GNHW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4439

GNHW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4439 (23 December 2022)
Division:GENERAL DIVISION
File Number: 2022/8253
Re:GNHW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:23 December 2022
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Dr L Bygrave, Member
Catchwords
MIGRATION – mandatory cancellation of Class XB Global Special Humanitarian visa – Applicant had substantial criminal record at time of cancellation – where sentence reduced on appeal – whether the Applicant passes the character test – whether there is another reason to revoke mandatory cancellation decision – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
QKVH and the Minister for Home Affairs [2018] AATA 1855
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Dr L Bygrave, Member
23 December 2022
introduction

The Applicant, GNHW, is 29 years old. He is a citizen of South Sudan who arrived in Australia on 25 December 2017 on a Global Special Humanitarian (class XB) (subclass 202) visa (visa).
On [redacted] January 2020, the Applicant was convicted in the Magistrates Court of Victoria of the offence, ‘intentionally cause injury’ and sentenced to 24 months imprisonment.[1] He was further convicted of the offences, ‘drunk and disorderly in a public place’, ‘drunk in a public place (2 charges)’ and ‘fail to answer bail contravene a conduct condition of bail’; and fined an aggregate of $1000.[2]
[1] Exhibit G-G6, 30.
[2] Exhibit G-G6, 30-31.
On 24 February 2020, the Department of Home Affairs (the Department) notified the Applicant in writing that his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following ground: he had a ‘substantial criminal record’ within the meaning of paragraph 501(6)(a) on the basis of subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more (the original decision).[3] At the time of this decision, the Applicant was also serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
[3] Exhibit G-G12.
On 15 December 2021, the Applicant was re-notified of the original decision to cancel his visa.[4]
[4] Exhibit G-G13. The notice was re-issued to [the Applicant] following the Federal Court decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.
Pursuant to section 501CA of the Act and assisted by his (then) legal representative, the Applicant filed a ‘Request for Revocation of a Mandatory Visa Cancellation under S501(3A)’ form dated 5 January 2022 and a ‘Personal Circumstances Form’ dated 27 January 2022.[5]
[5] Exhibits G-G9 and G-G10.
On 4 October 2022, a delegate of the Minister[6] decided not to revoke the original decision to cancel the Applicant’s visa; in particular, the delegate was ‘not satisfied that the Applicant passes the character test’ as defined in section 501 of the Act and was not satisfied that ‘there is another reason why the cancellation decision should be revoked’.[7]
[6] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
[7] Exhibit G-G4, 17.
On 9 October 2022, the Applicant lodged an application for review of this decision with the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard by the Tribunal in Melbourne on 8 December 2022. The Applicant attended the hearing and gave oral evidence in person with the assistance of an interpreter in the Arabic language.
At the commencement of the hearing, the Applicant advised that he was unaware of the hearing until the previous day and requested a lawyer. In view of his concerns, I set out the following chronology of communication that occurred prior to his hearing:
·In his written application to the Tribunal on 9 October 2022, the Applicant completed his contact details of email and mobile telephone number, and answered ‘no’ in response to the question of whether he had a representative.[8]
·The Tribunal conducted a directions hearing by telephone on 14 October 2022. The Applicant attended and participated in this directions hearing with the assistance of an interpreter in the Arabic language. At this directions hearing, the Tribunal set out a timetable for the lodging of evidence and submissions prior to the hearing listed on 8 and 9 December 2022. A copy of the written Direction dated 14 October 2022 and a Listing Notice also stating the date of the hearing on 8 and 9 December 2022 was sent to the Applicant by email on 14 October 2022.
·In accordance with the Direction of the Tribunal on 14 October 2022, the Minister lodged with the Applicant (and the Tribunal) a copy of all documents relevant to the matter by 28 October 2022.
·The Tribunal sent correspondence regarding the Applicant’s hearing to his email address on record on 21 October 2022, 26 October 2022, 9 November 2022, 11 November 2022, 21 November 2022, 24 November 2022 and 25 November 2022.
·The Minister served the Applicant (and lodged with the Tribunal) a copy of the ‘Respondent’s Statement of Facts, Issues and Contentions’ on 28 November 2022.
·On 1 December 2022, 5 December 2022 and 7 December 2022, the Tribunal attempted to contact the Applicant by telephone regarding his hearing, but he did not answer or respond to a voicemail message.
[8] Exhibit G-G2, 5.
After the Applicant was informed at the hearing about attempts by the Tribunal to contact him prior to the hearing on 8 December 2022, he confirmed that he had lost his mobile telephone but did not tell the Tribunal. He also accepted there was no record by the Tribunal that he had engaged a representative for these proceedings.
While I accept the difficulty faced by the Applicant in participating in a hearing without a representative, I am satisfied the Tribunal gave him notice about his hearing on multiple occasions between 14 October 2022 and 7 December 2022. I am further satisfied the Applicant was assisted in the hearing by an interpreter in the Arabic language and was provided opportunities to explain his evidence and circumstances at the hearing.
relevant legislation
The power to cancel a visa
Subsection 501(3A) of the Act states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. [emphasis added]
The ‘character test’ is set out in subsection 501(6) of the Act and relevantly states:
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
Otherwise, the person passes the character test. [emphasis added]
Paragraph 501(7)(c) of the Act defines a ‘substantial criminal record’ as a person who has been ‘sentenced to a term of imprisonment of 12 months or more’.
Section 501CA of the Act sets out the provisions that apply if the Minister makes a decision (the original decision) under subsection 501(3A) to cancel a person’s visa; subsection 501CA(4) sets out the Minister’s discretion to revoke the original decision as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations…; and
(b) the Minister is satisfied:
(i) the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked. [emphasis added]
The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.
The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.
Issues for determination
The issues for determination by the Tribunal are:
·whether the Applicant passes the character test in subsection 501(6) of the Act; and
·if he does not pass the character test, whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
issue 1: Does the Applicant pass the character test in subsection 501(6) of the Act?
A. evidence
The Applicant’s personal history and family circumstances
The Applicant was born in Malakal, Sudan (now South Sudan) where he completed high school and lived with his family until January 2013. He identifies as a Christian and Nuer, and speaks, reads and writes Arabic and Sudanese Creole.
In January 2013, the Applicant, together with his mother and his four sisters and their children, left Malakal due to civil war and tribal conflict as they ‘faced harm from local Dinka people’ because of, amongst other reasons, their Nuer ethnicity.[9] They initially travelled to Khartoum, Sudan; and then, with financial assistance from the Applicant’s maternal aunt, they obtained passports and travelled to Cairo, Egypt where they lived until they came to Australia in December 2017.
[9] Exhibit ST2-FS1, 3.
The Applicant undertook casual, unskilled employment (washing cars, working in factories and restaurants) in Cairo and also commenced studying sociology at university in Cairo in 2017 but later withdrew. This period in Cairo was difficult for the Applicant and his family: they were mainly reliant on income earned by the Applicant and experienced racism due to their status as Sudanese refugees. The Applicant’s father, who was an English teacher, was ‘missing’ (he has been missing since about 2012 or 2013 and it is unclear whether he remains alive) and one of his sisters died by suicide in Cairo.[10]
[10] Exhibit ST2-FS1, 6.
