JMNR and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 225

JMNR and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 225 (17 March 2025)
Applicant/s:  JMNR
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10858

Tribunal:Deputy President K Millar
Place:Adelaide
Date:17 March 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 17 March 2025 at 11:39am
CATCHWORDS
MIGRATION – cancellation of Applicant’s visa – Applicant does not satisfy character test – Direction no. 110 - protection of the Australian community and the expectations of the community outweigh other considerations - decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 2017 (SA)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons

The Applicant arrived in Australian on a Global Special Humanitarian Visa in May 1999 when he was approximately 15 years old. This visa was cancelled on 22 May 2018 because a delegate of the Minister found he had a substantial criminal record.
The notification of this cancellation was incorrect, and he was re-notified of the cancellation of his visa on 21 December 2021. A decision was made on 23 December 2024 not to revoke the cancellation of his visa. This is the decision under review.
BACKGROUND
The Applicant was born in Sudan. His father died when he was young and his mother fled to Ethiopia, leaving the Applicant and his sister in the care of his maternal grandmother. He moved to live with his aunt and uncle in Khartoum but returned to his grandmother’s area after his uncle was killed in the war.
While still young, the Applicant and his sister travelled to a refugee camp in Sudan to try and locate their mother, passing through areas in which there was a lot of fighting. It was a traumatic journey. They were eventually located by their mother and reunited in Kenya at Kakuma Refugee Camp. In 1999 the Applicant and his sister travelled with his mother, stepfather and 8 half-siblings to Australia. He thinks his stepfather has returned to South Sudan and he has no contact with him, however his mother and siblings are in Australia. He has a number of maternal aunts and their children and grandchildren in Australia.
The Applicant completed high school in Australia before completing one year of foundation studies at university. He worked as a printer assistant, and studied graphic design at TAFE, working in that industry for 10 years. He later completed a certificate in civil engineering and worked with Quantum Stone for two years.
His mother and siblings live in Victoria, and he has approximately 17 nieces and nephews. His mother’s sisters live in Australia, and he estimates he has 100 cousins.
The Applicant was in prison from 31 December 2014 to 27 March 2015, and was again in custody from 28 November 2015. He was released from prison to immigration detention on 27 March 2019.
The Applicant applied for a protection visa in June 2019. He was found to be a refugee, however his application for a protection visa was refused because he had been convicted of a particularly serious crime and considered to be a danger to the Australian community. The Administrative Appeals Tribunal affirmed the decision to refuse his application for a protection visa in February 2023.
The Applicant was released from immigration detention on a Bridging E visa on 29 December 2023 and was further granted a Bridging (Removal Pending) visa (‘BVR’) on 11 September 2024.
The Applicant was arrested on 14 September 2024 and has been remanded in custody from 29 September 2024. He holds a further BVR which was granted on 7 November 2024 and remains remanded in custody with bail applications pending.
APPLCIANT’S EVIDENCE
The Applicant was unrepresented at the hearing, with Legal Aid having withdrawn prior to the hearing. Legal Aid provided a psychiatric report dated 3 January 2025 from a forensic psychiatrist in relation to the Applicant’s mental competence and fitness to plead to current charges of theft using force, attempted commit theft using force, and two counts of assault that allegedly occurred in September 2024.
The opinion of the psychiatrist is that the mental incompetence defence is available to the Applicant for these offences and that he is fit to plead to these offences, however this is reported as “barely’’ fit to plead. It is relevant that this assessment was conducted by the same psychiatrist that assessed the Applicant following his incarceration in 2015.
At the interview with the psychiatrist on 2 January 2025, the Applicant reported that he was commenced on antipsychotic medication which he ceased on being released from immigration detention, and he started seeing things and tripping over or kicking objects that were not there. He described smoking methamphetamine about three times a week, smoking marijuana, and drinking beer. The Applicant told the psychiatrist he was on a Community Treatment Order and had been seeing a psychiatrist regularly in prison. He said he felt better on antipsychotic medication. The psychiatrist reports that the Applicant was able to name his lawyer and showed an understanding of the role of a judge and the outcome if he was found guilty of the offences.
