JYVT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1135

JYVT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1135 (10 May 2023)
Division: GENERAL DIVISION
File Numbers: 2023/0931 & 2023/0933
Re:JYVT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Senior Member John Rau SC

Date of Decision: 10 May 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal:
(a)affirms
the decision made by the delegate of the Respondent dated

15 February 2023 such that there is not another reason why the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian (Permanent) visa should be revoked; and
(b)affirms
the decision made by the delegate of the Respondent dated

15 February 2023 to exercise the power under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant a Protection (Class XA) visa

.......................[SGD]............................. ………………[SGD].…………..
Senior Member Theodore Tavoularis Senior Member John Rau SC
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – Subsequent refusal of a Protection (Class XA) visa under
s 501(1) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test- whether there is not another reason to revoke the mandatory cancellation and not to exercise the discretion to refuse the Protection visa under s 501(1) of the Migration Act 1958 (Cth) - where Applicant’s criminal history in Australia displays an increasing trend of seriousness –where Australia’s non-refoulement obligations are engaged- indefinite detention as a legal consequence of the Tribunal’s decision considered – consideration of Ministerial Direction No. 99- decisions under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Children, Youth and Families Act 2005 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
FYBR v Minister for Home Affairs (2019) 272 FCR 454
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
R v JR (A Juvenile) [2022] NSWDC 618
R v Pham & Ly (1991) 55 A Crim R 128
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Walker v Minister for Home Affairs (2020) 171 ALD 37
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
The Nationality Act 2011 (Sudan)
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Senior Member John Rau SC
10 May 2023
INTRODUCTION

JYVT (‘the Applicant’) first arrived in Australia on 8 December 2005. He has never departed Australia since first arriving here.[1] He seeks a review of two decisions by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”).
[1] Exhibit 1, p 256.
The Applicant was notified of these decisions on 15 February 2023. They comprise:
(a)that there was not another reason why the decision to cancel his Class XB Subclass 202 Global Special Humanitarian Visa (‘the humanitarian visa’) made on 7 July 2016 under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), should be revoked (the visa non-revocation decision); and
(b)that his application for a Protection (Class XA) visa (‘the Protection visa’) was refused under s 501(1) of the Act (‘the visa refusal decision’)
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to a term of imprisonment of 16 months for armed robbery on 17 May 2016.[2]
[2] Exhibit 1, p 42.
The Applicant quite properly concedes that he does not pass the character test. The remaining issues before the Tribunal are:
(a)whether there is another reason to revoke the cancellation of his humanitarian visa; and
(b)whether the discretion under s 501(1) of the Act to refuse to grant the Protection visa should be exercised.
The Hearing was held on 26 and 27 April 2023 by Microsoft Teams. The Applicant was
self-represented, and the Respondent was represented by Mr David Brown of the Australian Government Solicitor.
The Applicant gave evidence by Microsoft Teams from Yongah Hill Detention Centre. He generally gave evidence in a straightforward manner. He presented as an intelligent young man. He expressed remorse for his past behaviour and expressed a wish to get a job and start a family. He did however have a tendency to have a predominantly themed explanation for all of his misconduct which placed him either just in the wrong place at the wrong time, or him otherwise at the periphery of any offending. In one material instance at least, he made claims contrary to explicit findings of the sentencing Judge. This raises serious questions about the extent to which the Applicant has taken responsibility for his actions. Examples are discussed below.
The Applicant called his older sister, MA. It was evident that her understanding of English was reasonable, but she nevertheless chose to give evidence through an interpreter. Much of her evidence seemed non-responsive to questions, although the nature and extent of this was difficult to assess. Many questions requiring simple “yes” or “no” answers, resulted in lengthy conversations with the interpreter. She presented as an unimpressive witness.
She did not know much about his offending. She said that she knew nothing of his criminal associates.[3] She denied that he was ever unwelcome in her home, contrary to his evidence.[4] She agreed that there was a period when, as a teenager, he would often not return home for days and would drink with his friends.[5]
[3] Transcript, p 104, lines 14-19.
[4] Transcript, p 103, lines 20-45; p 104, lines 1-6.
[5] Transcript, p. 104, lines 7-18.
MA confirmed that the Applicant’s mother, was born in the region of Nasir which is in present day South Sudan.[6]
[6] Transcript, p.95 lines 45-47; p 46, lines 1-7.
The Applicant also called his nephew GG. He is MA’s son. He was raised with the Applicant, who sees him as a sibling and is only a few years younger. He gave evidence in English. He said he has spoken with the Applicant by phone every couple of weeks for the last year. Prior to that, communication was more difficult. He said that he regarded the Applicant as a role model.[7]
[7] Transcript, p. 108 lines 43-47; p. 109 lines 1-37.
Background Facts
The Applicant is a 25-year-old Nuer man. His family are Christians.
The Applicant is deemed to be a citizen of South Sudan under sub-section 8 (1) of the Nationality Act 2011 of South Sudan, because at least one of his parents were born in South Sudan. He told the Tribunal that he had no father figure as a child.[8] He eventually discovered that his father had died when he was told this by his older sister (MA). He was about 15 years old at the time.
[8] Transcript, p. 10 lines 33-39.
The Applicant has claimed in documentation before the Tribunal, variously that he is an Egyptian citizen,[9] Sudanese, or stateless.[10]
[9] Exhibit 1, G6, Attachment D1, p 79.
[10] Ibid, G6, Attachment G, p 123.
In October 2002, the Applicant fled to Egypt with MA, her husband (KP), KP’s sister (T), and three of the Applicant’s other siblings. KP had family in Egypt and they lived with them. The Applicant’s mother and one sister (R) remained in Sudan. R has since moved to Canada with her husband. His mother fled to Kenya, and is now in Ethiopia with her sister. The Applicant’s sister, MA has virtually parented him since 2002.[11]
[11] Exhibit 2, G13, Attachment O1, p 778 and Attachment O2, p 782.
The Applicant told the Tribunal that life in Egypt was not too bad. He felt safe in Egypt. The Applicant was bullied a bit by local children. He says that he witnessed some violence there and encountered people with weapons. The Applicant attended school with other Sudanese students in Egypt. He learned some English at school but spoke mainly Arabic. At home he would speak Nuer.[12]
[12] Transcript, p 13 lines 1-47; p 14 lines 1-22.
In 2005, the Applicant and some of his family were granted Global Special Humanitarian (Subclass 202) Visas. He came to Australia on 8 December 2005 when he was eight years old. He was accompanied by MA and three other siblings.
On 23 August 2013, the Applicant (aged 15 years) appeared in the Dandenong Children’s Court charged with attempted robbery. No conviction was recorded, and he was released on a $300 Good Behaviour Bond.[13]
[13] Exhibit 1, G13, Attachment A, p 570.
The Applicant initially told the Tribunal that he could not recall the details of this offending. Later he said that he had tried to snatch someone’s mobile phone. He said it was just him being stupid. He does not know why he did it but suggested that perhaps he was under the influence of alcohol.[14]
[14] Transcript, p 26, lines 1-23.
The Applicant left school on 16 September 2014, partially completing year 10 at Hallam Secondary College (Hallam). His attendance at school was very poor.[15] During this time he spent a lot of time away from home and with a friend. They would drink together and stay in a “bungalow” in this friend’s back yard. His brother-in-law did not want him in the family home when he was drinking. He was expelled from school. It was around this time that the Applicant began drinking and using cannabis.[16]
[15] Exhibit 2, G13, Attachment P4, p 800 and Attachment P5, p 805.
[16] Exhibit 1, G6, Attachment E, p 107.
The following year, the Applicant started at Dandenong Chisolm TAFE. He met a drug dealer there and he began to mix with a different group of students from Hallam. They introduced the Applicant to Ice. He became addicted to Ice and became a daily user.[17] He told the Tribunal that this led to him committing crimes.
[17] Exhibit 1, G6, Attachment E, p 108 and Attachment F, p 110.
On 17 October 2014, the Applicant again appeared in the Dandenong Children’s Court, this time charged with (1) stealing from a shop; (2) five counts of theft from a motor vehicle; (3) carrying a controlled weapon without excuse; (4) dealing with property suspected of being proceeds of a crime; and (5) seven counts of contravening a conduct condition of bail. For all of this offending, the Applicant was globally sentenced on the basis of the
[18] Exhibit 1, G6, p 43.
non- recording of a conviction and by being released upon entering a good behaviour bond in the amount of $100.[18]
The Applicant told the Tribunal that he was “caught in the moment”. There was no reason for his behaviour other than him trying to fit in. He said that he thought he “was a gangster”.[19]
[19] Transcript, p 26, lines 29-45.
The circumstances of this offending are set out in a report prepared for the Dandenong Children’s Court dated 17 October 2014:
‘“Charges” Theft from motor vehicle x 5, Carry controlled weapon without excuse and Deal property suspected proceed of crime.
According to the police summary, on 27 March 2014 at approximately 11.00pm, [the Applicant] was in the company of [MB] and [DE] and whereby they were walking the residential street between Springvale South and Dingley Village. During this time, [the Applicant] and his co accused have entered five separate vehicles and have stolen several items, these being two wallets, several credit cards, a boat licence, a ladies coin purse, $1500 in cash, IPOD with earphones and a hands free unit.
At approximately 6.45am, [the Applicant] and his co accused were located by police in Dingley Village and transported to Moorabbin Police Station for interview. [The Applicant] had a backpack with numerous stolen items, including a boat licence in the name of [A]. At the Station a further search of [the Applicant] located a folded hunting knife, a men’s wallet and $1200.
Charge: Theft from shop (shopsteal)
According to the police summary, on 27 November 2013, [the Applicant] was in the company of [DG] when they have both stolen a t-shirt each from Dimmeys Dandenong by concealing the t-shirts in their pants. Loss Prevention staff called for Police assistance while keeping observations of [the Applicant] and the co-accused. Police attended a short time later and both males were arrested.
Charges: Contravene a conduct condition of bail x 7
According to the police summary [the Applicant] breached his bail on 30 April 2014, 4 May 2014, 13 May 2014, 17 May 2014, 18 May 2014, 21 May 2014 and 29 May 2014 by not being at his address between 7.00pm and 6.00am.
ATTITUDE TOWARDS CURRENT OFFENCE(S)
[The Applicant] engaged very well with Youth Justice for the duration of the current Deferral period. Attending five of six supervision appointments and engaging to the best of his ability. [The Applicant] presented as a relatively shy in supervision however appeared to be taking his legal circumstances seriously in that he asked numerous questions about his situation and the possible consequences of his offending behaviour. To a degree, [the Applicant] also took responsibility for his involvement in the offending, however denied any knowledge that any aspect of the offences had been planned.
When asked about his feelings about the offences, [the Applicant] sated “I know what I did was wrong and I had no right to take other people’s belongings”.
……
Substance Use:
[The Applicant] reports he does not use illegal substances or consumes alcohol, however stated “I smoke cigarettes when I am stressed”. [The Applicant] reported drugs and alcohol were not a factor in his offending behaviour.’[20]
[Emphasis in original]
[20] Exhibit 2, G13, Attachment P6, pp 809-811.
Between October 2014 and February 2015, the Applicant was involved in his first counselling sessions. He was unable to recall what this was about but thought that it may have concerned drug and alcohol use and anger management. He recalled getting good advice from his Case Manager, but he chose not to listen. His conduct was “mainly about fitting in”. A report dated 3 June 2015 states:
‘[The Applicant] is a 17 year old adolescent, who presents as polite when in the company of the writer. [The Applicant] has a traumatic history, where he has left his mother’s care with his older sister, [MA], her partner and other family members during the war in Sudan, where they relocated to Egypt and then immigrated to Australia in 2005. [The Applicant] has not seen his mother since he was five years of age, however maintains monthly telephone contact. [The Applicant] resides with his older sister, [MA] and her partner, Mr [P] and their children who reside in Endeavour Hills.
Since being placed on a Deferral of Sentence on 1 May 2015, [the Applicant] has attended three of four Youth Justice supervision appointments. [The Applicant] failed to attend one appointment with no valid reason. During supervision, [the Applicant] was willing to discuss his offending behaviour and how his association with negative peers impacts on him. [The Applicant] reports he no longer associates with his co-accused.’[21]
[21] Exhibit 2, G13, Attachment P5, p 806.
On 10 December 2014, the Applicant appeared in the Ringwood Children’s Court, this time charged with theft from a motor vehicle, two charges of obtaining property by deception and attempted theft from a motor vehicle. No conviction was recorded, and he was released on a $100 Good Behaviour Bond.[22]
[22] Exhibit 2, G13, Attachment A, p 43, 570.
On 5 June 2015, the Applicant appeared in the Dandenong Children’s Court charged with possession of a prohibited weapon, use of indecent language on rail premises, receiving stolen goods, committing an indictable offence on bail and intentionally causing injury affray. No conviction was recorded, and he was released on a 6 month Youth Supervision Order until 4 December 2015.[23]
[23] Exhibit 2, G13, Attachment A, pp 42-3, 569-570.
The circumstances of this offending are set out in a report prepared for the Dandenong Children’s Court dated 2 June 2015:
‘Charges: Handle/Receive/Retention stolen goods x 1, Commit indictable offence whilst on bail x 1.
According to the police summary, on 13 February 2015, at 3.19am [the Applicant] was with co-accused [RR], [CF], [MB], [DY] and [RL] where they attended at the BP Service Station at Clayton South.
Whilst [the Applicant] was waiting outside the service station, all the co-accused have entered the store and have stolen numerous packets of cigarettes, food and drink. Once [the Applicant] had realised the co-accused were not going to pay for the items he began walking away.
A short time later co-accused [RR] has caught up with [the Applicant] on [redacted] and has offered him a packet of cigarettes which had been stolen from the petrol station.
[The Applicant] and co-accused [RL] were seen by police and arrested in relation to the theft. Both were searched and [the Applicant] produced a packet of cigarettes which he knew was stolen from the petrol station. [The Applicant] has assisted police with the location of the co-accused.
Charges: Possess prohibited weapon without exemption/approval x 1 and Use Indecent language on rail premises.
According to the police summary, on 15 November 2014, [the Applicant] was observed punching a sign in the car park at Noble Park Railway Station by Protective Services Offices. When the Protective Services Officers spoke to [the Applicant] he told them to “Fuck off” and “I don’t give a fuck”. The Protective Services Officers were unable to confirm his identity and he was arrested to determine his identity. During a pat down search a pair of Knuckles Dusters were located in his sock.’[24]
[Our emphasis]
[24] Exhibit 2, G13, Attachment P5, p 803.
When asked about this, he told the Tribunal that he was not sure about how this happened, but he thought that it was after a house party where he had been consuming alcohol and cannabis. He was carrying a knife to protect himself because he had previously been attacked by a group of seven Sudanese youths and had ended up in hospital.[25]
[25] Transcript, p 27, lines 31-47; p 28 lines 1-30.
On 1 September 2015, the Applicant was remanded in custody at Parkville Youth Justice Precinct (‘Parkville’). He was released on bail on 11 September 2015.[26]
[26] Exhibit 2, G13, Attachment P2, p 791.
A report dated 24 September 2015 states:
‘Whilst [the Applicant] was at PYJP, the writer issued [the Applicant] with his Co-ordinator’s Warning. He informed the writer that his biological father was killed in Sudan during the war in which he was a general. [The Applicant] stated that his father died protecting him and that his mother had asked his sister to take him from Sudan as the opposing tribe wanted to kill him as he was the general’s son. [The Applicant] also advised the writer that he was kidnapped and tortured in Nairobi when he was a boy. [The Applicant] stated that he had not relayed this information to workers in the past. During this warning, [the Applicant] did not appear to be emotionally coping with the past trauma of his life and the reality of being remanded in custody. [The Applicant] described feeling “lost” and “broken” and stated that he is struggling to cope with not being able to see his biological mother and process the death of his father. The writer discussed possible future options with [the Applicant] and also ensured custody staff were aware of his presentation. [The Applicant] was seen by the PYJP health team following the writer’s warning. [The Applicant] advised that his sister, [MA], is very supportive of him and understands how he feels due to going through this experience with [the Applicant].’[27]
[27] Ibid, G13, Attachment P4, p 800.

The Applicant gave a very different and far less sinister account of his ‘kidnapping’ in his evidence. He said that he was simply lost for a short while in a sandstorm. He was returned to his family unharmed after a few minutes.[28]
[28] Transcript, p 14 lines 26-47; p 15 lines 1-15.
During his time at Parkville, the Applicant saw psychologists. A report dated 8 December 2015 states:
‘[The Applicant] reports crystal methamphetamine (Ice) use prior to being remanded at PYJP. The writer completed a referral to the Youth Support and Advocacy Service (YSAS), and [the Applicant] attended for an assessment with Youth Outreach Worker, Mr [JH] on 21 September 2015. Since this assessment, [the Applicant] has not engaged with YSAS. However, [the Applicant] reports since being released from custody he has not used any illicit substance. Whilst in custody a referral was made to the Windana Youth Withdrawal Detoxification Unit, with a reported wait list of three to four weeks. On 15 October 2015, [the Applicant] was to attend at Windana Youth Withdrawal Unit to undertake their 10 day detoxification program. Unfortunately [the Applicant] failed to attend this program.
On 10 September 2015, the writer made a referral for psychological counselling to the City of Great Dandenong Youth and Families Counselling Service, and was advised that there was a three to four week waiting period. Due to the serious nature of [the Applicant’s] offending and the concerns regarding his mental stability, Ms [P] discussed his case with the Youth health and Rehabilitation Service (YHaRS), who have two psychologists based at Youth Justice in Dandenong. A formal referral was submitted and was discussed at the allocations meeting held on 30 September 2015. Given their waiting list at the time of referral, [the Applicant’s] first appointment was arranged for 23 October 2015 with Ms [EB], Psychologist. [The Applicant] failed to attend this appointment and since this time Youth Justice have been unable to arrange another appointment due to [the Applicant’s] non attendance.’[29]
[29] Exhibit 2, G13, Attachment P2, p 792.
On 4 November 2015, the Applicant appeared in the Dandenong Magistrates Court charged with possession and use of cannabis and giving a false name and address. He was convicted and discharged.[30]
[30] Ibid, G13, Attachment A, p 569.
On 6 November 2015 the Applicant was involved in an armed robbery.
On 20 November 2015 he was arrested, charged and remanded in custody for that offending. The Applicant told the Tribunal that he was “deep in drug use” at the time.[31] He could not recall why he committed the offence. The crime was committed by a group of youths, at least two of whom were his regular criminal co-offenders. He said that he would not have done it on his own. The offending was planned in advance, although the actual victim was chosen at random. The plan was to steal cars and sell them to raise cash for “clubbing”.[32]
[31] Transcript, p 38, lines 10-20.
[32] Transcript p 39.
A progress report to the Children’s Court dated 8 December 2015 states:
‘On 1 September 2015, [the Applicant] was remanded in custody at the Parkville Youth justice Precinct (PJYP) in relation to the charges before the court and on 11 September 2015 he was released on bail. Prior to being remanded [the Applicant’s] attendance at Youth Justice appointments was very poor with him attending four of twelve scheduled appointments. Due to his poor compliance, a Co-Ordinator’s Warning was schedule on 12 August 2015, which he failed to attend. [The Applicant] failed to attend his next two supervision appointments and a second Co-ordinator’s Warning was issued whilst he was in remand on 2 September 2015.
Since being released from PJYP on 11 September 2015, [the Applicant] has attended five of 12 scheduled Youth Justice supervision appointments. It is noted that three of these Youth Justice supervision appointments were outreach visits to [the Applicant], [The Applicant] has not presented as substance affected and has been polite throughout. Supervision has focused on [the Applicant’s] immediate needs and completing relevant referrals. Since his release from PJYP on 11 September 2015, [the Applicant] was very motivated during supervision and appeared to want to make positive changed in his life, stating that “this really is my only chance”. [The Applicant’s] attendance declined from 15 October 2015. [The Applicant] was aware that should he commit further offending he will dealt with in the Magistrates Court.’[33]
[33] Exhibit 2, G13, Attachment P2, p 791.
On 8 December 2015, the Applicant appeared in the Dandenong Children’s Court on two charges of theft of a motor vehicle. He was convicted on each charge and ordered to be detained in a Youth Justice Centre for three months. He was also convicted of aggravated burglary and intentional damage to property and sentenced to be detained in a Youth Justice Centre for six months. He was also convicted of two charges committing an indictable offence on bail and failure to answer bail. He was sentenced to be detained in a Youth Justice Centre for seven days. He was also convicted of resisting a police officer and sentenced to be detained in a Youth Justice Centre for two months. He was also convicted of criminal damage and sentenced to be detained in a Youth Justice Centre for two months. He was also convicted of acting in an abusive manner in police gaol and fined $500 in the Dandenong Magistrate’s Court. He was also convicted in the Dandenong Magistrates Court for recklessly causing injury and sentenced to be detained in a Youth Training Centre for four months.[34]
[34] Ibid, G13, Attachment A, p 569.
0n 5 February 2016, the Applicant was in the Dandenong Magistrates Court charged with breach of the Youth Supervision Order made on 5 June 2015. The breach was confirmed without conviction and the Order extended to 3 June 2016.[35]
[35] Ibid.
On 25 February 2015, a report from Parkville suggests that the Applicant was progressing well:
‘[The Applicant] enrolled in Parkville College in November, 2015. [The Applicant] has attended every educational class available to him and he has taken part in these classes in a highly respectful and enthusiastic manner. His attendance has been consistent, with a commitment to excel. In every class and in every interaction with teaching staff, [the Applicant] has displayed exemplary conduct and behaviour. His attitude towards his education and his self-improvement has been admirable. [The Applicant] is in the process of completing his foundation VCAL certificate.’[36]
[36] Exhibit 1, G6, Attachment O, p 203.
On 16 April 2016, Dr Nicole Moriarty, clinical psychologist, produced a report concerning the Applicant. In her conclusion, Dr Moriarty says:
‘[The Applicant] was not aware of any familial history of mental health issues. [The Applicant] was oriented to time and place, and did not display any signs of thought disorder during the assessment. Administration of psychometric testing on 11/3/16 identified some mild symptoms of depression, and no symptoms of anxiety. Interestingly, on the depression scale, the only item he scored highly on was that he felt that his life was meaningless. This is most likely related to the trauma he has experienced throughout his life. Psychometric testing on the PTSD (Post Traumatic Stress Disorder) Checklist indicated that he likely to be experiencing PTSD.
……
He also stated that he has always been upset and angry that he hasn’t had an intact family. He recounted not having parents, or other family members at his soccer matches . Feeling angry at mankind in general for wrecking his family, and jealous of peers who have families. He feels as though he’s ‘never had someone to make proud’. However, he is embarrassed by his behaviours, and scared about how upset his mother would be if she was aware of everything he had done. He verbalised that he is now aware that it’s not worth treating others badly, because it doesn’t help him and it’s not morally okay.
…….
[The Applicant] believes that he would not have been involved had be not been substance affected. He stated that because the ice [sic] makes him feel fearless, he didn’t stop to think about consequences. In regards to the gun, he says he had acquired it a few days earlier, and it was the first time in Australia that he had possession of a gun. He would like the opportunity to apologise to the victims.
……
When he first arrived in Australia he believed that it was ok to be violent. He is aware that he was stuck in a cycle. He would get picked on, violence perpetrated against him at times, he would retaliate with violence, people would be scared of him and people would stop picking on him. He believes that throughout his younger years he was taught to fight and defend himself. He displayed remorse about being involved in situations whereby he initiated violence, but will still need to address his antisocial belief that sometimes people ‘deserve it’. After a few years in Australia he started to realise that violence wasn’t condoned, but had made friends with people who did engage in violence. He also felt influenced by others who had more than him. This included parents and intact families, money, and nice houses. He wanted to be accepted by them.
[The Applicant] reported that he is 100% motivated to stay away from crime and substances upon his release. As explained above, he also believes that when he is not substance affected he is aware of the difference between right and wrong, but when using ice[sic] and up for weeks at a time and hallucinating, he loses the ability to make good decisions.
……
[The Applicant] feels very supported by his sister, and other family members. He is also committed to maintaining healthy relationships with people who don’t engage in antisocial behaviour. He is motivated to continue to not abuse substances, and take medication as prescribed and seek professional support for dealing with his mental health issues, and in particular the trauma symptoms, which significantly impact his emotional state.
[The Applicant] presented as a traumatised and sad young man, who has no coping mechanisms for managing his emotional state. These factors combined with his low self esteem, lack of sense of belonging, and confusion around healthy and unhealthy relationships, have led to his substance abuse, and vulnerability in his adolescence. He has lacked the foundations of managing life in a prosocial manner. Utilising instead antisocial mechanisms that have been modelled for him.
I believe that his current situation has provided him with insight, and motivation to do things differently. I believe that professional support in relation to his mental health and substance abusers will be pertinent to his rehabilitation. Throughout his assessment his insight, empathy, remorse indicated a desire to change. Furthermore, his attendance at counselling at [name of youth justice centre redacted ], commencement of an antidepressant and planning around his future that he is able to make prosocial changes if supported professionally. Whilst custody has given him a wake up call, I believe that overall his success will be determined by his own changes, but also on being in the community, feeling like he belongs somewhere and being in healthy relationships.’[37]
[Our emphasis]
[37] Exhibit 2, G13, Attachment Q, pp 815-821.
On 17 May 2016, the Applicant appeared in the Melbourne County Court charged with armed robbery and carrying a firearm. He was sentenced to 16 months detention in a Youth Justice Centre.[38]
[38] Ibid, G13, Attachment A, p 569.
The sentencing remarks of Judge Taft describe the offending as follows:
‘[The Applicant], you are only 19 years old but have already accumulated a significant criminal record over the last three years. On this occasion, you have pleaded guilty to one charge of armed robbery and a second charge of being a prohibited person carrying a firearm.
The details of your offending can be summarised. They are more fully described in a prosecution opening which has been tendered as Exhibit A.
At the time you offended you were 18. On 5 November 2015, [SN] and [DS] were returning home in the early hours of the morning after leaving a club. You and your co-offenders were in a stolen BMW. You stalked [SN’s] car and ultimately rammed his Ford sedan from behind. [SN] and [DS] walked towards the BMW and said “What the fuck are you doing?”. You and two others left the BMW and walked up to [SN] and pointed a sawn-off shotgun at his head. [SN] feared for his life when he was ordered to hand over his keys. [SN] and [DS] ran for safety as their car was driven away. [SN] had left his wallet, passport, iPhone and other possessions in the car.
Shortly afterwards police observed the stolen Ford sedan travelling at great speed on Cranbourne Road. It was followed by the BMW.
You were arrested two weeks later and interviewed at Narre Warren Police Station. You admitted that you had been picked up on the evening of 5 November 2015 in a white BMW knowing that it was a stolen vehicle. You conceded that you were armed with a single barrel shotgun and said that you had purchased the gun two days earlier after paying $800 plus an 8-ball of Ice. You claimed that you had the gun for your protection. You stated that the victim’s car was chosen at random.
During the course of the interview you admitted to wearing a mask with a smiley face when the offending occurred. You acknowledged that the victims would have been traumatised but said that the gun was not loaded. You stated that you had been drinking a great deal.
……
Your criminal record discloses that on 23 August 2013 you appeared at the Dandenong Children’s Court for robbery and attempted robbery. On 17 October 2014 you appeared in court for multiple thefts from motor vehicles, carrying a controlled weapon without excuse, dealing with property suspected of being the proceeds of crime and other offended. You again appeared in the Children’s Court on 10 December 2014 and 5 June 2015. On the latter occasion, you were released on a Youth Supervision Order for a period of six months in respect of a number of charges, including possession of a prohibited weapon, dishonesty offences, intentionally causing injury and affray. Subsequently, you committed the aggravated burglary which founds your current sentence. It is apparent that the scale and frequency of your offending is escalating.
I consider that your offending is serious and alarming. The hijacking and robbery of a Ford sedan was purposeful and involved a significant degree of premeditation. You were in company. You were armed with a firearm and terrified the victims. You were disguised. Your offending is in no way excused or diminished by your use of Ice and alcohol. You engaged in a serious armed robbery and the only matter left to chance was the selection of the target vehicle. I entirely accept that your formative years have been wretched. That however does not excuse your violent conduct. As I have previously remarked, having been exposed to violence you should be the last person to inflict violence upon others.’[39]
[Our emphasis]
[39] Ibid, G13, Attachment C, pp 593-600.
The Applicant gave exculpatory evidence to the Tribunal which was at odds with the findings of the sentencing Judge. In particular, he denied that the shotgun was sawn off and that he ever pointed it at the victims. This is a material difference. It demonstrates a lack of full acceptance of his criminal conduct.[40] He said that he was on Ice and had been drinking at the time. He also said that he remembered feeling violent and that Ice makes him violent.[41] He also said that his memory of the events was patchy.
[40] Transcript, p 49, lines 1-14.
[41] Transcript, p 42, lines 7-14.
On 7 July 2016, the Applicant’s humanitarian visa was cancelled under s 501(3A) of the Act.
On 3 August 2016, the Applicant made representations seeking revocation of the cancellation decision.[42]
[42] Exhibit 1, G6, Attachment D1, pp 77-89 and Attachment D2, pp 90-106.
On 19 July 2016, the Applicant was convicted of two charges of theft of a motor vehicle and sentenced to 30 days in a Youth Detention Centre on each charge.[43]
[43] Exhibit 2, G13, Attachment A, p 569.
In 2017, the Applicant and other offenders were involved in a riot at the [name of youth justice centre redacted] . The circumstances are set out in the record of proceedings on 31 March 2017 as follows:
‘…
PROSECUTOR: The accused in this matter is a 19-year-old male who’s currently undergoing sentence in the [ name of youth justice centre redacted] where he is housed in the [location redacted]. On [date redacted], at approximately 2.15pm, a riot occurred at the [ name of youth justice centre redacted] resulting in the escape of 18 offenders. The accused was in the company of 11 other clients from the [location redacted] where they were in the exercise yard of the [location redacted] who refused to return to their rooms as part of an operational lockdown of the centre.
During this time, the accused and his co-accused, [F], [O], [L] and [B] and six other clients remained in the exercise yard where they all continued to behave in an unruly and riotous manner whilst confined in the yard.
HIS HONOUR: Just to interrupt, that summary says 2016 but in fact it was this year, 2017.
PROSECUTOR: Sorry, 2017, correct.
HIS HONOUR: Sorry, go on.
PROSECUTOR: The (indistinct) repeatedly kicking windows and doors of the building and the barbecue in the yard. The co-offenders then begun to damage a section of the roof in the building known as the A wing by hooking a jumper to the roof on the flashing and attempted to pull lit down causing a hole in the roof. CCTV showed the co-offender in possession of an iPad whilst this was occurring which was broken by throwing it at the door of the building.
After the iPad is dismantled by [the Applicant] before the co-offender [O] has taken possession of the dismantled iPad. [o] and [L] have then identified that the iPad can be used as an incensory device. At this stage, [O] and [L] have then gathered discarded rubbish in the exercise yard and [L] falls and the other clients come and hep as they are starting a fire.
At 3.50pm, [B] and co-accused [L], [F] and [O] gathered further rubbish and they observed on CCTV footage the crowd around the corner in the yard against the A wing building where the rubbish was ignited by [O] who had dismantled the iPad in his possession.
Once the fire is going, the co-accused commenced adding clothing and further rubbish to the fire. [F] then adds another clothing item to the fire. At 3.53pm [O] picked up one of the burning clothing items and carries it over the entrance to the door of the A wing and places the jumper against the door. The co-offender, [F], then uses his foot to push the fire into the door and then provides [O] with another jumper.
At 3.54pm, [L] adds another jumper to the fire before offender [B] then throws another jumper on the fire which has engulfed the security door to the building. [O] and [L] and [the Applicant] continue to add further rubbish and clothing items before [O] then carries some of the ignited clothing to one of the tables in the exercise yard causing scorched marks to the table top.
HIS HONOUR: Could I stop you there, that apart from his initially dismantling the iPad is the first mention of his involvement. Is that right? He’s not –
PROSECUTOR: I wouldn’t say he’s an instigator at all.
HIS HONOUR: He’s not the instigator, fair enough, okay, I thought it was important to clarify that, thank you, go on.
PROSECUTOR: The fires burned for approximately 20 minutes before it self-extinguished at approximately 4.18pm. as a result of the fire, the accused and co-accused caused extensive damage to the electronic security door on the A wing of the [location redacted] as well as damage to the wall of the building and the exercise yard table. Co-accused [L] and [O], also caused damage to the roof of the building by ripping down external flashing from the roof of the building.’[44]
[Our emphasis]
[44] Ibid, G13, Attachment B, pp 572-574.

