KMJM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2232
•7 July 2021
KMJM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2232 (7 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2339
Re:KMJM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Reitano
Date:7 July 2021
Place:Sydney
I set aside the delegate’s decision and substitute in its place a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian (Permanent) visa.
........................[sgd]................................................
Member Reitano
CATCHWORDS
VISA CANCELLATION – previous visa cancellation revoked – protection of the Australian community – family violence – the best interests of minor children – international non-refoulement obligations – difficulties if relocated to South Sudan – ties to the Australian community – decision under review is set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) ss 36, 197C, 499, 501, 501CA
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Reitano
7 July 2021
When a visa is mandatorily cancelled, the former visa holder can ask to have the cancellation revoked so that they can have their visa back. The visa will only be returned if they can satisfy the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), his delegate or the Tribunal that they are of good character, a phrase defined by legislation, or that there is ‘another reason’ for it to be returned. Implicit in the decision-making process is recognition of the enormity of the decision, which brings into sharp focus the serious ramifications that holding or not holding a visa has for both individuals and the community more generally.
So, in this case the visa was taken away because of very serious criminal conduct, which raises very serious issues about the protection of the Australian community arising from the prospect of repetition of that type of conduct and its consequences for the community. In determining whether to revoke the decision cancelling the visa it is necessary to consider those questions as well as the fact that the offences involved family violence and the expectations of the Australian community should be given effect.
On the other side, in this case, there are two very young children, and the poignant question is whether they should face the reality of never seeing their father again. There are other questions about whether four other children have removed from their lives a man who is prepared to act, at least for now, in the place of their father; whether one of the victims of his criminal offending who herself still wants him in her life should have that opportunity removed; whether others in the Australian community who have come to know him and share their lives with him should have that removed; and whether a mentally ill man diagnosed as suffering from schizophrenia should be returned to a war-torn third world country beset by terror, crime, poverty and, of course, the pandemic where he fears for his safety if he is returned and where it is unlikely that he will be able to establish a basic living standard even when compared only to others living there.
I have decided that the Applicant should have his visa back because I am satisfied that there is another reason why that should happen. It follows that I have decided to set aside the decision that is the subject of this review and in substitution I will put in its place a decision revoking the cancellation of the visa. It is necessary, especially because of the seriousness of that decision, that I explain my reasons for making that decision in a little detail.
CONFIDENTIALITY AND PSEUDONYM ORDER
During the hearing I made an order that the publication or disclosure of the name, address or any other information tending to reveal the identity of the Applicant or the Applicant’s family is prohibited and that the Applicant be known by the pseudonym KMJM. I made the order because I considered it inappropriate to publish details about the Applicant’s children. As a consequence, I will refer in these reasons to the Applicant as ‘the Applicant’, his partner as ‘the Applicant’s partner’, his own children from oldest to youngest as ‘first child’ and ‘second child’ and the Applicant’s partners children from oldest to youngest as ‘third child, ‘fourth child’, ‘fifth child’ and ‘sixth child’. No disrespect to anyone is intended by adopting that course.
HOW DID THE MATTER COME TO THE TRIBUNAL?
The Applicant was born in Nyamlel in Sudan, which is now a town in the north west of what is South Sudan. He left Sudan in the midst of the civil war that afflicted Sudan during his youth. His father was killed in the war and his family were separated.
In 1996 the Applicant was ‘captured and enslaved’ after the government sponsored militia attacked the village where he lived. He was abducted and taken away. While under the control of the militia, he worked herding stock and cleaning their compound. He eventually escaped. He then lived in a ‘displacement camp’ which I presume is a camp for people who were displaced because of the war. At some stage he headed towards Ethiopia but was captured at the border, placed in a detention camp, and tortured for two weeks. He finally left Sudan in early 2002 and went to Cairo in Egypt.
In June 2006, the Applicant came to Australia after being granted a Class XB Subclass 202 Global Special Humanitarian (Permanent) visa. That formed the basis for his permission to live, and participate, in the Australian community. About a year after he arrived in Australia, he started engaging in criminal conduct and accumulated a significant criminal record over the next 12 or so years, to which I will return later because it is important.
On 6 February 2020, the Applicant was serving a full-time sentence at Bathurst Correctional Centre which is a custodial institution in central New South Wales because on 19 December 2019 he had been sentenced to a term of 13-months imprisonment. The consequence was that he failed the character test in s.501(7) the Migration Act 1958 (Cth) (Act) as his sentence was longer than 12 months. The length of his sentence, and the fact that he was in a custodial institution full-time serving that sentence required the Minister, under s.501(3A) of the Act, to cancel the visa.
On 25 February 2021, the Applicant made representations to the Minister about why the decision cancelling the visa should be revoked so that he could have the visa back and stay in Australia. He did that consistent with the terms of an invitation issued to him by the Minister on 6 February 2020 and in accordance with the relevant regulatory requirements under s.501(3)(b) of the Act. A delegate of the Minister rejected the Applicant’s request to revoke the cancellation. And so, the Applicant asked the Tribunal, as the Act permits him to do, to review that decision with a view to having the visa returned so he can stay in Australia.