The Applicant came to Australia sponsored by his maternal aunt as a dependent on his mother’s Global Special Humanitarian visa. He arrived with his mother, two of his sisters (one older and one younger), his nephew and three nieces. His eldest sister settled in the Netherlands.
The Applicant’s mother lives with her two daughters (his sisters) and four grandchildren. Her grandchildren are the Applicant’s nephew (now 17 years old) and three nieces (one aged 15 years and two aged eight years). His nephew and two of his nieces are the children of his sister who died in Cairo.
Documents before the Tribunal refer to the Applicant’s maternal aunt, who sponsored their visa to come to Australia and lives in Australia with her husband and family. At the hearing, the Applicant mentioned he has an aunt in Australia (with a different name to his maternal aunt), who has four children under the age of 18 years (three girls and a boy). However, there is no information about this aunt or her children in any of the documents and the Applicant acknowledged he had not provided information about her or his cousins before because he had ‘not been asked about her’.
The Applicant told the Tribunal that he speaks to his mother, nephew and nieces regularly by telephone. He said he had spoken to his mother the previous day and informed her that he had lost his telephone. His mother, nephew and nieces also visited him in prison on several occasions but have not visited him in immigration detention (noting visitation has been affected by restrictions due to COVID-19). He said he was particularly close to his nephew. The Applicant’s mother is ‘not well’ and has ‘a number of medical issues’; he submitted that if he is required to leave Australia, his ‘family would suffer financially, emotionally and practically’.[11] The Applicant said he has no known relatives in South Sudan.
[11] Exhibit G-G9, 56.
The Applicant’s general conduct in the Australian community
The Applicant enrolled in English classes at TAFE in 2018 when he first arrived in Australia but stopped attending after six months. He applied for jobs but was unsuccessful and found the process ‘demoralising’.[12] He received social security benefits.
[12] Exhibit ST2-FS4, 81.
A psychological assessment and report by a clinical psychologist, Mr ‘GC’, dated 10 September 2020 stated the Applicant became ‘listless and depressed’ in 2018 and began to drink alcohol ‘most days of the week ‘to kill time’’.[13] He recommenced English classes in early 2019 but again stopped attending and began to ‘associate with a group of young Sudanese Australian men who drank in public’ and ‘provided companionship’.[14] The Applicant subsequently attracted the attention of police as, ‘contrary to his normal character’, his behaviour while intoxicated could be ‘garrulous, intrusive and belligerent’.[15] Several attempts were made to engage him in treatment for his alcohol problem; he attended a psychiatrist on two occasions with the assistance of his maternal aunt, and was referred by police to a Salvation Army drug and alcohol service but did not attend.
[13] Exhibit ST2-FS2, 53.
[14] Exhibit ST2-FS2, 53.
[15] Exhibit ST2-FS2, 54.
The Applicant’s alcohol consumption led to an incident with members of his family on 24 July 2019. A Victoria Police ‘Incident Summary Report’ recorded that the Applicant returned to the family home where his mother, younger sister, nephew and three nieces were living: he was ‘alcohol affected’ and became ‘verbally aggressive’; and he waved around a butter knife but did not ‘make direct threats’, ‘point the knife’ at anyone or cause ‘any damage’.[16] The family members of the Applicant left the house and went to the home of the Applicant’s older sister further up the street. He later ‘banged’ on the door and windows of his older sister’s house but did ‘not cause any damage’.[17] Police arrived and observed the Applicant in a walkway appearing alcohol affected. He was detained by police and taken to a police station ‘for the purpose of having a family violence safety notice served’.[18] The Applicant’s family members ‘refused to provide a statement’ and a ‘final order [was] served’.[19]
[16] Exhibit ST1-S2, 71.
[17] Exhibit ST1-S2, 71-72.
[18] Exhibit ST1-S2, 72.
[19] Exhibit ST1-S2, 72.
I note there is no documented evidence of a family violence safety notice or of any court proceedings in relation to this matter before the Tribunal. However, at the Tribunal hearing, the Applicant accepted this incident occurred and said he was subsequently subject to ‘an order’ that prevented him from going to his sister’s home.
The Applicant’s criminal conduct
The Applicant’s criminal record outlined in an ‘Australian Criminal Intelligence Commission’ report dated 17 February 2020 lists the following convictions in the Dandenong Magistrate’s Court on [redacted] January 2020:
·Offence: ‘intentionally cause injury’. Court result: 24 months imprisonment.
·Offences: ‘drunk and disorderly in a public place’, ‘drunk in a public place (2 charges)’, ‘fail to answer bail contravene a conduct condition of bail’. Court result: ‘with conviction, fined an aggregate of $1000’.[20]
[20] Exhibit G-G6, 30-31.
On [redacted] November 2020, the County Court of Victoria allowed the Applicant’s appeal of the orders imposed at the Magistrates Court and, in their stead, imposed a sentence of seven months imprisonment.[21] The Applicant was then transferred to immigration detention in accordance with subsection 189(1) of the Act.[22]
[21] Exhibit ST1-S3, 93-94.
[22] Exhibits G-G8, 34 and ST1-S3, 91-92.
The Applicant’s convictions on [redacted] January 2020 relate to his involvement in events that occurred on 31 August 2019. The following is a summary of the events as set out in a Victorian Police ‘Preliminary Brief – Statement Made By Informant’ document and the ‘Reasons for Sentencing’ made by the Judge in the County Court on [redacted] November 2020:
·In the very early hours on 31 August 2019, the Applicant was with several other people he knew in a public area of Dandenong; they ‘had all been drinking heavily’.[23]
·The Applicant and another person, ‘R’, had a verbal argument that became physical. The victim, ‘A’, who has one arm and two prosthetic legs and uses a metal walking crutch, interjected in an attempt to break up the physical fight between the Applicant and ‘R’. In doing so, ‘A’ used his crutch to hit the Applicant in the face. The fight stopped and the Applicant left the area.
·The Applicant returned two minutes later and wrestled ‘A’ to the ground, ‘punching him to the face numerous times, and stomping on his head twice’ before picking up ‘A’’s metal crutch and using it to hit him ‘to the face and head region’.[24] At times, the Applicant pinned down ‘A’’s arm so that he could hit him ‘without any defensive action’.[25]
·‘R’ tried unsuccessfully to stop the Applicant’s assault on ‘A’, who was lying motionless, before ‘R’ was assaulted again by the Applicant.[26]
·CCTV recording showed the Applicant’s assault on ‘A’ lasted four minutes and 51 seconds and involved him using the metal crutch to strike ‘A’ ‘some 77 times around the head’.[27]
·Afterwards, another person, ‘W’, returned to the area and found ‘A’ lying motionless on the ground. The Applicant had a short altercation with ‘W’ and then left the area. ‘W’ subsequently contacted triple zero; police and ambulance attended, and ‘A’ was taken to hospital by ambulance. ‘A’ was treated for ‘multiple head and facial wounds’, which were ‘cleaned and closed with sutures or staples’; ‘A’ was subsequently discharged from hospital after two nights and ‘no further treatment was required’.[28]
·Police who attended the location noted ‘A’ and witnesses ‘were all heavily intoxicated and either refused to cooperate with police or were unable to do so’.[29] Police located the Applicant approximately one hour later; he was ‘intoxicated and wearing blood stained clothing’.[30]
·On 5 September 2019, the Applicant was interviewed by police; he admitted to having ‘drunk half a bottle of sherry in the preceding 12 hours’ and accepted he ‘may have had a fight with the victim’.[31]
[23] Exhibit ST2-FS4, 77.
[24] Exhibit ST2-FS4, 77.
[25] Exhibit G-G7, 32.
[26] Exhibit G-G7, 32.
[27] Exhibit ST2-FS4, 79.
[28] Exhibit ST2-FS4, 79.
[29] Exhibit ST2-FS4, 78.
[30] Exhibit ST2-FS4, 78.
[31] Exhibit ST2-FS4, 78.

The Applicant was arrested on 5 September 2019 in relation to the index offending and placed on bail. He was again arrested on 8 November 2019 and 4 December 2019 for being drunk in a public place and subsequently remanded in custody because he had breached his bail conditions.[32]
[32] Exhibit ST2-FS2, 56-57.
In ‘Reasons for Sentencing’ in the County Court on [redacted] November 2020, the Judge stated that he had watched the CCTV recording from 31 August 2019, and described the incident as ‘a shocking assault’ by the Applicant on ‘a defenceless and vulnerable victim’.[33] However, the Judge noted in his sentence considerations that, while the Applicant’s ‘offending is undoubtedly serious’, he did not consider it was ‘at the upper range of objective seriousness’.[34] He made a ‘small allowance for a reduction’ in the Applicant’s ‘level of moral culpability’ due to his state of intoxication, in particular, relying on the opinion of the clinical psychologist, Mr ‘GC’, that the Applicant ‘used alcohol in an attempt to suppress [his] psychological symptoms’, which in turn ‘became a vicious cycle’.[35] The Judge referred to the Applicant’s remorse and insight, and his acknowledgment that he required professional help for his alcohol abuse and mental health issues.
[33] Exhibit ST2-FS4, 78.
[34] Exhibit ST2-FS4, 85.
[35] Exhibit ST2-FS4, 85-86.
At the Tribunal hearing, the Applicant said that he did not remember the incident with ‘A’ as he was drunk at the time. He then accepted he had hit ‘A’ with his metal crutch but disputed he had hit him 77 times. He told the Tribunal that what he did was ‘very wrong and shameful’.
There is no evidence before the Tribunal that the Applicant has engaged in any other criminal conduct either overseas or in Australia.
The Applicant’s time in prison and immigration detention
The Applicant was remanded to prison on 7 December 2019. Summonsed records from the Victorian Commissioner of Corrections show he was involved in several incidents in prison including on:
·6 March 2020 when he ‘launch [sic] forward towards a female correctional staff member with a clenched fist held at her face’;[36]
·17 June 2020 where he ‘assaulted an officer by grabbing her around the neck’ and later in the day, ‘faced off’ and made ‘aggressive comments’ to staff and attempted to ‘head butt’ staff.[37]
[36] Exhibit ST1-S4, 153.
[37] Exhibit ST1-S4, 156, 160-161.
At the Tribunal hearing, the Applicant accepted these incidents had occurred.
Following the decision of the County Court on [redacted] November 2020, the Applicant was transferred to Melbourne Immigration Transit Accommodation (MITA). Client Incident Report records show the Applicant has been involved in incidents including several minor and one serious assault, climbing onto the roof of buildings at MITA, and retrieving contraband from a ‘sterile zone’ of the MITA compound.[38]
[38] Exhibit G-G8, 34-51.
At the hearing, the Applicant confirmed these incidents at MITA had occurred.
The Applicant’s psychological status
The Applicant was transferred from prison to a secure forensic mental health hospital in October 2020. Mr ‘GC’ provided psychological reports about the Applicant that were used in the proceedings in the County Court of Victoria; these reports were dated 10 September 2020 and 18 October 2020, that is, both before and after his admission to hospital.
In the report dated 10 September 2020, Mr ‘GC’ referred to prison medical files and noted the Applicant had a mental health assessment on 9 March 2020, where he stated ‘he was hearing a voice telling him to kill himself’ and ‘couldn’t stop thinking’ of his visa cancellation and possible removal from Australia.[39] Mr ‘GC’ also recorded mental health assessments on 23 July 2020 that set out the Applicant had ‘experienced an episode of psychosis’ and commenced anti-psychotic medication; and a further assessment on 18 August 2020 that noted the Applicant said the medication was ‘not helping’ and declined to take it.[40] Mr ‘GC’ reported the Applicant had suffered a ‘severe alcohol dependence’ that was ‘in abeyance due to his incarceration’, and met ‘the criteria for an adjustment disorder with mixed anxiety and depressed mood (DSM-5)’.[41]
[39] Exhibit ST2-FS2, 57.
[40] Exhibit ST2-FS2, 58.
[41] Exhibit ST2-FS2, 64.
On 18 October 2020, Mr ‘GC’ assessed the Applicant’s mental state as follows:
In my first report I stated that ‘[i]t is unclear at this point whether these [psychotic] symptoms are stress related, which appears most likely, or whether they represent the prodrome of a psychotic illness which will evolve into a more severe disorder, at [121], and that ‘[h]is mental state needs to be carefully monitored; there is a possibility that his mental health will further decline resulting in increased depression or more prominent psychotic symptoms’…
The persistence and intensification of his symptoms make it more likely that he is suffering from an ongoing psychotic illness, most likely a Schizophreniform Disorder (DSM-5), rather than a self-limiting and relatively transient reactive psychosis representing a reaction to stress in a vulnerable person.
This is a matter of probability rather than certainty; at this point a definitive diagnosis is yet to be established. There remain some unusual features of his presentation, including that his symptoms seem to be primarily experienced when alone at night; there also appears to have been a rapid decrease in his symptoms at [the secure forensic mental health hospital] compared to his psychological state when in prison. A longer period of assessment is required to establish the correct diagnosis.
However it is clear that he will require ongoing treatment for a psychotic illness, the symptoms of which are distressing and disabling. In consideration of this, I would revise my opinion about the onerousness of custody. It is my opinion in light of the deterioration in his mental state that a custodial sentence will be made significantly more onerous for [the Applicant] owing to his mental illness.
His ongoing treatment should attend to the cultural dimension of his psychological state. His understanding and experience of his symptoms and his views on the assistance he requires is strongly shaped by his cultural background.[42] [emphasis added]
[42] Exhibit ST2-FS3, 73-74.
There are no further references to the Applicant’s psychological status. In his ‘Personal Circumstances Form’ dated 27 January 2022, the Applicant answered ‘no’ to the question about whether he had ‘any diagnosed medical or psychological conditions’.[43]
[43] Exhibit G-G10, 81.
At the Tribunal hearing, the Applicant said that he had been diagnosed with schizophrenia and ADHD; he said he experiences ‘temporary madness’ in between times that he is ‘okay’. He said he is taking medication ‘every night’ for ‘adjusting [his] mood’ but could not tell the Tribunal the name of this medication.
The Applicant’s oral evidence about accessing treatment for mental health was not consistent with the documentary evidence. The Applicant told the Tribunal he had been asking for ‘help’ but had not received counselling or psychiatric assistance while at MITA. This is only partly consistent with information set out in a draft ‘Protection Visa Assessment’ (undated), in which the delegate:
·referred to the Applicant’s International Health and Medical Services (IHMS) records that note he ‘missed a scheduled appointment with a psychologist because he slept in’ and had ‘missed several appointments with IHMS mental health providers’; and
·reported the Applicant ‘is not being given any medical treatment in immigration detention’.[44]
[44] Exhibit ST2-FS1, 8.
The Applicant’s prospects for rehabilitation
In his report dated 10 September 2020, Mr ‘GC’ provided the following comments in relation to the Applicant’s prospects of rehabilitation:
The probability of recidivism is inseparable from the question of whether [the Applicant] ceases to abuse alcohol. This is because, absent the abuse of alcohol, I do not see other risk factors present in [the Applicant’s] psychological disposition which are likely to produce violent or other kinds of offending. He does not possess anti-social personality traits and he does not hold attitudes condoning violence. On the basis of the information I have obtained, there is no history of conduct disorder during adolescence and during his adulthood there was no offending or propensity to behave violently until he began to abuse alcohol.
It is my opinion that provided [the Applicant’s] abuse of alcohol is addressed successfully, there is a low chance of further violent offending or of offending generally. However without treatment there is a reasonable likelihood he will relapse into alcohol abuse again and in that context there is a moderate possibility of further offending.
[The Applicant] stated he is committed to receiving treatment for his problems with alcohol and for his mental health generally. When I interviewed him he recognized that alcohol abuse has devastated his life. He is open to receiving psychological and pharmacological treatment to address his problems. Treatment needs to be accompanied by thorough psychoeducation about the nature and purposes of the treatment and his own perspectives, including those that may be culturally based, need to be considered and discussed.
He requires specialized counselling in relation to his alcohol abuse. This should continue until he has achieved at least six months of abstinence in the community and with immediate further treatment upon signs of relapse.
He requires offence specific psychological interventions directed at his appreciation of the link between alcohol abuse and violence, and full apprehension of the concept that he is morally and legally responsible for his actions when intoxicated.
…
Concurrent with treatment for alcohol abuse must be treatment for ongoing effects of adverse events in his past, depression and mood instability, social anxiety and any emerging psychotic symptoms. This will require psychotherapeutic and pharmacological treatment which must be culturally informed and should involve weekly sessions over at least nine months and until his psychological functioning is considered stable and his ability to study and work is unimpaired.
To this point [the Applicant] has not engaged in regular treatment for his mental health conditions. He is anxious, dysphoric, suffers severe insomnia and frequent nightmares, and has recently experienced psychotic symptoms. He requires active treatment both psychological and pharmacological. Disinclination to receive treatment needs to be addressed by psychoeducation and building rapport which may take some time. His mental state needs to be carefully monitored; there is a possibility that his mental health will further decline resulting in increased depression or more prominent psychotic symptoms.[45] [emphasis added]
[45] Exhibit ST2-FS2, 66-67.
Mr ‘GC’ did not alter this opinion in his report on 18 October 2020 but noted that:
treatment of his mental health problems, including psychotic illness, alongside his addictions and the psychological sequelae of his difficult pre-migration experiences should be comprehensively pursued.[46] [emphasis added]
[46] Exhibit ST2-FS3, 75.
The Judge, in his ‘Reasons for Sentence’ in the County Court on [redacted] November 2020, accepted the Applicant was ‘genuinely remorseful’ for his behaviour on 31 August 2019 and appeared to ‘have developed insight into [his] mental health issues and problems with alcohol’.[47] The Judge further stated:
In my opinion, you [the Applicant] have good prospects of rehabilitation. Those prospects are of course, dependant upon you receiving the professional help you require. I take into account that you are a person of no prior criminal convictions, you are relatively young, you have successfully completed your secondary schooling and studied for one and a half years at university level before being accepted into Australia. You also enjoy the support of your mother, auntie and sisters. You do not suffer a personality disorder.[48] [emphasis added]
[47] Exhibit ST2-FS4, 86-87.
[48] Exhibit ST2-FS4, 88.
At the Tribunal hearing, the Applicant accepted that his offending behaviour on 31 August 2019 was in part because he got angry after ‘A’ hit him with his crutch and partly due to his consumption of alcohol. The Applicant was asked about whether he had sought help with alcohol abuse and said he had attended a one-day drug and alcohol counselling session conducted by a mental health nurse while he was in prison. He further said that he does not require help with alcohol abuse because he has ‘already overcome the problem’ and ‘nothing’ would make him ‘go back to drinking again’.
The Applicant told the Tribunal that if he is released into the Australian community, he would go back to school to study English and he wanted to continue with his studies.
Application for a Protection visa
On 23 December 2020, the Applicant made an application for a Protection (class XA) (subclass 866) visa.
In submissions dated 28 November 2022, the Minister acknowledged the Department ‘has made a positive assessment on the Applicant’s protection claims; however, a decision has not yet been made on [his] protection visa application’.[49]
[49] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2022, [71].
On 6 December 2022, the Minister lodged a draft ‘Protection Visa Assessment’ (undated) in respect of the Applicant. The Minister’s legal representative noted at the hearing that, while this document contains ‘draft findings’ that may be subject to change, the Department accepts the Applicant engages Australia’s international non-refoulement obligations.
B. Consideration
Statutory provisions regarding the character test and relevant case law
The language of subsection 501(6) of the Act in relation to the character test is set out in absolute terms: that is, a person does not meet the character test if any of the circumstances in paragraphs 501(6)(a)–(h) apply; and, otherwise, they pass the character test.
While the original decision to cancel the Applicant’s visa relied on him not passing the character test on the basis of paragraph 501(6)(a) as his situation at the time met the requirements of a ‘substantial criminal record’, the Minister now contends the reason the Applicant does not pass the character test is due to subparagraph 501(6)(d)(i) of the Act.
Submissions from the Minister dated 28 November 2022 observed that it is ‘no longer open to the Tribunal’ to find the Applicant ‘fails the character test on the basis that he has a substantial criminal record’ because the County Court reduced his sentence to seven months imprisonment on [redacted] November 2020.[50]
[50] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2022, [22]-[23].