On 4 May 2017, the Applicant was convicted of an arson offence in the Melbourne County Court and sentenced to three months’ imprisonment.
The Applicant told the Tribunal that he had nothing to do with the riot. He said that he did nothing wrong. He said that he was charged and convicted just to “set an example”.[45]
[45] Transcript p 51, lines 1-47.
It was put to the Applicant during cross-examination that there were at least seven occasions on which immigration detention records note him as having been detected throwing packages to other detainees or picking up packages. The Applicant said that this was just trading cigarettes with other prisoners. This behaviour is not permitted, though not necessarily serious in and of itself.[46]
[46] Transcript p 55 lines 28-47; p 56.
On 27 March 2018, the Applicant applied for a Protection (Class XA) visa.[47]
[47] Exhibit 2, G13, Attachment S, p 823.
On 21 April 2020, the Applicant was involved in an incident in the detention centre.[48]
[48] Ibid, G13, Attachment E, pp 617-621.
On 14 April 2020, the Applicant was involved in an incident in the detention centre.[49]
[49] Ibid, G13, Attachment F, pp 622-624.
On 24 July 2020, the Applicant was given notice by the Respondent’s department of an intention to refuse his application for a protection visa.[50]
[50] Ibid, G13, Attachment S, p 823.
On 2 November 2020, illicit drugs were seized which were posted to the Applicant at the Christmas Island detention centre. A Seizure Notice from Australian Border Force states:
‘The following goods were seized on the ground that an authorised person reasonably suspects the Goods are special forfeited goods as defined in section 183UA of the Customs Act 1901.
.25 x (Other) Prohibited Imports > Schedule 4 Drugs > Buprenorphine > Strips, regulated under Customs (Prohibited Imports) Regulations 1956.’[51]
[51] Ibid, G13, Attachment X1, pp 864-865.
The Applicant denied any knowledge of the drugs in a statement dated 17 December 2020. The Applicant stated:
‘I do not know why these goods were addressed to me. I have never tried to order a prohibited item whilst I have been in detention, I have never asked anyone to order a prohibited item for me whilst I have been in detention. I have never been asked by anyone in detention to order a prohibited item for them.’[52]
[52] Ibid, G13, Attachment X3, p 869.
A detention centre report dated 5 April 2022 states:
‘This incident is being created by Acting Facility Operations Manager [PR] on the 1st of April 2022.
At approximately 15:50hrs Detainee Service Officer (DSO [KV] witnesses detainee [EN] on the phone walking towards the left side of the north side of the Green 1 compound gate, Mr [EN] was met with [the Applicant] from Blue one compound witnessed them preform a fence pass.
As Mr [EN] was walking away from the interaction using camera 123 zoomed in, DSO [KV] witnesses [EN] holding white strips in his hand.
Mr [EN] then proceeded to room B3 before walking to the dorms and his own room at approximately 16:05hrs.’[53]
[53] Exhibit 10, G15, p 989.
The Applicant denied that this was contraband.[54]
[54] Transcript, p 57, lines 6-47.
On 4 May 2022, the Applicant was found to be owed protection by reason of his South Sudanese citizenship.[55]
[55] Exhibit 1, G26, p 483.
A detention centre report dated 24 May 2022 states:
‘On Tuesday 24 May 2022 at approximately 0947 hours Detainee Services Officer (DSO) [JS] not on portal (NOP) escorted air-con contractor to repair the air conditioning unit in Blue One compound, B-Block Room 5, occupied by detainees [the Applicant] and [MP].
When the service of the air-con was completed and the DSO [JS] had escorted the air-con contractor into the breezeway where the air-con contractor had reported to DSO [JS] a contraband what appears to be a make shift shiv measuring at 23 cm with sticky tape at the end of the handle.
DSO [JS] escorted the contractor back into the room where by he had showed DSO [JS] the placement of the contraband when he found it. DSO [JS] reported to [OO] A/FOM [J] at about 10:27 hours.
At about 10:45 hours [OO] was onsite to collect the make shift shiv and to be brief by DSO [JS].
At about 10:55 hours [OO] spoke with both [the Applicant] and [MP] to advise them of what was found an whether they would take ownership of the makeshift shiv to which both detainees [the Applicant] and [MP] declined the ownership of the makeshift shiv stating it was before they had moved in. [OO] informed them of the process and that both detainees will be placed on the incident report and will get 10 incentive accumulation points, both detainees, [the Applicant] and [MP] were not happy about their points been taken away. [OO] advised both detainee [the Applicant] and [MP] of the process to fill out a detainee request form to speak to the Residential Manager regarding this matter.
Photo evidence completed and attached to the incident report of the makeshift shiv placed in sharps container and placed in sealed evidence bag 2079209.
Evidence bag 2079209 handed to Intel Officer [DT].’[56]
[56] Ibid, G15, p 986.
The Applicant denied that this was his property. He did not know anything about it until it was found.[57]
[57] Transcript, p 60, lines 29-47; p 61 lines 1-15.
The Applicant has most of his close family in Australia. This includes his sister MA and her husband KP, three other sisters and a brother. He also has five nieces and a nephew living in Australia. These children are all presently minors aged between 10 and 17.[58]
[58] Exhibit 1, G6, Attachment D1, p 84 and Attachment D2, p 98.
The Applicant also says that he has seven uncles or aunts and 14 cousins in Australia, although their names and ages are not specified.[59]
[59] Ibid, G6, Attachment D2, p 101.
The Applicant told the Hearing he has developed a relationship with a woman in Brisbane who he met online. He hopes that they can get together if he is released.[60] He would like to have children. If he were to be released, he would try to get an apartment of his own and get a job. He says that a friend has offered him work. He would like to get a trade like bricklaying or work in construction.[61]
[60] Transcript p 78.
[61] Transcript p 69.
In general, his plans upon release are rather vague and undeveloped. There is certainly no clear plan for ongoing treatment or support in the community. This is a cause for some concern as it may impact on his risk of reoffending.
The Applicant has a history of drug and alcohol abuse. There is a clear connection between substance abuse and his offending. He acknowledged this.[62] His capacity to remain abstinent has not been tested in the community. He said that he would not return to drug use if he were released to the community.[63] This has not been tested in the community and there are at least questions about continuing drug connections in detention.
[62] Transcript p 80, lines 5-17.
[63] Transcript p 80, lines 21-31.
The Applicant has been diagnosed as suffering from Post Traumatic Stress Disorder (‘PTSD’). He has been taking anti-depressive medication (mirtazapine) for some years. There is little evidence regarding his mental health historically. His current and prospective condition was not the subject of any expert evidence.
The Applicant says that he now has no connection with South Sudan.
The Applicant has an extensive criminal history.[64] A copy of his record of convictions relevantly appears in the material.
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[65]
[65] 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, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether to refuse or cancel a non-citizen’s 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 Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a 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 five 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 strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
We note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection at [23]:[66]
‘…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 99] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 99] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 99] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[67]
[66] [2018] FCA 594.
[67] Ibid [23].
OFFENDING HISTORY
The Applicant’s offending as a juvenile commenced in August 2013 and continued until December 2015. He commenced offending as an adult in January 2015 and this continued until May 2017. He has not been in the community since. In total, as both a juvenile and as an adult, the Applicant has committed some 46 offences that were dealt with at 10 separate sentencing episodes. It is an offending history that, in sentencing terms, runs from August 2013 to May 2017.
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. We will now address these considerations.
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.
To our minds, the nature and circumstances of the Applicant’s conviction for armed robbery must be found to be extremely serious offending. As noted by the sentencing Judge, the impact of this offending on the victim would have been “traumatising”.[68] This offence was premeditated and involved the use of a firearm and a mask. The crime was committed in the company of regular criminal co-offenders. This was not the only offence committed by the Applicant involving the possession of prohibited weapons. This conduct is patently violent and squarely falls within the ambit of this sub-paragraph (a) of paragraph 8.1.1(1) of the Direction. The carriage, possession and use of weapons, particularly in the context of premeditated offending against an innocent member of the community, is totally unacceptable under any circumstances. He has also been involved in arson and burglary.
[68] Exhibit 1, p 68 at [6].
This paragraph 8.1.1(1)(a) therefore safely grounds a finding that the nature of the Applicant’s offending has been ‘very serious’. We so find.
Sub-paragraph (b) of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. The Applicant has not committed any offence in the realm of causing another person to become a party to a forced marriage,[69] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[70] or in relation to any crime committed during the Applicant’s time in immigration detention.[71]
[69] Paragraph 8.1.1(1)(b)(i) of the Direction.
[70] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[71] Paragraph 8.1.1(1)(b)(iv) of the Direction.
With particular reference to sub-paragraph 8.1.1(1)(b)(iv), while the material contains evidence of incidents or other reported events involving the Applicant during his time in immigration detention, those incidents do not refer to ‘a crime committed while [the Applicant] was in immigration detention’. Likewise, there is no evidence of the Applicant being involved in any of the escape – type conduct referred to in the balance of this sub – paragraph.
However, in December 2015, the Applicant was convicted for ‘resist police officer’. As such, this is offending that falls squarely within the ambit of paragraph 8.1.1(1)(b)(ii) because it was offending committed against a government official in the performance of their duties. We make a similar finding in relation to the Applicants conviction, also, in December 2015, for ‘act in an abusive manner in police gaol’.
The chapeau to paragraph 8.1.1(1)(b) stipulates that conduct of the type described in its four constituent sub-paragraphs is considered to be serious by the Australian Government and its community. We are satisfied that the Applicant’s two abovementioned convictions do militate a finding that the totality of his unlawful conduct in this country has been, at the very least, ‘serious’ and more likely ‘very serious’.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of sentences imposed for crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) of the Direction), to have regard to the remaining 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.[72]
On 17 May 2016, the Applicant was sentenced to a custodial term of 16 months to be served in juvenile detention. This was for the Applicant’s abovementioned armed robbery offending. A custodial term is particularly serious in the case of a youth offender. Every effort is usually made not to sentence a youth to a term of detention.[73] There is nothing to cavil with the finding that this conduct is captured by sub-paragraph 8.1.1(1)(c) and, as such, the 16 month sentence imposed on the Applicant strongly militates in favour of a finding that his offending has been of at least serious, more likely very serious, nature.
[72] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[73] See s 362(1) of the Children, Youth and Families Act 2005 (Vic) which outlines the considerations that must be taken into account when sentencing a child (where a child is defined as a child as someone aged 10 to 17 at the time of the alleged offence and aged under 19 when proceedings begin); See also R v Pham & Ly (1991) 55 A Crim R 128.as per Gleeson CJ and Hunt J [135] ; See also R v JR (A Juvenile) [2022] NSWDC 618 [46].

