HHKR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3032
•14 September 2022
HHKR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3032 (14 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5423
Re:HHKR
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date:14 September 2022
Place:Melbourne
Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 the Tribunal –
1.sets aside the reviewable decision dated 23 June 2022.
2.in substitution for the decision so set aside, decides that, under section 501CA(4)(b)(ii) of the Migration Act 1958, the mandatory cancellation of the Applicant’s Class XB Subclass 204 Refugee and Humanitarian (Woman at Risk) is revoked.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is entitled to citizenship of South Sudan – applicant held refugee and humanitarian (woman at risk) visa – visa cancelled – delegate decided not to revoke cancellation – application to Tribunal – whether applicant fails character test – applicant fails character test because of substantial criminal record – ministerial direction – primary considerations – serious offending but committed at young age – other considerations – significant impediments face applicant if deported to South Sudan – decision under review set aside and decision substituted that the mandatory cancellation of the visa be revoked
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 35
Children, Youth and Families Act 2005 (Vic), s 412
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Sentencing Act 1991 (Vic), ss 3, 32, 35
The Nationality Act, 2011 (South Sudan)Transitional Constitution of the Republic of South Sudan, 2011, Art 45(1)
Cases
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Galuak and Minister for Immigration and Border Protection; Re: [2018] AATA 2301Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653
Secondary Materials
Department of Foreign Affairs and Trade – DFAT Country Information Report South Sudan – 5 October 2016
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Commenced 15 April 2021)UN High Commissioner for Refugees (UNHCR), A Study in Statelessness in South Sudan, 2017 (accessed 5 September 2022)
REASONS FOR DECISION
Senior Member D. J. Morris
14 September 2022
Preliminary
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’) in relation to this application. The order provides that the publication of the name of the Applicant is prohibited. He will be known as ‘HHKR’. Certain other details that might tend to identify him will be anonymised. Where a document is quoted which contains his name, the anonym will be substituted.
HHKR was born in the first quarter of 1998 and is 24. He first arrived in Australia as a minor in September 2008 as the holder of a Refugee and Humanitarian (Woman at Risk) (Class XB) (Subclass 204) visa.
That visa was originally cancelled in January 2018 under section 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that the delegate was satisfied that HHKR had a “substantial criminal record” because he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of full-time imprisonment on the date the visa was cancelled.
The Applicant submitted at the hearing, and the Respondent did not disagree, that the original notice cancelling the visa was defective. A fresh notice was sent to the Applicant on 27 March 2018.
On 10 August 2018, the Applicant requested that the Respondent exercise the discretion to revoke the cancellation of the visa under section 501CA of the Act. On 28 November 2019, the Minister, acting personally, decided not to revoke the visa cancellation, and the Applicant was so advised.
On 11 June 2020, the Federal Court of Australia made orders, by consent, quashing the decision of 28 November 2019 and ordered that the Minister determine the matter according to law.
HHKR was invited under section 501CA(3)(b) by an officer of the Department of Home Affairs (‘the Department’) to make representations as to whether there was another reason for the mandatory cancellation of his visa to be revoked under section 501CA(4)(b)(ii) of the Act. HHKR made representations.
On 23 June 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘Minister’) decided that the delegate was not satisfied that the mandatory cancellation decision should be revoked.
HHKR then asked the Tribunal to review this decision of 23 June 2022, as he is entitled to do under section 500(1)(ba) of the Act.
HHKR states in his application to the Tribunal that he received notice of the delegate’s refusal to revoke the cancellation of his visa on 24 June 2022. Under section 500(6L) of the Act, if a person is in the migration zone and the Tribunal has not made a decision within the period of 84 days after he or she was notified of the decision under review, the Tribunal is taken to have affirmed the decision. That 84-day period ends on 15 September 2022. Therefore, to fulfil the intention of the Parliament that persons are able to have the Tribunal review decisions of this nature and decide to either affirm the decision or set it aside, the Tribunal must make a decision on or before that date.
Hearing
The hearing was held on 1 and 2 September 2022 by video-link under section 33A of the AAT Act, as the Applicant is at the Christmas Island Immigration Detention Centre (‘IDC’). HHKR was represented by Mr Bryn Overend of counsel, instructed by Ms Rabiah Khawaja of WLW Migration Lawyers. The Respondent was represented by Ms Siran Nyabally of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. Other witnesses who gave evidence were his brother, Mr PA; his sisters, Ms LA, and Ms SA; a community leader, Mr PO and the Applicant’s mother, Ms SJ. The Tribunal was assisted by an interpreter in the Acholi language of the evidence of Ms SJ.
The Applicant lodged a Statement of Facts, Issues and Contentions (‘ASFIC’) dated 1 August 2022. The Respondent also lodged a Statement of Facts and Contentions (‘RSFIC’) dated 16 August 2022. The Applicant lodged a reply document on 26 August 2022. These were taken into account.
The Tribunal also admitted into evidence:
(a)Volume of ‘GD’ documents lodged by the Respondent on 18 July 2022 (Exhibit R1);
(b)Volume of supplementary or ‘SGD’ documents lodged on 16 August 2022 (Exhibit R2);
(c)Statement of the Applicant dated July 2022 (Exhibit A1);
(d)Statement of Mr PA dated July 2022 (Exhibit A2);
(e)Statement of Ms LA dated 1 August 2022 (Exhibit A3);
(f)Statement of Ms SA dated 1 August 2022 (Exhibit A4);
(g) Statement of Mr PO, not dated (Exhibit A5); and
(h)Statement of Ms SJ dated 1 August 2022 (Exhibit A6).
Two questions for the Tribunal
The first question is whether the Applicant passes the character test. If the Tribunal is satisfied that he does, then the cancellation of the visa is set aside (section 501CA(4)(b)(i)). However, if the Tribunal finds that HHKR does not pass the character test, the second question is whether the Tribunal is satisfied that the visa cancellation should be revoked for “another reason”: section 501CA(4)(b)(ii) of the Act
Does the Applicant pass the character test?
Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if the person has a “substantial criminal record” and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (section 501(3A)(b)).
The nationally coordinated criminal history check by the Australian Criminal Intelligence Commission dated 8 July 2020 (‘ACIC Report’, GD, pp 49-51) recorded disclosable Court outcomes for HHKR. In late 2017, HHKR was convicted by the County Court of Victoria of the offence of Armed Robbery and ordered to serve three years in a Youth Justice Centre (‘YJC’). On the same date, he was convicted of the offence of Attempted Armed Robbery and ordered to serve two years in a YJC, to be served concurrently. He was further convicted of the offence of Criminal Damage (Intent to Damage or Destroy) and ordered to serve three months in a YJC, again to be served concurrently.
Section 501(12) defines “imprisonment” in section 501(3A)(b) of the Act to include any form of punitive detention in a facility or institution. In December 2017, HHKR was convicted of certain offences at the Children’s Court of Victoria and ordered to be detained in a YJC for a period of three months.
Is detention in a Youth Justice Centre ‘imprisonment’ in terms of the Act?
Mr Overend made submissions that the Applicant had not failed the character test because he was not, at the time his visa was cancelled, serving a sentence of full-time imprisonment in a custodial institution, as is a stipulation in section 501(3A)(b) of the Act. Mr Overend submitted that he was aware that the decision of the Federal Court in Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 (‘Nuon’) goes against this submission. At the start of the hearing, the Tribunal clarified with Mr Overend that his contention was that because youth detention in Victoria is under section 412 of the Children Youth and Families Act 2005 (Vic) and that legislation does not include references to punishment and focuses on rehabilitation and the welfare of youth offenders, it could not be regarded as a form of ‘punitive’ detention in the terms of section 501(12) of the Act.
In Nuon, the facts were that the applicant had been detained in a YJC for 18 months by order of the Children’s Court of Victoria. In considering the submission that the detention of Mr Nuon as a child should not have invoked the power in section 501(3A)(b), Middleton J observed [69] to [71]:
Further, the definition of “imprisonment” at s 501(12) is not an exhaustive definition, to which issue I will return. Further, even assuming that the sentence imposed on the Applicant must be “punitive” in nature to be “imprisonment” as defined in the Act, in my opinion the Applicant was clearly subject to “imprisonment” in the nature of “punitive detention”.
As defined in the Short[er] Oxford English Dictionary, the term “imprison” means “to detain in custody; to confine”, and the term “punitive” means “awarding, inflicting or involving punishment”. The term “punish” means “1a To cause (an offender) to suffer for an offence; to subject to judicial chastisement as retribution or requital, or as a caution against further transgression; to inflict a penalty on. b To inflict a penalty for (something).” It can be seen that the definitions 1a and 1b of “punish” have a different emphasis, even though both refer to inflicting a penalty. Definition 1b refers to almost an objective or neutral concept of punishment that would seem to include almost any penalty or sentence imposed as a consequence of a finding of guilt for a criminal offence. Definition 1a connotes a stronger punitive purpose underlying the sentence. In my view, having regard to the following reasons, the definition which directs attention to inflicting a penalty on or for something at both 1a and 1b more relevantly informs the meaning of “punitive detention” within the meaning of imprisonment at s 501(12) of the Act.
Therefore, I do not accept as a matter of general understanding that the detention of juvenile offenders in Victoria can involve no element of punishment whatever (sic). As observed by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 27, subject to some limited exceptions not applicable here, the “involuntary detention of a citizen in custody by the State is penal or punitive in character and…exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”. The emphasis of their Honours was detention following upon a judicial determination. Not all detention is “punitive detention” under the Act.
Mr Overend was right to concede that the decision in Nuon binds the Tribunal. However, the Tribunal also makes the observation that HHKR’s case is factually different. His detention in the YJC at the time his visa was cancelled was not by order of the Children’s Court; it was by order of the County Court of Victoria. He was sentenced as an adult. It was an option available to the sentencing Judge, which Her Honour decided to exercise following a report, that she sent HHKR to be detained at a YJC rather than adult prison because the Judge was satisfied it would aid his rehabilitation.
In any event, the Tribunal also observed that the wording in section 501(12) of the Act is intended to take in varieties of confinement in terms of the definition of “imprisonment”. It is of a piece with other architecture of that part of the Act, which the Parliament clearly intended to be Draconian, such as the requirement to count concurrent sentences as consecutive (see section 501(7A)) and the requirement in section 501(9) of the Act that residential drug rehabilitation schemes or residential programmes for the mentally ill be taken to be “terms of imprisonment” equal to the number of days a person is required to participate in the scheme or programme.
The Tribunal, therefore, finds, in this context, that the definition in section 501(12) that “imprisonment” includes any form of punitive detention in a facility or institution and includes the detention of HHKR by a judicial decision of the Judge of the County Court in imposing sentence. HHKR was not at liberty; he was confined. That fact, alone, means that the imposition of the YJC was ‘punitive’. The observation of the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, referred to above, with the necessary substitution of the word ‘person’ for ‘citizen’, supports such a conclusion.
Finding on the character test
Marrying the convictions and sentences dated November 2017 with the fact that HHKR was serving a sentence of full-time imprisonment on the date his visa was cancelled, the cancellation of his visa was mandatory by operation of law. He did not pass the character test.
Is there ‘another reason’ to revoke the visa cancellation?
Section 501CA(4)(b)(ii) of the Act provides that the Minister (or, in this case, the Tribunal standing in his shoes) may revoke the original decision if satisfied that there is “another reason why the original decision should be revoked”. The way the Tribunal must approach this question is guided by a direction that the previous Minister has made under section 499 of the Act.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under section 499(2) of the Act.
Ministerial direction No. 90
On 8 March 2021, the then Minister made section 499 direction, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” under section 501CA(4) to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factors in the circumstances of the case.
The Tribunal must consider the primary and other considerations in the Direction as relevant to HHKR’s personal circumstances and his offending history.
Primary consideration: Protection of the Australian community
Paragraph 8.1(2) of the Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Applicant committed violent crimes. There is no evidence of crimes in the other categories.
The offending which triggered the visa cancellation
The Tribunal refers to the Reasons for Sentence of the Judge in the County Court of Victoria in November 2017 (GD, pp 52-63). Her Honour dealt with HHKR and two co-offenders who were tried with him. HHKR and his co-offenders pleaded guilty. The Judge set out the circumstances of the offending, which took place in February 2017. The armed robbery took place at a service station in a suburb of Melbourne early in the morning. HHKR and his co-accused entered the service station shop. One co-offender carried a double-barrel shotgun. HHKR and his other co-accused each carried a machete. They were dressed in dark clothing and had their faces covered.
There were two employees at the service station. On seeing the three offenders, one ran out of the shop, screaming for help. The other tried to hide. One co-offender demanded money. The employee opened the till. Almost $600 in cash and some cigarettes were taken. HHKR then came behind the counter and helped himself to more than $6,000 worth of cigarettes. The armed robbery was captured on closed-circuit television. This founded the conviction for Armed Robbery.
The three offenders left the service station. Shortly thereafter, they went to a nearby news agency. Three employees were working there. One co-accused entered with the shotgun. HHKR and the other entered, carrying machetes. They demanded the keys to two safes and the locker where cigarettes were kept. An employee explained that because their bosses were not there, nothing was open. The Judge referred to damage to the cigarette locker consistent with attempts to open it with machetes. This founded the conviction for Attempted Armed Robbery.
The Judge referred to still photographs from the CCTV footage as being a picture of chilling menace. Her Honour noted that one machete had a 60-centimetre blade and the other a serrated 36-centimetre blade. The Judge referred to the presence of weapons and the choice of disguising clothing as illustrating a degree of premeditation in the offending. She described the victims as “soft targets” working late at night or in the early morning. The Judge also referred to various remarks from the victims about how they were affected by the incidents.
The Judge then addressed each of the three co-accused in turn. In respect of HHKR, Her Honour noted that he committed the offences one month after he turned 19 years of age. She noted that he came to Court with three prior Court appearances. Her Honour recorded HHKR appearing at the Children’s Court in the first quarter of 2016 for several offences of dishonesty and violence, including two charges of armed robbery. She recorded he was released without conviction on a Youth Supervision Order (‘YSO’) for 12 months.
The Judge then referred to HHKR appearing at the Magistrates’ Court of Victoria in the third quarter of 2016 on driving and dishonesty charges. HHKR was convicted and ordered to undertake a Community Corrections Order for six months, including 75 hours of unpaid community work. On the same day, HHKR appeared before the Children’s Court charged with breaching the YSO he had been given earlier in 2016. Again, without conviction, he was released on a further YSO for a period of eight months and ordered to complete a motor vehicle offenders programme.
The Judge noted that an aggravating feature in the offending before her was that HHKR had breached both his second YSO and the Community Service Order. Her Honour referred to HHKR’s previous engagement with the youth justice system and a report by an officer of the Victorian Department of Justice. The report noted that HHKR had attended only 12 of 22 scheduled appointments with Youth Justice prior to being remanded into adult custody. He had been enrolled in a Certificate I in Building and Construction, which he completed at the end of 2016. The officer attempted to enrol him in a bricklaying course but said he did not appear to be interested. She recorded that he had told her he had fractured his spine after falling off a roof, but he had, in fact, injured it in a motor vehicle accident. She noted that he had ceased smoking cannabis.
The Judge noted that the officer had continued to visit HHKR in prison. She felt he appeared to take some responsibility for his actions and displayed victim empathy and remorse. The officer noted family support from the Applicant’s sister and that he was agreeable to engaging in alcohol and drug counselling to address his ‘ice’ and cannabis use and had now expressed interest in the bricklaying course. The officer recorded that HHKR had spoken of experiencing flashbacks regarding traumatic events in his life, which had not been addressed in a therapeutic setting.
The Judge decided, while she had some reservations, that HHKR’s prospects of rehabilitation “should be reasonable”. She noted that HHKR had been assessed by prison authorities as a medium security risk, while his co-offenders had been classified as maximum-security risk prisoners. Her Honour took into account HHKR’s young age and his plea of guilty, noting there is no evidence that he was necessarily remorseful. She indicated that, without the guilty plea, the total effective sentence would have been seven years imprisonment with a non-parole period of five years.
In reaching her decision, the Judge had to take into account the provisions of the SentencingAct 1991 (Vic) (‘the Sentencing Act’). Section 3 of the Sentencing Act provides that a “young offender” means an offender who at the time of the sentencing is under the age of 21 years. HHKR was, at the time of sentence, 19 years and 10 months. Section 32 of the Sentencing Act provides that a Court may make an order for confinement in a YJC if it has received a pre-sentence report and (a) it believes there are reasonable prospects for the rehabilitation of the young offender and (b) it believes that the young offender is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison.
The Sentencing Act further requires that the Court must have regard to the nature of the offence and the “age, character and past history” of the young offender.
The Judge did take account of the factors that the Court was required to do under the Sentencing Act. Her Honour said that she had ‘anguished’ over the decision, but she ultimately decided to make a Youth Justice Order (‘YJO’). It is significant to note that the Sentencing Act requires that time held in custody by a young offender prior to sentencing must be reckoned as a period of detention already served unless the Court otherwise orders. Although Mr Overend reasonably submitted that the maximum sentence for the offence of armed robbery is 25 years and HHKR received a detention order of three years, it was equally reasonable for Ms Nyabally to remind the Tribunal that the sentencing Judge did indeed make an order that the period of more than nine months that HHKR spent in adult prison on remand not be counted as time already served. Her Honour said that to do so would, in her view “have resulted in a sentence which was inadequate to reflect the gravity of the offending” (GD, p 71). The practical effect is that the period of aggregate period of custody for the Applicant in relation to this offending was to be three years and a little over nine months.
Ms Nyabally, in her closing submissions, said that the Respondent accepts this is a finely balanced case; that on the one hand, the Applicant’s offending is extremely serious, and therefore that fact, alone, would be expected to weigh strongly against him. She said that the Respondent does not place weight on HHKR’s offending in 2015 or 2016, and she explicitly withdrew the contention in the RSFIC that the offence committed against a police officer in the performance of her duties should be considered to be engaged.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
The ASFIC acknowledged that the index offending was very serious. Mr Overend explicitly acknowledged that the Judge had remarked that the offending “caused ongoing adverse psychological consequences for five citizens” and said this is an undisputed description of the nature of the harm.
Mr Overend submitted that the following factors should be taken into account: The fact that HHKR was only 19 years of age and less able to form moral judgments and control his impulses and was less aware of the consequences of his actions. The fact that HHKR was abusing and using ‘ice’ daily at the time of committing the index offences. The fact that HHKR was associating with poor peer supports and lacked moral guidance. The background that HHKR had a background of unresolved trauma, being exposed to violence and significant hardship from a young age throughout his personal history. Mr Overend noted that Dr Nina Zimmerman, consultant psychiatrist, had diagnosed HHKR with Post-Traumatic Stress Disorder (‘PTSD’) because of his witnessing traumatic events, including actual or threatened death or serious injury in the refugee camp.
The Tribunal notes that a number of these characteristics of HHKR’s traumatic background apply equally to his mother and siblings. None of them has, as the learned Judge remarked, had any trouble with the law (GD, p 65).
The Tribunal has had regard for Dr Zimmerman’s psychiatric report dated 22 June 2021 (GD, pp 302-325). She assessed HHKR by video-link (as he was at the Christmas Island Immigration Detention Centre) four days earlier. Dr Zimmerman referred in her report to her interview with the Applicant and the various documents, including earlier mental health and forensic reports, she had drawn on.
Dr Zimmerman concluded that HHKR has a history of alcohol, cannabis and MDMA misuse disorders. In regard to alcohol misuse, her opinion was that this was in full remission, noting that this had been achieved in a controlled environment where access to alcohol is restricted. In respect of his cannabis misuse disorder and MDMA misuse disorder, Dr Zimmerman similarly opined that each of these was in full remission in a controlled environment. Dr Zimmerman came to the opinion (GD, p 317) that HHKR suffers from PTSD consistent with the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition. She said that HHKR showed some symptoms of depression, including sleep disturbance and periods of low and stressed mood and concluded that HHKR was not currently experiencing Major Depression but is at high risk of developing it.
Regarding an assessment of the risk of re-offending, Dr Zimmerman found several static or historical risk factors were present. These were a history of violence, antisocial behaviour, substance abuse and problems with non-intimate relationships. She also observed a history of unemployment, evidence of mental illness and ‘supervision failure’. Dr Zimmerman said that there was self-awareness of HHKR, especially regarding his understanding of the effect on him of alcohol and drug misuse during his offending. She said he demonstrated insight into the risk between his peer group and his offending, and the need to establish a different network. Overall, Dr Zimmerman was of the opinion, looking at HHKR’s history and the nature of the difficulties he faces, that he currently poses a ‘moderate risk’ of violence in the future. She qualified this by expressing the view that he poses a low risk of violence causing serious physical harm and a low risk of imminent violence.