The Minister’s submissions set out the power of the Tribunal to consider whether the Applicant fails to satisfy the character test on a different basis to the Minister’s delegate and referred to the decision by the Federal Court of Australia (the Federal Court) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (CPJ16) in which Rares J found:
… [O]nce the Minister or his delegate has decided that a statutory ground in s 501(6) exists, in respect of which an applicant has not satisfied him that he or she passed the character test, then the discretion under s 501(1) is enlivened. It would not fulfil the statutory purpose or be consistent with Shi 235 CLR 286 or Graham 263 CLR at 30 [57] that the grounds for the decision under review could be expanded in the review without any further new facts emerging. If the Tribunal, on a review, found that it was satisfied that a visa applicant had passed the character test, unless a new fact occurred subsequently, the delegate or the Minister could not revisit later every other ground or criterion in s 501(6) at will, while detaining the person in immigration detention under the authority of the Act for, relevantly, the purpose of determining whether or not he or she should grant the visa: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206 [78]-[79] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.[51] [emphasis added]
[51] [2019] FCA 2033, [70].
In particular, the Minister contended in relation to the Applicant’s situation:
The conclusion reached in CPJ16 that the other criteria in subsection 501(6) were not open to be considered was arrived at because ‘the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise’: CPJ16 at [58]. In the present circumstances, the delegate relied upon the content of the National Criminal History Check dated 17 February 2020 to proceed on the basis of paragraph 501(6)(a) of the Act. At no stage did the applicant raise an issue with the delegate proceeding on this basis, despite this being clearly stated in the Department's notice of visa cancellation dated 15 December 2021 and the applicant being assisted with his revocation request by a lawyer. Had the delegate become aware of the appeal result in the County Court of Victoria delivered on…November 2020, whether via their own inquiries or on representations from the applicant, it can be reasonably inferred that they would have readily considered the other potentially adverse criteria in paragraphs 501(6)(c) and (d) of the Act.[52] [emphasis added]
[52] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2022, [25].
The Minister further submitted that, on the basis of ‘new facts’ arising from summonsed material, in the event the Applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct such that he does not pass the character test due to the operation of subparagraph 501(6)(d)(i) of the Act.[53]
[53] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2022, [27].
I have considered the Minister’s submissions, which are consistent with other Federal Court decisions, including the decision in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where Middleton J relevantly found:
…The Tribunal has a separate task that it is required to perform under the Act. As the Minister submits, s 501CA(4) effectively provides for merits review of a decision made under s 501(3A) and in doing so the Tribunal is entitled to consider the broad version of the character test. This construction of s 501CA(4) is supported by the express reference in paragraph (b)(i) to “the character test (as defined by section 501)” and the notable absence of any reference to s 501(3A)(a) of the Act.
…In s 501CA(4) there is an express statutory intent for the Tribunal to go beyond what was before the delegate, and for the Tribunal to look at the entirety of the character test in determining whether to revoke the relevant decision.[54] [emphasis added]
[54] [2021] FCA 1050, [58]-[59].
Based on the evidence, I find the Applicant does not fail the character test due to paragraph 501(6)(a) of the Act. Consistent with the construction of subsection 501CA(4) of the Act, I now turn to considering whether the Applicant does not pass the character test on the basis of subparagraph 501(6)(d)(i) of the Act. For completeness, I am satisfied there is no evidence before the Tribunal to show any of the other provisions in subsection 501(6) of the Act are enlivened in this matter.
Direction No. 90 (Annex A, section 2) sets out the application of the character test in relation to subparagraph 501(6)(d)(i) as follows:
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to…remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act…
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to…remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph [sic] 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to…remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded. [emphasis added]

Consequently, I consider the risk of the Applicant engaging in criminal conduct must be assessed in relation to his future conduct and based on evidence suggesting that there is more than a minimal or remote chance that he would engage in conduct for which a criminal conviction could be recorded.
I have regard to the following decisions made by this Tribunal and the Federal Court in my consideration of the requirements of the legislation and the Applicant’s risk of engaging in future criminal conduct.
Although contemplating a different test of risk, the decision by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship provides relevant insight into factors I should consider in this matter. In determining whether a person constitutes a ‘danger to the Australian community’ for the purposes of article 33(2) of the Refugees Convention, Deputy President Tamberlin stated:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.[55] [emphasis added]
[55] [2009] AATA 512 at [25]-[27].
In QKVH and the Minister for Home Affairs, Deputy President Forgie considered the concept of ‘risk’ used in subparagraph 501(6)(d)(i) of the Act and stated:
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... the chance or possibility of suffering loss, injury, damage, etc; ...”.

Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life… Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending…[56] [emphasis added]
[56] [2018] AATA 1855 at [13]-[14]. Citations removed.
Perry J in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs considered the ‘threshold question for the Minister in determining whether the discretion under s[ection] 501(1) was engaged’ was ‘whether there was a risk that [EPU19] would engage in criminal conduct in Australia’.[57] His Honour observed the Minister:
…correctly understood that, while the criterion is the risk of “criminal conduct” (ie, “reoffending”), a probabilistic assessment is capable of admitting a range of inputs which fall short of criminality but may still rationally bear upon the assessment of whether a person “might” engage in criminal conduct in the future.[58] [emphasis added]
[57] (No 2) [2021] FCA 1536 at [179].
[58] (No 2) [2021] FCA 1536 at [182].
Perry J accepted that an assessment by the Minister of a person’s likelihood to reoffend in the future allowed consideration of factors that may explain their past and recent conduct, their ‘remorse’ and ‘rehabilitation’.[59]
[59] See (No 2) [2021] FCA 1536 at [181]-[184].
In applying the provisions of the Act and Direction No. 90, and assisted by relevant case law, I consider the assessment of risk that the Applicant would engage in criminal conduct requires:
·evidence there is ‘more than a minimal or remote chance’ he would engage in conduct ‘for which a criminal conviction could be recorded’;
·acceptance that some level of risk is inevitable as rehabilitation is ‘never certain’; and
·the level of risk stipulated in the Act and Direction No. 90 is not required to be significant, substantial or real.
The assessment of risk relates only to the Applicant’s ‘future conduct’. However, the process of assessing risk involves evaluating and weighing factors that may indicate a risk of the Applicant engaging in future criminal conduct as well as factors that would be expected to protect the Applicant from future criminal conduct. This means I should consider and have regard to all the circumstances of the Applicant’s case, including his:
·criminal history including the seriousness and nature of his crimes, the length of his sentence, and any mitigating circumstances;
·remorse and rehabilitation; and
·previous general conduct including his ‘actions and behaviour since his last offending’.
Findings of fact
Based on the evidence, I make the following findings of fact.
Criminal history
The Applicant was convicted in the Magistrates Court of Victoria on [redacted] January 2020 of the offence ‘intentionally cause injury’ and sentenced to 24 months imprisonment. On [redacted] November 2020, the County Court of Victoria allowed the Applicant’s appeal and imposed a sentence of seven months imprisonment.
The facts of the incident on 31 August 2019 that resulted in this conviction and the ‘Reasons for Sentencing’ by the County Court show the Applicant was intoxicated, punched the face and stomped on the head of a triple amputee and used a metal crutch to hit him 77 times; this assault continued for a period of four minutes and 51 seconds. I concur with the Judge’s description of the incident as ‘a shocking assault’ on ‘a defenceless and vulnerable victim’ and find this comprised very serious conduct and offending behaviour. I also note the Judge, in his decision to reduce the Applicant’s sentence of imprisonment to seven months, took into consideration the Applicant’s remorse and his alcohol and mental health issues, and the Applicant’s acknowledgment at the time that he requires treatment for these issues.
The Applicant has been detained at MITA for more than two years since his release from prison for this offence in November 2020.
The Applicant was further convicted of the following offences in the Magistrates Court of Victoria on [redacted] January 2020; ‘drunk and disorderly in a public place’, ‘drunk in a public place (2 charges)’ and ‘fail to answer bail contravene a conduct condition of bail’; and he was fined an aggregate of $1000. I place less weight on the seriousness of this offending given the Court’s imposition of a fine is at the lower end of the sentencing hierarchy.
The Applicant’s behaviour while intoxicated on 24 July 2019 frightened members of his family to the extent that they left the house. Subparagraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that…causes the family member to be fearful’, and I am satisfied the Applicant’s behaviour is consistent with this definition of family violence. While I accept that family violence is very serious conduct, I place less weight on this because:
·the only documentary evidence before the Tribunal is an ‘Incident Summary Report’ completed by Victorian Police that does not appear to have been tested in a court;
·there is no evidence any charges were laid against the Applicant or that any court proceedings occurred in relation to this incident;
·there is no documentary evidence of a family violence safety notice, although the Applicant gave oral evidence that he was subject to ‘an order’;
·there is no evidence the Applicant behaved in this manner on more than one occasion; and
·the available evidence suggests that the Applicant was verbally aggressive but was not physically violent and did not damage any property.
There is no evidence of cumulative criminal behaviour by the Applicant. In particular, I place limited weight on the records of the Applicant’s violent conduct towards staff while in prison. While the Applicant accepted these reported incidents reflected his poor behaviour, the reports of clinical psychologist, Mr ‘GC’, clearly described the Applicant experiencing significant mental health issues during this period, which culminated in his admission to a secure forensic mental health hospital in October 2020. It is also my view that the incidents recorded about the Applicant’s behaviour while incarcerated and detained at MITA took place in the stressful and difficult settings of prison and immigration detention.
There is no evidence before the Tribunal that the Applicant has engaged in criminal conduct overseas.
Remorse and rehabilitation
In the Judge’s ‘Reasons for Sentence’ in the County Court on [redacted] November 2020, he stated the Applicant was ‘genuinely remorseful’ for his behaviour on 31 August 2019. This is consistent with the Applicant’s oral evidence and his statement in the ‘Request for Revocation of a Mandatory Visa Cancellation under S501(3A)’ form dated 5 January 2022, where he stated he is ‘very regretful’.[60]
[60] Exhibit G-G10, 67.
I accept and place significant weight on the reports by clinical psychologist, Mr ‘GC’, because he undertook comprehensive psychological assessments of the Applicant in September 2020 and October 2020. Mr ‘GC’ reported:
·the Applicant’s likelihood of recidivism is ‘inseparable’ from his cessation of alcohol abuse;
·the Applicant requires treatment for his alcohol abuse;
·the Applicant needs ‘psychotherapeutic and pharmacological treatment’ that is ‘culturally informed’ treatment for his mental health; and
·regarding the Applicant’s rehabilitation, there is an absence of other risk factors such as anti-social personality traits, attitudes condoning violence or a history of conduct disorder during adolescence.
I further accept the opinion of the County Court Judge that the Applicant’s prospects of rehabilitation are dependent on the Applicant receiving the professional help he requires.
The Applicant provided clear oral evidence that he believes he does not require treatment for alcohol abuse because he has ‘overcome the problem’. This is despite him not participating in any formal rehabilitation programs for alcohol abuse (except for a one-day course on alcohol and drugs while in prison) or receiving any treatment or counselling for alcohol abuse. In view of the evidence of clinical psychologist, Mr ‘GC’, and his diagnosis that the Applicant had ‘severe alcohol dependence…in abeyance due to his incarceration’, I find the Applicant’s evidence that he does not require treatment for alcohol abuse suggests he has very limited insight into the factors that contributed to his alcohol abuse.
Consistent with the view of Mr ‘GC’, I find there is a ‘reasonable likelihood’ that, without treatment, the Applicant will relapse into alcohol abuse with a ‘moderate possibility of further offending’.
The Applicant’s oral evidence about seeking treatment for his mental health while at MITA is not consistent with documentation before the Tribunal that shows the Applicant has missed appointments with mental health professionals and is not receiving medical support. It suggests the Applicant has very limited insight into the causes and triggers of his mental health, and his need to engage in regular treatment to improve and maintain his mental health.
In view of the reports of Mr ‘GC’, which were relied on by the County Court Judge, I find the Applicant’s apparent lack of willingness to engage with treatment for his mental health issues concerning, and I consider this would adversely affect the Applicant’s prospects of rehabilitation.
General conduct
The Applicant’s personal and family history shows he experienced significant difficulties in his life prior to arriving in Australia in December 2017, including fleeing from the civil war and tribal conflict in South Sudan, and living as a refugee in Egypt. I also find that the Applicant – as the only son and with his father missing – would have responsibilities in relation to his mother, sisters and nephew/nieces as the oldest male in his family.
The Applicant’s conduct in the Australian community in 2018 and 2019 indicates he had difficulties adjusting to life in Australia; he commenced and ceased English classes and was unable to find paid employment. He relied on social security benefits and began to drink alcohol in public with other members of the Sudanese-Australian community.
I am satisfied the evidence shows the Applicant’s general conduct was adversely affected by his consumption of alcohol, which he used ‘to suppress [his] psychological symptoms’.
Since his time in prison and immigration detention, the Applicant has maintained contact with his family members in Australia, and continues to contact his mother, nephew and nieces by telephone.
The Applicant has indicated a willingness to participate in English classes and undertake further study if he is released into the Australian community.
C. Conclusion
For the following reasons, I find the evidence shows there is more than a minimal or remote chance the Applicant would engage in future criminal conduct in the event he is allowed to remain in Australia.
While I accept the Applicant’s conviction for ‘intentionally cause injury’ on [redacted] January 2020 is his only serious offence and he has shown remorse for his behaviour, the evidence of clinical psychologist, Mr ‘GC’ (relied on by the County Court Judge) shows the Applicant’s positive prospects of rehabilitation require him to engage in treatment for his alcohol abuse and his mental health issues.
Based on the Applicant’s belief that he does not require treatment for alcohol abuse, and his inconsistent and minimal engagement with mental health treatment, I cannot be satisfied that he would not relapse into alcohol abuse and further offend in the event he is allowed to remain in Australia. It is my view that the Applicant’s lack of insight and willingness to engage in treatment for alcohol abuse, which was a key factor in his offending behaviour, increases the risk that he will relapse and engage in criminal conduct in the future to a level that is more than minimal or remote.
I have carefully weighed this finding with the available evidence about the Applicant’s family members in Australia and his intention to attend English classes and study. While I consider these would usually be factors that would reduce the Applicant’s likelihood of reoffending, I note that he was living with family members and had attempted to attend English classes at the time of his offending in 2019.
On balance, I am satisfied that there is more than a minimal or remote chance that the Applicant would engage in criminal conduct in the event he is allowed to remain in Australia. I find that the circumstances in paragraphs 501(6)(d)(i) of the Act apply to the Applicant and therefore, he does not pass the character test in subsection 501(6) of the Act.
Issue 2: should the discretion to revoke the cancellation of the applicant’s visa be exercised?
A. Guidance on exercising the discretion – Direction no. 90
Direction No. 90 provides the following guidance on how the discretion to revoke the cancellation of a non-citizen’s visa is to be exercised:
6. Exercising the discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Primary considerations are listed in section 8 of Direction No. 90 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims;
(4)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.
B. Primary considerations
Primary Consideration 1: Protection of the Australian community from criminal and other serious conduct
Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(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 conduct is set out above in paragraphs 30-36 and my findings in relation to this evidence are at paragraphs 73-79.
Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:
·The Applicant’s criminal record includes a conviction for ‘intentionally cause injury’ in January 2020; this is a ‘violent’ crime that is ‘viewed very seriously by the Australian Government and the Australian community’. It was also a crime committed against a ‘vulnerable’ member of the community.
·The Applicant’s conduct on 24 July 2019 is consistent with the definition of ‘family violence’ in subparagraph 4(1) of Direction No. 90 and the Applicant accepts he was subsequently subject to ‘an order’. Acts of family violence are ‘viewed very seriously by the Australian Government and the Australian community’ regardless of ‘whether there is a conviction’ or a ‘sentence imposed’.
·The seriousness of the Applicant’s offending is reflected in sentences of imprisonment being imposed by the Magistrates Court and County Court. As imprisonment is the last resort in the sentencing hierarchy, I accept these sentences reflect the seriousness of the Applicant’s offending.
·There is no cumulative effect of repeated offending by the Applicant.
Based on the evidence, I am satisfied that the nature and seriousness of the Applicant’s criminal offending and other conduct weighs strongly against exercising the discretion to revoke the cancellation of his visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
At subparagraph 8.1.2(1) of Direction No. 90, the Minister states ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ and ‘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’.
Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
·the likelihood of him engaging in further criminal or serious conduct, taking into account:
oinformation and evidence on the risk of him re-offending, and
oevidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence.
In my consideration of whether the Applicant passes the character test in subsection 501(6) of the Act set out at paragraphs 19-96, I have considered the evidence and determined there is a more than a minimal or remote risk the Applicant would engage in future criminal conduct in Australia. I particularly refer to the evidence about the Applicant’s prospects for rehabilitation at paragraphs 47-51, and my findings about his remorse and rehabilitation at paragraphs 80-86.
Considering the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, I am satisfied on balance the primary consideration of protection of the Australian community weighs strongly against exercising the discretion to revoke the cancellation of his visa.
Primary Consideration 2: Family violence committed by the Applicant
Subparagraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.
Direction No. 90, at subparagraph 8.2(1), states ‘[t]he Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of…remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors relevantly include:
·the frequency of his behaviour and whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at the time of my decision since his last known act of family violence, including:
othe extent to which he accepts responsibility for his conduct;
othe extent to which he understands the impact of his behaviour on his family members; and
oefforts to address factors which contributed to his conduct.
The Applicant’s behaviour that led to him being subject to a family violence safety notice is set out at paragraphs 28-29. I am satisfied the Applicant’s behaviour is consistent with the definition of family violence in Direction No. 90, but I place limited weight on this conduct for the reasons I have set out in paragraph 77.
I am satisfied that the primary consideration of family violence weighs against exercising the discretion to revoke the cancellation of the Applicant’s visa. However, I place less weight on this primary consideration for the reasons I outline at paragraph 77.
Primary Consideration 3: Best interests of minor children in Australia affected by the decision
Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether refusing to grant the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
·the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship and/or long periods of absence, or limited ‘meaningful contact’);
·the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18 years old;
·the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;
·the likely effect any separation would have on the child; and
·whether there are other persons who already fulfil a parental role for the child.
I am satisfied the Applicant has one nephew and three nieces who are minor children. I am further satisfied these children came to Australia with the Applicant and, as their only uncle, he has had a significant role in their lives in South Sudan, Egypt and Australia. I note that the Applicant’s nephew and two of his nieces do not have a living mother or a father, and his other niece has no living father. Consequently, I accept that the Applicant has a key male parental role in the lives of four minor children.
I have also considered the Applicant’s oral evidence that indicates he has an aunt who has four minor children in Australia, although there is no documentary evidence before the Tribunal in relation to these children, the Applicant’s role in their lives, or whether these children have a father. While I accept there may be another four minor children who would be adversely affected by the decision to cancel the Applicant’s visa, I place less weight on the interests of these minor children in the absence of any clear or documentary evidence of their existence.
Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction No. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs strongly in favour of exercising the discretion to revoke the cancellation of the Applicant’s visa.
Primary Consideration 4: Expectations of the Australian community
Subparagraph 8.4(1) of Direction No. 90 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.
Subparagraph 8.4(4) of Direction No. 90 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government, as a norm, should cancel the visa of a non-citizen if they commit serious crimes.
I have set out my consideration of the nature and seriousness of the Applicant’s criminal history, and the risk to the Australian community if he were to commit further offences, in paragraphs 103-109 and my consideration of family violence committed by the Applicant at paragraphs 110-113.
Based on the evidence and having regard to the principles and requirements in Direction No. 90, I find the Australian community would have a very low tolerance of the Applicant’s offending and would expect the Australian Government to cancel his visa. I am therefore satisfied the primary consideration of expectations of the Australian community weighs against exercising the discretion to revoke the cancellation of the Applicant’s visa.
C. Other Considerations
Section 9 of Direction No. 90 lists the other considerations that I must also take into account in making a decision under subsection 501(1) of the Act. The other considerations relevant in this matter are:
·international non-refoulement obligations;
·extent of impediments if the Applicant is removed from Australia;
·impact on victims; and
·links to the Australian community, namely the strength, nature and duration of the Applicant’s ties to Australia.
The list of other considerations in section 9 is not exhaustive. However, I find no evidence either that the impact on Australian business interests are relevant to these proceedings or there are any other considerations that I should have regard to in these proceedings.
Other Consideration 1: International non-refoulement obligations
Subparagraph 9.1(1) of Direction No. 90 articulates Australia’s non-refoulement obligations in accordance with international human rights treaties and 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’. [61]
[61] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Direction No. 90, at subparagraphs 9.1(2) to (5), further states:
(2)In making a decision under section 501…, decision-makers should carefully weigh any non-refoulement obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provide that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal…of a non-citizen’s visa… This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists … Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation… of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
As set out in paragraphs 52-54, the Applicant has made an application for a Protection visa. I accept that the Department has made a positive assessment in relation to the Applicant’s protection claims but a final decision has not yet been made on his application. I have particularly considered the comprehensive information and draft findings made in respect of the Applicant in the ‘Protection Visa Assessment’ (undated).
