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

[2022] AATA 1436

HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436 (11 May 2022)

Division:GENERAL DIVISION

File Number:          2022/1500

Re:HDTY   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date of Decision:               11 May 2022

Date of Written Reasons:      1 June 2022

Place:Brisbane

The decision under review was affirmed on 11 May 2022

...........................[SGD].............................................
Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – kidnapping where victim suffers grievous bodily harm – receiving country South Sudan – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

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

SECONDARY MATERIAL

Department of Foreign Affairs and Trade, DFAT Country Information Report South Sudan, 5 October 2016

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),74-114.

Nationality Act 2011 (South Sudan) Government of South Sudan, 7 July 2011

United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), “Distribution of Ethnic Groups in Southern Sudan”, 24 December 2009 – referenced in Department of Home Affairs Country of Information Services Section “Resource Guide 2020, South Sudan”, (published under the Freedom of Information Act 1982 (Cth)), < Nations Security Council (UNSC), “Situation in South Sudan – Report of the Secretary-General”, (26 February 2020); UN Doc S/2020/145 4; < FOR DECISION

Senior Member R Bellamy

1 June 2022

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant was born in 1993 in what is now South Sudan. He came to Australia on a Class XB Subclass 202 Global Special Humanitarian visa (“visa”) in October 2006 when he was 13 years old. His visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.

2. On 7 October 2020, the Applicant was sentenced to a term of imprisonment of 42 months and 22 days imprisonment with a non-parole period of two years. Under s 501(6)(a) of the Migration Act 1958 (Cth) (“the Act”), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. Accordingly, the Applicant had a substantial criminal record and therefore he did not pass the character test.

3. On 9 November 2020, while the Applicant was serving that sentence of imprisonment, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act on the basis that he did not pass the character test and he was serving a full time custodial sentence.[1] On 30 November 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] Revocation of the mandatory cancellation of visas is governed by
   s 501CA(4) of the Act. Relevantly, this 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.

   [1]     Exhibit G1, G2 page 76 to 83.

   [2]     Exhibit G1, G9, pages 43 to 46.

4. On 16 February 2022 the Respondent decided not to revoke the cancellation.[3] On 22 February 2022 the Applicant lodged an application in this Tribunal for review of that decision.[4] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

   [3]     Exhibit G1, G4 page 17.

   [4]     Exhibit G1, G2 pages 3 to 8.

5. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should revoke the original decision.[5]

   [5]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

6. The hearing of this application took place on 26, 27 and 28 April 2022. The Applicant gave evidence via video conference. Four of his friends gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

7. In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[6]

   [6]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

8. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.

9. Those principles may be briefly stated as follows:

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

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

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

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

10. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

11. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

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

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

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

12. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

13. I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.

14. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

15. The Applicant was born in what is now South Sudan. According to him, his father was a militia soldier, and his mother abandoned the family when he was an infant, but he re-established contact with her in around 2018. When he was six years old, he moved to a refugee camp in Egypt with his father and younger brother.[7] In October 2006, at the age of 13, he moved to Australia with his father, brother and stepmother. They initially lived in Sydney, then moved to Canberra in 2011.

    [7]     Exhibit G1, G7, page 37, paragraph 25.

16. On 2 October 2019 the Applicant committed a very serious offence being “Kidnap person who suffers GBH at time.” The maximum penalty was 20 years imprisonment. This was not the Applicant’s first offence. He had previously exhibited some anti-social behaviour and committed offences in four previous offending episodes, detailed below.

17. In September 2009, the Applicant was caught driving without a license.[8]  

    [8]     Exhibit R2, S3, page 297.

18. In 2010, when the Applicant was 16 years old, he was involved in an offending spree over the course of around four hours. In the early hours of 20 March 2010, two associates of the Applicant grabbed a pedestrian by his throat and demanded his wallet. The Applicant approached and also demanded the victim’s wallet, then took the victim’s wallet and mobile phone from his pocket. He and one of the other offenders pushed the victim against a fence. Over the next few hours, the Applicant and his co-offenders used a credit card that was in the victim’s wallet at a petrol station and a 7-Eleven store, then they went to another 7-Eleven store. The Applicant acted as lookout while his two associates robbed the store, putting the cashier in a headlock, punching him in the face and taking $700 from the till.[9]  The Applicant was subsequently (in 2014) found guilty of two offences of robbery in company and three offences of dishonestly obtaining property by deception and sentenced to two years of probation.

    [9]     Exhibit R2, S8, pages 411 to 416.

19. In 2012, the Applicant collided with a parked car in a carpark, while driving under the influence of alcohol and without a license. He was later convicted and fined and had his license disqualified for three months.

20. His fourth offending episode occurred in 2016 when he was no longer a minor. He was convicted of commit public nuisance, possession of dangerous drugs and failure to appear in accordance with a bail undertaking. 

21. There are numerous records of police interaction with the Applicant between 2009 and his most recent offence. He was taken through many of those records in the hearing. He disputed some of them and agreed with others. The offences that have been established by way of a finding of guilt or by the Applicant’s admissions in this proceeding are sufficient for me to assess establish very serious offending and a substantial risk of re-offending so it is not necessary to make findings about the records the Applicant disputed and I disregard those. Details of the unprosecuted, admitted offending follows.    

22. In November 2012, the Applicant went to a person’s home and when the person would not answer the door, he pounded on the door with a brick, making a hole in the door. He had paid the victim $80 for a computer that he suspected of being stolen. It did not work, and he sought a refund. The victim gave him $60 and said he would pay the remaining $20 soon. The Applicant was upset that the remaining $20 had not been repaid. The police record states that the Applicant expressed deep remorse for his actions.[10]

    [10]    Exhibit R2, page 192.

23. In 2016, the Applicant was involved in a public nuisance. He was using obscene language to all present and continued to do so even after the police arrived.[11]

    [11]    Exhibit R2, pages 381, 385 and 389.

24. In August 2017, the Applicant was involved in a brawl outside a nightclub. He continued fighting even after the police arrived and in the end the police used OC spray on him. He was intoxicated and abusive towards the police, and when asked to calm down he said
    

    [12]    Exhibit R2, pages 234 to 237.

    “f--k the police”.[12]

25. The most recent offending, in October 2019, is of the most concern. The Applicant was sentenced on the basis of a Statement of Facts that was agreed between the Crown and him. In the hearing, the Applicant at times indicated that he disputed some of the facts contained in that document, but he also gave evidence that he had agreed to the facts contained therein. In any event, as the finding of guilt and sentence enlivened the decision making power that I am exercising, I am not permitted to make findings that are inconsistent with that finding or guilt of the essential facts of the offending upon which the court based that finding and the sentence it imposed.[13]  

    [13]  HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

26. Based on the learned sentencing Judge’s remarks on sentence, I am satisfied that the following is an accurate summary of the offending and the Applicant’s part in it.

27. The victim had known the Applicant since 2010. He and one of the offenders, “Mr N”, went to the home of “Ms A” at around 7.30am. Ms A is the victim’s cousin. The victim intended to ask Ms A to drive him to the city for an appointment in exchange for $18 petrol money. They all had a cigarette together and she told the victim that the Applicant was in the bedroom. The victim went into the Applicant’s room and spoke to him for a couple of minutes before then returning to the living room. The Applicant then accused the victim of stealing $450, which he said was for his mother in Africa. He got a knife and threatened to stab the victim. Ms A and Mr N stopped the Applicant from doing so, and instead suggested that they strip him to search him for the money. The did so but did not find the $450. They took $18 in cash from the victim.

28. The Applicant stripped the victim and tied his hands behind his back with a cable and said:

    “Are you going to tell me where you put my money? Otherwise I’m going to kill you. You’ll be hung upside down in the garage, you’ll die today.”

29. The Applicant beat the victim with electric cables and burned him with a household iron. He twisted a number of cables together to make one long cable which he used to beat the victim. The Applicant burned the victim on his arm, buttocks, leg and chest. He also held a lighter to the victim’s face and said words to the effect “I’m going to burn your face if you don’t produce my money”. He burned the victim’s hair with the lighter and punched the victim in the mouth.

30. During this incident, Ms A and Mr N left the house, taking victim’s $18 with them. They purchased alcohol and returned. Ms A threatened the victim with a knife and assaulted him. When she threatened to stab the victim, the Applicant said, “We’re not going to kill him this way, kill him in slow motion”.

31. At one point the victim was lying on the bed and Ms A used an electric cable to strangle him. The Applicant was punching and beating him with a cable while Ms A strangled him. The victim believes he lost consciousness due to being strangled.

32. Throughout the entirety of the victim’s confinement, the Applicant made a number of threats to him, including that he would call the bikies, cut the victim’s leg off, and that, because the victim was a “pussy”, he would “cut off [his] dick”.

33. Eventually the victim told the Applicant that he would pay the money, even though he did not take it, so that they would stop hurting him. After initially refusing to contact the victim’s family, at approximately 2.30pm, the Applicant contacted his sister, “Ms Z” and asked her to pay the $450. He told her “You need to come and talk to him before I lose my temper”. Ms Z called her sister, “Ms B”. They, and another woman, went to Ms A’s house shortly before 4.00pm. They found the Applicant in the bedroom with the victim sitting on the floor of the balcony fully clothed. The Applicant said the victim could not leave until he returned the money. He made admissions to tying the victim down and burning him with an iron on his hand but said that the victim did the remainder of the burns to himself. Eventually, an agreement was reached which led the victim being allowed to leave.

34. According to expert medical evidence, the victim sustained a combination of superficial partial thickness and mid partial thickness dermal burns to his left arm, left buttock, left leg and the right side of his chest. The burn injuries would likely result in skin pigmentation changes and permanent scarring. In addition to the burns, the victim also suffered tenderness of the left anterior chest, spine, left upper quadrant of the abdomen, both ankles and wrists; swelling to both hands; redness and possible swelling of the visible lateral left lower leg; skin discolouration of the neck and both legs; and deformity of the left hand to one of his fingers. He will have permanent and long-lasting sequelae from his injuries, including scarring and skin pigment changes and the possibility of ongoing pain and discomfort and ongoing psychological sequelae.

35. The learned sentencing Judge observed that the victim was detained for approximately eight and a half hours. While this is not mentioned in the sentencing remarks, the Statement of Facts indicates that at approximately 7.30am neighbours of Ms A heard screaming and someone yelling “Where is the money, give me the money”. The female neighbour heard the victim yelling “check my wallet, check me, check everything. I swear on my daughter”. The couple left at around 11.00am. When they returned at around 3.00pm, the female neighbour heard crying and yelling about money, and she heard the victim asking to call his mother. She called the police who did not attend because there had not been a direct threat overheard. The male neighbour filmed a video on his mobile phone at around 4.35pm. A number of females can be heard on the recording yelling and a male voice can be heard screaming and crying. The comments that can be heard include “…cried herself to sleep because she was afraid, she didn’t know where you were whether you were alive or dead…” and “ They’re going to grow up without a father… They’re going to grow up without a brother”. Towards the end of the video the victim told Ms B that he wanted to jump off the balcony because he was in so much pain. Ms Z and Ms B stopped him. The Applicant was taken to hospital after the incident however he did not want to wait for treatment, preferring to use alcohol to numb his pain. When he eventually did get treatment the next day, his clothing was stuck to the burns on his skin and ambulance service officers observed ligature marks on his neck.[14]

    [14]    Exhibit R2, pages 24 to 26.

1. His Honour said the conditions under which the victim was confined were violent and degrading and that the injuries he sustained included significant burns to his body.

2. His Honour noted a victim impact statement that was before the court included that the attack had left the victim “completely traumatised”, and that he often relives the day of the offence which causes him to shake and feel sick. He feels uncomfortable using public transport and has difficulty trusting people. The offence had impacted upon his relationships with his family and friends, and his work performance. It had caused him to feel depressed, stressed, anxious and, at times, he had suicidal thoughts. He no longer feels safe in any environment and described his poor mental health as debilitating. His Honour noted that such impacts are not unexpected consequences of offending involving deprivation of liberty and grievous bodily harm of the nature involved in this case.

3. His Honour noted that a pre-sentence report indicated that the Applicant claimed he was not intoxicated at the time of the offending, but he was hungover which contributed to the low mood that he was experiencing at the time. The pre-sentence report also stated that the Applicant disagreed with much of the contents of the Statement of Facts, he believed that much of the victim’s statement was fabricated, and the events took place in a much shorter timeframe. However, the Applicant’s counsel made it clear that the Applicant agreed that the Statement of Facts was the appropriate basis upon which to sentence him.

4. The learned sentencing Judge characterised the offending as very serious. He commented that the reason for such serious offending remained unclear. He thought the offending did not appear to reflect any antisocial pattern of behaviour but rather was a dreadful, largely unexplained, one-off event. The learned Judge apparently did not know about the unprosecuted incident in 2012 when the Applicant smashed a door with a brick over a $20 debt.   

5. The Applicant had been remanded in custody on 4 October 2019. He was originally charged with, and pleaded not guilty to, five offences arising from his conduct on 3 October 2019. The trial commenced on 22 June 2020. The victim gave evidence and he was subject to extensive cross examination. A police file note made at 4.20pm on 23 June 2020 states:

   “Today’s proceedings have concluded. [Name redacted] is still the only witness to have been called and has been subject to cross-examination all day. The matter was stood down until 10.00am tomorrow where [name redacted] will continue to provide his evidence and be cross-examined”.[15]

   [15]    Exhibit R2, page 276.

6. A subsequent note made on 25 June 2020 indicated that the Applicant pleaded guilty to “kidnapping GBH”.[16] The matter was then adjourned for sentencing, and that occurred on 7 October 2020.

   [16]    Exhibit R2, page 277.

7. In November 2020, the Applicant tested positive for cannabis. He was selected for a test because an officer suspected he had used drugs.[17] He was later convicted and fined for this offence.

   [17]    Exhibit R2, page 345.

   PROTECTION OF THE AUSTRALIAN COMMUNITY

8. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

9. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

   a)The nature and seriousness of the Applicant’s conduct to date; and

   b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

   The Nature and Seriousness of the Applicant’s Conduct to Date

10. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:

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

    (i)violent and/or sexual crimes;

    …

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

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

    (d)the cumulative effect of repeated offending;

    …

11. The kidnapping GBH offence is extremely serious, involving the torture of a person who had been stripped naked and tied up over a period of some eight hours. The ordeal to which the Applicant, the main offender, subjected the victim was dehumanising, terrifying and excruciating. Towards the end the victim was in so much pain he wanted to kill himself. The level of callousness required to engage in that kind of behaviour is difficult to fathom. I have noted the physical injuries that were either inflicted by the Applicant or by his accomplices with his approval. The victim impact statement set out the psychological harm suffered by the victim. The sentence imposed for this offending reflects the seriousness with which the court regarded it. A custodial sentence is normally a last resort in the hierarchy of sentencing options available to a court. A sentence of some 42 months with a minimum period to serve of two years is a substantial sentence.

12. The Applicant’s other offending pales in comparison to the index offending. However, some of it is serious. Both robberies involved violence to the victim, and the Applicant was a party to that. His offending and unprosecuted antisocial conduct shows a disregard for the law.

13. The Applicant engaged in five offending episodes over a ten year period. The kidnap GBH represents a recent steep increase in the seriousness of his offending. The cumulative impact of his repeated offending is that members of the Australian community have been physically harmed and robbed. The Applicant has caused property damage and put other motorists at risk by driving under the influence. He has caused physical and psychological scars to a member of the Australian community who was the victim of the kidnap GBH. That victim said the ordeal it had affected his relationships with his family and friends, so in that way, those people have also been adversely impacted.              

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

14. According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

15. In accordance with paragraph 8.1.2(2), I must have regard to the following relevant factors on a cumulative basis:

    (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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

16. Should the Applicant engage in further offending that involves confining and threatening to harm a person and/or inflicting pain and injury of the kind he inflicted on the kidnap GBH victim, the nature of harm includes very serious, potentially permanent, physical and/or psychological harm. The harm is so serious that any risk of repeated offending is unacceptable. The harm from further robbery offences, accompanied by violence, includes physical, psychological and financial harm. The harm from further traffic offences including driving unlicensed and drink-driving includes an increased risk of causing damage to vehicles or serious injury to other road users. I note that there seems to be a very small risk of further offending of that nature given the number of years since the most recent traffic offence. While the Applicant has not committed a robbery since 2010, he has engaged in violence since then.  

17. Before the Applicant was sentenced for the index offending, he said it was very out of character and he identified contributing factors including feeling somewhat depressed, being stressed about money, changing addresses and feeling hung-over from drinking alcohol the night before. He said he did not think his use of alcohol and cannabis was problematic. He said on the day of the offence, he had consumed one “long neck” beer but was not intoxicated.[18] 

    [18]    Exhibit R2, pages 36 to 40.

18. In the hearing, the Applicant attributed the offending to problems with a girlfriend[19] having been in a car accident, financial problems, being evicted, and intoxication. He said he had been drinking the night before and continued drinking throughout the day and that he was very much under the influence. This is contrary to what he told the person who prepared his pre-sentence report, and there is no mention in the police reports of the Applicant being intoxicated on the day of the offending. He was sentenced on the basis that he was hungover but not intoxicated. I do not accept that the Applicant was intoxicated when he committed the offence. The Applicant also claimed that associating with bad influences contributed to his offending. However, he was the instigator, and main perpetrator, of the kidnap and torture of the victim.

    [19]  This person is not his long-term, on-off, girlfriend who is referred to later.

19. I accept that the kidnap GBH offence was somewhat out of character in as far as the Applicant had never held someone captive before and he had never engaged in such serious and prolonged violence before, but it was not entirely out of character. The Applicant had previously behaved aggressively over a relatively small amount of money and he had previously engaged in a violent robbery. Further, the contributing factors identified by the Applicant do not fully explain such a grotesque overreaction to what he thought the victim had done.     

20. The Applicant expressed remorse for the offence when interviewed for a pre-sentence report in October 2020 and in the hearing. However, the pre-sentence report indicated that he also sought to minimise his offending and blamed the victim due to his belief that the victim had stolen his money. It is difficult to discern any actions on the part of the Applicant that demonstrate remorse. First, he pleaded not guilty, requiring the victim to give lengthy evidence about his horrific ordeal. He said he was advised to plead not guilty because his lawyer did not have the full brief of evidence. However, that does not explain why he took the matter to trial rather than seeking to resolve the matter by way of a guilty plea to an appropriate charge earlier. Secondly, the Applicant declined to participate in an anger management program while he was on remand,[20] and he did not seek any counselling or spiritual guidance with respect to his terrible behaviour.

    [20]    Exhibit R2, page 357.

21. The Applicant has expressed remorse about previous offending then gone on to re-offend. For example, a report that was produced for the Queanbeyan Children’s Court in March 2014 in relation to the two robberies in company and the three dishonestly obtain property by deception offences states that the Applicant “showed a great deal of empathy towards his victims and he openly acknowledged that he had done the wrong thing”.[21] He also expressed remorse after he was caught hitting a door with a brick in 2012. The Applicant’s expressions of remorse, to whatever degree they are genuine, do not stop him from going on to victimise others in the community. 

