KLKN and Minister for Home Affairs (Migration)

[2018] AATA 4603

KLKN and Minister for Home Affairs (Migration) [2018] AATA 4603 (14 December 2018)

Division:GENERAL DIVISION

File Number:2018/5572           

Re:KLKN  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:14 December 2018

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
21 September 2018, received by the Applicant on 27 September 2018, not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

..............................[sgd].........................................

Senior Member Dr M Evans

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to South Sudan – convictions as a juvenile – whether Applicant stateless – two-day rule – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43

Migration Act 1958 (Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s501(3A), s 501(6), s 501(6)(a), s501(7), s 501(7)(c), s 501(7)(d), s 501(7A), s 501CA, s 501CA(4), s 501E, s 501G(1)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth)

The Nationality Act 2011 (South Sudan)

CASES

Afu and Minister for Home Affairs [2018] FCA 1311

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; FCAFC 83

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; FCAFC 96

FLLB and Minister for Home Affairs [2018] AATA 3661

Galuak and Minister for Immigration and Border Protection [2018] AATA 2301

Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378

HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802

NBCM and Minister for Home Affairs [2018] AATA 2387

Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213

QSBL and Minister for Home Affairs [2018] AATA 2074

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

ZTGP and Minister for Home Affairs [2018] AATA 3518

SECONDARY MATERIALS

Direction no. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C

Department of Foreign Affairs and Trade, DFAT Country Information Report: South Sudan

REASONS FOR DECISION

Senior Member Dr M Evans

14 December 2018

BACKGROUND

1. The Applicant is a 24-year-old man who was born in South Sudan. He travelled to Uganda with his aunt, uncle and brother when he was 3 years old (transcript, page 11). From Uganda, he arrived in Australia as a 10-year-old child on 8 September 2004, as the holder of a Class XB Subclass 202 Global Special Humanitarian Visa (the visa) (G21, page 147) with his aunt, uncle and older brother (transcript, page 15).

2. The Applicant’s first offence of “Aggravated Robbery” was committed when he was a juvenile on 29 November 2011 (Exhibit R2, page 9). In total, he committed 11 offences as a juvenile, and a further 22 offences as an adult between 28 June 2012 and 14 December 2016. Both his adult and juvenile criminal histories include, but are not limited to, convictions for violence- related offending (including assault convictions), and breaches of court imposed orders (Exhibit R2, page 5-9).  

3. On 16 January 2018, the Applicant’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act), and he was invited to make representations to the Minister about revocation of the original decision (G4, page 10-13). The Applicant signed to acknowledge receipt of this decision on 16 January 2018 (G5, page 26).

4. The Applicant made a “request for revocation of a mandatory visa cancellation under S501(3A)” in a form dated 16 January 2018 (G14, page 117), which was transmitted to the Department of Home Affairs (the Department) by email on 22 January 2018 (G14, page 116). In this form, he made representations as to why the cancellation decision should be revoked. The representations made by the Applicant were summarised by the delegate as follows (G9, page 36):

   ·     The best interests of his three stepchildren

   ·     His fears of harm to his life and kidnapping if he is removed to his home country

   ·     His remorse for his offending and the efforts he has made towards rehabilitation

   ·     His lengthy residence in Australia of some 14 years

   ·     His contributions to the community through employment and voluntary work

   ·     The presence of family in Australia, including his partner, and

   ·     The hardship he would face on return to his home country.

5. The Department wrote to the Applicant on 23 January 2018, to advise him that they had received his representations and would consider them in due course (G6, page 27).

6. On 29 August 2018, a departmental officer interviewed the Applicant over the telephone whilst he was in immigration detention to obtain further information about his family ties in South Sudan and his ties to Australia (G22, page 148).

7. In a letter dated 30 August 2018 (G7, page 28-29), a case officer of the Department wrote to the Applicant, inviting him to comment on information that they may take into account when making the decision about his visa cancellation.  

8. On 9 September 2018, a handwritten, undated statement by the Applicant was sent by facsimile to the Department in which he made submissions about being remorseful for his offending; that he missed his family and partner; and that it was “too dangerous and scary” to return to South Sudan (G23, page 150-151). He sent a further undated and handwritten statement by facsimile 7 minutes later in which he made further submissions about his intentions to change, his ties to Australia, and his fear of returning to South Sudan (G24, page 152).

9. After considering the Applicant’s representations, in a statement of reasons dated 21 September 2018, a delegate of the Minister decided not to revoke the mandatory cancellation decision of the Applicant’s visa (the Reviewable Decision) (G9, page 34-50).

10. On 25 September 2018, a handwritten, undated statement by the Applicant was sent by facsimile to the Department. In this statement the Applicant requested that his partner be given permission to have information about the Applicant’s immigration status. The Applicant also made representations that he missed his partner and step-children, he was sorry, and that he wanted to be given a second chance (G8, page 31).

11. The Reviewable Decision was communicated to the Applicant in a letter dated

    
    

    27 September 2018 (G9, page 32).

12. In the statement of reasons for the Reviewable Decision, the Minister’s delegate determined that he or she was not satisfied that the Applicant passed the character test, nor was the delegate satisfied that there was another reason why the cancellation decision should be revoked (G9, page 34).

13. On 27 September 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (G2, page 3-4).

14. A decision on the application must be made by the Tribunal within 84 days after the day on which the Applicant was notified of the Reviewable Decision. That is, the Tribunal must make a decision by 20 December 2018. If the Tribunal does not meet this

    
    

    84-day deadline, the Reviewable Decision will be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), pursuant to s 500(6L) of the Migration Act.

    ISSUES

15. The issues for determination by this Tribunal are:

    (a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Ministerial Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 65).

    JURISDICTION

16. This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.

17. As noted above, the Reviewable Decision of 21 September 2018 was communicated to the Applicant on 27 September 2018, and he lodged his application for review on

    
    

    27 September 2018. The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.

18. The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.

    MATERIAL BEFORE THE TRIBUNAL

19. The hearing took place on Monday 3 December 2018. The Applicant was self-represented and appeared in person, accompanied by officers from the Yongah Hill Immigration Detention Centre (Yongah Hill).  

20. The Respondent was represented by Mr Burgess from Sparke Helmore Lawyers, who also appeared in person.

21. The Applicant gave evidence and was cross-examined. Both the Applicant and Mr Burgess made submissions.

22. On 4 October 2018, a Tribunal officer emailed Yongah Hill, advising of the date and time of the case management telephone directions hearing and attaching a pro bono legal representation leaflet.

23. Directions were made by the Tribunal on 11 October 2018, which included a direction that the Applicant file submissions and any further evidence on which he proposed to rely at the hearing, and serve a copy on the Respondent, by 22 November 2018. However, the Applicant did not make any submissions, nor did he submit any evidence, by that date.

24. However, immediately before the hearing, the Tribunal was informed that the Applicant’s partner and his former teacher were present at the Tribunal, and that the Applicant wanted to call them as witnesses.

25. The Respondent’s legal representative submitted that the Respondent opposed the Applicant calling his partner as a witness, on the basis of s 500(6H) of the Migration Act, because a written statement outlining her evidence had not been provided to the Minister at least two business days before the hearing. This is known as the “two-day rule”. However, as the G documents contained a statement from the Applicant’s former teacher (G17, page 133-135), the Respondent did not oppose the teacher giving evidence at the hearing.

26. The two-day rule was considered by the Full Court of the Federal Court in Goldie
    v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]. The Full Court explained:

    The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth).  The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test.  Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

27. On this basis, the Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court, and to hear the evidence of the Applicant’s teacher, but not his partner. The Tribunal was mindful that the Applicant’s partner was likely to give evidence about his relationship with his step-children, which is a primary consideration for the Tribunal. The Tribunal sought to ensure that the Applicant gave evidence about his relationship with the children by asking its own questions of the Applicant, in addition to considering his written submissions in the G documents regarding the children. There were also other relevant materials before the Tribunal obtained under summons from the Western Australia Police, which contained information relevant to the best interests of the children.  

28. The Tribunal admitted the following documents into evidence at the hearing:

    (a)the s 501 documents (G documents) numbered from G1 to G27 (Exhibit R1);

    (b)documents produced under summons from the Western Australia Commissioner of Police comprising 241 pages (Exhibit R2); and

    (c)the Respondent’s Statement of Facts, Issues and Contentions, dated 8 November 2018 (Exhibit R3).

    LEGISLATIVE FRAMEWORK

29. Section 501(3A) of the Migration Act provides that:

    (3A)  The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

30. Section 501(6) of the Migration Act provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)   

    the person has a substantial criminal record (as defined by

    
    

    subsection (7)…

    (Original emphasis.)

31. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:

    (7)  For the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)

    the person has been sentenced to a term of imprisonment of

    
    

    12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…

    (Original emphasis.)

32. Section 501(7A) of the Migration Act provides clarification when a person is sentenced to concurrent sentences of imprisonment:

    (7A) For the purposes of the character test, if a person has been sentenced to

    
    

    2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

33. Section 501CA of the Migration Act further provides:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    (2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

    (3)As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

    (4)The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

    (Original emphasis.)

    MINISTERIAL DIRECTION NO. 65

34. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

35. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”. 

36. On 22 December 2014, the Minister for Immigration and Border Protection made a Direction no. 65 under s 499 of the Migration Act.

37. Paragraph 6.1 of Direction no. 65 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

38. Paragraph 6.2 of Direction no. 65 provides general guidance as follows:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

2. Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:

   (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

   (a)Protection of the Australian community from criminal or other serious conduct;

   (b)The best interests of minor children in Australia;

   (c)Expectations of the Australian community.

3. Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:

   (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   (a)International non-refoulement obligations;

   (b)Strength, nature and duration of ties;

   (c)Impact on Australian business interests;

   (d)Impact on victims;

   (e)Extent of impediments if removed.

4. Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise discretion:

   (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

   (a)…

   (b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

5. Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:

   (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

   (4)Primary considerations should generally be given greater weight than the other considerations.

   (5)One or more primary considerations may outweigh other primary considerations.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

6. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.

7. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act) or if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is
   12 months or more” (s 501(7)(d) of the Migration Act). Further, s 501(7A) states that, “For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.”

8. At the time the Applicant’s visa was cancelled on 16 January 2018 he was serving a full-time sentence of imprisonment at Acacia prison in Western Australia for “Breach of Violence Restraining Order”, two convictions for “Common Assault in Circumstances of Aggravation or racial aggravation” and a conviction for “Unlawfully assault and thereby did bodily harm with circumstances of aggravation”. This sentence of imprisonment was for an effective term of nine months, but was comprised of concurrent terms of imprisonment totalling 24 months. Consequently, the Applicant does not pass the character test

   
   

   (s 501(6)(a) and s 501(7)(d) of the Migration Act).

9. As was also noted by the Delegate of the Minister (G9, page 35), on 2 June 2012 the Applicant was convicted of “Aggravated Robbery” and “Assault Occasioning Bodily Harm” in the Perth Children’s Court, for which he was sentenced to a conditional suspended imprisonment order of 15 months for each offence, suspended for 18 months (Exhibit R2, page 9). Due to these convictions, the Applicant would also not pass the character test

   
   

   (s 501(6)(a) and s 501(7)(c) of the Migration Act).

10. The Tribunal must now consider whether there was “another reason” why the Reviewable Decision should be revoked.

    IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

    First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 65)

11. Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:

    … should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…

12. Decision-makers should also give consideration to the following (paragraph 13.1(2) of Direction no. 65):

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 65)

13. Paragraph 13.1.1(1) of Direction no. 65 further provides:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (c)The sentence imposed by the courts for a crime or crimes;

    (d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (e)The cumulative effect of repeated offending;

    (f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

14. To date, the Applicant has a Court Outcomes History comprising 22 offences as an adult and 12 offences as a juvenile over, approximately, a six year period between 2011 and 2017. This is a total of 34 offences.  

15. The Applicant committed his first offence of “Aggravated Robbery” as a juvenile on

    
    

    29 November 2011. He was convicted of this offence in the Perth Children’s Court on

    
    

    22 June 2012 (Exhibit R2, page 9).

16. His first offences as an adult were two offences of “Give False Personal Details to Police” (committed on 28 June 2012 and 2 November 2012, respectively), and “Escaping from lawful custody” (committed on 2 November 2012), for which he received fines imposed by the Perth Magistrates Court on 31 January 2013 (Exhibit R2, page 7).

17. The Applicant’s most recent convictions include a full-time sentence of imprisonment for “Breach of Violence Restraining Order”, two convictions for “Common Assault in Circumstances of Aggravation or racial Aggravation” and a conviction for “Unlawfully assault and thereby did bodily harm with circumstances of aggravation”. As noted above at paragraph [46], he was sentenced to an effective term of imprisonment of nine months, comprised of concurrent terms of imprisonment totalling 24 months in the Joondalup Magistrates Court on 24 November 2017 (Exhibit R2, page 5).  

18. More specifically, the Applicant’s Adult History for Court – Criminal and Traffic (Exhibit R2, page 5-9) comprises the following offences:

Court & Court Date	Offence Date	Offence	Court Result
Adult offences
Joondalup Magistrates Court 24-NOV-2017	14-DEC-2016	Breach of Bail (Fail to appear soon after).; Bail Act 1982; 51(2)	FINE: $500
21-JUN-2017	Breach of Violence Restraining Order.; Restraining Orders Act 1997; 61(1)	IMPRISONMENT: 3 Months CONCURRENT FROM 23-OCT-2017. - Concurrent
21-JUN-2017	Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Code (WA); 313 (1)(a)	IMPRISONMENT: 6 Months CONCURRENT FROM 23-OCT-2017. - Concurrent
30-MAY-2016	Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Code (WA); 313 (1)(a)	IMPRISONMENT: 6 Months CONCURRENT FROM 23-OCT-2017. - Concurrent
05-JUN-2016	Possess a Prohibited Drug (Cannabis); Misuse of Drugs Act 1981; 6(2)B	FINE: $500
30-MAY-2016	Unlawfully assault and thereby did bodily harm with circumstances of aggravation.; Criminal Code (WA); 312(1)B	IMPRISONMENT: 9 Months CONCURRENT FROM 23-OCT-2017. - Concurrent
28-NOV-2016	03-NOV-2016	Exceed 0.08g alcohol per 100ml of blood; >=0.14g/100ml but <0.15g/100ml; Road Traffic Act 1974; s. 64(1); No M.D.L.; Reading 0.144; Method is Breath	FINE: $750 Mdl Disqualified: 9 mths - Concurrent
03-NOV-2016	No authority to drive – suspended; Road Traffic Act 1974; S. 49(1)(a)&(3)(c); No M.D.L.	Mdl Disqualified: 9 mths – Cumulative FINE: $400
02-NOV-2016	30-OCT-2016	Breach of Violence Restraining Order.; Restraining Orders Act 1997; 61(1)	FINE: $300
30-OCT-2016	Breach of protective bail conditions; Bail Act 1982; 51(2a)	FINE: $300
30-OCT-2016	Give False Personal Details to Police; Criminal Investigation (Identifying People) Act 2002; 16(8)	FINE: $200
19-SEP-2016	26-JUL-2016	Exceed 0.05g alcohol per 100ml of blood; >=0.07g/100ml but <0.08g/100ml; Road Traffic Act 1974; s. 64(1); No M.D.L.; Reading 0.078; Method is Breath	FINE: $600 Mdl Disqualified: 8 mths - Concurrent
26-JUL-2016	Possessed with intent to deceive a licence (sic) or label; Road Traffic Act (Administration) Act 2002; S. 36(2)(f); No M.D.L.	FINE: $300
26-JUL-2016	No authority to drive (never held); Road Traffic Act 1974; S. 49(1)(a); No M.D.L.	Mdl Disqualified: 3 mths – Concurrent FINE: $300
Perth Magistrates Court 12-JAN-2016	05-DEC-2015	Exceed 0.05g alcohol per 100ml of blood; >=0.07g/100ml but <0.08g/100ml; Road Traffic Act 1974; s. 64(1); No M.D.L.; Reading 0.079; Method is Breath	Mdl Disqualified: 3 mths – Concurrent FINE: $250
05-DEC-2015	Provide false or misleading personal details; Road Traffic (Administration) Act 2008; S. 32(4)(b); No M.D.L.	FINE: $300 Mdl Disqualified: 3 mths - Concurrent
05-DEC-2015	No authority to drive (never held); Road Traffic Act 1974; S. 49(1)(a); No M.D.L.	Mdl Disqualified: 3 mths – Concurrent FINE: $250
09-JAN-2016	08-JAN-2016	Breach of Police Order; Restraining Orders Act 1997; 61(2a)	Cond Release Order: 3 Months FROM 09-JAN-2016 $400 UNDERTAKING. - Concurrent
23-JUL-2015	04-JUL-2015	Disorderly behavior in public; Criminal Code (WA); 146	FINE: $600
31-JAN-2013	02-NOV-2012	Escaping from lawful custody; Criminal Code (WA); 146	FINE: $400
28-JUN-2012	Give False Personal Details to Police; Criminal Investigation (Identifying People) Act 2002; 16(8)	FINE: $200
02-NOV-2012	Give False Personal Details to Police; Criminal Investigation (Identifying People) Act 2002; 16(8)	FINE: $200

1. The Applicant’s juvenile history comprises the following offences, which include violent offences, and breaches of court imposed and community based orders:

Court & Court Date	Offence Date	Offence	Court Result
Juvenile offences
Perth Children’s Court 16-SEP-2103	14-DEC-2011	BREACH OF CONDITIONAL SUSPENDED SENT (ORDER OF 26.2.13)	NO FURTH. ORDER: SUSTAIN PREVIOUS ORDER
29-NOV-2011	BREACH OF CONDITIONAL SUSPENDED SENT (ORDER OF 26.2.13)	NO FURTH. ORDER: SUSTAIN PREVIOUS ORDER
23-OCT-2011	BREACH OF ISO (ORDER OF 26.2.13)	NO FURTH. ORDER: SUSTAIN PREVIOUS ORDER
26-FEB-2013	23-OCT-2011	Assault Occasioning Bodily Harm.; Criminal Code (WA); 317(1)	INTENSIVE SUPVSN ORDER: 15 Months CONCURRENT FROM 26-FEB-2013
29-NOV-2011	BREACH OF CONDITIONAL SUSPENDED SENT (ORDER OF)	COND SUSP IMP ORDER: 15 Months CONCURRENT SUSPENDED 15 Months FROM 26-FEB-2013
14-DEC-2011	BREACH OF CONDITIONAL SUSPENDED SENT (ORDER OF 22.6.12)	COND SUSP IMP ORDER: 15 Months CONCURRENT SUSPENDED 15 Months FROM 26-FEB-2013
Person who breaches CRO or community order without reasonable excuse; Sentencing Act 1995; S. 131(1)	Fine: 250 EA CHG
05-NOV-2012	09-DEC-2011	Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a)	SPENT CONVICTION S45 SA NO PUNISH S.46
22-JUN-2012	29-NOV-2011	Aggravated Robbery; Criminal Code (WA); 392(d)	COND SUSP IMP ORDER: 15 Months CONCURRENT SUSPENDED 18 Months FROM 22-JUN-2012
14-DEC-2011	Assault Occasioning Bodily Harm.; Criminal Code (WA); 317(1)	COND SUSP IMP ORDER: 15 Months CONCURRENT SUSPENDED 18 Months FROM 22-JUN-2012
30-DEC-2011	Breach of Bail Undertaking.; Bail Act (WA) 1982; 51(1)	NO PUNISH –S.67: Time spent on remand in custody.

1. In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions involving violence, including two convictions for “Assault Occasioning Bodily Harm” (offence committed in 2011, and sentenced in

   
   

   2012 and 2013) as a juvenile. As noted above, as an adult, the Applicant has two convictions for “Common Assault in Circumstances of Aggravation or racial Aggravation” (offences committed in 2016 and 2017, and sentenced in 2017), and a conviction for “Unlawfully assault and thereby did bodily harm with circumstances of aggravation” (offence committed in 2016, and sentenced in 2017), for which the Applicant received a sentence of imprisonment. The Tribunal also notes a breach of a violence restraining order in 2016 (for which the Applicant received a fine), and the breach of a violence restraining order in 2017 (for which the Applicant received a concurrent term of imprisonment).

2. Applying Direction no. 65, the Tribunal views convictions for violent offences very seriously (paragraph 13.1.1(1)(a) Direction no. 65). The Tribunal also observes that the Applicant’s offending has increased in seriousness, culminating in the 2016 and

   
   

   2017 convictions (paragraph 13.1.1(1)(d) Direction no. 65) and the term of full-time imprisonment commencing in 2017, when previously the Courts had imposed fines and suspended terms of imprisonment.

3. Further details of the serious and violent nature of the Applicant’s offending can be found in relevant Statements of Material Facts prepared by the Western Australia Police. The following excerpt concerns details of the Applicant’s breach of the violence restraining order which was issued by the Perth Magistrates Court on 5 June 2016 (Exhibit R2, page 91):

   The accused was served the Violence Restraining Order on 5 June 2016.

   At 2:10pm on the 21st June 2017, the accused approached the victim within 20 metres thereby breaching the Violence Restraining Order.

   The accused became involved in a verbal altercation with the victim.

   The accused assaulted the victim by grabbing her by the throat with one hand. No medical treatment was required.

4. The following excerpt from a Statement of Material Facts details a domestic violence incident against the Applicant’s partner (Exhibit R2, page 110):

   At about 12:55am on Monday, the 30^th of May 2016 the victim and accused were at the victims (sic) home address…

   The victim was dressing up with a friend and the accused asked the victim if she was going out looking for men. The victim stated she was just freshening up and going to sit in the garage and have a drink.

   The accused became angry and slapped the victim, pushing her to the ground and punching her in the head. The victims (sic) 13 year old daughter was a witness to her Mother being assaulted by the accused and the daughter was also assaulted by the accused.

   The victim ran outside, hid in a bush and called Police. After Police had attended and left the accused re-attended at the house and again slapped the victim, knocked her to the ground and kicked her in the stomach causing immediate pain and discomfort.

   The victim sustained a sore right hand and stomach as a result of the assault.

   The accused was arrested at the victims (sic) house on Sunday the 5^th of June 2016, arrested on suspicion of assault and conveyed to the Warwick Police Station where he participated in an electronically recorded interview during which he denied any involvement in the incident.

   The accused was released on conditional bail and the present charge preferred.

   ACCUSED’S EXPLANATION: ‘I don’t know what you’re talking about.’

1. The following excerpts from a Statement of Material Facts records that, during this domestic violence incident on 30 May 2016, the Applicant also committed a violent offence against the Applicant’s step-daughter, who was 13 years old at the time of the offence (Exhibit R2, page 111):

   At about 12:55am on Monday the 30th of May 2016 the victim and accused were at the victims (sic) home address…

   The accused at the time of the incident was in a family and domestic relationship with the victims (sic) Mother.

   The victim came out of her bedroom and she heard the accused assaulting her Mother. As she came to her Mothers (sic) aid the accused grabbed the victims (sic) hair pulling some of her braids out. Then he pushed her head onto the kitchen worktop 5 - 6 times.

   The victim was then grabbed by her hair and clothes and dragged into the living room where the accused banged her head repeatedly onto the sofa.

   The victim was then placed into a headlock, knocked to the ground and kicked in the stomach causing immediate pain and discomfort. Her head and neck were also dragged along the edge of the glass dining table which caused a cut to the underside of her chin.

   The victims (sic) Mother by this stage had fled outside and was hiding awaiting Police arrival. The victim and her brother and sister found their Mother and waited for Police.

   Once Police had attended and left the accused re-attended at the address and grabbed the victim with both hands and swung her around, as he did this the victim hit her back on the corner of the dining table.

   The victim and her Mother were both assaulted by the accused and both witnessed the assaults on each other.

   As a result of the assault the victim received a cut to her chin and pain and discomfort.

   The accused was arrested at the victims (sic) house on Sunday the 5th of June 2016, arrested on suspicion of assault and conveyed to the Warwick Police Station where he participated in an electronically recorded interview during which he denied any involvement in the incident.

2. When sentencing the Applicant for these domestic violence offences, Her Honour Magistrate Pontifex stated (G11, page 56):

   You pleaded guilty to six offences. Four of those offences are serious offences and one, in particular, is, in my view, particularly serious. That’s where you - we’ve heard the facts of how you assaulted the young daughter of your then partner.

   She was not only assaulted in that manner, as described to the court, but she had also just been exposed to an assault of her mother by you and what happened to that young lass on that day is, I consider, most reprehensible. So the - and we’ve heard - I’ve heard your explanation from it. I accept that you’re remorseful, that you were intoxicated on the day, that you are sorry.

   …

   …my view is that the offending is serious, but the most serious offence was on [the Applicant’s 13 year old step-daughter] on that day.

