Juma and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 4345
•15 November 2022
Juma and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4345 (15 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6927
Re:David Juma
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member George
Date of Decision: 15 November 2022
Date of Written Reasons: 15 December 2022
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 23 August 2022 that the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
……………[Sgnd]………………
Senior Member George
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Global Special Humanitarian (Class XB) (Subclass 202) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471
Pavey and Minister for Home Affairs [2019] AATA 4198
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500
SECONDARY MATERIAL
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
15 December 2022
INTRODUCTION
Mr David Juma (“the Applicant”) is a citizen of South Sudan.[1] He arrived in Australia on 17 August 2004, aged 31 years.[2]
[1] Exhibit R2, s 501 G-Documents, G12, page 57.
[2] Exhibit R2, s 501 G-Documents, G17, page 169.
The Applicant was granted a Global Special Humanitarian (Class XB) (Subclass 202) visa on 24 May 2004.[3] Following criminal offending and a resultant term of imprisonment, the Applicant’s visa was mandatorily cancelled on 3 March 2020 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[4]
[3] Exhibit R2, s 501 G-Documents, G9, page 48.
[4] Exhibit R2, s 501 G-Documents, G9, page 48.
In a declaration dated 9 March 2020, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[5] On 23 August 2022, the Respondent decided not to revoke the cancellation of the Applicant’s visa.[6]
[5] Exhibit R2, s 501 G-Documents, G12, page 57-60.
[6] Exhibit R2, s 501 G-Documents, G3, page 11-35.
On 26 August 2022, the Applicant lodged an application for review of the 23 August 2022 decision before the Tribunal.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] Exhibit R2, s 501 G-Documents, G1, page 1-8.
On 25 October 2022, the hearing proceeded by audio-visual means. The Applicant was self-represented, and the Respondent was represented by Mr Kyranis of Sparke Helmore.
The Applicant gave evidence on his own behalf and no other witnesses were called to give evidence in the hearing.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction),[8] to revoke the cancellation.
[8] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. The Tribunal also notes that claims of hardship that do not fall squarely within the structure of Direction 90 cannot be overlooked: Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471, [46].
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which 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”.
On 8 September 2009, following pleas of guilty, the Applicant was convicted in the Supreme Court of Queensland at Brisbane of the offences of murder and grievous bodily harm.[9]
[9] Exhibit R2, s 501 G-Documents, G5, page 38.
The Applicant murdered his wife, Ms Lily Keji Henry (“the Deceased”). For the offence of murder, occurring 14 December 2006, the Applicant was sentenced to life imprisonment.[10] The Applicant became eligible for parole on 15 December 2021.[11]
[10] Exhibit R2, s 501 G-Documents, G5, pages 38-39.
[11] Exhibit R2, s 501 G-Documents, G7, Attachment C, page 45.
The Applicant grievously bodily harmed a relative,[12] being a brother,[13] Mr Levi Gabriel (“the Victim”). For the offence of grievous bodily harm, occurring 14 December 2006, the Applicant was sentenced to four years imprisonment.[14]
[12] Transcript, page 3, line 42; page 13, lines 24-25.
[13] Exhibit R3, Tender Bundle, R1, pages 6-7.
[14] Exhibit R2, s 501 G-Documents, G5, page 38-39.
Both terms of imprisonment were served concurrently.[15]
[15] Exhibit R2, s 501 G-Documents, G5, page 39.
The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[16]
[16] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction is stated as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
Paragraph 9 of the Direction sets out the Other Considerations which must be taken into account. These considerations are:
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims; and
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND AND OFFENDING
The Applicant was born in Sudan in October 1972.[17] The Applicant’s evidence is that he experienced “extremely stressful and traumatic events in Sudan such as terror attacks, combat as a child solider and hardships in refugee camps”.[18] The Applicant’s father died when he was young, and he does not know where his mother is as “there has been civil war where everyone was displaced”.[19]
[17] Exhibit R2, s 501 G-Documents, G13, page 62.
[18] Exhibit R2, s 501 G-Documents, G13, page 71.
[19] Exhibit R2, s 501 G-Documents, G13, pages 61-77.
When the Applicant was 16 years old, he was press-ganged into the rebel army which was fighting a civil war in Sudan. The Applicant served with the rebel army for five years until he escaped to Uganda where he stayed as a refugee for some 11 years.[20]
[20] Exhibit R2, s 501 G-Documents, G6, page 41.
The President of the Federation of Equatoria Community Association in Australian Inc is of the opinion that the Applicant’s life would be in “grave danger” were he to return to South Sudan.[21]
[21] Exhibit R2, s 501 G-Documents, G20, page 176.
The Applicant’s evidence is that he met the Deceased in a Ugandan refugee camp. He wrote:
I met deceased in Ugandan refugees camp. After engagement period from 1999-2002, she got pregnant. However, we were not allow to lived together because, (Dowry) was not paid. Soon after, I arrived in Australia in 17 August 2004, instead of studies, I planned to work in order to support them back in Africa including those of Levi Gabriel.[22]
[22] Exhibit R2, s 501 G-Documents, G14, page 78.
The Applicant first arrived in Australia in 2004 on a Global Special Humanitarian (Class XB) (Subclass 202) visa.[23] The Applicant gave his marital status as “Separated”. The Applicant travelled with three minor children. Their relationship to the Applicant was described as “Child”.[24] However, at the hearing the Applicant clarified that they were relatives rather than his biological children.[25]
[23] Exhibit R2, s 501 G-Documents, G9, page 48.
[24] Exhibit R2, s 501 G-Documents, G17, Attachment K, page 169.
[25] Transcript, page 3, lines 8-37.
Upon the Applicant’s arrival into Australia, he obtained work as a fruit picker and a labourer assembler, sending what money he could to the Deceased back in Africa to sustain her and to assist her in coming to Australia.[26] At the time of the offences, the Applicant had a three-year-old daughter with the Deceased. That daughter is now an adult.[27]
[26] Exhibit R2, s 501 G-Documents, G6, page 41.
[27] Exhibit R2, s 501 G-Documents, G13, page 66.
The Deceased arrived in Australia in October 2006. The Applicant murdered her in December 2006.[28]
[28] Exhibit R3, Tender Bundle, R1, page 12.
Almost immediately upon the Deceased’s arrival into Australia, problems erupted within the marriage. The Applicant explained their problems in the following terms:
After their visa to Australia was approved I was happy to receive and reunite with them again. I was extremely excited to see them start a new beginning in Australia suppose and I was ready and willing to support our daughter in achieving her aspiration goals. However, on their arrival home from the airport, the-same (date and day), she summoned me in the dining room for talks. I thought the discussions were going to be about some thing positive. Instead, immediately, she confronted me about those affairs allegations. Telling me that she was not coming to stay in Australia, she wanted to return to Africa. She continued saying that, let my family find for me another wife, because she has been accused of cheating and I did not stand by her side, this means that I was collaborating with the accusers. This made her looked like a prostitute and it hurt her feelings.[29]
[29] Exhibit R2, s 501 G-Documents, G14, pages 78-79.
In his written evidence, the Applicant wrote of allegations that the Deceased had been caught up in an affair with another man. The Applicant wrote:
The deceased arrived with no motive to stay in Australia. Because, they had already involved in quarrels and fights among each other. The reasons being that she has been caught up in an affairs with another man. This made it difficult for her to cope with what had happened. This occurred between period of 2005-2006.[30]
[30] Exhibit R2, s 501 G-Documents, G14, page 78.
The Applicant claimed that his relationship with the Deceased was volatile and consisted of many heated arguments. In the Applicant’s undated statement provided to the Tribunal the Applicant wrote that:
On one occasion the police involved as there was call made that, a woman has been hit by an abusive husband. After, the police attend my house it was found that I was the victim. Because there were witnesses who told the police exactly what happened… The police, then told me that, “she is your wife we not going to remove her, because you never beaten her”. I then replied that I do not beat women, if I had wanted to beat her, I would have done so when she struck me number of times. After, that I told her not to continue hurting me, because frequent fighting is not the right solution for any problem.[31]
[31] Exhibit R2, s 501 G-Documents, G14, pages 79.
In the week leading up to the offences, the Applicant had sent the deceased to live with his brother because of the marital difficulties they were having.[32] In his sentencing remarks dated 8 September 2009,[33] Martin J described the circumstances leading up to the Applicant’s offending in the following terms:
The deceased moved to Australia in 2006 and almost immediately problems erupted within the marriage. There were many quarrels. In keeping with the traditions of your homeland, attempts were made by members of both families to resolve the problems which existed between you and your late wife. These became so bad that you had threatened to kill her and your child if she left you.
At some point you wrote a note, it could be described as a suicide note, in which you spoke of killing both yourself and your wife. You referred to her being influenced by other people, and that appears to be something which motivated you to commit the crime that you did.[34]
[Emphasis added]
[32] Exhibit R3, Respondent’s Tender Bundle, R1, page 6.
[33] Exhibit R2, s 501 G-Documents, G6, pages 40-44.
[34] Exhibit R2, s 501 G-Documents, G6, pages 41-42.
In the Applicant’s suicide note, that had been tendered as evidence at his sentencing,[35] the Applicant wrote:
I Juma David here by notifying the world that I’m going away with my family.
I never intend to kill or murder… I was force to do so, because I suffered enough that my wife couldn’t understand me anymore. The main reason for this tragedy is contributed by some elements (people) who do not want me to make a family.[36]
[35] Exhibit R2, Respondent’s Tender Bundle, R1, page 5.
[36] Exhibit R2, Respondent’s Tender Bundle, R1, pages 25-26.
The Applicant has subsequently denied that he wrote a suicide note. He wrote:
Though, was allege that I wrote a suicide note to kill myself and our daughter if the deceased leave me, was absolutely absurd.[37]
[37] Exhibit R2, s 501 G-Documents, G13, page 67.
The balance of evidence does not support the Applicant’s denial that he wrote the suicide note. On the contrary, the Tribunal is satisfied of its existence and that the Applicant was the author. Police forensic notes read:
… photograph letter located in satchel [in] main bedroom of suspects house. Letter located in situ and also with graph at scene. Letter taken as exhibit and for further examination Exhibit A. Return to station and photograph letter on copy stand. Letter photocopied for CIB reference.[38]
[38] Exhibit R3, Tender Bundle, R1, page 37.
The Tribunal is satisfied that the Applicant’s suicide note contains reasons why he committed the crime that he did.[39] Indeed in an earlier family meeting it became apparent that the Applicant had previously threatened to kill his wife and child and commit suicide before the murder. The Crown facts relied upon in sentencing read:
There were two such family meetings held between October and December 2006 with members of Lily’s family and members of the accused’s family all coming together in an attempt to solve the problems that they were having. During the course of the first of those meetings, it became apparent that the accused had threatened Lily previously and, in fact, had said that he had threatened to kill her, their child and himself if she left him, and he had admitted during the family meeting that – or he accepted that he said those words to her but said that it was said in anger and that he didn’t mean it.[40]
[Emphasis added]
[39] Exhibit R2, s 501 G-Documents, G3, page 42.
[40] Exhibit R3, Tender Bundle, R1, page 5.
The offences subsequently committed by the Applicant were undoubtedly violent crimes. In the sentencing remarks, His Honour described the offences committed by the Applicant as follows:
Your domestic disputes reached a point where police on one occasion intervened. The circumstances on the 14th of December 2006 started like so many other arguments, with you and the deceased insulting each other. It became so heated that at one point she attempted to hit you with a coffee table but was prevented from doing so by the other people in the room at the time.
You then left the room and obtained a knife. You returned to the living room and without any warning stabbed the deceased in the neck. She was stabbed three time in the neck and it was one of those stabbings which was the cause of her death because it severed her carotid artery. The struggle which took place continued for some time with other present in the room attempting to intervene, and it was at this time that the subject of the second charge, Gabriel Levi, was seriously injured. Somehow the deceased was able to get free and she attempted to run from the house. She was followed by you and you stabbed her again many times outside the house.
You eventually stopped and walked away. You called the emergency number and immediately told the operator, among other things, that you had killed your wife. In an interview taken with the police later that day, you told them that you killed her because she would not go home with you and that she was under the influence of another man.
A post mortem revealed that there were 13 wounds; as I say, three to the neck and 10 to the torso. During the struggle others attempted to stop the two of you fighting and Gabriel Levi was one of those. As a result of his attempts to stop you, he was subjected to lacerations on his hand and one of them severed the tendon below his left index finger.[41]
[Emphasis added]
[41] Exhibit R2, s 501 G-Documents, G6, pages 42-43.
The Crown facts described the injuries sustained by the Deceased in the following terms:
Upon the post mortem, it was revealed that the deceased had 13 wounds to her body. There were three on the left side of her neck; one of those was the fatal injury which severed her left carotid artery and ultimately caused her to bleed to death. The other two wounds to her neck may have been caused by one blow. There was one wound on the left side of her chest which contained two track marks, one upwards. That injury was underneath her breast. One track mark tracked upwards towards the armpit and the second penetrated the chest cavity and just cut the lung. There were four stab wounds to the left side of her abdomen, one to her back and four wounds on her left shoulder, upper arm and forearm, and those wounds, the one to her back and the ones to her left shoulder, upper arm and forearm were defensive injuries which appear to have been caused while she had her arm raised up in protection of herself.[42]
[Emphasis added]
[42] Exhibit R3, Tender Bundle, R1, page 8.
The Crown facts relied upon in sentencing expand upon the Applicant’s relationship to the Victim, who is described as the Applicant’s brother. The Victim’s role in trying to protect the Deceased is described in the following terms:
As he stabbed at her, he was grabbed by his two brothers, Gabriel and Victor. They grabbed his arms to try and stop him from attacking Lily; however, he was too strong for them. One of them screamed at Lily to run. “Lily, run.” During that struggle, Gabriel Levi, the complainant in the second count, received three cuts to his hand. Gabriel fell to the ground. He then managed to get up and run out of the house by exiting through a window in his bedroom. Lily had, by this stage, managed to run outside. One of the witnesses inside the house described there being a lot of blood which was coming from the vicinity of her neck.
When she got outside the door, she fell down on to the ground. The accused ran after her and he commenced stabbing her multiple times as she lay on the ground, and he was heard saying to her, “I was the one who brought you here to this country.”, as he continued to stab her.
Another of his brothers tried to stop him outside the house from stabbing at Lily, but he was unable to prevent him continuing, and eventually the accused, it seems, stopped of his own volition, and he left the scene and walked away up the road. Lily was, by that time, unconscious.[43]
[Emphasis added]
[43] Exhibit R3, Tender Bundle, R1, pages 6-7.
Contemporaneous police notes convey a similar account to the Crown facts:
The deceased complainant and her husband were attending the offence location speaking with a friend. Whilst there they were arguing and fighting, and matters were becoming quite violent between both persons. The male person who lives at the offence location address attempting to calm the parties down and attempted to get them to leave his residence. The offender then obtained a kitchen knife and repeatedly stabbed the complainant in areas all over the body. These injuries were fatal. Complainant was attended to by Queensland Ambulance Service and transported to Logan hospital, where she was pronounced dead. The offender was later located by Dog Squad and accompanied police to the Logan Central police station. Offender later interviewed in relation to this matter.[44]
[44] Exhibit R3, Tender Bundle, R3, page 82.
The Victim’s laceration to his hand required surgical repair.[45]
[45] Exhibit R3, Tender Bundle, R1, page 9.
The Applicant’s daughter was present in the house when he murdered the Deceased.[46]
[46] Transcript, page 8, lines 40-43.
His Honour relied upon Victim Impact Statements when sentencing the Applicant.[47] One of these Victim Impact Statement indicates the effect of the Deceased’s murder on her family, and in particular her daughter with the Applicant:
We cannot express in words how this has impacted on us as a family. It is very difficult to write.
Lilly has a daughter who came to live with Charles (Lilly’s uncle) immediately after it happened. She calls Charles her Father and his wife her Mother.
When Lilly was killed her daughter was only very young and it was very difficult for us to explain to her what had happened. Now she is in year 1 at school and she understands a little more. She understands that her Mother is dead and that her Father killed her but we do not know how much more she understands.
Just before Lilly’s body was taken back to Sudan we allowed her to see her Mother and she said “Mum brought me here and now she has left me to go back home in a box. When is Mum coming home?”[48]
[Emphasis added]
[47] Exhibit R2, s 501 G-Documents, G6, page 43.
[48] Exhibit R3, Tender Bundle, R1, page 20.
In an undated letter to the sentencing Judge, the Applicant wrote of his remorse:
Now stabbing does not sit right with me and I’m now ashamed of this behaviour. I now genuinely feel shame, guilt and remorse.
I alone take full responsibility for my actions. It has cost a lot but I have learnt to never again take someone else’s life.[49]
[49] Exhibit R3, Tender Bundle, R1, page 22.
The Applicant has not spoken with his daughter since he was incarcerated, although he did attempt to write her a letter in approximately 2016.[50]
[50] Transcript, page 8, lines 37-38.
The Applicant has recently completed several courses whilst detained.[51] In September 2022, the Applicant completed courses in Emotional Intelligence, Emotional Healing, Conflict Resolution, and Effective Communication Skills. In October 2022, the Applicant completed courses in Behaviour Management, Anger Management, and Positive Parenting Techniques.
[51] Exhibit A2.
Whilst imprisoned the Applicant completed a Peace Education Program,[52] a Certificate II in Automotive Underbody Technology,[53] a Certificate I in Construction,[54] a Certificate III in Rural Operations,[55] competencies towards as Certificate III in Manufacturing Technology,[56] a Certificate II in Asset Maintenance (Cleaning Operations),[57] a Beginning Coaching General Principles course,[58] competencies towards a Certificate III in Computer Aided Drafting,[59] a Certificate I in Information Technology,[60] competencies towards a Certificate III in Basic Health Care,[61] a Tertiary Preparation Program and offer into a Bachelor of Human Services,[62] partial completion of a Certificate I in Information Technology,[63] partial completion of a Certificate I in Business,[64] partial completion of a Certificate II in Business,[65] Food Safety and Hygiene Training,[66] partial completion of a Certificate I in Introductory Vocational Education,[67] courses in Vocational Literacy,[68] partial completion of a Certificate II in Automotive Mechanical,[69] and numerous other courses through Queensland Tafe.[70] The Applicant has also participated in peer and support networks whilst in gaol.[71] He engaged in Bible studies.[72] He contributed to plant conservation.[73] He won a 10-kilometre fun run race in 2011.[74]
[52] Exhibit R2, s 501 G-Documents, G16, pages 95-96.
[53] Exhibit R2, s 501 G-Documents, G16, pages 97, 126.
[54] Exhibit R2, s 501 G-Documents, G16, pages 98, 125.
[55] Exhibit R2, s 501 G-Documents, G16, page 99.
[56] Exhibit R2, s 501 G-Documents, G16, pages 100-102.
[57] Exhibit R2, s 501 G-Documents, G16, page 103.
[58] Exhibit R2, s 501 G-Documents, G16, page 104.
[59] Exhibit R2, s 501 G-Documents, G16, pages 105-106, 111.
[60] Exhibit R2, s 501 G-Documents, G16, pages 107, 116.
[61] Exhibit R2, s 501 G-Documents, G16, page 108.
[62] Exhibit R2, s 501 G-Documents, G16, pages 109, 115, 118, 121, 150.
[63] Exhibit R2, s 501 G-Documents, G16, page 110.
[64] Exhibit R2, s 501 G-Documents, G16, pages 112-113.
[65] Exhibit R2, s 501 G-Documents, G16, page 124.
[66] Exhibit R2, s 501 G-Documents, G16, page 114.
[67] Exhibit R2, s 501 G-Documents, G16, page 117, 119-120.
[68] Exhibit R2, s 501 G-Documents, G16, pages 122, 139.
[69] Exhibit R2, s 501 G-Documents, G16, page 123.
[70] Exhibit R2, s 501 G-Documents, G16, pages 127-137, 140-147.
[71] Exhibit R2, s 501 G-Documents, G16, pages 154-159.
[72] Exhibit R2, s 501 G-Documents, G16, pages 161-168.
[73] Exhibit R2, s 501 G-Documents, G16, page 153.
[74] Exhibit R2, s 501 G-Documents, G16, page 152.
In a report dated 16 March 2020, Queensland Corrective Services noted to the Applicant that “You have made positive efforts towards your personal development through the completion of educational and vocational programs”.[75] However, the Applicant has also “incurred a number of adverse incidents and breaches of discipline”, with the last recorded incident in February 2018.[76]
[75] Exhibit R3, Tender Bundle, R4, page 112.
[76] Exhibit R3, Tender Bundle, R4, page 112.
The Applicant has physically maintained himself in the gym daily, suffering few medical issues beyond a “broken” meniscus and a reaction to the COVID-19 vaccine.[77] The Applicant’s evidence is that “I like walk around because it’s good for managing something like depression, anxiety, anger…”.[78] The Applicant has long been known by his community for his love of sport and, “within six months of his arrival [in Australia] he set up the Equatorian Junior Soccer team in Logan, Queensland”.[79]
[77] Transcript, page 10, lines 28-34.
[78] Transcript, page 10, lines 44-46.
[79] Exhibit R2, s 501 G-Documents, G20, page 175.
In his personal circumstances form, the Applicant gave the following information as to what he believed to be his risk of offending in the future:
Maybe alcohol, but since my incarceration and throughout my custodial period I never use any drugs or alcohol. I have educated myself and I now understand the effect of use of the substance and their impact on the body.
I now know how to identify key concepts and principles that may be adaptable to future situations. Pay close attention to the involvement of others in decision making process, judging when and where to make a unilateral decision, consult with others or collaborate to reach consensus.[80]
[80] Exhibit R2, s 501 G-Documents, G13, page 71.
Consistent with this, the Applicant’s urinalysis has remained clear.[81]
[81] Exhibit R3, Tender Bundle, R4, page 112.
In its report dated 16 March 2020, Queensland Corrective Services assessed the Applicant as being a medium risk of reoffending by utilising the Risk of Reoffending Prison Version (ROR-PV) tool.[82] The Applicant’s risk of reoffending was described in the following terms:
You have been assessed as having a Risk of Reoffending Prison Version (RoR-PV) score of 7 which indicates you fall into the category of prisoners who pose a moderate risk of further general offending. You have not been assessed for intervention needs, however, I note you recently completed the Low Intensity Substances Intervention (LISI) program in September 2021.
You have a parole application before the Parole Board Queensland and a final decision is yet to be made.
Based on the harm caused by your previous offending I am of the view that any future offending by you will cause considerable harm to the community.[83]
[Emphasis added]
[82] Exhibit R3, Tender Bundle, R4, pages 116-.
[83] Exhibit R3, Tender Bundle, R4, page 116.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant plead guilty to, and was found guilty of, the crimes of murder and grievous bodily harm. These crimes were inherently violent. The Applicant stabbed the Deceased, his wife and the mother of his daughter, 13 times. He seriously injured the Victim, his brother, upon his intervention in the attack.
Accordingly, the Applicant’s conduct is viewed very seriously by the Tribunal.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(i) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The evidence before the Tribunal does not indicate that the Applicant’s offending was of a type contemplated by this sub-paragraph. Accordingly, the Tribunal does not regard this consideration to be relevant
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[84]
[84] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was sentenced to a term of life imprisonment for murder which was served concurrently with his sentence of four years for grievous bodily harm.[85] This is one of the most significant sentences that an Australian Court can impose, which reflects the objective seriousness of the Applicant’s offending.
[85] Exhibit R2, s 501 G-Documents, G7, pages 45-46.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Prior to the Applicant’s offending on 14 December 2006, the Applicant had no criminal history.[86] The Tribunal does not regard this consideration to be relevant.
[86] Exhibit R2, s 501 G-Documents, G6, page 41.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant had no criminal history prior to his offending on 14 December 2006. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Tribunal has no evidence before it to say that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not consider this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence before the Tribunal that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. Accordingly, the Tribunal does not consider this consideration to be relevant.
The Tribunal does not consider factors (b), (d), (e), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant acknowledged that alcohol contributed negatively to his decision making. The Applicant contends that he has remained drug and alcohol free whilst in jail and detention, which is accepted.
In the absence of any psychological opinion professional risk assessment of the Applicant’s likelihood of reoffending, the best evidence before the Tribunal is that provided by Queensland Corrective Services. As such, the Tribunal places weight on the assessment that the Applicant has a Risk of Reoffending Prison Version (RoR-PV) score of seven which indicates that he poses a moderate risk of further general offending. The Tribunal also places weight on the assessment that:
Based on the harm caused by your previous offending I am of the view that any future offending by you will cause considerable harm to the community.[87]
[87] Exhibit R3, Tender Bundle, R4, page 116.
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. Given the gravity of the Applicant’s offending, the Tribunal regards the Applicant’s moderate risk of engaging in further criminal or serious conduct as unacceptable. This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
It is unnecessary to repeat the relevant evidence and findings considered in Primary Consideration 1 for the purposes of Primary Consideration 2. The Applicant’s conduct of murdering his wife, the Deceased, constitutes family violence. Similarly, the Applicant’s conduct of grievous bodily harm against the Victim also constitutes family violence.
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
The Applicant threatened to kill his wife and child,[88] in what may be characterised as a threat of murder-suicide. This threat constitutes family violence. The date of this threat is unknown, but the Tribunal infers that it occurred after the Deceased arrived in Australia in October 2006 and before the Applicant murdered her in December 2006. Therefore, the Applicant’s threat to murder his wife, and the actual murder, increased in seriousness in a relatively short space of time.
[88] Exhibit R3, Tender Bundle, R1, page 5.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
The primary cumulative effect of the Applicant’s repeated acts of family violence, being the threat of murder and actual murder, is that the Deceased was killed. Her daughter has had to grow up into adulthood without the benefit of a mother.
It is unknown to the Tribunal if the Victim has suffered enduring effects of the grievous bodily harm committed upon him.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The Applicant accepted responsibility for his offending when he entered his pleas of guilt. He has abstained from drugs and alcohol whilst imprisoned and in detention. He has taken positive steps towards his personal development through the completion of numerous educational and vocational programs.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
As the Applicant has not committed an act of family violence since the murder and grievous bodily harm, this consideration is not relevant.
The Tribunal does not consider factor (d) of paragraph 8.2(3) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.2(3) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has given evidence, and the Tribunal accepts, that the Applicant does not have minor children, This consideration is therefore not relevant.[89]
[89] Exhibit R2, s 501 G-Documents, G13, page 66.
Conclusion: Primary Consideration 3
Primary Consideration 3 is not relevant.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[90]
[90] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
a) The Applicant moved to Australia in 2004 and is now aged 50 years.
b) The Applicant was sentenced to life imprisonment for the violent murder of his wife, committed in 2006.
c) The Applicant was also sentenced to a lesser concurrent period of imprisonment for the offence of grievous bodily harm inflicted on the Victim.
d) The Applicant’s crimes occurred in a relatively short period after his arrival in Australia.
e) The Applicant’s crimes are very serious and raise character concerns.
The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations of him to obey Australian laws while in Australia by engaging in serious conduct. This breach of the Australian community’s expectations weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
(a) International non-refoulement obligations
In both his written and oral evidence, the Applicant raised concerns in relation to returning to South Sudan. The Applicant claims that he will be charged with treason after being conscripted and later fleeing the country. The Applicant also claims he will be persecuted for speaking out against the current government for their violation of human rights and fears harm from the Deceased’s relatives. In his letter provided to the Tribunal, the Applicant wrote:
…However, the decision to send me to a country from where I escaped and where my father and siblings were targeted and killed is dangerous. Because, my life will be in danger as a defector from the army as a child soldier. I will be charged with treason, a charge that carries life imprisonment or even possibly the death penalty. Also, because I had criticized them for crimes against civilians, such as looting properties, rape and unnecessary killings, I will be considered a betrayer to the government for having exposed them.
The retribution from the deceased relatives is not imaginary. This has already been demonstrated. My cousin sister was left with a broken spinal cord as an act of revenge by my wife’s family. So, there will be an escalation of violence and probably loss of lives on my arrival to southern Sudan. Who could even imagine that an innocent woman who is always there with them and never hurt anyone would be left with a permanent injury? I am only to blame.[91]
[91] Exhibit A1, Letter of David Juma.
The President of the Federation of Equatoria Community Association in Australian Inc is of the opinion that the Applicant’s life would be in “grave danger” were he to return to South Sudan.[92]
[92] Exhibit R2, s 501 G-Documents, G20, page 177.
The evidence suggests that the Applicant is entitled to apply for a protection visa and is open-minded as to so doing.[93]
[93] Transcript, page 25, lines 5-8.
The Tribunal notes the effect of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 the Tribunal is entitled to defer assessment of whether the Applicant is owed non-refoulement obligations on the basis that it is open to him to apply for a protection visa. Given the general evidence before it, the Tribunal regards this as the preferable course of action.
Accordingly, this consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 50-year-old man. He has an issue with the meniscus in one knee and there are indications that his mental health may be suffering. He previously claimed that he had no medical or psychological conditions.[94] On balance, for a man of his age, he is in relatively good health.
[94] Exhibit R2, s 501 G-Documents, G13, page 74.
There is no evidence before the Tribunal of any substantial language or cultural barriers that the Applicant would suffer were he to return to South Sudan. The Applicant has many relatives living in South Sudan.[95] However, the evidence before the Tribunal is that Applicant would fear for his safety were he to return to South Sudan.
[95] Transcript, page 12, lines 37-39.
It is uncontroversial that state provided medical and economic support is, in general terms, greater in Australia than in Sudan. Further, the Applicant has pro-social networks in Australia through the Federation of Equatoria Community Association in Australian Inc. The evidence suggests that these pro-social networks will support the Applicant’s rehabilitation. He would lack such networks in South Sudan.
On the balance of this Consideration, the Tribunal is satisfied that the Applicant will face significant impediments if removed and therefore places heavy weight in favour of revoking the Applicant’s mandatory visa cancellation.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no current evidence before the Tribunal as to the views of any victims. Accordingly, this Other Consideration is not relevant.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:
(a) the strength, nature, and duration of ties to Australia; and
(a)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[96]
[96] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27].
The Applicant has been imprisoned for a substantial part of his residence in Australia. The Applicant has been disciplined for his conduct in prison, although he has also undertaken courses to improve himself. Prior to his imprisonment, the Applicant was employed and assisted in founding a soccer club.
The Applicant’s family has largely been silent in these proceedings. In particular, the Tribunal is unaware of the Applicant’s daughter’s views as to his potential removal from Australia. Similarly, the Tribunal is unaware of the current views of the Victim.
Given the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal places slight weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds:
·Primary Consideration 1 – Protection of the Australian community: weighs very heavily against revocation of the cancellation of the Applicant’s visa.
·Primary Consideration 2 – Family violence: weighs heavily against revocation of the cancellation of the Applicant’s visa.
·Primary Consideration 3 – Best interests of minor children: is not relevant.
·Primary Consideration 4 – Expectations of the Australian community: weighs very heavily against revocation of the cancellation of the Applicant’s visa.
·Other Consideration (a) – International non-refoulement obligations: weighs neutrally.
·Other Consideration (b) – Extent of impediments if removed: weighs heavily in favour of revoking the Applicant’s mandatory visa cancellation.
·Other Consideration (c) – Impact on victims: is not relevant.
·Other Consideration (d) – Links to the Australian community: weighs in slight favour of revoking the Applicant’s mandatory visa cancellation.
The Tribunal has considered all of the Considerations in the Direction and the totality of the evidence. Combined, these weigh against the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 23 August 2022 that the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[sgnd]......................................
Associate
Date of Decision:
Date of Reasons:
15 November 2022
15 December 2022
Date of Hearing: 25 October 2022
Representation for the Applicant: Self-represented
Solicitor for the Respondent: Mr Kyranis
Sparke Helmore LawyersANNEXURE A - EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions
R
October 2022
6 October 2022
25 October 2022
A1
Letter of David Juma
A
18 October 2022
19 October 2022
25 October 2022
R2
Section 501 – G Documents
R
Various
6 September 2022
25 October 2022
R3
Respondent’s Tender Bundle
R
Various
6 October 2022
25 October 2022
A2
Applicant’s Various Certificates of Completion
A
Various
19 October 2022
25 October 2022
0
9
0