    [21]    Exhibit R2, pages 435 to 439.

22. At the time the Applicant was sentenced for kidnap GBH, he had been assessed as having a medium to low risk of re-offending, and the learned Judge considered that he had better than reasonable prospect of rehabilitation. Since then, he has completed a six week anger management program,[22] a six week drugs and alcohol course, a self-esteem program that consisted of a booklet,[23] and a readiness program.[24] The material before me includes a relapse prevention plan that is dated 16 March 2021. It appears to be focused on abstaining from alcohol and drugs as it does not specifically address violence.[25] The Applicant has generally behaved well in custody. He maintained employment while in prison, but he tested positive for cannabis on one occasion. The custodial environment in prison and immigration detention is highly regulated, subject to surveillance, and drugs and alcohol are prohibited. The Applicant indicated that he is motivated to be a respectable member of his community and he will not re-offend. It is clear that he does not want to be removed to South Sudan, which I infer serves as another motivator to avoid re-offending. The Applicant also has a passion for making music and is apparently quite good at it. This does not appear to have had a positive or negative impact in terms of his behaviour.        

    [22]    Exhibit G1, G18, page 73.

    [23]    Exhibit G1, G18, page 74.

    [24]    Exhibit R2, page 324.

    [25]    Exhibit R2, pages 340 to 343.

23. If the Applicant is given his visa back, he plans to live in Canberra for a little while, then live with his father and step-mother in Brisbane. He is confident that he can get work in both Canberra through a friend and in Brisbane through his cousin who he said owns a construction company. A friend gave evidence that the Applicant would be guaranteed a job in the construction company where he works in Canberra if he is released. I accept that. The Applicant’s cousin in Brisbane did not provide any evidence confirming a job offer and the Applicant did not give a convincing reason for that, merely saying his cousin is busy. I am not persuaded that the Applicant has a job offer in Brisbane, but I accept he has skills and experience that give him reasonable prospects of securing employment. The Applicant claimed he has cut ties with bad influences and that he has some pro-social friends. He intends to re-establish his relationship with his ex-partner, and he seemed confident that she would move to Brisbane with him. He has been in an on-off relationship with her for many years. While there is no suggestion that she influenced him to offend, it does not appear that their connection kept him from offending or abusing drugs or alcohol.     

24. Some people provided letters in support of the Applicant and some friends gave evidence in the hearing. A handful of people who claimed to have known the Applicant for many years spoke positively of him. So did his ex-partner. Some people said he had changed for the better. One lady said the Applicant had got into the wrong crowd and landed in the hands of bad characters. In the hearing the Applicant admitted that he had told her that. The Applicant’s ex-partner said the Applicant had a lot of support systems that would help him to be on a better path upon release.[26] All of these people either glossed over, or failed to refer to, the Applicant’s offending. It was apparent to me that those who gave evidence had very little knowledge of the kidnap offence or of the Applicant’s offending history. Accordingly, I am unable to give their assessment of the Applicant’s character or his risk to the community much weight.

    [26]    Exhibit G1, G12, page 66.

25. There is a letter that purports to be from “James” who identified himself as the chairman of the Azande Community Association in Queensland Inc. (‘Azande community”). It states that the Azande community in Australia seeks the Applicant’s release, and that the entire community is troubled to learn that the Applicant “got into such a problem for the first time which has left him with no option but to see inside of the prison” and that the community is devastated. The letter describes the Applicant as a youth leader who possesses good behaviour and great leadership skills. It states that the community is not aware of any sort of violence at all in his past, and that the community will speak with the Applicant and monitor his movements and behaviour and make sure that kind of behaviour does not occur again. According to this letter, the Applicant will stay with his father for 12 weeks and the community will find a counsellor for him and make sure he attends rehabilitation.[27] The Applicant said James is his uncle and that his father told his uncle what to write. I take this letter to be from the Applicant’s father and, to some extent, his uncle. I am not satisfied that it represents the views of the Azande community in Australia.  

    [27]     Exhibit G1, G17, page 72.

26. The contents of the letter indicate that the Applicant’s father and uncle know little about his offending. The Applicant now says he will be guided by his father and positive influences, however, it does not appear that he has been open with his father about his offending, and his resolve to be a law abiding person and valued member of the Azande community has not been tested in the community. I am not satisfied that the community will take it upon themselves to monitor the Applicant and make sure he does not re-offend.

27. The report that was prepared for the Queanbeyan Children’s Court, referred to above, states that when the Applicant committed the robberies, he was living with his father and not receiving any parental support or supervision. It also said that since 2007 the Applicant had not had any contact from his father and their relationship was not strong.[28] The Applicant committed the robberies in 2010. It cannot be that he was living with his father at the time of those offences but not in contact with him. I think it is more likely that there was a distant relationship from 2007 followed by a period of estrangement sometime after the robberies were committed. When asked to explain the problem with his father, the Applicant said he was not in agreement with his father or obeying his rules. The Applicant said their relationship had improved in recent years. This seems to be supported by a pre-sentence report dated in 2020 which stated that the Applicant had reported that he had a strong, supportive relationship with his father and that they spoke frequently.[29] The Applicant said his father did not provide a letter of support for these proceedings because he is away, visiting Africa. The Applicant committed the most serious offence after his relationship with his father improved. The Applicant’s father has not kept him from offending thus far. Without any evidence from the Applicant’s father about exactly what he knows about the Applicant’s offending and how he plans to monitor the Applicant and prevent him from any further offending, I am not confident that he will be much of a protective factor.

    [28]   Exhibit R2, pages 435 to 439.

    [29]   Exhibit R2, page 41. 

28. The Applicant is bound to encounter stressful or aggravating situations in the future, in circumstances where he has only just scratched the surface in terms of rehabilitation for his aggression, and it does not appear that he has identified and addressed all of the factors that led him to offend in such a serious way.

1. I am of the view that there is a substantial risk that the Applicant will engage in further criminal or other serious conduct, including of the kind he engaged in when he committed the kidnapping GBH offence.    

2. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

   FAMILY VIOLENCE

3. I am not satisfied that the Applicant has been involved in the perpetration of family violence. This Primary Consideration is not relevant.  

   THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

4. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

5. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

   ·     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);

   ·     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;

   ·     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;

   ·     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; and

   ·     whether there are other persons who already fulfil a parental role in relation to the child.

6. The Applicant claims that the best interests of five minor children are affected by his visa cancellation.

7. Those children are:

   ·Child N, born in 2014, who is the son of the Applicant’s cousin and who lives in Brisbane;

   ·Child Y, born in 2009, who is Child N’s sister;

   ·Child C, born in 2015, who is the daughter of the Applicant’s brother, and who lives with her mother in Adelaide;

   ·Child E, born in 2018, who is the daughter of the Applicant’s brother by a different partner, and who lives with her mother in Brisbane; and

   ·Child R, born in 2017, who is the son of the Applicant’s friend, “Mr R”, who he has known since they were both refugees in Egypt and whom he referred to as a cousin. He lives in Brisbane.

8. The Applicant claimed to have 15 nieces and nephews in Australia,[30] but he did not claim that the cancellation of his visa would affect the best interests of any children other than those identified above. There is no information about any individual child other than those mentioned above. The Applicant identified Child R who is the child of his friend as his nephew, and he identified Children N and Y as his nephews (although Child Y is female) when they are the children of his cousin. Accordingly, it may be that he counted other children as his nieces and nephews who are not.       

   [30]    Exhibit G1, G10, page 56.

9. The Applicant lived in Brisbane for a time before moving to Canberra in 2011. While he was there, and during visits to Brisbane after he moved to Canberra, he was involved in the Azande community and in that capacity, he taught the Azande language to children in that community, including Child N and Child Y. Child N and Child Y have always lived in Brisbane.  However, the Applicant said his involvement in the Azande community in Brisbane was through his father. As he was estranged from his father between 2007 and 2014, I do not accept that the Applicant taught Azande to Child Y or Child N between 2007 and 2014.  

10. The Applicant’s brother is currently in immigration detention: his visa was cancelled due to his offending. The Applicant claimed to have provided financial support to Child C and Child E from time to time. He said Child E and her mother lived with him in Canberra for a year, and he took care of them, while his brother was in gaol before they moved to Brisbane. He later seemed to indicate that Child E and her mother were moving between Brisbane and Canberra, saying the child’s mother and his brother were “going back and forward, her and my brother and stuff, they keep going back and forth”. The Applicant claimed that Child C and her mother lived with him in Canberra for three months in 2016. There is no other evidence to corroborate these claims and the Applicant’s evidence about Child E living with him was shaky. However, I am prepared to accept that each child spent some time staying with the Applicant. The Applicant has not been in contact with those children since he was incarcerated.

11. Very little information was provided about Child R. His father who provided two letters of support[31] and gave oral evidence did not mention the Applicant’s relationship with Child R or any impact his absence was having or would have on Child R.  

    [31] Exhibit G1, G15, page 69; Exhibit A5.

12. Each of these five children have at least one person fulfilling the parental role and there is no suggestion that the Applicant would ever be called upon to do that. The Applicant has had very limited contact with the children with long periods of absence and he has not been in contact with them since his incarceration. I accept that he had some involvement in the lives of each and that his involvement was positive. I accept that he would most probably have some positive involvement in the lives of the children who live in Brisbane if he were to get his visa back. There is no evidence form any of these children and no evidence that the Applicant’s current absence has adversely impacted them.

13. The combined best interests of the children mentioned above warrants very limited weight in favour of the revocation of the cancellation of the Applicant’s visa.

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

14. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

15. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa.

16. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

17. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

18. The Applicant grew up in disadvantaged circumstances including spending many years in a refugee camp. He needed extensive medical treatment when he came to Australia. He came here in 2006 when he was 13 years old and he is now 29 years old. He commenced offending in 2012.  

19. The Applicant engaged in five separate offending episodes over 10 years. His offending includes traffic offences, robbery in company, obtaining property by deception and kidnapping GBH. He has also engaged in unprosecuted violent, aggressive behaviour. His offending demonstrates a disregard for the laws regulating the community that he seeks to re-enter and a preparedness to cause harm to persons in that community. Any risk of repeated offending is unacceptable and there is a substantial risk.

20. Most significantly, the index offence of a kind that is utterly abhorrent to the Australian community. The Applicant asks to be allowed to stay in Australia, partly because he fears being tortured in South Sudan. The Australian community takes torture extremely seriously. The criminal law forbids behaviour that amounts to torture and the Australian government, being a signatory to an international convention against torture, has undertaken on behalf of the Australian community to provide non-citizens with safe haven from torture. Yet, what the Applicant did to the victim of the index offence was torture. By engaging in this terrible criminal behaviour, the Applicant very seriously breached the trust of the Australian community.       

21. The learned Judge who sentenced the Applicant for the index offence acknowledged his disrupted upbringing, but he did not consider the material before him to disclose a link between his psychological make-up as a result of his background and his offending. I am not satisfied that the Applicant’s background mitigates the grievous breach of trust.   

22. Considering all relevant factors, Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.   

    OTHER CONSIDERATIONS

23. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    International non-refoulement obligations

24. Paragraph 9.1(1) of the Direction provides that 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. It refers to Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

25. The Direction provides that the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

26. Subsections 36(2)(a) and 36(2)(aa) of the Act provide the tests for protection on the basis of refugee status and for complementary protection.

27. The Applicant claims to fear that if he goes back to South Sudan he will be tortured and killed because his father was a child soldier in the Sudanese war and because he belongs to a minority ethnic group. In his revocation request he said:

    “South Sudan has been continuously racked with civil war, violent disturbances, ethnic cleansing and tribal conflict.  In South Sudan I was shot in the back, I had my wrist broken, my legs and foot were broken, my limbs were hacked with a machete in a violent attack on my family.”

28. The Respondent filed a copy of the Department of Foreign Affairs and Trade Country Information Report for South Sudan dated 5 October 2016 (“DFAT Report”). In response to a request from the Tribunal during the hearing, the Respondent provided an internal document that stated on the front page that it was not to be cited in any decision. It contains some relevant information with references to the sources of that information. Where I have relied on information contained in that document, I have cited the source document. The Respondent also provided an article relating to South Sudanese citizenship. Both documents were provided to the Applicant during the hearing. The Applicant was not represented, and he did not wish to examine these documents in detail. The documents are not controversial, and they are from credible sources. The Applicant did not provide any country information (other than expressing his and his father’s beliefs about South Sudan).     

29. According to the Applicant, he and his parents are of the Azande tribe. He is not aware of that tribe living in a particular location in South Sudan. He did not provide details of why his membership of the Azande tribe would make him a target. When questioned about this, his answers indicated he was afraid of generalised violence in South Sudan.

30. In relation to the Applicant’s claim that his father having been a child soldier was a reason he would be targeted, it was put to him that his father had managed to marry and have children in Sudan despite having been a child soldier. The Applicant said his family used to move around to avoid danger. However, he did not identify whom they were trying to evade. The Applicant claimed both the government and “rebels” would target him. He claimed that his father had warned him emphatically that he would be in grave danger if he returned to South Sudan. However, he said his father had not given him any details such as which group he used to fight for, and why the Applicant would now be a target because of his connection to his father.

31. The Applicant is Catholic. He did not claim to fear harm on the basis of his religion until the lawyer for the Respondent asked him if he feared harm on that basis. He did not identify a specific basis for holding such a fear, merely pointing to examples he has seen on Facebook of one group targeting another because of their beliefs “even in Australia”. I do not accept that the Applicant genuinely fears harm on the basis of his religion.  

32. The Applicant’s mother and several half-sisters (referred to by him variously as half-sisters and sisters) live in South Sudan. His father’s brother lived there until he passed away in 2017 from poor health. His father’s sister lived there for a time after he and his family moved to Australia. The Applicant also referred to a maternal aunt living there. He is not aware of any of those people ever having been targeted or threatened in South Sudan.  

33. According to the DFAT Report, the nation of South Sudan was established in 2011 after protracted civil wars, the most recent occurring between 1983 and 2005. That war was ended by a Comprehensive Peace Agreement that included a commitment to hold a referendum on the sovereignty of the southern provinces. Following this referendum, South Sudan became a nation on 9 July 2011. However, government instability quickly followed, and tribal violence broke out in December 2013. Attempts over the ensuing years to achieve stability have had limited success. Following independence, it was estimated that the population was approximately 35.8 per cent Dinka and 15.6 per cent Nuer, with the remainder belonging to smaller ethnic and sub-ethnic groups that include Azande. The majority of the population is Christian, including Catholic and other denominations.

34. According to the DFAT report, South Sudan is a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups, being Dinka, Nuer and Shilluk, who are most at risk. The Azande ethnic group formed their own self defence force called the Arrow Boys in 2009/2010 in response to an increase in attacks by the Lord’s Resistance Army (an armed group that originated in Uganda in the mid-1980s before moving to the Democratic Republic of Congo, the Central African Republic and South Sudan in the mid-2000s). In November 2015, the South Sudan People’s Patriotic Front, drawn largely from the Arrow Boys was formed and it indicated that it was ready to merge with the Sudanese People’s Liberation Army in Opposition (“SPLA-IO)”. The DFAT report does not indicate whether Azande people who are not members of the Arrow Boys, People’s Patriotic Front or SPLA-IO are at risk of harm based on their ethnicity.

35. According to a map published by the United Nations Office for the Co-ordination for Humanitarian Affairs in 2009, the Azande tribe were at that time predominantly located in the Western Equatoria region, not far from the capital, Juba.[32]  The Applicant did not indicate where he would live if removed to South Sudan, nor where his relatives in South Sudan live. However, it seems likely that he would live where the Azande are predominantly located. There is no country information before me that indicates there is a particular risk of tribal violence against members of the Azande tribe because of their ethnicity in South Sudan in general.

    [32]    United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), “Distribution of Ethnic Groups in Southern Sudan”, 24 December 2009 – referenced in Department of Home Affairs Country of Information Services Section “Resource Guide 2020, South Sudan”, (published under the Freedom of Information Act 1982 (Cth)), and publicly available at <>

    According to a United Nations Security Council report, dated February 2020, concerning the situation in Western Equatoria, clashes between two political groups were continuing, simmering tensions between the local commanders escalated, and government forces and one particular political group continued to engage in low-intensity skirmishes including ambushes and abductions. Ethnic tensions between the Azande and Balanda coupled with leadership challenges within SPLA-IO forces led to internal clashes.[33] 

    [33]  United Nations Security Council (UNSC), “Situation in South Sudan – Report of the Secretary-General”, (26 February 2020); UN Doc S/2020/145 4; <>

    It appears that the political and tribal conflict tends to occur between or within political or ethnic organisations. The Applicant did not express any desire or intention to become involved in any political or tribal organisations in South Sudan. I accept that if he were to settle in Western Equatoria, he would face the same risks as the general population there of being caught up in the conflict there. I accept that he could be caught up in conflict in other parts of South Sudan. However, I am not satisfied that his ethnicity would make him a target.

36. The Applicant’s claims lack basic detail. The evidence before me does not indicate that he is a refugee or entitled to complementary protection. That is, it does not appear that there is a real chance that he would be harmed due to his ethnicity, his religion, his connection to his father or any other relevant reason, or that he would face a real risk of the type of significant harm contemplated by the Act that is not faced by the Sudanese population at large.

37. If I do not revoke the cancellation of the Applicant’s visa, it is open to him to apply for a protection visa and his claims can be made in greater detail and considered more fully in that process. A successful application would mean he would obtain a protection visa. However, it seems most unlikely that he would be successful. That is because he is likely to be considered to be a danger to the community, having been convicted by final judgment of a particularly serious crime, and disqualified on that basis – see s 36(1C) and s 36(2C) of the Act.

38. Under s 197C(3) of the Act, an unlawful non-citizen will not be removed to a country if they have made a valid application for a protection visa that has been finally determined, and in the course of considering that application a “protection finding” was made. A “protection finding” includes, but is not limited to, a finding that a person is entitled to complementary protection (s 36(2)(aa). If the Applicant were to apply for a protection visa, and a protection finding were to be made, he could not be removed to South Sudan, but it is likely that he would not qualify for a protection visa either. He would then be detained unless he asked in writing to be removed to South Sudan, he could be removed to a third country, or the Minister used his personal powers to grant him a visa in the public interest,[34] or to allow him to reside in the community on conditions.[35] If a protection finding was not made, he would be liable to be removed to South Sudan. There is no prospect that Australia would breach the non-refoulement obligations that are recognised in domestic law.     

    [34] Section 195A of the Act.

    [35] Section 197AB of the Act.

1. Separately, I accept that the security situation in South Sudan is extremely unstable. I take into account the risk of harm and hardship that would be faced by the Applicant due to generalised violence there, and I assign some weight in favour of revocation on that basis.  

2. The decision in Plaintiff M1/2021 v Minister for Home Affairs[36] was delivered by the High Court on the day I made the decision in this matter. The Majority of the High Court[37] held that the non-refoulement obligations referred to in the Direction are confined to the obligations that are implemented in domestic law, and that the decision maker in that case sufficiently dealt with the non-citizen’s protection claims by acknowledging that he could apply for a protection visa.

   [36] [2022] HCA 17

   [37]    Kiefel CJ, Keane, Gordon and Steward JJ.

3. It is often the case, as it is in this case, that a non-citizen whose visa has been cancelled because of criminal offending is most unlikely to obtain a protection visa because he or she will be considered to be a danger to the community, having been convicted by final judgment of a particularly serious crime. In that situation, if the decision maker applies some level of analysis to the non-citizen’s protection claims and finds that there is probably some substance to them, or the non-citizen would face a risk of harm and/or hardship that does not entitle them to protection, they may allocate some weight in favour of revocation of the cancellation of the visa. This allocation of weight could be what tips the balance, when all of the relevant considerations are weighed, in favour of revocation.

4. On the other hand, should a decision maker decline to assess the non-citizen’s protection claims because he or she can apply for a protection visa, presumably no weight would be allocated in favour of revocation. Nor can the non-citizen be given weight in the process of applying for a protection visa. That is because there is no weighing exercise in that process. A non-citizen must establish that they are owed protection and that they are not disqualified by any of the exclusions. If an exclusion applies, it is not balanced against their protection claims, the applicant is simply disqualified. Accordingly, where a non-citizen is unlikely to obtain a protection visa, if I am to make the correct or preferable decision, I should engage with any protection claims that are made or arise on the evidence with a view to allocating appropriate weight to this Other Consideration. That is what I have done in this matter.      

   Statelessness

5. The Applicant claims that he is not a citizen of South Sudan. South Sudan did not exist when the Applicant was born and residing in the area that is now within South Sudan. He has not applied for citizenship since South Sudan came into being.   

6. According to an article entitled “Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law”,[38] Article 8(1) of the South Sudan Nationality Act 2011 provides that a person shall be considered a South Sudanese national by birth where, among several other grounds, 

   “such a person belongs to one of the indigenous ethnic communities of South Sudan”.

   [38] Exhibit R3.

7. Therefore, it appears that the Applicant’s Azande ethnicity automatically qualifies him for South Sudanese citizenship. According to the DFAT report, certificates of nationality can be issued to an individual of any age and they are issued on the basis of information provided, with no supporting documentation required at the time of application. The Applicant’s parents are both still alive and presumably able to provide information about his ethnicity.   I am satisfied that the Applicant is a citizen of South Sudan and that he would not have difficulty establishing that.  

   Extent of Impediments if Removed

8. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers;

   (c)and any social, medical and/or economic support available to that non-citizen in that country.

9. The Applicant is a 29 year old man who has not lived in South Sudan since he was very young. I accept that he is not familiar with life in South Sudan. However, I accept the Respondent’s submission that the Applicant’s involvement in the South Sudanese community in Australia would give him some degree of insight into life in South Sudan. 

10. The Applicant speaks Azande, Sudanese Arabic and English. English is the national language of South Sudan, although Arabic (including the local dialect) is widely spoken, and regional and tribal languages are also very common.[39] I am satisfied that the Applicant would not encounter any significant language barrier in South Sudan.

    [39]    Exhibit R2, S9 page 466.

11. The background report for the Queanbeyan Children’s Court said the Applicant’s mother and seven sisters remained in Sudan and that his sisters’ ages varied from 14 to 27 years. That report is dated 2014, so all of his sisters would be adults now. The report noted that the Applicant said he had concerns for his family’s safety due to ongoing political conflict in Sudan and that he would one day like his mother and sisters to live in Australia. He said he transferred $150 from his weekly wage to his mother to support his seven sisters.

12. A character reference from Multicultural Youth Services ACT, dated in 2014,[40] described the Applicant as having been a client of that agency since 2011 and stated that he had been working hard to make a living for himself and his relatives in Africa. 

    [40]    Exhibit R2, S8 page 434.

13. According to the Statement of Facts for the index offence the Applicant was angry about the missing $450 because it was for his mother in Africa. 

14. In the hearing the Applicant sought to distance himself from his mother and anyone in South Sudan. He claimed he had been sending money to his uncle who has since passed away and to an aunt in Uganda. He claimed he referred to other people as “mother”. He denied having sent money to his mother and sought to give the impression that he was not in contact with her and did not know where she and his sisters were. However, this seems implausible given his barrister told the court in 2020 that the Applicant has re-established contact with his mother in the year before the offending, which would be 2018. The Applicant said his aunt was in South Sudan before changing his evidence and saying she “relocated in Uganda at the moment”.  

15. The Applicant’s own friends referred to him supporting people “back home” and “in Africa” in their letters of support. Mr KA, who has known the Applicant for 10 years, said “Granting the visa to [the Applicant] will mean a great deal to his family because he supports them back home.”[41] In the hearing the Applicant said “back home” meant Brisbane. Mr KA said he was referring to friends in Egypt. Both explanations are equally implausible.  

    [41]    Exhibit G1, G16 page 70.

16. Mr R wrote that all the Applicant wanted to do was pursue his dream of becoming a music producer so he could provide for the rest of his family back home. In the hearing, he said “back home” meant Africa where the Applicant originally came from, not Egypt which was temporary. Another friend, Ms OA referred to the Applicant as the “breadwinner for his family back home”. She did not give oral evidence.

17. The Applicant clearly had a vested interest in denying that he has been sending money to family in South Sudan and I find his evidence implausible in light of the documentary evidence I have mentioned. I am satisfied that the Applicant has a mother, seven adult sisters and probably an aunt living in South Sudan and that he sent money to some or each of them from time to time from 2014 at the latest until he was incarcerated. 

18. When the Applicant was asked if his mother or any of his sisters in South Sudan would offer him any kind of assistance, he said he had not seen them since he was two years old and had not been in contact with them for several years. I do not accept that he has not been in contact with them for several years given the evidence about his contact with his mother.   

19. The Applicant said his father also sends money to family overseas when he can, and when he cannot, he asks the Applicant to do so. The Applicant was asked if anyone in the Azande community here would send money to him if he were sent to South Sudan, and he unconvincingly pointed to wives, children and financial problems as reasons why they would not.

20. I am satisfied that the Applicant has family in South Sudan, and that he and his father have helped them financially and been in contact with them over the years. Given that, it seems probable that they would offer him their hospitality. I am further satisfied that the Applicant’s father would likely provide some level of financial assistance to the Applicant should he be removed to South Sudan. 

21. The Applicant claimed that in Sudan, he was shot in the back, his wrist, legs and foot were broken, and his limbs were hacked with a machete. There is no evidence corroborating this and the Applicant’s evidence about his injuries was curious, for example he claimed to have a rotting, open wound when he came to Australia from those injuries sustained many years earlier. However, I accept that he did have some physical problems when he came to Australia that required extensive medical treatment.

22. According to the Applicant he still has a fractured wrist for which he is waiting to see a specialist. He also claimed that his back was “killing” him, and that he had problems with his shoulders and foot. The presentence report states that the Applicant reported that he continued to experience some back pain and that he had previously been prescribed with pain medication however he did not like the side effects and chose to stop taking it. He was managing the pain by exercising.

23. I think the Applicant greatly exaggerated his current physical complaints. He has held employment in physically demanding jobs such as labouring, construction and steel fixing[42] and he led an active social life. When this was put to him, he claimed that the pain came from time to time and when it got worse, he needed Panadol or strong medication. He also claimed he was using cannabis for the pain. When the pre-sentence report was put to him, he suggested he had not given complete information to the author of the report. I found the Applicant’s evidence unconvincing. I am not satisfied that he suffers from any physical conditions that would prevent him from doing normal day to day activities or from engaging in manual labour.    

    [42] Exhibit G1, G10, page 58.

24. According to the DFAT report, in 2016, the formal South Sudanese economy was extremely weak and underdeveloped. Eighty-five per cent of the population undertook unpaid work, mainly in agriculture. Seventy-six per cent of households in South Sudan survived on subsistence activities and informal trade. There is no evidence that things have not changed for the better since 2016. I accept that, even with the Applicant’s work experience and ability to work, it will be difficult for him to support himself there. There will not be any government financial support available to him. South Sudan’s population has extremely poor access to health care.

25. I do not consider the challenges the Applicant will face will prevent him from establishing himself there or maintaining basic living standards in the context of what is generally available to other citizens a South Sudan. However, I accept that life in South Sudan will be very difficult. This Other Consideration (b) weighs heavily in favour of revocation of the mandatory cancellation.

    Impact on victims

26. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is not relevant.

    Links to the Australian Community

27. In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

28. The Applicant came to Australia at the age of 13 and has lived in Australia for 15 years. He commenced offending at the age of 16, only a few years after moving to Australia.

29. The Applicant has been consistently employed while in Australia. He is a member of the Azande community in Brisbane and he has contributed to that community by teaching his native language to the younger generation and playing drums in church. He has helped at community functions and helps his father and step-mother, who do not speak good English, by translating words that they do not know.[43] The Applicant used to pay basketball in the Sudanese community in Australia.

    [43]    Exhibit A1.

30. The Applicant’s father, mother and brother live in Australia, although his brother is currently in immigration detention due to criminal offending. The Applicant was estranged from his father for many years but recently they have established a closer relationship. 

31. The Applicant also has aunts, uncles, cousins, nieces, nephews and a grandparent in Australia. However, apart from the children the Applicant named, there is no evidence before me about the Applicant’s connection to his relatives or how the decision regarding his visa might affect them. The Applicant’s long-term, on-and-off girlfriend lives in Australia. I do not consider her to be a family member, so while I acknowledge the Applicant’s connection to her, I do not take her interests into account.

32. The Applicant also has some close friends in Australia including Mr R whom he has known since they were both in Egypt.[44]

    [44]    Exhibit G1, G15, page 69.

33. The Applicant’s father lives with his step-mother. His father works on and off. According to the Applicant his father has a heart condition although he does not know what it is. He also claimed his father had a problem with his eyes, being that he has trouble reading without glasses and he cannot drive at night. There is no evidence that the Applicant’s father needs any kind of support from him. In the absence of evidence from the Applicant’s father and step-mother about how it would affect them if the Applicant were deported, I will assume they would be saddened and concerned for his wellbeing. As I have found that they would most probably provide him with financial assistance, I acknowledge they would be impacted financially. The Applicant’s brother is not a citizen and currently does not have a visa, so I need not consider any impact on him. Nor do I have any information about that. 

    Impact on Australian business interests

34. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Conclusion: Other Consideration (d)

35. Overall, I am satisfied that the Applicant’s links to the Australian community weighs to a moderate extent in favour of revocation.

    CONCLUSION

36. I am now required to weigh all of the Considerations in accordance with the Direction. Even disregarding the Applicant’s other offending, by committing the kidnap GBH offence, he breached the trust of the Australian community to an extreme degree. The Australian community would not expect him to hold a visa, having offended in that way. Further, any risk of repeated violent offending of the kind previously engaged in is unacceptable, and there is a substantial risk. The considerations that weigh in favour of the Applicant are not, even when combined, sufficiently compelling to outweigh Primary Considerations 1 and 4. Consequently, there is not another reason to revoke the cancellation of the Applicant’s visa.  

    DECISION

37. The decision under review was affirmed on 11 May 2022.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..............................[SGD]..........................................

Associate

Dated: 1 June 2022

Date of hearing:

26, 27 and 28 April 2022

Applicant:

By videoconference

Solicitor for the Respondent

Mr Liam Dennis

Minter Ellison

ANNEXURE A – EXHBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G21 paged 1 to 106)	R	-	7 March 2022
A1	Applicant's Statement (undated)              (3 pages)	A	-	20 April 2022
A2	Letter of the Applicant’s Ex-Partner (undated) (1 page)	A	-	20 April 2022
A3	Letter of Ms OA (undated) (1 page)	A	-	21 April 2022
A4	Letter of Mr KA (undated) (1 page)	A	-	21 April 2022
A5	Letter of Mr R (1 page)	A	8 April 2022	21 April 2022
A6	Letter of Chairman of the Azande Community Association of Queensland Inc (1 page).	A	20 April 2022	21 April 2022
A7	Letter of Friend of Applicant (1 page)	A	-	21 April 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	11 April 2022	14 April 2022
R2	Respondent’s Supplementary Documents (S1 to S9, paged 1 to 496)	R	-	14 April 2022
R3	Article M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),74-114.	R	2014	27 April 2022