3. Exhibit R2, which comprises documents received under summons from the Western Australian Police, contains evidence of other allegations of domestic violence related offending by the Applicant, which did not result in convictions.  For example, 72 hour police orders were issued on 23 March 2013, 3 June 2013, 12 October 2013, 5 July 2015, 6 January 2016, and 6 May 2016 (Exhibit R2, page 204-209). The incident which resulted in the issuing of the 72 hour police order on 6 May 2016 was an alleged assault on the Applicant’s step-daughter and was described by police in a Detected Incident Report as follows (Exhibit R2, page 29):

   At 23:40 hours on Friday, 6 May 2016 the POI was issued with a police order which was in force for 72 hours following an incident at the attend address…

   At 0101 hours police received a call stating that the POI had returned to the address in breach of the order.

   The victim states that the POI attended the address and she refused to allow him entry. When she did so he pulled the fly screen damaging it and force the door open causing damage to the door and lock.

   The POI has then taken hold of the complainants (sic) daughter, [name omitted] and pulled her by the hair, pulling her extensions which were weaved into her natural hair out by force before making off from the scene…

   INVESTIGATION OUTCOME

   This matter is filed as insufficient evidence. The victim has refused to give a statement to police about the matter and therefore there was no evidence that the offence took place.

4. The following exchange with the Applicant during cross-examination is also relevant (transcript, page 31-32). It shows that the Applicant admitted to the incident in which he pulled out his 13-year-old step-daughter’s braids, as well it being likely that he committed other domestic violence incidents, and that the offending occurred whilst the Applicant was under the influence of alcohol:

   MR BURGESS:         Well, if I can take you to the next day, 7 May 2016, page 29.  So you were issued with a restraining order, which is at page 204, on 6 May, following the altercation which I just took you to, and that’s at page 204.  Now, page 29 police were called at 1 am, so just over an hour after the first incident, stating that you had returned to the address in breach of the restraining order?  

   APPLICANT:              Yes.

   MR BURGESS:         When you were refused entry you pulled the flyscreen, damaging it, forced the door open, causing damage to the door and lock.  You had then taken hold of [the Applicant’s partner’s] daughter, pulling her by the hair and pulling her extensions, which were weaved into her natural hair, out by force, before making off from the scene.  Now, on that occasion [the Applicant’s partner] refused to give a statement to police again once they arrived.  Do you recall that incident?  

   APPLICANT:              Yes, I did break the flyscreen, yes. 

   MR BURGESS:         Do you deny grabbing her daughter by the hair?  

   APPLICANT:              No.

   MR BURGESS:         You don’t deny it?  

   APPLICANT:              No.

   MR BURGESS:         So that occurred?  

   APPLICANT:              Yes.

   MR BURGESS:         If I can take you to pages 33, that’s a picture of the door?  

   APPLICANT:              Yes.

   MR BURGESS:         And it has a fairly significant break on it, doesn’t it?  

   APPLICANT:              Yes.

   MR BURGESS:         How did that occur?  

   APPLICANT:              Yes.  Yes, I pushed it or kicked it.

   MR BURGESS:         And then pages 34 there’s another photo of the door?  

   APPLICANT:              Yes.

   MR BURGESS:         At page 35, that’s a photo of the broken flyscreen?  

   APPLICANT:              Yes.

   MR BURGESS:         Same with 36 and 37?  

   APPLICANT:              Yes.

   MR BURGESS:         38 - - -?  

   APPLICANT:              Yes.

   MR BURGESS:         - - - and 39 appear to be photos of - is that [the Applicant’s partner’s] eldest daughter?  

   APPLICANT:              Yes.

   MR BURGESS:         And there’s a significant amount of hair that has been pulled out of her head that’s on the ground, on page 39?  

   APPLICANT:              Yes.

   MR BURGESS:         And you accept that you caused that?  

   APPLICANT:              Yes.

   MR BURGESS:         Now, this occurred prior to your - less than a month prior to the assault that I took you to earlier, and on that occasion you said that you hadn’t ever harmed the children, or [the Applicant’s partner].  And that’s not correct, is it?  

   APPLICANT:              To be honest, I couldn’t - I can’t really remember much of this stuff, I will be honest with you, yes.

   MR BURGESS:         Well, is it your evidence that the only times that you harmed the children or [the Applicant’s partner] were the two times that you were convicted for it?  

   APPLICANT:              Yes.

   MR BURGESS:         Well, that’s not true though, is it, because on this occasion you’ve pulled the child’s hair out and you weren’t convicted of that crime, were you, because no charges were pressed?  

   APPLICANT:              To be honest, like I said, most of these times I was drinking, you know, so I can’t really remember most of this stuff.

   MR BURGESS:         Yes?  

   APPLICANT:              Yes.

   MR BURGESS:         But it is the case that you have harmed the children and [the Applicant’s partner] on other occasions than what you have been convicted of, isn’t it?  

   APPLICANT:              Most likely, yes.

5. As referenced in the above exchange, the documents produced under summons by Western Australia Police contain photographs relating to this incident showing a broken door, the broken flyscreen, and the side of the Applicant’s step-daughter’s head with hair missing at the side of her head, and a picture of approximately 10 hair braids on the ground (Exhibit R2, page 33-39).

6. A Detected Incidents Report from the Western Australia Police records a police attendance on 30 July 2017 where the Applicant’s partner stated that the Applicant “had punched her in the face” (Exhibit R2, page 10). A further Detected Incidents Report from the Western Australia Police records a police attendance between 23.00 on 6 March 2017 and 00.05 on 7 March 2017 (Exhibit R2, page 20-21) after they were contacted by the eldest daughter of the Applicant’s partner who reported that the Applicant was at the address and had assaulted her mother. The Report stated (page 21) that:

   Officers… spoke with the Victim who advised that the Poi had shown up this evening yelling and shouting at her. The Victim further disclosed that the Poi had smashed a window, a table and a mirror within the property. The Victim did not disclose that any assaults had taken place on this particular occasion.

   Whilst at the address the Victim further disclosed that the Poi had broken her arm sometime last week resulting in her requiring surgery and the insertion of two metal pin. Officers observed the Victim’s left arm to be in a sling with bruising. The Victim had not previously reported this incident.

   On this occasion the Poi had allegedly entered the Victim’s property via a window and had pinned her down as she attempted to call the Police resulting in the broken arm.

   The Victim initially agreed to provide Police with a formal Statement in relation to the historic Assault, Criminal Damage and Breach of Violence Restraining Order however then refused to do so replying with no comment to every question.

7. The Investigation status of this incident was recorded as follows (Exhibit R2, page 20):

   This matter is cleared, the complainant signed a note book (sic) withdrawal of complaint. Police have on several occasions attempted to assist the complainant but she has continued to be noncompliant and very aggressive towards police.

   The police officer’s notebook entry contains the following statement from the Applicant’s partner (Exhibit R2, page 27-28), (although at the Tribunal hearing the Applicant denied breaking his partner’s arm – see transcript, page 33):

   … On the 7th March 2017 police attended my address… For a Breach of violence restraining order, and damage incident I also disclosed an incident which occurred last week whereby my partner… [the Applicant] assaulted me and broke my arm. I refused to provide a statement to the police, or let them photograph my injuries.

8. Although these incidents did not result in any convictions, the Tribunal has some concerns that the incidents on 21 June 2017 (“Breach of Violence Restraining Order” and “Common Assault in Circumstances of Aggravation or racial Aggravation”) and on 30 May 2016 (“Common Assault in Circumstances of Aggravation or racial Aggravation” and “Unlawfully assault and thereby did bodily harm”), which he was convicted of on 24 November 2017, were not isolated incidents of domestic violence. Indeed, the Applicant admitted himself under cross-examination that they may not have been (see para [65] above).

9. Whilst any violent offences should to be viewed seriously by the Tribunal, the Applicant’s offences involving domestic violence against his partner and 13-year-old step-daughter are particularly concerning. The Tribunal considers these types of offences to be serious, and notes that children are vulnerable members of the community (paragraph 13.1.1(1)(b) of Direction no. 65).

10. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) Deputy President Kendall (now His Honour Judge Kendall) discussed the harms of domestic violence related offending, at [45]:

    The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold: First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

11. The comments of Deputy President Kendall have been applied by this Tribunal in other decisions including QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs [2018] AATA 2387 at [52]-[53].

12. As well as domestic violence, the Applicant has other convictions for violent offending. The following Statement of Material Facts details a further offence committed by the Applicant when he was 17 years old, against a 19 year old victim (Exhibit R2, page 171) which resulted in a conviction for assault occasioning bodily harm:

    At about 5:40pm on Sunday 23rd October 2011, the accused was at the Osborne Park Community Library…

    The accused was at the Library with a group of friends. The accused and victim have known each other for some time through their families.

    The accused approached the victim and offered to fight. The victim refused. The accused punched the victim once to his face with a clenched fist.