Ms Nyabally submitted that the Respondent had examined reports of HHKR’s conduct during his time in youth detention and that they were particularly favourable regarding his behaviour and attitude. She said that the key factor is HHKR’s willingness to take part in courses designed to improve his conduct and lessen his chance of recidivism.
The Tribunal particularly notes the letter from Judge Bourke, chairperson of the Youth Parole Board of Victoria, dated February 2019 (GD, p 183). His Honour relevantly wrote:
As background, reports submitted to the Youth Parole Board indicate that HHKR has behaved well in Youth Justice custody and has used his time productively. The attached Custodial Progress Report dated … December 2018 written by [redacted] notes that in his time in Youth Justice custody HHKR has:
·Maintained the highest rating on the centre’ behaviour management regime – Achieve, Challenge, Encourage (ACE);
·Avoided negative behaviour and associates within the unit; and
·Due to his maturity he was transitioned to the open site and was given the opportunity to participate in the ground maintenance program with outstanding reports.
Similarly the precinct’s teachers and rehabilitation clinicians note that HHKR has addressed rehabilitation in custody by:
·Successfully completing the Adolescent and Violence Intervention Program.
·Attending all allocated classes at Parkville College; and
·Is engaging well in individual psychology appointments.
Furthermore, it is reported that, despite his stressful situation, HHKR has remained compliant and pleasant to staff and peers. He has expressed an intention to be a contributing member of society by obtaining employment upon release from custody.
The Tribunal has regard for the professional opinion of Dr Zimmerman, an experienced psychiatrist who had the opportunity to read the earlier reports on HHKR’s conduct. The Tribunal considers that her conclusion should best be interpreted as that HHKR is a moderate risk of re-offending, which may reduce depending on further rehabilitative courses he has undertaken.
The Tribunal notes the evidence of Mr PA. He lives in South Australia and has a permanent job working as a warehouseman for a large national employer. He owns his own house, which he told the Tribunal has four bedrooms. He works four days a week and also works on his own account as a handyman. He said his employer is currently recruiting and that he would speak to his manager about hiring HHKR to work at the same place and on the same shifts. Mr PA said he had seven cousins who live around Adelaide, and one is a police officer who has experience in dealing with young offenders recently out of custody. The Tribunal found Mr PA’s evidence impressive; he was aware of HHKR’s offending and what measures need to be taken to reform his brother’s behaviour.
The Tribunal concludes that although the deemed expectations of the community would be that a non-citizen who had participated in the sort of night-time armed robberies against people going about their everyday occupations would be that the visa remains cancelled, there would be some allowance of the fact that HHKR did not, himself, inflict any physical harm and was young at the time of this offending. Nonetheless, this primary consideration weighs somewhat against revoking the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent submitted that this consideration is not relevant. The Tribunal agrees with that submission; none of HHKR’s offending appears to fall within this category.
This primary consideration therefore weighs neutrally in the Tribunal’s assessment.
Primary consideration: Best interests of minor children in Australia affected by the decision
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Applicant has no children of his own but there are three minor children whom the Tribunal has identified as relevant to this primary consideration: his niece EX, his nephew NX and his youngest sister, JX.
Minor child – EX
EX is the daughter of the Applicant’s sister, Ms LA. She is HHKR’s goddaughter. There was evidence before the Tribunal that he has been particularly close to her. EX is about to turn eight years of age. In her statement, Ms LA said:
When he was with us, EX was like his own baby – everyone thought that he was a single daddy. When he was arrested, EX was still young so she cannot recall her life with HHKR and how great [an] uncle he was so it breaks my heart that they used to be so close to each other and cannot be together now. Every single time that I visited HHKR when I was living in Melbourne, EX wanted to come with me, so I took her to see her uncle.
When she gave evidence at the hearing, Ms LA said she was currently working in Western Australia and that, because of the practicalities of her work, she had taken EX back to be cared for on a temporary basis by her mother. The Tribunal notes that the family met and decided that the best thing for HHKR if he is allowed to stay in Australia is that he moves to live with his older brother, Mr PA, in South Australia. The Applicant’s mother, in her evidence, agreed that was the best approach but that he might spend a short time in Melbourne before going to live in South Australia.
In any event, HHKR does not perform a parental role in relation to EX. Her mother and EX’s grandmother undertake that role. The Tribunal makes a determination in relation to EX, because she is old enough to know HHKR and has kept in contact with him, including visiting him in custody, that she would be saddened if he is deported and that it would be in her best interests for the mandatory cancellation of the visa to be revoked.
Minor child - NX
NX is the son of the Applicant’s older brother, Mr PA. NX lives with his mother but is frequently in the care of his father. Mr PA, in his evidence, says that NX will be five years of age at the end of this year.
Mr PA said that HHKR had met NX when NX was only six months old, and he took him to visit his uncle in prison. If HHKR has his visa restored and moves to live with his brother, no doubt he will be involved in NX’s life. However, NX’s own parents each perform the conventional parental roles in NX’s life, albeit they are not together.
The Tribunal makes a determination that it would be mildly in NX’s best interests for HHKR to remain in Australia, but it will have little effect on him, given his age and the fact that he does not (yet) know his uncle.
Minor child – JX
JX is the youngest sibling of HHKR. She was born in 2011 (GD, p 111). In his statement, he wrote that he is close to her and that she started high school in 2021. He said that he would pick up JX from school and look after her when their mother was not home.