The psychiatrist assessed the Applicant as suffering from schizophrenia and considered the Applicant was suffering a relapse of psychosis at the time of the alleged offending after ceasing his medication and using methamphetamine and cannabis as well as alcohol and other drugs. The Applicant was also diagnosed with a substance use disorder. The psychiatrist considered that the psychotic experiences at the time of the alleged offending were not simply due to methamphetamine intoxication or methamphetamine induced psychosis, although this use exacerbated and perpetuated the relapse of schizophrenia.
The Applicant gave clear evidence during the hearing although was somewhat tangential at times. On the first day after the lunch break he became more tangential and less lucid, and the Tribunal adjourned until the following day. The next day, he reported he had not taken his medication the day before or the morning of the hearing. The Tribunal adjourned and on resuming was able to speak to a nurse at the prison who had access to his medical notes. It was reported he had taken his medication the first day of the hearing but had not taken it on the second day of the hearing. His mental illness is reported as being in remission and he was considered to be well, with the community treatment order lapsing in December 2024. He had not been reviewed since December 2024, however a review by a psychiatrist was due three days later.
The hearing was adjourned pending the psychiatry review and any information this could provide on the Applicant’s ability to give evidence at the hearing.
The Applicant was reviewed by a psychiatrist on 11 March 2025 before the resumed hearing. The progress notes record that the Applicant suffers from schizophrenia which is in remission with some potential residual symptoms on a background of substance abuse disorder.
The Applicant provided clear evidence which, while not always directly on point, conveyed his views and intentions. His evidence also clearly reflected what he was experiencing at certain times such as being followed by the Holy Ghost and seeing shadows which has since resolved with mediation. Much of his evidence was consistent with his account as recorded in the psychiatric report or was consistent with other records before the Tribunal.
As the psychiatry assessment is that his condition is in remission and he is treated for this condition while he is in prison, this presents the best opportunity to hear from him about whether the cancellation of his visa should be revoked. I have relied on his evidence where this has been recorded in other documents such as previous psychiatry notes. I accept that his account of his experiences at the time of events reflects his genuine belief at that time, whether or not that could objectively be seen as accurate.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Migration Act 1958 (‘the Act’), the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; and
(b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
A person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under 501CA(4) of the Act. This provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The issues to be considered are:
·     whether the Applicant’s visa was correctly cancelled; and, if so
·     whether the Applicant has made representations in accordance with the invitation; and
o   either passes the character test and, if not,
o   whether there is another reason the cancellation of his visa should be revoked.
VISA CANCELLATION
The Applicant was sentenced to a term of imprisonment of 2 years and 9 months on 10 May 2016. It is not disputed that he has a substantial criminal record as defined in the Act and does not pass the character test. His visa was cancelled on 22 May 2018, at which time he was serving a sentence of imprisonment, and as a result his visa is cancelled under s 501(3A) of the Act.
REVOCATION OF THE CANCELLATION
The Applicant made written representations, marked as received on 29 April 2019. It was initially considered that this was out of time and an application to the Administrative Appeals Tribunal lacked jurisdiction, however subsequent consideration by the Court found that the notification in the form received by the Applicant was defective. He was issued with another notification on 21 December 2021, and his previous response is taken to be a response. As a result he has lodged written representations.
As he does not meet the character test, the remaining issue is whether there is another reason the cancellation of his visa should be revoked.
THE DIRECTION
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These 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 non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.[2]
[2] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) The 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;
(5)       The expectations of the Australian community.[3]
[3] The Direction, cl 8.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.[4]
[4] Ibid cl 8.1(1).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[5]
[5] Ibid cl 8.1.1(1)(a).
Criminal offending
The Applicant’s offending history comprises traffic, property related, public order and assault related offending. He has a pending charge for a drug related offence.
His traffic offences commence in 2005 and he has numerous driving and unregistered and uninsured offences over an 11 year period. These include convictions for driving under the influence or with excess alcohol. In 2010, following convictions for drive with excess alcohol and failing to give particulars about a crash to a police officer, his license was disqualified until further order. On a further conviction for driving under the influence in 2016, he was disqualified from driving for 99 years.
His property related conduct commences in 2001 with larceny, for which no conviction was recorded and a fine imposed. In South Australia, the Sentencing Act 2017 addresses imposition of a penalty without conviction. The imposition of a penalty without conviction requires a court to find a person guilty of the offence but that having taken other specified circumstances into account, a conviction should not be recorded.[6] While this is not a conviction for an offence, it is a finding that the offence occurred.
[6] Section 24 Sentencing Act 2017 (SA)
The Applicant was convicted of dishonestly taking property without consent in 2008 for which a conviction was recorded. He has had a charge proven without conviction for criminal damage in 2014, fined $650 and ordered to pay compensation of $200. His property offending includes the offence which led to a term of imprisonment for 2 years and 9 months which is described further below.
He has committed offences against police officers, having been convicted in 2015 of assault police and in 2016 two counts of aggravated assault without a weapon against a police officer. He was convicted of hindering police in 2010, three counts of resist police in 2015, and has a pending charge for refusing to provide name and address.
The Applicant has public order offences commencing 2009 for disorderly behaviour and fighting. He has been convicted of disorderly behaviour on four occasions and on two occasions of being unlawfully on premises in the period from 2009 to 2016. He has a no conviction recorded for being drunk in a public place and acting in a disruptive manner.
The Applicant has breached bail on nine occasions and was sentenced to a month in prison on the last occasion. He has breached his bond and a community service order.
The offending that led to a term of imprisonment of 2 years and 9 months is described in the sentencing remarks of Judge Brebner of the District Court of South Australia. Judge Brebner said the Applicant was grossly intoxicated and went to a supermarket where he dragged a 79 year old man out of his car to steal the vehicle. He drove off in the car, passing close to where the victim lay on the ground. The victim suffered a wound to his back and lost a hearing aid worth approximately $4,000. He was convicted of aggravated robbery and sentenced to a term of imprisonment of 2 years and 9 months.
This offence occurred in the context of other offences for which he was sentenced at the same time by Judge Brebner.
Judge Brebner said at this time the Applicant had reached a low point in his life. He had previously been employed for approximately 8 years and in a relationship for 6 years. By his mid-20’s his relationship came to an end, he was made redundant and started struggling with his mental health. He was then out of work and became an alcoholic. He obtained a job again in 2014 but his drinking interfered with his ability to work which led to offences in 2014 of disorderly behaviour, assaulting police, being unlawfully on premises, unlawful possession, three counts of resisting police and five offences of failing to comply with a bail agreement.

In November 2015 he was evicted from his property, was unemployed and facing homelessness. He was seen in the backyard of a residential premises without lawful excuse and ran off when the occupier yelled at him. He hindered police by running away when they directed him to stop. He was in breach of bail by living at an unauthorised address. At the time he stole the car from the supermarket he was prohibited from obtaining a driver’s license until further order and was driving under the influence. On being apprehended by police he punched a police officer in the shoulder and neck, committing assault aggravated by this being against a police officer acting in the course of his duty. A second assault, again on a police officer, occurred when he spat into a police officer’s face and eye.
Other conduct
The Direction specifies that decision makers are to consider the nature and seriousness of other conduct to date. The term ‘serious conduct’ is defined in cl.4(2) as including behaviour or conduct of concern that does not constitute any criminal offence.
The Minister also relies on other conduct of the Applicant, but expressly does not rely on all of the alleged conduct for which the Applicant has been charged. The Minister does rely on conduct that involved the Applicant smashing the window of a car. After being warned that he did not have to answer questions about this alleged conduct, the Applicant said he did break the window of the car and take a CD. This occurred on 17 August 2024.
A psychiatric report dated 3 January 2025 reports that the Applicant can plead mental incompetence for other alleged offences that are said to have occurred on 29 September 2024 due to a relapse of schizophrenia. While accepting that this conduct occurred, I consider this is within the period the Applicant could be said to have suffered a relapse. While this may be information to show the type of conduct the Applicant may engage in while he is suffering a relapse of his schizophrenia, it does not establish other serious conduct that may occur when he is in remission from his illness.
The Minister refers to incidents while the Applicant was in immigration detention where it is alleged:
·     to have approached an officer from behind, choked him and hit him resulted in the officer becoming unconscious,
·     officers were threatened, spat at and kicked at when a body belt was placed on the Applicant during transport to hospital,
·     he punched and kicked another detainee as he was alleged to have thought the other detainee had taken his mobile phone, and
·     to have threatened another detainee and an officer with a pool cue.
After being warned that he did not have to answer questions about these incidents and has privilege against self-incrimination, the Applicant said he did approach the officer from behind and hit him because he had repeatedly been in his room. He said he did punch and kick another detainee because he thought the other detainee had taken his phone and sold it, and because the other detainees found it funny that he was dealing with the Holy Ghost. He denied spitting at or threatening an officer when in a body belt. He initially said he could not recall the incident with the pool cue but then provided details, however I do not consider I can rely on his recall as this was a considerable period in the past and his initial response was that he could not recall.
The Minister relies on those incidents which the Applicant states did occur as other serious conduct by the Applicant. These are the events where the officer was alleged to have been choked and the punching and kicking of another detainee. I agree this occurred and is serious conduct as defined in cl.4(2) of the Direction.
Assessment
The offence of aggravated theft using force against an elderly man and the assault offences involve violence and must be viewed as very serious in accordance with cl.8.1.1(1)(a) of the Direction. Much of this offending, as it is also against police officers in the course of their duties and his conduct against officers in detention is also regarded as serious, however I disregard that component that also falls within cl.8.1.1(1)(a) of the Direction.
The sentence imposed for aggravated theft using force was 2 years and 9 months imprisonment, reflecting the gravity of this offence. The aggravated assault against a police officer resulted in a concurrent sentence of imprisonment for 9 months. His driving record has resulted in the Applicant effectively being unable to hold a license during his lifetime, which also reflects the consistency and severity of his driving offences.
The sentencing remarks state the victim of the theft using force offence has suffered a reduced enjoyment of life, that he has suffered both physically and psychologically as a result, and that he requires continuing treatment.
The Applicant’s offending, while initially infrequent in the years 2001 – 2007, is frequent from 2008 with several convictions each year until he was imprisoned in 2016. The severity of his offering has also increased with the last conviction recorded being aggravated theft using force. There is a cumulative effect to his repeat offending.
The Applicant has been charged with other offences but has not been convicted of these offences and I expressly do not take these into account in assessing whether he has reoffended since being made aware of the effect of further offending on his visa status.
There is no information before me to show he has provided any false or misleading information to the Department or has committed offences in any other country.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[7]
(1)In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers 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 noncitizen 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). …
[7] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[8] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[9]
[8] The Direction, cl 8.1.2(2)(a).
[9] Ibid cl 8.1.2(2)(b).
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[10]
[10] The Direction, cl 8.1.2(2)(a).
If the Applicant were to reoffend is a similar way there is a risk of psychological and physical injury to victims, property damage, repeated disregard for directions of police officers, harm to police officers, and noncompliance with bail conditions, bonds, and community service orders.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In sentencing, Judge Brebner stated that the Applicant detoxified from alcohol during remand, had reflected on his circumstances, accepted responsibility for his actions, and was remorseful. He had plans to remain sober on release, further his studies, re-engage with the church and get on with his life. As a result, Judge Brebner considered his prospects of rehabilitation to be reasonable.
This has not eventuated, with the Applicant currently being held on remand for alleged further offences, having stated in a psychiatric assessment that the circumstances that led to him being charged with offences occurred while he was using methamphetamine about three times a week, smoking marijuana, and drinking beer. This occurred in the context of ceasing medication and a relapse of the underlying disorder of schizophrenia.
Rehabilitation
The Applicant is now receiving treatment for schizophrenia, and since the community treatment order lapsed has voluntarily taken medication with supervision. As he is recorded to have at times refused treatment while in immigration detention this is significant progress in the treatment of his illness. However, given this previous refusal of treatment, the cessation of treatment on release from immigration detention, and the relatively recent need for a community treatment order to provide treatment despite his lack of consent, the prospects of him complying with treatment in the community are guarded.
Despite being treated for his conditions and the condition being in remissions, the Applicant continues to consider that he was the victim in many of the circumstances in which he was found to have committed offences. He remains of the belief that the elderly man whose car he stole was following him or otherwise threatening him, and that he has been unfairly targeted. While I accept this is his genuine belief, that he continues to hold these beliefs even when treated for his condition shows that he remains a risk to the community. The Applicant is a large man and acting on genuinely held but incorrect beliefs about a threat to him could result in serious consequences.
A psychology report dated 17 November 2023 records that the Applicant suffered symptoms of anxiety and depression and had subclinical symptoms of PTSD. In light of his psychiatric history I place little reliance on this report, not least due to the report stating both that the Applicant had a happy childhood and that he suffered trauma.
The Applicant said he is doing a course with OARS (Offender Aid and Rehabilitation Service) which he commenced in October 2024 to address drug, alcohol and gambling. He says he has completed a literacy and numeracy course. There is a record in the material before me of the Applicant completing Phase 1 of the Making Changes program in 2015.
Protective factors
The Applicant has a large family in Australia. He says he is closest to his full biological sister, and lived with her when they came to Australia. His mother, two of his sisters, a niece and a cousin provided statements in support of the Applicant.
His sister Margaret states she will assist the Applicant finding support and will link him to services such as support groups in the community and counselling. She says he has very strong networks to promote healthy life choices and has a big family that believes in God and karma.
His sister Faiza states she is happy for him to live with her and her children and support him financially until he has a job, and her adult children will help to take him to appointments and job interviews. She said they have support from the church they attend and the Nuer community.
His sister-in-law states they are there to support him and help him get back on his feet with community support services. He has family members who work in disability and mental health. His niece states she will help the Applicant get employment and connect with the church and have counselling to stay away from alcohol and drugs.
The president of the Nuer Community in Victoria speaks of knowing the Applicant since 2011 and the close connection between their families, and I infer that he would also provide support to the Applicant.
While he has support, the difficulty is the Applicant chose only to access this support temporarily on his release from immigration detention. He relocated to South Australia within three months of his release from immigration detention and ceased his medication. The Applicant said he spent time with his family on his release from immigration detention but returned to South Australia to look for work. While he states he has nowhere to live other than with his mother, he has not chosen to live with her on an ongoing basis, and his willingness to access the support his family and community offer has not been established by his actions. He said if he is released from prison, he intends to live with a member of the Nuer community who he has not met in person, but that he would return to live with his mother if necessary.
Overall, I consider there is a moderate to high risk of the Applicant engaging in further criminal or other serious conduct.
Conclusion on the protection of the Australian community
Given the seriousness of the Applicant’s offending, the frequency of his offending and the early stages of remission of his mental illness and his choice not to access the support offered by his family I consider the protection of the Australian community weighs heavily in favour of not revoking the cancellation of his visa.
Family violence
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. As there is no information that the Applicant has perpetrated family violence, this does not apply.
The Strength, Nature and Duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers 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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has a large family in Australia and the cancellation of his visa will have a negative effect on these family members, particularly his mother, his sister Faiza and his sister Margaret. He is close to Faiza’s children and his sister-in-law and one of his cousins and it will have an adverse effect on these family members, and the effect on these family members weighs in favour of revoking the cancellation of his visa.
The Applicant arrived in Australia in 1999 and has been here approximately 25 years. He arrived as a minor at approximately 15 years of age. While there are offences relatively soon after arriving, the Applicant was generally a productive member of the community working in printing and undertaking studies in graphic design, however it appears with the loss of his job, the end of a relationship, and what in retrospect has been the development of a serious mental illness, his life started to unravel.
He made a significant attempt to get back on track, completing a civil engineering course and starting work in concerting but was unable to sustain a productive lifestyle and his offending increased.
He has played sport in Australia for the community including football, soccer and basketball over several years prior to 2010.
He has provided references from people he has known for many years and who retained ties with him despite his imprisonment. He said he is distant from them now because he has been in custody for so long. He remains in contact with his ex-girlfriend’s mother.
His contribution to the community weighs in favour of revoking the cancellation of this visa.
Overall, this consideration weighs moderately in favour of revoking the cancellation of his visa.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
The Applicant has many nieces and nephews and many cousins. Most of his nieces and nephews are adults. He identified that the youngest child of his sister Faiza is a minor but could not recall the child’s name or age. His sister Martha has a son who is 3 years old who he saw when they visited in 2024. His brother Jeremiah has 3 or 4 children, and he recalled that one of these children is 7 years old, who he saw when he was released from immigration detention. He is close to a cousin who lives in Darwin and who has two children. He said he has looked after his cousins in the past when he was in Victoria.
The Applicant acknowledged he has not been the primary carer for these children. There are two groups of children affected by the decision, the first being those children he has had contact with and the second are those he has had only passing, if any, contact such as meeting them less than three occasions and contact only through their parents.
The children with whom he has had contact include both sister’s younger children, any minor cousins he has looked after in the past and his brother’s children. He is not the primary carer of the children and has had limited contact with them over the last 6 years. There is no information before me that he maintained contact with these children. The current effect of the cancellation of his visa is that he will not be removed from Australia, and he can maintain his existing contact with these children. The Applicant is currently in South Australia and if released into the community on a BVR he will need to report before travelling interstate where the children are located, and this may be an impediment to his contact with them.
I do not consider the interests of the children in the group where he has had no contact with them weigh for or against revoking the cancellation of the visa.
Overall, this consideration weighs marginally in favour of revoking the cancellation of his visa.
Expectations of the Australian community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[11]
[11] The Direction, cl 8.5(2).

Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The expectation of the community, as expressed in the Direction is that the Applicant’s visa will be cancelled. This consideration weighs in favour of not revoking the cancellation.
OTHER CONSIDERATIONS
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)       legal consequences of the decision;
b)       extent of impediments if removed;
c)       impact on Australian business interests.
Legal consequences of decision under s 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[12]
[12] Ibid cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
In the Applicant’s case a protection finding has been made, and he will not be removed to South Sudan. If the cancellation of his visa is not revoked he is prevented from applying for another protection visa by s 48A of the Act unless the Minister decides this does not apply and will be prevented by s 501E of the Act from applying for any visas other than a BVR.
This in turn has the consequence that he can potentially be removed from Australia in the future, he will be subject to the conditions of a BVR for an indeterminate period, and he is not eligible for services in Australia that require him to be an Australian citizen or permanent resident.
Potential Removal from Australia
As the holder of a BVR the Applicant is a ‘removal pathway non-citizen’ (s 5 of the Act).
A person who cannot be removed because a protection finding can be given a removal pathway direction if another country is identified to which the person can be removed.[13] A removal pathway direction cannot be given to a non-citizen for a country to which they could not be returned because a protection finding has been made. This means the Applicant could not be given a removal pathway direction for South Sudan, as a protection finding has been made for the Applicant in relation to South Sudan.
[13] S 199B of the Act
A BVR held by a non-citizen will cease under s 76AAA of the Act if the holder has permission to enter and remain in another country that is party to a third country reception arrangement that is in force.
The Minister acknowledged a third country reception arrangement has been entered with Nauru. This was not contained in the Minister’s statement of facts, issues and contentions, and the Tribunal does not have the benefit of any further information about the terms of a third country reception arrangement with Nauru under s 198AHB of the Act.
Instead, the Tribunal is asked to rely on an assurance from the representatives of the Minister that the Minister does not currently intend to remove the Applicant. While it is accepted this is the current intention, this does not bind the Minister from forming a different intention in the future.
The prospect of being removed to another country, particularly given the Applicant’s need for treatment for his mental illness and drug rehabilitation, is an adverse outcome for the Applicant and attracts significant weight in favour of revoking the cancellation of the visa.
The Applicant said if he is removed from Australia, he would prefer to return to South Sudan rather than being removed to Nauru.
Subject to BVR conditions
The Applicant was first granted a BVR on 11 September 2024 as there were no reasonable prospects of him being removed from Australia becoming practicable in the reasonably foreseeable future in accordance with the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[14] This visa included conditions that he wear an electronic monitoring device and that he abides by a specified curfew. These conditions were found by the High Court to be invalid.[15]
[14] [2023] HCA 37.
[15] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40
He was granted a further BVR on 7 November 2024, and the previous BVR ceased on the grant of another BVR.[16] The further BVR is not subject to electronic monitoring or a curfew.
[16] Migration Regulations 1994 (Cth) sch 2 pt 070 cl.070.511(c)(iii).
The BVR granted to the Applicant on 7 November 2024 is subject to over 20 conditions. While many of these conditions will not cause the Applicant difficulty at present, some will be onerous, and will have a different impact on the Applicant to those who do not have a mental illness. For example, condition 8303 which attaches to his visa states he must not become involved in activities disruptive to, or violence threatening harm to Australian community or a group within the Australian community. He is also required to report daily and must notify of his residential address, notify of travel, and of changes to his personal details. Breach of these conditions can also result in the cancellation of his BVR.
In going through these conditions, the Applicant states he was and is able to comply with the reporting and other conditions on his BVR. There are reports of him failing to comply with some of the conditions surrounding electronic monitoring, however the Minister submits he will not be subject to this condition in the community. The Applicant could not comment on the effect on him of remaining liable to removal from Australia as the holder of a BVR, and his only comment was that if he were to be removed from Australia, he would prefer to be removed to South Sudan.
The legal consequence of the decision to refuse his visa is that the Applicant is subject to a BVR for an indeterminate period. In his circumstances this is more onerous because of his mental illness and the effect on this illness on this ability to comply with reporting conditions and remaining liable to removal from Australia, and weighs significantly in favour of revoking the cancellation of his visa.
Eligibility for services
The cancelation of his visa is not revoked, the Applicant will not be eligible for services that require him to be an Australian citizen or permanent resident. These services include the NDIS and a disability support pension. This weighs in favour of revoking cancellation of the visa.
Overall, the legal consequences of the decision weigh significantly in favour of revoking the cancellation of the visa.
Extent of impediments if removed
The Tribunal must consider the extent to which a non-citizen would face an impediment or impediments if removed from Australia to their home country in establishing themselves and maintaining basic living standards. This is in the context of what is generally available to citizens of that country, taking into account their age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available in that country.
The Applicant cannot be removed from Australia to his home country of South Sudan because a protection finding has been made, and this consideration does not directly apply. However, he said that if he were to be removed from Australia to another country he would prefer to return to South Sudan. It has been found that there is a real risk of serious harm if he is returned to South Sudan because of his Nuer ethnicity and imputed political opinion.
I also consider that his condition would be poor if he voluntarily or involuntarily left Australia to a country with a lower standard of health services because of his mental illness. I am not required by the Direction to consider the impediments if removed to a country other than his home country, however this is a relevant consideration given he could potentially be removed to a third country with whom Australia has a third country reception arrangement.
While otherwise physically well, the Applicant has a serious mental illness and a substance use disorder and has been unable to sustain employment for approximately 10 years. If he were to live in another country without social services, he faces potential poverty and homelessness as well as a lack of treatment for his mental illness and the harm that may be caused to him because he has a mental illness.
Therefore, while the Applicant cannot be removed to his home country and there are no imminent plans to remove him to a third country, I consider this possibility to be relevant and to attract some weight in favour of revoking the cancellation of his visa.
Impact on Australian business interests
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 would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Applicant said that he thought he could get work with his previous employer in printing, however there is no other information that there is a current offer of employment. He was unsuccessful in obtaining work on arriving in South Australian in March 2024.
There is little information before me that Australian business interests would be affected by this decision, and this consideration does not weigh for or against revoking the cancellation of this visa.
CONCLUSION
The protection of the Australian community in this case weighs heavily in favour of not revoking the cancellation of the Applicant’s visa. The expectation of the Australian community weighs in favour of not revoking the cancellation.
The Applicant has very substantial ties to Australia with his immediate family and large extended family network in Australia, as well as there being a period on which he contributed to the community mean that his ties to Australia weigh moderately in favour of revoking the cancellation of his visa. The best interests of children weigh marginally in favour or revoking the cancellation of the visa, and the legal consequences weigh significantly in favour of revoking. While the extent of impediments if returned to his home country do not directly apply, in otherwise considering these impediments I consider they weigh somewhat in favour of revoking the cancellation of his visa.
The safety of the Australian community is expressed to be the highest priority of the government, and the Applicant poses a moderate to high risk of engaging in further criminal or other serious conduct. Overall, the protection of the Australian community and the expectations of the community outweigh other considerations that are in favour of revoking the cancellation, and I consider another reason to revoke the cancellation of the visa has not been established.
DECISION
The decision under review is affirmed.

Date of hearing:

6, 7 and 12 March 2025

Applicant:

Self represented

Solicitor for the Respondent:

Alex Chan

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