Guot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Guot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1216 (7 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0933
Re:Guot Makeur Guot
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:7 May 2020
Place:Melbourne

The Tribunal affirms the decision under review.
…[sgd]………………………………………….
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – substantial criminal record – applicant is a citizen of South Sudan – applicant does not pass character test – Ministerial Direction No. 79 – whether another reason to revoke mandatory cancellation of visa – primary considerations – protection of the Australian community – sexual offences – previous immigration warning – expectations of Australian community – other relevant considerations – non-refoulement obligations – strength, nature and duration of ties to Australia – extent of impediments if removed – discretion not enlivened – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s, 33A
Migration Act 1958 (Cth), ss 36, 499, 500, 501, 501CA
Sex Offenders Registration Act 2004 (Vic), s 6
Cases
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Transcript of Proceedings, FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
Secondary Materials
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Commenced 7 September 2017)
Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
7 May 2020
BACKGROUND TO HEARING

The Applicant, Mr Guot Makeur Guot, was born in 1991 in Ethiopia and grew up in Kenya. He is a citizen of the Republic of South Sudan. He arrived in Australia in 2006 with his mother and four siblings as the holder of a Special Humanitarian (Subclass 202) visa. His father was killed in the conflict in South Sudan. In 2017 Mr Makeur Guot was granted a Class BB Five Year Resident Return (Subclass 155) visa (the visa).
On 20 February 2019 a delegate of the Respondent cancelled the visa under section 501(3A) of the MigrationAct 1958 (the Act) on the basis that the Applicant did not pass the character test in the Act on the basis of section 501(6)(e)(i) of the Act, namely that a court in Australia has convicted the Applicant of one or more sexually based offences involving a child.
On 4 March 2019 Mr Makeur Guot made representations to the delegate seeking revocation of the mandatory cancellation of his visa. On 4 February 2020 a different delegate of the Respondent decided not to revoke the mandatory cancellation of the visa. This is the decision that Mr Makeur Guot has brought to the Tribunal for review.
A hearing was held on 29 April 2020. Owing to the current public health emergency, the hearing was conducted by electronic means, as allowed under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Makeur Guot made submissions and gave evidence by video link, and was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers who appeared, also by video link, representing the Respondent.
The Respondent provided the Tribunal and the Applicant with a Statement of Facts, Issues and Contentions. The Tribunal also admitted into evidence a volume of ‘G’ documents collated by the Respondent, which included submissions made by Mr Makeur Guot to the Department of Home Affairs (the Department), other documents relevant to his immigration history, and also submissions made by lawyers who formerly represented him (Exhibit R1).
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation, in this case, of section 501(6)(e)(i) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. At G32, p 255 was a Prison Holding Indent from Corrections Victoria which recorded that on the date the visa was cancelled, Mr Makeur Guot was serving a sentence of full-time imprisonment at Karreenga, Marngoneet Correctional Centre in Victoria.
The Act also provides, at section 501CA(4), that a decision-maker may revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act. It was accepted by the Respondent that Mr Makeur Guot had made representations within the prescribed period.
If the Tribunal finds that Mr Makeur Guot does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see, relevantly, the remarks of North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38]).
Evidence in relation to the character test
Before the Tribunal (G3, pp 24-26) was a Criminal History Check from the Australian Criminal Intelligence Commission dated 26 March 2019. It relevantly records that on 29 May 2015 the Applicant was convicted before the District Court of South Australia of the offence of Unlawful sexual intercourse with person under 17 years. Also before the Tribunal were the sentencing remarks of His Honour Judge Millsteed of that Court, when he passed sentence on Mr Makeur Guot and his co-accused (G6, 59-66). His Honour indicated that he would have imposed a sentence of 10 months and two weeks’ imprisonment for the offence, which he would have suspended, but, as the Applicant had been in custody for one year and three months prior to the Court appearance, the sentence was imposed until the rising of the Court.
The Criminal History Check also records that on 13 February 2018 at Sunshine Magistrates’ Court, Mr Makeur Guot was convicted of the offences of Sexual assault (2 counts) and Indecent act with child under 16, for which he was sentenced to an aggregate term of imprisonment of 179 days, to be served concurrently.
On 12 February 2019 at Melbourne Magistrates’ Court, the Applicant was convicted of the offence of Sexual assault and sentenced to eight months’ imprisonment. The Magistrate also made an order placing Mr Makeur Guot on the Victorian Register of Sex Offenders for life, under the provisions of section 6 the Sex Offenders Registration Act 2004 (Vic).
Finding in relation to character test
On the evidence before me, the Tribunal finds that Mr Makeur Guot does not pass the character test under section 501(3A)(a) through the operation of section 501(6)(e)(i) of the Act, because I am satisfied that he has been convicted of one or more sexually based offences involving a child.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of Mr Makeur Guot’s visa should be revoked.
The Ministerial Direction – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
IMMIGRATION AND VISA HISTORY
As mentioned above, the Applicant was born in Ethiopia in 1991. He has had a turbulent and somewhat tragic early life, which was set out in a 2015 statutory declaration at G12, pp 108-110. Relevantly, and omitting names, the Applicant declared:
My parents and older brother first fled South Sudan to Ethiopia shortly after [my older brother] was born. Whilst in Ethiopia my sister … and I were born. My family returned to South Sudan briefly, but once again had to flee and then … escaped to Kenya in approximately 1994, where [a younger sister and brother] were born.
My father was a Sudanese soldier, and passed away in mid-to-late 1999 in the conflict in South Sudan. He came with us to the refugee camp in Kenya but then returned to South Sudan and we did not see him again. We later learned that he was killed in the conflict.
Whilst in Kenya we applied for refugee status and resettlement in another country. We were then granted permanent residence in Australia on Subclass 202 (Global Special Humanitarian) visas.
We travelled from Kenya to Australia, arriving on … 2006 in Sydney. We then travelled immediately to Tasmania, where we lived for a month with friends [in] Hobart.
In April 2012 Mr Makeur Guot flew with his older brother to Africa to visit their ageing paternal grandmother. He told the Tribunal they had not realised she was still alive and they had learned she had asked to see her grandchildren, which was the reason for the journey. They went to Juba, the capital of South Sudan. After about a month, they returned to Australia. Mr Makeur Guot was taken aside on his return to Australia by Department officers who informed him that the facility to travel on his Global Humanitarian visa had expired while he was overseas. He was granted a bridging visa and informed that he had 28 days to apply for a Subclass 155 (Resident Return) visa.
Mr Makeur Guot declared (G12, p 109) that his brother suggested they go together to the Department offices in Melbourne in order for him to lodge his Subclass 155 visa application, but the Applicant said that was not necessary and he would attend to it himself. His brother then flew back to Perth, Western Australia, where he resides. Mr Makeur Guot travelled to South Australia, looking for work and meeting up with other young men. He forgot to apply for a new visa, “figuring it would not be a big issue since I was back in the country and had no intention of travelling out of Australia in the foreseeable future.”
Regrettably, in South Australia Mr Makeur Guot offended, and pleaded guilty to one count of unlawful sexual intercourse with a person aged under 17 years. He was remanded at Yatala Labour Prison prior to his Court appearance. While there, an officer of the Department visited him and told him that he was an unlawful non-citizen because he did not hold a visa. He was informed that he could not apply for a new visa until he was released from prison. In March 2015 he was bailed. In May 2015 he attended the Adelaide offices of the Department with a pastor who was assisting him to apply for a Subclass 155 visa. He was advised that he had to go into immigration detention, which occurred. He was initially detained at Yongah Hill Immigration Detention Centre (IDC), and then at Christmas Island IDC.
Before the Tribunal (G23, pp 169-180) were letters from the Department dated 11 August 2015, 9 November 2015 and 15 January 2016 to Mr Makeur Guot giving him notice that a delegate of the Respondent was considering whether his application for a fresh visa should be refused under section 501(1) of the Act, on the basis of the conviction in South Australia of a sexually based offence involving a child.
On 22 March 2017 (G24, pp 181-185), the Department wrote to Mr Makeur Guot advising that a delegate of the Minister had decided not to exercise the discretion to refuse the visa application under section 501(1) of the Act. The notice of decision included the following paragraph:
However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you. If you reoffend or receive further convictions your visa may be cancelled and you may be returned to Sudan. It is in your best interests not to reoffend.
It is the visa granted at this time which was cancelled on 20 February 2019.
OFFENDING HISTORY
The Criminal History Check records the following offences in relation to the Applicant.
In May 2011 he was convicted before the Hobart Court of Petty Sessions of two counts of Breach of bail, for which he was fined. In August 2011, at the same Court, he was charged with the offence of Fail to comply with the direction of a police officer, but the document records that that charge remains pending.
In October 2012 at Adelaide Magistrates’ Court, Mr Makeur Guot was convicted of the offence of Produce false evidence of personal detail, for which he was fined. In March 2013 before the same Court, he was charged with the offence of Dishonestly take property without consent, but the matter was adjourned. At Port Adelaide Magistrates’ Court in February 2014, he was convicted of three counts of the offence of Dishonestly take property without consent, one count of the offence of State false personal detail, and one count of the offence of Fail to comply with bail agreement. He was sentenced to seven days’ imprisonment.
On 29 May 2015 at the District Court of South Australia, the Applicant was convicted of the offence of Unlawful sexual intercourse with person under 17 years, as referred to earlier in these reasons. The sentencing Judge provided a summary of the circumstances in his comments passed on sentencing (G6, pp 59-66).
The facts as outlined in Court were that three girls, one aged 14 and two aged 13, skipped school and visited a shopping centre. They were not wearing their school uniforms. Two of the Applicant’s co-offenders, young men, encountered the girls and invited them to drink alcohol with them. The Court viewed closed circuit television footage of the meeting at the shopping centre. They bought some wine and the girls were subsequently invited by one of the co-offenders to continue drinking at his house. Mr Makeur Guot was at the house, with a number of other young male friends. When the group arrived, they all drank together in the backyard and became intoxicated. At one stage the Applicant approached one of the girls, the 14 year old, and then accompanied her to a bedroom. Another co-offender also went to the bedroom. Both the Applicant and the co-offender had vaginal sexual intercourse with the girl. His Honour recorded that they pleaded guilty to the offence of unlawful sexual intercourse.

The Judge recorded that there was no dispute that Mr Makeur Guot and his co-offender thought the victim was aged 18 at the time, and indeed one of the other complainants said she heard the victim telling others of the group she was 18. His Honour stated:
It should be observed that [the victim] looked older than 14 years. Judging from the photographs of her at the shopping centre, which included a close-up, one could be forgiven for thinking, in my opinion, that she was about 16.
The Judge noted that more serious charges had initially been brought but the prosecution eventually accepted pleas of guilty on the charges as agreed, and because of this His Honour decided to reduce the sentence he otherwise would have imposed by 30 per cent.
In November 2017 before the Melbourne Magistrates’ Court, Mr Makeur Guot was convicted of the offence of being Drunk in a public place. He was also fined, without conviction, for the offence of Theft.
Later in November 2017, before the same Court, the Applicant was convicted of the offences of: Attempt robbery; Unlawful assault (2 counts); Robbery; Assault by kicking; Fail to answer bail; Attempt theft; Commit indictable offence whilst on bail; Deal property suspected proceed of crime; and Drunk in a public place. He was ordered to undertake a Community Corrections Order (CCO) for twelve months and perform 100 hours of unpaid community work.
At Perth Magistrates’ Court on 27 November 2017, a warrant was issued for Mr Makeur Guot in relation to the offence of Manufacture, possession, etc of weapons by detainees. This related to a charge of Taking part in a riot. Mr Makeur Guot said this incident occurred when he was at the Christmas Island IDC and that he subsequently served a term of imprisonment in relation to the offence at Albany Regional Prison in Western Australia. The Criminal History Check in relation to these matters was incomplete, but the Tribunal accepts the evidence of Mr Makeur Guot in this regard.
On 13 February 2018, the Applicant was convicted at Sunshine Magistrates’ Court of the following offences: Fail to comply with reporting obligations (5 charges); Commit indictable offence whilst on bail; Contravene a conduct condition of bail; Indecent act with child under 16; and Sexual assault (2 charges). He was sentenced to 179 days in prison on these convictions.
In February 2019, at Melbourne Magistrates’ Court, Mr Makeur Guot was convicted of breaching the CCO imposed in November 2017 and a fresh CCO was ordered for 12 months, to commence on his release from gaol. He was also convicted of the offences of Theft from shop (Shopsteal); Commit indictable offence whilst on bail (2 charges); and Fail to comply with reporting obligations. The cumulative sentence imposed was two months’ imprisonment.
On 5 March 2019 (G5, p 58) Judge Fox of the County Court made a two-year Alcohol Exclusion Order in relation to the Applicant, recognising that, at the time of his conviction for Sexual assault, his intoxication significantly contributed to the commission of the offence. The Order was for the period from that date until 4 March 2021, and bans him from licensed premises (among other things).
ORAL EVIDENCE OF THE APPLICANT
Mr Makeur Guot was asked about the 2017 conviction for Assault by kicking. He confirmed that he was with friends in the city and they assaulted a stranger and stole his sunglasses. He said he was going to kick the victim as he lay on the ground but the police arrived. Although he could not remember kicking the victim, the Applicant accepted that he had been convicted of the offence. He said he was drunk at the time.
Mr Makeur Guot was asked about his 2011 conviction for Unlawful assault and, being granted bail; he agreed that he breached that bail.
In respect of the convictions at Sunshine Magistrates’ Court in 2018 which related to an incident in June 2017, Mr Makeur Guot agreed that he and a companion approached two girls at a bus stop. The girls were aged about 15 or 16. The Applicant was asked if he remembered grabbing the girls on the breasts or buttocks, but he said he could not recall because he was intoxicated at the time. He agreed that he had locked his arms around the girls against the wall of the bus shelter in such a manner that they could not get away for a short period, and told the Tribunal ‘we were just having a conversation, I didn’t think it was serious’.
Mr Makeur Guot said he didn’t have a place to stay at the time and so he was ‘hanging about Sunshine’ and drinking heavily at the time. He said that he had not meant to scare or harm the girls, and if he had touched them in an inappropriate way, it ‘could have been because of the alcohol’.
Mr Orchard then asked the Applicant about an incident in June 2018 on a tram where he grabbed a fellow female passenger on her buttocks. This led to the 2019 conviction for Sexual assault. Mr Makeur Guot said he did not know the woman and was intoxicated and asking her for directions. He said the police stated he had grabbed her ‘in inappropriate ways’. The Applicant said ‘I may have been sleepy or drunk. I don’t know if I grabbed her or not. If I touched her, it was by accident.’
Mr Makeur Guot was taken to his South Australian conviction for sexual intercourse with a child. He said he recalled the Judge’s remarks on sentencing and told the Tribunal ‘I didn’t want to put myself in the same predicament again. It was a terrible situation in prison.’ He conceded that he did go on to commit further offences but said ‘it was the alcohol. No one was there to help me to go back to my normal life.’
The Applicant agreed that he had been placed on the Register of Sex Offenders for life as a result of his 2015 conviction and that he has obligations to report where he goes, when he changes address and when he is living in proximity to children. He agreed that he was subject to a CCO when he committed the assault on the tram passenger. When asked whether he had ever successfully completed a CCO, Mr Makeur Guot said ‘No, I was going around in circles.’
In relation to where he would live if his visa is restored, Mr Makeur Guot said that he would live in Perth, WA, where his older brother resides. He told the Tribunal that other members of his family including his mother and sister had moved from Hobart to Melbourne and that he had thought they would help him when he was there, but he said the police told him he was ‘not allowed’, because of the Register of Sex Offenders obligations, to stay with his mother and his sister (who live together), which led him to being without a permanent home at that time.
The Applicant said that his older brother has three young children, aged approximately 9, 5 and 3. He said that his brother has room at his house and he believes that he can live with them, provided he reports his location to police.
Mr Orchard took the Applicant to submissions his lawyers made in 2015 in relation to representations that he should be granted the visa. Relevantly those representations stated (G37, p 295):
If the Applicant is granted a visa, he intends to move in with his older brother [named] who works as a qualified carpenter in Western Australia. [His brother] has agreed to have the Applicant live with him for as long as it takes for the Applicant to “get his life back on track”. This includes enrolling in further study (the Applicant intends to study Accounting) and staying away from alcohol and inappropriate influences. We submit that, if the Applicant is granted a visa and permitted to re-enter the community, he will not represent a risk to the community as he is no longer engaged in the behaviours which led to his anti-social and unlawful actions.
Mr Orchard said that these commitments, made in 2015, were substantially similar to the oral submissions the Applicant was making before the Tribunal at the hearing. Mr Makeur Guot responded, in relation to his intentions in 2015, that ‘It didn’t happen. That was my mistake. I didn’t follow what has been said. I went back to drinking.’
When asked why he didn’t go and live with his brother, as he had said he would at the time, he said he decided he would first live with his mother for a short time and then go to Perth, but ‘I got into trouble and messed my life up again from there.’
Mr Makeur Guot said that he knows he had made these commitments before, but that alcohol was a big factor in his conduct, he was more mature now and he now understood where he had gone wrong.
In terms of employment, the Applicant said he worked briefly at a vineyard near Launceston before he left Tasmania but agreed that he has not worked since that time, except for some voluntary work at a community centre. He said he had tried to find work when he first moved to Melbourne, and had sent his personal résumé around, but had not been able to secure employment.
The Tribunal asked Mr Makeur Guot about his visit to South Sudan in 2012. He said he had gone there with his older brother to visit their grandmother, who they had learned was living in the family village. He said that she had indicated she would like to see her grandchildren, before the end of her life. As it transpired, the Applicant said he had a fall in a drain in Juba so he had to go to hospital with a fractured knee, and then attend follow up visits to the local clinic. He said he was therefore unable to visit his paternal grandmother. His brother, however, did go to her village for about two weeks to see her. Mr Makeur Guot spent time in Juba staying with friends who he said he knew from when he had been in a refugee camp. He and his brother then returned to Australia and they did not visit any other country. Mr Makeur Guot said that his grandmother had subsequently died.
The Applicant said that if his visa is restored, he will engage with programmes to help control his alcohol intake and would return to complete his secondary education, with a view to seeing what his future could look like. The Tribunal notes that he wrote to the Department (G27, p 192) in December 2019:
If released from detention I will seek a detoxification & rehabilitation programme to address my alcoholism & offending behaviour. My brother is a carpenter & he has offered me employment and with employment I will be able to secure accommodation. It is my intention to be [a] responsible member of the community & to contribute which with some assistance I believe I can achieve.
CONSIDERATION OF THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
This part of the Direction requires the Tribunal to take into account certain principles, including that violent and/or sexual crimes are to be viewed very seriously (paragraph 13.1.1(1)(a)), and that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b)).
The Direction also requires me to take into account the sentences imposed by the courts for a crime or crimes (paragraph 13.1.1(1)(d)), the frequency of a person’s offending and whether there is any trend of increased seriousness (paragraph 13.1.1(1)(e)) and the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)).
Mr Makeur Guot conceded in his evidence that he has committed some forty offences since 2011, and that some of them have been violent. The Tribunal notes that there is a sameness in much of the Applicant’s offending, in particular the large number of times he has been brought back before the Courts in relation to breaches of bail, bail conditions and failing to comply with reporting obligations.
The South Australian District Court Judge had the advantage of evidential material before him in relation to the incident which led to the Applicant’s conviction for unlawful sexual intercourse with a person under 17 years. The Court accepted that Mr Makeur Guot was under the impression that the female with whom he had sexual intercourse was 18, but Judge Millsteed also said (G6, p 64):
…the observations that I made in relation to [a co-accused] apply with equal force to you: you acted recklessly in believing or assuming that she was 18. No doubt intoxication played a significant role in your failure to appreciate her true age.
The reckless element in Mr Makeur Guot’s conduct stems from His Honour’s conclusion, with the benefit of photographs of the victim, that while she may have not looked her young age, she may have looked about 16. The Tribunal notes that, in law, a child cannot give consent to sexual intercourse.
The regrettable factor in Mr Makeur Guot’s conduct is, having faced very serious charges before the District Court, and having been ultimately convicted of a serious charge, he nevertheless went on to commit four more sexually based offences, for which convictions were recorded in Victoria in February 2018 and February 2019. It would seem reasonable to conclude that he learned little, after the relatively lenient treatment he received in relation to the 2015 offending, in respect of how he should conduct himself with other members of society: all of the subsequent offending related to female persons not known to him, who he assaulted after encountering them in public places.
The Tribunal is satisfied that, while some of the offending may not be of the higher range of sexual offending, it is cumulative. I am also am satisfied, in terms of interpreting the Direction, that any sexual assault has, in its nature, an element of violence because it involves unwanted physical contact, sometimes intimate physical contact.
Paragraphs 13.1.1(1)(h) and (i) require the Tribunal to consider whether a person has offended since being formally warned or otherwise being made aware in writing of the consequences of further offending in terms of the person’s immigration status and any crimes committed in immigration detention. In respect of the first of these, Mr Makeur Guot agreed in his evidence that he had been given a notice by the Department when the decision was taken not to refuse his visa in March 2017 stating that any further offending may jeopardise his visa and lead to its cancellation and his removal from Australia.
In respect of the second, crimes committed in detention, there was limited information before the Tribunal, other than a reference to a charge of manufacturing a weapon as a detainee and another charge for taking part in a riot, and evidence proffered by the Applicant himself saying that he had spent time in prison in Western Australia in relation to a crime he had committed whilst in immigration detention. In the absence of further detail, the Tribunal does not weigh this particular aspect heavily.
In the papers before the Tribunal, the representations made to the Department in 2015 by lawyers acting for the Applicant suggested that context was important in relation to his offending. In a statutory declaration, part of which is reproduced at G37, p 294, the Applicant stated:
By the time I arrived at Yatala Labour Prison I had realised that my life had gotten out of control. I had been drinking too much, spending time with people who were a negative influence on me and I wasn’t pursuing my musical career as I planned. It was a real wake up call for me and I began turning my life back around.
Upon my arrest and entry into prison, it finally hit me that I had made poor decisions and I needed to make changed [sic] to get my life back on track. My time in prison was rock bottom for me, but it gave me time to think about my behaviour and what I had done to lead to that point.
What is starkly depressing is that, on release, Mr Makeur Guot resumed offending. While he may have thought about his behaviour whilst in prison in South Australia, it does not appear that reflection led to any resolve to reform his conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Tribunal must assess the nature of harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further conduct of that kind, taking into account the evidence on the risk of re-offending.
Her Honour Justice Mathews, sitting as a presidential member of the Tribunal, stated in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
In the case of Mr Makeur Guot, his disregard for the law is illustrated by failing to heed the message given to him through relatively lenient treatment at his first appearances before the Courts, where his convictions resulted in fines, charges proven but dismissed, and then CCOs. It is also brought into sharp relief, as mentioned above, by what appears to be a casual disregard for the authority of the Courts, and for the conditions and orders imposed upon him.
At G4, pp 27-44 is the remarks of Magistrate, Ms Wakeling, at the Melbourne Magistrates’ Court when the Applicant appeared before her in February 2019. In making orders to place Mr Makeur Guot on the Victorian Register of Sex Offenders for life, Her Honour said (G4, p 40):
I am satisfied that Mr Makeur [sic] represents a risk to the sexual safety to members of the community. I make that assessment having regard to his prior history of sexual offending. The fact that he committed the offences before me today while on a community corrections’ order in relation to sexual offending, I make it also on the basis of the material contained in the community corrections’ assessment which observes that Mr Makeur [sic], while being assessed for the sex offender treatment program was found to be at high risk of further sexual offending by them but also found to be unsuitable for treatment in that program by them as a result of other factors.
So it appears that it is a complex matter to deal with the risks associated with Mr Makeur [sic] and that he is resistant to engagement in rehabilitative treatment from the indications he has given by his non-compliance with past community corrections’ orders and therefore that the risk exists and that it is not mitigated adequately… Accordingly then I make the order for a lifetime period.
(Emphasis added.)
The nature of harm to the community if Mr Makeur Guot engaged again in some of the offending of which he has been convicted would seem to the Tribunal to be obvious. In his sexual offending, in the first and most serious offending, he was reckless about the age of the victim, whom he had only met shortly before (and therefore her capacity to consent). In the other instances, the facts indicate he essentially groped female members of the public he happened to encounter. Regardless of whether intoxication may have been a factor, this is completely unacceptable conduct and it would appear that the Magistrates’ Court in 2019, having the benefit of reading assessment documents which were not before the Tribunal, accepted there was a high risk of him committing further sexual offending.
The explanations for the Applicant’s conduct, repeated several times in his evidence, that he had been drinking and had been ‘in the wrong crowd’ are a mantra that he appears to have repeated, and have had repeated by his representatives, in the past. When asked directly whether he accepted that he must take personal responsibility for his conduct, Mr Makeur Guot offered only some vague intentions to complete his CCO obligations and finish his schooling. There appear to the Tribunal to be no, or few, protective factors operating. Even if I accept the Applicant’s assertions that he would stay with his older brother and his family, as was also his plan in 2015, it would appear that he regards that as a temporary arrangement until he can secure accommodation.

On the evidence, the Tribunal finds that there is a real risk, given his recidivism, of Mr Makeur Guot offending in a general sense, and a high risk of him re-offending in terms of a sexually based crime. Any prospect of such re-offending is an unacceptable risk.
The Tribunal finds that this consideration weighs heavily against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. The Direction states that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ.
In his personal circumstances form, Mr Makeur Guot listed five names of minor children in his life (G9, p 96) and wrote “I do not have much information because I’m still [in] prison.”
At the hearing in response to direct questioning from the Tribunal, Mr Makeur Guot identified the first three names as daughters of his sister who lives in Melbourne, one aged 5 and twins aged 3. He said that he had met the children ‘but police got involved’. It would appear that may have been in relation to reporting his residential arrangements under the Register of Sex Offenders, which he claimed at the hearing that he did.
Mr Makeur Guot said that in relation to the last two names, they were the sons of his older brother, who resides in Perth. He said one is aged 9 and one is aged 5. He also said that there was a third son of his older brother, who he had forgotten to list, who is aged 3.
The Applicant stated that he had met his brother’s two older sons, they had come with their father to visit him in immigration detention in 2015. He had not met the youngest boy.
The Direction states (paragraph 13.2(4)(a)) that the Tribunal must consider the nature and duration of the relationship between the child and the non-citizen and that less weight should generally be given where the relationship is non-parental or there have been long periods of absence or limited meaningful contact.
In respect of the Applicant’s sister’s children, the Tribunal accepts that he has met them and that they live with their mother in Melbourne, but that his relationship with them, given the time he has spent in custody or living in other States, has been one of limited meaningful contact. In respect of the sons of Mr Makeur Guot’s older brother, the Tribunal finds that he has some relationship with the two older boys and accepts that their father took them to visit the Applicant in detention five years ago. He has no relationship (yet) with the youngest child of his brother.
The Respondent submitted that there may be restrictions on the contact the Applicant can have with any of his nieces and nephews because of his obligations under the Register of Sex Offenders. The Tribunal does not find this submission conclusive, because there is no specific detail about whether the reporting obligations, i.e. to advise the police that a person on the register is residing with children, would not be sufficient, which Mr Makeur Guot indicated was his understanding, under the corresponding register in Western Australia (see G5, p 54).
In any event, the Applicant does not perform a parental role in relation to any of the children. In relation to the children of his sister, the Tribunal determines that the best interests of these children are not affected, beneficially or detrimentally, by whether or not the visa is restored.
In relation to the children of the Applicant’s older brother, the Tribunal accepts that the two older children have met the Applicant but that they were very young at the time. The Tribunal determines that the interests of these children are also not affected, beneficially or detrimentally, in relation to the cancellation of Mr Makeur Guot’s visa.
The Tribunal finds, as a whole, this consideration weighs neutrally in this assessment.
Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Federal Court considered this part of an earlier version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185. The wording in the earlier version of the Direction was relevantly the same. In that matter, two of the three judges (Charlesworth and Stewart JJ) held, in separate judgements, that this part of the Direction expresses a ‘norm.’
Their Honours separately decided that it is not for a decision-maker to make his own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not presumptions or values that may be derived by some other subjective evaluative process.
Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(i)non-citizens will obey Australian laws when in Australia;
(ii)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(iii)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour later said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
Recently, the High Court of Australia, considering an application for special leave to appeal this decision, refused special leave. In FYBR v Minister for Home Affairs & Anor HCA Trans 56 (24 April 2020) (Kiefel CJ and Keane J) Her Honour said, for the Court, at [300]:
In our view, there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.
Mr Makeur Guot has accumulated some forty offences before Courts in four States. Five of those convictions related to sexually based offences. The Tribunal finds that the community would expect, in these circumstances, that his visa would be cancelled.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case. In particular, will the Applicant suffer significant harm if the mandatory cancellation of his visa is not revoked, and he is returned to his country of citizenship.
In his personal circumstances form (G9, p 102), in response to the question: Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?, Mr Makeur Guot ticked a box marked ‘Yes’ and wrote:
I’m concern[ed] about my safety if I return to my country. I would be condemn [sic] and most likely being at risk of getting kill[ed].
In answer to the question in the form asking, Are there any other problems you would face if you have to return to your country of citizenship?, the Applicant wrote:
Yes, in that case I would face a lot of problems if I have to return back to South Sudan I would face [persecution] as a deportee or conviction because they would be interested what’s the story behind my deportation.
He wrote, further (G10, p 103) (spelling corrected):
The reason… I’m concerned about my safety and the risk of being in danger when I return to my country as you know the country has been in the war for more than 21 years. Even they say in the media the war has ended and both parties made peace agreement truth on the ground there is a war. I was born in neighbouring country because my parents fled South Sudan due to the civil war. I spent most of my childhood in the camp in Kenya not knowing if we would have made it out of the camp. Deporting me back would be a big loss for my family in Australia and it would put my life in jeopardy. I have no other family left in South Sudan, they are all in Australia.
On 11 January 2020, Refugee & Immigration Legal Centre Inc. wrote to the Department on behalf of the Applicant, and submitted that non-refoulement obligations are owed to Mr Makeur Guot under the 1951 Convention relating to the Status of Refugees (the Refugee Convention), for the following reasons: his imputed political opinion on account of his perceived opposition to armed groups due to his Dinka ethnicity; his race on account of his Dinka ethnicity; and his membership of particular social groups: young men at risk of forcible recruitment by armed groups; persons perceived to be wealthy in South Sudan; persons perceived to be foreign; and returnees from Australia.
The Tribunal must consider claims and the factual material being relied upon in relation to those claims (Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83, at [27]). The submissions made in this respect are generalised about the situation that may face Mr Makeur Guot because of his age, sex, Dinka ethnicity and the fact that he would be arriving from what is perceived to be a wealthy country, which may attract adverse attention.
The Tribunal also notes the more specific information about involuntary recruitment of soldiers and that a young male like the Applicant, who has no connexions with locals, could be vulnerable to this (G28, p 201). However, there is an incongruity between the written submissions of 11 January 2020 in terms of exposure to significant harm, and both Mr Makeur Guot’s oral evidence at the hearing, and the fact that he has voluntarily returned to South Sudan since settling in Australia.
Mr Makeur Guot gave evidence to the Tribunal that he and his brother travelled to South Sudan in 2012. He said that they stayed in Juba with friends who they knew from previously living in a refugee camp. Mr Makeur Guot said that, owing to his knee injury, he did not travel around much while he was in South Sudan, but he did visit the city on one occasion. He told the Tribunal that his brother visited their grandmother in their ancestral village, some unspecified distance from Juba, and stayed there for around two weeks. Mr Makeur Guot said that he has maintained some contact with these friends he stayed with in Juba on social media.
It would seem on the evidence given that Mr Makeur Guot, and his brother, had no apprehensions about travelling to South Sudan for the purposes of family reunion in 2012, when the political situation was more volatile than it is today. The Applicant planned to go with his brother to their grandmother’s village, and was only prevented because of his leg being hurt. He did not present any oral evidence at the hearing that he feared harm there, or that his brother did, either in Juba or when his brother (who shares the other characteristics in terms of age, sex, ethnicity and living abroad as does the Applicant) travelled to and from the village, staying there for around two weeks.
Mr Makeur Guot said in his oral evidence that he was aware from the media that there was still civil conflict in South Sudan, and expressed some concerns about returning there, but when pressed directly by the Tribunal about what his concerns might be, he did not expand on those, other than in a very generalised sense.
On this evidence, even though this oral evidence did not seem to mirror the concerns about the political and social situation in South Sudan made in written representations on his behalf, the Tribunal accepts, especially noting that the Applicant was representing himself, that Mr Makeur Guot may be owed non-refoulement obligations, but is unable to make any more definitive determination on this particular question on the information before it.
The Tribunal notes that the visa which has been cancelled is not a protection visa, and that Mr Makeur Guot has never been refused a protection visa, nor has he held such a visa. It is relevant that the Applicant may make a valid application for a protection visa, where he may make more substantive claims that he is owed international protection by Australia.
On 6 September 2017 the Minister for Immigration and Border Protection (as then titled) made a direction under section 499 of the Act, Direction No. 75. Relevantly, Direction No. 75 states, in Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
[…]
(Emphasis added.)
In short, the Tribunal is satisfied that it is open to Mr Makeur Guot to make an application for a protection visa. If he chooses so to do, he would have the opportunity to expand upon any claims relating to his own circumstances that might invoke Australia’s non-refoulement obligations. I am also satisfied because of Direction No. 75, and section 499(2A) of the Act, that a decision-maker in relation to such an application is directed by the Respondent to carefully assess those claims, before looking to any character concerns.
The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, but that weight is not substantial both because of the Applicant’s voluntary return to South Sudan since coming to Australia, and because there was insufficient material to support the elements of such a claim because the Applicant did not elaborate to any major degree on any fears of persecution or other harm that might befall him if deported.
Strength, nature and duration of ties (paragraph 14.2)
This part of the Direction requires the Tribunal to have regard for how long a non-citizen has resided in Australia, including whether the person arrived as a young child, noting that less weight should be given to ties where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and any of his immediate family who are Australian citizens, permanent residents, or who have an indefinite right to remain in Australia.
Mr Makeur Guot would appear to have the following family in Australia (G37, p 288): his mother, who resides in Melbourne; his older brother and his partner and three children, who reside in Perth; a sister who resides in Melbourne, and has three children; another younger brother and sister whose current location in Australia is not clear. The papers also refer (G2, p 18) to five uncles/aunts, six nieces/nephews and seven cousins, but none of them is named.
The Applicant said that there are family tensions which have affected his relationship with his mother and sister who live together in Melbourne. He did not mention his younger brother and sister in his oral submissions or evidence, but they are referred to in the ‘G’ documents in relation to earlier proceedings. It would appear that he is closest to his older brother who works as a carpenter in Perth; that is the person with whom he planned to live in 2015 (which is corroborated by the brother’s statement at that time), and with whom he said he planned to live if his visa is restored, a plan which appears to be corroborated by his brother’s letter to the Department at G13, p 127 in which he wrote “I can help him to stay with me and help him to find job.”
It is not clear how many of the family members of the Applicant are Australian citizens or, if not, whether they are permanent residents, but the Tribunal considers the better approach is that it should take all of these links into account.
Mr Makeur Guot arrived in Australia in February 2006, when he was aged 14. He attended school in Hobart and states that he completed high school there. His offending commenced, according to the Criminal History Check, sometime in 2011. He told the Tribunal that he did spend some time volunteering at a community centre in Hobart while he was living in Tasmania, and participating in cultural events such as the Multicultural Festival (see G12, p 124). The Tribunal notes that he is keen on music and had plans to develop his skills in that respect. It would appear from some of the earlier testimonials from his time in Hobart that he has some real talent in this area. The Tribunal accepts that there has been some positive contribution to Australia by the Applicant, but there is scant evidence of it continuing after he moved to the mainland around the start of 2012.
The Tribunal notes that just over half of Mr Makeur Guot’s life has been spent in Australia, and all of his adult life. He has family here and a circle of friends here. The two members of his family who he knew in Africa, his father and his grandmother, are now both deceased.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
This part of the Direction requires the Tribunal to consider the impact on Australian business interests if a particular non-citizen’s visa is cancelled, but that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or important service in Australia. Mr Makeur Guot told the Tribunal that he had brief paid employment in northern Tasmania before he departed that State but gave no examples of later employment. The Tribunal does note evidence (G17, pp 133-135) that in 2016 he undertook a number of courses in workplace health and safety, information, digital media and technology and computing while detained, and this is to his credit.
On the basis of this evidence, the Tribunal finds this consideration is not engaged in this assessment, and therefore weighs neutrally.
Impact on victims (paragraph 14.4)
The way this part of the Direction is couched means that this consideration is only relevant where a victim of a non-citizen’s criminal offending is aware of a decision to cancel the person’s visa.
There was no evidence before the Tribunal that this was the case, so this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Direction sets out that the Tribunal must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her ‘home country’, in this case, the Republic of South Sudan, in establishing him or herself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Direction provides that the Tribunal should take into account the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.

Mr Makeur Guot told the Tribunal that his historical knee injury has healed and that he is otherwise physically healthy. He said that he had previously been on medication for low mood and difficulty sleeping, but was no longer on any medication. It is relevant that Mr Makeur Guot stated in his evidence that during his 2012 visit to Juba, he had treatment for his fractured knee at a hospital and, later, follow-up visits to the local clinic, so factually on this evidence he would be able to get at least some access to health care in South Sudan.
Although the Applicant appears to have friends in Juba, the South Sudan capital, with whom he stayed in 2012 and maintains some contact, the Tribunal accepts all his close family is in Australia. The Respondent submitted that Mr Makeur Guot would not face any language or cultural barriers. The official language of the Republic of South Sudan is English, and he expressed himself articulately at the hearing. The Tribunal notes (G16, p 132) that Mr Makeur Guot also speaks Dinka, which is the language of his ethnic group.
In terms of cultural barriers, having only spent one month in the country of which he is a citizen and the rest of his adult life in Australia, the Tribunal concludes that Mr Makeur Guot may be faced with some cultural hurdles, because of his lack of familiarity with local customs and mores. Mr Makeur Guot lived in South Sudan only briefly when a very young child, before the family went to Kenya in 1994 and then came to Australia.
The Tribunal also takes into account that the basic living standards in South Sudan will not be comparable with those in Australia, and although the Direction calls for an assessment in the context of what is generally available to other citizens of that country, not a comparison with Australia, this is relevantly a factor that would naturally present some impediment to Mr Makeur Guot, particularly before he was able to secure employment. He may be able to seek assistance from the friends he has there, with whom he says he maintains some contact, but that is speculation because their capacity to provide support is unknown to the Tribunal.
On balance, the Tribunal finds that because just over half of Mr Makeur Guot’s life and all but one month of his adult life has been in Australia, this consideration weighs in favour of revoking the mandatory cancellation of the visa.
CONCLUSION
The Tribunal has found that two of the primary considerations weigh against the Applicant, one relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs neutrally. Of the other considerations in the Direction, the consideration relating to international non-refoulement obligations weighs slightly in his favour, noting he has further options in that regard. The considerations relating to strength of ties with Australia and the extent of impediments if removed weigh in his favour. The remaining considerations are not engaged and weigh neutrally in this balancing exercise.
The Tribunal is mindful that Mr Makeur Guot’s early family life was characterised by displacement and uncertainty, and then tragedy after the death of his father. It is saddening that, having made an initially good start on settling in Australia with his family, completing his schooling and starting to develop his musical abilities, the Applicant seems to have abandoned that progress and instead embarked on a path hallmarked by crime and, unfortunately, sometimes sexually based crime. The Tribunal accepts, as Mr Makeur Guot put it, he has struggled with alcohol problems and with periods of homelessness, but he has also been given opportunities (more than once) to turn his behaviour around and has consistently failed to do so.
When he returned from South Sudan and found his visa had ceased during his absence, Mr Makeur Guot did not take the opportunity to apply for renewal and then got caught up in serious offending. When he did eventually apply, the correspondence in the papers before the Tribunal show that careful consideration of his representations, and statements made by others in his behalf, was taken into account in the decision not to exercise the discretion under section 501(1) of the Act to refuse to grant the Applicant the visa. That came with a warning that further offending may cause the visa to be cancelled and deportation would ensue.
Mr Makeur Guot wrote (GD, p 105):
Warning from the Department or minister and decision-maker – to take into account
I was aware [from] the warning I was [notified] that I shouldn’t commit any further offences when I was granted a visa BB 155 resident return visa by the Department or minister but I want the decision-maker to consider I was homeless at the time and I was struggling with alcohol problems.
In spite of being so aware of the potential immigration consequences of continuing to offend, Mr Makeur Guot went on, after 2015, to commit some thirty further offences.
The Tribunal takes particular account of the Court’s finding that Mr Makeur Guot is at a high risk of committing further sexually based offences. I also conclude he is at a real risk of committing other offences. There is no evidence of completion of any Court-imposed obligation or of any serious engagement by the Applicant in steps that may assist him back onto the correct path.
Having weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as required by paragraph 6.1(2) of the Direction, the Tribunal finds that the discretionary power provided for in section 501CA(4)(b)(ii) of the Act is not enlivened in this case. In other words, there is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. The consequence is that the Tribunal finds the decision under review not to revoke the mandatory cancellation of Mr Guot Makeur Guot’s visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.
DECISION
The Tribunal decides to affirm the decision under review.

132.

133.    I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

134.

…[sgd]………………………………………………
Associate
Dated: 7 April 2020

Date of hearing:

29 April 2020

Applicant:

By video

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Christopher Orchard

Sparke Helmore Lawyers

[2020] AATA 1216

7 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice