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

[2023] AATA 3534

GRCF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3534 (30 October 2023)

Division:GENERAL DIVISION 

File Number:          2023/5881

Re:GRCF

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J. Pennell

Date of decision:    30 October 2023

Place:Melbourne

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision and, in substitution, decides there is another reason to revoke the cancellation of the Applicant’s visa.

.......................[sgd]................................................

Senior Member J. Pennell

CATCHWORDS

MIGRATION – Visa refusal – citizen of South Sudan – (Class AH) (Subclass 117) visa  –  Applicant does not satisfy character test– assaults on emergency workers – drug offences– dishonesty offences – driving offences – sexual offences as a minor – diagnosis of PTSD – low risk of engaging in further criminal conduct if allowed to remain in Australia – expert evidence considered – serious offending over a relatively short period – strong strength, nature and duration of ties to Australia – supportive partner and family –  risk of impediments if returned – possibility of permanent detention – reviewable decision set aside and substituted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

CASES
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021 FCAFC 133
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 150
SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

The Lancet ‘Mental Health services in South Sudan’ by Ashok N Singh April 2014. < International, ‘Return to a Displaced Nation- The Sudan Crisis and South Sudan’s Returnees’ by Daniel P.Sullivan and Abdullahi Boru Halake, July 2023.

United Nations Mission in South Sudan, Brief on Violence Affecting Civilians (July – September 2022

United States Agency for International Development, USAID Global Health South Sudan;  < FOR DECISION

Senior Member J. Pennell

30 October 2023

INTRODUCTION

1.This is an application to review the decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant’s relative (Class AH) (Subclass 117) visa (‘the visa’).

2.The Tribunal hearing was held in person on 17 & 18 October 2023 at the Tribunal’s Melbourne Registry. The applicant was represented by Mr Matthew Kenneally of counsel, instructed by Clothier Anderson Immigration Lawyers, and the respondent was represented by Mr Adrian Downie from the Australian Government Solicitor.

3.The applicant is a citizen of South Sudan, born on 1 January 1995. On 21 July 2008, the applicant was granted the visa and arrived in Australia on 13 September 2008. The applicant has been convicted of a number of offences, some of which occurred while he was a minor.

4.On 14 May 2020, the applicant’s visa was mandatorily cancelled under s.501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis (‘the cancellation decision’).

5.On 24 May 2020, the applicant requested revocation of the cancellation decision.

6.On 24 July 2023, the delegate, pursuant to s 501CA(4) of the Act made a decision not to revoke the mandatory cancellation of the applicant’s visa (‘the delegates decision’).

7.By an application dated 11 August 2023, the applicant sought to review the delegates decision.      

8.Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision (‘84-Day Rule’).[1] This falls on 30 October 2023, 10 days after the hearing of this matter. Failure to do so results in the reviewable decision being affirmed by operation of law.

[1] S.501G(1) of the Act.

9.For the following reasons, the Tribunal has concluded that the delegate’s decision should be revoked.

RELEVANT LAW

10.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.

11.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly s.501CA(4) states:

(4)  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.

12.Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

13.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part s 501(6) states:

(6)  For the purposes of this section, a person does not pass the character test if:

(a)  the person has a substantial criminal record (as defined by subsection (7)); or……..

14.Paragraph 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

15.If an applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[2] The Full Court in Bettencourt[3] reflected with approval upon the approach taken in Viane,[4] about how this is determined. Their Honours summarised the following principles at [27]:

(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

[2]     Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).

[3]     Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.

[4]     Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

16.More recently, in Plaintiff M1/2021,[5] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:

22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration.  But the decision-maker cannot ignore the representations.  The question remains how the representations are to be considered.

24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand, and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.  From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.  The weight to be afforded to the representations is a matter for the decision-maker.  And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness.  What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations.  The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations.  The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them.

(Citations omitted).

[5]     Plaintiff M1/2021 v Minister for Home Affairs [2022 HCA 17] (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

Direction 99

17.On 3 March 2023, Direction No.99 Visa refusal and cancellation under s.501 and revocation of a mandatory cancellation of a visa under s.501CA (‘Direction 99’) came into effect. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under s.501 of the Act.

18.Direction 99 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. Paragraph 5.2 of the Direction provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.  In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

19.The primary considerations in making a decision under s.501(1), 501(2) or 501CA(4) are detailed in clause 8 of Part 2 of Direction 99 as follows:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

20.Clause 9 of Direction 99 details other considerations where relevant, that must be considered. These are:

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests.

21.Generally, a decision maker should give greater weight to primary considerations under clause 8 than to other considerations pursuant to clause 9. In Suleiman v Minister for Immigration and Border Protection[6] Colvin J when considering Direction 65 (now Direction 99) stated:

‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations).  It requires both primary and other considerations to be given 'appropriate weight'.  Direction 65 does provide that, generally, primary considerations should be given greater weight.  They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight.  However, Direction 65 does not require that the other considerations be treated as secondary in all cases.  Nor does it provide that primary considerations are 'normally' given greater weight.  Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'.  In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’

[6] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].

22.While his Honours comments were made in relation to the earlier direction, they continue to be relevant in relation to Direction 99.

23.In this case, there is no dispute in relation to the applicant having made representations about the revocation of the cancellation of the visa. As such the requirements of s.501CA(4)(a) of the Act have been met. The issues before the Tribunal are:

(a)does the applicant pass the character test, as defined in s.501 of the Act? If not;

(b)is there another reason why the original decision should be revoked?

APPLICANTS BACKGROUND

24.The applicant is not certain of his date of birth but states he was born in a town , in what is now known as South Sudan, in or about 1995 or 1996.  As a result, he gives his birthday as 1 January 1995.[7]  The applicant is ethnic Dinka and a Christian.

[7]     Applicant’s statement dated 4 February 2021; G.191.

25.When the applicant was born, Sudan was experiencing civil conflict due to tribal fighting. The applicant was orphaned at an early age. His father was killed in the tribal wars when he was an infant and his mother to suspected suicide while in the refugee camp in Uganda. As a child the applicant was exposed for several years to the horrors of a refugee camp in Uganda, including being witness to the murder of his uncle.

26.The applicant was sponsored to travel to Australia by his eldest brother. He arrived in Australia in 2004 on an orphan relative visa as a 13-year-old boy. The applicant had difficulty in establishing himself in Australia and struggled at school. As a teenager he was convicted of a serious sexual offence and served time in youth detention centre. After his release, he was employed in a factory and entered a romantic relationship with Ms AP.

27.Unfortunately, his work ceased upon which he became involved in illicit drugs resulting in him leading a chaotic and self-indulgent lifestyle that involved him committing a series of petty crimes. In the context of his childhood experience in South Sudan and the refugee camps, the applicant has been diagnosed with PTSD.[8] In addition he has twice attempted suicide, once in 2016 by drug overdose and once in 2017 by hanging.[9]

[8]    Psychologist Report Dr Paul Grech dated 12 January 2023, G 330; Report by Pamela Matthews dated 18 February 2019, G 117; report by David Wilshire 14 June 2017, G 317.

[9]     Court of Appeal decision[3], G. 38

28.In January 2018, the applicant was detained for having committed a number of crimes including armed robbery, theft, handling and receiving stolen goods, possession of a controlled weapon and possession of a drug of dependence. In March 2019, the applicant was sentenced in the County Court to a total effective sentence of five years, nine months.[10] On Appeal this sentence was reduced to four years and eight months.[11] 

[10]    G. 83.

[11]  G. 69.

29.The applicant has ceased using drugs[12] and has completed the following courses while in custody: Violence Intervention Program (moderate intensity) and an intensive drug and alcohol course. He also participated in the YMCA ReBuild program in custody.[13]

[12]    Applicant’s Statement, 4 February 2021 [46], G 196.

[13]  Letter dated 14 October 2022 YMCA ReBuild program G 289.

30.The applicant remains in a romantic relationship with Ms AP. Ms AP visits him weekly in detention and telephones him daily. Ms AP’s evidence is that she owns a house in the country, works full time as a Food and Beverage Attendant, and is studying human resources. As such, she is in a more secure position than she was when living with the applicant.[14]

[14]  Statement of Ms AP 2 February 2021 [19] – [22]; G201.

31.The applicant does not have relationships with any family or friends in South Sudan. His siblings are all in Australia.

32.After his release from prison in 2022, the applicant was placed in immigration detention, where he currently remains. His mental state is self-evidently declining. The applicant is sleeping up to 18 hours a day and no longer eating properly.

33.The applicant claims to fear harm in South Sudan as a Dinka man, or returnee from Australia, or person with a mental health condition. The applicant has indicated that if the decision is affirmed, he would apply for a protection visa.

THE CHARACTER TEST

34.Section 501(6) of the Act provides that a person does not pass the character test if they have a substantial criminal record as defined in section 507(7) of the Act. Relevantly, section 501(7)(c) of the Act provided that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

35.The Tribunal was provided a copy of the applicant’s criminal history[15] which is detailed in the table contained in Annexure ‘A” attached to these reasons. The documentary evidence provided indicates that the applicant was sentenced to a term of imprisonment of 12 months or more. The applicant has conceded that he does not pass the character test due to his substantial criminal.

[15]  Victoria Police Criminal record dated 19 May 2020 Supplementary G Docs p. 495

36.Therefore, based on the documentary evidence provided and the applicant’s own admission, the Tribunal finds that the applicant has a substantial criminal record as defined by s.501(7)(c) of the Act. As such, the Tribunal finds that the applicant does not pass the character test and accordingly finds that the requirements of s.501CA(4)(b)(i) are not met.

OTHER REASON TO REVOKE

37.Section s.501CA(4)(b)(ii) of the Act requires the Tribunal to consider those factors in favour or against the cancellation decision in assessing if there is another reason why the cancellation decision should be revoked having regard to the principles and considerations detailed in Direction 99.

38.A failure to comply with a ministerial direction has been held to amount to jurisdictional error.[16] The Direction does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure.[17] It imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4). Nevertheless, the Tribunal must comply with its statutory obligations, in particular s.430 of the Act, to give written reasons that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.' As such any only a material failure by the Tribunal to comply with Direction 99 in making its decision would amount to jurisdictional error.[18]

EVIDENCE

[16]  PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J; Williams v Minister for Immigration and Border Protection [2014] FCA 674

[17]    PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42]

[18]    PQSM v Minister for Home Affairs [2019] FCA 150, at [22] per Colvin J.

Documentary evidence

39.The following materials were taken into evidence by consent at the hearing:

(a)G-Documents numbering 443 pages.[19]

[19]    Applicant’s G Documents.

(b)Supplementary G-documents numbering 567 pages.[20]

[20]    Applicant’s Supplementary G.

(c)Bundle of Country Information numbering 197 pages.[21]

[21]    Applicant’s documents, Bundle of Country Information.

(d)Statements of Mr GRCF dated 22 September 2022, 2 February 2023, and 12 October 2023.[22]

[22]    Applicant Bundle p.16.

(e)Statement of MS AP dated 22 September 2023.[23]

(f)Statement of MR DD dated 22 September 2023.[24]

(g)Statement of Mr AD dated 22 September 2023.[25]

(h)Statement by Mr MP dated 22 September 2023 and 12 October 2023.[26]

(i)Statement of Ms JB dated 22 September 2023.[27]

(j)Statement by Mr AD dated 22 September 2023.[28]

(k)Statement by Mr DM dated 22 September 2023.[29]

(l)Statement by Mr MA dated 22 September 2023.[30]

(m)Letter by Mr JN of Jesuit Social Services.[31]

(n)Report by Robert Cornall AO dated March 2020.

[23]    Applicant Bundle p.22.

[24]    Applicant Bundle p.28.

[25]  Applicant Bundle p.30.

[26]  Applicant Bundle p.32.

[27]    Applicant Bundle p.34.

[28]    Applicant Bundle p.38.

[29]    Applicant Bundle p.41.

[30]    Applicant Bundle p.45.

[31]    Applicant Bundle p.50.

Applicant’s evidence 

40.The applicant is the second youngest in his family.  He has eight siblings, two who have passed away, four brothers and a sister, who live in Australia. The applicant also has a sister, Ms PD, who continues to live in South Sudan. The applicant believed that had died but has recently discovered that she continues to live in South Sudan and suffers from physical and mental issues.[32]  The applicant arrived in Australia when he was around 13 years old. He has not returned to South Sudan or had any contact with the country since his arrival. The applicant has no ties to his country with his surviving family members continuing to reside in Australia.[33]

[32]  Statement of Mr MP dated 12 October 2023; Applicant’s statement dated 12 October 2023.

[33]  Psychologist Report Dr Paul Grech dated 12 January 2023 G. 324 – 325.

41.When the applicant was born, Sudan was experiencing civil conflict due to tribal fighting, by which the applicant’s father was killed.  Initially the applicant mother looked after him in the village in Sudan. However, due to the internal fighting it became too dangerous, and his mother took the applicants three brothers and sister to Uganda.  The applicant was attending school and remained in Sudan with his uncle. When the applicant was about 7 or 8 years of age he was reunited with his mother and siblings in the refugee camp in Uganda. The applicant’s uncle lived with them in the camp. The applicant’s youngest brother Mr DD, was born in the refugee camp in Uganda.[34] 

[34]  Applicant’s statement dated 4 February 2021; G.191.

42.One day the applicant’s mother said that she was going into town but in fact travelled back to Sudan. She never returned leaving the applicant and his siblings with his uncle. The applicant’s evidence was that they were later informed she had committed suicide.[35]

[35] Applicant’s statement dated 4 February 2021; G.191.

43.The applicant’s evidence was that life in the camp was hard. The applicant experienced considerable trauma in both Sudan and the camp including seeing his cousins being recruited to fight; witnessing executions; bomb blasts; and seeing a female friend kill herself to avoid forced marriage. In the camp, his uncle was attacked by people with machetes and killed. The applicant does not know why his uncle was killed.[36]   In this context, the applicant has been diagnosed with PTSD.[37] The applicant twice attempted suicide, once in 2016 by drug overdose and once in 2017 by hanging.[38]

[36]  ibid; Applicant’s statement dated 4 February 2021; G.191.

[37]  Psychologist Report Dr Paul Grech dated 12 January 2023, G 330; Report by Pamela Matthews dated 18 February 2019, G 117; report by David Wilshire 14 June 2017, G 317.

[38]    Court of Appeal decision [3], G. 38.

44.The applicant’s eldest brother, (‘Mr MP’), arrived in Australia in 2004 as the holder of a Global Humanitarian (subclass 202) visa and became an Australia citizen in 2007.[39] Moses sponsored the applicant and his other siblings to join him in Australia. 

[39]  Statement of Mr MP dated 21 September 2023.

45.The applicant arrived in Australia on an orphan relative visa and initially resided with Moses together with his siblings. The arrangement was dysfunctional, and the applicant moved out to live with his sister.[40]

[40] Applicant’s statement dated 22 September 2023 [27].

46.The applicant attended school primary school in rural Victoria for two years. The applicant had difficulty at school and repeated grade 6. He then attended Secondary School until year 10.[41] The applicant’s evidence was that throughout school he had experienced learning difficulties. He had difficulty reading and writing. The applicant’s evidence was that he can now read ‘to an extent’, but his writing remains ‘not good.’[42] While at school the applicant participated in a range of sports including Australia Rules Football, soccer and athletics. His evidence was that he enjoyed play the team environment in playing football. The applicant played football in the junior AFL multicultural league, a result of which some AFL clubs had shown interest in him. However, he never followed up their advances as he did not see football as a career option. Nevertheless, he claims that if his visa is returned to him, he will resume his involvement in sport and in particular football.[43]

[41]  Applicant’s statement dated 4 February 2021; G.193.

[42]   Applicant’s statement dated 4 February 2021; G.191.

[43]    Applicant’s Statement dated 4 February 2021 [17]; G.194 – 195.

47.In 2012, the applicant was found guilty of rape and placed in a youth justice facility from 2012 to around September 2013. As a result, his school life stopped. The applicant’s evidence was that the youth detention had drastic consequences on his life. He was placed with other young offenders who were drug users and had long criminal records. They introduced the applicant to ice and other drugs.

48.Upon release in around September 2013 the applicant lived with his sister, and found employment at a fruit canning company as well as a retail store. In addition, he entered a serious romantic relationship with Ms AP. They were both 18 at the time. Ms AP had recently ‘run away’ from home.[44]

[44]  Statement of Ms AP 2 February 2021 G.201

49.However, the applicant became involved with the wrong crowd and became addicted to methamphetamine, Xanax, and GHB. As a result, he lost his job. He became depressed and tried to take his own life by a drug overdose in 2016 and by hanging in 2017.  In this context, the applicant engaged in criminal offending.[45]  

[45]  Applicant’s Statement dated 4 February 2021 [29] – [40]; G.194 – 195.

50.In September and October 2017, the applicant was charged with several offences relating to drugs and dishonesty related to funding his drug habit, driving offences and assault for which he received two Community Corrections orders.

51.From November 2017 to January 2018, the applicant committed several offences including participating in a robbery of an IGA supermarket in which he threatened the attendant with an imitation gun.[46]  The applicant was detained in January 2018 for the offences, including armed robbery, theft, handling and receiving stolen goods, possession of a controlled weapon and possession of drug of dependence.  In March 2019, the applicant was sentenced in the County Court to 5 years 9 months imprisonment,[47] reduced to four years and eight months on appeal.[48] 

[46]  Applicant’s Statement dated 4 February 2021 [37]; G.194 – 195

[47]    G. 83

[48]  G. 69.

52.The applicant has ceased using drugs.[49] The applicants Prison Drug Test Results Summary indicates that he is abstinent from drugs.[50]  The applicant has completed the following courses while in custody: Violence Intervention Program (moderate intensity) and an intensive drug and alcohol course. The applicant also participated in the YMCA ReBuild program in custody.[51] The applicant has also completed certificate courses in prison including cleaning, traffic control and warehousing. He accepted a cleaning billet while in prison to provide him some work experience.  Finally, in prison the applicant consulted a psychologist and was prescribed antidepressants. However, after a few moths he began to feel better and stopped taking the antidepressant and the seeing the psychologist.  The applicant evidence was that even though he found life in jail to be very hard, the regular routine and being away from the drugs gave him an opportunity to think clearly about his life and to be able to face his issues.[52]

[49]    Applicant’s Statement, 4 February 2021 @ [46], G 196.

[50]    Drug testing results Summary; G.361

[51]  Letter dated 14 October 2022 YMCA ReBuild program G 289

[52]  Applicant’s Statement dated 4 February 2021 @ [47]; G.194 – 195.

.

Applicant’s future plans

53.The applicant evidence is that if his visa is returned to him, he is committed to engaging with mental health support through a doctor or psychologist. The applicant claims that he has contacted Dr Grech for the purposes of preparing a mental health report and providing long term mental health support. The applicant also claims to have received mental health support while in detention which he has found to be helpful. In addition, he had reconnected with the program run by the Jesuit Social Services who assist Africans who have been to prison. The applicant received some mentoring while in prison. The applicant has reconnected with a case worker for the purposes of receiving further assistance.

54.The applicant remains in a romantic relationship with Ms AP. Ms AP visits him weekly in detention and telephones him daily. Ms AP’s evidence is that she owns a house in the country, rents in Melbourne, works full time as a Food and Beverage Attendant, and is studying human resources. As such, she is in a more secure position than she was when living with the applicant.[53]

[53]  Statement of Ms AP 2 February 2021 [19] – [22]; G201,

55.Ms AP’s evidence was that prior to the applicant going to jail they were living together in Melbourne. She was studying Naturopathy. As a result of the applicant going to jail, she was no longer able to afford the rent in and moved to a more affordable apartment.. She ceased her studies and got a job as a Food and Beverage attendant. She has subsequently been promoted to the position of supervisor.   

56.After the applicant went to jail, Ms AP’s father fell ill with kidney and heart failure. She was forced to take on a caring role for her father as he was forced to go onto peritoneal dialysis. To better look after her father, she arranged for her to share a house in western Melbournewith her father and the applicant’s younger brother, MR DD. While looking after her father Ms AP became the head of the household being responsible the household expenses and caring for her father. After her father moved to a nursing home, Ms AP moved back to Melbourne to be closer to work. Her father died in October 2021.  Ms AP inherited her father’s house in country Victoria, which she currently rents.

57.Ms AP’s evidence was that because of her experience with her father, she has realised how important family life is to her. Her evidence was that she sees a future life with the applicant and will stand by him and support him to get work and receive counselling and treatment for his mental health. Her evidence was that if the applicant is released, he will live with her. Her evidence was that if the applicant is released, she will take annual leave to help him re-establish himself in the community.  Her evidence was that she has made enquiries through friends about the applicant obtaining work in the construction industry and has made enquiries with Ramsay Clinic and Foundation House about him receiving treatment for his mental health.[54] Ms AP’s evidence to the Tribunal was that she is hopeful that the applicant will be able to access mental health treatment through a service provided by her work free of charge.

[54]  Statement of Ms AP 22 September 2023 [30]-[31]. G 26

58.The applicant’s eldest brother, Mr MP, currently lives in Bendigo.  He completed a social work degree in Australia and currently works as a youth worker in western Melbourne. He has four children aged 9, 14, 21 and 23.[55] His evidence was that through his work he has the skills and connections with various organisations and support services to help the applicant upon his release into the community. His evidence that he would connect the applicant with various groups including a local Youth Resource Centre and a Centre for multicultural Youth which have experience in dealing with South Sudanese youth.[56]

[55]    Statement of Mr MP dated 22 September 2023 [1] G 32.

[56]  Statement of Mr MP dated 22 September 2023 [10] G 33.

59.The applicant provided the Tribunal with a letter from Kim Metzler of YMCA Victoria dated 14 October 2022[57] that confirms he was engaged in the YMCA ‘Rebuild program within Industries’ at Ravenhall Correctional Centre (‘the RCC program’) from April to June 2022. The RCC program was established to facilitate employment readiness for young people post release by teaching them employable skills such as carpentry, painting, plumbing, plastering, and tiling. The letter commended the applicant’s success within the program and states that subject to him remaining in Australia he would likely be offered employment within the Commercial rebuild Company.[58] 

[57]    Letter by Kim Metzler of YMCA Victoria dated 14 October 2022 G 289.

[58]  Ibid.

60.In addition to Ms AP and Mr MP, the applicant’s brother Mr DD, and his sister Ms AD have both stated that they will support the applicant if he is returned to the community. Mr DD claims that he will assist the applicant reconnect with the community, through the football club, and to find work through his connection with G.B. Recruitment.[59] The applicant sister Ms AD states that in the event he is to remain in the community the applicant will be able to reconnect with her three children. She states that through her involvement in the South Sudanese community support group she willing to assist the applicant by connecting him to services and helping him to find work.[60]

[59]    Statement of Mr DD dated 22 September 2023 [15]-[16] G 29.

[60]    Statement of Ms AD dated 22 September 2023 [11]-[12] G 31.

61.Ms JB,[61] Mr AB,[62] Mr DM[63] and Mr MK [64] have all provided statements to the Tribunal in support of the applicant. They have expressed their support for him upon his release into the community and explained that his past criminal behaviour was driven by his addiction to drugs. They express their concerns for the applicant if he is to remain in immigration detention or returned to South Sudan. Finally, they have explained that the applicant is remorseful of his action and expressed concern and fear about the applicant mental health if he remains in immigration detention or returned to South Sudan.

[61]    Statement of Ms JB dated 22 September 2023 G 34.

[62]    Statement of Mr AB dated 22 September 2023 G 38.

[63]    Statement of Mr MP dated 22 September 2023 G 41.

[64]    Statement of Mr MP dated 22 September 2023 G 45.

Fears of returning to South Sudan.

62.The applicant claims that he is not able to return to South Sudan. He was very young when he left South Sudan and has no family remaining in the country. The applicant evidence is that he has not had any contact with the country since his arrival in Australia.

63.The country is currently at war due to tribal violence. The applicant evidence was that he no longer speaks fluent Dinka and does not have connections or relationships with family or friends in South Sudan. In addition, the applicant does not have any qualifications, work experience or education to be able to find employment in South Sudan. There is a real risk that if the applicant is returned to South Sudan he would be forced into the military and killed. In any event, it is claimed[65] that without the necessary support and guidance the applicant’s mental health would severely suffer causing him to experience severe depression and anxiety leading to a fear that he would take his own life.[66]   

[65]    Statement of Mr MA dated 12 September 2023 [20]-[24]; G 47.

[66]  Ibid.

Expert evidence

64.The applicant provided the following psychological reports in support of his application:

(i)Report by David Wiltshire dated 14 June 2017 (‘the Wiltshire report’)[67] addressed to the Magistrates Court and prepared in response the Courts request for a psychological report on the applicant. Relevantly, it states:[68]

‘[GRCF]exhibited some symptoms of post-traumatic stress disorder (PTSD) related to his past traumatic experiences, and unresolved grief related to the death of his parents is also likely. He reported having dreams about the past, screaming at night during sleep and being very jumpy. He spoke about his hands getting very sweaty when angered but he could not calm himself using breathing. He made it clear that he did not like talking about his past.

(ii)Report by Pamela Matthews dated 18 February 2019 (‘the Matthews Report’).[69] Ms Matthew notes that the applicant exposure to extreme violence and loss of family members are linked to the applicant behaviour and form part of the PTSD symptomatology. The report notes that while the applicant mental health issues which includes his substance use as a PTSD symptom remain unaddressed the applicant remains a high risk of re offending. The report notes that as an emerging adult he required constant therapy over a period of least 5 years.[70]    

(iii)Report by Dr Paul Grech dated 12 January 2023 (‘the Grech report’).[71] This is a Clinical Psychological and Risk Assessment report prepared at the request of the applicant’s representatives. The Grech report notes that the applicant symptoms involving intense emotional distress, anxiety, depression, and sleep disturbance (including regular nightmares), feeling of being unworthy, intrusive and disturbing thoughts and ruminations connected to his experiences as child are consistent with the applicant suffering PTSD the risk of the applicant reoffending is low. The reported stated:[72]

‘..whilst [GRCF] has a history of substance use, some violence and PTSD, he does not possess a violent attitude or harbour violent ideation, he has demonstrated the capacity for maintaining loving and stable family and intimate relationships, his limited history of antisocial behaviour is contextual to contemporaneous substance abuse, his PTSD appears relatively stable even with limited treatment, he demonstrates excellent insight, he is most willing to avail himself to any professional supports and treatments available, and the appears resilient and has been able to cope with extreme stress of longstanding detention . These factors when considered in the circumstances and context of his offending and history suggest Mr [GCRF] is a low risk of re-offending violently.’

ASSESSMENT OF EVIDENCE

PRIMARY CONSIDERATIONS

[67]    Report by David Wiltshire dated 14 June 2017 G313.

[68]  Op Cit G 317.

[69]    Report by Pamela Matthews dated 18 February 2019 G112.

[70]  Op Cit G 117.

[71]    Report by Dr Paul Grech dated 12 January 2023 G321.

[72]  Op Ci p.13 G 333.

Protection of the Australian community from criminal or other serious conduct

65.Clause 8.1 of the Direction states:

(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)Decision-makers should also give consideration to:

a)    the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

66.Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:

(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i)    violent and/or sexual crimes;

(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;

(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

(e)the cumulative effect of repeated offending;

(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

67.The Applicant has accepted that offending is viewed by the Australia community as serious.

68.As a minor the applicant was found guilty of rape and placed in a youth justice facility in 2012.  

69.As an adult the applicants offending has included assaults on emergency workers and others, possession of drugs and prohibited weapons, dishonesty offences driving offences and breaches of judicial orders for which he has variously received prison sentences of up to four months, paced on community correction order, fines and disqualified from driving.

70.In March 2019, the applicant was convicted in the County Court of Victoria of those offences of those offences referred Annexure ‘A’ including armed robbery, robbery, theft, handle stolen goods, possession of drug of dependant (methamphetamine) drive whilst suspended, and careless driving. The offences occurred as follows:

Robbery

(a)On In November 2017, the applicant befriended the male victim while playing the poker machines at a hotel. In the early hours of the morning while leaving the hotel, the applicant threatened to hurt male victim if he did not hand over his winnings. The applicant took $400.00 from the victim but threw $50.00 to the victim to allow him to travel home.

Driving while disqualified and Carless Driving

(b)In December 2017, the applicant drove a motor vehicle while his license had been suspended. During the trip the applicant lost control of the car and collided with another vehicle.

Armed Robbery

(c)In December 2017, the applicant committed armed robbery by holding up an IGA store with an imitation pistol with two co offenders. Police later recovered the wig worn by the applicant during the robbery in a car belonging to a friend of the applicant. The police then executed and recovered the cash draw and donation tin taken from the store.

Handling stolen goods/ Driving while disqualified

(d)In January 2019, police observed the applicant buying a second-hand car in which the applicant produced a stolen driver’s licence, which he falsely claimed to be his brothers. The car was stolen and had been fitted with false registration plates. The applicant later drove the car to an address in Kings Park, Victoria.

Trespass/ Theft

(e)In January 2020, the applicant was observed by police riding a bicycle in Altona. As police approached him, he rode away. The applicant then ditched the bicycle and proceeded on foot into the backyard of a private residence. The owner of the house refused to help the applicant and demanded he leave immediately. As a result, she led him through the residence to the front door. The applicant took the resident’s black mountain bike from her front yard upon leaving.

Possession of controlled weapon/ Possess Drug of Dependence x 2.

(f)The police caught and arrested the applicant after leaving the residence and found a flick knife in his pocket and 22 grams of methamphetamine plus two tablets of Mirtazapine.  

71.The applicant was sentenced to a term of imprisonment of five years and nine months with a non-parole period of three years and six months.[73]  On appeal this was reduced to a term of imprisonment of 4 years and eight months with a non-parole period of two years and six months.[74]  

[73]    G 83.

[74]     G 69.

72.The Tribunal accepts that the totality of the Applicant’s offending and other misconduct is serious. Accordingly, it places significant weight on the applicant offending in favour of not revoking the decision to cancel the applicant’s visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

73.In considering the need to protect the Australian community from harm, the Tribunal has had regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[75]

[75]    Direction 99 at 8.1.2(1).

74.Clause 8.1.2(1) of the Direction provides:

In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. 

75.Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:

(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i)     information and evidence on the risk of the non­citizen re-offending;

(ii)    and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

76.In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[76]  Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

[76]    Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.

77.The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[77] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour) considered the notion of risk and its nexus to future possibility. Her Honour noted:[78]

‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’

[77]  Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[78]    Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

78.If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the threatening nature of the armed robbery committed with a false gun. The Victoria Court of Appeal observed that the victims would have assumed that they faced a real gun, which would have been terrifying.[79]  However, the Court of Appeal noted that while the robbery was ‘a low act’ it was a much less serious. The Court of Appeal also noted that while the applicant had received a sentence in youth detention for serious sexual assault as a child, his convictions as an adult involved mostly drug possession and minor dishonesty, a few assaults and driving offences.[80]

[79]    G 54

[80]    G 54

79.The applicant contends that there is a low risk of re-offending because he has learnt from his mistakes and because he has the support of Ms Page and his family. The applicant expressed remorse for his actions and showed a genuine desire to seek treatment for his mental health issues. In relation to the sexual assault, it occurred when the applicant was a minor. He has been in a long-term relationship with Ms AP and there is no evidence of the applicant having reoffended.

80.The issue of the applicant likely reoffending was assessed in the Grech report as being low. In making such assessment, the Grech report considered the applicant’s history of family support and his intimate relationship with Ms AP. In addition, the report considered the information and evidence of the risk of his reoffending as well as evidence of his rehabilitation. The report noted that there was no compelling evidence of personality disorder or psychopathic traits and that he had demonstrated considerable insight into his offending and developed an understanding of the causes and triggers for his offending.  

81.In respect of the applicant convictions for armed robbery, theft, assault and possession of drugs, the Minister referred to several incidents involving the applicant while he has been in immigration detention as a reason for not accepting that the applicant’s chance of reoffending being low. However, the Tribunal notes that the incident reports have been generated by the Facility Operations Manager without consultation with the applicant or his representative. It was the applicant’s evidence that he has now been in prison and now immigration detention for a long time.[81] The applicant claims that he does not feel respected in detention and is frustrated that he is unbale to be with Ms AP.[82]  

[81]  Applicant’s statement dated 2 February 2023 G 336.

[82]  Applicant’s Statement dated 4 February 2021 [22]; G.194 – 195.

82.The incidents referred to by the Minister in the Tribunal hearing were:

(a)The incident report dated 28 September 2022 records[83] that the applicant became ‘verbally abusive and physically aggressive advancing into the personal space of the Duty manager and stating that he would not be returning to Bass and would be staying with his friends in North.’  The applicant admits was verbally aggressive toward the officer but states that he did so because he did not want to be returned to the protection unit. While the applicant admits his offending was serious, he believes that he has served his time and put a lot of effort into his rehabilitation. As a result, he was frustrated and annoyed by what he perceived as continual punishment for his offences.

(b)In addition, the incident report dated 4 October 2022 reports[84] that the applicant used provocative language towards the catering staff calling them ‘slut sisters.’ In addition, it is reported that upon asking for more food he made further comments to catering staff in which he used the words ‘suck and ‘fuck.’ The applicant denies making any comments to the catering staff as reported. He claims that after having finished their meals, other inmates asked for seconds and were given more food. The applicant claims that he also asked for an extra portion of chicken upon which he was denied. As a result, he expressed his confusion and frustration of having been denied extra food by saying ‘what the fuck’ before walking away. The applicant otherwise denies being aggressive and abusing to the staff of the centre. [85]

(c)The incident report dated 30 August 2023[86] reports that the applicant was involved in a physical altercation with another inmate. The applicant admits that he had a physical altercation with another inmate. However, the applicant evidence to the Tribunal was that the incident only reports him hitting the other inmate, when in fact he had been previously provoked and struck by the other inmate.   

(d)The incident report dated 19 April 2023[87] reports that the applicant involved in an incident in which he tried to pull a door before the officer could close it. As a result, the applicant put his right arm of the officer neck in a choke hold. The applicant released when requested by pushing the officer aside. The applicant’s evidence to the Tribunal was that the incident did happen but claims he thought he was going to be hurt and as a result reacted instinctively to defend himself by pushing the officer against the wall with his arm. His evidence was that he did not mean to harm the officer. He claims to have spoken to the officer after the incident, and that they maintained a good relationship.

(e)In the incident report dated 30 August 2023[88] reports that the applicant and another inmate had a physical altercation, but both refused to explain to officers why. CCTV footage showed a possible verbal altercation after which the applicant stuck the other inmate. The applicant admitted to the tribunal that the altercation occurred but explained that on occasions it was necessary to ‘take care of yourself.’   

[83]  Incident report dated 30 September 2022; Supplementary G Docs G 535.

[84]  Incident report dated 4 October 2022 Supplementary G Docs G535.

[85]    Applicant’s statement dated 2 February 2023 G 336.

[86]  Incident report dated 30 August 2023 Supplementary G Docs G 549.

[87]    Incident report dated 19 April 2023 Supplementary G Docs G 554.

[88]    Incident report dated 13 June 2023 Supplementary G Docs G 561.

83.While the Tribunal accepts that the incidents reported are generally unacceptable, in circumstances where the applicant is in a stressful and confined environment without the support of his partner and family, it is perhaps not surprising that such incidents occur from time to time. While not ideal, the Tribunal does not accept that such incidents indicate any heightened risk to the Australian community if he is released from immigration detention.

84.The Government is committed to protecting the Australian community from harm because of criminal activity by non-citizens. The applicant has committed serious crime but has engaged in rehabilitation while in prison, he is now drug free and has committed to remaining free of drugs and engaging with mental health support. He has does this in the context of expressing his desire for a stable relationship with his girlfriend Ms AP. Ms AP and his family have given their support to the applicant.

85.Therefore, based on the Grech report and the evidence of Ms AP and the applicant’s family members, the Tribunal accepts and finds that upon his release he will be in a very supportive and stable environment and that he is only a low risk of re-offending. While there remains a slight risk that the applicant will re-offend, the protection of the Australian community is a factor that weighs against the applicant, however, the Tribunal does not give it significant weight.

Family violence committed by the non-citizen

86.The evidence does not disclose any family violence within the meaning of the Direction having been committed by the Applicant. This primary consideration carries neutral weight.

The strength, nature, and duration of ties to Australia

87.Clause 8.3 of the Direction provides:

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.

(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a.     The length of time the non-citizen has resided in the Australian community, noting that:

i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

90.Prior to his arrival in Australia, the Applicant experienced extreme trauma in South Sudan and in the refugee camp in Uganda including the death of his parents, his uncle and two siblings. The applicant’s eldest brother, Mr MP sponsored the applicant and his other siblings to join him in Australia on an orphan relative visa. Having arrived in Australia in 2008 when he about 13 years old, the applicant has spent most of his life in Australia, including his formative teenage years.

91.The applicant has eight siblings, all of whom reside in Australia, except for a sister who, until recently was believed to have died. Moses has four children, and the applicant’s sister, Ms AD has three children, all of whom are Australian citizens.  The applicant has not returned to South Sudan since his arrival in Australia and has not maintained any contact with the country.

92.Ms AP gave evidence of her long-term relationship with the applicant despite him having been in imprison and immigration detention. She is financially stable being currently employed by as a food and beverage attendant and having inherited her father’s property which is rented. She gave evidence to the Tribunal of her willingness to find employment for the applicant and to assist him in being treated for his mental health issues. The applicant and Ms AP’s evidence was that they plan to marry and have children. They speak every day, and she visited the applicant each week. The uncertainty of the applicant’s current position has placed great strain on their relationship.[89]

[89]  Applicant’s Statement dated 22 September 2023 [21]-[24] G.19.

93.The applicant siblings including Mr MP, Mr AD, Mr DDDhieu and Amer have all expressed their support for the applicant and a willingness to support and help him if he is released.

94.Based on the applicant’s evidence and the evidence provided by Ms AP and the other members of his family, the Tribunal finds that the strength, nature and duration of the applicant’s ties to the Australian community are very significant and positive. As such, the tribunal concludes that the applicant’s ties to Australia are a significant factor weighing heavily in favour of revoking the cancellation decision.

Best interests of minor children in Australia

95.Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.

96.In this case, the applicant’s brother Mr MP has two children under the age of 18, and the applicant’s sister, Ms AD has three children under the age of 18. her evidence was that as the applicant’s older sister she has been like a mother to him. Her evidence was that while the applicant has been in detention, she speaks to him twice per week. Her evidence was that the applicant is close to her children, in particular her son who is 5 years old. The applicant and that son talk to each other on the phone regularly. The Tribunal accepts the evidence in relation to the applicant contact with his nieces and nephews and gives it some weight in favour of revoking the cancellation decision.

Expectations of the Australian community  

97.Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

98.Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:

…

(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;

99.The Australian community expects non-citizens to obey Australian laws while in Australia. As provided by clause 8.5(1) where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious but, for the reasons set out earlier in these reasons, the tribunal does not consider that there is an unacceptable risk of further re-offending. The Tribunal considers that the Australian community would have a higher level of tolerance of the applicant’s criminal past because he has lived in Australia for most of his life, including during his formative years as a teenager. The applicant has been in Australia since 2008 and putting aside his offences as a child, his offending has taken place over a relatively short period of three to four years. Nevertheless, the expectations of the Australian community is a factor that weighs against the applicant. In all the circumstances, the Tribunal gives it low to moderate weight in favour of cancelling the applicants visa.

OTHER CONSIDERATIONS

100.In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal must consider the “other considerations” listed in Direction 99. These considerations are not exhaustive.[90]

[90] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

Legal consequences of the decision

101.Clause 9.1 of the Direction states:

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

102.The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan. The Tribunal notes and accepts the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.

103.The applicant has not applied for a protection visa but has indicated that he will do so if he is not successful in this application. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:

9.1.2 Non-citizens not covered by a protection finding

(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non­ revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non­-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

104.In Plaintiff M1/2021[91] the High Court provides that the Tribunal is required to read, identify, understand and evaluate the applicant’s representations, including any claims for non-refoulement under domestic law. The Tribunal intends to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. However, that does not mean that the Tribunal ignores the applicant’s representations. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[92] but “one available outcome” is the deferral of the substantive assessment of such a claim.[93]This is consistent with the terms of paragraph 9.1.2 of Direction 99.

[91] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

[92] Ibid.

[93] KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 at [105].

105.In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as the Tribunal has decided to do in this matter.

Applicant’s representations as to risk of harm and statelessness

106.The applicant made representations concerning risk of harm in South Sudan.

107.In Plaintiff M1/2021[94] the High Court has provided the following guidance for this situation:

[37] ... [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.

...

[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.

[94]    Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [37] & [39].

108.CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 (CKT20) provided that the Tribunal is required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20, the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[95]

[95]    CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 at [97] to [106].

109.The applicant said he feared being removed from Australia to South Sudan, where he claimed he could be killed because of the war. His evidence was that if he as returned to South Sudan, he would be homeless and have no family or social support because he does not know anyone in South Sudan. As a returnee from the west with perceived wealth, the applicant claimed he would be a target. The applicant’s father was killed in South Sudan when he was an infant and his mother committed suicide prior to his departure for Australia.  The applicant would likely face a risk of similar treatment if he were returned to South Sudan.

110.The Tribunal has considered the country information provided by the applicant, including the DFAT Country Information Report for South Sudan dated 5 October 2016[96] (DFAT report), Human Rights Watch World Report 20-23 – South Sudan and Amnesty International report 2022/2023- South Sudan.   The country information reports that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law.  It’s reported[97] that after years of war, those returning to South Sudan many of their former homes no longer exist or have been claimed by others. In addition, many areas are without services and there are no opportunities for employment. In addition, returning to some areas can inflame ethnic tensions and disputes.

[96]    DFAT Country Information Report for South Sudan dated 5 October 2016.

[97] Refugees International, ‘Return to a Displaced Nation- The Sudan Crisis and South Sudan’s Returnees’ by Daniel P.Sullivan and Abdullahi Boru Halake, July 2023.

111.The Tribunal accepts that as an ethnic Dinka, the applicant would be at risk of harm from ethnic violence. The DFAT report[98] assesses that with Dinka’s in high conflict areas, there is high risk of social discrimination and violence.  The United Nations Mission in South Sudan reported in February 2023 a significant increase in violent incidents, noting that intercommunal disputes between Dinka sib-clans resulted in 135 casualties.[99]

[98] DFAT Country Information Report for South Sudan dated 5 October 2016 at p.10.

[99] United Nations Mission in South Sudan, Brief on Violence Affecting Civilians (July – September 2022).

112.Based on the country information provided, the Tribunal accepts the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan. It is not in dispute that as a child the applicant left South Sudan and spent time in a Ugandan refugee due to the war prior to traveling to Australia. The applicant would have no family support and other network if removed to South Sudan. This is a factor that weighs heavily in favour of revocation of the cancellation decision. However, in circumstances where it is open for the applicant to make a protection visa application the tribunal gives it less weight.

113.Nevertheless, if the applicant was to make a protection visa application, then he would face a further period in detention whilst any application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence to suggest that re-settlement or the exercise of a personal discretion would be considered. The period of detention the applicant would face pending any protection application is likely to be a number of years and in any view excessive.

114.The applicant’s likely ongoing detention would impact adversely on his already fragile his mental health. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [100] Kenny and Mortimer JJ considered the impact of further detention:[101]

… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end...

[100] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.

[101] Op Cit at [132].

115.The prospect of further detention is a factor that greatly weighs in favour of revoking the cancellation decision.

Extent of impediments if removed

116.Direction 99 requires that the Tribunal consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

117.Clause 9.2 (1) of the Direction provides:

(1) Decision-makers must consider 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.

118.The applicant is in relatively good physical health but has been diagnosed with post-traumatic stress disorder. It’s reported[102] that South Sudan struggles with some of the worst health indicators in the world. After decades of conflict, most of the population lacks access to essential health services, safe water, and sanitation. Mental health services are reported to be in a precarious state. There is only one Hospital in Juba treating mental health. The hospital has limited drugs, twelve beds with one psychologist and two clinical officers treating mental health patients.[103]

[102]United States Agency for International Development, USAID Global Health South Sudan;  < Lancet ‘Mental Health services in South Sudan’ by Ashok N Singh April 2014. < on the available country information, the fact that the applicant left South Sudan when he was a young child, has no network of family or friends to support him in South Sudan and has a limited education, the Tribunal finds that the applicant would face significant impediments if returned to South Sudan. As such, the Tribunal accepts and finds that the applicant would have great difficulty establishing himself and maintaining basic living standards. Further, the Tribunal repeats and affirm those matters referred to above in relating the applicant’s risk of harm being relevant as an impediment to his return to South Sudan. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the applicant because of his unfamiliarity with the country and his lack of family or other support. There would be substantial cultural and language barriers which would create significant impediments on the applicant establishing himself and maintaining a basic living standard in South Sudan.

120.This is a factor that weighs heavily in favour of revocation of the cancellation decision.

Impact on victims

121.Clause 9.3 (1) of the Direction states:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

122.While it may be self-evident to say that the victims of the applicant’s crimes have suffered terribly, there was no evidence presented to the Tribunal of impact on victims within the meaning of the Direction to enliven this consideration, which carries neutral weight.   

Impact on Australian business interests

123.Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.

CONCLUSION

124. The Tribunal has considered the specific circumstances in relation to the applicant. The Tribunal is required to weigh up all the relevant factors to determine whether it is satisfied that there is “another reason” to revoke the cancellation decision.

125.The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision, however, the Tribunal is satisfied that they are outweighed by the countervailing considerations, namely, the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed. While the applicant’s offending was serious, it occurred over a relatively short period. In addition, considering the Grech report and the evidence of Ms AP  and her family members, the Tribunal has accepted that the risk of the applicant re-offending is low and that such a risk of further re-offending is not an unacceptable risk to the Australian community. The applicant is drug free, has expressed remorse for his actions and has expressed desire to seek the necessary treatment for his mental health. He has significant support from his partner, his family and friends who have all given of their intention to assist him find employment and treatment for his mental health. The continued support of Ms AP and his family will keep him free from drugs and away from the negative influences that caused him to stray in the past.

126.The Tribunal has also placed great weight of the fact that the applicant left his country of origin at a young age and has spent most of his life in Australia, including during those formative years as a teenager. He has no contact with South Sudan and all his family remain in Australia.

127.The Tribunal is satisfied that the cancellation decision should be revoked due to the countervailing considerations outweigh the protection and expectations of the Australian community. The applicant’s offending should be seen in the context of his childhood trauma of fleeing a war-torn country and an environment in which he lost focus and turned drugs and then crime. The applicant has engaged in rehabilitative services whilst in prison. The applicant denies some of the incidents that occurred in detention. Nevertheless, the reports do him no credit but are explained by the applicant in the context of him continuing to be confirmed and wanting to be reunited with his partner and family.

128.The applicant has a supportive partner and siblings. His main motivation not to offend is to be with his partner and start a family. In such circumstances, the Tribunal accepts that the applicant will seek the necessary mental health treatment to successfully reintegrate into society.

129.The prospect of further detention is a factor that also weighs in favour of the applicant. Currently, the applicant lives in hope of being released from detention, but in circumstances where he has been diagnosed with PTSD the Tribunal holds grave fears for the applicant’s mental health in the event that he is to remain in detention for an unspecified period of time further removing him from his partner and family members.   

DECISION

130.I am satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to set aside the decision under review and substitute a decision that the cancellation decision is revoked.

I certify that the preceding 130 (One Hundred and Thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Pennell.

…………[sgd]……………………….

Associate

Dated: 30 October 2023

Date of hearing:

17 and 18 August 2023

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Mathew Kenneally

Clothier Anderson Immigration Lawyers

Solicitor for the Respondent:

Mr Adrian Downie

Annexure ‘A’

Court	Date	Offence	Result
Supreme Court (Appeal)	April /2020	·     Appeal Armed Robbery ·     Robbery ·     Intentionally damage Property ·     Handle/Receive/Retention stolen goods ·     Theft ·     Drive Whilst Disqualified ·     Possess Controlled Weapon without Excuse ·     Careless Driving ·     Possess Drug of dependence.	3 Years, 9 months
Country Court	March 2019	·     Appeal Armed Robbery ·     Robbery ·     Intentionally damage Property ·     Handle/Receive/Retention stolen goods ·     Theft ·     Drive Whilst Disqualified ·     Possess Controlled Weapon without Excuse ·     Careless Driving ·     Possess Drug of dependence.	4 years
Magistrates Court	February 2019	·     Contravention of Community Corrections order. ·     Possess Methylamphetamine ·     Fail to answer bail ·     Possess dangerous article in Public Place ·     Commit indictable offence whilst on bail ·     Handle/Receive/Retention stolen goods	Correction order confirmed.
County Court (Appeal)	June 2018	·     Possess Weapon without approval ·     Retention of stolen goods ·     Possess drug of dependence ·     Possess cocaine ·     Assault Emergency worker on Duty ·     Unlawful assault ·     Unlicensed driving ·     Fails to answer bail ·     State false name when required ·     Drive whilst disqualified ·     State false name and address ·     Use unregistered vehicle ·     Use vehicle contravention of defect notice.	4 months. Fine $350.00
County Court	April 2018	·     Drive Whilst disqualified	2 months
Magistrates Court	October 2017	·     Possess Methylamphetamine ·     Fail to answer bail ·     Commit indictable offence whilst on bail ·     Handle/Receive/Retention stolen goods ·     Possess dangerous article in Public Place ·     Exceed 80 speed sign by 25k les than 35k ·     Unlicensed driving ·     Fail to keep safe distance behind vehicle	Community Corrections order (CCO), 12 months $800.00 fine Suspended driving 3 months
Magistrates Court	September 2017	·     Assault Emergency worker on Duty ·     Unlawful assault ·     Fails to answer bail ·     State false name and address ·     Use unregistered vehicle ·     Use vehicle contravention of defect notice.	CCO 15 months
Magistrates Court	March 2017	·     Possess Prohibited Weapon without approval ·     Retention of stolen goods ·     Possess drug of dependence. ·     Possess cocaine	Forfeiture order
Magistrates Court	February 2017	·     Possess Methylamphetamine ·     Possess drug of dependence	Discharged on undertaking.
Magistrates Court	February 2016	·     Possess Prohibited Weapon without approval ·     Unlicensed driving ·     Use unregistered vehicle	Fine $1,000.00 + costs $117.00. Fine $500.00 Fine $300.00
County Court (Appeal)	September 2012	·     Rape ·     Assault and Injuriously Imprison ·     Indecent Assault.	Appeal allowed 2 years, Youth Justice Centre
Children’s Court	April 2012	·     Rape ·     Assault and Injuriously Imprison ·     Indecent Assault. ·     Unlawful Assault	3 years Youth Justice Centre