GQHJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

GQHJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2630 (15 July 2024)
Division:GENERAL DIVISION
File Number(s):2024/2474
Re:GQHJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 15 July 2024
Date of written reasons: 22 July 2024
Place:Canberra

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958 (Cth).
….........................[SGD]........................................
Member W Frost
CATCHWORDS
MIGRATION – cancellation of Applicant’s Refugee (Class XB) Subclass 200 visa – mandatory cancellation of visa under s501(3A) Migration Act – whether Applicant passes the character test – substantial criminal record – consideration of Ministerial Direction 110 – whether ‘another reason’ why decision should be revoked under s501CA(4) – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43 (1)(a)
Migration Act 1958 (Cth), ss 5AB,189, 197(c), 198, 499, 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 35(4)
Crimes Act 1914 (Cth), ss 85ZR(2)
Crimes Act 1900 (NSW), ss 93C(1)
CASES
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Deng and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 738
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
22 July 2024
INTRODUCTION

This proceeding concerns the review of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel the Refugee (Class XB) Subclass 200 visa (Visa) of the Applicant, GQHJ, under subsection 501(3A) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, pages 21-35.
GQHJ is 23 years old and was born in Sudan.[2] Since 2013, and from 12 years old, he has lived in Australia.[3] In September 2020, aged 18, GQHJ was convicted of ‘Robbery in company’.[4] In December 2021, GQHJ’s Visa was mandatorily cancelled because he had been sentenced to a term of imprisonment of 12 months or more for that conviction (Cancellation Decision).[5] He sought revocation of the Cancellation Decision,[6] but a delegate of the Minister refused this request in April 2024.[7] As a result, GQHJ applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.[8]
[2] Ibid., page 129.
[3] Ibid.
[4] Exhibit 1, page 37; Exhibit 5, page 22.
[5] Exhibit 1, pages 130-136.
[6] Ibid., pages 61-64.
[7] Ibid., pages 21-35.
[8] Ibid., pages 1-12.
The Tribunal has considered all documents filed in this proceeding pursuant to section 501G of the Act, together with the parties’ submissions and their respective additional documents.[9] For the following reasons, the Tribunal has decided to affirm the decision under review not to revoke the decision to cancel GQHJ’s Visa. This means that GQHJ’s application to the Tribunal is unsuccessful, and his Visa remains cancelled.
[9] Exhibits 1-5.
BACKGROUND
In July 2013, GQHJ arrived in Australia on the Visa the subject of this proceeding.[10]
[10] Exhibit 1, page 129.
On 5 January 2020, GQHJ was arrested and charged with the then alleged offence of ‘Robbery in company’.[11] GQHJ was refused bail by NSW Police.[12]
[11] Exhibit 5, page 22; Exhibit 1, page 40.
[12] Exhibit 5, pages 87-88.
On 10 September 2020, GQHJ was convicted in the District Court of New South Wales (NSW) of ‘Robbery in company-SI’ committed on 30 December 2019 (Robbery Offence).[13] He was sentenced to two years and three months’ imprisonment with a non-parole period of 15 months.[14] The term of imprisonment commenced from the time GQHJ had been in custody from 5 January 2020 and expired on 4 April 2022.
[13] Exhibit 1, page 37; Exhibit 5, page 22.
[14] Ibid.
On 4 April 2021, following completion of the 15 month non-parole period, GQHJ was released on parole into the community.[15]
[15] Exhibit 1, page 37; Exhibit 5, pages 22 and 63.
On 9 November 2021, GQHJ was convicted in the NSW Local Court of ‘Possess prohibited drug’ and fined $250.[16]
[16] Exhibit 1, page 37; Exhibit 5, page 23.
On 14 November 2021, GQHJ was arrested and remanded in custody for the following three then alleged offences:[17]
(a)‘Affray-T1’ (Affray Offence);
(b)‘Refuse/fail to comply with Direction under Part 14’; and
(c)‘Assault officer in execution of duty-T2’ (Assault Officer Offence).
[17] Exhibit 1, page 37; Exhibit 5, pages 23-24.
On 14 December 2021, GQHJ’s Visa was mandatorily cancelled under subsection 501(3A) of the Act.[18] GQHJ was invited to make representations seeking revocation of that decision.[19]
[18] Exhibit 1, pages 130-136.
[19] Ibid.
In February 2022, GQHJ requested revocation of the mandatory cancellation of his Visa.[20]
[20] Ibid., pages 61-64.
On 14 November 2022, GQHJ was removed to Villawood Immigration Detention Centre (Villawood).[21]
[21] Exhibit 5, page 135.
On 14 August 2023, GQHJ was convicted in the NSW Local Court of the three offences committed on 14 November 2021, being the Affray Offence, refusing or failing to comply with a direction, and the Assault Officer Offence.[22] GQHJ was sentenced by the Local Court to an aggregate of 22 months’ imprisonment for the Affray Offence and the Assault Officer Offence with a 14 month non-parole period. He received no penalty for the third conviction.[23]
[22] Exhibit 1, page 37; Exhibit 5, pages 23-24.
[23] Ibid.
On 1 September 2023, the District Court of NSW varied the orders regarding the 22 month aggregate sentence for the Affray Offence and the Assault Officer Offence, such that GQHJ was ultimately sentenced to an aggregate term of 15 months’ imprisonment with a non-parole period of 10 months.[24]
[24] Exhibit 1, page 37.
On 10 April 2024, a delegate of the Minister decided not to revoke the Cancellation Decision.[25] On 22 April 2024, GQHJ received notice of that decision, which was hand delivered to him in Villawood.[26]
[25] Ibid., pages 21-35.
[26] Ibid., pages 13-35.
On 23 April 2024, GQHJ applied to the Tribunal for review of the decision not to revoke the Cancellation Decision.[27]
LEGISLATION & MINISTERIAL DIRECTION
[27] Ibid., pages 4-12.
The Act
Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’, because they have a ‘substantial criminal record’, and 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’.
Under subsection 501(6)(a) of the Act, a person does not pass the ‘character test’ if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Subsection 501CA(3) of the Act provides that when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original cancellation decision.
Under subsection 501CA(4) of the Act, the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
For completeness, the Tribunal notes that subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the mandatory cancellation of the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 7 June 2024, the Minister made a direction under section 499 of the Act, being Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110), which commenced on 21 June 2024 and applies in relation to the Tribunal’s consideration of GQHJ’s application for review of the decision not to revoke the mandatory cancellation of his Visa.
The Preamble to Direction 110 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)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 (paragraph 5.2(1));
(e)the safety of the Australian community is ‘the highest priority of the Australian Government’ (paragraph 5.2(2));
(f)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 (paragraph 5.2(3));
(g)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 (paragraph 5.2(4));
(h)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 (paragraph 5.2(5));
(i)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 (paragraph 5.2(6)); and
(j)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 (paragraph 5.2(7)); and
(k)the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(8)).
Section 6 of Direction 110 provides that, 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.
Section 8 in Direction 110 relevantly states that, in making a decision under subsection 501CA(4) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 110 relevantly provides that, in making a decision under subsection 501CA(4) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Finally, paragraph 7 of Direction 110 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether GQHJ passed the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether there was ‘another reason’ why the original decision to mandatorily cancel the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
Lay evidence
GQHJ
The Tribunal has considered GQHJ’s written material lodged in this proceeding, including his Statutory Declaration made on 3 June 2024.[28]
[28] Exhibit 2, pages 2-9. See also Exhibit 1, pages 63 and 80-83.
GQHJ gave in-person evidence at the Tribunal hearing. He told the Tribunal that he was born in March 2021 in Khartoum, Sudan and that he had a ‘birth certificate’. GQHJ had two siblings, but one passed away when they were in Sudan and his sister was ‘lost in the war’. Both of his parents have died. His mother died when he was six or seven and his father died when he was 15. GQHJ said his parents were born in Sudan. He lived in Khartoum until his mother died and he then moved to South Sudan with his grandmother. He also then lived with his father when he was eight or nine, however his father returned to fighting as a soldier when war broke out in South Sudan. At that time, GQHJ fled to Uganda for safety. GQHJ lost some of his family during this time. He stayed in Uganda for two years while his uncle arranged for visas to Australia.
GQHJ told the Tribunal that during the war in Sudan he saw dead bodies, people being shot and drowning seeking safety. GQHJ’s brother ‘went missing’ during the war and he was told in Australia that he had died, along with his sister. GQHJ left Uganda with his six cousins and aunt, Ms B. He told the Tribunal that he has a grandmother and an uncle in South Sudan, but has not spoken or had contact with them since the war occurred. GQHJ was unsure whether these family members were still alive.
GQHJ was 12 years old when he came to Australia. He attended school and recalled going to school in Uganda. He did not attend school in South Sudan. GQHJ told the Tribunal that it was ‘tough’ going to school in Australia, because of racism directed at him by other students, it was hard to learn English and he felt like he did ‘not belong here’ and with other children. He moved to another school for his secondary schooling up to and including Year 10, where he received ‘a lot of support’ and ‘stayed out of trouble’. GQHJ left that school around the time he learnt that his father had died; he thereafter skipped school and ‘hung out’ with others. GQHJ’s aunt and uncle told GQHJ of his father’s death. They were concerned that he would run away from home, which he subsequently did. He felt ‘upset’ and ‘angry’ at the news of his father’s passing; it ‘was a lot’. GQHJ did not know how to deal with it and said he ‘just lost control’.
Before his father’s death, GQHJ had planned to start his own business and to return to Sudan to visit his father before his death. After GQHJ’s father died, he started hanging with ‘a few boys’ in the ‘same situation’ as him, smoking, doing drugs, drinking and ‘getting in trouble’. The smoking of cannabis and drinking made him feel ‘a bit better’ than worrying about what was at home, thinking about family members, and it made him ‘forget’ everything. It was GQHJ’s decision to ‘drop out’ of school. His aunt did not like that choice and wanted him to complete school, but he ‘wasn’t listening’ because he was ‘upset’. This led to criminal activity and its consequences.
GQHJ told the Tribunal that, in prison following the Robbery Offence in 2020, it was ‘hard’, and you have to ‘basically fight’ so ‘you don’t get picked on’. He said that people ‘come and start you’ and the only way to solve the problem was to ‘fight the guy’ who ‘was starting on you’. GQHJ recalled doing a ‘few programs’ and ‘talking to someone’ in gaol, including a psychologist about his mental health.
In late 2021, while imprisoned, GQHJ took a drug which the Tribunal understands to be buprenorphine (or ‘bupe’). He said that ‘all the boys’ in gaol were taking this drug. GQHJ took drugs so as not to think about ‘everything outside’ and how he got himself in that situation. The last time GQHJ used drugs was in 2022. He ceased after seeing and talking to a counsellor; the ‘reason’ GQHJ was getting locked up was ‘drugs’ so he ‘stopped doing it’. That person was Mr Joshua Hall, Psychologist. GQHJ subsequently told the Tribunal that he had made the decision to stop using drugs when he was in gaol, before he started seeing Mr Hall in early 2023. It changed the way GQHJ thought about drugs and he wanted to show his family that he has changed; his uncle does not ‘really trust’ him and GQHJ wants to demonstrate that he is not involved in drugs anymore. GQHJ recalled recently speaking to Ms Carla Lechner, Psychologist, and that he had not told her about his drug use in gaol. This was because he was not using drugs at the time of her assessment in 2024 so thought he should not talk about it.

