JTYX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4068

JTYX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4068 (2 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6673

Re:JTYX

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:2 November 2022

Date of written reasons:        30 November 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

................[SGND]........................................................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – serious offending including family violence
– abuse of alcohol – real risk of re-offending – interests of minor children – child with mental-health concerns – impediments on removal – applicant a South Sudanese national – extreme hardship in South Sudan – alternative hypothesis of indefinite detention also considered – on either hypothesis correct or preferable decision favours revocation of the cancellation decision – decision set aside and cancellation revoked

Legislation

Migration Act 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

PMYR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3103

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463

Secondary Materials

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

30 November 2022

1. After delivery of my decision with oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties with minor amendments.

2. This is an application by “JTYX”, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review of a decision reached by the respondent’s delegate dated 9 August 2022. By that decision, the delegate refused to revoke the cancellation of the applicant’s humanitarian visa, which had taken place earlier, and mandatorily, under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). The cancellation came about when the applicant was convicted of a serious criminal offence, namely affray, and was sentenced to a lengthy term of imprisonment, part of which was required to be served on a full-time basis in gaol.

3. The applicant made a timely application for an internal review of the cancellation decision. The delegate who was tasked with conducting the internal review had two questions to address under section 501CA(4)(b). The first question was whether the applicant satisfied the so-called “character test” as elaborated in section 501(6). If the answer to this question was “no”, the second question was whether there was “another reason” for the cancellation decision to be revoked.  In this regard, the delegate was required to apply Direction no. 90[1] issued under section 499 of the Act.

   [1] Direction no 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. In matters like this, the Tribunal exercises its jurisdiction de novo, to use the Latin expression. That is to say, I do not merely review the delegate’s decision for error. I hear oral evidence and submissions, receive documents and submissions, make findings of fact, and draw my own final conclusions.  It follows from this manner of proceeding that I may set aside the decision under review notwithstanding the absence of any discernible error in the reasons of the delegate if that is the correct or preferable decision on the evidence before me. Equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence.

5. At the hearing before me, the applicant represented himself; Ms Gutmann appeared for the respondent.  I am grateful to Ms Gutmann for her assistance.

   STATEMENT OF CONCLUSION

6. In my opinion, the correct or preferable decision on the evidence before me is to find that there is another reason for the cancellation decision to be revoked. I now turn to set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

7. The applicant was born in Sudan in 1980 and was 42 years of age when I heard his application.  He is a citizen of the country now known as “South Sudan”.  The applicant grew up in Sudan, as it was then known, in very difficult circumstances.  The country was convulsed by civil war. He had no real connection with his mother and father and was, in fact, raised by his grandmother.

8. His early experiences in South Sudan were very difficult. He and his younger sister lived with their grandmother as I have noted. The father and mother had earlier left the family home.  The applicant and his sister eventually set out on foot to join their parents and first walked to a city called “Wau”; but, on arriving there, they discovered that their father had left for Khartoum.  The applicant described this time as extremely difficult because of the prevalent threat of famine. I accept that evidence. 

9. When they finally reached Khartoum, the applicant and his sister learned for the first time of their parents’ separation and that both their mother and their father had remarried.  They were taken into their father’s home but were mistreated by their father’s new spouse, who became their stepmother.  The applicant was required to work from a young age.

10. In 1996 he left home.  From this time until his departure for Egypt in 2000, the applicant did not have a fixed address but lived temporarily at different locations, sometimes with uncles and sometimes with other young men. During this period, he was a student but also took on employment to support himself. In 1999, as I understand the applicant’s evidence, he only worked.

11. In 2000, he moved to Cairo.  On arriving in Cairo, the applicant spent some two weeks with a relative who then left for America. He then rented a room with a friend or friends.  He worked as an apprentice mechanic specialising in VWs and Audis. He lived and worked in Cairo until his uncle sent him a form proposing that he be sponsored for migration to Australia as part of a humanitarian program.

12. In 2003, his uncle did in fact sponsor the applicant’s migration to Australia. All the paperwork was handled by his uncle, the applicant said.  He was granted a global humanitarian visa, and I understand it is this visa that was mandatorily cancelled by the respondent.

13. On arrival, the applicant first lived in Sydney with the uncle who had sponsored him.  The applicant gave evidence that he had never drunk alcohol before arriving in Australia, and so he arrived here without an alcohol-dependence problem.

14. He lived with his uncle for approximately one to two months and then rented a place with another friend. This friend was also Sudanese and they had first become acquainted in Egypt.

15. It would appear from the applicant’s evidence that he did not have settled work when he arrived in Sydney, but he managed to afford his rent from Centrelink payments. He did, however, move to Perth with his uncle when the latter moved there.

16. The applicant’s mother is still alive and lives in Rombeik, South Sudan.  The applicant last spoke with her in 2021 but cannot remember the month. He gave evidence that he does not know where his father presently lives and has no contact with him.  I accept that evidence.  The familial ties are not strong.

17. So far as the applicant’s personal life is concerned, he is now separated from his partner, B, but they have two children, now aged 15 and 13 respectively. I will not mention the various nieces and nephews the applicant has as I do not think these relationships are important for the purposes of my decision. 

18. So far as the relationship with B is concerned, I note that it was marred by violence.  It is clear from the evidence that the applicant developed a serious drinking problem after his arrival in Australia, and this led to family violence.  His relationship with B began in 2006 and the first child was born in 2007 as I have said. The applicant was candid in his evidence to me that he has been guilty of serious violence against B. The applicant linked his behaviour to alcohol abuse.  The alcohol abuse began, he said, as an attempt to help him forget about the problems he experienced in Sudan.  He accepts openly that alcohol has ruined his life.  This observation is true enough and demonstrates a degree of insight. He now hates alcohol, he says, and gave evidence, which I accept, that he has not drunk since entering jail in April 2019, which is some three-and-a-half years ago.

    Criminal Offending

19. The applicant’s criminal record was before me (see Exhibit R1, pp 39-44).  It stretches over some five pages. It is not practicable to go through each offence in detail. I do note, however, that the offending began shortly after the applicant’s arrival in Australia, a matter referred to in the Direction: see paragraph 9.4.1(2)(a)(i).  It began in Perth, where, as I have said, the applicant had travelled with his uncle. 

20. The first offence occurred in 2005 and involved assaulting a public officer.  A fine of $400 was imposed. It would appear from the record that this early offending was linked to alcohol consumption as there were also convictions on that date for failing to submit a sample of breath for analysis and for refusing a breath test. I infer that these offences related to driving.

21. In 2006 there is one offence of behaving in an offensive manner near a public place or school where a fine of $350 was imposed.

22. In 2007 there was a driving-under-the-influence conviction which resulted in a fine and a period of disqualification.

23. In 2008 there were convictions for breaching a bail undertaking and an offence involving a refusal to move on when requested to do so by the police. These offences attracted fines of $1500 and $500 respectively.

24. In 2009 there was an offence of driving while disqualified or suspended which attracted a fine of $400 and a further disqualification period of nine months.

25. In 2010 there are four offences all of which were punished by a fine. They include obstructing and assaulting a police officer, driving while disqualified or suspended, and breach of a police order.

26. Pausing here, I note that many of the offences were alcohol-related. They involve disorderly and defiant behaviour. Nevertheless, at this stage, the applicant had not yet received a jail term. Clearly, however, he had serious issues in relation to alcohol abuse.  It was leading him down a dangerous path, and I note that as of 2010, the applicant was 30 years of age, well beyond young adulthood.

27. In 2011 there is just one offence mentioned in the record and that is a breach of a police order but the record shows there was no appearance and an arrest warrant was issued.

28. There is no recorded conviction in 2012.

29. In 2013 there are five offences recorded. At this point I note the applicant had returned to New South Wales and had begun to appear before the local courts there.  Of concern at this point is a charge of common assault (in a domestic-violence context) in relation to which an eight-month bond was imposed.  There were three separate contraventions of a prohibition or restriction in an apprehended violence order (or “AVO”), two of which resulted in fines while the third resulted in a term of imprisonment of eight months (suspended on entering a bond).  On that occasion the applicant was also sentenced for an assault occasioning actual bodily harm in a domestic-violence assault and received a term of imprisonment of eight months (suspended). These convictions are important because an earlier common- assault conviction in relation to which a bond was entered was called up for sentencing.  It is clear that the offences in question were occurring despite bonds having been entered. That is a serious matter since a bond is a formal undertaking by an offender to be of good behaviour in exchange for which he or she receives a more lenient sentence.

30. In 2015 there are again two convictions for contravening a prohibition or restriction in an AVO.  These resulted in a fine and a bond for 12 months. I note that there was a requirement that drug and alcohol rehabilitation be undertaken; and this appears frequently in the criminal  record.

31. In 2016 there is an offence of driving with a high range of blood alcohol. This resulted in a community service order of 280 hours. There is a conviction of stalking/or intimidation in a domestic setting which resulted in two months’ imprisonment commencing in March 2016. This also caused an earlier bond imposed in respect of contravening a prohibition or restriction in an AVO to be called up.  A concurrent sentence of two months was imposed.  I note that the applicant entered gaol at this point, albeit for a limited period of two months; but it ought to have been clear to the applicant that continued offending could well lead him to longer gaol terms.

32. In 2017 the applicant was found guilty of possessing a prohibited drug.  There was a conviction but no other penalty.

33. On 4 May 2018, the applicant was convicted of multiple offences, including affray. He was placed on a bond for two years. There were also two convictions for contravening a prohibition or restriction in an AVO resulting in bonds.  On 20 June 2018, multiple earlier bonds in relation to domestic-violence offences were called up and a ten-month sentence was imposed in each case.

34. On 6 March 2019, the applicant received one week’s imprisonment for possession of a prohibited drug.  On 5 April 2019, the earlier bond for the offence of affray was called up and imprisonment for four months was imposed on that occasion. Although an appeal was lodged, the record shows that the sentence was confirmed in July of that year.  That day a further offence of affray was found proven and a period of imprisonment of 14 months was imposed with a commencement date of 27/11/2019 and a non-parole period of four months. A large number of contravening offences were called up and imprisonment for a  term of 10 months was imposed.  All these orders were confirmed in the event.

35. I had before me a transcript of the proceedings on 5 April 2019 before the local Court in Newtown (Exhibit R1 at pp 51ff).  The offending consisted of punching the victim and kicking him in the leg, which are very dangerous acts. The court found that there was a medium-to-high risk of reoffending. The police report was also before me and I have had regard to it.  A 14-month head sentence was imposed with a four-month non-parole period, which was to be served after other sentences were served.  I note that I had the transcripts of sentencing remarks in respect of other earlier offending before me as well (see Exhibit R1, pp 59ff) and I have considered these.

36. When the applicant was sentenced on 5 April 2019, his estimated release date was 27 March 2020. On 28 October 2019, the applicant’s visa was cancelled mandatorily under section 501(3A) of the Act. As I mentioned at the outset, the delegate who cancelled the visa had formed the view that the applicant had a substantial criminal record in that he had been sentenced to a term of imprisonment exceeding 12 months part which he was required to serve full-time in jail. The delegate concluded that he or she was obliged in these circumstances to cancel the applicant’s visa. That decision was clearly correct.

37. As I have also said, the applicant made a timely application for an internal review in accordance with section 501CA(3). The delegate who conducted the internal review had two questions to answer under section 501CA(4)(b). The first was whether the applicant passed the so-called “character test”. The applicant failed the character test because of his substantial criminal record: see section 501(6)(a) and (7)(c) . Having reached that conclusion, the delegate had to address the question of whether there was “another reason” for the cancellation decision to be revoked. In this regard, the delegate was required to apply Direction no. 90, issued under section 499 of the Act. The delegate found revocation of the cancellation decision was not warranted.

    REASONS

38. I must address the same two questions.  I can say immediately that the applicant clearly does not pass the character test. The delegate’s conclusion was clearly correct in this regard. The only truly contentious issue before me was whether there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii). Like the delegate, I am required to apply Direction no. 90.

39. I customarily set out certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff, and I do so again here:

    “[32] I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    [33] I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    [34] First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    [35] I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    [36] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

1. I am required to have regard to a number of primary considerations.  The first such consideration is the protection of the Australian community. I note what appears in paragraph 8.1(1) without setting it out.  I bear it carefully in mind, however.  It is an important principle.

2. I must give consideration to the nature and seriousness of the applicant’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. In respect of the nature and seriousness of the applicant’s conduct, I am required to have regard to the matters listed in subparagraphs (a) to (g) of paragraph 8.1.1(1).

3. Subparagraph (a) is clearly engaged. There have been crimes of a violent nature, including against women, and acts of family violence. These are to be regarded very seriously under the Direction. I note that subparagraph (c) emphasises this because I need not have regard to any sentences imposed by the courts in respect of crimes of a violent nature against women and acts of family violence.

4. In this regard, it is clear that the violence comprising the offence of affray was very serious.  The multiple assaults against his partner B, which have been the subject of AVOs and of proceedings for breaches of those orders, have also been very serious.  The assaults have occurred in premises where young children were present. They have extended to death threats and the infliction of serious violence.  Having regard to the applicant’s extensive history of alcohol abuse and the number of appearances before the Courts, I do not doubt that the offending in respect of B (which constitutes family violence) was both significant and very frequent.

5. There have been multiple convictions as well for driving while under the influence of alcohol or while having an excess amount of alcohol in the blood. That is a serious matter because other road-users bear the risk of serious injury or worse when drivers are affected by alcohol. 

6. I regard the offences of possession of prohibited drugs as an anti-social crime of some significance.  There are also multiple failures to appear in Court and breaches of bonds.  There have been some assaults of police officers (going back, however, some years now).  This history, taken together, demonstrates considerable defiance and disregard of the law.  That is a very serious matter. 

7. I must have regard, under subparagraph (d), to the frequency of the applicant’s offending.  Here, the record speaks largely for itself. There has been an extreme frequency in offending, and there is a trend of increasing seriousness. The trend of increasing seriousness is manifested in two ways. First, there is the seriousness of continual acts in breach of the law when suspended sentences or bonds are in place in relation to earlier offending. The offending not only constitutes a breach of the law but also a breach of an obligation sourced in a promise by the offender to be of good behaviour. That promise is given to the court which receives it on behalf of the Australian community. 

8. Secondly, the offending has extended to more serious instances of violence that have led to significant gaol terms.   So far as the family-violence assaults are concerned, these also indicate a trend of increasing seriousness, principally because they have persisted with serious consequences for the victim. There have also been a significant number of alcohol-related driving offences. These, too, are serious because of the serious threat poor driving (brought about by intoxication) poses to the community.

9. I must have regard to the cumulative effect of repeated offending under subparagraph (e) and I do so. The entire record is extremely serious. There have been numerous instances of antisocial and violent offending. There have been impacts upon individual community members and the community as a whole.  The family-violence convictions are very serious in this regard because repetitive violence can impair substantially, and on a long-term basis, an individual’s wellbeing, both physical and psychological.

10. I must also have regard to the risk to the Australian community.  Here, I am to have regard to “cumulatively” two matters.  First, I am to have regard to the nature of harm to the Australian community or individuals should the applicant engage in further criminal or other serious conduct; and, secondly, I must also have regard to the likelihood of his engaging in that conduct having regard to the matters set out in subparagraphs (i) and (ii) of paragraph 8.1.2(2)(b).

11. I regard the nature of harm to individuals in the Australian community as extremely serious.  The violence perpetrated by the applicant is of a type that can have unpredictable results.  I note that this was mentioned explicitly in the sentencing remarks relating to affray for example: see Exhibit R1, p 53.  Moreover, the offending in this case has been associated with disinhibition caused by alcohol abuse.  A drunken and disinhibited perpetrator may inflict even more serious injury than he or she had intended: a person in such a state lacks awareness and control.  Accordingly, I regard drunken violence as unpredictable in its consequences, and these can extend to very serious harm indeed. I note that some family violence in this case has even been accompanied by death threats that were credible in the circumstances.  This is extremely serious.

12. I think a repetition of the offence of driving under the influence of alcohol, or with a higher than permitted concentration of alcohol in the blood, would also be potentially serious.  It would pose a substantial risk to other road-users. 

13. I must have regard to the likelihood of recidivism: see paragraph 8.1.2(2)(b).  Alcohol abuse has clearly been associated with much of the offending in this case.  I accept that the applicant has not consumed alcohol in gaol or, more importantly, in detention since his arrival there on 26 March 2020: see Exhibit R2, p 288.  That is more than two-and-a-half years ago (and three-and-a-half years ago when time spent in prison is added on).  Any physical dependence on alcohol has ended.  But addiction is more complicated than mere physical dependence, and there are undoubtedly complex psychological factors at work in respect of the applicant. I accept his evidence that his life in Sudan during the civil war was extremely difficult for him. It led him to experiment with alcohol in Australia. I suspect that there are still underlying issues that would benefit from intensive therapy or counselling.  I note also that earlier short stints of imprisonment have not assisted the applicant to renounce alcohol.

14. I accept that the applicant has undertaken some online courses relating to drug and alcohol abuse and to anger management, and there have been some attempts now by him  to open up to psychological therapy. These are a start. They are important, in my opinion, because they demonstrate that the applicant has resolved to attempt to take matters in hand. He has finally arrived at an appreciation of the consequences of his behaviour. However, it must be said that they are a start only.

15. I also accept that the applicant is particularly concerned to provide for his children. At the present time, the two children are part of what is sometimes called a “blended” family.  Their mother, B, finds herself as a single parent with three other children to look after from another partner.  As I understand matters, she is under a deal of financial stress since separating from that partner.  One of the applicant’s two children has mental-health issues of his own.  He wishes to pursue a career in the automotive industry, like his father.  There is a reasonable prospect of the applicant making a significant contribution to the children’s welfare (especially in relation to the boy who has mental-health issues and wishes to become a mechanic).  This is a powerful incentive for this particular applicant in my opinion.

16. I appreciate also that the term of imprisonment that has been imposed in this case, whilst not the first such term, did represent a significant loss of liberty, especially when it is coupled with the very long time spent in immigration detention (namely over two-and-a-half years).  This has impacted the applicant quite significantly, in my opinion.  It has certainly brought home to him the reality of his situation, and, in particular, his isolation from his children and the inability he currently has to provide for them.  He also knows that any further offending will only see him re-incarcerated and facing further time in immigration detention.

17. I also regard the offer of immediate re-employment (Exhibit A1) from the applicant’s former employer as an important protective factor, although I acknowledge that employment has not prevented the commission of serious offences in the past. 

18. That said, alcohol abuse has lain at the root of the applicant’s criminal offending over a very long period of time.  There must be some doubt whether, after such a prolonged period of abuse, he will be able to sustain what I accept is his firm resolution not to drink again. 

19. I do not have an up-to-date risk assessment of the applicant before me.  In all the circumstances, I have decided that the respondent is correct in submitting that there is a very real risk of reoffending.  It is certainly not a low risk; but there are, nevertheless, some positive signs.

20. Paragraph 8.2 requires me to consider family violence.  Without repeating them, I note that I accept the respondent’s submissions in respect of family violence as they appear in its Statement of Facts Issues and Contentions (“SOFIC”) at paragraphs [27]ff.  The applicant has threatened and assaulted his partner, B, on multiple occasions including in the presence of children.  The legal regime of AVOs and court sanctions has not prevented recurrences.  I add that I did not accept B’s evidence to the Tribunal where it contradicted police-incident reports. The violence has been repetitive and serious.  It has had, no doubt, a cumulative impact.  I doubt that the applicant understands the impact of his behaviour on B and his children and he has not commenced therapy or counselling.  I have already considered the risk of recidivism in this regard as being real.  All in all, this is a consideration that counts substantially against the applicant.

21. The respondent accepts in its SOFIC at [32] that the interests of the applicant’s children count in his favour. I accept this submission although my reasons perhaps differ. The applicant’s submission to me that he cares deeply for his children is one that I do accept, notwithstanding the chaos and distress he has caused in their lives. I accept also the evidence before me that one of the children is receiving counselling in respect of his mental-health problems.  He is currently disengaged from his secondary education. I do believe that the applicant can contribute meaningfully to his children’s lives if he remains sober.

22. I accept that the children are unfortunate victims of dysfunction in this family. They do not have a father at the present time. They live in constrained financial circumstances without money coming in from their father. Importantly, they have witnessed a great deal of violence.  All this is hardly conducive to an environment where these youngsters might thrive psychologically and move on to lead meaningful and responsible lives.  I do believe that the applicant’s removal from Australia will exacerbate their difficulties, and so their interests certainly do favour the applicant’s continuing presence in Australia.  So far as the financial aspect of this matter is concerned, I note again that the applicant has an offer of full-time re-employment with his former employer, who spoke highly of his skills, and, if the applicant were to return to the Australian community, he would be in a position to support his children.

23. That said, I must bear in mind that this applicant has committed very serious acts of family violence and has threatened to kill his partner in earshot at least, if not in the actual presence, of the children.  They have no doubt witnessed many extreme situations.  Children cannot rationalise the serious misconduct of adults.  They simply bear the brunt of the psychological impact of witnessing distressing violence.  I bear in mind that it would be clearly in the interests of these children that their father leave Australia rather than witness any further violence by him.  That would be difficult for them; but I am clear in my view that witnessing further violent episodes is not in their interests. 

24. All in all, however, whilst taking that into account, I do accept that the return of a sober applicant to ongoing engagement with his children and the return of financial support to them will be in their long-term interests.

25. The final primary consideration is the expectations of the Australian community: paragraph 8.4.  I accept that these expectations are to be found within paragraph 8.4 and I am not to assess them for myself: see subparagraph (4). I accept also that the expectations of the community apply whether or not the applicant poses a measurable risk of causing physical harm to the community: see subparagraph (3). I note that family violence and violence against a woman are specifically nominated as crimes that should attract special concern insofar as the applicant’s character is concerned: see paragraph 8.4(2)(c). I note further that paragraph 8.4(1) provides that “as a norm” ‒ although not as an inflexible rule ‒ the Australian community expects the Government not to continue to allow this applicant to remain in the community. All in all, the community-expectations consideration weighs heavily against the applicant.

26. I must also have regard to other considerations. Paragraph 9 provides a non-exhaustive list of four such considerations.   The applicant has submitted to me that he genuinely fears removal to South Sudan.  The respondent did not formally accept that the applicant, as of today, has a right to protection.  I am content to proceed to deal with the application on the basis that the respondent is correct and that the applicant has no such right.

27. I must consider the impediments on removal.  I forwarded to the respondent certain source material that was recently considered by me in connection with an application to this Tribunal by a Sudanese applicant. I also forwarded my decision in that case (PMYR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3103).

28. The respondent accepted that the material I had forwarded was appropriate material on which I might rely.  I shall not recapitulate that material or my analysis of it: it is sufficient to refer to my discussion in PMYR at [38]ff.  I re-adopt my analysis in this case. 

29. It is clear that the circumstances for this applicant in South Sudan would be extremely difficult.  I find that this applicant has very uncertain familial ties there, and he is, therefore, not a person whose situation may be equated with that of other middle-aged South Sudanese men.  He has been away for many years.  He would suffer additional burdens were he to live there.  I referred to the relevance of this finding in PMYR at [48] insofar as it relates to the limitation in paragraph 9.2(1) that I consider what is “generally available to other citizens of that country”.  As I say, this is not a case of an applicant who would be in the same situation as other South Sudanese in my opinion.

30. The impediments on removal are a matter that weigh heavily in the applicant’s favour.

31. So far as links to the Australian community are concerned, the applicant’s former partner, B, gave evidence. I did not accept her evidence to the extent that she sought to minimise the violence she had suffered in their relationship; but I do accept her evidence that she would benefit substantially from ongoing financial support from him were he to commence work again in Australia. I have had to weigh in the balance here the potential threat to her of violence if the applicant returns to alcohol; but on balance I believe her interests do favour revocation of the cancellation decision.  I add that the applicant will be in no position to make a meaningful financial contribution to his family from South Sudan.

32. I ought also to take into account, in my opinion, the applicant’s own interest in maintaining a life here in Australia. As deplorable as his conduct has been, the applicant genuinely desires to contribute to the welfare of his children. Very often it is family life, however fractured, that makes one’s own life worth living.  I accept that he would feel a real loss in this regard if he was sent to South Sudan.

    WEIGHING THE CONSIDERATIONS

33. I come now to weighing the various considerations.  This has proved a difficult case. I am very conscious of the repeated anti-social offences and instances of family violence which the applicant has committed. Direction no. 90, compared to its predecessor Direction no. 79, now singles out domestic violence as a separate primary consideration in its own right.  I acknowledge that.

34. Generally, primary considerations should be given more weight than other considerations: see paragraph 7(2). Nevertheless, attention must be given to the circumstances of the individual case.  And I bear in mind that I have found that one primary consideration (namely, the interests of minor children) does favour revocation of the cancellation decision for the reasons I have given. 

35. I am particularly conscious, of course, of the applicant’s very long criminal history and the highly antisocial aspect of his offending. I accept that the Australian community and individuals within it have had to endure a great deal of antisocial behaviour to their substantial detriment. But I must also bear in mind that this particular applicant would face a dire situation on the ground in South Sudan.  When I take into account that factor in conjunction with the interests of the children, there are in my opinion powerful considerations operating in the applicant’s favour.  South Sudan poses very severe obstacles to this applicant, and that is important.

36. All in all, I believe, on balance, that the correct or preferable decision on the evidence before me is to revoke the cancellation decision.

37. I have reached my conclusion having regard to one scenario were I to affirm the decision under review; namely, that the applicant would be removed to Sudan. But I have also addressed in my deliberations an alternative scenario. If I affirmed the decision under review and the applicant were to make a protection-visa application, and if a protection finding were made, the applicant could not be returned to Sudan: see section 197C of the Act. In that circumstance, I doubt that a protection visa would be granted to the applicant. I say this because one criterion for the grant of a protection visa is that the applicant, having been convicted of a serious criminal offence, should not be “a danger to the Australian community”: see section 36(1C)(b). The applicant has been convicted of a “serious criminal offence” as defined in the Act. On the evidence before me, there is clearly a real risk of the applicant committing further violent acts against members of the community or his former partner. This real risk makes the applicant “a danger to the Australian community” at the present time in my view. This finding disentitles him to a protection visa. It might also be the case that he would be refused a protection visa on character grounds under section 501(1) in any event.

38. In these circumstances, on the alternative hypothesis that a protection finding were made, the applicant would remain in detention on an indefinite basis pending the finding of a third country to which the applicant might be removed or the grant of a special visa (under, for example, section 195A of the Act). I would not impute to the Minister an intention to maintain the applicant in immigration detention on a quasi-permanent basis. That would be wrong in my opinion. But it remains the case that the applicant would face, on this hypothesis, a further extended period in immigration detention in circumstances where the applicant has already spent some two-and-a-half years there. That is a considerable period of time. The plurality in the full Court decision of WKMZ v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 requires decision-makers to take account of “indefinite” detention, as discussed by the plurality at [132] to [133]. The plurality underscored the relevance of the importance the common law attaches to individual liberty: see at [123].

1. For my own part, if this applicant were to face “indefinite” detention if I affirmed the decision under review, I would decide that the balance favoured revoking the cancellation decision.  I accept that it is not always the case that “indefinite” detention should lead to a revocation of the cancellation decision: the plurality in WKMZ did not say that it should.  But it would do so in this case.  Indeed, it is a striking feature of this case that the applicant, who was required to serve approximately one year in gaol from 5 April 2019 before being eligible for parole, has now spent approximately two and a half years in immigration detention.  The impact of further detention must in my opinion take into account the very lengthy detention that this applicant has already experienced.  As I have said, I would find that this factor, in conjunction with other considerations in his favour, outweighs the considerations favouring an affirmation of the decision under review. 

2. Accordingly, on either hypothesis (namely, that the applicant is removed to South Sudan or stays in detention for an “indefinite” period), I would set aside the decision under review.

   DECISION

3. Returning to the statutory test under the Act, having identified and weighed the various considerations under the Direction, I find that there is “another reason” for the cancellation decision to be revoked for the purposes of section 501CA(4)(b)(ii). Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation decision be revoked.

   ………………[SGND]……………………

   Associate

   Dated: 30 November 2022

Date of hearing:	20, 21 and 26 October 2022
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Gabrielle Gutmann Minter Ellison