Sub-paragraph (d) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. This applicant has convictions for 46 offences that were dealt with at 10 separate sentencing episodes. It is a criminal history that runs for just short of four years. This equates to the commission of 11-12 offences across a four year sentencing period. He has found himself before lawful authority for sentencing on 10 occasions across that four year sentencing period. We are satisfied (and find) that the Applicant’s offending has been frequent.
Does the offending betray a trend of increasing seriousness? An initial observation is that the Applicant’s offending appears to be getting more serious as he gets older. A perhaps more accurate observation is to compare the nature of the offences for the first two thirds of his offending history to the final third. In the final third, it can be readily seen that his offending graduates to a significantly higher level of risk and danger to its victims. In the 46 numbered sequence of his offences, the armed robbery conviction (sentenced by 16 months of custodial time in youth detention) and the conviction for arson (sentenced by three months imprisonment as an adult) are, respectively, the 43^rd and 46^th convicted offences in the total sequence of 46 convictions. We are satisfied (and find) that this Applicant’s offending does demonstrate a trend of increasing seriousness.
Therefore, it can be safely found that the Applicant’s offending has been frequent and that it betrays a trend of increasing seriousness. This sub-paragraph 8.1.1(1)(d) militates in favour of a finding that the nature of the Applicant’s offending has been at least of a ‘serious’ nature, more likely ‘very serious’.
Sub-paragraph (e) to our minds, the Applicant’s pattern of repeated offending reveals a number of culminative effects. First, he does not appear to have experienced any deterrent effect from the progressively-applied nature of the sentencing regime imposed on him throughout the course of his offending. As mentioned earlier, the Applicant (1) has convictions for the commission of some 46 offences and (2) his offending history (in terms of sentencing) runs from August 2013 to May 2017.The first 20 of his convictions entirely involved the imposition of non-custodial terms. There followed the imposition of respective custodial terms in youth detention for the period of his commission of his 21^st to his 33^rd offences. This offending was respectively punished by the imposition of relatively short custodial terms in youth detention ranging from seven days to 6 months.
During the phase running from commission of his 33^rd offence to his 46^th offence, the Applicant received his abovementioned 16-month custodial sentence for armed robbery. He also received a three-month term of imprisonment - as an adult - consequent upon his conviction for arson. It is plain that the Applicant’s failure to experience any deterrent effect from previously – applied sentences does constitute a culminative effect of his repeated offending.
Second, the Applicant has a demonstrated pattern of failing to observe the terms and conditions of lawfully made orders compelling him to do or refrain from doing something. On seven occasions, he has contravened a condition of his bail. On two occasions, he has failed to answer bail. On four occasions, he has committed an indictable offence while on bail. On one occasion, he has breached a youth supervision order. It can therefore be safely found that this Applicant has not formed or developed any measure of respect and deference towards the lawful authority governing the community back into which he now seeks re–admission. This lack of respect for the laws of Australia is a cumulative effect of his repeated offending.
Third, this Applicant’s offending has, without question, consumed more than its fair share of the community’s law – enforcement, judicial sentencing and ancillary resources. We have already noted the extent to which his offending has troubled the police and the courts. But these are not the only resources of the community the Applicant’s unlawful conduct has consumed. The material contains a plethora of reports from experts and other people for the purpose of addressing and moderating the Applicant’s conduct. It seems to us that the Australian community has done its best to deal with and ameliorate the Applicant’s unlawful conduct. He has abjectly failed to reciprocate the community’s goodwill.
We are therefore satisfied that this sub paragraph 8.1.1(1)(e) militates in favour of a finding that the nature of the Applicant’s offending has been at least of a ‘serious’ nature, more likely ‘very serious’.
Sub-paragraph (f):we have earlier referred to the Applicant’s movement history in and out of Australia.[74] He first came here in December 2005 and has never left Australia. His first conviction was in August 2013. There is therefore no possibility of the Applicant providing false or misleading information to the Department in any incoming passenger card about any of his past offending. Further, we are not aware of the material otherwise demonstrating that the Applicant failed to disclose his prior criminal offending in any other document or paradigm. This paragraph should be put to one side and rendered neutral.
[74] [1] of these Reasons.
Sub-paragraph (g): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to 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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour) There is no evidence of any warnings of the type contemplated by this sub – paragraph. It should be put to one side and rendered neutral for present purposes.
Sub-paragraph (h): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia. There is no evidence of any overseas offending by this Applicant. This consideration should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
We have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead us to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
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 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 posited 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(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
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.[75]
[75] Paragraph 8.1.2(1) of the Direction.
We have found that the totality of the Applicant’s offending has been of a ‘very serious’ nature. This is certainly the case when one has regard to the first two thirds of his offending history, in terms of convictions. However, his offences of armed robbery and arson in the latter stages of his offending history raise the nature of his offending to one of ‘extreme seriousness’. Were he to re – commit any of his ‘very serious’ offences, the public would suffer palpable harm in the form of loss and damage to property as well as physical and emotional harm.
Were he to re–commit any of his ‘extremely serious’ offending as per his conviction for armed robbery and arson, it is not at all a stretch of the evidence to suggest (and find) that the harm resulting from such offending could have catastrophic consequences. Overall, we are satisfied that that if this Applicant were to re-commit any of his past offences, there would follow very serious physical, psychological and, quite conceivably, catastrophic harm to a victim(s). Any re-commission of the Applicant’s ‘extremely serious’ offending and the harm that it would cause would be, to our minds, so serious that any risk that it may be repeated would be unacceptable. We so find.
Likelihood of engaging in further criminal or other serious conduct
In spite of his past expressions of remorse and claims of insight into his offending history, he has reoffended.[76] He has offended in prison, including being involved in arson. In detention, he has raised suspicions of misconduct. He has not actively engaged with rehabilitation opportunities. He has not been tested by living in the community since late 2015. He told the Tribunal that he “didn’t see much point in counselling on the outside”, although if he felt he needed it, he could go to his GP to seek help.[77] His denial of findings made by the sentencing Judge is serious.
[76] Exhibit 1, G6, Attachment W, p 246.
[77] Transcript p 68, lines 23 – 39.
He acknowledged a link between substance abuse and offending. He says that he has seen the error of his ways and will not return to substance abuse. While the Applicant may now make such promises, the overall tenor of his evidence only gives rise to a limited level of confidence that he can achieve this goal. If he were to relapse, the probability of him reoffending would be high.
The independent clinical evidence relating to psychopathological factors behind the Applicant’s offending is now well–aged and no longer current. Any evidence about the Applicant’s capacity to overcome and/or address predispositive factors behind offending is his and his alone. There was a self–serving tone of the Applicant being a changed man in the evidence of other witnesses but none of this evidence is clinically derived nor is it at any reliably safe independent distance from the Applicant.
Findings about, and assessment of, recidivist risk
The only logical and safe finding is that the level of the Applicant’s current recidivist risk is incapable of being ascertained to any level of objective certainty. While the Applicant may have attended a number of rehabilitative programmes while removed from the community, his capacity to refrain from substance abuse remains to be tested in the community. There is no independent current / contemporaneous clinical opinion about the Applicant’s prospects of successfully meeting that challenge. We are therefore left with a position of not knowing the Applicant’s level of recidivist risk and we conclude that such risk is now possibly no different to what it was at the time of his most recent removal from the community.
In view of his history, it is the view of the Tribunal that he presents at least a moderate risk of reoffending if he were to be returned to the community. The gravity of his past offending is such that even a small risk of reoffending is unacceptable.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) of the Direction provides:
‘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.’
With specific reference to the mandatory cancellation of the Applicant’s humanitarian visa, we address this sub-paragraph 8.1.2(2)(c) of the Direction out of an abundance of caution and for the sake of completeness. That particular decision does not involve a, “refusal to grant a visa to a non-citizen”. It involves an issue of whether this Tribunal does or does not exercise the discretion conferred by s 501CA(4)(b)(ii) of the Act to determine whether there is another reason why the original mandatory cancellation decision should be revoked. This specific paragraph is not relevant to determination of whether the Applicant’s humanitarian visa status is restored to him.
It is also necessary to address sub–paragraph 8.1.2(2)(c) of the Direction with specific reference to the decision that refused the Applicant’s application for a Protection visa pursuant to s 501(1) of the Act. This refusal decision does involve a “refusal to grant a visa to a non-citizen” and thus, paragraph 8.1.2(2)(c) of the Direction is engaged. It compels three enquiries. First, it involves an enquiry into whether the risk of harm represented by a non-citizen may be affected by the duration and purpose of that non-citizen’s intended stay in Australia. Second, the type of visa being applied for. Third, whether there are strong or compassionate reasons for granting a short-stay visa.
As to the first item, this application involves the Applicant’s intention to be granted a Protection visa. This visa will allow the Applicant to remain in Australia on a more or less indefinite basis. The risk of harm represented by the Applicant consequent upon his right to remain here more or less indefinitely (if granted the Protection visa he seeks) does not, to our minds, speak any more volubly about the extent of his risk of perpetrating harm on the Australian community to any greater extent than the above analysis of his recidivist risk for the purposes of paragraph 8.1.2(2)(b) does.
As to the second item, the type of visa the Applicant has applied for (i.e a Protection visa) does not speak to the harm he does or does not represent to the Australian community and is therefore not relevant to the instant determination. As to the third item, the Direction does not include any componentry around “compassionate reasons” for granting any visa. The visa the Applicant seeks is not a short-stay visa and this third item is therefore irrelevant to the instant determination.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)we have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)we have found that were this Applicant to re-commit any of his ‘very serious’ offences, the public would suffer pulpable harm in the form of loss and damage to property as well as physical and psychological harm;
(c)we have also found that were this Applicant to commit any of his ‘extremely serious’ offending as per his convictions for armed robbery and arson, the harm resulting from such offending could realistically have catastrophic consequences;
(d)overall, we are satisfied that that if this Applicant were to re-commit any of his past offences, there would follow very serious physical, psychological and, quite conceivably, catastrophic harm to a victim(s);
(e)in terms of recidivist risk, we have concluded that the Applicant represents a present recidivist risk that is probably no different to what it was at the time of his most recent removal from the community. We have assessed such risk as ‘moderate’.
Our analysis of the material leads us to a finding that this Primary Consideration 1 confers a ‘very heavy’ level of weight in favour of this Tribunal:
(a)being satisfied that there is not another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa; [78] and
(b)exercising the power to refuse to grant the Protection visa sought by this Applicant.[79]
[78] Pursuant to s 501CA(4)(b)(ii) of the Act.
[79] Pursuant to s 501(1) of the Act.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The 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).
2This 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.
3In 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.
Conclusion: Primary Consideration 2
We agree with the contention of the Respondent that there is no evidence before us about the Applicant’s commission of any family violence.[80] We cannot locate any reference to any such conduct in the material. This Primary Consideration 2 is of neutral weight in relation to any decision about the respective fates of both the Applicant’s previously–held humanitarian visa or the now – sought Protection visa. This Primary Consideration 2 should be put to one side and rendered neutral for present purposes.
[80] Exhibit 5, p 10, para 48.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

We agree with the Respondent’s contention[112] put to us at the Hearing to the effect that it would be appropriate to differentiate between the interests of Child G (on the one hand) and those of the other three minor children of Sister MA – who are all nieces. There is no doubt that all four of these children would have been part of the cohort of children raised by Sister MA after that responsibility devolved to her. There is little or no doubt that the three nieces and Child G would have all been living in the one family unit governed by Sister MA both in Egypt and, more latterly, in Australia. The basis of any differentiation between the interests of Child G and the three nieces derives from Child G’s evidence that he looked towards, and sought inspiration from, the Applicant as a father figure. We are of the view that notwithstanding the Applicant has been away from these minor children for a period now approaching seven and a half years, there is clear evidence of some level of communication between the Applicant and Child G, at least in the 12 months or so. There is little or no evidence about the extent of the Applicant’s connection with the respective children of Sister MG and the sister-in-law T.
[112] See generally, Transcript, p 133, lines 22-42.
Application of factors at 8.4(4) of the Direction to the children of Sister MA
Sub-paragraph (a): any nature and duration of a relationship between the Applicant and these particular minor children is significantly impacted by the reality that he has been physically absent from their lives for a period approaching eight years. Whatever relationship he may have with the minor children of Sister MA, it is certainly non-parental in nature and, without question, there have been very long periods of absence of the Applicant from their lives. The outlier to this reality is the evidence of Child G who speaks of some measure of historical devotion towards the Applicant and an apparent pattern of communication with him over the last 12 months or so. This sub-paragraph carries moderate weight in favour of this Tribunal (1) restoring his humanitarian visa status and/or (2) to not refuse to grant the Protection visa he seeks.
Sub-paragraph (b): to our minds, the evidence points to the Applicant playing (at best) an uncle-type role in the lives of Sister MA’s children. There is no evidence that he has previously played any kind of positive parental role in their lives. He may have given guidance and advice to Child G, but he has not acted in any kind of parental capacity either towards that child or any other of Sister MA’s other children. The further point is this: of Sister MA’s children, Child G turns 18 in barely a month’s time, Child Ny turns 18 in less than three years; Child C turns 18 in five years and Child P turns 18 in seven years. With specific reference to the three nieces, it can be said the Applicant has about 12 years of parenting time left to establish some kind of parental footprint in their lives. The problem with that contention is that he has been out of their lives for almost eight years and has thus had no opportunity to establish any kind of footprint or familiarity in their lives thus far. At best, this sub-paragraph carries moderate weight in favour of this Tribunal (1) restoring his humanitarian visa status and/or (2) to not refuse to grant the Protection visa he seeks.
Sub-paragraph (c): we do not know anything about the impact of the Applicant’s past conduct, nor any potential impact from future conduct, upon any of Sister MA’s children. It suffices to say that there is nothing in the evidence of Sister MA pointing towards any such adverse impact on the four relevant children. Child G talks about having knowledge of the Applicant’s unlawful conduct but there is nothing to suggest that his knowledge in this regard has, in any way, adversely impacted Child G. This sub-paragraph can be safely put to one side and rendered neutral for present purposes.
Sub-paragraph (d): there is little or no evidence about the extent and nature of the communications between the Applicant and the three minor nieces/children of Sister Ma. However, Child G gave evidence of a pattern of non-in-person contact with the Applicant over and about the last 12 months. If the Applicant has so communicated with Child G it seems logical to suggest and find that he would be able to do likewise with the three minor nieces. This sub-paragraph can be safely put to one side and rendered neutral for present purposes.
Sub-paragraph (e): there is nothing to cavil with the finding that Sister MA and her husband primarily parent and otherwise parent and fulfill a parental role in the lives of the four subject children. The outlier to this presumption is Child G who suggests that he has looked up to the Applicant as a father figure due to the absence of his own father who has to work distantly. That sort of contention can only travel so far. Child G’s father lives and works in the same state as him. It is difficult to understand how the Applicant has played a greater parental role than Child G’s own father in circumstances where: (1) the Applicant has been physically removed from the community (and thus the life of Child G) for nearly eight years and (2) Child G’s own father has been in the community (indeed, living in the same state as Child G) and – albeit works away from the family – would nevertheless be available to communicate with Child G as and when required. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (f): we do not know the views of the nieces about any impact on them arising from the Applicant’s removal from their lives for nearly eight years, nor do we know anything from them about any future impact they would experience if this removal were to continue. Child G speaks of some type of role model that the Applicant represents to him but, for the purposes of this Primary Consideration, this apprehension only has currency for the next month or so until Child G turns 18. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (g): there is no evidence before us that any of these four minor children are at risk of being subject to or exposed to any family violence perpetrated by this Applicant. There is likewise no evidence of their abuse or neglect in any of the ways contemplated by this sub-paragraph which is not relevant to the instant determination.
Sub-paragraph (h): there is no evidence that any of the four minor children have been subjected to any of the traumatic circumstances contemplated by this sub-paragraph. It is not relevant to the to the instant determination.
With reference to the respective interests of the four relevant children of sister MA we are of the view that their best interests carry moderate weight in favour of this Tribunal (1) restoring his humanitarian visa status and/or (2) to not refuse to grant the Protection visa he seeks.
Evidence around Child C and Child Z
Sister MG has provided a written statement which dates from April 2017.[113] She did not give oral evidence at the Hearing. In her written statement she says: ‘I have a young daughter, Child C, who often talks about [the Applicant]. [The Applicant] was always very good with her. [The Applicant] always had time for the younger members of our family.’[114] There is no statement and no oral evidence from Sister-in-law T who is the mother of Child Z.
[113] Exhibit 2, pp 784-785.
[114] Ibid, p 784 [7].
Application of factors at 8.4(4) of the Direction to Children C and Z
There is little or no evidence about the nature and duration of any relationship between the Applicant and these two children. At best, we know the Applicant is a known uncle to Child C and that he ‘was always very good with her.’ There have been long periods of absence and very limited meaningful contact between him and these two children.[115] While we know the Applicant has a level of familiarity with Child C, it may also be the case that he has a similar level of familiarity with Child Z. But such familiarity comes nowhere near satisfying us that he is likely to play any positive parental role in their respective futures. As against that there is a cumulative period of about 16 years until both of these children attain the age of 18 years.[116]
[115] Paragraph 8.4(4)(a) of the Direction.
[116] Paragraph 8.4(4)(b) of the Direction.
There is no evidence before us about any impact of the Applicant’s past conduct on these two children, nor is there any evidence about any future impact were he to reoffend.[117] There is evidence that the Applicant has communicated with Child G on a non-in-person basis and there is nothing to suggest that he would not be able to do likewise with Child C and Child Z.[118] It is plain from the evidence that Sister MG and Sister-in-law T (and presumably, their respective partners) already fulfill a parental role in relation to Child C and Z.[119] With the exception of the slight reference to Child C in Sister MG’s statement, we know little or nothing about any views of these two children about any impact on them consequent upon the Applicant’s removal and/or continued physical absence from their lives.[120]
[117] Paragraph 8.4(4)(c) of the Direction.
[118] Paragraph 8.4(4)(d) of the Direction.
[119] Paragraph 8.4(4)(e) of the Direction.
[120] Paragraph 8.4(4)(f) of the Direction.
There is no evidence that either of these two children have been, or are at risk of being, subject to any of the adverse matters described at sub-paragraph 8.4(4)(g) of the Direction. Nor is there evidence of them suffering or experiencing any of the trauma contemplated by paragraph 8.4(4)(h) of the Direction.
With reference to the respective interests of Child C and Child Z we are of the view that their best interests carry slight weight in favour of this Tribunal (1) restoring his humanitarian visa status and/or (2) to not refuse to grant the protection visa he seeks.
Conclusion: Primary Consideration 4
Overall, the cumulative best interests of the six relevant minor children, when analysed through the lens of an application of the relevant sub-paragraphs of 8.4(4) of the Direction, lead us to a finding that this Primary Consideration 4 is of moderate weight in favour of this Tribunal:
(a)being satisfied that there is another reason to revoke the original decision to mandatorily cancel the Applicant’s previously-held humanitarian visa;[121] and
(b)not exercising the power to refuse to grant the Protection visa sought by this Applicant.[122]
[121] Pursuant to s 501CA(4)(b)(ii) of the Act.
[122] Pursuant to s 501(1) of the Act.
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[123] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[124]
[123] Paragraph 8.5(3) of the Direction.
[124] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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:[125]
(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.
[125] Paragraph 8.5(2) of the Direction.
The Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraph (d) by virtue of his respective convictions for ‘resist police officer’[126] and for ‘act in an abusive manor in police gaol.’[127] This means the Australian community expects that the Australian Government can and should cancel this Applicant’s previously held visa and refuse him any subsequent visas.
[126] Convicted in December 2015.
[127] Ibid.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[128]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[129]
(d)The community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[130] and
(f)If a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[128] Paragraph 5.2(4) of the Direction.
[129] Ibid.
[130] Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [166], the term, ‘limited stay visa’ is not defined in the Act. Here, the Applicant in this case held a Class XB Subclass 202 Global Special Humanitarian visa until it was cancelled on 7 July 2016. As well, the Applicant is agitating for the grant of a Protection visa. We are of the view that both of these visa types permit him to remain in Australia indefinitely.[131] We are satisfied that both of these visas are not limited stay visas.[132] Consequently, this sub-paragraph (a) is not applicable to the Applicant.
[131] Regulation 202.511 (in respect of the humanitarian visa) and 866.511 (in respect of the Protection visa) of the Migration Regulations 1994 (Cth).
[132] Walker v Minister for Home Affairs (2020) 171 ALD 37 [28]-[29].
In relation to sub-paragraph (b) of the abovementioned paragraph [166], the Applicant has resided in Australia from December 2005 when he was eight years old. He is currently aged 25 years. He does not have a demonstrated work history in Australia and has not fathered children in this country. That said, whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’ even though it has not, by any measure, been substantial. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [166], we repeat that the Applicant resided in Australia from the age of eight. He is currently 25 years of age. He has resided in Australia since December 2005. He has spent about 70 percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [166] we are of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. The augmenting element to this finding is that, as we have found earlier, he has spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [166], we are not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘extremely serious offending’[133] of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because we are of the view that the Applicant’s ‘extremely serious offending’ conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
[133] In particular, his offending culminating in his convictions for armed robbery and arson, respectively convicted in May 2016 and May 2017.
In relation to sub-paragraph (f) of the abovementioned paragraph [166], we have found that the some of the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(d). Given that particular finding, we are of the view that even strong countervailing considerations in his favour may not assist the Applicant. Therefore, our finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [166], we are of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the (overall) very serious nature of his offending, we are of the view (and we find) that the community expects the Government can and should deny the Applicant a visa to remain here.[134]
Conclusion: Primary Consideration 5
[134] Paragraph 5.2(3) of the Direction.

We are of the view that this Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal:
(a)being satisfied that there is not another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa; [135] and
(b)exercising the power to refuse to grant the Protection visa sought by this Applicant.[136]
OTHER CONSIDERATIONS
[135] Pursuant to s 501CA(4)(b)(ii) of the Act.
[136] Pursuant to s 501(1) of the Act.
Other Consideration (a): Legal consequence of the decision
We agree with the overall tenor of the Respondent’s submissions that the material before the Tribunal confirms that the Applicant has already been found to be owed protection on 4 May 2022.[137] Therefore paragraph 9.1.1 of the Direction is engaged and non-refoulement obligations are engaged in relation to the Applicant.[138] We further agree that the provisions of s 197C(3) of the Act and paragraph 9.1.1 (2) of the Direction are engaged because (1) the Applicant has made a valid application for a Protection visa that has been finally determined and (2) a protection finding has been made with respect to the Applicant’s country of nationality. We are of the view that s 197C(3) applies to the instant facts regardless of whether or not either of the two visas have been refused and/or cancelled. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been made by the Applicant.
[137] See generally, Exhibit 5, p 12, [62]-[64].
[138] Paragraph 9.1.1(1) of the Direction.
Bearing in mind the protection finding made on 4 May 2022, were this Tribunal to not restore the Applicant’s humanitarian visa status or, in the alternative, were to exercise its discretion to refuse the Protection visa, the Applicant would not be removed to South Sudan. The consequence for the Applicant would be that he would remain in detention with no fixed end date. This, in turn, leads us to a specific legal consequence of the combined effect of the Applicant not succeeding in securing either visa, that being: indefinite detention.
Indefinite detention in the context of this case
It is necessary for this Tribunal to take into account any legal consequence arising from its respective decisions relating to each of the humanitarian visa and Protection visa on the assumption that both outcomes are adverse for the Applicant. One specific consequence of such an outcome could quite likely involve the Applicant’s prolonged or indefinite detention. We regard this issue as a legal consequence of this Tribunal’s decisions in relation to both visas being adverse to the Applicant.[139] Section 189 of the Act provides that a non-revocation outcome (in relation to the humanitarian visa[140]) would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a non-revocation outcome[141] in this application[142] could very well extend the Applicant’s time in an immigration detention facility.
[139] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].
[140] With the further assumption that this Tribunal does not grant this Applicant a Protection visa.
[141] Ibid.
[142] That is, proceedings numbered 2023/0931 & 2023/0933.
Were this Tribunal to affirm the non-revocation decision under review and not grant the Applicant a Protection visa, the likely reality will be that he will remain in immigration detention until another event ends that detention. In terms of such an ‘event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
While it may be found that (1) a possible outcome for the Applicant from these applications is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (a) is impacted by a couple of factors. First, as stated in paragraph 9.1.1 (3) of the Direction, the Applicant is precluded from again applying for a Protection visa while he is in the migration zone by virtue of s 48A of the Act. This difficulty may be obviated if the Respondent Minister makes a determination, pursuant to s 48B of the Act, that the bar in s 48A does not apply to the Applicant.
Second, given that a protection finding has been made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·
pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of

s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
Third, as outlined earlier, protection findings have already been made in relation to this Applicant. Therefore, were this Tribunal to affirm the non-revocation decision and refuse to grant the Applicant a Protection visa, he would most likely remain in detention until:
·one of the events in s 197C(3)(c) occurs; or
·the Minister exercises their personal powers to grant another visa to the Applicant; or
·the Minister makes a resident determination in respect of the Applicant.
If any of the immediately preceding three dot-pointed items occur, then the Applicant’s time in detention will end. If none of those items occur then it must be accepted that a legal consequence of this Tribunal (1) affirming the non-revocation decision for the humanitarian visa and (2) refusing the grant of a Protection visa, would be that the Applicant will be detained in immigration detention without a fixed endpoint.[143] We are of the view (and we find) that this Other Consideration (a)[144] confers a heavy level of weight in favour of this Tribunal:
(a)being satisfied that there is another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa;[145] and
(b)not exercising the power to refuse to grant the Protection visa sought by this Applicant.[146]
[143] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [123]-[124].
[144] With specific reference to the indefinite detention issue.
[145] Pursuant to s 501CA(4)(b)(ii) of the Act.
[146] Pursuant to s 501(1) of the Act.
We are also mindful of her Honour Justice Jagot’s comments in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[147] to this effect:
‘The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.’[148]
[147] [2022] FCA 878 .
[148] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [42].
Other Consideration (b): Extent of impediments if removed
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.
We agree with and endorse the position of the Respondent which is stated thus:
‘Section 197C(3) of the Act provides that where a protection finding has been made in a person’s favour, then the respondent is not authorised to remove the applicant from Australia to the relevant country unless he so requests. As the applicant was found to be owed protection by Australia on 4 May 2022, he cannot be removed to South Sudan against his wishes.
In these circumstances the applicant does not face the prospect of removal to South Sudan, and this consideration should be assigned neutral weight.’[149]
[149] Exhibit 5, p 13, [68]-[69].
Other Consideration (c): Impact on victims
There is no contemporaneous evidence from any victim pointing to any impact these respective decisions may have on any of the Applicant’s victims. We agree with and endorse the position of the Respondent in this regard:
‘There is no information before the Tribunal as to the impact of the s 501CA(4)(b)(ii) decision and the s 501(1) decision on the applicant’s victims or their families, and there has therefore not been occasion to afford the applicant procedural fairness by providing such information to him for comment.
This ‘other consideration’ should be assigned neutral weight.’[150]
[150] Ibid, [70]-[71].
Other Consideration (d): Impact on Australian business interests
We agree with and endorse the Respondent’s position on this particular Other Consideration (d):
‘The making of a decision preventing the applicant from returning to the Australian labour market would not significantly compromise the delivery of a major project or an important service in Australia.
The applicant has had limited work experience in Australia; his skills and experience are not such that his unavailability as a potential employee would have an adverse impact on Australian business interests more broadly.
This ‘other consideration’ should be assigned neutral weight.’[151]
[151] Exhibit 5, p 13, [72]-[74].
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequence of decision under s 501 or s 501CA: This other consideration weighs heavily in favour of this Tribunal:
obeing satisfied that there is another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa;[152] and
onot exercising the power to refuse to grant the Protection visa sought by this Applicant.[153]
(b)extent of impediments if removed: is of neutral weight;
(c)impact on victims: is of neutral weight;
(d)the impact on Australian business interests: is of neutral weight.
CONCLUSION
[152] Pursuant to s 501CA(4)(b)(ii) of the Act.
[153] Pursuant to s 501(1) of the Act.
The humanitarian visa
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 we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test. We are not satisfied that there is another reason to revoke the mandatory cancellation.
The Protection visa
As we have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before us, we are of the view that this Tribunal should exercise the power conferred by s 501(1) of the Act to refuse to grant the subject visa to the Applicant.
In reaching these conclusions, we have had regard to the considerations referred to in the Direction. With regard to the weight we have allocated to each of the Primary and Other Considerations, we find as follows:
·Primary Considerations 1 and 5: respectively carry a very heavy level of weight in favour of this Tribunal:
obeing satisfied that there is not another reason to revoke the original decision to mandatorily cancel the Applicant’s previously-held humanitarian visa; [154] and
[154] Pursuant to s 501CA(4)(b)(ii) of the Act.
oexercising the power to refuse to grant the protection visa sought by this Applicant.[155]
[155] Pursuant to s 501(1) of the Act.
·Primary Considerations 3 and 4: respectively carry moderate weight in favour of this Tribunal:
obeing satisfied that there is another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa;[156] and
onot exercising the power to refuse to grant the protection visa sought by this Applicant.[157]
·Each of Primary Consideration 2 and Other Considerations (b)-(d) (inclusive): are either of neutral weight or are not relevant to the determination of either application before us.
·Other Consideration (a): carries a heavy weight in favour of this Tribunal:
obeing satisfied that there is another reason to revoke the original decision to mandatorily cancel the Applicant’s previously - held humanitarian visa;[158] and
onot exercising the power to refuse to grant the protection visa sought by this Applicant.[159]
[156] Pursuant to s 501CA(4)(b)(ii) of the Act.
[157] Pursuant to s 501(1) of the Act.
[158] Pursuant to s 501CA(4)(b)(ii) of the Act.
[159] Pursuant to s 501(1) of the Act.
We are therefore of the view (and we find) that the combined very heavy weights we have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights we have allocated to Primary Considerations 3 and 4 and Other Consideration (a).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal:
(a)affirming the Respondent’s decision dated 15 February 2023 in relation to the humanitarian visa; and
(b)affirming the Respondent’s decision dated 15 February 2023 in relation to the Protection visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal:
(a)affirms the decision made by the delegate of the Respondent dated 15 February 2023 such that there is not another reason why the cancellation of the Applicant’s Class XB subclass 202 Global Special Humanitarian (Permanent) visa should be revoked;[160] and
[160] AAT case reference :2023/0931.
(b)affirms the decision made by the delegate of the Respondent dated 15 February 2023 to exercise the power under section 501(1) of the Act to refuse to grant the Applicant a Protection (Class XA) visa.[161]
[161] AAT case reference: 2023/0933.

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member John Rau SC.

..............[SGD]......................
Associate
Dated: 10 May 2023

Date of hearing: 26 & 27 April 2023

Advocate for the Applicant:

Self-Represented

Solicitor for the Respondent:
Mr David Brown
Australian Government Solicitor

Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

1

Section 501 G-Documents for case 2023/0931 (Cancellation not revoked case) (bookmarked G1 – G7, paged 1-530)

Various

6 March 2023

2

Section 501 G-Documents for case 2023/0933 (Visa refusal case) (bookmarked G8 – G14, paged 531-987)

Various

6 March 2023

3

Applicant’s statement

Undated

17 March 2023

4

Applicant’s updated statement

Undated

17 March 2023

5

Respondent’s Statement of Facts. Issues and Contentions (paged 1-14)

19 April 2023

19 April 2023

6

Letter of support from Ms MA (Applicant’s sister)

20 April 2023

20 April 2023

7

Letter of support from Ter Yoa (Community representative)

20 April 2023

20 April 2023

8

Letter of support from Kenyatta J Dei Wal (Community representative)

20 April 2023

20 April 2023

9

Letter of support from Mr G (Applicant’s nephew)

20 April 2023

20 April 2023

10

Supplementary G-documents from Respondent

Various

24 April 2023

Date of hearing:	26 & 27 April 2023
Advocate for the Applicant:	Self-Represented
Solicitor for the Respondent:	Mr David Brown Australian Government Solicitor

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501 G-Documents for case 2023/0931 (Cancellation not revoked case) (bookmarked G1 – G7, paged 1-530)	Various	6 March 2023
2	Section 501 G-Documents for case 2023/0933 (Visa refusal case) (bookmarked G8 – G14, paged 531-987)	Various	6 March 2023
3	Applicant’s statement	Undated	17 March 2023
4	Applicant’s updated statement	Undated	17 March 2023
5	Respondent’s Statement of Facts. Issues and Contentions (paged 1-14)	19 April 2023	19 April 2023
6	Letter of support from Ms MA (Applicant’s sister)	20 April 2023	20 April 2023
7	Letter of support from Ter Yoa (Community representative)	20 April 2023	20 April 2023
8	Letter of support from Kenyatta J Dei Wal (Community representative)	20 April 2023	20 April 2023
9	Letter of support from Mr G (Applicant’s nephew)	20 April 2023	20 April 2023
10	Supplementary G-documents from Respondent	Various	24 April 2023