The Tribunal makes a determination that it would be in JX’s best interests for her brother to have his visa restored. She is old enough to have more and closer interactions with him than the other two minor children mentioned, but it is also true that he does not perform a parental role in relation to JX; their mother does.
Overall, the Tribunal finds that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa, but the weight is limited.
Primary consideration: Expectations of the Australian Community
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued by the Minister after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the expectations of the community would be that HHKR should not retain his visa, given that he embarked, with others, on a series of offences which the Judge, when passing sentence, described as of a “seriously violent and disturbing nature”. They were to some extent premeditated given that disguising clothing was worn, weapons were borne, and the offences were carried out on soft targets, in the middle of the night, where the victims were doing no more than carrying out their jobs. In the words of the Judge, the victims had their peaceful dignity disturbed by an act of brazen violence. Given these circumstances, the deemed expectation would be against HHKR continuing to hold a visa.
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
Other consideration: International non-refoulement obligations
The Direction states 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 goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
The Respondent acknowledged that extensive claims had been raised by the Applicant that these obligations are invoked. Ms Nyabally submitted that a detailed examination of these claims could be deferred until HHKR makes an application for a protection visa, and submitted that the Tribunal could find that it is likely he will do so, if the mandatory cancellation of the visa is not revoked. She said that the Respondent’s position was that this consideration weighs moderately in favour of the Applicant but that he is entitled to apply for a protection visa and would not be liable to be removed while any such application is being considered.
Mr Overend submitted that the Tribunal could make its own assessment of the claims under this consideration, while noting the expedited nature of the Tribunal’s deliberations is governed by the provisions in section 500(6L) of the Act.
The ASFIC submitted that HHKR would have an imputed political opinion as being perceived as opposed to Dinka authorities, Dinka-led factions in the South Sudan Government, Dinka militias or other armed groups, on account of his Madi ethnicity, and equivalently with Nuer authorities and groups.
The ASFIC further recorded that HHKR was at risk because he was a young man at risk of forcible recruitment by armed groups; that, having spent his formative years outside South Sudan, he would be perceived as wealthy or foreign; that he would be marked out purely because he had never lived in South Sudan and had no family or tribal connexions in South Sudan; and that he was a ‘returnee’ from a Western country.
The Applicant himself wrote (Exhibit A1):
My family are from South Sudan, and I am of Madi ethnicity. I speak Acholi language at home. I know that my family had to leave Sudan before I was born due to the war that was going on there. South Sudan wasn’t even a country when I was born. My Mum used to tell me a bit about what life was [like] there, particularly about when her Mum and Dad were killed.
…
My mother fled Sudan to Kenya and lived as a refugee. I was born in a refugee camp in Kenya. The area that my family is from is in what is now known as South Sudan. I do not have citizenship to [sic] South Sudan – I have never been there. I know nothing about South Sudan, I have no family or connections there and I have been told that there is a lot of ethnic conflict in South Sudan. If I am sent there, I will be alone with no support, nowhere to live, no way to support myself and I will probably be caught up in conflict and violence. I am afraid I will be homeless, be harmed or even killed. I do not even know if I could go to South Sudan.
The Tribunal considers that some of the concerns evinced by HHKR would more appropriately be addressed under the extent of impediments that would face him if deported to South Sudan. However, he objectively has presented, to the Tribunal’s mind, several factors personal to him that would mark him out and – potentially – put him in harm’s way. He is not a member of the major group in South Sudan, the Dinka. Nor is he a member of the second vying group, the Nuer. He is a member of a small group of some 150,000 Madi people, many of whom fled Sudan to Uganda during the height of the civil war, and did not return. He has no local knowledge, having never lived in South Sudan, and does not speak the local languages other than English and ‘some’ Acholi.
The Tribunal accepts HHKR might make an application for a protection visa if his visa is not restored. I consider the submission by the Respondent that this consideration would be likely to weigh moderately in favour of the Applicant to be correct. That weight may increase if the more detailed assessment that specialised officers of the Minister’s Department would make if considering an application for a protection visa had been undertaken. However, on the necessarily less in-depth assessment the Tribunal has been able to make, the safer course at this stage is to find that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.
The Respondent accepted that this consideration weighs strongly in favour of HHKR. The RSFIC notes that the Applicant would be unlikely to receive the same familial, medical, social and economic support as he has in Australia if returned to South Sudan and that the documented lack of medical facilities could impact upon the ongoing treatment of his mental health and drug addiction. However, the Respondent added that there is no evidence to suggest that HHKR would be unable to avail himself of the support available to him in South Sudan, in the context of what is generally available to other citizens of that country.
The Respondent further accepted HHKR would be likely to face cultural barriers because he has never lived in South Sudan but submitted that it was not evident, he would be impeded in terms of language where South Sudan has English as its official language. Overall, the Respondent submitted that these factors cumulatively present significant impediments for HHKR upon ‘return’ but that if he applies for a protection visa and a protection finding is made, he would be unlikely to be returned to South Sudan.
The Respondent also referred to the analysis I made in Re: Galuak and Minister forImmigration and Border Protection [2018] AATA 2301 in support of the contention that the country of reference for HHKR is South Sudan.
Country of reference
The Applicant submitted that HHKR was born in 1998 in Kakuma Refugee Camp in Kenya, and that he is of Madi ethnicity and is Christian. Mr Overend submitted that the family is originally from South Sudan and fled to Kenya in 1997 owing to the civil war in Sudan at the time and the ongoing instability in the region. The Respondent did not dispute this factual background.
The Tribunal notes that the Transitional Constitution of the Republic of South Sudan, 2011 provides, at Article 45(1):
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
The Nationality Act, 2011 (South Sudan) provides that a person born before or after the Act has entered into force shall be considered a South Sudanese National by birth if (a) the parents, grandparents, or great-grandparents of the person, in the male or female line, were born in South Sudan, or (b) the person belongs to one of the indigenous ethnic communities of South Sudan.
The evidence of the Applicant’s mother, Ms SJ, was that she was born in the territory of what now constitutes the Republic of South Sudan, as was HHKR’s father. The Tribunal accepts this evidence and, because of the declaratory nature of the South Sudan citizenship legislation, finds that HHKR is entitled to citizenship of the Republic of South Sudan.
HHKR is a member of the Madi ethnic community. The Madi are located on each side of the Nile, living in both Uganda and South Sudan. Pursuant to the powers of the Tribunal under section 33(1)(c) of the AAT Act, the Tribunal consulted A Study in Statelessness in South Sudan, produced by the UNHCR in 2017. That document records:
Challenges to access to nationality certification also relate to ethnicity. Trans-boundary communities such as the Madi and Acholi face further difficulties in proving their South Sudanese origins. The Nationality Regulations request that confirmation be provided that applicants from trans-boundary communities are indeed from the South Sudanese part of the community, which, in practice, includes additional recommendation letters and verification from local leaders.
The Tribunal further accepts that administrative processes would need to occur before HHKR received citizenship papers from the government of that country and, in turn, a South Sudan passport. These would take some period, and there may be added complexities for HHKR to obtain what verification he might require, given the long absence of his mother from South Sudan and her evidence that they have no local links.
Other impediments
The Respondent submits that HHKR would not have the family and social support he has in Australia if he is deported to South Sudan. The Tribunal agrees with that. The Respondent then goes on to say that the economic and medical support available to him in South Sudan would not be the same as in Australia. That may be true, but it is not the yardstick that the Direction requires the Tribunal to apply. The Tribunal must consider what is available, compared not with Australia but with that available to other citizens of South Sudan (see paragraph 9.2(1) of the Direction).
When asked about his physical health, HHKR told the Tribunal about a childhood incident where he plunged his hand into a hot liquid which he mistakenly thought was porridge. He said he sustained burns to his hand and forearm and had to be hospitalised for two weeks in a coma with his mother looking after him. He said he was now in good physical health, although he does take prescribed antidepressant medication. When asked if he was currently seeking any health professionals, he responded “not really”. The Tribunal asked if he went to the IDC clinic for any purpose, and he responded he did not. He also agreed that he told Dr Zimmerman that he did not participate in group discussions on Christmas Island because he did not like talking about his feelings in front of fellow detainees and then said that he did occasionally go to the psychologist, which he found helpful because it was someone to talk to. HHKR said he felt he would be better in counselling in front of people he did not know, because he would feel he can open up.
The Tribunal agrees with the parties that there is a feature of HHKR which is special to him and which properly should be considered, and that is the diagnosed mental health conditions as enumerated by Dr Zimmerman, acknowledging that all are in remission in a controlled environment. The DFAT Country Information Report South Sudan (‘CIR’) states that South Sudan’s population has “extremely poor access to health care”. The UN Development Programme ranks South Sudan at 169 out of 187 countries in its 2015 Human Development Index. There is a high infant mortality rate. Only 55 per cent of the population has access to uncontaminated drinking water. Eighty per cent of the population does not have access to toilet facilities. The CIR does not refer explicitly to mental health support, but, with this backdrop and the remark that “DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation”, the Tribunal reasonably concludes that HHKR would not have ready access to even basic mental health facilities.
In respect to language, HHKR said in a statement that he speaks only ‘a little bit’ of Sudanese Arabic. In the hearing he said he does not speak Dinka or Nuer, or any of the ethnic languages of South Sudan, except Acholi. He said that he speaks Acholi to his mother but has lost some fluency in it. He does speak English, and the Respondent’s remark that English is the official language of the country is accurate; however, the fact that HHKR is unfamiliar with any of the other languages more commonly used in the country would, in the Tribunal’s view, present a significant barrier to him.
The greatest obvious impediment to HHKR being deported to South Sudan is that he has never lived in that country, has no known family – even distant relatives – there, does not speak any of the more common local languages and is a member of a non-mainstream ethnic group. The Tribunal finds that his mental health would be likely to suffer if he was deported to that country.
Overall, the Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Other consideration: Impact on victims
Although there was evidence, as referred to above, of the psychological effect of the Applicant’s (and his co-offenders) offending in February 2017 on the victims, the Tribunal interprets this part of the Direction as meaning evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. As there is no such evidence before the Tribunal, this consideration weighs neutrally.
Other consideration: Links to the Australian community
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
The Applicant arrived in Australia aged nine after a disrupted, and traumatic childhood spent as a displaced person in a refugee camp in Kenya. It appears from the papers (and is referred to by the learned Judge) that he had no education until he came to Australia and was able to enrol in school. His mother received a Woman at Risk visa based on an objective assessment of the danger she (and the family) was exposed to from her husband. HHKR said he has had no contact with his father since about two months before they came to Australia and did not know his current whereabouts but believes he is still somewhere in Africa.