The Minister made the following submissions on 28 November 2022 about the Australian Government’s non-refoulement obligations to the Applicant:
…[A] decision has not yet been made on the applicant's protection visa application and the applicant is not liable to be removed while his valid visa application is being determined. If a decision is made on the applicant's protection visa application and a protection finding is made that has been finally determined, then pursuant to subsection 197C(3) of the Act the applicant will not be liable for removal to South Sudan (unless the protection finding ceases under paragraph 197C(3)(c) of the Act).
…[T]here is no evidence as to whether or not the Minister will exercise his non-compellable powers to grant the applicant a visa under section 195A or make a residence determination under section 197AB of the Act. Nor has any decision been made as to whether the applicant can be resettled in a third country. It is, with respect, appropriate for the Minister and his department to defer consideration of these matters until after a decision has been made on the protection visa application. If the protection visa application is refused, it is open to the Minister to consider the alternative management options available to him in relation to the applicant, including consideration under sections 195A and 197AB or resettlement in a third country.
However, given there is no time limit for the Minister to make such a decision, and the decision is non-compellable, the Minister acknowledges that a consequence of non-revocation of the visa cancellation is therefore that the applicant is likely to remain in immigration detention for an indefinite period.[62] [emphasis added]
[62] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2022, [73]-[75].
I concur that, if the decision to cancel the Applicant’s visa is not revoked, it is likely at this point in time that he will remain in detention indefinitely.
In addition to the Australian Government’s non-refoulement obligations under international law, article 9 of the International Covenant on Civil and Political Rights and its Second Optional Protocol provides a ‘right to liberty and security of person’. In the decision of the Full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ stated:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law…for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
…
No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia’s international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, .... While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa… If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA)(3)…[63] [citations omitted] [emphasis added]
[63] [2021] FCAFC 55 at [123], [136].

Weighing the evidence contained in the draft ‘Protection Visa Assessment’ (undated) in respect of the Applicant, I am satisfied the consideration of international non-refoulement obligations weighs very strongly for exercising the discretion to revoke the cancellation of the Applicant’s visa.
I place significant weight on this consideration in view of the possibility the Applicant could remain in detention indefinitely, implications for the Australian Government in accordance with international law if the Applicant is held indefinitely in detention, and any likely adverse effect on the Applicant’s well-being if he either remains in indefinite detention or is removed to a third country.
Other Consideration 2: Extent of impediments if the Applicant is removed from Australia
The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in South Sudan. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider the Applicant’s ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in South Sudan.
As set out in the Minister’s submissions at paragraph 129 above, the Applicant will not be removed from Australia to South Sudan because, at this time, the Department has made a positive assessment in relation to the Applicant’s protection claims. In these circumstances – where the Department has stated the Applicant will not be removed to South Sudan – it is not material for the Tribunal to consider the extent of impediments regarding his capacity to reside in South Sudan.
I am satisfied the consideration of the extent of impediment if the Applicant is removed from Australia should be given a neutral weighting in exercising the discretion to revoke the cancellation of his visa.
Other Consideration 3: Impact on victims
Subparagraph 9.3(1) of Direction No. 90 requires that I consider the impact of the section 501CA decision on members of the Australian community, including ‘victims’ of the Applicant’s criminal behaviour.
As there is no evidence before the Tribunal from the victim of the Applicant’s assault, I give this consideration no weight in exercising the discretion to revoke the decision to cancel the Applicant’s visa
Other Consideration 4: Links to the Australian community – the strength, nature and duration of the Applicant’s ties to Australia
In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia, and I must have regard to:
·how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where he began offending soon after arriving in Australia; and
omore weight should be given to time he has spent contributing positively to the Australian community;
·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.
The Applicant arrived in Australia in 2017 aged 24 years. The Applicant’s offending that resulted in his conviction for ‘intentionally cause injury’ occurred 20 months after his arrival in Australia and there is no evidence that he spent time positively contributing to the Australian community through activities such as paid employment or voluntary work in the community. He attended English classes for short periods in 2018 and 2019.
I have set out evidence about the Applicant’s family circumstance and his relationships with his mother, sisters, nephew and nieces, and his maternal aunt and other family members at paragraphs 19-25. I have considered the best interests of minor children in Australia (including the Applicant’s nephew and three nieces) affected by the decision at paragraphs 114-117. I further note the Applicant has a sister in the Netherlands and no family in South Sudan.
I have considered – and place substantial weight – on the Applicant’s oral evidence that his mother is in Australia and he ‘cannot leave her’. In his ‘Personal Circumstances Form’ on 27 January 2022, the Applicant wrote that his ‘Mum would be heartbroken’ if he returned to South Sudan because he ‘is her only son’.[64] I note there is some evidence that the Applicant’s mother has been unwell and accept that, as his mother’s only son, the Applicant would have significant responsibilities to support her.
[64] Exhibit G-G10, 81.
Based on the available evidence about the Applicant’s family links to Australia, I am satisfied that the consideration of strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of exercising the discretion to revoke the decision to cancel the Applicant’s visa.
D. Conclusion
For the reasons set out above, I am satisfied that:
·the first primary consideration (protection of the Australian community from criminal or other serious conduct) weighs strongly against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
·the second primary consideration (family violence committed by the Applicant) weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa but, for the reasons outlined in paragraph 77, I place less weight on this consideration;
·the third primary consideration (best interests of minor children in Australia affected by the decision) weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa; and
·the fourth primary consideration (expectations of the Australian community) weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
In relation to the other considerations, I find:
·the first other consideration (international non-refoulement obligations) weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa and I significant weight on this consideration for the reasons set out at paragraph 133;
·the second other consideration (extent of impediments to the Applicant if he is removed from Australia) and the third other consideration (impact on the victim) have no or neutral weight in relation to exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa; and
·the fourth other consideration (strength, nature and duration of ties to Australia) weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations and I consider this approach is appropriate in the particular circumstances of this matter.
Weighing all the relevant primary considerations and other considerations, I am not satisfied there is another reason to revoke the decision to cancel the Applicant’s visa. For these reasons, the decision made by a delegate of the Minister on 4 October 2022 to not revoke the cancellation of the Applicant’s visa is affirmed.
decision
The Tribunal affirms the decision under review.

I certify that the preceding 147 (one hundred and forty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.........................[sgd]...............................................
Associate
Dated: 23 December 2022

Date of hearing: 8 December 2022

Applicant: Self-represented

Advocate for the Respondent: Mr Anthony Gardner

Solicitors for the Respondent: Minter Ellison

Date of hearing:	8 December 2022
Applicant:	Self-represented
Advocate for the Respondent:	Mr Anthony Gardner
Solicitors for the Respondent:	Minter Ellison