GQHJ was referred to his time in Villawood since being transferred from gaol in November 2022. He told the Tribunal that it was ‘not a good feeling’, it was ‘depressing’ being away from family and ‘not having your own freedom’ to go where you want and to ‘support your family’.
GQHJ was then referred to an alleged assault committed in November 2023 at Villawood. He did not recall this alleged incident. GQHJ was also referred to an incident report from January 2024 regarding a physical altercation involving a group of detainees.[29] He recalled this incident and said that there were a group of ‘Islanders’ and ‘something happened’ between them and ‘the Africans’. The Islanders ‘jumped’ one of his friends and ‘bashed’ another the following day. GQHJ said that he was told he ‘was next’, so he went to talk to them, but this ‘didn’t work out’ and they ‘started fighting’, although no one was hurt because it was stopped by officers. GQHJ received medical treatment as a result of an injury sustained during the break-up of the fight. When GQHJ was told he was ‘next’, he was not ‘thinking straight’ and went to talk to the other group, but a fight ensued. He told the Tribunal he was ‘scared’ about them ‘coming for me’. GQHJ was punished by way of a deduction of points for the purchase of goods at Villawood.
[29] Exhibit 5, pages 91-94 and 137.
GQHJ told the Tribunal that, in gaol, he did not have ‘enough time’ remaining on his sentence to see a counsellor. He requested to see a counsellor in Villawood, being Mr Hall. They speak once weekly for one or two hours. This frequency has continued for one year. GQHJ said that this ‘helped a lot’ and was ‘a good feeling’. Apart from one occasion, before this counselling, GQHJ had not called his aunt, but Mr Hall had said to GQHJ that his family would forgive him, so GQHJ called them and his aunt did forgive him and told him to stay out of trouble once released.
GQHJ has worked on ‘walking away’ from an argument and how to deal with his PTSD. This includes talking about managing his ‘anger’; GQHJ ‘opened up to’ Mr Hall about his past. GQHJ described his mental health as being in a ‘good state’; he is ‘clean from drugs’ and talking to the counsellor ‘about everything’, so he is ‘alright’. They are working on reducing his tobacco use. GQHJ told the Tribunal he has previously experienced anger ‘a lot’, but now had someone to talk to about how to ‘work on my anger’ and ‘how to walk away’. GQHJ said that his supports while in immigration detention are his partner, Ms L, and his family. GQHJ and Ms L have been together for almost two years but have known each other since 2017. They have a ‘good’ relationship and are there for each other, such as Ms L supporting him during this proceeding. They discuss their future and starting a family. GQHJ wants to start a landscaping business and Ms L is studying. GQHJ told the Tribunal that his aunt, uncle and cousins are his supports and ‘always’ check up on him in detention. They message or call him ‘every few days’ or weekly. GQHJ’s cousins range from kindergarten age to having recently graduated from school.
If released from detention, GQHJ will live with his aunt, Ms B. She has ‘been there my whole life’ and is like a ‘second mum’ to him. GQHJ said that he never had a fight or argument with his cousins, Ms B’s children; there is respect in the household and it is a ‘good family’. He practises his Christian faith in detention and previously participated in bible studies at Villawood.
GQHJ was referred to ‘STARTTS’, the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, and told the Tribunal that he had spoken to people from this organisation, such as its youth area and regarding its drug and alcohol program. GQHJ registered for the latter program because he had undertaken it in gaol and ‘every time’ he was ‘in trouble’ it was due to drugs and alcohol. He wants to continue rehabilitation through this program. GQHJ said that if he is ‘busy’ with this rehabilitation in the community he will not be ‘going out’.
Due to the possibility of being released from immigration detention, GQHJ has been applying for landscaping jobs in the community. When he attended school, GQHJ tended to its garden. He also considered there was ‘a lot’ of support in the community for him to obtain other jobs, such as labouring, for which he is certified, and concreting.
GQHJ told the Tribunal that if he remained in detention for a number of years, this would ‘feel like starting over again’. It would ‘traumatise me again’ and ‘wouldn’t be a good feeling’. GQHJ said that a further period of immigration detention would hurt his family and partner, because he has already been away from them for three years; ‘it’s not going to be a good feeling’ and ‘is going to hurt them too’.
GQHJ was referred to another potential outcome, being removal to South Sudan. He said that he did not think he would survive in that country. GQHJ told the Tribunal that he would not know where to start. He understands the Arabic and Dinka languages, but cannot speak them and reverts to English; he cannot write in the Arabic or Dinka languages. GQHJ told the Tribunal that he does not have any connections in South Sudan, other than his grandmother and uncle, although he does not know their whereabouts. He referred to the current living situation in South Sudan as being ‘bad’, with a lot of starvation, but GQHJ did not know the exact situation in that country. He thinks that he may be ‘kidnapped’ or ‘robbed’ because he comes from a ‘better living country’, so it might be thought that he might ‘have something’ or he could be held for a ransom.
GQHJ said that, if released into the community, he would not be a risk of reoffending, would be in contact with STARTTS and, engage with their programs for youth and drug and alcohol counselling. He told the Tribunal that he did not consider he would reoffend.
By way of cross-examination, GQHJ confirmed that he is a man of Dinka ethnicity. He understands that language but cannot speak it. GQHJ converses with his aunt, Ms B, using a mix of Arabic and English and there is a language barrier between them.
GQHJ told the Tribunal that his birth certificate was not provided in this proceeding. He recalled that the document referred to his birthdate, but was unsure whether it stated that he was Dinka.
GQHJ agreed that he had a ‘hard time here’ when he arrived in Australia. He also agreed that he used drugs and alcohol as a coping mechanism. He started drinking as a teenager and used drugs from 15 or 16; cannabis was used before he began using alcohol. GQHJ told the Tribunal that he had previously used cannabis, ‘MDMA’ and tried cocaine. The reason why he had not referred Ms Lechner to his use of cocaine was because he only used it once, whereas he often used cannabis and alcohol. He used cannabis ‘everyday’ since the age of 16 and would drink at parties and when ‘hanging out’.
GQHJ was referred to his January 2020 conviction for the Robbery Offence committed in December 2019, when he and friends robbed two unknown people. He agreed that he pled guilty in relation to that offending. GQHJ only recalled being ‘drunk’ and did not recall any provocation from the victims. GQHJ then agreed that his evidence was that the incident was all a misunderstanding and ‘nothing even happened’ except an argument; no one was hurt and they ‘just exchanged words’ and then he was charged with the Robbery Offence. To this end, GQHJ told the Tribunal that ‘nothing was…robbed’; he could not recall taking the victim’s hat or shirt and saying at that time that he did not care about taking it. He said that he pled guilty because everyone charged with the offence did so; he was ‘in the wrong’, was drunk in a public place and therefore, ‘just pled guilty’ for being in the wrong. The Minister’s representative asked GQHJ whether he did not accept the sentencing judge’s remarks. He told the Tribunal that he did not recall what had been said, but he was drunk at the time of the Robbery Offence, was charged and pled guilty.
GQHJ was referred to the Judge’s remarks in 2020 that ‘[h]opefully he will take the advantage this sentence will provide him by not reoffending again and having access to supervision whilst he is on parole’.[30] GQHJ told the Tribunal that he understood he was released from gaol on parole. He recalled that, after being released from gaol, he had a meeting with Odyssey House, an organisation providing drug and alcohol intervention. The Minister’s representative referred GQHJ to a Breach of Parole Report from November 2021 regarding his non-attendance at Odyssey House’s alcohol and drug intervention sessions.[31] GQHJ told the Tribunal that it was only meant to be one meeting and that he was required to attend further meetings by Zoom, but did not do so because Odyssey House was to call him to join these sessions, but that did not occur. He contacted the organisation once but did not follow up again.
[30] Exhibit 1, page 49.
[31] Exhibit 5, page 63-66.
GQHJ said that, on 14 November 2021, he drank for the first time in months and committed the Affray Offence and the Assault Officer Offence. He was not using any drugs at that time. He pled guilty, but appealed the sentence and told the Tribunal that he was found ‘not guilty’ for the Affray Offence against the Uber driver. GQHJ said that he had ‘nothing to do with the Uber driver’. It was put to GQHJ that there was nothing in the material before the Tribunal regarding that contention. GQHJ referred to subsequently being on remand for the Affray Offence and ‘they told me’ they would adjourn the criminal proceeding so he should ‘just plead guilty and get it out of the way’. As a result, GQHJ was referred to his written statement regarding ‘footage’ of the incident and he agreed in his oral evidence to the Tribunal that he was involved, but was charged with ‘being there’, not for ‘bashing the Uber driver’.[32] He told the Tribunal that he was ‘trying to help out the Uber driver’ and was ‘fighting the people bashing the Uber driver’.
[32] Exhibit 2, page 5-6.
The Minister’s representative referred to police arriving after the Affray Offence incident and telling GQHJ to move on. GQHJ told the Tribunal he was drunk and could not recall that occurring, but when he was told to go home he refused because the police had his phone. Once he received the phone, he was told to go home and was walking to the train station, but ‘accidentally’ spat at the officer. As a result, GQHJ was referred to the NSW Police Facts Sheet from 14 November 2021 regarding the Assault Officer Offence, in which it was recorded that he:[33]
…removed his jacket and said “Come on, let’s go you nigga bitches”. At this time, Police detained the accused and he was given one more chance to leave the area in which his friends assisted in taking the accused towards the Train Station however the accused turned around and spat directly at Police. The spit from the accused landed on the chest of Constable [L].
[33] Exhibit 5, page 20.
GQHJ said that he could not recall the incident and was ‘drunk’. He agreed to pleading guilty for the Assault Officer Offence. GQHJ did not recall saying the words, ‘[c]ome on, let’s go you nigga bitches’, but agreed that he could have said them.[34] GQHJ recalled spitting ‘away’ and that spit ‘accidentally’ landing on the police officer; he did not mean for this to occur.
[34] Ibid.
As a result, the Minister’s representative put to GQHJ that his evidence was that all of his criminal charges were an accident or arose from a misunderstanding. He told the Tribunal that the police wrote the statement. GQHJ said that he respected police, but at that time he had a broken arm in a cast and they put the handcuffs on in a certain manner causing pain and injury. He agreed with the proposition that in some ways the Assault Officer Offence was the fault of the police.
GQHJ was on parole at the time of the Assault Officer Offence. He agreed that a condition of that parole was to not reoffend. The Minister’s representative put to GQHJ that in circumstances where he had put himself in a situation involving violence and assaulting police meant that he was not trying hard to observe his parole conditions. In response, GQHJ said that he was, but the police themselves ‘were even breaking the law’ in how they treated him while being handcuffed with a broken arm. He agreed with the proposition that he considered the police had wronged him. GQHJ said he ‘wasn’t doing anything wrong’ and had told the police of his broken arm meaning he could not be handcuffed due to the pain. He said the police did not listen to him and ‘started twisting my arm’. GQHJ therefore started to lose respect for them. He said the police claimed he was resisting arrest and had assaulted them, but he ‘did not do none of that’, because he respects the law.
GQHJ said that he would not again put himself in a situation involving the police. He was asked how he would respond if police were around him. GQHJ said that he could ‘just walk away’. If police were talking to GQHJ, he would ‘respectfully give them’ his details. GQHJ told the Tribunal that he ‘always’ respects the police in their duty and would not drink in public places in order to avoid them. GQHJ was asked what he would have done if the situation arose again. He said that he was ‘drunk at the time’ and could not think of anything he could have done differently.
GQHJ was referred to his written statement that, if confronted with similar violent situations or potential altercations in gaol, he would walk away. He told the Tribunal that if he walked away from a fight ‘you’re still going to get bashed’ so there was no point doing so. GQHJ said he did not start the fight in gaol but was charged ‘for being there’ because he was in someone else’s room. He did not identify anything he could have done to avoid that incident.
GQHJ was also again referred to an immigration detention incident in January 2024.[35] He recalled that one person involved was ‘always causing trouble’ and came up to him wanting to fight because he ‘didn’t’ like Africans’. GQHJ informed an immigration officer and was told to ‘avoid’ the person, which he did for a few days, and reported further occasions he was confronted by that person. GQHJ said that he had walked away, but it was recorded that they fought and they moved that person; there was ‘no fight’. He agreed with the proposition that this was another accident in which he was stated to have been involved.
[35] Ibid., pages 91-94.
GQHJ was referred to an altercation in immigration detention in April 2024, where he was told he was ‘next’ to be bashed.[36] GQHJ said he went to talk to these people in the yard about why they were ‘jumping us one by one’, but he ‘ended up fighting’, officers separated them and the ‘Islanders’ were moved. GQHJ told the Tribunal they ‘just shaped up’ and ‘no one got hurt’ before the fight was stopped. GQHJ said he was ‘friends with everyone’ in detention. There were different people involved in the two separate incidents.
[36] Ibid., pages 124-128.
GQHJ agreed that drugs and alcohol were a big reason for his offending. He was aware of courses in immigration detention and had completed ‘a few courses’, including the SMART Recovery course and another regarding having a positive lifestyle.
GQHJ told the Tribunal that, in gaol, he obtained ‘bupe’ from a friend who was smoking it, but GQHJ ‘didn’t like the feeling’ of it. He agreed that one reason he drank was to cope with poor mental health. GQHJ said he was ‘not at all’ presently struggling with his mental health. Talking to Mr Hall about his life was ‘helping’, although he ‘still’ struggled especially regarding the loss of his family members. GQHJ agreed that he still needed to ‘talk to someone’ by way of treatment. He would ‘definitely’ still participate in counselling if released into the community. GQHJ said that he was motivated to undertake this counselling to demonstrate to his family that he would ‘not fall back’ into the ‘same trap’; he is not using drugs and is not how he used to be when young. GQHJ accepted that he had complex mental health issues requiring treatment. He disagreed that, in order to cope with these issues, he would revert to using drugs or alcohol, because he was now aware that he can talk to someone such as a counsellor or other people.
GQHJ referred to his aunt as a ‘second mum’; she raised him well, was supportive and he could talk to her. GQHJ was asked why he did not previously talk to his aunt, Ms B, about his issues when he was using drugs and alcohol. GQHJ said that in the Dinka tribe, they do not talk about what they are ‘going through’ and keep it to themselves; they just ‘deal with it’. Culturally, the Dinka do not talk to their elders about issues that they are dealing with.
GQHJ told the Tribunal that he had found friends who had experienced a similar history, but he does not now know their whereabouts. He agreed that he had a bond with these people and was hanging out with some of them up until he went to gaol. GQHJ has other friends, being his cousins, and did not talk to any other friends, such as from school.
GQHJ was asked whether, if he was released, he would say hello to the same people with whom he formerly associated. GQHJ said he would seek to avoid them because they are still ‘doing what I was doing’ and had not gone to prison to realise what it was like and that there is ‘no life in it’. He would not converse with these people and would decline any party invitation. GQHJ said that he would instead ‘hang out’ with his family.
GQHJ told the Tribunal he has minor child cousins aged four, seven, 13 and 15. He said that he used to babysit these children when his aunt went out, such as to the shops. GQHJ last saw these children when he was released from gaol in 2021. He speaks to them on the phone via Facetime from Villawood. They have not visited him in immigration detention.
The Minister’s representative asked whether, if GQHJ was unsuccessful in this proceeding, it was correct that he would then apply for a protection visa. He referred to that process as the ‘last resort’. During that process, GQHJ would continue to engage in therapy with Mr Hall if he remained in detention and would also do so in the community. He would also seek to stay out of trouble, but ‘sometimes it just comes to you’. GQHJ would additionally undertake further courses in relation to drugs and alcohol, although he has ‘done most of the courses’. He agreed that being in immigration detention had helped him to receive the required support and that this would continue regardless of the outcome of this proceeding.
In re-examination, GQHJ said that his birth certificate is with his aunt, Ms B. He recalled that there were COVID-19 related lockdowns while he was on parole and during this time, the alcohol and drug courses were offered only by Zoom. GQHJ told the Tribunal that he accepted that there were several instances in his relevant criminal history where he had done the wrong thing.
GQHJ said that in prison you cannot ‘hide from people’, but in the community you can talk to someone and ‘walk away’. If issues with another detainee were raised with an officer, GQHJ was told to leave it and the person was not moved to another location. He said that in detention, people are ‘racist’, such as talking ‘bad about you’ and thinking they are better than everyone.
GQHJ told the Tribunal that he last spoke to his former anti-social peer group before he went to gaol and with some not since 2015. He agreed that he would know how to contact these people if he wished. Finally, GQHJ said it was helpful to meet people such as Mr Hall and being able to speak to someone in detention, but being in detention itself was not helpful.
Ms L
The Tribunal has considered Ms L’s Statutory Declaration made on 3 June 2024 and her unsigned Statutory Declaration from February 2024.[37]
[37] Exhibit 2, pages 10-12; Exhibit 1, pages 90-91.

Ms L gave in-person evidence at the Tribunal hearing and told the Tribunal that she is a waitress and engaged in study. She is GQHJ’s partner of one and a half years, although they have known each other since 2017. During his detention, they speak by phone ‘every day’ and also Facetime. Ms L has visited GQHJ ‘about three times’ at Villawood. She considers him to be a ‘really genuine, sweet’ person and ‘not bad or negative’ in any way. They have ‘a really healthy relationship’, a ‘strong bond’ and communicate well when it comes to arguments.
Ms L is aware of GQHJ’s criminal history, but she did not attend any of his court appearances; she has talked to GQHJ about his criminal offending. They have discussed whether he would reoffend. Ms L said that GQHJ now has ‘a different mindset’ and is ‘a lot more different’ to when she first knew him. He was previously ‘more naïve’ about his choices, whereas he is now ‘a lot more thoughtful’ and thinks twice before doing something, rather than ‘going with the flow’ as in the past.
Ms L and GQHJ have discussed his past substance use. She said that GQHJ has had the opportunity to use drugs in immigration detention, but had refused every time. She has previously used drugs, the last time being in 2022. Ms L ceased drug use because she had a ‘wakeup call’ regarding her then associates and the direction of her life. Ms L thereafter obtained employment, commenced studying and is investing in a ‘side business’. She was also previously disqualified from driving for two years, during which time she again drove, and then received a six month disqualification and community corrections order. Ms L has given her car to her father so she is ‘not anywhere near it’.
Ms L told the Tribunal that, if released, GQHJ wants to pursue work in landscaping and she will undertake youth work, together with an event business on the side, and they will travel together. If GQHJ stayed in detention, Ms L said that she will continue doing what she is doing and ‘still be with him’ and wait for him to be released.
Under cross-examination, Ms L confirmed that her relationship with GQHJ had been for one and a half years and that she had visited him three times at Villawood. When Ms L initially sought to visit GQHJ, she was not permitted because she had not received three COVID-19 vaccinations by April 2023. In December 2023, Ms L checked this rule, which had changed, and she was able to visit GQHJ. Ms L last visited him in March 2024. In the last six months, Ms L has visited GQHJ three times in person at Villawood.
Ms L is 23 years old and wants ‘a long-term commitment’ with GQHJ. The Minister’s representative put to Ms L that she was young, had only seen GQHJ in-person three times during their relationship, and therefore, was not in a position to say with much certainty that they will have a life-long commitment to each other. Ms L told the Tribunal that she was ‘definitely certain’, because she had spoken to a lot of different men, was very good at reading people’s character and, compared to everyone else, GQHJ is ‘a lot different’ and their ‘energies match’. Ms L further stated that she will gain more clarity regarding her view when GQHJ is released into the community.
Ms L was referred to her written statement that immigration detention was a ‘wakeup call’ for GQHJ.[38] Ms L told the Tribunal she considered GQHJ being isolated from his previous group of friends required him to go ‘deep inside of himself’ to determine his life’s trajectory. Ms L also said that seeing a psychologist has also assisted GQHJ, together with there being no ‘outside distraction’. The Minister’s representative asked Ms L whether she considered GQHJ had complex mental health issues to address. She told the Tribunal he was very ‘self-aware’, which was ‘a start’ in order to change.
[38] Exhibit 2, page 11.
Ms L said that she currently lives in ‘a share house’ and, if released, GQHJ would stay with his aunt, Ms B, and visit Ms L at her residence. She also stated that in one or two years GQHJ and herself would move out together.
In re-examination, Ms L confirmed that she often saw GQHJ in person in the community before he was incarcerated in 2020 and considered this was weekly or fortnightly from 2017 to 2020. She also confirmed to the Tribunal that her relationship with GQHJ commenced in December 2022.
Ms B
The Tribunal has considered Ms B’s Statutory Declaration dated 3 June 2024 and her earlier unsigned Statutory Declaration from February 2024.[39] She gave in-person evidence at the Tribunal hearing with the assistance of an interpreter in the Dinka and English languages. Ms B agreed to having made the respective written statements in February and June 2024. She told the Tribunal that GQHJ is her sister’s son and Ms B has known him ‘since he was little’ in Sudan.
[39] Exhibit 2, pages 13-14; Exhibit 1, page 84.
Ms B described life in Sudan as ‘okay’; they were ‘working’. When war broke out, GQHJ went to live with GQHJ’s father and then returned to live with her. Ms B left Sudan because of the war and GQHJ came with her to Australia.
Ms B told the Tribunal she was aware of GQHJ’s criminal offending and had been informed about it by the police. Ms B previously had contact with police regarding GQHJ, including when they were looking for him. Ms B told the Tribunal that it was ‘not good’ when the police attended her house, because sometimes they knocked hard on the door, including in the middle of the night, and the family were ‘scared’. She did not witness the police interacting with GQHJ, but discussed these interactions with GQHJ and told him what he was doing was ‘no good’ and causing the police to attend their residence. Ms B told the Tribunal that they had ‘numerous’ conversations, including with GQHJ’s uncle, about GQHJ’s behaviour.
Counsel for GQHJ referred Ms B to her written statement that, despite GQHJ’s criminal offending, she still considers that GQHJ is ‘a good person’.[40] Ms B said this was because at home GQHJ is ‘peaceful’ and ‘doing nothing wrong’. She lives with her seven children, GQHJ and another nephew. Ms B is unconcerned about GQHJ living with the family again if he is released from detention. She has never witnessed any misbehaviour by GQHJ, including with her children.
[40] Exhibit 2, page 13.
Ms B told the Tribunal that she speaks to GQHJ by telephone during his time in detention. Her children also ‘sometimes’ speak to GQHJ by telephone. Ms B discusses with her children their relationship with GQHJ; they want him to return to live with them, because they have been ‘all together’ since they were young.
Ms B was referred to her statement regarding GQHJ knowing right from wrong. She said this was because there is a difference in behaviour between children and adults and when older ‘we behave better’. She also said that GQHJ has been away for three years without a family member around him.
Under cross-examination, Ms B confirmed that GQHJ does not have a birth certificate. The family did not provide any such documentation upon applying for the visa to Australia.
Expert evidence
Ms Carla Lechner – Clinical Psychologist
Following an assessment of GQHJ on 16 May 2024, Ms Lechner prepared a report dated 20 May 2024, which relevantly set out her summary and opinion as follows:[41]
[41] Ibid., pages 15-29.
1. [GQHJ] aged 23 years, is before the Administrative Appeals Tribunal (AAT) requesting a view of the decision to cancel his Class XB Subclass 200 Refugee visa on character grounds. He has a prior criminal history that has mostly been evident in his adolescent and early adult years (last offending occurring when he was aged twenty years). [GQHJ] came to Australia from war-torn Sudan at the age of twelve year, his experience of the civil war giving rise to symptoms of Post-Traumatic Stress Disorder (DSM 5-TR) and Complex Post-Traumatic Stress Disorder (ICD-11). He found the adjustment to life in Australia difficult, began associating with similarly displaced youths and was introduced to drugs and alcohol that represented both entrée to social acceptance and a means of managing his high level of psychological distress. His offending is directly linked with his substance abuse and parlous mental health. Since being in detention, [GQHJ] has engaged with psychological supports to good effect. He has also reconnected with his family and evidences some promising signs of growing maturity. It is my view that the risk of reoffending, should he remain abstinent from substance abuse and engaged with therapeutic work, is “low/moderate”.
2. [GQHJ]’s parents are deceased, his older siblings are missing presumed dead. He has faced numerous Adverse Childhood Experiences, this alone increasing his risk of developing serious psychological problems. He arrived in Australia at the onset of his adolescent years with his lack of English-speaking skills and ongoing psychological distress, undermining his ability to negotiate the tasks of adolescence such as identity formation, developing a sense of belonging and sense of future direction. He was finding engagement with school difficult and felt like “the odd one out” in his family, hence readily gravitated to youths of a similar background and with a similar sense of alienation. His drug and alcohol use and offending has occurred in this context.
3. At interview, [GQHJ] impressed as quite shy and reserved. He now has a good understanding and appreciation of the link between his post-trauma symptoms, substance use (as a means of avoidance) and his offending. He impressed as low and anxious in mood, reactive to being in detention and uncertain of his future. [GQHJ] is currently reporting symptoms of a “severe” level of psychological distress and the ongoing presence of symptoms of PTSD and Complex PTSD. He reports that in the past he has avoided speaking of his symptoms of trauma but that he has now engaged in therapy and finds this helpful. He is also immensely grateful for the forgiveness of his family.
4. [GQHJ] takes responsibility for his offending behaviour which appears to be inextricably connected with his parlous mental health and “self-medication” with drugs and alcohol that in turn contributed to his offending behaviour. He is deeply ashamed of his offending, the shame that it has brought on his family and the distress it has caused his victims.
5. I note that you seek responses to the following specific questions:
(i) The cause or causes of [GQHJ]’s previous offending;
[GQHJ] presents with symptoms of PTSD and Complex PTSD as well as a history of Cannabis & Alcohol Use Disorder, now in remission. His offending appears to be inextricably connected with both his unresolved and (then) untreated mental health issues and his substance use, particularly of alcohol, that led to disinhibited behaviour.
(ii) Any risk factors that may cause [GQHJ] to reoffend and to the extent that is possible, please comment on how likely it is that each factor you identify, if any, might cause him to reoffend;
[GQHJ] has expressed a strong desire to remain abstinent from substance use and to address his mental health issues, as a means of minimizing the risk of relapse to substances and ipso facto, offending. Risk factors, include, relapse to drug and alcohol abuse association with substance-abusing and offending peers, disconnection from his family, and a lack of belief in self-agency that he is able to make positive changes to his life. Given that these factors are all inter-linked, it is difficult to determine the relative importance of each risk factor. Certainly, remaining abstinent from substances is vital and is predicated on improved mental health.
(iii) Any factors likely to be supportive of [GQHJ]'s rehabilitation, including but not limited to support from [GQHJ]’s family, partner, or other social supports available to him in the community or in detention;
[GQHJ] would be supported by his family, partner and STARTTS both in the community and detention. His engagement with a vocational training/job seeking agency is also advised. Assessment by an AOD agency to determine if he warrants further support in this regard is recommended. [GQHJ]’s growing maturity as evidenced by his willingness to be involved with therapeutic support will also contribute to his ongoing rehabilitation.
(iv) Based on [GQHJ]’s history, your assessment, and any other information available to you, the steps taken by [GQHJ] towards his rehabilitation to date;
[GQHJ] has engaged with psychological services, he has remained abstinent from substance abuse, has reconnected with his family, is maintaining a good level of physical fitness and has severed ties with his negative peers all factors contributing to his rehabilitation.
(v) Having regard to the matters you identify in response to the above questions, [GQHJ]'s risk of reoffending. To the extent that is possible, please explain whether the risk is different for different kinds of offending (e.g. property offences compared to offences against the person, violent and non-violent offending, etc)
[GQHJ]’s property-based offending…was related to his need/desire to support his drug addiction in particular. He reports that he did not use any cannabis when last released to the community hence in the face of ongoing abstinence, his risk of re-offending would be low. The violent offending appears to have been primarily related to alcohol intoxication and being around friends (similarly intoxicated) who found themselves in fights. [GQHJ] is more inclined to be disinhibited and to exercise poor judgement when alcohol-affected hence again, remaining abstinent is key to remaining out of trouble. At no point did [GQHJ] espouse any attitudes supportive of offending behaviour. He stated that he is strongly motivated to remain abstinent from substances.
(vi) Any supports [GQHJ] would need to have in place in order to lower his risk of reoffending.
These have been outlined above but include a release plan including security of accommodation (with his aunt), therapeutic and vocational supports and prosocial activities to engage with, such as gym membership or membership of a sporting group. [emphasis in original]
On 21 June 2024, Ms Lechner provided a supplementary report following receipt of further documentation from this proceeding, which report relevantly stated that:[42]
[42] Exhibit 3, pages 9-11.
I note that you seek an opinion as to whether these further documents would alter my view that [GQHJ] currently presents as a “low/moderate” risk of reoffending. In particular you have drawn my attention to the following:
i) an earlier report of Ms. C. Winkley, Community Corrections dated 7/9/20 which assessed [GQHJ] as being of “medium” risk of reoffending utilizing the Level of Service Inventory (a risks/needs assessment conducted with Corrections’ clients to target areas of treatment to reduce recidivism), and another earlier report prepared by Ms. Julie Dombrowski, Psychologist, dated 4/9/20 which does not offer a risk assessment but that concludes, “his offending behaviour primarily functions from his poorly controlled substance use, the impulsivity and poor decision-making that accompanies his substance use, influences of anti-social peers and also social immaturity” all of which has arisen against a “history of significant disadvantage”.
In response, I would state that Ms. Winkley’s risk assessment is outdated. Ideally, risk assessments should be administered at 6-12 months intervals as dynamic factors, such as clinical and protective factors can change. This appears evident in [GQHJ]’s situation, where his protective factors have increased markedly, and his level of insight and maturation has also improved.
In respect of Ms. Dombrowski’s opinion, I would agree with her assessment as to the context of his offending. Her view that intensive therapeutic supports are indicated accords with my opinion and that of Mr. J. Hall, Psychologist, who has had extensive contact with [GQHJ].
ii) Alleged incident that occurred in prison.
I note that the custody record indicates that on 15/2/21 [GQHJ] was allegedly involved in a fight “or other physical combat”. I further note that [GQHJ] apparently “took ownership” of his actions and was locked down; the matter was later dismissed on account of there being no evidence. [GQHJ]’s account to me was that he was “jumped” then refused to “point the finger” hence “ended up getting charged” (internally) although the outcome appears to have been a short period of lock-down. I would therefore concede that in my report where it reads (under Historical Factors of the HCR-30, a. Violence) “[GQHJ] stated that he has not been involved in any incidents in prison”, this should actually read as “not been involved in any incidents instigated by him”.
The other noted infractions seem to relate to disobeying a direction and entering a cell that one is not entitled to enter. These are minor incidents and resulted in no known disciplinary action.
iii) Alleged incidents that have occurred in detention, dated 20/11/23, 11/1/24 & 17/4/24.
[GQHJ] reported to me that he had been involved in a recent incident in detention “where he was dragged into” a fight between Africans and Islanders. I understand this to the incident of 11/1/24; the incident report described this as a “major incident” however, no disciplinary action was taken against [GQHJ]. He, along with other detainees was “reminded of his rights, responsibilities and the code of conduct signed at induction”. The matters of 20/11/23 & 17/4/24 were described as “minor”, with no disciplinary action. I would suggest that these incidents represent the skirmishes that often occur in the volatile environment of a prison or detention centre.
This further information does not alter my opinion that [GQHJ] currently presents as a “low/moderate” risk of violent reoffending. I am impressed by the level of support that is offered, if he is released from detention, not only by his family and partner, but also by STARTTS, the latter including 1:1 psychotherapy by Mr. Hall, a clinician with whom [GQHJ] has established a positive therapeutic alliance, AOD counselling “Save a Mate” (partnered by Odyssey House) and opportunities for involvement in pro-social activities. The importance of protective factors cannot be over-emphasised. In this instance, they give [GQHJ] a sense of belief in himself and understanding that others believe in, and value him, in addition to an increased sense of belonging. [emphasis in original]
Ms Lechner gave evidence at the Tribunal hearing and confirmed adherence to her two written reports in this proceeding. She told the Tribunal that she met with GQHJ for approximately two hours by video link in May 2024. Ms Lechner said that GQHJ seemed to provide an ‘accurate account of his history’ and this accorded with the material she had considered. Ms Lechner told the Tribunal that she thought GQHJ was ‘pretty forthcoming’ and ‘putting on a brave face’, but was ‘anxious’ and of ‘low mood’. He had initially said he was alright, but as their discussion progressed, GQHJ referred to his anxiety and low mood.
Ms Lechner referred to GQHJ’s childhood during which there was a lot of ‘dislocation’, his mother died from an unspecified illness, his father died later in GQHJ’s adolescence, his two siblings are presumed dead, he had no schooling in Sudan, GQHJ has ‘vivid and traumatic memories’ of walking to the north of Sudan where he saw a lot of people struggling. This included witnessing people being shot, drowning, living in the bush and GQHJ did not know what his fate would be at that time. Ms Lechner said that this background has naturally had a ‘profound’ impact on GQHJ’s life, leading to complex PTSD, due to his childhood trauma, such as nightmares, flashbacks, hypervigilance, intrusive thoughts and avoidance. Ms Lechner stated that early childhood trauma can have a ‘profound effect’ on a person’s development. GQHJ’s PTSD is classified as ‘complex’ due to experiencing chronic stressors for a long period and this can impact on trusting people and regulating behaviours, in addition to other issues. She confirmed that these issues are linked to juvenile justice contact. Ms Lechner also told the Tribunal that it would be ‘hard’ for a young person with those symptoms to ‘feel connected to other people’ because they feel different; it was difficult to engage with work or study, they have a high level of emotional arousal, and it is difficult to find their ‘social niche’. In this regard, Ms Lechner said it did not surprise her that GQHJ had difficulties with relationships and education ‘given his history’.

Ms Lechner told the Tribunal that she included reference to GQHJ feeling ‘immense shame’ because it demonstrated that he has ‘insight’ into the impact of his offending on the victim and GQHJ’s family. This shame was said to further alienate GQHJ from his family. He has recently reunited with his family and they have forgiven him. Ms Lechner said that, although difficult, GQHJ will work on his feelings of shame but it was ‘one of many things’ to address in mental health treatment. She told the Tribunal that the level of intelligence does not impact on GQHJ’s risk of reoffending; he is ‘not stupid’, ‘has insight’ and can ‘see the links’ between ‘mental health, substance abuse and offending’ and is therefore in a position where he can ‘start to address those issues’.
Counsel for GQHJ referred to Ms Lechner’s written statement that GQHJ ‘is able to identify some triggers to his negative feelings but is not yet ready to explore the depths of his successive losses. He believes that this is work he can tackle when his circumstances are more stable’.[43] She described these losses as being related to GQHJ’s parents and siblings, and also a ‘loss of self-respect to some degree’. Ms Lechner said that GQHJ had started to understand that these issues triggered his negative feelings, but that the immigration detention environment can be a difficult place to deal with feelings in any depth because they could further upset him in a setting where he needs to appear to be coping and this would be ‘too much of a challenge’ in GQHJ’s view.
[43] Exhibit 2, page 18.
Counsel asked Ms Lechner about her impression of GQHJ’s insight into his offending behaviour. She told the Tribunal that GQHJ understood that it was ‘wrong’, that he was caught up and participated in situations which he should not have while intoxicated. Ms Lechner said that GQHJ feels empathy for his victims and his expressions of remorse seemed as genuine as she could ‘gauge it’; GQHJ did not seem to be embellishing his stated remorse and had also described this to other people, which was matched by his demeanour during her assessment.
Ms Lechner was asked about the relationship between GQHJ’s mental health, his drug use and offending. She told the Tribunal that GQHJ was a youth experiencing symptoms of PTSD, feeling like he does not belong ‘very well’ with family and school, and had lost his father. It was a ‘common pattern’ that individuals gravitate to similar youths feeling ‘dislocated’ or ‘angry’, leading to substance abuse and ‘disinhibited’ behaviour, which appeared to have occurred with GQHJ.
Counsel referred to Ms Lechner’s opinion that GQHJ poses a ‘low/moderate’ risk of future violent offending using the ‘HCR-20’ [Historical Clinical Risk – Third Edition].[44] Ms Lechner told the Tribunal that the HCR-20 was deemed, and reviewed to be, the most reliable measure in the forensic field. Ms Lechner told the Tribunal that one of the factors assessed under the HCR-20, being GQHJ’s history of violence, was static, and therefore does not change. However, if there is a lengthy period of time where there is no further violence, then the importance of that factor does ‘probably diminish’, although it had happened and ‘cannot be changed’. Ms Lechner agreed that GQHJ’s history of violent offending was the primary reason for him attracting a ‘moderate’ reading under the HCR-20, in addition to his ongoing mental health issues that are being worked on to resolution. Ms Lechner further stated that, in the absence of that treatment, GQHJ could potentially sustain a ‘moderate’ level of risk of reoffending, rather than the ‘low/moderate’ rating.
[44] Ibid., page 22.
Ms Lechner agreed that GQHJ’s engagement and therapeutic relationship with Mr Hall ‘moderates’ his risk of reoffending. She told the Tribunal that the relationship and therapy was important, together with the foreshadowed more targeted work, and is a ‘great moderating factor’. Ms Lechner also stated that a person’s relationships are important for any violence and there did not appear to be any in relation to GQHJ.
Counsel for GQHJ asked Ms Lechner how she determined his insight. Ms Lechner said that this was based on what GQHJ said and his understanding of the links to his behaviour, in addition to other reports, GQHJ’s desire to engage in therapeutic work and his goals for the future. These included not using alcohol or drugs, securing employment and pro-social activities. Ms Lechner said that this indicated GQHJ knows what will lead him down a good path rather than a poor one.
Counsel asked Ms Lechner about the impact of detention on mental health. She told the Tribunal that there was ‘plenty of research’ that detention is unhelpful to most people, it is an environment not dissimilar to prison so there was always the potential for violence in that conflictual setting. Additionally, other detainees have mental health issues. There is no opportunity to engage with the community; contact with family is through visits and audio-visual means, but the person cannot attend family functions or increase their sense of belonging. If the person already had mental health issues, they are unlikely to get better if they have ‘no control’ over their destiny. Ms Lechner told the Tribunal that the impact of a further period of detention on GQHJ’s risk of reoffending was ‘difficult’ to determine and it is prudent to do risk assessments every six months due to ‘dynamic factors’. However, Ms Lechner considered that it would not have a good impact on GQHJ’s mental health, he would become more ‘demoralised’ and ‘withdrawn’.
Ms Lechner told the Tribunal that she ‘very much’ doubted GQHJ would potentially relapse in his drug use and offending if released into the community. She said it is usual for there to be a readjustment period after release, but she was ‘impressed’ by the psychological, familial and partner supports, in addition to drug and alcohol support. These substantial supports would hold GQHJ ‘in good stead’ and minimise any readjustment factors for him.
Ms Lechner referred to the impact of an adolescence’s psychosocial immaturity on their offending and that if there are other factors, such as substance abuse and mental health, a person can have an impaired ability to think through issues and consequences. GQHJ had demonstrated increased signs of maturity because he spontaneously talked about understanding the need for treatment, connection with family, employment and doing positive things in the community. Ms Lechner considered this indicated that GQHJ was ‘growing up’; he recognised that he needed to ‘step up’ and be more of an adult. In this regard, GQHJ’s recognition of his fallibilities and wanting to engage in that is a sign of his maturation. To this end, Ms Lechner said that immigration detention centres were not ‘therapeutic communities’ or an ‘optimal’ environment to mature, it is difficult to reach any level of maturity in a setting where a person does not want to stand out from their peers; they ‘often go along with silly behaviour’ and the opportunities to engage with therapy are limited.
Ms Lechner was referred to her supplementary report and confirmed that an earlier ‘medium’ risk rating ascribed by NSW Community Corrections in 2020 was ‘outdated’ because the testing was performed four years ago and used a different assessment tool, not specific to violent offending. Ms Lechner further stated that there are a lot of dynamic factors in the HCR-20 tool she used for GQHJ and it was important to maintain an up to date assessment because factors can change.
Under cross-examination, Ms Lechner said that a cannabis and alcohol use disorder meant that there was a ‘sustained period’ of such use impairing ‘functioning’ in relationships and daily activities. GQHJ has been in remission from his drug and alcohol use disorder for some period of time and a person is considered to be in ‘recovery’ where that time is more than two years. Ms Lechner agreed that, in layman’s terms, GQHJ would have been considered an ‘alcoholic’ before going to gaol because he was drinking a substantial amount every day. GQHJ also had a drug ‘addiction issue’ because he was reliant on cannabis.
The Minister’s representative referred to Ms Lechner’s first report and asked whether GQHJ’s childhood makes him more likely to offend.[45] Ms Lechner told the Tribunal that it depends, people can continue to offend and childhood is a ‘static’ factor.
[45] Ibid., page 17.
It was further put to Ms Lechner that her opinion, that GQHJ was not ready to explore the depths of his successive losses partially because of his current situation, meant that he had not started to tackle his underlying social and criminal behaviour. She disagreed and said that GQHJ had a ‘really strong stance’ on abstinence into the future and had started to talk with his psychologist, Mr Hall, about his many issues. Ms Lechner said that the reference was to talking in more depth about the impact of losing parents and how this impacts emotional stability. GQHJ does not want to undertake that in an environment where he is vulnerable, although he has made a ‘substantial start’, including by engaging and forming a ‘positive therapeutic alliance’ with Mr Hall; GQHJ was said to be ‘moving along well’.
Ms Lechner told the Tribunal she anticipated that in future GQHJ would do more targeted trauma work to assist with flashbacks and nightmares. She noted that Mr Hall’s report foreshowed targeted work to lessen the intensity of GQHJ’s more acute symptoms. Ms Lechner said she anticipated that therapy would work towards GQHJ developing a strong sense of ‘identity’, ‘belonging’ and ideas about his future direction.
Ms Lechner agreed that if GQHJ did not sever ties with his former social network it would put him at possible risk of relapsing with substance use and potential reoffending.
The Minister’s representative asked whether it was relevant that GQHJ told her that he had only used MDMA and cannabis as opposed to additional drugs. Ms Lechner told the Tribunal that the issue is whether he had stopped using drugs, not what he used, and also that he did not want to re-use drugs. She said that risk of reoffending is not increased based on the number of different substances used by a person. Ms Lechner was not concerned that GQHJ did not mention his cocaine use during her assessment; there was no indication that GQHJ had a ‘cocaine use disorder’. Ms Lechner was referred to the sentencing remarks from 2020 in relation to the Robbery Offence, which stated that GQHJ ‘started using the drugs at the age of 15, smoking cannabis, drinking alcohol from the age of 18 and more recently benzodiazepines, cocaine and MDMA’.[46] During her assessment, Ms Lechner asked GQHJ what drugs he had used, and he said cannabis and MDMA. She agreed that GQHJ had not told her about using benzodiazepines, MDMA and buprenorphine. Ms Lechner told the Tribunal that she would have ‘skimmed’ through the sentencing remarks and did not identify this reported additional drug use. She agreed that this additional drug use would be something she would be required to take into account in her assessment of GQHJ.
[46] Exhibit 1, page 47.
Ms Lechner was asked whether the reported incidents in prison involving GQHJ were relevant. She told the Tribunal that they did ‘go into that’, and at times it was ‘extremely difficult’ to stay out of conflict. Ms Lechner said she did not see a history of GQHJ ‘instigating’ violent offending in gaol. He appeared to be in ‘skirmishes’ or fighting, which were not unusual in a prison environment. Ms Lechner told the Tribunal that GQHJ had told her that there was one major incident between ‘Africans’ and ‘Islanders’ and that he was ‘caught up in that situation’. She did not have the incident reports from gaol at the time of meeting with GQHJ. He had indicated to her that he was ‘dragged into that one’ instigated, GQHJ said, by ‘the Islanders’. Ms Lechner was told of only one incident but was not really concerned about the omission of any other incident, and noted that the incidents were described as ‘minor’ and there was no associated ‘disciplinary action’.
The Minister’s representative asked Ms Lechner whether a person who had achieved a ‘high degree of rehabilitation’ would have done a better job of staying away from violence in detention. She said ‘potentially’, but noted that it ‘can be a very volatile environment’. Ms Lechner told the Tribunal that she did not think GQHJ’s involvement in the reported incidents was of his ‘choosing’ and the absence of disciplinary action therefore suggested his involvement was ‘minor’.
Ms Lechner was referred to GQHJ’s evidence to the Tribunal, that the facts as separately recorded by the sentencing Judge and the Police for his offences were not accurate. She was asked whether this was relevant to whether or not he had fully accepted responsibility for his actions. Ms Lechner said that she considered GQHJ had ‘accepted responsibility for his actions however they have been framed’. She opined that everyone in the criminal justice system knows that a person can accept a plea of guilt and there was ‘wriggle room’ in what actually occurred in that offending. Additionally, Ms Lechner noted that GQHJ was a young person trying to put his ‘best foot forward’ and show that he is a good person. Ms Lechner told the Tribunal that, while in some instances there might have been ‘a little bit of minimisation of his level of responsibility’, in the overall scheme of things, GQHJ accepted that whatever happened was wrong, he should not have been involved and was something he did not want to do in the future.
Ms Lechner further stated that GQHJ presented himself in a ‘very genuine’ manner. He made ‘spontaneous comments’ to her regarding where he wants his future to go, he was therefore ‘very genuine’ in what he said and sought to put his ‘best foot forward’. Ms Lechner did not think that GQHJ embellished or minimised matters; he accepted that, whatever happened, it was wrong. She agreed, however, that GQHJ was ‘possibly’ minimising his involvement in the crimes for which he had pleaded guilty.
Ms Lechner did not agree that, if GQHJ was unable to quickly secure employment in the community, this would elevate the risk of reoffending. She said it was subject to the available supports. Ms Lechner did not consider that GQHJ had a violent ideation or intent. Such a person talks about violence as a legitimate way of going about their lives and was full of hostility and anger. This was ‘not evident’ in the way GQHJ spoke, Ms Lechner opined, and he did not think it was a legitimate way of achieving an ends. The Minister’s representative referred to the statement in GQHJ’s Statutory Declaration that he was trying to stay out of trouble in detention, but ‘sometimes even when you are trying to avoid it, there will be someone that pushes you’.[47] Ms Lechner was asked whether this indicated that GQHJ considered violence was inevitable and justified. She told the Tribunal that she did not consider GQHJ thought violence was ‘justified’, but ‘a possible outcome of something’. GQHJ did not have a violent ideation or intent because he was talking about wanting to avoid violence and fighting. Ms Lechner told the Tribunal that when GQHJ was not in a volatile environment, then he would not be in a situation where he feels it is the ‘only option’.
[47] Exhibit 2, page 6.
Ms Lechner was referred to her assessment of GQHJ’s risk of reoffending as being ‘low/moderate’.[48] She told the Tribunal that GQHJ was ‘a bit between’ a ‘low’ risk and a ‘moderate’ risk, but she opined that ‘hopefully he’s on track to moving more towards the low end’. Ms Lechner noted that the different levels of risk of future violent offending in the HCR-20 assessment tool are: ‘low’; ‘low/moderate’; ‘moderate’; ‘moderate/high’; and ‘high’, and all are compared with the average violent offender, not the general population or people who have not committed crimes. In this regard, GQHJ was not on the lowest point of the scale, but second from the bottom at ‘low/moderate’ under this particular assessment tool for risk of future violent offending.
[48] Ibid., page 22.
Ms Lechner told the Tribunal that her finding was based on a ‘structured professional judgment’ considering GQHJ’s presentation, the available documentation and going through each element of the HCR-20 assessment tool used in relation to GQHJ. She said another professional ‘might’ reach a different risk rating for GQHJ, but considered it was likely to be the same given the tool administered. Ms Lechner said that if GQHJ engaged with protective factors it would move him towards the ‘low’ end of the scale. Conversely, Ms Lechner opined, if GQHJ relapses in his substance use, does not address his mental health, isolates from family, and associates with negative peers, this could lead to an increased risk of reoffending. To this end, Ms Lechner said that GQHJ having cut ties to his former peer group, abstinence from illicit substance use, engagement with therapy, family support, and prospective employment were all ‘very helpful’ in his ‘ongoing rehabilitation’. It was put to Ms Lechner that at least some of these pro-social factors were previously present, such as his family.[49] She told the Tribunal that GQHJ had ‘disconnected’ from them, unlike now where he feels part of his family. Ms Lechner was asked whether GQHJ would again remove himself from his family if faced with adverse circumstances. She said there was ‘a chance’, but doubted it ‘very much’, because GQHJ had ‘grown up’ and this was an important factor in how he now sees the world.
[49] Exhibit 1, page 46.
Ms Lechner told the Tribunal she was aware that GQHJ was on parole at the time he committed the Affray Offence and the Assault Officer Offence and that he was required to engage with alcohol and drug treatment. The Minister’s representative asked whether it was a concern that he had not engaged in this rehabilitation. Ms Lechner said that it was not in GQHJ’s best interests to not pursue rehabilitation, however she noted that GQHJ was on parole during the COVID-19 pandemic and ‘a lot’ of treatment was done by telephone or audio-visual link and these modes can be a ‘block to engagement’ for many people. Ms Lechner opined that there was a ‘pretty low chance’ that GQHJ would not engage in treatment in the community. He now understands that engagement is the way to remain ‘out of trouble’ and to ‘not risk’ separation from family in the future. Ms Lechner further stated that sometimes it takes ‘considerable time’, especially for young people, to understand that they will not be given repeated chances; it can be ‘a long road’ to rehabilitation.
Ms Lechner told the Tribunal that GQHJ’s risk of reoffending had reduced during immigration detention because he had matured, engaged with services, and re-engaged with his family. She agreed that, if GQHJ continued to reside in detention, and undertook continued treatment, this risk level could further reduce.
Ms Lechner was again referred to the NSW Community Corrections’ ‘Sentencing assessment report’ from September 2020, which assessed GQHJ as a ‘Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R)’.[50] Ms Lechner told the Tribunal that this would ‘probably’ or ‘most likely’ have been an accurate risk rating at that time. She agreed that if a person offends shortly after such a risk assessment, it could potentially increase that person’s risk of reoffending, but that all factors would need to be considered. The Minister’s representative further referred to GQHJ’s recorded statement from the sentencing assessment report that his offending was ‘an accident’.[51] Ms Lechner did not agree that this statement was concerning in the ‘broader picture’ of how GQHJ presented. Ms Lechner confirmed that GQHJ’s aunt or uncle were important sources of information, but she did not speak with them for her assessment, although she had associated written material.
[50] Exhibit 5, pages 67-70.
[51] Ibid., page 68.

While the Tribunal is satisfied that the effect of the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ) is that indefinite detention of GQHJ is not a legal possibility, the Tribunal finds that the immediate effect of non-revocation of the Cancellation Decision, making GQHJ liable for removal from Australia and the likely subsequent prospect of a further lengthy period of immigration detention following a protection visa application, are factors that weigh in favour of GQHJ and revocation of the Cancellation Decision.
Claimed statelessness
GQHJ contended that he was legally and functionally stateless and ‘does not hold, and could not be granted, citizenship of any other country’.[172] For the following reasons, the Tribunal does not accept this contention and finds that GQHJ is at least eligible or entitled to South Sudanese citizenship and would most likely be considered to already be a citizen of that country.
[172] Applicant’s Statement of Facts, Issues and Contentions dated 3 June 2024, paragraph 69. See also Applicant’s Reply dated 24 June 2024, paragraphs 3-15.
GQHJ was born in Sudan in 2001 and is of Dinka ethnicity. In 2011, the separate country of South Sudan was established.
Under the Sudanese Constitution in evidence before the Tribunal, ‘[a]nyone born to a Sudanese mother or father has an inalienable right to possess Sudanese nationality and citizenship’.[173] However, under the Sudanese Nationality Act 1994 (as amended in 2006, 2011 and 2018), ‘Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan’.[174]
[173] Exhibit 4, page 18.
[174] Ibid., page 33.
In relation to citizenship of South Sudan, subsection 8(1) of its Nationality Act 2011 provides that a person born before or after that Act has entered force shall be considered a South Sudanese National by birth if any parents, grandparents or great-grandparents of such a person were born in South Sudan or such person belongs to one of the indigenous ethnic communities of South Sudan.[175]
[175] Ibid., page 46. See also Exhibit 5, page 145.
Understandably, GQHJ did not have any documentation relating to the places of birth of his parents, grandparents or great-grandparents. He submitted that he thought that his parents were from Abyei which, according to the DFAT report, is a ‘contested region’ between Sudan and South Sudan.[176] Ms B, GQHJ’s aunt, also gave evidence that his mother told her that she was born in that region, but Ms B did not know where GQHJ’s father was born.[177] After GQHJ’s mother died when he was approximately six or seven years old, he and his siblings were taken by his maternal grandmother to live with her in Abyei.[178] Following this, GQHJ recalled that his father took GQHJ and his siblings to live with him and he thought that he also lived in Abyei because he walked between his father’s and grandmother’s residences.[179]
[176] Exhibit 1, page 106. See also Exhibit 2, page 2 and the Applicant’s Reply dated 24 June 2024, paragraph 7.
[177] Exhibit 2, page 13.
[178] Ibid., page 2.
[179] Ibid.
As previously referred to in these reasons, following South Sudanese independence, the Dinka ethnic community was estimated to be the largest in that country, comprising over 35 per cent of the population.[180] GQHJ is of Dinka ethnicity.[181]
[180] Exhibit 1, page 108.
[181] Ibid., page 82.
The article, Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law, produced by the Northwestern Journal of International Human Rights in 2014, relevantly noted that the Dinka is one of the two largest ethnic groups in South Sudan and stated that:[182]
The striking result of Article 8(1)(b) [of South Sudan’s Nationality Act 2011] is that every Dinka and Nuer inside or outside South Sudan will automatically acquire South Sudanese citizenship by operation of law.
[182] Exhibit 5, page 163.
As a result, the Tribunal is satisfied that GQHJ would be considered at least eligible or entitled to South Sudanese citizenship, and most likely would presently be considered to be a citizen of that country, because he belongs to one of its indigenous ethnic communities, the Dinka, being the largest ethnic group in South Sudan. That is, by operation of law, GQHJ would be considered a South Sudanese national. Additionally, GQHJ may have acquired South Sudanese citizenship if any of his grandparents or great-grandparents were born in South Sudan, although the Tribunal accepts that there is no evidence to that effect before it in this proceeding.
To this end, the Tribunal does not accept that, because the region of Abyei is contested between Sudan and South Sudan that this renders GQHJ stateless or at risk of statelessness. On the available evidence, including the Nationality Act 2011 of South Sudan and associated country information, the Tribunal is satisfied that GQHJ is at least eligible or entitled to South Sudanese citizenship. The fact that GQHJ previously resided in the particular region of Abyei does not, in the Tribunal’s view, affect that fundamental right that GQHJ enjoys as a person of Dinka ethnicity. That is, GQHJ is not presently residing or working in Abyei and therefore the reported contest between the two countries as to the citizenship of that region’s residents does not at this time affect GQHJ. Indeed, as referred to by GQHJ’s submissions, in reality, the Dinka’s likely inclusion under the broad category of ‘indigenous ethnic communities of South Sudan’ entitles them to South Sudanese citizenship by right, in turn triggering the loss of Sudanese status.[183] GQHJ also accepted that he may have an automatic right to South Sudanese citizenship by virtue of his ethnicity.[184] In closing submissions, GQHJ acknowledged that South Sudanese citizenship was likely available to him on the basis of being of Dinka ethnicity, although noted that there was no evidence regarding the eligibility requirements for proving or obtaining that citizenship, which the Tribunal discusses further below in these reasons.
[183] Applicant’s Reply dated 24 June 2024, paragraph 10. See also Exhibit 4, page 92.
[184] Applicant’s Reply dated 24 June 2024, paragraph 12.
For the avoidance of doubt, the Tribunal also finds that GQHJ would not be a citizen of his birthplace, Sudan, due to its aforementioned legislation that Sudanese nationality would automatically be revoked where a person acquired, de jure or de facto, the nationality of South Sudan.
The Tribunal has considered the information submitted by GQHJ in relation to the issue of statelessness, including the Australian Human Rights Commission (AHRC) report relating to the ‘arbitrary detention’ of Mr DL and Mr DM v Commonwealth of Australia ([2024] AusHRC 160).[185] That matter involved the indefinite detention of two brothers who it was found during consideration of their respective applications for protection visas could not be returned to South Sudan without breaching international non-refoulement obligations. They were ultimately released from immigration detention following the decision in NZYQ late last year. As previously discussed in these reasons, as a result of NZYQ, there is no prospect of GQHJ being indefinitely detained in Australia.
[185] Exhibit 4, including pages 215-283.
The Tribunal accepts that the delegate in the related protection visa application processes discussed in the AHRC report found that the brothers were ‘stateless’. However, these were separate administrative processes referred to in a report of the AHRC into a separate matter, being arbitrary detention, which is inapplicable to GQHJ following the judgment in NZYQ, the facts were not completely similar to those of GQHJ and it is not binding on the Tribunal. For example, GQHJ was not separated from his extended family during the war, he lived with his grandmother and father and other relatives in the contested region of Abyei and, although contested, therefore did not live his entire life in Sudan prior to his arrival in Australia.[186] In addition, during the earlier visa cancellation process referred to in the AHRC report, the Department had found that one of the brothers was not stateless and was a citizen of South Sudan. The then Minister cancelled the particular visa and the Federal Court and Full Federal Court found no error with that decision.[187] The Minister’s Department also found that the other brother was also a South Sudanese citizen.[188] The then Minister also cancelled that person’s visa, however in the subsequent protection visa application process he was found to be stateless.[189] As a result of this AHRC matter, the Tribunal accepts that the position in relation to GQHJ is not definitive but, based on the evidence and following careful consideration, the Tribunal finds that he would at least be entitled to South Sudanese citizenship.
[186] Ibid., pages 237 and 242-243.
[187] Ibid., pages 235-237.
[188] Ibid., page 241.
[189] Ibid., page 242.
However, the Tribunal accepts that the manner in which to seek and be granted documentation confirming South Sudanese citizenship was not in evidence before it and that this may be difficult for GQHJ to obtain, in addition to the possibility of some associated practical difficulties in GQHJ establishing that he is a South Sudanese national to the satisfaction of the relevant authorities in that country.[190] This includes because of the manner in which GQHJ left Sudan as a young child, his lack of relevant documentation and because his parents were likely not born in the area encompassing that recently established country. However, this does not make GQHJ functionally or legally stateless. The Tribunal has found that he is most likely a South Sudanese citizen by operation of its law and at the least entitled or eligible for citizenship of that country. The prospect of seeking such documentation would only arise if GQHJ becomes liable to be removed to South Sudan under section 198 of the Act because he does not apply for a protection visa or he is found not to be owed protection. The latter eventuality is the only possible scenario of these two, in circumstances where GQHJ has confirmed that he will make a protection visa application following an unsuccessful review in this Tribunal. Conversely, if it is found that GQHJ is owed protection, he would not be removed to South Sudan.
[190] See also Exhibit 4, pages 91 and 110-214.
For completeness, and based on the above findings, the issue of GQHJ’s claimed statelessness weighs neutrally in the Tribunal’s decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
At a general level, the Tribunal is satisfied that GQHJ would face substantial impediments if removed to South Sudan and would have great difficulty establishing himself and maintaining basic living standards, although it may equate to similar standards to what is generally available to citizens of that country. GQHJ left Sudan when he was a young child, he lived in the region of Abyei which is contested between the country of his birth and South Sudan and he has no known network of family or friends to support him in South Sudan. The Tribunal also again notes the matters referred to above in relation to risk of harm, which are also relevant to the extent of impediments and they are not repeated here in an attempt to impart some brevity to these reasons. The Tribunal is satisfied that the impact of the humanitarian situation and ongoing ethnic instability in South Sudan would have a significant impact on GQHJ because of his unfamiliarity with that country and his lack of family or other support.
GQHJ is 23 years old. The evidence before the Tribunal indicated that GQHJ presently has no known physical health issues, although he does have substantial psychological issues that require ongoing and more in-depth treatment, as recommended by Mr Hall and Ms Lechner.
While there was no evidence before the Tribunal that GQHJ could not receive psychological treatment in South Sudan and any other medical support available to all citizens of that country, it accepts that the likelihood of that occurring appears remote based on the country information before the Tribunal. Most specifically, GQHJ would likely have limited or no access to mental health support, including his recommended treatment for various psychological conditions.
The DFAT report stated that South Sudan’s population has ‘extremely poor access to health care’ and accurate data on health indicators is often non-existent or outdated.[191] According to available data, South Sudan ranked 169th out of 187 countries on the United Nations’ Development Programme’s 2015 Human Development Index.[192] South Sudan has an average life expectancy for men of 54.7 years and it is only slightly higher for women. The DFAT report also stated that only 55 per cent of the population have access to improved sources of drinking water, around 38 per cent walk more than 30 minutes one way to collect water, while 80 per cent do not have access to toilet facilities. The ‘health situation has deteriorated further as a result of the worsening conflict and economic situation’.[193]
[191] Exhibit 1, page 109.
[192] Ibid.
[193] Ibid.
Accordingly, while the Tribunal is satisfied that GQHJ’s age and physical health will not likely present impediments in establishing himself and maintaining basic living standards if he is removed from Australia, it finds that his mental health and required treatment will present a significant challenge and therefore weighs heavily in favour of revocation of the Cancellation Decision.
According to the DFAT report, the official language of South Sudan is English. GQHJ can speak that language, but the Tribunal accepts that his level of literacy is not advanced. Additionally, GQHJ can understand aspects of the Dinka and Arabic languages, which are also spoken in South Sudan, but he is not fluent or literate in either language; he does not speak these languages ‘very well’.[194] For example, he told the Tribunal that he finds it difficult to converse in Dinka with his aunt who raised him from a young age. The Tribunal finds that this predicament would present an impediment to GQHJ, and in totality, the language barriers weigh moderately in favour of revoking the Cancellation Decision.
[194] Exhibit 2, pages 7-8.
While the DFAT report noted that Dinka is estimated to be the largest ethnic group and the majority of the population is Christian, both of which are applicable to GQHJ, the Tribunal is satisfied that GQHJ would face some cultural barriers, for many of the reasons outlined above, but predominantly because he has lived in a Western country since he was 12 years old. This also weighs in favour of revocation of the Cancellation Decision.
The Tribunal also accepts that GQHJ will likely face impediments in securing economic support, especially in the form of employment and financial assistance, and that this weighs in favour of revocation. The Tribunal notes that the DFAT report on South Sudan states that its formal economy is ‘extremely weak and underdeveloped’, with 85 per cent of the population undertaking unpaid work.[195] Additionally, in 2015, poverty affected more than half the population, ‘contributing to increasing levels of crime’, and 76 per cent of households survive on subsistence activities and informal trade.[196] In this regard, it was estimated that only 12 per cent of the population are actively employed, but this is difficult to quantify and DFAT assessed the security and economic situation to have deteriorated, with worsened formal and informal employment opportunities.[197] Accordingly, on the available evidence, the Tribunal is satisfied that GQHJ would have limited economic support available in South Sudan.
[195] Exhibit 1, pages 108-109.
[196] Ibid., pages 109-110.
[197] Ibid., page 110.
Accordingly, the Tribunal finds that the aforementioned impediments GQHJ is likely to face if removed to South Sudan weigh in favour of revocation of the Cancellation Decision. However, the Tribunal is satisfied that GQHJ would enjoy the same rights and support available to citizens of South Sudan and would therefore, subject to the above acknowledged impediments, be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens. For the avoidance of doubt, the Tribunal acknowledges that the living standards in South Sudan are poor and maintaining basic living standards is very difficult for many of its citizens.
Having regard to the totality of the evidence and the various factors involved in this consideration, and in circumstances where the Tribunal has not made a finding in relation to whether non-refoulement obligations are engaged, the Tribunal finds that the extent of impediments if removed weighs heavily in GQHJ’s favour and for revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction 110 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that there was evidence of GQHJ having been employed for a period of three months during the approximately 11 years he has resided in Australia, noting again that he is 23 years old and has had periods of time in gaol and immigration detention. Paragraph 9.3 of Direction 110 relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have any such impact and GQHJ made no such submission. Accordingly, the Tribunal finds that this other consideration is not relevant and is neutral in its decision.
CONCLUSION
The Tribunal has found that GQHJ does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of his ‘substantial criminal record’. Following this finding, the issue for determination by the Tribunal was whether there was ‘another reason’ why the original decision to cancel GQHJ’s Visa should be revoked. This required a consideration of Direction 110. The Tribunal has found that there is not another reason to revoke the Cancellation Decision.
The Tribunal is satisfied that Primary Consideration 1, protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, respectively weigh very heavily and heavily against revocation of the Cancellation Decision and outweigh those considerations in favour of GQHJ. Based on its assessment of all relevant considerations, the Tribunal has found that Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, and Primary Consideration 4, the best interests of minor children in Australia, respectively weigh moderately and marginally in favour of GQHJ and that the two other relevant considerations both weigh heavily in favour of revocation of the Cancellation Decision.

On balance, the Tribunal finds that the relevant considerations weighing in favour of revocation of the Cancellation Decision do not outweigh the two relevant primary considerations, which both weigh against revocation of the Cancellation Decision. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 110, Primary Consideration 1, the protection of the Australian community, is generally to be given greater weight than other primary considerations and that primary considerations should generally be given greater weight than other considerations. Accordingly, for all of the above reasons, the Tribunal finds that there is not ‘another reason’ why the original decision to cancel GQHJ’s Visa should be revoked.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958 (Cth).

I certify that the preceding 289 (two hundred and eighty nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 22 July 2024

Date(s) of hearing:

Date final submissions received:

Counsel for Applicant:

27 and 28 June 2024

24 June 2024

Ms Lauren Bull

Solicitor for Applicant:

Mr James Clarke, Gadens Lawyers

Solicitor for Respondent:

Mr James Fyfe, Minter Ellison Lawyers

[2024] AATA 2630

15 July 2024

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction