HSCK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3095

HSCK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3095 (28 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5107
Re:HSCK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:28 September 2023
Place:Melbourne

The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Member R West
Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – protection finding - legal consequences of the decision – extent of impediments if removed – decision affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences)Act 2023 (Cth)
Cases

CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392

HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013

JYVT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1135
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Pearson v Ministerfor Home Affairs [2022] FCAFC 203
QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 226
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Sillars v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VLPW v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4320

Secondary Materials

Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION
Member R West
28 September 2023

This matter concerns an application for the review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The Applicant was born in Sudan in September 1991.
He first arrived in Australia in May 2003 on a Class XB Subclass 200 Refugee (Visa) which was granted to him while offshore in March 2003.[1]
[1] G11, p.102.
In July 2015 the Applicant was convicted in the Magistrates Court of Victoria at Dandenong of various offences and sentenced to an aggregate period of 20 months imprisonment.[2]
[2] G5, pp.57.
On 25 January 2016 the Applicant’s Visa was cancelled under s 501(3A) of the Act (Cancellation Decision).[3]
[3] G16, pp. 206-210.
On 5 April 2022, the Applicant was notified of the cancellation of the Visa and invited to make representations about revoking the Cancellation Decision.[4]
[4] G18, pp. 212-225. A previous notification and invitation dated 25 January 2016 did not meet with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCAFC 174 which necessitated a renotification.
The Applicant made representations to the Respondent as to why the cancellation of the Visa should be revoked on 13 April 2022.[5]
[5] G23, G26, and G27.
On 14 June 2023 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision).[6]
[6] G2 pp.14-36.
The Applicant was notified of the Reviewable Decision on 10 July 2023.[7]
[7] G2, p. 7.
On 14 July 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[8]
[8] G1.
HEARING
The Tribunal conducted a hearing of the Application on 20 and 21 September 2023. The Applicant was represented by Mr David Carolan of counsel. The Respondent was represented by Mr Tigiilagi Eteuati a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G29 and paginated from pages 1 to 333 (G Documents), and further documents including those produced under summons and lodged by the Respondent as supplementary documents paginated from pages 1 to 705 (SG Documents);
(b)the documents produced by Victoria Police under summons by the Respondent paginated from pages 1 to 50 and marked as Exhibit R1;
(c)the documents lodged by the Applicant and marked as exhibits in Appendix A; and
(d)the oral evidence of:
(i)the Applicant; and
(ii)Ms Selba-Gondoza Luka.

LEGISLATIVE FRAMEWORK

Section 501CA(4)(b) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(i) the Applicant passes the character test (as defined in s 501); or
(ii) that there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
In July 2015 the Applicant was found guilty in the Dandenong Magistrates Court of contravention of a community correction order and convicted of recklessly causing injury, unlawful assault, affray and theft and sentenced to four terms of imprisonment totalling 38 months to be served concurrently as a maximum sentence of 20 months with a 12 month non-parole period.[9]
[9] G4, p. 43 and G5, pp. 45-49.
The Migration Amendment (Aggregate Sentences)Act 2023 (Cth) has clarified that an aggregate sentence can be relied upon for the purposes of considering if a person has a substantial criminal record.[10]
[10] The Act responds to the Full Federal Court judgment in Pearson v Ministerfor Home Affairs [2022] FCAFC 203 and has retrospective effect.
Further in March 2017 the Applicant was convicted in the County Court of Victoria of riot (common law) and sentenced to 15 months imprisonment.[11]
[11] G4, p. 43.
The Applicant concedes that he has a ‘substantial criminal record’ within the meaning of s 501(7)(c) and does not pass the character test under s 501(6)(a) of the Act.[12]
[12] Applicant Statement of Facts, Issues and Contentions, dated 1 September 2023, at [10].
On the basis of these matters, the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7)(d) and that by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[13]
[13] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [17].

DIRECTION 99

Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in clauses 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Clause 6 stipulates that the decision maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
EVIDENCE

Applicant’s Criminal Record

A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[14] It records that:
[14] G4, pp.42-44.
a.In December 2011 the Applicant was convicted in the Dandenong Magistrates Court of unlicensed driving, stating false name, failure to answer bail, drink driving, drunk in a public place, offensive behaviour, resist police (2 charges) and unlawful assault. He was disqualified from driving for 10 months, fined an aggregate of $800 and released on a 12-month Good Behaviour Bond.
b.In April 2012 he was convicted in the Broadmeadows Magistrates Court of possession of a controlled weapon and sentenced to 60 days imprisonment partially suspended.
c.In June 2012 he was convicted in the County Court of Victoria of affray, intentionally causing injury, recklessly causing injury (2 charges), assault by kicking, theft of a motor vehicle, failure to answer bail and assault and injurious imprisonment and was ordered to pay compensation of $5,421 and was subject to a 12-month community correction order.
d.In November 2012 he was convicted in the Dandenong Magistrates Court of recklessly causing injury and unlawful assault and subject to a further 12-month community correction order.
e.In March 2013 he was found guilty in the County Court of Victoria of contravention of the community corrections order of June 2012 and sentenced to an aggregate of seven months imprisonment in respect of all charges for which he was convicted in June 2012.
f.In May 2013 he was convicted in the Broadmeadows Magistrates Court of intentional damage to property, unlawful assault, possession of cannabis and contravention of community corrections orders of June and November 2012 and sentenced to an aggregate of 30 days imprisonment (including two 14-day sentences to be served concurrently) and restoration of a suspended sentence of 17 days imprisonment.
g.In February 2014 he was convicted in the Dandenong Magistrates Court of affray and subject to a 12-month community correction order.
h.In July 2015 he was found guilty in the Dandenong Magistrates Court of contravention of a community correction order and convicted of recklessly causing injury, unlawful assault, affray and theft and sentenced to four terms of imprisonment totalling 38 months to be served concurrently.
i.In March 2017 he was convicted in the County Court of Victoria of riot (common law) and sentenced to 15 months imprisonment.

Sentencing Remarks

The Applicant was sentenced for his most serious offending in July 2015. The offending was described at length by the prosecutor and set out in the sentencing remarks of Magistrate O’Donnell.[15] The Magistrate commented in relation to the Applicant’s prior history:[16]
Your prior history, which dates some nine pages, for a man so young is littered with violence.
[15] G5, pp. 45-59.
[16] G5, p. 58.
The Magistrate described three occasions of violent offending, which were summarised in the Respondent’s submissions in these proceedings as follows:[17]
a.On 6 July 2014, the Applicant and his girlfriend, who were both intoxicated, were behaving in a “rowdy manner” at Southern Cross train station and subsequently on a late-night train. The Applicant and his girlfriend continued to drink on the train and were confronted by a passenger in relation to the manner in which they discarded the empty bottle. In response, the Applicant became “aggressive and abusive”, approached the victim and “used the back of his hand to slap him across the face causing [the victim’s] spectacles to break”. The Applicant then “climbed on the train seat and straddled [the victim] whilst he continued to assault him”. Another passenger [the second victim] came to the aid of the victim but was, in turn, assaulted by the Applicant’s girlfriend who placed him in a headlock and gouged his left eye. The Applicant then bit the second victim on the forearm and holding on with his teeth causing the skin to break, pain and bruising.[18]
b.On 9 August 2014, the Applicant with associates was refused entry to the Nu Hotel in Dandenong as they were intoxicated. After one of the Applicant’s associates was removed from the hotel, the Applicant “became angry and aggressive towards the security guard [and] then came towards the security guard [who] defended himself by pushing the Applicant and his associates away with the assistance of other patrons. A fight then ensued which involved the Applicant punching the security guard several times. The fight then escalated with associates of the Applicant swinging a belt at the security guard and throwing bricks and a glass. When interviewed by the police in respect of the incident the Applicant said “No-one even landed a punch on him. He just hit people. He’s just lucky none of us got our hands on him”.[19]
c.On 10 February 2015 the Applicant was observed urinating in public and requested to stop. In response the Applicant became “aggressive and confrontational” causing the victim to become intimidated and attempt to walk away. The Applicant pursued the victim and “threw a closed fist punch to the victim’s forehead causing the victim to fall to the ground”. This caused a laceration to the victim’s forehead and also knocked the victim’s sunglasses from his head which the Applicant took.[20]
[17] Respondent Statement of Facts, Issues and Contentions dated 14 September 2023, p. 5.
[18] G5, pp. 50-52.
[19] G5, pp. 47-50.
[20] G5, pp. 46-47.
The Applicant was convicted of Riot (Common Law) in the County Court of Victoria in March 2017 and in handing down the sentence His Honour Judge Lyon recorded the Applicant’s participation in what he described as the largest riot in Victoria's correctional history in the Melbourne Remand Centre involving 200 to 300 prisoners on 30 June 2015.
His Honour summarised the Applicant’s role as follows: [21]
[21] G6, pp. 63-64.
Between 11:45 am and 3:58 pm you:
·joined other inmates who walked through the breached fences to the basketball court in Area 2 and congregated there;
·entered Area 3 with other inmates and walked towards the CMC;
·partially disguised your face;
·armed yourself with a pole;
·used a fire hose to suppress tear gas;
·went back to Area 1, broke up a rock which had been brought into the area for other prisoners for the purpose of the riot;
·walked through Area 3 disguised and armed with a badminton racquet. I note the racquet was not used in direct confrontation with prison officers.
The one aspect of dispute between your counsel and the Crown concerned a portion of CCTV footage when Brent Kelly drove a tractor into the fences in Area 4. The Crown alleged that you directed Kelly to do so. The CCTV footage shows that as he drove towards where you stood with a number of other prisoners you held up your right arm. As you did so Kelly turned the tractor right, so as to enable the inference that he followed your direction. You denied that you were giving Kelly any such direction.
After watching the CCTV footage carefully, and after discussing the matter in submissions with your counsel and the Crown, I conclude that you were directing Kelly. It was, however, only momentary; perhaps only for a second or two.

Recent History of Incarceration

The Tribunal notes the following history of the Applicant’s incarceration since his offending in 2014:[22]
a.The Applicant was arrested in relation to offences committed in 2014 and taken into custody in February 2015 and remained in custody until trial.
b.In July 2015 he was sentenced to an aggregate of 20 months imprisonment with a non-parole period of 12 months.
c.The Applicant served his full sentence and was released from prison in October 2016 and taken into immigration detention.
d.The Applicant remained in detention until appearing before the County Court in March 2017 when he received a further 15 months sentence for his involvement in a riot while in prison on 30 June 2015.
e.The Applicant was granted early release from his sentence due to COVID 19 lockdowns and was released from prison in June 2018. He was then taken into immigration detention.
f.On 27 January 2021 the Applicant was granted a 3-month bridging visa and released from immigration detention.
g.He was taken back into immigration detention on 12 August 2021.
h.The Applicant was again released from detention in January 2023 and taken into detention again in July 2023.[23] He remained in detention until the time of the Tribunal hearing.
[22] G6, pp.60-73 and Exhibit A1 (copy at G25 pp. 278-292).
[23] His release resulted from the review of the decision to cancel his visa following the Full Federal Court judgment in Pearson v Ministerfor Home Affairs [2022] FCAFC 203. He was returned to detention following the enactment of the Migration Amendment (Aggregate Sentences)Act 2023.

Pending charges

As at the date of hearing, the Applicant has been charged on summons with offences of assault with weapon and intentionally cause injury allegedly committed at Dandenong on 16 July 2022,[24] and for possession of cannabis on 23 June 2023.[25] The hearing of the charges has been adjourned to a date to be fixed.[26]
[24] SG, pp. 223-224, G4, p.43 and G7, pp. 74-75.
[25] SG, p. 483.
[26] G7, pp. 74-75.
At the outset of the hearing the Tribunal determined that it was inappropriate for it to consider the circumstances of these pending charges given that the matters were yet to be determined by the courts. The Tribunal has further determined that it is inappropriate to have regard to the fact that charges have been laid in assessing the likelihood of re-offending. The Tribunal’s assessment of the considerations under Direction 99 has therefore been undertaken without any regard to those pending matters.

Applicant’s Evidence

The Applicant affirmed his statements of 6 June 2022[27] and 24 June 2019[28] and gave oral evidence at the hearing.
[27] Exhibit A1 – note the statement is dated 6 June 2022 but states that it was signed on 6 July 2022.
[28] Exhibit A2.

The Applicant said in his oral evidence that:
a.He was born in Sudan in September 1991. He is of Shilluk ethnicity and of the Christian faith. He is the youngest of five siblings, having two older brothers (one being the son of his uncle whom the Applicant described as like a brother) and two older sisters. His father is an Anglican Minister.
b.His family was originally from southern Sudan but moved to Khartoum before he was born. He was born in Khartoum and lived there until he was around eight and a half when the family fled to Egypt to escape the conflict in Sudan.
c.His father had fled Sudan earlier when the Applicant was three years old. He lived in the Netherlands and the Applicant had no contact with him at that time.
d.The family lived in Egypt for around two and a half years. They lived in a high-rise apartment with extended family members. He estimated that there were 10 people sharing a 2-bedroom apartment. He described life in Egypt as hard and said there was frequent violence, including fighting between different families. He said he attended school in Egypt.
e.In 2003 the family members were each granted a refugee visa to enable them to live in Australia. They arrived in Australia in May 2003.
f.In Australia he attended primary school in Dandenong, progressing to Lyndale Secondary College, then Chandler Secondary College, then Emerson Special School in Dandenong until he was 16 years old. He said he was bullied at school and that he responded to being picked on with anger and regularly became involved in fights.
g.His father returned to Melbourne in 2005 to join the rest of the family. He said he did not have a happy relationship with his father because his father tried to control his behaviour which he took the wrong way.
h.He commenced employment in 2010, when he briefly worked for a panel beating business. The last time he worked was in 2012, when he was employed for four months as a cabinet maker. He received the Newstart Allowance after he ceased working in 2012.
i.His most significant relationship has been with his girlfriend, Ms H. They were together from 2009, and he lived with Ms H before he was taken into custody in February 2015. They have since separated.
j.He asserted that his violent offending only occurred when he was under the influence of alcohol and that between the ages of 16 and 28 he drank alcohol excessively, often drinking until he was unable to walk.
k.He acknowledged using drugs including cannabis and methamphetamines but said his problem was mainly with alcohol. He said he could not control himself when drunk. He also said that the people he associated with in the past had poured fuel on the fire when problems arose.
l.He said that he started an alcohol rehabilitation program at one stage but Ms H didn’t want him to participate in it and he did not finish the program.
m.He said that being in gaol was not easy it had given him time to reflect on his life and he had undertaken courses to deal with violence and drug and alcohol dependence. He said that he now felt bad about what he had done and for the people he had hurt. He said he was now grown up and had chosen to look forward not backwards. He said if released he wanted to get a job and look after his family.
n.He said he had spoken to Ms Selba Luka who was able to help him get training as a welder and to find him a job. He said he was open to seeing a psychologist and would live at home with his father and mother if released. He said he has come to realise that his father was trying to help him when he was younger, and they now had a close relationship and he had his father’s support.
o.He said that when released into the community in 2021 he lived with his parents and spent time with his friend Mr S but after a while, problems developed because he had nothing to do and he could not work under the terms of his bridging visa.
p.He said that his sister S1 has problems with alcohol and had lost custody of her two children who were being cared for by their sister S2. The Applicant said he had been talking to S1 to try to help her with her alcohol abuse.
q.He said he had initially spoken the Shilluk dialect as a child in Sudan but also spoke Arabic and after coming to Australia learned to speak English. He said that he had forgotten a lot of Shilluk and Arabic but conceded that he spoke to his mother at home in a combination of the three languages.
r.In relation to the riot offence, he stated that he participated in the rioting because if he did not, he would have been targeted by the other prisoners.
In his statement in support of an application for a protection visa dated 24 June 2019 he stated:[29]
a.He accepted responsibility for his offending which was serious and he was very sorry for his actions which had hurt people.
b.He said that his friends were not a good influence on him and he was under the influence of drugs and alcohol when he committed the offences and became upset and angry and couldn’t control himself.
c.He said that his time in prison had given him an opportunity to address these issues and he was now a better person. He said he had attended a 42 hour rehabilitation program and had actively sought out a methadone program which had helped him stop using drugs. He said that he no longer drinks alcohol and denied that homebrew discovered in his accommodation was his.
d.He said he has strong family support and misses his family. He said he has spoken to his father about support he can access in the community if released including drug and alcohol counselling and with work and training. He said he has a strong network through the church. He said he plans to move in with his family and wants to focus on positive things in life.
[29] Exhibit A2.
In his statement of 6 June 2022, the Applicant described his experience when released from immigration detention on a three-month Bridging Visa E in January 2021:[30]
[30] Exhibit A2.
a.He said he lived with his parents and spent a lot of time with his mother, father and aunties and attended church for a month or two but stopped going because it felt like it was not helping him establish a routine. He spent time with his sister S1 with whom he had always been close, and he often looked after her baby daughter Miss T. He said he also spent time with his friend Mr S and his cousin C1 and lived with Mr S and his family for about one month. He said he had known Mr S since 2008 but lost touch with him and had re-connected with him in 2021. While at Mr S’s house the Applicant said he spent a lot of time with Mr S’s daughter Miss A and became her godfather.
b.He said these experiences made him realise that he wanted to let go of the past and wanted to develop meaningful relationships with family and friends, and not connections based on partying and superficial things. He said that Mr S had turned his life around and he found it inspiring.
c.He said that after about four months of being in the community he got restless and distracted as he had nothing to do because he was not allowed to work on the bridging visa and it made it difficult to access other supports and he was unable to get Centrelink or access Medicare. During this time there were a number of deaths in the community and he described this as very depressing. He said:[31]
[31] Ibid, at [12].
It had a big impact on me and with nothing to do to distract myself I occasionally started drinking again and spending time with other friends who were drinking as well as going to parties or gatherings.
d.He said that in July 2021 he went to a gathering and saw someone being violently killed by two men who were not known to him. He said he later spoke with the police about the incident and provided witness statements about it to the police and in court. He said the incident had a large impact on him and was a huge reality check. He said that he realised that being a tough guy doesn’t work, it just gets you in trouble.
e.He said that since returning to detention he had been keeping to myself, sometimes playing soccer but mostly spending time alone, watching shows, listening to music and writing. He said he doesn’t talk back to people like he used to and doesn’t react to things with silliness or violence. He said that:[32]
[32] Ibid, at [25].
I am happy with myself that I have been avoiding confrontation in this way and want to keep building on it. In my time in detention I try to support other people, try to have conversations with others who are also making these changes in their lives and be a positive and open person for people to talk to. I am building different kinds of relationships with people in here that are consoling, supportive and not linked to violence or substances.
f.He said that if released into the community again he planned to get a job and to keep busy. He said he wanted to make good choices and staying away from substances and violence. He said he would live with Mr S and his family and Mr S’s daughter would live with them half the time. He said he would seek help and guidance from his father, C1 and Mr S and would undertake courses like those he had undertaken in prison, particularly in drug and alcohol counselling, anger management and other supports. He also said that he wanted to support young people in the community to help them avoid the difficulties he has faced.
g.He said that he was fearful of returning to Sudan where a civil war and conflict were ongoing. He said Shilluk people were targeted with violence including by the authorities. He added:[33]
[33] Ibid, at [38].
I don’t know anyone in South Sudan and there will be no help for me there. There is no family I know, no friends and no services for people like me. I don’t know where I could live or how I could support myself. There is no life for me there and no way I could survive.
h.He said he speaks by phone with his parents and sister S1 every second day, with his other sister, S2, about once a week and occasionally with his oldest brother B1. He said he also speak regularly with his friends, particularly Mr S and C1. He said if he is sent to South Sudan or indefinitely detained, it will affect his family and friends in a very significant way, especially his mother who would be devastated.
i.He concluded with the statement:[34]
I know I have made many mistakes. This last experience in the community and then the reflection I have had during all this time in prison and detention has given me an insight into my patterns of offending that I have not previously had. I am finished with blaming and making excuses. I know I am responsible for my actions and all the things I have done and that it is up to me to make serious changes.
I am already making these changes. I have friends and family who continue to support me to be on this path. If I am removed or indefinitely detained it will have a huge negative impact on them.
I have already been found to be a refugee. I can’t return to South Sudan due to the risk of harm I would face there. The prospect of indefinite detention is frightening to me.
I am deeply sorry for all of my mistakes and that it is has come this far. I know I have had other chances before. This time, I know it will be different. I have learned so much and I know what I need to do to make sure I stay on this path.
[34] Ibid, at [44]-[47].

Witnesses
Selba-Gondoza Luka

Ms Luka provided a written statement in the form of a letter dated 20 September 2023[35] and gave oral evidence at the hearing by video link.
[35] Exhibit A3.
Ms Luka is the chief executive officer and founder of an organisation called Afri-Aus Care Inc (AAC). She is a qualified mental health clinician and holds a Bachelor of Nursing, a Postgraduate Diploma in Advanced Clinical Nursing and a Diploma of Counselling.
AAC was established in 2015 to provide culturally appropriate mental health and community support for offenders in the African Australian and other Culturally and Linguistically Diverse (CALD) communities. AAC provides recreational opportunities for offenders through the Black Rhinos Basketball and Soccer Club as a crime prevention program. AAC offers counselling to African Australian offenders by sharing lived experiences and having identified their particular needs, referring them to culturally appropriate external resources including lawyers, medical practitioners and psychologists. AAC also provides support through facilitating vocational training and employment opportunities for offenders.
The method of care model used by AAC is an Ubuntu framework of support, which Ms Luka explained in her oral evidence is one based on sharing experiences and is focussed on an African community-based approach rather than on the individual. It includes a role for family members and other community members in the program to support the offender.
Ms Luka said in her oral evidence that she had known of the Applicant’s family since 2013 when she was assisting the Applicant’s sister S1 prior to establishing AAC. She said she first met the Applicant when visiting S1 in 2021 but it was not until she was contacted by the Applicant’s lawyers a few weeks before the hearing that she spoke to him about support from AAC. She said that she had spoken to him two or three times over the last week or so for a total of around 15 minutes.
She said that if the Applicant is released into the community she would offer him culturally appropriate counselling, refer him to a medical practitioner for assessment, introduce him to the Black Rhinos program, introduce him to an employment mentor and broker and support him to be enrolled in a welding course to qualify him for employment as part of a job training project AAC is running in conjunction with South East Melbourne Manufacturers.

Witness Statements

The Applicant also relied on a number of written statements from persons who were not called to give evidence at the hearing.

C1

C1 provided a statutory declaration declared on 8 July 2022 in which he stated:[36]
a.He is the Applicant’s cousin and first met the Applicant when he arrived in Australia in 2003. He said he went to Africa to study in 2014 and did not have contact with the Applicant until he returned in 2018 by which time the Applicant was in detention.
b.He said that during the time the Applicant was released from detention in 2021 he spent time with him and thought that the Applicant was very motivated and wanted to change things, but eventually he lost motivation because he could not work and didn’t have much to do. This led him to spend time with other people and he started to drink sometimes.
c.He said that as a youth worker he was able to support the Applicant to re-establish his life and to engage with counselling, alcohol counselling and other services.
d.He also added that it would be terrible for the Applicant’s family if the cancellation of his visa is not revoked, and in particular for his mother who is getting old.
e.He concluded that in his view the Applicant does not pose a risk to the community.

S2
[36] Exhibit A7.

S2 provided a statutory declaration declared on 25 June 2019 in which she stated:[37]
[37] Exhibit A6.
a.She is the Applicant’s older sister.
b.She said that her mother, her siblings and herself settled in Australia after they had fled to Egypt from Sudan due to the conflict in the country. She said that her father was sponsored to join them in Australia after they were separated by the conflict and the family had not seen him for many years.
c.She said that the Applicant settled into life in Australia after arrival well and learned English with the help of a neighbour. However, after the family moved house when he was 16 years old, the Applicant fell in with the wrong crowd and started to get into trouble and they drifted apart.
d.She said the Applicant’s relationship with his girlfriend Ms H played a big role in driving him away from his family.
e.She said that the Applicant’s friends and his issues with drugs and alcohol are strongly linked to his offending.
f.She said that she continues to support the Applicant and he is ashamed of his offending although he hasn’t told her the full details of his offending because he knows it would disappoint her.
g.She said that if released into the community the Applicant could come to live with her and their parents in the family home.
h.She said that the Applicant recognises that he has wasted important years in prison and detention and now he is more mature and can reflect on how his actions have impacted on himself and others.
i.She said that the family does not know anyone in South Sudan who could support the Applicant if he returned and she feared that he would be killed if he did return.

Reverend A

The Applicant explained that his father, Reverend A was unable to attend the hearing to give evidence because he was in Egypt attending to arrangements regarding the death of the Applicant’s aunt. Reverend A provided statutory declarations declared on 24 June 2019[38] and 26 June 2022[39] in which he stated:
[38] Exhibit A5.
[39] Exhibit A4.
a.He is the Applicant’s father.
b.He is an Anglican minister and an experienced nurse who has worked in Sudan, the Netherlands and Australia.
c.He fled Sudan to the Netherlands because he was targeted in the conflict. His wife and children separately fled to Egypt and after two and a half years were accepted as refugees in Australia. They were supported by the church and the Sudanese community in Australia.
d.The Applicant settled into life in Australia after arrival but when he was 16 or 17 years old he got involved with the wrong crowd. He said his friends and his girlfriend were a bad influence on him.
e.He said that the Applicant’s offending was strongly linked to his issues with drugs and alcohol.
f.He acknowledged that the Applicant has made very serious mistakes and hurt other people but said that the family strongly support the Applicant.
g.He said he has worked closely with others in the church to support the Applicant if he comes home. This includes looking into programs for work, volunteering, working in community development and education opportunities to help the Applicant find work if he is released.
h.He said that the Applicant’s incarceration has been very difficult for the family and especially the Applicant’s mother who is extremely saddened and worried about what will happen to the Applicant if he is returned to South Sudan or detained indefinitely.
i.He stated that South Sudan is still very dangerous and the Applicant has no one to support him there as all of their family has been killed or has fled.

Other Evidence

The Applicant also tendered:
a.A psychiatric report prepared by Dr Nina Zimmerman, dated 21 June 2019, in which she concluded that:[40]
[40] Exhibit A8.
i.Having considered historical, clinical and risk management factors…[the Applicant) poses a moderate risk of re-offending if he were released to the community without any interventions in place.
ii.There are a range of interventions and supports that could be put in place to reduce the Applicant’s risk of offending, including:
A. an assessment of his cognitive functioning by a neuropsychologist so that all future interventions are targeted at a level that will enable him to engage and benefit from the therapy; and
B. long-term drug and alcohol counselling by a service with experience working with offenders and those with comorbidities such as Caraniche a specialist service which runs a program called HiROADS which targets high risk offenders with drug and alcohol issues and other issues including cognitive impairment.
iii.ln terms of protective measures, there are numerous potential agencies that could offer him the support he needs to protect against a return to a life of substance abuse and offending, including initiatives to assist him to find work such as Catholic Care’s Job Readiness Programs and the Centre for Multicultural Youth, which assists young people and their families from Sudan to strengthen engagement with activities and supports across Melbourne.
iv.As to the prospects for rehabilitation, [t]here is no doubt that opportunities for rehabilitation have been unsuccessful in the past on repeated occasions. However, with targeted interventions and an assertive outreach case-management model of care delivery and coordination, his greater maturity, the stark realisation of what his future could hold and his significant period of abstinence places him in a better position than he has previously been in to make the most of interventions and address his criminogenic needs.
b.Collection of articles containing Country information regarding South Sudan;
c.An article entitled ‘UN Mission in South Sudan deeply concerned about Nuer-Shullik Violence in Upper Nile State’; and
d.A report entitled ‘Minority and Indigenous Trends 2018 - Focus on Migration and Displacement’.

PRIMARY CONSIDERATIONS
Protection of the Australian Community

In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Nature and Seriousness of the Applicant’s Conduct to Date

Clause 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct.
Clause 8.1.1(1)(a)(i)-(iii) gives examples of the types of crimes that may be considered as very serious and which are viewed very seriously by the Australian Government and the community. They include crimes of violence. The Applicant has multiple convictions for various offences of a violent nature.
Clause 8.1.1 (1)(b)(i)-(iv) gives examples of the types of crimes that may be considered as serious criminal behaviour. The Applicant’s conviction for riot in March 2017 involved a crime committed against government representatives or officials due to the position they hold, or in the performance of their duties. Judge Lyon in passing sentence noted:[41]
The offending in this case is made more serious by the fact that you and your co-offenders, as prisoners, acted against law enforcement officers in the execution of their duties.
[41] G6, p. 68.
The descriptions given in cl 8.1.1(1)(a) and (b) are not exhaustive and cl 8.1.1(1)(c)-(h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(c)the sentence imposed by the court;
(d)the frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness
(e)the cumulative effect of repeated offending; and
…
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant’s offending was frequent. He recorded convictions for violent offences in December 2011, April 2012, June 2012, November 2012, May 2013, February 2014 and July 2015 and was further convicted for his involvement in a riot while in prison in March 2017. He was subject to significant custodial sentences for violent offences, including 60 days in April 2012, 7 months in March 2013, 30 days in May 2013, an aggregate of 38 months (concurrent) in July 2015 and 15 months in March 2017.[42]
[42] G4, pp. 43-44.
In addition to his convictions for violent offences, the Applicant recorded convictions for serious driving offences and offensive behaviour (December 2011), motor vehicle theft and failure to answer bail (June 2012), intentional damage to property and possession of cannabis (May 2013) and theft (July 2015). He was also convicted of three separate breaches of community corrections orders in the period 2012 to 2015.[43]
[43] Ibid.
These convictions were in the nature of sustained antisocial conduct by the Applicant demonstrating a continuing disregard for Australian criminal laws and for the property rights and personal safety of Australian citizens. In addition, the Applicant’s criminal record reveals that his antisocial behaviour has played a significant part in his violent offending. He has been convicted of assaulting a passenger on a train who had objected to his companion discarding a bottle in the carriage while he was drunk in July 2014. He has been convicted of assaulting a security guard who refused him entry to a hotel because he was intoxicated in August 2014. He has been convicted of assaulting a member of the public who objected to him urinating in public in February 2015.[44]
[44] G5, pp. 47-64.
The seriousness of the conduct is amplified by the fact that the Applicant continued to offend despite being warned about the implications for his migration status of further offending. On 7 June 2013 the Respondent wrote a formal letter to the Applicant raising his criminal convictions to that point and warning him that: [45]
…any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
The Applicant acknowledged in his oral evidence having received the letter but stated that he had not taken notice of it.
[45] G8, pp. 76-77.
Having regard to these matters the Tribunal finds that the Applicant’s prior criminal conduct was very serious.

The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct

Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non- citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen -- whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and there are strong or compassionate reasons for granting a short stay visa.

Nature of the harm

The Applicant’s crimes involved serious assaults resulting in physical injury and likely psychological harm to the victims.
The Respondent sought to establish that the offences for which the Applicant was convicted and sentenced on appeal in June 2012 arose from a carjacking and assault on the owner of the car as documented in the police records.[46] The Applicant was shown the relevant police records but claimed not to recall what the charges related to but said he had pleaded guilty. The documents produced to the Tribunal do not include court records such as the sentencing remarks setting out the factual basis for the convictions. However, having considered the offences for which the Applicant was convicted, and the information contained in the police records, the Tribunal is satisfied that the police records describe the nature of the offences upon which the Applicant entered his guilty plea. The witness statement of the victim describes a frightening experience in which the Applicant and his associates took control of his car and he was repeatedly assaulted and feared for his life eventually jumping out of the moving car to escape sustaining serious injuries.
[46] SG, pp. 503-549.
The offences for which he was convicted in July 2015 also involved significant harm to the victims. The victim in the incident in July 2014 on the late-night train was subject to repeated blows and sustained a painful bite. In the incident in August 2014 at the Nu Hotel a security guard was repeatedly punched by the Applicant. The victim in February 2015 was knocked to the ground by a punch to the forehead from the Applicant. Each of these assaults was unprovoked.
Should the Applicant engage in further criminal conduct of this kind it would expose members of the Australian community to the risk of serious physical and psychological harm. It is not unreasonable to surmise that if such unprovoked and reckless assaults were repeated it could result in permanent injury or even death.

Likelihood of re-offending

The Applicant conceded in his written submissions to the Tribunal that he poses a risk to the Australian community, but he submitted that this risk has reduced considerably since his Visa was first cancelled in 2016 and it should now be regarded as an acceptable risk.[47] The Applicant relied on the following non-exhaustive reasons:
a.the offending was committed by the Applicant at or prior to the age of 23 – he was young, immature and his offending was committed in circumstances where he was abusing alcohol and other drugs. He is now 31 years old, more mature and wishes to make a fresh start to his life;
b.…the Applicant’s last proven offence was in 2017. A lengthy period of approximately six years has now elapsed since that time. The Tribunal is entitled to consider that the length of the Applicant’s criminal history (six years – 2011 to 2017) is approximately as long as the period since his last proven offence;
c.the Applicant has a loving and supportive family who are able to support and supervise him in the event that he is released from detention;
d.the Applicant has previously engaged in courses while in custody, including a 24-hour Drug and Alcohol Program in 2015 and the 40-hour Intensive Substance Use Course in 2016. He has also sought education and vocational training while in custody;
e.…In 2019 consultant psychologist, [Dr] Nina Zimmerman assessed the Applicant as posing a ‘moderate’ risk of re-offending and having regard to the period of time that has elapsed since this assessment, the Applicant’s risk profile is now equal-to-or-lower than ‘moderate’;
f.the Applicant was released on a bridging visa in 2021 and remained in the community for approximately seven months before being returned to detention. The Minister has therefore previously (and recently) been satisfied that his risk to the public was an acceptable one; and
g.the Applicant has spent a significant period in custody since his last proven offending. The risk of indefinite detention has provided the Applicant with powerful motivation to rehabilitate.
[47] Applicant Statement of Facts, Issues and Contentions dated 1 September 2023, at [17].
In assessing the risk of re-offending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs that:[48]
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
[48] (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
The Applicant’s past involved continuing and regular offending prior to his incarceration. His entire life has been marked by violence and his participation in violence. His early childhood was spent in Sudan, from where his family was forced to flee because of the violence in that country. He then lived in Egypt. He described in his evidence that violent clashes between family groups occurred regularly and he was involved in and witnessed the violence. When he moved to Australia as an 11-year-old he said he was bullied at school and frequently became involved in fights with other children. He began offending while still a minor and was convicted of assault and resisting police. His criminal record as an adult from 2011 to 2017 includes frequent and regular violent offending. His history was described by the sentencing magistrate in 2015 at being littered with violence. He has also been exposed to violence in prison. He was convicted for his involvement in a riot while in prison and his prison record includes reference to incidents allegedly involving violence perpetrated against him and by him.[49]
[49] SG, pp. 683-684.
The Tribunal concludes from this history that the Applicant is a person who is familiar with violence and to some extent accustomed to it.
The Applicant’s claim is that he is more mature than when he was offending and this greater maturity makes it less likely he will now re-offend. It is true that the Applicant is now seven or eight years older than he was when last convicted, but age does not necessarily equate to maturity. The Applicant’s offending was between the ages of 20 and 26. He is now 32. The Applicant made a number of statements in his evidence to the effect that he has now matured and is committed to changing his life. However, he did not demonstrate in his evidence a sufficient objective basis to conclude that he is now significantly more mature. He described his circumstances while on release from detention in 2021. He stated that after a few months he remained at his parent’s home without much to do and became restless and distracted and this led him to resuming alcohol use and spending time with friends who were drinking. He did not give any indication that he had used his time in the community productively, for example, to seek out counselling and opportunities for training and prospective employment. There is evidence that he continued to use drugs when released into the community in 2021 and 2023.[50] The Applicant was evasive and defensive in giving evidence about his offending. Having regard to these matters and having observed the Applicant give his evidence the Tribunal is not satisfied that he now exhibits a level of maturity such as to significantly diminish the risk of him re-offending.
[50] SG, pp. 666-672
The Applicant has stated in his evidence that he accepts responsibility for his offending and he expressed remorse for what he had done. It is notable that he pleaded guilty to all of the offences for which he was convicted. Nevertheless, the Applicant’s statements of remorse are primarily focussed on his regret for the effect his convictions have had on his own circumstances and for the hurt he has caused his family. When cross examined about his offending the Applicant demonstrated little genuine regard for his victims, of whom he had little recollection.
The only professional assessment of the Applicant’s propensity to re-offend available to the Tribunal was that conducted by Dr Zimmerman in June 2019.[51] She stated that he poses a moderate risk of re-offending if he were released into the community. Dr Zimmerman identified a number of measures that could be taken to reduce the risk including assessment by a neuropsychologist and long-term drug and alcohol counselling. These measures have not been taken.
[51] Exhibit A8.
The Tribunal accepts that the Applicant has not been convicted of any offences since 2017, although he has spent most of that period under the supervision of the authorities in prison and detention.
Even under supervision his conduct has not been without reproach. The Applicant admitted in his evidence to an incident in August 2023 when he was reported to have been abusive and aggressive to staff at the detention facility,[52] and in March 2022 when he was reported to have verbally and physical assaulted a staff member.[53]
[52] SG, p. 699.
[53] G10, p.87.
His prison record includes incidents where the authorities have found that he has been involved in breaches of prison discipline including a number of incidents involving violence both by and against the Applicant. [54] The Tribunal accepts that the Applicant’s involvement in these incidents has not resulted in criminal prosecution and his guilt established to the criminal standard. However, the fact that the Applicant’s record in prison includes multiple findings that he has breached discipline is relevant in assessing whether or not it is likely there have been positive changes in the conditions which gave rise to his violent offending (which include his general antisocial behaviour).
[54] SG, pp. 683-685.
The Tribunal also notes that the Applicant was not deterred from offending by several periods of incarceration and by warnings about the implications for his immigration status of further offending.
The Applicant has identified a number of protective factors which he says will support him to avoid further offending if he is released, namely his supportive family, his friend Mr S and cousin C1 and the programs run by Ms Luka at AAC.
The Tribunal accepts that the Applicant has the support of his immediate family, although the extent to which this support is likely to have a strong influence on the Applicant is questionable. The Applicant identified his sister S1 as the family member with whom he is closest. It is questionable whether S1 is capable of supporting the Applicant in dealing with the challenges of establishing himself in the community. The Applicant confirmed in his evidence that S1 has lost custody of her children, has problems with alcohol and has spent time in prison. Ms Luka confirmed that she has been involved in supporting S1 since 2013. The Applicant also stated that his mother does not speak English and that in the past he has had a strained relationship with his father. While the Applicant indicated that he has come to accept his father’s counsel, he gave evidence that his father is currently in Egypt and he was unable to say when he would return. His sister S2 was not called to give evidence but she indicated in her statement that she would support him if he were released.[55] There is no indication of support from his other sibling in the evidence.
[55] Exhibit A6.
The family support now claimed by the Applicant has been available to him throughout the period of his offending. It did not prevent his offending between 2011 and 2017 and did not prevent him from resuming the consumption of alcohol and associating with others who were drinking and going to parties or gatherings when he was released in 2021.
As to C1, he indicated in his statement that he is a social worker and was prepared to support the Applicant by assisting him to access counselling and other services.[56] C1 confirmed in his statement that he had no contact with the Applicant after 2014 until the Applicant was released from detention for a few months in 2021. His statement was declared in July 2022 and he did not give evidence at the hearing. The Tribunal accepts that C1 may be of assistance to the Applicant if he is released but it is not clear to what extent that support might actually be effective in reducing the risk that the Applicant will be drawn into re-offending.
[56] Exhibit A7.
There is no evidence before the Tribunal upon which to assess the extent to which the Applicant’s friend Mr S might provide positive support for the Applicant. He did not provide a written statement or appear as a witness at the hearing.

The Tribunal accepts that the support offered by Ms Luka and AAC has the potential to be of assistance to the Applicant in avoiding further offending. It offers the opportunity for culturally appropriate counselling and tangible benefits in providing a constructive recreational/social outlet through the Black Rhinos program and training and prospective employment as a welder. While the commitment of Ms Luka to provide support is not questioned, the Tribunal is not satisfied that the Applicant has a similar commitment to the program. In giving his evidence he indicated his interest in undertaking the welding course and seeking help from a psychologist but did not display any detailed knowledge of the programs and Ms Luka confirmed that contact with her had only been initiated recently through the Applicant’s lawyer in anticipation of the Tribunal hearing.
The Applicant asserted that all of his violent offending occurred when he was affected by alcohol and that the excessive consumption of alcohol was the primary cause of his offending. The Applicant’s criminal record and the sentencing remarks of the Magistrate in July 2015 bear out this assertion.
The Applicant insisted in giving his evidence to the Tribunal that alcohol is no longer an issue for him. He pointed to his engagement in drug and alcohol courses while in custody, including a 40-hour Intensive Substance Use Course in 2016 as evidence of his attempts at rehabilitation.[57]
[57] SG, p. 623.
He acknowledged in his evidence that he had tried unsuccessfully to deal with his alcohol problem in the past and Dr Zimmerman noted in her report in 2019 that opportunities for rehabilitation have been unsuccessful in the past on repeated occasions.[58]
[58] Exhibit A8, p. 13.
The Applicant’s prison record notes positive drug test results in April 2016, August 2016 and May 2017.[59]
[59] SG, p. 683.
In his evidence, the Applicant confirmed that he had resumed drinking alcohol while released from detention in 2021 and that he had last used marijuana in 2023 and methamphetamine in 2021. The Applicant’s IHMS medical records state that on 23 June 2023 he reported that he had been using suboxone daily while on release from detention.[60] When put to him in cross examination, the Applicant denied the report was correct and said that he had used suboxone in detention to deal with his use of ice. The Applicant also denied an IHMS report of 13 August 2021 which stated that he had advised an officer upon his re-admission to the detention facility that he normally uses drugs every day and that he had disclosed smoking ice and marijuana daily and drinking approximately 4 standard drinks daily.[61]The Tribunal is not persuaded by the Applicant’s denials and accepts the IHMS record as to what the Applicant admitted at the relevant time.
[60] SG, pp. 666-667 and 672.
[61] SG, pp. 674 and 676.
On the basis of this evidence the Tribunal is satisfied that there is a substantial likelihood that the Applicant would resume the use of drugs and alcohol if released into the community and that such use would heighten the risk of him re-offending.

Conclusion

Having regard to each of the factors discussed, the Tribunal is satisfied that the Applicant presents a significant risk of re-offending if released into the community. The Applicant’s continued drug and alcohol use and the absence of any effective steps being taken to date to address the issues as suggested by Dr Zimmerman leads the Tribunal to assess the risk as higher than the moderate risk posited by Dr Zimmerman. It is a moderate to high risk.
The Tribunal notes cl 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and 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 may be unacceptable. The Applicant’s past offending is very serious and he has a moderate to high risk of committing similar crimes. This represents an unacceptable risk to the Australian community.
The protection of the Australian community is a primary consideration under Direction 99 and weighs strongly in favour of not revoking the cancellation of the Applicant’s Visa.

Family violence committed by the Applicant

Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
The Respondent sought to establish that the Applicant’s convictions for offences in May 2013 involved crimes of family violence. The convictions were for intentional damage to property, unlawful assault and possession of cannabis for which an aggregate sentence of 30 days in prison was imposed.[62] The Tribunal was not provided with court documents setting out the factual basis for the convictions. The Respondent asserted that the factual basis was as recorded in the LEAP records produced under summons from Victoria Police of an alleged incident on 6 January 2013 at an apartment occupied by the Applicant and his de-facto partner Ms H.[63] The LEAP records describe an incident in which the Applicant is alleged to have punched a hole in the wall, kicked a television and punched and kicked Ms H. The LEAP record also records that upon attending the scene the police discovered cannabis plants at the property.
[62] G4, p. 43.
[63] SG, pp. 265-270.
The Respondent argued that given the coincidence between the events described in the LEAP record and the offences for which the Applicant was convicted in May 2013 the Tribunal should conclude that the assault charges related to the Applicant’s assault on Ms H and was therefore an act of family violence.
The Applicant was taken to the LEAP records in cross examination. He said he was not sure what events the charges related to as everything was fuzzy during this period, but he was emphatic that he had never assaulted Mr H. The LEAP records state that when conveyed to the Broadmeadows police station the Applicant admitted to charges of criminal damage and cultivation of a drug of dependence but made no admissions to any assaults.[64]
[64] SG, p. 269.
The Tribunal is mindful that the LEAP records are to be treated cautiously as they are not necessarily comprehensive records of events and are untested accounts. While acknowledging that it is possible the assault conviction in May 2013 relates to the events described in the LEAP records of the incident on 6 January 2013 there are no court records before the Tribunal to establish the findings of fact upon which each of the convictions was based. The Tribunal is not prepared to conclude that the conviction for assault related to Ms H given the Applicant’s denial at the hearing and the absence of an admission to that charge as recorded in the LEAP record.
The Tribunal therefore makes no finding that the Applicant has engaged in family violence and this consideration is not relevant to him.

The Strength, Nature and Duration of Ties to Australia

The Clause 8.3 of Direction 99 requires that decision-makers:
(1) …must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) …must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s immediate family members reside in Australia, including his parents, two sisters and a brother. His father, a sister and his brother are Australian citizens. His mother and other sister are permanent residents. Statements from the Applicant’s family attest to their love for the Applicant and the harm that would be visited on the family, and especially his mother, if the Applicant were forcibly returned to South Sudan or in the event that the Applicant were indefinitely detained.
The Applicant has no children of his own.
The Applicant attended secondary school to Year 8 in Australia and made some attempt to continue his education beyond that stage and has demonstrated links to the community through his brief periods of employment as a panel beater and cabinet maker.[65] However, since 2012 he has spent significant time in prison and immigration detention and there is no evidence of any involvement in community organisations or activities.
[65] Applicant Statement of Facts, Issues and Contentions dated 1 September 2023, at [21].
The Respondent accepts that the Applicant has strong family ties to Australia, that a decision not to revoke the cancellation of his visa will cause anguish to his family and that his ties to Australia should be assigned significant weight in favour of setting aside the decision under review.
The Tribunal notes that under cl 8.3(4) the length of time the Applicant has resided in Australia is a relevant consideration and that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. In the Applicant’s case he first arrived in Australia in 2003 when he was 11 years old. He has spent much of his formative years in Australia and has lived in Australia for the majority of his life.
Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, and this represents a change in policy from that expressed in the previous Direction 90.[66] The Tribunal affords this consideration substantial weight in favour of revocation.
[66] NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364 at [125].

Best Interests of Minor Children in Australia Affected by the Decision

Clause 8.4(1) requires that decision-makers must make a determination about whether non-revocation under section 501CA or cancellation or refusal under section 501 is, or is not, in the best interests of a child affected by the decision.[67] The best interests of each child must be given individual consideration to the extent that their interests differ.[68]
[67] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: cl 8.4(2) of Direction 99.
[68] Direction 99, cl 8.4(3).
The Applicant has no children of his own but identified two minor children whose interests require consideration:
(a)his sister S1’s daughter, Miss T; and
(b)his friend Mr S’s daughter Miss A, to whom he is a godfather.
In considering the best interests of the child, cl 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant gave evidence that he is Miss T’s uncle and spent time caring for Miss T during the period he was released from detention between January and August 2021. He described her as a baby at the time. The Applicant also conceded that his sister S1 has now lost custody of her children including Miss T and they are cared for by his other sister S2. S1 did not provide any evidence to the Tribunal and S2’s written statement did not mention Miss T at all.[69]
[69] Exhibit A6.
The Applicant’s evidence was that he developed a bond with Miss A when he lived with his friend Mr S, Miss A’s father, during the period between January and August 2021 when the Applicant was released from detention. He said he became a godfather to Miss A. His evidence was that he lived with Mr S only for about a month. Mr S has not provided evidence to the Tribunal and there is no independent evidence regarding Miss A’s circumstances.
The Respondent accepts that to the extent the children may be impacted by the removal of a person from their lives, it would be in their interests for the decision to be revoked. However, those interests should be given very limited weight on the facts of this case.
The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of revoking the cancellation of the Applicant’s Visa. However, the Applicant is not in a parental relationship with either of the children, and there are other persons who are able to, and do, fulfil the parental role. In addition, the Applicant’s evidence was that he only met the children during the brief time he was in the community between January and August 2021 and there was no evidence of any meaningful contact otherwise due to the Applicant’s imprisonment and detention.
On balance, the Tribunal is satisfied that it would be in the best interests of Miss T and Miss A for the Applicant to have his Visa restored and for him to remain in Australia, but in the circumstances gives this consideration minimal weight in favour of revocation.

Expectations of the Australian Community

Clause 8.5 of Part 2 of Direction 99 provides:
(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 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This 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.
The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 79 (which mirrors the wording of cl 8.5(1) and (2)): [70]
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.
[70] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76] affirmed in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68, at [32]-[35], per Moshinksy, Stewart and Jackman JJ.
Clause 8.5(2) of the Direction provides that refusal of a Visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.[71]
[71] Ibid at [71]-[72] per Charlesworth J, [97]-[98] per Stewart J.
The Tribunal is mindful that the Applicant was a relatively young man when he was offending prior to 2017 and that he came to Australia after a difficult early life of displacement and exposure to violence. Nevertheless, he was introduced into the Australian community at a relatively young age and enjoyed the love and support of his family. There is no evidence that he has suffered from any diagnosed mental health condition.[72] Clearly, he made poor choices as an immature adolescent to associate with the wrong people and to engage in heavy drug and alcohol use. This led to anti-social behaviour and in turn to criminal conduct. There is some scope for moderating the expectations of the Australian community in this background. However, the Tribunal is also mindful that the Applicant’s offending has been extensive and his crimes have involved unprovoked attacks on members of the public involving the potential for serious physical and psychological injury. In addition, he has offended after being given opportunities to change through the imposition of community correction orders and after being warned of the risk of offending for his immigration status. He has also not adequately addressed his issues with drugs and alcohol.
[72] Exhibit A8 at [6].
Having regard to the circumstances the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, should be given substantial weight in favour of refusing the Applicant a Visa in the overall assessment of all the considerations.

OTHER CONSIDERATIONS
Legal Consequences of the Decision

The Respondent accepts that the Applicant is a person subject to a protection finding.
The Applicant lodged an application for a protection visa on 23 May 2017. On 27 February 2019 a delegate of the Minister refused the application on the grounds that the Applicant had been convicted by a final judgment of a particularly serious crime and is a danger to the Australian community.[73] However, the delegate found that the Applicant, as a national of South Sudan[74], met the definition of a refugee in s 5H(1) of the Act as there were substantial reasons for believing that as a necessary and foreseeable consequence of the Applicant being returned to South Sudan there is a real risk that the Applicant will suffer significant harm.[75]
[73] Affirmed on appeal by the Tribunal in HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392.
[74] The relevant citizenship laws are discussed in VLPW v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4320 at [24]-[31].
[75] G15, pp.177-205.
On the basis of these matters, the Tribunal is satisfied that the Applicant is a person for whom a protection finding (as defined in section 197C of the Act) has been made in respect of South Sudan and he is a person to whom international non-refoulement obligations are owed.
Clause 9.1.1 of Part 2 of Direction 99 requires the Tribunal to consider the legal consequences of its decision given this finding and it must confront the legal and practical consequences of a decision not to revoke the cancellation of the Visa.[76]
[76] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38 at [10].
The protection finding is significant as s 197C(3) of the Act provides that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if a protection finding has been made for the non-citizen in respect to that country.
This means the Applicant cannot be removed to South Sudan in breach of Australia’s non-refoulement obligations if an adverse visa decision under s 501CA is made. In that event, the Applicant would:
a.continue to be an unlawful non-citizen and liable to remain in immigration detention indefinitely; and
b.be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone and from applying for any other class of visa except a Bridging R (Class WR) visa.
In practical terms there are only four ways in which indefinite detention could be brought to an end:
(a)circumstances may change so that the risks to the Applicant are removed or diminished to the point where he can be deported to South Sudan without infringing Australia’s non-refoulment obligations;
(b)the Applicant could choose to relocate to South Sudan voluntarily;
(c)the Applicant may be offered the opportunity to be resettled in a third country; or
(d)the Minister may act personally under s 48B to determine that s 48A does not apply and allow a further application for a Protection Visa, or the Minister may exercise a non-compellable power in ss 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention.
The Tribunal accepts that the real risk of significant harm to the Applicant if he returns to South Sudan voluntarily makes it very unlikely that he would do so. The Applicant was adamant in giving his evidence that he would not voluntarily relocate to South Sudan under any circumstances including if faced with prolonged detention.
The Respondent concedes that the prospects of finding another country willing to receive the Applicant are poor, and that there are only limited prospects of either of the Minister’s personal discretion options being engaged. The Tribunal accepts that it would be irrational for the Minister to respond by exercising the personal discretion,[77] and is satisfied that: [78]
…the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.
[77] See EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [130]–[131], per Perry J.
[78] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38, at [4], per Allsop CJ and Katzmann J.
Accordingly, the likelihood is that the Applicant will remain in indefinite detention without any clear prospect for release if the cancellation of his Visa is not revoked. The Applicant has been in prison and detention for almost 8 years, that is, continuously since February 2015 save for brief periods between January and August 2021 and January and July 2023. It can be anticipated that indefinite detention will be very detrimental to the Applicant. The Respondent accepts that remaining in immigration detention for an indefinite period is likely to adversely affect the Applicant’s mental and physical health, and that significant weight should be assigned to this ‘other consideration’ in favour of a finding that the decision under review should be set aside.
Indefinite detention would pose a serious risk to the Applicant’s physical and psychological health. It would deprive the Applicant of his most basic freedoms and impose on him in effect a form of punishment reserved for the most serious criminal conduct. The Tribunal is satisfied that even though it is not a primary consideration under Direction 99, this consideration weighs heavily in favour of revoking the cancellation of the Applicant’s Visa, but it must be weighed with other considerations and may be outweighed by them.[79]
[79] See for example QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 226; and JYVT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1135.

Extent of Impediments if Removed

Clause 9.2(1) of Part 2 requires that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
The Respondent asserts that because the Applicant engages non-refoulement obligations in respect of removal to South Sudan the Applicant will not be removed to South Sudan, and this consideration should be assigned neutral weight.
The Applicant asserts that, as it is likely the Applicant would be indefinitely detained if his Visa is not restored, it is possible that in desperation the Applicant may choose to voluntarily return to South Sudan. In that eventuality he would face significant impediments and this is a relevant consideration in assessing whether to revoke the cancellation of the Applicant’s Visa.
Consistent with the protection finding in relation to the Applicant, the Tribunal accepts that the Applicant would risk persecution, injury and death if he were to return to South Sudan. In addition, while the Applicant is young and generally in robust health, he has no family support, has only limited language or cultural knowledge and has limited employment experience and skills and the Tribunal is satisfied that these would be impediments for him in establishing himself in South Sudan and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Applicant was adamant in his evidence that he would never voluntarily relocate to South Sudan even if the only option was indefinite detention. The Tribunal accepts that this is his current position but things can change and it may be in the future that the prospect of indefinite detention will drive him to decide to return to South Sudan and face the risks and bear the impediments inherent in that course. It is possible too that the prospect of what would await him in South Sudan would compel him to endure continuing detention as the lesser of two evils.
Either way, the extent of the impediments is a factor which will bear on the Applicant’s circumstances if his Visa remains cancelled and should be considered in determining whether or not to revoke the cancellation. It is a consideration which weighs in favour of revocation.
As to the weight to be given to the consideration of impediments if removed, the Tribunal notes that Direction 99 does not identify it as a primary consideration. In addition, it is a factor which is integral to the legal consequences of a decision not to revoke cancellation, a consideration which has already been attributed significant weight. Having regard to these matters and the Applicant’s current position regarding voluntary return, the Tribunal gives this consideration limited weight as a consideration in its own right.

Impact on Victims

Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[80]
[80] See CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 at [17]-[21] per Colvin J, which considers the analogue consideration at 14.4 of Direction No 79.
The Respondent concedes that there is no direct information before the Tribunal of the impact that the refusal or grant of visa would have on the Applicant’s victims. Accordingly, the Respondent accepts that this consideration should be assigned neutral weight.
As the Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s criminal behaviour, their families or other members of the Australian community who may be adversely impacted, it gives this consideration no weight either for or against revocation.

Impact on Australian Business Interests

Clause 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant has worked briefly in Australia, there is no evidence that he possesses any special skills which are not able to be sourced in the general labour market.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.

CONCLUSIONS

In Gaspar v Minister for Immigration and Border Protection, North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:[81]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[81] [2016] FCA 1166 at [38].

Factors against

There are two considerations which weigh against revoking the cancellation of the Applicant’s Visa:
a.the protection of the Australian community, a primary consideration, weighs strongly against revocation; and
b.the expectation of the Australian community, also a primary consideration, attracts substantial weight against revocation.

Factors in favour

There are four considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
a.the best interests of minor children Miss T and Miss A, while a primary consideration, attracts minimal weight;
b.the strength, nature and duration of the Applicant’s ties to Australia, a primary consideration, attracts substantial weight;
c.the prospect of indefinite detention as a legal consequence of a decision to refuse to revoke cancellation, although not a primary consideration, weighs heavily in favour of revocation; and
d.the extent of impediments if the Applicant were removed to South Sudan, attracts limited weight.

Conclusion

Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[82]
[82] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]. See also HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [38].
In this case the prospect of indefinite detention for the Applicant if revocation is refused is so serious that the consideration of legal consequences of the decision warrants being accorded a weight equal to that of a primary consideration.
In essence the task for the Tribunal is to weigh up the effect on the Applicant and his family of an adverse decision against the interests of the Australian community.
A decision to not revoke the cancellation would have very serious consequences for the Applicant who has strong ties to Australia principally through his family. Realistically a decision not to revoke cancellation will result in indefinite detention for the Applicant. The detriments he would face in voluntarily relocating to South Sudan are so significant that it is difficult to conceive of a circumstance in which the Applicant would make that choice. He was certainly adamant in his evidence that he would not do so in any circumstances. Indefinite detention would not only deprive the Applicant of his liberty but the deprivation and uncertainty resulting from its indefinite nature will pose a significant risk for his physical and mental health. It would also have a distressing effect on his immediate family and friends and likely have some minimal effect on the best interests of minor children Miss T and Miss A. Together these are strong factors in favour of revocation.
On the other hand, the Applicant has engaged in very serious criminal conduct which has inflicted harm on members of the Australian community and there is a moderate to high risk that he will re-offend if released into the community. The protection of the Australian community is a primary consideration. In addition, Direction 99 requires the Tribunal to also consider the deemed expectation of the Australian community that non-citizens who engage in serious conduct in breach of the expectation that they obey Australian laws not be allowed to enter or remain in Australia. The Tribunal is satisfied that the Applicant has engaged in very serious conduct in breach of Australian laws and accepts that there is a deemed expectation that cancellation of his Visa should not be revoked which must be weighed as a primary consideration against other considerations.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(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 noncitizens 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 measureable 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Even making allowance for the fact that the Applicant has lived in Australia for the majority of his life, the principles set out in cl 5.2 of Direction 99 tend to reinforce in his case the factors weighing in favour of not revoking the cancellation of his Visa. In particular, the violent nature of the Applicant’s crimes and the harm that such conduct could cause if it were repeated are sufficiently serious to outweigh the strong countervailing considerations in favour of revocation.
On balance, the Tribunal is satisfied that the considerations against revoking the cancellation of the Applicant’s Visa outweigh the considerations in favour of revocation and the Tribunal is satisfied that there is not another reason to revoke the cancellation. The correct and preferrable decision is to affirm the decision under review.

DECISION

The decision under review is affirmed.

I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R West.

...............................[sgd].........................................
Associate
Dated: 28 September 2023

Dates of hearing:

20 &21 September 2023

Counsel for the Applicant:

Mr David Carolan

Advocate for the Respondent:

Mr Tigiilagi Eteuati

Solicitors for the Respondent:

Australian Government Solicitor

APPENDIX A – LIST OF EXHIBITS

158.    Statement of Applicant dated 6 June 2022

A1

159.    Statement of Applicant dated 24 June 2019

A2

160.    Statement of Selba Luka dated 20 September 2023 (paged 1 to 4), including attachments:

1.    ‘Evaluation of the Black Rhinos Basketball Program: The Ubuntu philosophy perspective’ dated July 2022 (paged 1 to 56)

2.    ‘Reintegration and resettlement of African Australians released from prison: Towards an Ubuntu framework of support’ dated 13 March 2020 (paged 1 to 30)
A3

161.    Statutory Declaration of Rev. A dated 26 June 2022

A4

162.    Statutory Declaration of Rev. A dated 24 June 2019

A5

163.    Statement of S2 dated 25 June 2019

A6

164.    Statutory Declaration of C1 dated 8 July 2022

A7

165.    Report of Dr Nina Zimmerman (forensic psychiatrist) dated 21 June 2019 (paged 1 to 14)

A8

166.    Respondent’s Supplementary Book of Materials (paged 1 to 705)

R1

Dates of hearing:	20 &21 September 2023
Counsel for the Applicant:	Mr David Carolan
Advocate for the Respondent:	Mr Tigiilagi Eteuati
Solicitors for the Respondent:	Australian Government Solicitor

158. Statement of Applicant dated 6 June 2022	A1
159. Statement of Applicant dated 24 June 2019	A2
160. Statement of Selba Luka dated 20 September 2023 (paged 1 to 4), including attachments: 1. ‘Evaluation of the Black Rhinos Basketball Program: The Ubuntu philosophy perspective’ dated July 2022 (paged 1 to 56) 2. ‘Reintegration and resettlement of African Australians released from prison: Towards an Ubuntu framework of support’ dated 13 March 2020 (paged 1 to 30)	A3
161. Statutory Declaration of Rev. A dated 26 June 2022	A4
162. Statutory Declaration of Rev. A dated 24 June 2019	A5
163. Statement of S2 dated 25 June 2019	A6
164. Statutory Declaration of C1 dated 8 July 2022	A7
165. Report of Dr Nina Zimmerman (forensic psychiatrist) dated 21 June 2019 (paged 1 to 14)	A8
166. Respondent’s Supplementary Book of Materials (paged 1 to 705)	R1