    The victim ran away from the accused yelling ‘I don’t want to fight’.

    The accused chased the victim for approximately 50 meters (sic). The accused caught up to the victim and punched him to the left of his mouth with a clenched fist.

    The force from the punch caused the victim to lose two of this (sic) front teeth and his mouth to bleed heavily.

    The following day the victim attended his Dentist where he was told the teeth were dead and couldn’t be put back and he would need false teeth.

    On 22nd December 2011 the accused was arrested and participated in an electronic record of interview where he made full admissions to the assault.

    Explanation: ‘He kicked me first’

    At the hearing, the Applicant explained that the victim was a family friend and had made a disrespectful comment about the Applicant’s mother which “just kind of got me angry” (transcript, page 36).

13. The following excerpt from a Statement of Material Facts explains the circumstances of an aggravated robbery offence committed against a member of the public (Exhibit R2, page 151):

    Between 8:57pm and 9:30pm on Tuesday 29 November 2011, the complainant was walking in the car park of the Morley Galleria shopping centre, near the Morley bus station.

    The complainant was walking home and listening to music on his mobile phone when he was approached by a group of four males. The accused was one of the four males.

    A co-offender [name redacted] asked the complainant for a cigarette, to which the complainant replied that he did not have any.

    The same co-offender stood in front of the complainant while the accused stood to the side of him. A third co-offender… stood nearby whilst the fourth male kept walking and did not participate in the following events.

    [Name redacted] then asked the complainant if he had any money. The complainant replied that he did not have any money. [Name redacted] told the complainant to show him his wallet, however the complainant did not understand due to his limited English vocabulary.

    [Name redacted] attempted to search the complainants (sic) pockets and the complainant attempted to push him away. [Name redacted] and the victim struggled for a short time before [name redacted] placed the complainant in a head lock (sic) from behind, forcing the complainant to bend forwards.

    The accused intervened and kicked and punched the complainant to the head whilst [name redacted] was holding him in a headlock.

    [Name redacted] searched the victims (sic) pockets, locating his mobile phone in his rear jeans pocket.

    The complainant managed to free himself from the headlock but was immediately attacked by the accused who punched the complainant to the head three times before slinging him to the ground.

    During this time the complainants (sic) wallet and its contents consisting of various cards and $200 in Australian currency fell free and landed on the ground. [Name redacted] bent down and picked it up.

    The complainant got up from the ground and fled on foot towards the bus stop in an attempt to seek refuge and or help.

    The accused followed the complainant for approximately 70 metres before grabbing hold of him, punching him, placing him in a headlock and flinging him to the ground.

    The complainant eventually broke free of the accused (sic) grip and fled to the bus station and got onto a bus.

    The incident was captured on security cameras throughout the area.

    …

    The complainant received bruising and lacerations to his face. He also received bruising and soreness to his abdomen region…

14. The Applicant was also convicted of assault occasioning bodily harm against another member of the public when the Applicant was 17 years old (Exhibit R2, page 185):

    At about 11:25pm on Wednesday 14 December 2011, the accused in company with a co-accused) (sic) and another was at the Mirrabooka Bus Station…

    The accused had arrived at the station by bus, which had also transported the victim. Whilst in the bus an argument evolved as a result of the co-accused drunken swearing.

    After exiting the bus the victim was surrounded, becoming cornered by the accused and his associates at which point the victim pushed the accused in the chest to gain space between them.

    The accused responded by punching the victim to the face several times causing him to fall over. Whilst on the ground the accused continued the assault by kicking the victim twice to the face causing a bleeding laceration to the mouth.

    The Victim stood up and moved to the side of the bus but the accused continued the assault by punching the victim to the face and kneeing him several times to the stomach region; causing the Victim to clutch his stomach and double over in pain.

    AND FURTHER

    after the first onslaught the accused walked away from the victim but after a short time re-approached the Victim and punched him swiftly to the back of the head. The Victim cowered and tried to move away but the accused followed him and continued the assault by kneeing him to the face and stomach with such force causing the victim to be lifted off the ground.

    This resulted in the Victim falling backwards and hitting his head on a metal bench seat which caused the Victim to receive another bleeding laceration to the back of his head.

    After this assault the victim lay motionless on the ground whilst the accused prowled back and forth for several moments before walking away.

    AND FURTHER

    A short time later the accused returned to the Victim who was still lying on the ground. The Victim tried to get up but the accused stomped on his head and stomach twice; causing swelling and severe pain to both his head and stomach region. The Victim curled up, clutching his stomach and the accused then walked away.

    The Victim lay motionless for about two minutes, bleeding from the nose, mouth and head.

    Police attended and took photographs of the Victim who was in company with St John’s Ambulance. He was conveyed to Royal Perth Hospital and later discharged.

    The accused was arrested on suspicion and participated in an electronic record of interview during which he made full admissions and as a result the present charges are preferred.

    Explanation by the accused: ‘I don’t know why I took my anger out on him. I wasn’t in a good mood. I punched him and couldn’t stop.’

1. At the hearing, the Applicant blamed the victim for this offending, stating that the victim had used the “‘N’ word” and that the victim pushed him (transcript, page 37). The Tribunal does not, however, accept this explanation because if the Applicant was provoked, it is likely that he would have reported this to Police at the time, and it would have appeared in the “explanation by the accused” above.

2. When sentencing the Applicant for the offences on 23 October 2011, 29 November 2011 and 14 December 2011, Judge Reynolds stated (G12, page 76):

   But I want you to understand,… when one looks at now all three of these offences, just singularly they are really serious because of the high level of personal violence. When you put them all together, collectively, totally, they are extremely serious.

3. The documents produced under summons from the Western Australia Police also suggest that the Applicant may have committed other violent offences against members of the public, which did not result in any convictions because the complainants would not formally cooperate with police. For example, the Applicant was a person of interest in an assault on a man outside a kebab shop on 16 February 2013 when he was in the company of others, however, the witness refused to talk to police (Exhibit R2, page 63).  

4. The Applicant was also a person of interest with respect to another assault on

   
   

   3 December 2013. He allegedly kicked a man three times to the head and three times to the body (Exhibit R2, page 57) near a toilet block in the Supreme Court Gardens. The victim was spoken to by Police at the hospital but was not able to provide a statement at that time. Police were then subsequently unable to contact the victim (Exhibit R2, page 58). Under cross-examination the Applicant claimed that the victim had pulled out a knife and tried to stab him, and that he punched the victim in self-defence but that he did not kick him whilst the victim was on the ground (transcript, page 39).

5. As an adult, the Applicant has a total of seven driving and traffic related convictions, including convictions for “exceed 0.08g alcohol per 100ml of blood” (one conviction); “exceed 0.05g alcohol per 100ml of blood” (two convictions); “No authority to drive” (three convictions); and “Possessed with intent to deceive a licence or label” (one conviction) (Exhibit R2, page 5-7).  

6. With respect to this traffic and driving related offending, the Tribunal states its agreement with the following comments from Member Webb in Apire and Minister for Immigration and Border Protection [2014] AATA 193, at [16]:

   Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] — laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values…

7. As noted above, the Applicant was sentenced to concurrent terms of imprisonment totalling 24 months, with an effective sentence of six months for “Breach of Violence Restraining Order”, two convictions for “Common Assault in Circumstances of Aggravation or racial Aggravation” and a conviction for “Unlawfully assault and thereby did bodily harm with circumstances of aggravation” (Exhibit R2, page 5). Terms of imprisonment are imposed as a last resort, and reflect the seriousness of the Applicant’s offending (paragraph 13.1.1(1)(c) of Direction no. 65).

8. With respect to offences against government representatives or officials (paragraph 13.1.1(1)(b) of Direction no. 65), the Applicant does not have any convictions involving violence or resisting public officers. He does, however, have convictions for “Escaping from lawful custody” (2013); “Give False Personal Details to Police” (in 2013 and 2016), as well as multiple breaches of police and court imposed orders (seven breaches as a juvenile and four breaches as an adult).    

9. The Applicant’s offending (paragraph 13.1.1(1)(d) of Direction no. 65) has been fairly consistent, with offences committed in 2011, 2012, 2015 and 2016 and 2017. Offending over many years occupies the resources of police and the courts, incurring costs that are ultimately passed onto the taxpayer, as well as the physical, economic and emotional costs to victims (paragraph 13.1.1(1)(e) of Direction no. 65).

10. There is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(1)(f) of Direction no. 65).

11. The Tribunal notes that the Applicant has not received any warnings from the Department stating that further offending may result in a cancellation of his visa (paragraph 13.1.1(1)(g) of Direction no. 65).

12. There is no evidence before the Tribunal of any offences being committed whilst the Applicant has been in immigration detention (paragraph 13.1.1(1)(h) of Direction no. 65).

13. The Tribunal finds that the Applicant’s offending should be viewed as very serious, particularly due to his offences involving violence against members of the public and domestic violence, including the violent assault against his 13-year-old step-daughter. For the avoidance of any doubt, the Tribunal takes the position that the Applicant’s convictions alone are to be viewed as very serious, and consequently, the Tribunal does not need to rely upon on any alleged offending by the Applicant to establish that his conduct has been serious in nature. The Tribunal finds that the nature of the Applicant’s offending is very serious and weighs against the revocation of the cancellation of the Applicant’s visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 65)

14. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

15. Paragraph 13.1.2(2) of Direction no. 65 further provides:

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

16. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535;

    
    

    [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

17. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.

18. The Tribunal finds that there is a likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(2)(b) of Direction

    
    

    no. 65). This is based on his history of offending, which began in 2011 and continued until December 2016, and which has escalated in seriousness. After receiving suspended sentences of imprisonment as a juvenile, and numerous fines as an adult, the Applicant’s offending culminated in a term of imprisonment for serious, violent offences.

19. The Tribunal acknowledges that the Applicant did not have a stable and supportive upbringing. He moved from South Sudan to Australia with his aunt and uncle as a

    
    

    10-year-old child in 2004, leaving his parents behind in South Sudan. He resided with his aunt and uncle and brother, but had frequent conflict with his brother. In 2011, his uncle moved to Adelaide, and started another family. The Applicant resided with his brother when his brother turned 18, but his brother was unable to cope with parenting the Applicant. The Applicant described some of the difficulties he had (transcript, page 11):

    I never had no trouble, nothing, until it came to my teenage years, that is when things just kind of got out of hand really.  Like I was missing school, I was missing half of the years, really like - but I still managed to go to school even though I didn’t have support or nothing at all.  I managed everything by myself.  I managed to pay my school fees by myself.  I had help from [his teacher], she has always been there for me ever since I got into these kind of troubles really, and she recommended me to talk to the school psychologist, which I’ve been seeing her for a period of all my year 12, the whole of my year 12, I’ve been seeing… [psychologist name omitted], her name is, yes, and, yes, when I started hanging around with the wrong crowd and really I just kind of like lost track.

    Really, I didn’t know what I was doing.  I felt like I had no family, I felt like I had no-one to tell me ‘Oh, don’t do this.  Don’t do this’ or put me on the right tracks or, for example, giving me advice about life, really.  I’ve never had them chances so me, I was thinking well hanging around with these people would kind of I felt a bit secure, they listen to me when I talk to them, really.  Felt I kind of belong there and then, yes, I realised, yes, it wasn’t taking me anywhere so I decided to go back and try and talk to my brother and my aunty to let them know ‘Look, okay I realise now I’m grown up and I don’t think I want to do any more trouble. Can you guys please give me advice or just guide me through these until I grow up’ and then like my aunty agreed but then my brother was just naïve.  He was like ‘No, I don’t want to help you at all.  You’ve done so much’ and I was like - I told him ‘Well if you supported me in the first place, none of this would have happened’...

20. His teacher gave evidence about how difficult the Applicant’s teenage years were (transcript, page 44-45):

    I guess in year 9 and 10 KLKN was always been a very respectful student and he was a very quiet student, just sort of kept to himself in those years.  And then I think life sort of got harder for him when he hit year 11 and 12.  He was having problems at home.  He obviously came over here with his auntie, and from what I was told she was suffering from a lot of post-traumatic stress issues herself.  His brother had turned 18 and become his legal guardian at that stage, and his brother wasn't really coping either.  So KLKN, being a teenager at that stage, was struggling to have any sort of support or guidance in those years, so he sort of turned to me as his year coordinator to do so.  I had also been his basketball coach for quite a few years.  So yes, so I got to know him, I guess, over that time.  There were times when we were trying to find him accommodation.  I was working with the… [local] Multicultural Centre where KLKN use to go as well for some support when he needed it, because they had housed him when he first arrived with his auntie and brother.  So yes, we were looking to try and get KLKN some accommodation on his own because his brother probably wasn't a very good influence for him at that age to be his legal guardian, and obviously his auntie wasn't either.  So, you know, he was going through some tough stages in life.  But saying that, he was a very good student, which was good; did all his work.  At times then he moved up to [suburb name omitted] with some family members and also his brother in [suburb name omitted] through year 11 and 12, so he was travelling about an hour a day to school, but still came every day.  I think school was a supportive place for him. 

21. The Applicant also described having traumatic memories from his childhood (transcript, page 12):

    All you could hear is just gunshots and that’s kind of tormented me a while.  It still haunts me until today and, yes, such memories like that has kind of ‑ it is just up there in my head and it is kind of controlling me sometime and it is just I don’t know what to do.  Like, I’ve tried to get help, it still doesn’t work, ma’am, and I just wish one day I could just forget all of this really and just move on with life and never have to stress again or be depressed or just stay out of trouble for good because that is what I just - that is what I wish for…

22. In his submission’s to the Department in the “Request for Revocation of a Mandatory Visa Cancellation under s501(3A)”, the Applicant stated (G14, page 119) that, “Prison has taught me a lot violence does not solve anyone’s problem that’s why I’m to change my life and by doing that im (sic) willing to get professional help.” Further in this same form

    
    

    (G14, page 128) the Applicant stated, “my criminal history is awful and disturbing to my life. I wish to say sorry to the victims. Jail has taught me a lot to snap out of it and do better for myself and family I’m sick of causing trouble and I don’t want any more trouble”, and “I promised myself I will not reoffend”. A term of imprisonment may have a salient effect on some offenders, but whether a custodial sentence of imprisonment has had any remedial or rehabilitative effect on the Applicant remains to be tested if he were to re-enter the community.

23. Further, in this same form the Applicant stated that (G14, page 121):

    we [the Applicant and his partner] separated because I lost my job and I started drinking constenly (sic) thinking it would solve my problems I didn’t realise what I was doing was wrong sh’d (sic) try to tell me stop drinking but I wouldn’t listen to her, instead of taking advice I got angry at her instead. I wish I tell that I’m sorry for hurting her and for act like foolish man and idiotic chacter (sic).

24. A Community Corrections Officer’s Report dated 6 January 2014, referred to the Applicant having unmet treatment needs with respect to his alcohol consumption (G19, page

    
    

    140-141). The Applicant was referred to Palmerston for counselling to help reduce his alcohol consumption, but at the time of the Report, he had not attended. At the hearing, the Applicant gave evidence that he did not attend any counselling sessions at Palmerston, nor any other counselling or programs to address his alcohol misuse. He gave further evidence that he attended two sessions of Alcoholics Anonymous in prison prior to the expiry of his term of imprisonment, and he attended the Migrant Resource Centre on approximately two occasions (as was referred to in the Adult Community Correction Officer’s Report dated 6 January 2014, G19, page 141). 

25. Although the Applicant has expressed his remorse, and has stated that it is his intention not to offend again, and that he is willing to “get professional help”, he has not taken sufficient steps to do so. The Tribunal is of the view that the Applicant has outstanding treatment needs in the areas of violence, domestic violence and alcohol. Some of these issues may be also influenced by Applicant’s difficult childhood, and with the exception of the counselling arranged by his teacher at school, the impact of the Applicant’s childhood remains unaddressed. With respect to alcohol and the Applicant’s offending, the Applicant admitted that he had been drinking and could not remember the details of some of his domestic violence offending (see paragraph [65] above). Additionally, the Applicant gave evidence that he had been drinking leading up to the offence of “Aggravated Robbery” which was committed on 29 November 2011 (transcript, page 35).  Additionally, there does not appear to be evidence of any protective factors which are in place to assist in preventing or reducing the likelihood of the Applicant re-offending, including confirmed suitable employment, or engagement with counselling, or community support organisations. The Applicant is also proposing to reside with his partner and her

    
    

    children, which is an environment in which he has committed serious offences. This further raises concerns in the mind of the Tribunal that there is a likelihood of the Applicant re-offending.

26. Applying paragraph 13.1.2(2)(a) of Direction no. 65, the Applicant has committed violent offences against his partner and step-daughter, as well as violent offences against other persons. There is a real risk that should he commit similar offences in the future, his partner, step-child (a vulnerable member of the Australian community), or other members of the Australian community may be seriously hurt, injured, or even killed. Violent offending, including domestic violence, can also result in victims suffering significant psychological harm. As noted above, the Applicant gave evidence at the hearing that he had reconciled with his partner, and was planning on returning to live with her and her children, but there is no evidence of any safety planning.

27. The Applicant also has numerous convictions for traffic and driving-related offences, including driving under the influence of alcohol and without a license, as well as a recent conviction for cannabis possession. As noted above, the Applicant has unmet treatment needs with respect to his consumption of alcohol, and if he were to drive under the influence of alcohol again, the result could be a loss of life, or serious injury in a road traffic accident.

28. Finally, in accordance with paragraph 13.1.2(1) of Direction no. 65, the Australian community’s tolerance for risk becomes lower as the potential for harm increases. The seriousness of the potential harm, with respect to the Applicant’s violent offending, was also identified by Judge Reynolds in the Perth Children’s Court in a transcript of proceedings dated 26 February 2013 (G12, page 60). The following exchange between the Applicant and Judge Reynolds occurred before His Honour sentenced the Applicant for the offences he committed on 23 October 2011, 29 November 2011 and 14 December 2011 (G12, page 75):

    HIS HONOUR:          Just listening to all of those facts on those three offences, the two offences that you were sentenced by Judge Birmingham; you’ve been extremely violent, have you not…

    [THE APPLICANT]:    Yes.

    HIS HONOUR:          As has been said, it was ongoing, persistent violence; even when someone ran away, off you go, chased them and into it again, kicking, punching. Do you know that people can be killed by that sort of violence?

    [THE APPLICANT]:    From the sound of it, yes.

    HIS HONOUR:          One of them going back, hitting his head. Do you know how people can get killed just by one punch, let alone multiple punches and kicks to the head? Have you ever thought of that?

    [THE APPLICANT]:    Sir, I was (indistinct) back then ---

    HIS HONOUR:          It is good luck rather than good management that someone is not dead. Have you thought of that?

    [THE APPLICANT]:    Back then, really, like, I never thought ---

    HIS HONOUR:          Well, since have you thought about it?

    [THE APPLICANT]:    Yes, I have; Yes.

    HIS HONOUR:          People can be charged with murder when the physical violence is even less than what you did because as a result of it, people can either get a blow to the head that causes a brain injury or they can fall back and hit their head on the ground, that that causes a brain injury and death. That is what I am talking about… more good luck than good management. Some personal violence incidents are actually worse than others, where someone was killed as a result.

    [THE APPLICANT]:    Yes, (indistinct).

    HIS HONOUR:          If you engage in this sort of high-risk behaviour you are running the risk of killing someone. Do you understand that?

    [THE APPLICANT]:    Yes, sir.

    HIS HONOUR:  That is pretty serious, is it not?

1. In his personal circumstances form, dated 16 January 2018 (G14, page 117), the Applicant stated, in response to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”:

   it’s not a good place to live too much war over there. I fear of getting kidnapped or slaughter or killed. I’m too scared of Sudan.

2. In a handwritten, undated statement by the Applicant sent by to the Department by facsimile on 9 September 2018 (G23, page 150-151), the Applicant stated:

   I cant (sic) go back to Sudan it’s too dangerous and scary and I fear for my life going back there please let me stay.

3. The Applicant made similar comments during the Tribunal hearing, and accepted, under cross-examination, that he was not in any more danger in South Sudan than any other member of the community there (transcript, page 41).

4. In a further handwritten statement, also sent to the Department on 9 September 2018 (G24, page 152), the Applicant stated:

   I don’t know what Sudan is like all I remember about Sudan is the horrific war which is still going I’ve seen people getting shot and killed in front of me my parents knew it wast (sic) safe for me and my brother the memories still haunt (sic) today I’m trumatised (sic) from what I seen in my childhood. A few of my childhood friends got killed a year after I left Sudan my parents feared for my life knowing that I would get kidnapped or killed by the rebels…

5. The claim by the Applicant that he will suffer harm if he is returned to South Sudan is one which may engage Australia’s non-refoulement obligations (paragraphs 14.1(1) and 14.1(3) of Direction no. 65). However, as contemplated in paragraph 14.1(2) of Direction no. 65, the existence of a non-refoulement obligation does not preclude the non­revocation of the mandatory cancellation of the Applicant’s visa.

6. The Applicant could apply for a protection visa under the Migration Act, as contemplated by paragraph 14.1(4) of Direction no. 65. Thus, if any non-refoulement obligations exist, they can be met through the protection visa process.

7. Although paragraph 14.1(4) of Direction no. 65 provides that it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of considering whether the cancellation of their visa should be revoked if the Applicant can make an application for a protection visa, in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16), a majority of the Full Court of the Federal Court held otherwise (Bromberg J and Mortimer J at 528).

8. Specifically, in BCR16, the majority stated (at [48]):

   …That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation…

9. The effect of the majority’s decision in BCR16 was discussed by Deputy President Kendall (as he then was) in HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802 (HSKJ) who stated (at [87] and [88]):

   (87)Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to HSKJ. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.

   (88)That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should HSKJ be deported to Iraq. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.

10. In summary, the Tribunal is required to consider whether the Applicant’s claims of a risk of harm if he were returned to South Sudan would constitute another reason why the cancellation decision should be revoked. However, before the Tribunal undertakes this consideration, it is relevant to note the following comments from the decision of Deputy President Kendall (as he then was) in HSKJ (at [89]-[91]):

    (89)In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):

    An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.

    (90)Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.

    (91)In these circumstances, the Tribunal can only assess the often limited evidence before it in determining any risk of harm to HSKJ. This is arguably less than ideal given the possible negative consequences for an applicant in this context.

11. As Deputy President Kendall (as he then was) noted, there is often very limited evidence before the Tribunal regarding the risk of harm. This is certainly true of the Applicant’s case, with the only evidence before the Tribunal being that of a very general nature given by the Applicant. Specifically, the Applicant has not articulated specific harms on account of his race, religion, nationality, membership of a particular social group or political opinion. Rather, he has made general statements that Sudan is “too dangerous” and that he fears being “kidnapped or slaughter or killed”. In his evidence at the hearing, the Applicant acknowledged that the risks of violence he would face if returned to South Sudan were the same as those faced by any other person there. Accordingly, the Tribunal places limited weight on the Applicant’s claimed risk of harm if he was returned to South Sudan, and concludes that it is not a consideration that weighs in favour of the revocation of the Applicant’s visa.

    Statelessness

12. In the statement of reasons for the Reviewable Decision (G9, page 46), the Minister’s delegate considered whether the Applicant was a stateless person, although no claim of statelessness was, or has been, made by the Applicant.

13. If a person is stateless it will not be reasonably practicable to remove them from Australia, and the person must continue to be detained in accordance with s 189 and s 196 of the Migration Act, unless the person is granted a visa by the Minister under section 195A.

14. The issue of statelessness in the context of South Sudan and has been considered by the tribunal in decisions including, Galuak and Minister for Immigration and Border Protection [2018] AATA 2301 (Galuak) and FLLB and Minister for Home Affairs [2018] AATA 3661 (FLLB). In FLLB, Member Bygrave stated, at [78]-[80]:

    78. The applicant raised concerns about his citizenship and the possibility that he is stateless. In response, the Minister produced a report by the Department of Home Affairs in relation to the applicant’s background, noting his parents were from Sudan, which is dated 7 August 2018 (DHA Report).

    79. The DHA Report quotes the USDOS Report, which refers to Article 8 of The Nationality Act 2011 of South Sudan and notes that:

    Citizenship is derived through birth if a person has a South Sudanese parent, grandparent, or great-grandparent on either the mother’s or the father’s side, or if a person is a member of one of the countries (sic) indigenous ethnic communities. Individuals may also derive citizenship through naturalization. Birth in the country is not sufficient to claim citizenship.

    80. Based on the information provided in the DHA Report and USDOS Report, I accept that the applicant could theoretically obtain recognition of his South Sudanese nationality. I note, however, there is no evidence before the Tribunal that the applicant has obtained South Sudanese citizenship to date.

    (Footnotes omitted.)

15. In Galuak, Senior Member Morris discussed relevant provisions of an English translation of The Nationality Act 2011 (South Sudan), at [26]-[29]:

    26. Chapter III of the South Sudan Nationality Act relates to Nationality by Birth. Section 8(1) states:

    8. Eligibility Requirements

    (1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –

    (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or

    (b) such person belongs to one of the indigenous ethnic communities of South Sudan.

    ...

    27. Section 9 states:

    9. Certificate of Nationality

    The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.

    28. The Tribunal accepts the evidence, which was not contested by parties, that the Applicant’s mother Ms Theb was born in Bentiu in what is now South Sudan. Mr Galuak gave evidence at the hearing that his mother was born in Bentiu and he believed that his father was, as well, as were his paternal and maternal grandparents. That being the case, by force of section 8 of the South Sudan Nationality Act, Mr Galuak “shall be considered” a South Sudanese national under the law of that country.

    29. The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011 (the Transnational Constitution). It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:

    Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.

    (Original emphasis.)

16. Similar considerations apply with respect to the Applicant. The Applicant was born in South Sudan, and the Applicant has stated that both of his parents were also born in South Sudan. This evidence was not contested by the Respondent. The Tribunal is satisfied that the Applicant would meet the eligibility requirements to be considered a South Sudanese National by birth, and would therefore be issued with a certificate of nationality by the Minister.  The Tribunal does, however, take into account that the Applicant may be held in detention for a period of time pending a decision being made about his eligibility, and whilst he obtains any necessary travel documents.  

    Strength, nature and duration of ties

17. Paragraph 14.2(1) of Direction no. 65 provides:

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

18. As noted above, the Applicant left South Sudan for Uganda as a three year old, and later arrived in Australia in 2004 when he was 10 years old with his aunt and uncle and older brother (paragraph 14.2(1)(a) of Direction no. 65). He is now 24 years of age (G21, page 147) and has not returned to Sudan since arriving in Australia. The Applicant also listed a cousin and another uncle in Australia (G16, page 122). He states that he has reconciled with his partner, who has three children whom the Applicant refers to as his step-children.

19. Regarding the impact that the cancellation of his visa would have on his family, the Applicant commented on the impact his removal from Australia would have on his parents who reside in South Sudan (G16, page 122):

    it will be a shock to my family especially my parents it will be hard for my parents to cope with and heart breaking (sic) me and my brother are the only support they got when I was working I would send money for their rent, food and medication. Mum is too ill to do anything and dad is too old to do any work if there’s any work so I share my income with my parents

20. The Applicant first offended as a juvenile at the age of 17 in November 2011 (paragraph 14.2(1)(a)(i) of Direction no. 65), and his offending spans approximately a six year period.

21. The Applicant stated in his personal circumstances form dated 16 January 2018

    
    

    (G16, page 123) that he finished secondary school in Australia (year 12), and has briefly (in 2016 and 2017) worked for a fish wholesaler and in “demolition construction” (paragraph 14.2(1)(a)(ii) of Direction no. 65).

22. A former teacher of the Applicant’s gave evidence at the hearing. She stated that she knew the Applicant over a 10 year period from when he was a high school student, and had maintained contact with him. The teacher provided a letter of support dated

    
    

    4 February 2018 (G17, page 133). She referred to the Applicant’s childhood trauma and difficult family environment as a teenager and that he found school to be a supportive environment where he felt safe. She described him undertaking volunteer work at school where he volunteered to coach the school basketball team, and at the end of year

    
    

    11 doing volunteer work in the physical education department on school holidays, and later in the community in the local Volunteer Gardening Program (G17, page 134). The Tribunal agrees that this volunteer work was a positive contribution to the community (paragraph 14.2(1)(a)(ii) of Direction no. 65). His friendship with his teacher is also a further tie to the Australian community.

23. The Applicant has had a difficult relationship with his brother who resides in Australia since his teenage years. He described his relationship with his brother as “kind of on and off right now” (transcript, page 15). His uncle is now residing interstate, and the Applicant gave evidence that he has not seen his uncle since approximately 2011 (transcript, page 15). At the hearing the Applicant stated that he had a relationship with his aunt, and would help look after her because she suffered paralysis on one side of her body (transcript, page 16). As noted above, the Applicant has stated that he has reconciled with his partner, and intends to live with her and her three children.

24. Although there is no evidence of the Applicant sending money to his family in South Sudan, his aunt’s health issues, or the Applicant having reconciled with his partner, the Tribunal is willing to accept that these family members may suffer some detriment if the Applicant is returned to South Sudan.

25. The Applicant has resided in Australia since he was 10 years old, including completing his primary and secondary schooling in Australia, and his aunt, partner and step-children reside in Australia. The Tribunal considers these ties to the Australian community to be strong. The Tribunal therefore finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa.   

    Impact on Australian business interests

26. There is no evidence before the Tribunal that a decision not to revoke the cancellation of the Applicant’s visa will have a relevant impact on Australian business interests (paragraph 14.3(1), Direction no. 65).

    Impact on victims

27. As detailed earlier in these reasons for decision, there are victims of the Applicant’s offending behaviour including his former partner, step-daughter and other members of the community. However, the Tribunal does not have evidence before it regarding the impact on other victims of his criminal behaviour, or the family members of the victims that a decision not to revoke the cancellation would have (paragraph 14.4(1) of Direction no. 65).

    Extent of impediments if removed

28. Paragraph 14.5(1) of Direction no. 65 provides:

    (1)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 substantial language or cultural barriers; and

    (c)Any social, medical and/or economic support available to them in that country.

29. In his personal circumstances form, the Applicant stated, in response to the question, “Are there any other problems you would face if you have to return to your country of citizenship?” (G16, page 127):

    there won’t be any work or school or house for me to go to I’ll be in poverty I will have nothing over there no life no friends not enough family the worst of all fearing for my life. It’s a whole new world to me don’t know any one or the place

30. As noted above, the Applicant has lived in Australia since he was 10 years old, having left South Sudan to travel to Uganda when he was three years old. His parents still live in South Sudan, although at the Tribunal hearing the Applicant stated that he had lost contact with his mother (transcript, page 18). He also has a brother and a sister in South Sudan. The Applicant has not returned to Sudan since arriving in Australia, but stated at the Tribunal hearing that he intended to return to visit his family there when his visa issues were resolved (transcript, page 40).

31. The Applicant is a young man of 24 years and is in good health. After living in Australia for the last 14 years, and growing up during his teenage years here, he would undoubtedly face difficulty in re-establishing himself in South Sudan. These difficulties would include cultural and language difficulties because the Applicant has resided in Australia for

    
    

    14 years, and has not spoken the language (Dinka) since he was 10 years old.

32. The Applicant stated that he had not spoken to his family in South Sudan for approximately two years since he had been incarcerated or in detention (transcript, page 24). This appeared to be because he did not want them to know about his convictions and incarceration. Previously, the Applicant was in contact with his father, and he gave evidence that he would send money to his father when he was working to help support his family in South Sudan (transcript, page 24).  

1. The Department of Foreign Affairs and Trade, DFAT Country Information Report: South Sudan states that: “South Sudan’s formal economy is extremely weak and underdeveloped”; “South Sudan’s population has extremely poor access to health care” and that employment opportunities have worsened since the outbreak of conflict in December 2013 (page 5-7). These economic and social conditions are very different to those in Australia, and are likely to have a negative impact on the Applicant if he were to return to South Sudan, including making it difficult for the Applicant to obtain employment. He may, however, be assisted by being able to speak fluent English.  

2. Overall, the hardship the Applicant would suffer if he were returned to South Sudan weighs in favour of the revocation of the cancellation of his visa.

   CONCLUSION

3. The Applicant does not pass the character test under s 501 of the Migration Act.

4. The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 65.

5. In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), and the expectations of the Australian community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the Reviewable Decision).

6. With respect to the primary consideration regarding the best interests of the children (paragraph 13.2 of Direction no. 65), the Tribunal has also concluded that the best interests of the children are likely to be better served by the Tribunal refusing to revoke the cancellation of the Applicant’s visa, particularly due to the serious domestic violence offending against the Applicant’s step-daughter and the children’s mother. 

7. With respect to the remaining other considerations, although the Tribunal has weighed the considerations of the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if returned to South Sudan in favour of the Applicant, the Tribunal is of the opinion that these other considerations do not outweigh the primary considerations in favour of the non-revocation of the cancellation decision.

8. In summary, having regard to all of the primary considerations, and the other considerations in Direction no. 65, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.

   DECISION

9. The Reviewable Decision, being the decision of a delegate of the Respondent dated

   
   

   21 September 2018, received by the Applicant on 27 September 2018, not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 164 (one hundred and sixty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.........................[sgd]..............................................

Administrative Assistant Legal

Dated: 14 December 2018

Date of hearing:	3 December 2018
Applicant:	Self-represented
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers