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

GZTC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4429 (4 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4875
Re:GZTC
APPLICANT

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

DECISION
Tribunal:Senior Member M Griffin QC
Date:4 November 2020
Place:Sydney

The Tribunal sets aside the reviewable decision and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
.............................[sgd]...........................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – assault – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – non-refoulement obligations – South Sudan – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP and the Minister for Immigration and Border Protection (Migration) [2017] AATA 775
HZCP and the Minister for Immigration and Border Protection (2019) 273 FCR 121
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
4 November 2020
BACKGROUND

This is a reviewable decision of the Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 13 August 2020 not to revoke an earlier decision to cancel the Applicant’s class XB subclass 202 Global Special Humanitarian visa.
The Applicant was born in 1994 in Sudan and arrived in Australia in November 2003 when he was 9 years old. The Applicant has not left Australia since that time. In 2014 and 2016, the Applicant was sentenced to terms of imprisonment for offences of assault and damage to property.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Migration Act 1958 (Cth) (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by s 501 of the Act; or
(b)
that there is another reason why the original decision should be revoked

(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
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.
Subsection 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 79 which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)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 forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and
(f)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.
Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and a number of other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction No. 79 provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(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 two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(a)the principle that violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended 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; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:
(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 available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction No. 79 provides:
(1) 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 to not 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 principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):
(a)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 Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
Paragraph 14.4 of Direction No. 79 provides:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides that the extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
ISSUES IN THE HEARING
The Tribunal made rulings as to the permissible boundaries of examination-in-chief of the Applicant. The Applicant’s counsel persisted in attempting to transgress that ruling.
Some questions in examination-in-chief were permissible.
When attempting to lead evidence in examination-in-chief from the Applicant, the Tribunal ruled that it was impermissible, either because of the prohibition pursuant to section 500(6H) or repetition of evidence already before the Tribunal was inadmissible because it was, in fact, repetitious and, therefore, irrelevant.
Counsel cited SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 (SZRTN) to support his submission. In fact, he continued to cite the case as authority for his continued attempts at examination-in-chief.
The ruling which the Tribunal made, and referred Counsel to more than once, will be found in the transcript. It was to the effect that it was permissible to lead evidence to put matters already before the Tribunal in context or to explain a matter that was already before the Tribunal.
It is to be noted that counsel did not favour the Tribunal with the actual passage upon which he relied in citing SZRTN, merely referring to the phrase “put flesh on the bones” as a Federal Court authority. Counsel also used the phraseology that he did not want “the Tribunal to be led into error”. Such in terrorem phraseology is unhelpful and inappropriate.
The proposition of admissibility put by counsel was not in fact supported by the learned judge in the case to which counsel referred. The passage, which was in fact obiter, supports the contrary proposition put by counsel.
In SZRTN the relevant passage can be found at 70 per Kratzman J:
The purpose of the scheme in s 500 is to prevent an applicant from changing the nature of the case, catching the Minister by surprise and forcing the Tribunal into adjourning the proceedings: … If the oral evidence does not change the nature of the case and merely puts flesh on the bones, so to speak, it may be doubted whether it can be excluded. There seems to me to be no reason why a witness could not be called to speak to his or her statement, to correct any inaccuracies, to explain any ambiguities, or to elaborate upon certain matters as long as in so doing the witness does not stray outside the subject matter of the material covered in the statement. (emphasis added)
As to the admissibility of evidence already before the tribunal which needed no clarification or correction, his Honour said:
There would, however, be no point in having a witness merely repeat what is said in writing.[1]
[1] SZRTN [70].
The Tribunal notes that counsel did not cite the actual passage.
It is entirely irrelevant whether a Tribunal’s ruling on such a matter is correct. That may properly be the subject of appeal. The Tribunal’s grave concern, in this case, is counsel’s constant attempts to evade the ruling. This is contrary to the proper practice of a member of the bar. Such conduct has the tendency to bring the workings of the Tribunal into disrepute.

Another issue of concern arose during the course of the hearing relating to the status of the “police records”. Those records formed part of the Respondent’s tender bundle. Confusion arose as a result of the failure by the Applicant’s counsel to take a timely and proper formal objection to those documents when they were admitted at the commencement of the hearing. Those documents and their admission were discussed specifically with counsel at the time of admission as Exhibit 3. Mere reference to those documents in counsel’s supplementary outline is not a satisfactory and formal objection. The transcript will reveal the details of this exchange.
Objection was made on the basis that the police records were hearsay. In fact, when counsel made the belated objection at the time when the Respondent’s representative commenced cross-examination of the Applicant on those records, they were marked “Item A” for identification. At that point in the hearing, they were therefore not “an exhibit”. Despite this, Applicant’s counsel continued to make objection, including further objection in written submissions, after the completion of the hearing.
Fundamental principles of the admissibility of evidence permit suitable records and documents which may contain matters relevant to the Applicant’s case, including details of alleged offending, to be used as a tool in cross-examination. The facts contained within those records are not evidence but may become evidence if those facts are accepted by a witness. It is the witness’s acceptance of the propositions put from such documents that is evidence. The Tribunal made a ruling to this effect. The transcript will reveal details of this.
Counsel for the Applicant misapprehended that rule of evidence, and failure to take objection to the police reports at the proper time suggests inexperience, timidity or an attempt to gain some tactical advantage by failing to take objection in a timely fashion. The Tribunal makes no finding as to the reason.
Added to the litany of conduct discussed above, is counsel’s reference in support of inadmissibility submissions which cited HZCP and the Minister for Immigration and Border Protection, at first instance.[2] In supplementary submissions after the hearing, the Respondent submitted that counsel, however, did not refer to the subsequent full court judgement which dismissed the appeal by majority.[3]
[2] HZCP and the Minister for Immigration and Border Protection (Migration) [2017] AATA 775.
[3] HZCP and the Minister for Immigration and Border Protection (2019) 273 FCR 121.
The conduct of the case for the Applicant during the course of the hearing caused unnecessary delays and tension in the hearing itself, particularly as a result of the refusal by counsel for the Applicant to adhere to rulings made in relation to the boundaries of examination-in-chief of the Applicant.
Despite counsel’s conduct, the case for the Applicant emerged during the course of the hearing.
DISCUSSION
Character Test
In accordance with s 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’ and accordingly, he does not pass the character test. This was common ground in the hearing.
The question for the Tribunal is whether it is satisfied that there exists another reason to revoke the cancellation decision.
Protection of the Australian community (past conduct and future risk)
The Applicant and his family fled South Sudan in the midst of substantial conflict and the visa provided to the Applicant recognises that history. As a young child, the Applicant was exposed to violence to an extreme degree. In the Tribunal‘s opinion, this is the subject of opinion by Dr Nathani who concluded that such childhood experiences have affected the Applicant’s youthful and early adult behaviour. That is an opinion which the Tribunal accepts moderates the seriousness of later conduct discussed below.
The Applicant’s parents separated whilst he was still young. He has a number of siblings, as well as three half-brothers who are minors and whose interests are relevant to that consideration.
The Applicant went to school up to year 12 but did not complete that year. He has worked and made some contribution to society although this is not particularly pressed. It is relevant also that the Tribunal accepts not only the personal and character reference given by his future employer, the Tribunal also accepts that this is a genuine offer of work accompanied by a genuine and heartfelt concern for the Applicant and a determination to assist and support him should he remain in the community.
The Applicant has been in trouble since his youth. That is to say, he has committed offences including traffic offences, particularly driving without a licence. The Applicant persisted in this traffic offending conduct and gave an explanation of it in his evidence which shed some light on that offending.
There has been a history of coming to the notice of police in various ways including presence and involvement in violent behaviour. It is the Tribunal‘s view that this is a matter of historical fact and does not count against the Applicant in assessing later criminal conduct.
It was submitted by the Respondent that there was a perceptible increase in misconduct leading to the last two serious offences. I do not entirely reject this submission. Counsel for the Respondent made submissions which were helpful, accurate and based upon principles of fairness. These proceedings are not adversarial. The Respondent’s approach to evidence and submissions was exemplary.
Whilst the Applicant does not come before the Tribunal with an unblemished background of contact with the police or law enforcement generally, nonetheless, it is the Tribunal‘s view that the two offences of assault, which are effectively domestic violence offences, are the most relevant to consider when evaluating the seriousness of the Applicant’s offending and consequential risk of re-offending.
The two offences for which the Applicant was charged in December 2014 and July 2016, for convenience, are referred to as domestic violence. Each of those involved physical assaults on females. The first involved a young woman with whom the Applicant had had a brief relationship. The Applicant was affected by alcohol and assaulted both the female and her cousin.
The Applicant has consistently denied the extent of his offending, although in evidence before the Tribunal, he admitted in questioning that he did kick the female complainant. This admission was perfunctory to say the least and there was a sense that it was reluctantly given, possibly on the basis that he believed he needed to accept responsibility for his past behaviour. I suspect the true position is the Applicant simply cannot remember the full extent of his behaviour. He was sentenced upon the basis provided by the victim and although he appealed against that decision, it was confirmed on appeal. The fact remains that the Applicant ultimately gave evidence of his commission of that offence.
In fact, the Applicant, upon conviction in relation to the second offence, also appealed against that conviction which was also confirmed on appeal. It might be supposed that the act of appealing against a conviction is demonstration of a lack of remorse. I will not, however, act on that basis.
The second occasion concerned the Applicant going to premises where his partner lived and causing damage to the property when she attempted to prevent him from entering. He accepts he punched her a number of times in the head. He was charged with and sentenced for assault occasioning actual bodily harm. I note that there was enormous physical force involved in the damage that was done to the property, including two doors ripped from their hinges. There was, therefore, apparently some restraint exercised in the assault on his partner by the Applicant who received observable swelling and bruising but no further injury. Blood found about the scene was apparently that of the Applicant. In this case, he was sentenced to an effective term of 18 months imprisonment with a concurrent term of six months imprisonment for the damage to property.
By the time the Applicant came to court, he acknowledged that he had a problem with alcohol and had been affected by alcohol when the offences were committed. He said he had little recall of the events.
Aspects of this type of offending are referred to in Direction No. 79. Even without that particular reference, assaulting female partners or friends in a domestic violence setting is particularly unacceptable. I note, however, that there should be some consideration given to Dr Nathani’s opinion as to the effects of childhood violence upon the Applicant. That, in the Tribunal‘s view, goes some way to diminishing the overall seriousness of offending for it renders the offender less culpable. This is a fundamental principle of sentencing in criminal courts and, in the Tribunal’s opinion, a relevant matter to be taken into account in the Applicant’s favour.
What is particularly relevant in this case in respect of the offending in 2016, is that the Applicant’s partner gave evidence about the Applicant generally, her feelings in respect of his unlawful conduct to her and her attitude to the future. Her evidence was singularly impressive and I have no doubt as to its truthfulness and honesty.
The witness spoke of the devastation to her personally and indeed to the Applicant’s family should he be returned to his country of origin. She spoke of their plans for a life together and gave evidence that she would follow him to South Sudan, or somewhere in Africa, to maintain that relationship.
Of significance is the fact that the witness said, having known the Applicant for a number of years, she has seen an identifiable change in his attitude, demeanour and behaviour, including a demonstrated resolve to abstain from alcohol, which the Tribunal views as being at the heart of his offending. This witness spoke powerfully and compellingly, not only about her own attitude, but in a way which made vivid to the Tribunal, her appreciation of the seriousness of the of the Applicant’s past conduct and her belief that the Applicant had changed.
The Tribunal often hears such evidence and, at times, that evidence must be regarded, if not sceptically, at least with some caution.
I have no such concerns about the evidence of this witness. The witness, who is presently undertaking a bachelor’s degree in psychology, demonstrated a more than superficial understanding of the Applicant’s past behaviour and the changes she has observed that he has made.
It is often the case that, for such evidence to be accepted, there should be some objective evidence to support the evidence of real change. In this case, support is to be found in the fact that during the entire period of the Applicant’s incarceration and whilst in immigration detention, there is nothing to be said other than that he has behaved well. The witness, Mr Farquhar, an officer at the immigration centre who was called, gave evidence of the Applicant’s very positive attitude whilst in custody, demonstrative of real change. The Tribunal was impressed with the witness who appeared truthful and the Tribunal accepts this evidence.
Both in prison and in immigration detention, there is the real possibility of poor or even criminal behaviour being demonstrated. This is particularly so where the Applicant has a history of offences of violence. Prisons and immigration detention are places of such intense emotions that that very atmosphere will promote poor or criminal conduct. The Tribunal takes the view that the opposite has been demonstrated by the Applicant in this case. Nor does the Tribunal consider that this conduct, which has occurred over four years, could have been contrived. It would simply not be possible to maintain such contrivance over such a length of time.
Such good conduct, as has been observed in the Applicant, portends well for his future conduct in respect of re-offending and the real likelihood that he is unlikely to be of any great risk of re-offending in the future and as a risk to the Australian community.
The risk factor has been identified by both Dr Nathani and Dr Scuderi who assessed the risk as moderate and low respectively. The assessment of risk is an inexact science, no matter what particular scientific tests are applied to that assessment. Far better is empirical evidence. In this case, it is the Tribunal’s assessment that the Applicant is of low risk of offending in the future and low risk to the Australian community, based upon the Applicant’s conduct in custody and detention together with the assessment of those who speak of real change in his behaviour.
Recognising the seriousness of the Applicant’s past conduct, the ameliorating consideration of his childhood trauma and the prospects of future good behaviour, this consideration ultimately carries little weight against the Applicant.
Best interests of minor children in Australia
The Applicant has a large number of siblings and half-siblings. Most of those have gained their majority although it is apparent from evidence provided to the Tribunal and given orally by the Applicant that he claims to have a close relationship with his entire family as well as his parents and extended family members. As to minor children, there are three half-brothers, all of whom are under 12 years of age, although the interests of each minor child should be considered separately.
In this case, the evidence was such that it is convenient and proper to discuss their interests collectively. On the evidence, there was no real distinction amongst those three half-brothers apart from their ages.
The Applicant had a close association with them when they were very young children because they lived in the same town. The mother then moved with the half-brothers to Melbourne and from that time, that is, for a number of years including the time the Applicant has been in prison and immigration detention, he has had a little face-to-face contact with those children.
It is relevant to consider (where there is evidence to support the proposition) that there is a cultural foundation for the Applicant’s relationship with those relevant minor children and indeed other members of his family. The Tribunal accepts there is a cultural foundation for the relationship the Applicant has described.
The parents separated when the Applicant was young, soon after the family had arrived in Australia. On the evidence, which the Tribunal accepts, the Applicant has assumed a patriarchal role in the family, most particularly in relation to those young boys. He is regarded by them as a father figure and regards himself in the same light.
The Tribunal accepts this evidence. The evidence disclosed that there were various forms of electronic contact, including phone contact, with the half-brothers, and the Applicant considers himself a significant person in their lives, interacting with each boy differently dependent upon the child’s age. He provided presents to them on occasions and they went on outings when he met them.
This paternal role is accepted by the Tribunal, particularly against the cultural background of the Applicant and his family members.
On the whole of the evidence related to this topic, the Tribunal is satisfied that the interests of the minor children are best served by the Applicant remaining in Australia. As to the Applicant’s position, the Tribunal is likewise satisfied that it would be appropriate for him to be a role model for these children. This latter aspect is relevant to his ties to Australia.
The Tribunal is, therefore, of the view that this consideration weighs strongly in favour of the Applicant and revocation of the refusal.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at 13.3(1).[4]
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185, [68] (Charlesworth J), [93], [100]-[104] (Stewart J).
In this case, the Tribunal has considered the seriousness of the Applicant’s offending history together with the risk of his re-offending. Those matters, taken into account with all other personal circumstances relating to the Applicant, including those circumstances put forward by him in submissions which are in his favour, do not negate the expectations of the Australian community which require that this consideration weighs against the Applicant. There is no reason in the Applicant’s personal circumstances to displace this prima facie approach.
The Tribunal rejects the submissions made by the Applicant’s counsel as to the application of the relevant law concerning this consideration. Those submissions are based on a misapprehension as to the application of this consideration as it has been fully and clearly enunciated by a number of decisions of the Full Court of the Federal Court and the Federal Court. (See, for example, FYBR v Minister for Home Affairs [2019] FCAFC 185.)
Having regard to the phraseology of Direction No. 79, it is impossible to accept anything other than that this consideration, because of the Applicant’s criminal history, weighs against the Applicant.
Other considerations
International non-refoulement obligations
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.
Non-refoulement loomed large in this hearing. The parties were invited to make further written submissions after the hearing had concluded.
It is immediately apparent, at least in this case, that factual determinations concerning non-refoulement obligations and the impact of those on the Applicant are equally relevant to the consideration of impediments to the removal of the Applicant. It may be that the very same factual considerations are explored within both of those considerations and weight ultimately apportioned by the fact-finding exercise.
While the same facts may be relevant to one or more considerations, that does not mean that there is a type of “double accounting”. The consideration of various factors as required by Direction No. 79 is not based upon a mere mathematical exercise.
Despite the right of the Applicant to apply for a Protection Visa, the Tribunal is of the view that the non-refoulement principles apply and are engaged in this case. The Tribunal is satisfied that there is satisfactory evidence to support the submission by the Applicant that he is owed relevant protection which weighs strongly in the Applicant’s favour.
The Tribunal recognises that the Applicant may avail himself of the right to apply for a Protection visa and this will be taken into account by the Tribunal in assessing this consideration.
The Tribunal does not accept the Applicant’s submissions that the mental health of the Applicant, which would be detrimentally affected by return to South Sudan, is a consideration relevant to the assessment of the non-refoulement obligations. The factual basis for this submission is accepted by the Tribunal. However, this is a relevant factor to be taken into account in the consideration relating to impediments to removal. This is discussed below within that consideration.
In further written submissions authorised by the Tribunal and provided by both parties for the assistance of the Tribunal, the Applicant referred to an article in the New York Times, dated 11 August 2020. The Respondent argues that this evidence is not before the Tribunal and offends against the provisions of s 500(6J). The Tribunal, therefore, will take no account of those submissions but notes, once again, the Applicant’s counsel is attempting to evade the prohibition in that subsection of the Act.

It is common ground that the Department of Foreign Affairs and Trade reported that Dinkas were an at-risk group with respect to social discrimination and violence. That report was completed in 2016. Although there has apparently been a lessening of hostilities and violence as a result of a ceasefire, nonetheless, on all the evidence, the Tribunal is prepared to accept that the Applicant is a member of a class who is likely to be affected by high levels of violence and criminality.
It is said that because the Government in Juba is now Dinka-controlled, the Applicant’s concerns, and the reality of him being safe, is better than in 2016.
The Tribunal does not accept this evidence insofar as it suggests the Applicant is, in fact, in a safer position. There is, on the evidence, still a violent society into which the Applicant would be placed if his visa remained revoked. His Dinka ethnicity is relevant. Furthermore, the Tribunal accepts that not only has the Applicant, by the use of social media, been critical of the government and society in general in South Sudan, but it is more than likely that because of his identification by nickname and his uncle‘s surname that he would be noticed, identified and targeted. The Tribunal is prepared also to give some weight to the “hearsay“ accounts of family members, including the Applicant himself, as to the present unstable situation in South Sudan which would affect the Applicant’s safety.
The Tribunal accepts that the Applicant has a subjective and genuine fear of harm coming to him should he be sent to South Sudan.
The Tribunal does not take into account evidence of the Applicant’s cousin who was said to have been subjected to violence. Although this may be correct, the evidence does not go as far as to suggest the violence perpetrated was the cause of his ethnicity.
The Tribunal is satisfied that non-refoulement obligations, on the evidence, have been engaged, and this consideration weighs strongly in the Applicant’s favour.
Strength, nature and duration of ties
The Applicant has lived in Australia since the age of nine. All his family reside in Australia. The Applicant went to year 12 although he did not complete that level of education. He has made friends in Australia, two of whom gave warm and honest evidence before the Tribunal. The Tribunal notes that the Applicant has been offered a job by one of those witnesses, although that fact is not presently relevant to this consideration.
All the evidence before the Tribunal points to the Applicant having strong ties to Australia and this consideration, therefore, weighs in the Applicant’s favour
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
In this case, there is evidence of a relevant victim. Reference has already been made to the Applicant’s partner who is also a victim in the 2016 offending. Her attitude to the Applicant and his commission of the offence against her has been discussed.
This victim would be devastated should the Applicant be returned to South Sudan. That is so because the Tribunal finds the relationship between the two parties deep, genuine and loving. This consideration weighs strongly in the Applicant’s favour.
Extent of impediments if removed
This consideration weighs heavily in the Applicant’s favour. The Applicant has lived in Australia since the age of nine. All his family members are living in Australia, including three minor children who are his half-brothers, his half-sisters, his mother, and his partner, whom the Tribunal considers is in a genuine relationship with the Applicant. His life presently is in Australia.
The Applicant speaks very little of the Dinka language and, as has been referred to earlier, is likely to be the subject of unwanted and violent attention of other countrymen. The Tribunal finds South Sudan is in a parlous state, socially and politically. Any person living in that country would be living in a dangerous environment.
On the evidence, it is the Tribunal’s view that the Applicant is likely to have difficulty obtaining work and supporting himself should he be returned.
The Tribunal is satisfied that the Applicant’s mental health will suffer seriously should he be returned to South Sudan. The very removal of him from his loved ones, including his partner, and returning him to and placing him in an environment beset with possible violence is evidence the Tribunal accepts which supports the mental health concerns.
His use of social media is likely to cause him to be recognised in South Sudan by virtue of facial recognition and by the “nickname“ by which he is known. The Applicant’s criticism of South Sudan politically and socially will attract adverse attention and there is a possibility of violence to him on account of that criticism.
These are the major features which the Tribunal takes into account. This consideration weighs strongly in the Applicant’s favour.
CONCLUSION
The seriousness of the Applicant’s offending is, in the Tribunal‘s view, somewhat ameliorated by the experience of childhood violence. The likelihood of the Applicant re-offending in the Tribunal’s view is relatively remote, particularly having regard to the objective evidence of change in the Applicant’s behaviour and appreciation of those factors which affected his offending.
There is a preponderance of weighty features in favour of revocation of the Delegate’s decision. These factors include the non-refoulement consideration and the impediments to removal of this Applicant to South Sudan. The Applicant’s ties to Australia, the length of time he has lived in Australia, and the presence of minor children add to these positive factors.
In the result, it is the Tribunal’s view that the decision of the Delegate should be reversed and the Applicant’s visa be reinstated.
DECISION
The Tribunal sets aside the reviewable decision and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...............................[sgd].........................................
Associate
Dated: 4 November 2020

Dates of hearing: 20 and 21 October 2020

Date final submissions received: 26 October 2020

Counsel for the Applicant: Mr J Tito

Solicitors for the Applicant: Asylum Seeker Resource Centre

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor

[2020] AATA 4429

4 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	20 and 21 October 2020
Date final submissions received:	26 October 2020
Counsel for the Applicant:	Mr J Tito
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Solicitors for the Respondent:	Ms D Watson, Australian Government Solicitor