Juma and Minister for Home Affairs (Migration)

Juma and Minister for Home Affairs (Migration) [2018] AATA 1620 (4 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1317
Re:Charles Juma
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:R CAMERON, SENIOR MEMBER
Date:4 June 2018
Place:Melbourne

The Tribunal affirms the Minister for Immigration and Border Protection’s decision to refuse to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Humanitarian visa dated 9 March 2018.
......................[sgd].....................................
R CAMERON, SENIOR MEMBER
Catchwords
MIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled - serious criminal offending – offences involving violence – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending - where Australian community would expect non-revocation - decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014
Direction No. 75 – Migration Act 1958 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
4 June 2018

The Applicant Charles Juma, born on 18 October 1996, arrived in Australia on 11 October 2006 at the age of nine years. He has resided in Australia ever since his arrival.
The Applicant was until 12 April 2017 the holder of a Class XB Subclass 202 Global Special Humanitarian visa. On that date his visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on account of his criminal offending.
The Applicant subsequently submitted a request for a revocation of the mandatory cancellation of his visa pursuant to section 501CA of the Act. In support of his application for revocation he made representations to the Respondent. On 9 March 2018 a delegate of the Minister for Immigration and Border Protection decided under section 501CA(4) of the Act not to revoke the original cancellation decision. This decision is the one that is under review in these proceedings (“the reviewable decision”).
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; 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 a Territory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 16 March 2018.
Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 (“the Ministerial Direction”).
Direction No. 65
It is appropriate to record several of the sections of the Ministerial Direction that are applicable with respect to this application. Paragraph 6.2 is entitled “General Guidance” and relevantly provides:
(1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3, which relevantly provides:
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Part C of the Ministerial Direction provides guidance for decisions regarding the revocation of a mandatory cancellation and contains a number of primary and other considerations (outlined later in these reasons for decision). Finally, paragraph 8(4) of the Ministerial Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that One or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
Given the language used in section 501CA(4)(b) of the Act there are two issues to be determined in this proceeding namely:
(a)Does the Applicant pass the character test as defined by section 501[1]; and
(b)Is there any other reason why the mandatory cancellation should be revoked[2]?
[1] Section 501CA(4)(b)(i) of the Act. There was no formal concession on the part of the Applicant that he did not pass the character test prescribed by this section of the Act. Therefore, it is necessary for the Tribunal to adjudicate on this question.
[2] Section 501CA(4)(b)(ii) of the Act.
THE EVIDENCE BEFORE THE TRIBUNAL
The following documentary evidence was tendered before the Tribunal:
(a)A bound volume of “Applicant’s Documents” which contained 17 enumerated documents including:
oThe Applicant’s Statement of Facts, Issues and Contentions;
oA statement of the Applicant in the form of a Statutory Declaration dated 11 May 2018;
oA Forensic Psychologist Report of the Applicant prepared by Dr Karen Scally;
oTwo support letters on behalf of the Applicant’s mother, Monica Panchol, dated 9 April 2018 and Troy Crellin (Synergy) dated 20 April 2018;
o13 further documents concerning various matters with respect to the situation in South Sudan including but not limited to incidents of intercommunal violence, political and ethnic matters and sundry abuses by Government and opposition forces.
(b)A statement of the Applicant’s mother Monica Panchol dated 22 May 2018;
(c)The G documents; and
(d)The Supplementary G documents.
THE SUBMISSIONS OF THE APPLICANT
The Applicant filed written submissions. Additionally, there were extensive submissions made by the Applicant’s counsel by way of both an opening and an extensive closing.
The Applicant’s counsel in his opening identified the “critical issue” as being the issue of a non-refoulement obligations and whether they were owed to the Applicant.[3] Additionally, in the Applicant’s submissions filed on 10 May 2018 this question was also canvassed with similar force and effect.[4]
[3] This is one of the "Other considerations-revocation requests" contained in paragraph 14 of Part C of the Ministerial Direction. The specific paragraph is paragraph 14.1 "International non-refoulement obligations."
[4] See paragraphs 18 to 26 of those submissions.
It was contended for the Applicant that the non-refoulement obligations arose because of the risks that the Applicant would face in the event that he were to be returned to South Sudan because of his particular tribal background. His parents are from a town or city known as Bor in the County of Bor South in the Jonglei State[5]. The Applicant is a member of the Dinka tribe, an ethnicity which, to quote his counsel, carries “political baggage with it” and considerable risks from a rival tribe known as the Nuer.[6]
[5] This information is derived from two very helpful maps contained in pages 69 and 70 of the Applicant's documents which form part of the "UN Mission in South Sudan-Incidents of Inter-Communal Violence in Jonglei State" June 2012.
[6] Several of the reports contained in the Applicant's Documents provided significant detail as to the history of conflict or tension between the Dinka and Nuer ethnic groups. For instance the "DFAT Country Information Report South Sudan” being document 6 in the Applicant’s bundle of documents commencing at page 34. Further, the Applicant’s counsel did provide an extensive history of the conflict in Sudan from the time of its independence from Great Britain and Egypt in 1956 (some of the material referred to the “First Civil War” from 1955 to 1972 and the “Second Civil War” from 1983 to 2005). The Applicant’s counsel then canvassed the formation of the Sudan People's Liberation Movement and its associated entity the Sudan People’s Liberation Army in 1983 which was founded in Bor itself by one John Garang who is from the Dinka tribe himself. The history of the conflict that followed from that time and its genesis from a tribal ethnic conflict to in effect a civil war was also traversed. It was submitted that it was these events that ultimately lead to the Applicant's family fleeing from Bor to Kenya. After spending some time in a refugee camp in Kenya the Applicant's family and ultimately himself was granted humanitarian visas which enabled them to travel to Australia. In 2005 a peace agreement was reached between the warring parts of South and North Sudan. Integral to the peace agreement was that a referendum on independence for the countries that now comprise South Sudan would be held. This referendum resolved to grant the countries in the southern region of Sudan independence. As was noted by counsel for the Applicant the independent nation of South Sudan came into being long after the Applicant's birth. It was contended that apparently intertribal and ethnic rivalries subsided after independence but unfortunately to quote counsel for the Applicant: "in December 2013 the ugly tribalism rears its head. They start killing each other again." The current President of South Sudan is Salva Kiir (a Dinka) who became president after John Garang was killed in a helicopter accident.
It was also emphasised that the Applicant faces persecution and the potential for being the victim of violence on two levels. The first level is what might be described as a carryover from the breakup of the nation previously known as Sudan and the creation of the new nation of South Sudan, in effect a north-south conflict (cross-border violence between various inchoate groups occurring.) The second level is the ethnic tribal conflict between Dinka and Nuer, which has been briefly alluded to above.
Some other matters that were emphasised by counsel for the Applicant in his submissions at various stages of the proceeding related to what was described as the Applicant’s “tribal ethnicity”. According to counsel for the Applicant, the fact of him being Dinka would be visibly obvious to people who know what they are looking for. This will cause him to being pitted with political baggage, as noted earlier and therefore be linked with the current president Salva Kiir.
Also, in this context it was submitted he wouldn’t just return as a Dinka but a young Dinka of fighting age. Therefore, he will likely be either a victim of those loyal to the Nuer causes or of persecution or harm by being forced to be an active combatant on the Dinka side. Reference is also made to a group known as “the White Army” which is affiliated to a Nuer rebel group. This rebel army is apparently active in Jonglei State (of which the town or city of Bor is situated as noted previously). The White Army has undertaken what were described as deadly attacks on Dinka youth. It was contended from a refugee convention perspective the international community speaks as one voice and says that people cannot lawfully be returned in those circumstances.
Counsel for the Applicant contended that there were several other matters that were relevant. They will be emphasised with equal force and effect as follows:
The Applicant had nothing to return to in South Sudan. He has no family there that he knows of. The economic, social and cultural factors are against him and in terms of the criteria contained in clause 14.5 of the Ministerial Direction regarding the impediments he will face if removed from Australia, it is at the top end of severity. He has a virtual complete lack of understanding of the language and lacks the means of supporting himself if he was returned. His only skill was in the motor repair industry. There is only one functioning paved road in South Sudan that runs for approximately 200 km. Therefore car repairs are not a boom business. There is no prospect of him having a transferable skill that is of any value to him upon his return. Additionally there is a complete absence of mental health and well-being facilities. This will not assist his severe personality disorder.
With respect to the protection of the Australian community, it was conceded that the Applicant had a history of offending. There was justifiable cause for concern and it had manifested itself in a prison term. The Tribunal was asked to take account of the Applicant’s candour and clarity as to how such things occurred and that his evidence in this regard was impressive.
Other matters referred to was that there was no sexual offending, no attacks on minors, the elderly or persons with disabilities. It was contended he had not made false or misleading statements. The sentence was only 16 months in custody and only four months over what was described by counsel as the “unhappy side” of the Ministerial Direction.
The nature of the offences committed and their context was addressed. It was submitted that there were several factors that should be considered. Firstly, it was in the context of substance abuse and bad social influences. The Applicant has ended his dependency on substances and alcohol. It was emphasised that the Applicant had grown up in Australia with an abusive stepfather which was a factor in his offending. Given that the stepfather is no longer in a relationship with his mother things are different. The comparative youth of the Applicant was emphasised; his last offence was when he was 20 years old with most of his offending occurring when he was a minor. Additional emphasis was placed on what was described as his obvious or speedy remorse. He had been candid and open with respect to his behaviour as a young man. He had been consistent in his dealings with the authorities. He had always pleaded guilty at the earliest opportunity and made full admissions to misconduct, as detailed in his statement, evidence in chief and cross-examination.
Counsel for the Applicant contended that the Applicant has a future with support from his mother and Troy Crellin from Synergy (a social enterprise offering smash repair services to the general public); that he could be a punctual, diligent and contributing member for society. He could have a long and prosperous future in the automobile industry. It was submitted this should be weighed against his offending.
The Applicant’s ties to Australia were emphasised by his counsel. He had been here since childhood, was educated here, had a social circle solely in Australia and identifies in his own mind as an Australian. It was also emphasised that he is the oldest male in a family of six. His younger siblings rely upon him as he is the male head of the household.

It was contended that all the considerations in the Ministerial Direction need to be taken into account and depending on the situation, some should afford greater weight than others. Counsel submitted that the starting point is that all considerations are of even value; whether some should be weighted more than others depends on the individual facts and in this case the International non-refoulement obligation must weigh heavily.
THE SUBMISSIONS OF THE RESPONDENT
The Respondent filed a Statement of Facts, Issues and Contentions. Additionally, submissions were also made by way of closing and opening addresses to the Tribunal.
The Respondent analysed the history of the Applicant’s offending and the gravity of the offences so committed.[7]
[7] The Applicant's offending as an adult was emphasised and particularised in paragraph 6 of the Respondent's Statement of Facts, Issues and Contentions.
It was contended on behalf of the Respondent that the Applicant by his sentence of imprisonment, failed the character test under section 501(6)(a) of the Act.
Several other matters were contended by the Respondent. In relation to Protection of the Australian community, the Respondent pointed out that there had been a lengthy history of violent offending in two States, which needs to be regarded very seriously. Whilst there had been some indication of an intention to engage in rehabilitation and that he had gained an insight into his offending, the Applicant had tended to return to his previous behaviour so one cannot necessarily rely upon assurances as to future conduct. Therefore there is a high risk of the Applicant reoffending and in that setting, a risk of harm to the community. Such a factor weighs strongly against revocation.
The best interests of minor children was sought to be explained away somewhat by the fact that the eldest of the Applicant’s siblings would this year be entering their late teens and less dependent upon the Applicant. Furthermore, because of his incarceration, the Applicant has not for some time had any role in the day-to-day care of such siblings who remain with their mother. Counsel for the Respondent submitted the Applicant’s siblings’ dependence on him is temporary and that one should give little weight to this factor.
Expectations of the Australian community were referred to. In short it was submitted that the community would be tolerant to some extent of the Applicant’s behaviour given his difficult background and history of drug taking. However it was submitted the chances that the Applicant had been given had not been taken up and that his failure to rehabilitate himself, particularly given his latest round of offending, works against him.
It was acknowledged that the Applicant has been in Australia since approximately 10 years of age. His immediate family is in Australia and it is accepted that he has spent a significant part of his life in Australia.
Impediments if he were to be removed were acknowledged. It was contended that the Applicant speaks at least some Dinka language.
With respect to international non-refoulement obligations, it was accepted that on the present state of the authorities the Tribunal is required to turn its mind to this consideration. Additionally, it was submitted that it is not necessary for the Tribunal to conduct a complete examination and determination of any claims for protection. It was submitted that if the mandatory cancellation of the Applicant’s visa was allowed to stand, in his hands would remain one more roll of the dice, being a claim for protection visa.
THE APPLICANT’S HISTORY OF OFFENDING
Despite the Applicant’s comparatively young age he has accumulated a significant criminal history. The Tribunal notes the observations made by Magistrate Rozencwajg on 31 March 2017 upon sentencing the Applicant for a series of offences committed between April 2016 and sometime presumably in 2017. Also on this occasion the Applicant attempted to escape custody in Court 1 of the Melbourne Magistrates’ Court after a Magistrate revoked his bail. His Honour noted:
You however come before the court with significant baggage in the form of an extensive history of prior convictions in the main committed in Western Australia. That history spanned the period from 2012 to 2015, and covered offences such as armed robbery, aggravated robbery, aggravated assault with intent to rob, robbery, assault and theft on multiple occasions resulting in sentences of youth detention in Youth Justice facilities, as well as breaches of community-based supervision orders.
The Applicant’s history in Western Australia was before the Tribunal and revealed that he had been convicted of 39 offences in the Children’s Court of Western Australia between 7 February 2012 and 16 October 2014.[8] Amongst the significant number of assault convictions recorded against the Applicant were a considerable number of convictions for assaulting a public officer. The Applicant’s attitude towards authority is of some concern.
[8] The Applicant's criminal history is contained in document G 18 of the G documents.
The Applicant’s criminal record in Victoria reveals offending that occurred between 2015 and approximately 2017. The term of imprisonment to which the Applicant was sentenced, which was no doubt the catalyst for the mandatory revocation of his visa, was as a result of his conviction by Magistrate Rozencwajg on 31 March 2017.
The circumstances that led to his conviction and sentence on 31 March 2017 do warrant some further consideration. The sentencing Magistrate made the following comments about the conduct of the Applicant:
… This level of rampant offending and indiscriminate violence has unfortunately become a common feature of the matters coming before the courts.
I have previously commented that the nature of such behaviour has significantly altered the psyche of the people of Melbourne, and has struck a severe blow to the sense of entitlement of law-abiding citizens to feel safe and secure when going about their lawful endeavours in this city. The prevalence of this type of criminal behaviour is something I take into account in exercising the sentencing discretion …
The total term of imprisonment to which the Applicant was sentenced by Magistrate Rozencwajg on 31 March 2017 was 16 months with a non-parole period of 10 months.[9]
[9] The contents of the National Police Certificate document G 3 of the T documents are referred to. Also this emerges from the transcript of the sentencing hearing before Magistrate Rozencwajg on 31 March 2017, document G 4 of the G documents (page 36 and page 37 line 1).
The circumstances of some of the Applicant’s criminal behaviour in Victoria for which he was sentenced by Magistrate Rozencwajg will be examined in some detail.
The first incident for which the Applicant was convicted occurred on 20 April 2016. It occurred at a Coles supermarket at the Melbourne Central Shopping centre where three people going about their business were abused by a group of males including the Applicant, during which they were called such things as a “bitch” and a “cunt”. One of these males started pushing the victim in the back from behind whilst the victim was standing on an escalator. Once the victim left the escalator the Applicant continued to yell such abuse in the same terms at the victim. When the victim turned to the Applicant and told him to stop, the Applicant raised his fists, clenched them and then walked towards the victim. The Applicant then approached the victim and pushed him in the chest with both hands forcing him backwards. After that the Applicant punched the victim with a clenched fist to the right side of his face. The blow connected with the victim’s cheekbone. The Applicant punched the victim to the head and face several more times before the Applicant and the victim commenced wrestling. The Applicant then slung the victim to the ground causing the victim’s head to strike the pavement with force. The Applicant held the victim to the ground and continued to punch him in the face. The victim struggled with the Applicant on the ground and the Applicant grabbed the victim in a headlock, attempting to choke him. The victim managed to free himself from the Applicant and held him by the legs until such time as security staff from the Melbourne Central Shopping Centre and Protective Service Officers appeared on the scene and detained him.[10]
[10] This account is contained in document SG 8 of the Supplementary G documents being the "Preliminary brief - Statement Made By Informant" at page 31. Its contents are summarised by Magistrate Rozencwajg in his sentencing remarks at page 31 of the G documents.
The victim suffered a cut to his chin which subsequently required several stitches. Photographs of the victim were in evidence before the Tribunal and reveal a moderately severe laceration to the base of the victim’s chin after it had been stitched.[11] Further, when asked by the police for an explanation as to his behaviour, the Applicant made several comments that were extremely intemperate to say the least and do not reflect well upon him.[12] As Magistrate Rozencwajg observed it was an attack on people who were just going about their business who kept moving and tried to walk away from the Applicant.
[11] The photographs can be found in the Supplementary G documents, SG 9 pages 33, 34 and 35.
[12] The comments are recorded in the "Preliminary Brief - Statement Made By Informant" (Document SG 8 of the Supplementary G documents) at page 31, under the heading "Statement made by accused". The contents of this statement are referred to in full. The Applicant stated "I was like fuck off dog, like fuck off. And he turned around." "I felt threatened and I hit him, one, two, maybe three times." "I ended up losing my shit and like got him in a manoeuvre and just pushed him to the ground and he landed pretty hard and I was on top of him." The informant asked him why he felt threatened. He replied "Because the guy kept looking back at us. And when he started giving his stuff to someone else I had a graphic picture in my head that he was gonna say something or go shut the fuck up." He further said: "I was like thinking fuck this cunt. Like what the fuck’s he doing. I was like nah, fuck this." "Well, I didn't start off with, I felt threatened."
The next events for which the Applicant was sentenced by Magistrate Rozencwajg occurred over a 24-hour period on 17 and 18 July 2016.
The initial offence that occurred during this 24-hour period commencing on 17 July took place in the vicinity of what is known as the Mount Carberry Reserve. Apparently, two victims were playing some kind of computer or video game in the reserve when the Applicant and a group of males appeared. These individuals became apprehensive about the Applicant’s intentions and attempted to run away fearing that they would be robbed. One of the victims got into the driver’s seat of his car whereupon the Applicant opened the door and said “Give me the fucking keys.” He then snatched the keys from the victim and dragged him out of the driver’s seat. The Applicant then jumped in the car and drove off with it.
The question of whether or not the Applicant dragged the victim out of the driver’s seat was a matter of some controversy at the hearing of this application. The version of events just recounted was taken from the sentencing remarks of Magistrate Rozencwajg.[13] In his statement the Applicant stated that he opened the driver’s side door of the car and told him to give him the keys and ran off.[14] In his evidence before the Tribunal he denied dragging the victim out of the driver’s seat as recorded by Magistrate Rozencwajg in his sentencing remarks. It was acknowledged by counsel for the Applicant that most likely the Magistrate would have been given a summary of the facts agreed to by the prosecution and the Applicant’s legal representatives at the time. Presumably, if the account given to the Magistrate was inaccurate, the Applicant’s legal representatives would have drawn this to the attention of the court and sought to have it corrected. Indeed, that is exactly what happened as is evident from the transcript of the hearing before Magistrate Rozencwajg. When the charge of aggravated burglary was considered and the Magistrate noted that the Applicant entered the premises, the Applicant’s legal representatives corrected the Magistrate and stated with full force and effect that the Applicant pleaded guilty to the aggravated burglary charge on the basis that he was outside of the house and that he was acting in concert with the others. The prosecution readily agreed to this correction of the facts. The agreement of the Applicant and his legal representatives to the summary that was presumably given to the Magistrate is an admission. The Applicant in his evidence in the witness box at the hearing of this matter said he didn’t remember saying he dragged the victim out of the car and could not explain how it happened. In this setting the Tribunal rejects the evidence of the Applicant about whether he dragged the victim from the driver’s seat of the car in this incident. This account that he gave of the incident in the witness box does not reflect well upon him.
[13] See document G 4 of the G documents at page 32 lines 1 to 14.
[14] See paragraph 45 of the Applicant’s statement on page 14 of the Applicant's Documents for his full account of this incident.
The next incident that occurred arose out of the Applicant’s involvement on 18 July 2016 at approximately 10:30 PM in an aggravated burglary in Sunshine. As noted earlier the Applicant acted in concert with other persons who actually entered the residence of the victim by climbing onto the roof, smashing a second story bedroom window and ransacking the room after gaining entry. The resident of the premises was at home when those participants in the burglary attempted to open the bedroom door. The door was locked and the participants fled the scene.
Later that evening the Applicant was involved in another incident. The victim was driving his car while the Applicant drove another car in company with a co-accused who was a passenger (one Majur). The Applicant’s car approached and boxed in the victim’s vehicle, forcing him to take evasive action to avoid a collision. Apparently, Majur had a backpack with him containing a balaclava and a hammer. He put on the balaclava, took the hammer in his hand and as the victim was taking evasive action to escape, he threw the hammer at the escaping vehicle smashing the window. Fortunately, the Applicant did not follow the victim after he made good his escape. Notwithstanding that, this incident was referred to in the sentencing remarks of Magistrate Rozencwajg. It was not referred to in the Applicant’s witness statement before the Tribunal. However he did readily concede this fact, but did not offer any explanation for its omission.
Approximately, after another half hour the Applicant was involved in another incident with the driver of a BMW X5 in George Street, St Albans. The victim, his wife and 21-year-old daughter pulled into the driveway of their premises. When the victim got out of his vehicle to open up the front gate, the Applicant driving another vehicle pulled up behind the BMW. He and several others got out of the car which was parked in the middle-of-the-road. The others approached the driver while the Applicant walked to the passenger side of the vehicle where the victim’s wife was sitting. The Applicant demanded that the wife get out of the car. He observed that both the wife and the daughter in the back seat were crying. At this stage he observed that the victim and Majur were tussling behind the car. Majur grabbed his phone. The Applicant then moved to the other side of the vehicle and kicked the victim who fell to the ground. The Applicant conceded that it was “a pretty hard kick”. The victim suffered a cut to the palm, a broken wrist and a laceration to his right knee. The BMW was then stolen. The Magistrate recorded that the Applicant “threatened” the victim “if he didn’t give them his vehicle”.[15]
[15] Document G4 page 33 of the G documents at lines 3 and 4. In document SG-2 “LEAP - Victoria Police – SUD Incident Summary Report” (pages 10 and 11) it is recorded that the Applicant approached the victim who was halfway out of the vehicle and demanded the vehicle from him threatening to kill the victim. It is noted that the Applicant was not charged with making a threat to kill. However, from the reasons of Magistrate Rozencwajg it is apparent that some threat was made to the victim at the very least.
Subsequently, on that evening the stolen BMW was located by the Police Air Wing and eventually stopped by mobile police units. The offenders, including the Applicant, then took flight. Most of them were arrested shortly thereafter. However the Applicant managed to escape and avoided apprehension until he was arrested by the police at his residence on 2 August 2016. Whilst we do not know the exact circumstances surrounding his arrest, the fact is that he was not arrested for approximately two weeks after the offences occurred. Presumably, the police were searching for him in the interim. Clearly, he did not surrender to them. It should be noted that when arrested he made full admissions in a record of interview. He was subsequently bailed with strict conditions including daily reporting and a curfew together with a requirement to attend the Youth Justice Program and comply with any directions given by that program.
Following his arrest several further events occurred. The Applicant contravened his conditions of bail on 10 separate occasions when he failed to report and breached the curfew. He also failed to comply with the requirements of the Youth Justice Program. These breaches of the bail conditions led to the police applying to the court for revocation of bail on 16 November 2016[16]. The application by the police was successful. At the conclusion of the hearing the Applicant said to the Magistrate: “Fuck this world. Fuck everything. I’ll get out a free man, and fuck you, too.” He then jumped from the dock and attempted to escape. He then ran between the bar table and the Magistrate’s bench. He was eventually restrained, initially by two police officers and later with the assistance of security officers. This event does not reflect well upon him and his attitude towards authority.
[16] The details of this incident are to be found in the contents of the sentencing Magistrate’s reasons on 31 March 2017 being document G 4 of the G documents. Further details of this incident are also contained in the “LEAP - Victoria Police SUD Incident Summary Report” contained in the Supplementary G Documents in document SG 2 pages 8 and 9.
Some other matters noted by Magistrate Rozencwajg in his reasons should also be considered. After his arrival in Melbourne in October 2015 the Applicant’s parole was transferred to Victoria from Western Australia. In March 2016 he began recording positive results from screening for drugs which was a violation of his parole conditions and he was issued with warnings regarding compliance. Compliance did not eventuate and between March and July 2016 he continued to disengage with Youth Justice and YSAS. This failure to comply led to him being arrested in October 2016. He was granted bail after a favourable assessment from one Jean Bell. As the Magistrate observed, the faith that Jean Bell and the court had in him turned out to be misplaced. He continued to refuse to engage and comply with the conditions of his bail which led to the bail being revoked and the incident at the Melbourne Magistrates’ Court as noted above.
THE CHARACTER TEST IN SECTION 501CA(4)(b)(i)
It will be recalled that under section 501(7)(c) of the Act a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. For the purposes of the Act, concurrent sentences are aggregated for the purposes of determining the total term of imprisonment (section 501(7A)). Under section 501(6)(a) of the Act a person does not pass the character test if they have a substantial criminal record. Given that the Applicant was sentenced to a total of 16 months imprisonment (non-parole period of 10 months), the Applicant has a substantial criminal record for the purpose of section 501(7)(c). The Applicant therefore does not pass the character test under section 501(6)(a).
THE PRIMARY CONSIDERATIONS

Paragraph 13(2) of the Ministerial Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Protection of the Australian Community
Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle 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. Paragraph 13.1(2) further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
On any consideration of the material before the Tribunal, including the analysis conducted above, it is apparent that the criminal conduct engaged in by the Applicant is extremely serious. Indeed on several occasions in the course of his evidence this was readily conceded by the Applicant to his credit. The Tribunal also has the benefit of the sentencing remarks by Magistrate Rozencwajg referred to previously in these reasons. These remarks speak for themselves as to the gravity of the Applicant’s conduct, its overall effect on the attitude of the people of Melbourne and on law-abiding citizens’ ability to feel safe and secure when going about their lawful endeavours in this city.
It is indeed the randomness of the incidents in July 2016, which involved innocent persons who had no prior interaction with the Applicant, that is of concern. Additionally, in several of the incidents, the Applicant committed acts of violence which caused significant injury to the victims. In the St Albans incident, the violent act was committed in front of women and at least to some extent directed to them. One cannot begin to imagine the distress that the Applicant’s victims who he ordered out of the car in the course of that incident must have suffered. Most likely it will profoundly affect them for a long time to come.
Another matter of some concern with respect to the history of the Applicant’s offending is that despite his comparatively young age, there has been a fairly extensive pattern of crimes against the person. The violent offending, particularly in Western Australia, involved assaulting public officers. Most likely these public officers were police officers. Whilst the Tribunal does not have particulars at its disposal concerning these offences, it is of significant concern in terms of protection of the Australian community that the Applicant had assaulted frontline police officers.
Other concerns include the Applicant’s failure to adhere to bail conditions[17]and frequent breaching of Intensive Youth Supervision Orders[18] and community-based supervision orders. Several of these breaches occurred after the Applicant had been given warnings about his non-compliance and more importantly opportunities to change his ways.
[17] See document G17 of the G documents at page 92. Also see the remarks of Magistrate Rozencwajg in document G 4 of the G documents at pages 34 and 35.
[18] The Western Australian Criminal History at document G 18 of the G documents is referred to.
The behaviour of the Applicant at the bail revocation hearing at the Melbourne Magistrates’ Court on 16 November 2016 is of grave concern. At the very least it shows complete disregard for the courts and judicial system of the State of Victoria. At its worst, without expressing a concluded view on the topic, it is probably contempt in the face of the court. Abuse of judicial officers and attempts to escape lawful custody from the precincts of a court room cannot be tolerated.
The explanation given by the Applicant for this event in both his witness statement and in the witness box reflects most gravely upon him. His explanation at paragraph 49 of his statement was that he reacted impulsively because he felt scared about being incarcerated again and felt that he had been “set up to fail by the detectives and the youth justice officer with all the conditions” he was subjected to. This explanation very much reflects badly on him and his attitude towards obedience to the law. Bail conditions and correction orders are commonplace in this day and age and most persons subject to them comply with them. The Tribunal is also concerned that such views are held by the Applicant about police officers who have taken an oath of office to obey the law and are held to high standards of behaviour in the office that they hold.
Whilst one must have considerable sympathy for the Applicant’s circumstances both prior to his arrival in Australia and after, particularly in the domestic setting with an abusive stepfather, it is still somewhat puzzling that he has committed the offences to the extent that he has. This is particularly when the Applicant conceded that he is educated and can tell the difference between right and wrong.[19]
[19] By way of example this concession was made in paragraph 58 of his witness statement (page 18 of the Applicant's documents).
Given the nature and seriousness of the Applicant’s offending, the effect on his victims, the number of offences he has committed over the time span, together with his attitude towards the judicial system, the Tribunal finds that this consideration weighs heavily against revocation of the cancellation decision.
Risk to the Australian Community should the Applicant reoffend
Paragraph 13.1.2 of the Ministerial Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In this application the Tribunal is required to consider the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and the likelihood of him so engaging in such further serious criminal conduct, taking into account the available information and evidence with respect to such risk.
In the event that the Applicant were to reoffend there must be concerns that it may involve the Applicant committing crimes of violence or against the person as he has done in the past. These concerns are more likely than not heightened if such offending were to occur when the Applicant is affected by drugs or alcohol.
The Tribunal is also concerned by the Applicant’s behaviour in the outburst against the Magistrate and the attempt to escape from the Melbourne Magistrates’ Court on 16 November 2016, referred to in detail earlier in these reasons. The Applicant has an issue with authority and a tendency to act impulsively when confronted by authority in whatever form it may take. The history of his offending also indicates some obvious inclination to act impulsively in certain situations, as was evident from the incidents at the Melbourne Central Shopping Centre and his involvement in the assault of the BMW’s driver. This characteristic of impulsiveness would tend to indicate that he poses a higher risk to the Australian community should he reoffend in the future.
Understandably, the Applicant gave evidence, probably genuine evidence, that he has gained an insight into his offending. He further gave evidence both in his witness statement and from the witness box that he sincerely desires to avoid taking drugs in the future (not to mention the consumption of alcohol) and relapsing into his previous life of crime. He emphasised what he felt were his obligations to his mother, his siblings and of course to himself, to try and avoid relapsing into the cycle of alcohol consumption, drug taking and crime that he had engaged in in the past.
Additional evidence was given by the Applicant about other strategies that he proposed to adopt were he to be released into the community to assist in avoiding further relapses of alcohol consumption and drug use. He referred to his desires to resurrect a career or gain productive employment as a spray painter in a motor vehicle repair shop[20]. Alternatively, he stated he would be very interested in obtaining a plastering apprenticeship which would help him obtain a worthwhile career in the future. There was evidence of several of the courses that he had undertaken during his period in custody which ranged from information, digital media and technology, cleaning operations and various traffic management skills.[21] He also expressed a desire to return to playing American football because of the friendship he made playing in a football club together with the fact that pursuing such a sport kept him mentally and physically fit.
[20] There was a very candid reference provided to the Tribunal by Troy Crellin (page 32 of the Applicant's documents) concerning his skills and knowledge in the automotive industry together with his exemplary behaviour when working in a repair shop in Melton.
[21] Certificates for these courses were in evidence as exhibit A 2.
The Tribunal was also referred to the very helpful Psychologist Report of Dr Karen Scally. The contents of that report have been considered by the Tribunal in full and are referred to in their entirety for their full force and effect. The contents of the report are of assistance to the Tribunal and the author has prepared it in the way that a responsible expert should. Apart from containing details of the Applicant’s background history, drug and alcohol history, psychological and medical history, forensic history, a mental state examination and psychological testing; it also contains an analysis of the risk of recidivism on the part of the Applicant together with a summary of clinical opinion.
The report of Dr Scally concluded that the Applicant had a high degree of insight into his offending behaviour and the contributing factors. She also noted that he accepted full responsibility for his actions, demonstrated remorse for the victims and expressed considerable regret, particularly as he had not foreseen the consequences of those actions at the time.
Dr Scally expressed an opinion that a formal risk assessment places the Applicant’s current risk of offending in the very high risk category. His risk of recidivism was assessed as very high due to the presence of risk factors in the domains of criminal history, education/employment, family/marital, leisure/recreation, companions, alcohol/drug problems, pro-criminal attitude/orientation and antisocial patterns. She further noted that despite engaging well, completing programs and exhibiting a positive attitude and commitment to his rehabilitation for a period of time, his past attempts at rehabilitation were not ultimately successful. She opined that this may in part be due to his maladaptive personality traits and exposure to antisocial peers and a dearth of prosocial peers.[22] She concluded therefore that his personality traits make him susceptible to influence. She stated that he also has traits, including under-deserving self-image and antisocial traits, which lead him to act out impulsively and to seek out censure and punishment. Dr Scally concluded that he has a current very high risk of reoffending.
[22] This was consistent with the evidence given by the Applicant in his witness statement and in the witness box where he did repeat on several occasions that he had "fallen in with the wrong crowd" or had mixed with particular dominant personalities who led him into more criminal types of behaviour.
However, it must be said in fairness Dr Scally also opined that the Applicant had not yet had the opportunity to fulfil his rehabilitation potential by reason of his young age. He also lacked the opportunity to engage in extensive long-term psychological treatment that he needs to address the anxiety and maladaptive personality traits which contribute significantly to his offending behaviour. She suggested that with such treatment it may be possible for him to significantly reduce the potential risk he may pose to the Australian community. However, if the Applicant were to possibly fulfil any rehabilitation potential it would require a change of attitude on his part which regrettably his past behaviour does not provide him with optimistic prospects of achieving.
Overall, the concluded opinion of Dr Scally that there is a very high risk of recidivism on his part is of concern.
Given these considerations the risk of the Applicant reoffending and therefore to the Australian community must also weigh heavily against him.
Best interests of minor children in Australia affected by the decision
As noted elsewhere in these reasons the Applicant is one of six children. The Applicant and his mother Monica Panchol have given evidence that there are five siblings of the Applicant ranging in age from 5 to 17 years old. He has four brothers and one sister.
The Applicant gave evidence that his other siblings look up to him and notwithstanding his offending show him a lot of love and respect. They want him to return to the household. His mother and he had both given evidence that she wishes him to return. They both say that he has not done anything bad at home. His mother states that the Applicant’s siblings do miss him.
When the Ministerial Direction is considered several things should be taken into account. Firstly, the Applicant is not a parent of the minor children and therefore, less weight should generally be given in such circumstances.[23] However, there is an existing relationship between the Applicant and his siblings notwithstanding the recent comparatively lengthy period of absence. There is absolutely no doubt that the Applicant’s siblings are minors and their relationship with the Applicant as described to the Tribunal places them in a category of children whose interests should be taken into account in weighing up this consideration.
[23] Clause 13.2(4)(a).
It seems on the evidence available to the Tribunal there can be little doubt that if the cancellation is not revoked it will have a significant effect on the Applicant’s siblings. The concession contained in paragraph 27 of the Respondent’s Statement of Facts Issues and Contentions goes so far.
The Respondent also contends that the eldest of the Applicant’s siblings will this year turn 17, 15 and 16 and are therefore, reaching the stage in life where they are overall less dependent on adults such as the Applicant.
Given the family history of domestic violence early in the Applicant’s (and for that matter his mother’s) time in Australia, overall it has to be concluded that notwithstanding the wayward path in terms of offending, drug and alcohol use that the Applicant has followed, it is apparent that his role in that family such as it has been, is to some level important. It is true to say that he has not been a good role model and in more recent times not physically present. However, the evidence demonstrates a connection with his siblings and a role in their lives, limited as it may have been. It seems unfortunate that the Applicant did not before he embarked upon, or in the course of, following the wayward path he did, give some thought to the effect that it would have on his siblings.
In terms of the Ministerial Direction it is apparent from the evidence which is very strong that the Applicant’s mother is the fulcrum of the family unit and the person who plays the dominant parental role with respect to the Applicant’s siblings. Her role will continue to be paramount in those minor children’s lives.
Nonetheless, this factor weighs in favour of revocation. However, the weight that should be applied in his favour must due to the history outlined above be reasonably limited.
OTHER CONSIDERATIONS
There are other considerations relevant to this application that should be considered in revocation matters which are identified in paragraph 14(1) of the Ministerial Direction. It provides that:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) …;
d) Impact on victims;
e) Extent of impediments if removed.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 14.1 of the Ministerial Direction provides as follows in relation to Australia’s non-refoulement obligations:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

As noted earlier this consideration occupied considerable debate between the parties in the course of this hearing. Indeed, it was considered critical by counsel for the Applicant.
The Tribunal is required by reason of recent authority to assess, to the extent that it is able to do so, the risk of any type of harm that might arise to the Applicant in the event that he were to be returned to his country of nationality. The relevant conventions such as those referred to in the Ministerial Direction are aimed at the relevant state parties’ obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality.
In conducting such an assessment the Tribunal is not obliged to conduct a complete examination and determination of claims for protection.[24]
[24] See Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [28].
Several authorities were referred to by both parties. The Applicant referred to in particular the decisions of North ACJ in DMH16 v Minister for Immigration and Border Protection[25] and Suleiman v Minister for Immigration and Border Protection.[26] The Respondent referred to BCR16 v Minister for Immigration and Border Protection[27] and Ayoub v Minister for Immigration and Border Protection[28].
[25] [2017] FCA 448.
[26] [2018] FCA 594.
[27] (2017) 248 FCR 456.
[28] (2015) 231 FCR 513.
The Respondent emphasised in both written submissions and from the bar table that in the context of the assessment the Tribunal should undertake pursuant to the obligation created by Ministerial Direction No. 65 that if the Applicant’s visa cancellation was not revoked it is open to him to make a protection visa application. It was then submitted in this context that in any future application for a protection visa, the decision-makers would then be bound by Ministerial Direction No. 75 - Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b).[29] This approach was strenuously resisted by the Applicant’s counsel who asserted that the thrust of the Respondent’s submission amounted to guesswork and involves speculation as to future events, which is not the business of the Tribunal. Therefore, if the Tribunal were to take such a factor into account it would fall into error. Given the task cast upon the Tribunal under this consideration, other than to note, as was submitted by the Respondent, that it is not the “last roll of the dice” open to the Applicant and he could in the event that the decision to cancel his visa is not revoked make such an application for a protection visa, no further consideration of the fact is justified.
[29] The further paragraphs of the Respondent's written submissions concerning the capacity of the Applicant to make a protection claim are referred to.
The Applicant’s counsel went so far as to say that the effect of DMH16 is to render the Ministerial Direction No. 65 concerning this issue in its terms unlawful because they bring about indefinite detention. Whilst that may be the effect of North ACJ’s decision on the facts before him, it must be recalled that he was considering a decision by the Minister to refuse to grant a Protection (Class XA) visa. Also, it was in a setting where the Respondent had found that Australia had non-refoulement obligations to the Applicant. These are not the facts in this case at this time. It is these two matters that distinguish this matter before the Tribunal and DMH16.
There were several matters, or as they were described by the Applicant’s counsel “assumptions”, that are taken into account as a starting point in this consideration. Firstly, he is a citizen of South Sudan. Secondly, he is only a citizen of South Sudan. Thirdly, he has no family in South Sudan at all. Fourthly, his family from both sides are from the town of Bor in Jonglei State.
In considering whether the relevant obligation is owed to the Applicant the obvious starting point is to determine where he would be sent. Apparently, he is or qualifies for, citizenship of South Sudan. This is notwithstanding that he was not born there and the country did not exist at the time he was born. It is not apparent if he has a passport for that country or whether he would be received by that country in any event. It would appear that he would be sent there or attempts would be made to send him there in the event that the mandatory cancellation of his visa is not revoked.
A critical aspect of the Applicant’s submissions justifying the Tribunal finding that an obligation is owed to him arises from the evidence that has been produced by the Applicant in his materials. Those materials in many respects referred to conflict between the Dinka and Nuer in Bor which as noted earlier is a town in Jonglei State. The material is quite lengthy but does recount over some years what is described in one document as the “Battles for Bor”.[30] The Tribunal accepts that there is a significant risk that the Applicant, as a young Dinka male, may at the very least be affected by conflict there to a degree that is difficult to determine.
[30] See for instance the document from the International Crisis Group "South Sudan: Jonglei – “We Have Always Been at War”" (Page 251 of the Applicant's documents and specifically at page 271)
However, the submissions of the Applicant are prefaced on him returning to Bor and Jonglei State. Given that he has no family ties there this preface is not necessarily

well-founded. It cannot be downplayed of course that if the Applicant were to return to South Sudan it will be difficult for him. In the Applicant’s documents there was the “DFAT Country Information Report South Sudan”.[31] This document is referred to in full and makes several observations. It does look at the conflict between Dinka and the Nuer. It notes that reports of incidents of violence directed at Dinka people are mainly in what are known as conflict-affected areas. Overall, Dinka people in such conflict-affected areas do face a higher risk of societal discrimination and violence given the significant ethnic dimensions of the current conflict. However, it observes in Juba, Dinka people face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated government currently has almost unencumbered control over Juba. This observation is mentioned because it was submitted by counsel for the Respondent that if there is a capacity on the part of a person to move to one part of the country where one is not a refugee or is of essentially low risk, refugee protection is not available[32]. The Respondent contended that if there were other parts of South Sudan where the Applicant might be safe or comparatively safe, such protection as contemplated by paragraph 14.1 of the Ministerial Direction is not available.
[31] Commencing at page 34 of the Applicant's documents.
[32] Specifically, he referred to the decision of the Federal Court of Australia Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. In that case Black CJ held that although the Convention definition of refugee does not refer to parts or regions of the country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere in that country.
Whilst the material was not conclusive it does seem from the DFAT report that was the Applicant to relocate to Juba from Australia he would, to adopt the language of the report, face a low risk of being targeted on the basis of his ethnicity. In any event it would seem that if the Applicant was removed to anywhere in South Sudan, it would be more likely to be Juba than Bor where he has no connections in any event.
Other matters are relevant including that the Applicant is ethnically Dinka. As noted earlier, counsel for the Applicant submitted that the fact of being Dinka will be visibly obvious to people who know what they are looking for.
Evidence that identifies any specific harm that the Applicant might be or is likely to be exposed to is not altogether clear cut. In his statement the Applicant observes that if he was deported he would have nothing to go back to in South Sudan as he has no ties there. He also expresses a fear that if he returns he may get caught up in the current “civil war”[33]. To describe the situation in South Sudan currently as one of a “civil war” does not seem open on the material before the Tribunal. The DFAT Country Information Report does not describe it as a "civil war". The United Nations General Assembly - “Report of the Commission on Human Rights in South Sudan” does not use the term "civil war", it describes the "conflict" as “a series of inter and intra-communal conflicts, reigniting and encompassing historical localised conflicts and contests over land, resources and power”.[34] Further, the United Nations Security Council – “Report of the Secretary-General on South Sudan (covering the period from 15 November 2017 to 16 February 2018)”[35] refers to the hostile parties signing an "Agreement on Cessation of Hostilities, Protection of Civilians and Humanitarian Access on 21 December 2017." The signing of this document is inconsistent with the notion of a "civil war".
[33] See paragraph 56 of the Applicant's witness statement. He also addresses it in paragraph 3 of the witness statement.
[34] This report is dated 23 February 2018 and is at page 111 of the Applicant's documents.
[35] Page 130 of the Applicant's documents.
The extensive material filed by the Applicant does demonstrate that there is a long history of local and regionalised killings and that there has been significant difficulty with the “white army” and its opponents of Dinka ethnic origin. There have been significant armed attacks and other random acts of violence. It is noted that there are approximately 1.6 million internally displaced people in South Sudan and a further 818,000 South Sudanese refugees in neighbouring countries as of August 2016.
DFAT observes in its Country Information Report[36] that it is difficult to objectively comment on the ability of individuals to safely relocate internally. It further notes that usually when it occurs, it is to an area in which that individual’s ethnic or sub ethnic group predominates in order to ensure their safety. The DFAT Country Information Report also observes that given the supremacy of Dinka ethnic group in Juba, Dinka people would likely be able to return to Juba without facing discrimination or violence.[37] Given the limits on what the Tribunal can realistically assess, it prefers the conclusions contained in the DFAT Country Information Report (concerning the risk of discrimination and violence to Dinka) to the others given that it has been prepared by an Australian Government department for protection status determination purposes. It is expressed to provide DFAT’s best judgement and assessment at the time of writing. However, as the authors of the document noted it provides a general rather than an exhaustive country overview.
[36] Document 6 (page 34) of the Applicant's documents.
[37] It was also put in the DFAT Country Information Report that Dinka people face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.
Overall, considering the material in evidence it is not possible to conclude that the Applicant, if he was to be deported to South Sudan, would be at risk of a specific type of harm that triggered an international non-refoulement obligation in his favour within the meaning of paragraph 14.1 of the Ministerial Direction.
Strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As previously observed the Applicant arrived in Australia from Kenya on 11 October 2006 at nine years of age.
Apart from his biological father about whom the Applicant knows very little (and believes he is living in Canada but has had no contact since 1999), all of his extended family now resides in Australia.[38] His extended family consists of his mother, four brothers, a sister and his stepfather.[39]
[38] The details of his extended family can be found in document G 7 of the G documents "Personal Circumstances Form" at page 54. When asked to describe the impact of the cancellation of his visa on his family he described it as being devastating to his mother and siblings because amongst other things, he is the oldest child in the family.
[39] Further details of the Applicant's family were also provided in the witness statement of his mother Monica Panchol.
He gave evidence both in the witness box and statement that if he was not permitted to remain in Australia it would have a very traumatic effect on his younger siblings, who he stated look up to him and expect him to be a good example. He also gave evidence of his intentions in the future, were he permitted to remain in Australia, to teach his siblings the right path to adopt in life and also to render assistance to his mother in raising them.[40]
[40] Paragraph 57 of the Applicant's witness statement. He gave evidence in similar terms from the witness box.
There is also the evidence of the Applicant’s mother who stated that she would welcome him home. She has provided evidence of the fact that the Applicant’s siblings do miss him and that he has never done anything bad in the home environment.
In terms of the other elements of paragraph 14.2 of the Ministerial Direction, the Tribunal notes that his offending commenced approximately six years after his arrival in Australia with his first court appearance recorded in the Perth Children’s Court on 7 February 2012, where he was charged with nine offences.
Given the comparatively young age of the Applicant he has made limited if any contribution to the Australian society. There is limited evidence of meaningful employment apart from his periods of working as a spray painter (in North Melbourne and Melton) for which Mr Crellin gave a positive reference. He has of course been in custody for some time and by this reason, has been limited in his ability to engage in meaningful employment and make positive contribution to the Australian community. Regrettably, the lengthy history of offending, noted previously in the course of these reasons, is extensive over some years and has significantly impacted his ability as a young adult to make any positive contribution.
The Tribunal acknowledges, particularly given the evidence of his mother, that he has made some limited contribution to his siblings’ development. However, the evidence is limited.
The Tribunal recognises that in the event the Applicant is no longer in the same country as his mother it will have a significant impact on her and no doubt upon her children. This is of course notwithstanding the fact that her son, in recent years, has engaged in conduct of a criminal kind, not to mention his use of alcohol and drug taking, which has caused her significant distress.
However, given the periods of separation that the Applicant has had from his family by reason of his incarceration, they must have had to adapt to it. Further, the comparatively lengthy history of drug and alcohol abuse that the Applicant has more likely than not would have caused some level of alienation from his family by reason of their effects.
For these reasons, the Tribunal considers that overall, the strength, nature and duration of the Applicant’s ties to Australia weigh to some reasonable degree in affirming the reviewable decision.
EXTENT OF IMPEDIMENTS IF RETURNED TO SOUTH SUDAN
Paragraph 14.5 of the Ministerial Direction requires the Tribunal to consider the extent of impediments that the Applicant may face in establishing himself and maintaining basic living standards. Account must be taken of the Applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
The Applicant is comparatively young. He does speak some Dinka. There is limited evidence as to his health other than that he receives treatment for stomach problems, the precise medical nature which is not clear to the Tribunal. He expresses concern that such treatment may not be able to continue were he to return to his home country. It is not altogether clear what level of medical support would be available to the Applicant in the event that he was to return to South Sudan.
There would almost certainly be limited employment prospects for the Applicant. Although he does not appear to be formally qualified in the automotive industry, it has been the only vocation that he has meaningfully pursued. Given his limited vocational skills and the fact that more likely than not anyone with a spray-painting background is unlikely to have many employment opportunities in South Sudan, any employment if it is available to him is likely to be of a fairly menial type.
The Applicant has stated that he fears that he may end up dead were he to return to South Sudan as he has nothing to go back to.[41]
[41] Reference is made to the comments of the Applicant in his "Personal Circumstances Form" (document G 7) of the G documents at page 57. Also evidence in similar terms was given by the Applicant at paragraph 56 of his witness statement.
The Tribunal considers that assessing these factors this consideration does weigh in favour of revoking the mandatory cancellation of the Applicant’s visa.
CONSIDERATION AND CONCLUSIONS
In analysing all the relevant considerations that must be taken into account as prescribed by the Ministerial Direction, it is appropriate to address the question of whether one or more of the “Other Considerations” may be given greater or equal weight than the “Primary Considerations” as contended for by the Applicant’s counsel.
The starting point should be a review of the proper construction of the actual language used in the critical paragraphs of the Ministerial Direction itself. Paragraph 8(4) provides that primary considerations should generally be given greater weight than other considerations. It is submitted that the draughtsman of this paragraph has used the words “generally be given greater weight” for good reason. It does give the decision-maker discretion in an appropriate case. The exercise of such discretion arises after information and evidence from independent and authoritative sources has been received. It is noted that paragraph 8(3) provides that both the primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. It is submitted that this is a broad discretion in the hands of the decision-maker.
In this matter there are a number of “Other Considerations” that weigh in favour of the mandatory cancellation being revoked. In particular, it is those other considerations that identify the strength, nature and duration of ties to Australia and the extent of impediments if returned to South Sudan. The Tribunal was unable to find that an international refoulement obligation was owed to the Applicant on the material before it.

As noted above also the primary consideration of the best interests of minor children in Australia affected by the decision to revoke his visa does weigh in his favour. However, it has been observed that this factor only weighs in his favour to a reasonably limited degree.
However, the considerations in relation to the Applicant’s history of criminal offending, the protection of the Australian community, the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant reoffend together with the expectations of the Australian community, outweigh those considerations in favour of the Applicant whether they are identified as “Primary Considerations” or “Other Considerations”.
For the purposes of this application the Tribunal has similarly taken into account all relevant considerations. The Tribunal recognises the Applicant’s unfortunate history in terms of his birth, early years in Kenya, troubled childhood and difficulties experienced upon moving to Australia. One cannot be otherwise than moved by the trials that have confronted him particularly with the experiences of domestic violence in the home, together with exposure to alcohol, drugs and poor influences on his life.
However, he has had many warnings and been given many opportunities both by the court system, various support services, community corrections orders and other programs that have had as their aims the purpose of giving the Applicant a further chance or chances. Regrettably, he has not taken these opportunities.
There has been a pattern of serious offending whereby in several instances innocent members of the public were the victims of, or exposed to random acts of violence (in some cases suffering injury or considerable distress) after these opportunities for reform and rehabilitation had been given to the Applicant. This pattern of offending has also been amplified by his unfortunate attitude towards the legal system evidenced by his attempt to escape custody and his abuse of the Magistrate on 16 November 2016.
The Psychologist’s report also does not give the Tribunal confidence with respect to his prospects for reoffending.
It is in this setting that the Tribunal takes into account the factors against and in favour of affirming the reviewable decision and concludes that for reasons articulated above they weigh in favour of affirming the reviewable decision. Accordingly, the reviewable decision is affirmed.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron.

..........................[sgd]..............................................
Associate
Dated: 4 June 2018

Date(s) of hearing: 22, 25 May 2018

Counsel for the Applicant: Matthew Albert and Andrew White

Solicitors for the Applicant: Claire Stratton

Counsel for the Respondent: Andrew Yuile

Solicitors for the Respondent: Rebecca Bensted

[2018] AATA 1620

4 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Date(s) of hearing:	22, 25 May 2018
Counsel for the Applicant:	Matthew Albert and Andrew White
Solicitors for the Applicant:	Claire Stratton
Counsel for the Respondent:	Andrew Yuile
Solicitors for the Respondent:	Rebecca Bensted