024

Advocate for the Applicant: Mr Roger Wilkinson

Solicitor for the Respondent:
Mr Jake Kryanis (Special Counsel)
Sparke Helmore Lawyers

Dates of hearing:	11, 12 and 14 March 2024
Advocate for the Applicant:	Mr Roger Wilkinson
Solicitor for the Respondent:	Mr Jake Kryanis (Special Counsel) Sparke Helmore Lawyers