The Applicant’s only family are his mother, an older brother and four sisters – two older and two younger. They are all in Australia. He also has a young niece and nephew here, referred to earlier in these reasons. I am satisfied that all of them would be affected if he was deported, his mother and sisters significantly so.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
The Respondent submitted that this sub-consideration is not engaged. The Tribunal agrees with that. In his personal circumstances form when asked to list his employment history, HHKR wrote “none” (GD, p 113).
Melding the sub-considerations together, in terms of making finding about this consideration overall, the Tribunal finds that this consideration weighs in favour of revoking the visa cancellation and assigns relatively heavy weight in favour of cancellation.
Additional consideration – prospect of prolonged detention
As mentioned above, the Direction does not confine the Tribunal’s task. Any other matter that is relevant to the purposes of the Act and raised should be considered. The prospect that HHKR would face prolonged detention was raised by the Applicant.
The Tribunal accepts that HHKR has not applied for a protection visa, and if the mandatory cancellation of his visa is affirmed, the opportunity would then present for him to make an application for a visa in that category. It may be that the Respondent is correct, that it is likely, but the Tribunal does not make that finding.
The UNHCR report referring to especial difficulties trans-border ethnic groups, such as the Madi, face in gathering the required period to prove they are entitled to South Sudan citizenship is something that I do take into account. That means that, even if the Tribunal affirmed the decision and HHKR did not apply for a protection visa, he would be likely not to be sent to South Sudan imminently and must continue to be detained because of section 198 of the Act.
The Tribunal considers that HHKR has already spent a significant period in immigration detention, and elongation of that is a factor that would tend to support the restoration of his visa, if the other options are not practicably able to take place in a timely manner.
This special consideration weighs in favour of revoking the mandatory cancellation of the visa.
Summation
Of the primary considerations, the Tribunal has found that the protection of the Australian community weighs against revoking the mandatory cancellation of the visa, as does the consideration relating to the expectations of the Australian community. The family violence primary consideration is not relevant. The primary consideration relating to the best interests of minor children in Australia weighs in favour of HKKR, but that weight is affected by the fact that he does not play a parental role in relation to any of the three minor children whose interests have been identified as being affected or potentially affected.
In relation to the other considerations, the Tribunal has found that the consideration relating to international non-refoulement obligations weighs in principle moderately in his favour but weighs neutrally contingent on a more detailed assessment than this Tribunal can undertake in a timeframe that is constrained by section 500(6L). The consideration relating to the impact on victims is not relevant. The considerations relating to links with Australia and impediments if removed to South Sudan both weigh heavily in favour of revoking the mandatory cancellation of the visa. The special consideration relating to the prospect of prolonged detention weighs in favour of the Applicant.
The Tribunal is mindful that the Applicant’s offending was very serious. There is no doubt about that. But I must balance that with the fact that he was sentenced to his first custodial term, and the learned Judge decided, after careful consideration, that this should occur in a YJC, rather than a prison. Her Honour based that on his prospects of rehabilitation. HHKR’s conduct in the YJC has been positively responsive to that decision. The letter from Judge Bourke of the Youth Parole Board commending his behaviour without reserve, referred to above, carries significant weight in the Tribunal’s weighing exercise.
The Respondent rightly conceded that the Applicant had behaved well in youth and immigration detention. He has undertaken courses designed to help him to not re-offend. His family have developed a positive and protective plan – which he says he supports – that he should move in with his older brother in another State, away from the temptations of former antisocial friends. His brother has stable employment, and his own house. Also in South Australia are other established cousins, including one who is a serving police officer with experience dealing with young offenders. HHKR’s brother believes he can secure employment for the Applicant at the same place at which he works.
HHKR’s conduct from around the age of 15 or 16 to 19 has been nothing short of poor. It has been antisocial and has damaged society. More, it has also damaged him, as has his alcohol and drug misuse. However, heavy weight attaches to the fact that his bad conduct was as a minor and his major offending when just an adult.
Finding on ‘another reason’ to revoke the visa cancellation
While generally more weight is assigned to primary considerations, no consideration in the Direction is determinative. When I put all these circumstances relevant to HHKR against the situation that would face him if he is deported to a country he has never lived in, and where there is no family support, I am satisfied that the discretion is enlivened and find that there is another reason within the terms of section 501CA(4)(b)(ii) of the Act for the mandatory revocation of the visa to be revoked. The consequence of that finding is that the preferable decision is to set aside the decision under review.
DECISION
Pursuant to section 43(1)(c) of the AAT Act, the Tribunal sets aside the decision of the delegate dated 23 June 2022. In substitution for the decision so set aside, the Tribunal decides under section 501CA(4)(b)(ii) of the Act that the mandatory cancellation of the Applicant’s Class XB Subclass 204 Refugee and Humanitarian (Woman at Risk) visa is revoked.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 14 September 2022
Dates of hearing:
1 and 2 September 2022
Counsel for the Applicant:
Mr Bryn Overend
Solicitors for the Applicant:
WLW Migration Lawyers
Advocate for the Respondent:
Ms Siran Nyabally
Solicitors for the Respondent:
The Australian Government Solicitor
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