WHAT IS THE TRIBUNAL REQUIRED TO DO?
I earlier identified that the Tribunal is required to consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. That is the only basis upon which the decision to cancel the Applicant’s visa can be revoked because the Applicant has a ‘substantial criminal record’ as a result of his several sentences of imprisonment for more than 12 months. This means he fails the character test in the Act, which is the only other basis to revoke the cancellation of the visa.
I am required to make an evaluative judgment about whether ‘there is another reason why the original decision should be revoked.’ I must be satisfied about the existence of ‘another reason’ which, in very general terms, requires identification of a rational or reasoned basis or justification for undoing the visa cancellation.
To assist in deciding about whether there is ‘another reason’ the Minister has issued Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction) which commenced on 15 April 2021. The Tribunal is required by s.499(2A) of the Act to comply the Direction when it performs its functions and exercises it powers which is, naturally enough, what this process involves.
The purpose of the Direction is to provide guidance to decision-makers in performing functions and exercising the power with which this application is concerned. The Direction identifies principles which provide a framework to decide whether a decision to revoke a mandatory cancellation should be made, and considerations that the decision-maker must consider where they are relevant to the decision. The principles inform the matters to be considered. I will refer to the principles where it is necessary, but I will not set them out here.
The Direction refers to two categories of matters the Tribunal must consider: ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·the protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
The ‘other considerations’ include:
·international non-refoulement obligations;
·the extent of impediments if a non-citizen is removed from Australia;
·the impact on victims;
·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.
The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’ but, naturally enough, those things too must rationally inform the evaluation to be made about whether there is ‘another reason’. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ contemplates cases where it may not to do that.’.[1] This is particularly important for reasons that will hopefully become clear. The inquiry is:
‘…whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[2]
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).
[2] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The Direction says that ‘one or more primary consideration may outweigh other primary considerations.’ These are all matters for the decision maker acting rationally and reasonably to assess.
The Direction requires the decision-maker to take into account the considerations where they are relevant to the decision and in doing so, lays down within each consideration those matters that must be taken into account where relevant. The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[3]
[3] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The issue of considering all matters is important because of the subject matter with which the decision is dealing which potentially involves the exclusion from Australia of someone who may have lived here for many years and has their whole, or a substantial part of their, life here. I referred earlier to some of the matters that are in play here and will address them in more detail below. It need only be said now that the far-reaching ramifications to the community, particular people, and, naturally enough, an applicant, are an important factor of the need to consider matters earnestly and deliberatively.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires that I ‘keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. I am required to have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian law and institutions and will not harm the community. There are two aspects to this consideration: the nature and seriousness of the conduct of an applicant and the risk the community faces should that applicant re-offend.
A HISTORY OF VERY SERIOUS CRIMINAL OFFENDING
The Applicant has an extensive criminal record that started only about a year after he was in Australia, and which finishes when he was sentenced and convicted on 28 January 2020 for four different offences. It is necessary to consider some of those offences in detail but having regard to the overall finding I have made about his history of criminal offending - that it is very serious - it is unnecessary to delve into every detail of every offence. I will refer to some of the more serious offending as it forms the firm foundation for my finding about the nature and seriousness of the Applicant’s criminal offending.
I also do not consider it necessary to trawl through the criminal history and to identify that some of the offending appears on its face to involve what might be regarded as minor offending, such as failure to have a ticket whilst on a train or possessing drugs for which only small fines were imposed. Those offences seem to be more relevant to the fact that the Applicant has a fairly consistent pattern of disregard for the law more than anything else.
On 20 August 2007, the Applicant was convicted of three offences involving the assault of a police officer while the officer was doing their job, resisting the same officer and behaving offensively in a public place. Not a great deal is known about the circumstances of those offences, but it need be observed that two of those offences were by definition offences that involved violence and violence against a public official.
There was some conjecture about an incident in December 2010 that on the Applicant’s evidence involved him having sexual intercourse in a public place. There was no other direct evidence about that incident, other than some asserted facts in various records produced under summons the source of which was largely unknown, and which were completely untested. The Applicant denied he did anything wrong other than to have had sexual intercourse in a public place. He did not know why an Apprehended Violence Order was issued at the time. I do not know either. It adds very little to what is already a record of serious offending conduct in which the Applicant has been engaged whilst in Australia. I do not need to determine what actually happened on that night more than a decade, but if I did I would incline to the view that the Applicant had sexual intercourse in a public place and someone for reasons that are unknown thought it appropriate to make an apprehended violence order. The fact that an apprehended violence order was made is relevant but without knowing why it was made it is difficult to say much about it. In the context of a record of serious criminal offending it does not add a great deal.
On 3 August 2010, the Applicant was dealt with again for three offences, one of which again involved an assault or obstruction of a police officer. He was also found to have had a knife in public place or a school and to have committed a public nuisance. He was fined a small amount for those offences, but not convicted.
On 5 September 2013, the Applicant’s criminal offending escalated when he was found guilty of three offences: common assault, assault occasioning actual bodily harm and causing damage to property. I observe it escalated because, apart from offences not involving violence, the Applicant’s previous violent offending had not involved the infliction of actual injury. The circumstances of the offending are unclear except that they involved some sort of disagreement that led to the Applicant striking the victim with a glass causing him to have what was described as ‘serious cut to his left eye’. The common assault offence appears to have related to the Applicant throwing a blood-stained towel at a nurse. He was placed on a good behaviour bond for 12 months or two years respectively for those offences.
On 20 September 2013, the Applicant was convicted of further offences involving assault occasioning actual bodily harm and using offensive language. There are no details of the offences except that he was sentenced to 58 days imprisonment that reflected the period of time he had already served in custody.
On 30 October 2014, the Applicant was convicted of six offences which were intimidating a police officer, resisting or hindering arrest, two counts of assault occasioning actual bodily harm, a count of common assault and a count of destroying or damaging property. The last two of those offences and one of the counts of assault occasioning actual bodily harm were as a result of the good behaviour bonds imposed earlier.
The most significant of those offences, the subject of a defended hearing, was the assault occasioning actual bodily harm which involved the Applicant punching his then-pregnant partner in the face several times causing cuts to her right eyebrow which required medical attention. The other offences involved his aggression towards some police officers one night when he was found loitering ‘grossly affected by alcohol’. He threatened to stab one of the police officers. The Applicant was sentenced to periods of imprisonment between three and 12 months for each of the offences. The 12 months imprisonment was in respect of the assault occasioning actual bodily harm against his then-pregnant partner.
Some of the sentencing Magistrate’s observations when sentencing the Applicant are important. The Magistrate noted the Applicant’s ‘alcohol problem’ as well as his ‘history of abuse of drugs including amphetamines and cannabis’. Also, the Magistrate observed that the Applicant ‘does have a serious mental illness of schizophrenia’ for which he was being treated and was a participant in a medical trial of some kind that was being conducted at the time. The Magistrate observed that the Applicant had a history of treatment for mental illness that went back to 2009 and had had psychotic episodes in the past. The Magistrate did not put his most recent offending down to his mental illness directly, but found it was relevant to the subjective considerations concerned with sentencing.
On 5 March 2015 the Minister was required to cancel the Applicant’s visa because of the sentence that was imposed and because the Applicant was in a custodial institution. That decision was revoked in March 2016, and a letter was issued to the Applicant which required him to acknowledge his understanding that that he could be considered for visa cancellation in the future ‘if information of relevance comes to the attention of the department at any time in the future’ and that his past conduct could be considered in that process. The letter did not say what information might be ‘of relevance’ but contextually it would be difficult to accept that the Applicant did not realise that further criminal offences by him would be the kind of information that would attract the Minister’s attention.
On 18 April 2017, the Applicant was convicted of three further offences involving the destruction of property, demanding property with menaces, and common assault. He was sentenced to an aggregate period of 12 months imprisonment for those offences. The common assault charged involved pushing the victim to the chest and striking him to the head with a container the victim was carrying. The damage to property charge involved kicking a car. Again, it is important that the Magistrate observed that the offences:
…speak fairly significantly in relation to mental health issues, and particularly in relation to a diagnosis of chronic schizophrenia and post-traumatic stress disorder which is outlined as a consequence of a past history in regard to yourself.
On 31 August 2018, the Applicant was convicted of three offences, one involving resisting a policeman doing his job, another of intimidating a police officer and a third of behaving in an offensive manner. He was fined and placed on bonds to be of good behaviour. I have noted these offences as they again involve violence towards public officials.
On 19 December 2019, the Applicant was sentenced concerning two offences: assault occasioning actual bodily harm and another of contravening a condition in an apprehended violence order both of which involved his then partner. The sentencing Judge in the District Court described the circumstance as involving an argument ‘as a result the [Applicant] bashed the victim.’ Not much else is known about these offences, but they were offences against a woman and involved violence in a domestic situation. He was sentenced to imprisonment of nine months and thirteen months, respectively. An apprehended violence order was made that amongst other things prevented him from going within 100 metres of his partner. It was recommended that he receive psychiatric and drug and alcohol referral. These sentences were confirmed on appeal to the District Court of New South Wales.
On 28 January 2020, the Applicant was sentenced in relation to five offences: two of shoplifting, one of common assault, one of resisting arrest and one of intimidating a police officer. He was sentenced to an aggregate term of imprisonment of 12 months. These sentences were also confirmed on appeal to the District Court of New South Wales on 4 March 2020.
THE CRIMINAL OFFENDING IS VERY SERIOUS
The Applicant’s criminal offending is very serious. It involves personal violence against members of the community. It involves more than one occasion of violence against women including punching his former partner, who was pregnant, to the head several times and ‘bashing’ his more recent partner. It also involves repeated acts of violence against police officers on several occasions, again including a threat to stab a police officer.
The sentences imposed especially for offences involving personal violence in 2017, late 2019 and early 2020 are significant so far as criminal sentencing is concerned. The sentences are serious ones involving imprisonment which demonstrate that the offences were very serious ones. It should not be forgotten that the offences involve the same kind of offending, albeit with some escalation of the violence involved, over a fairly long period of time.
The offending is in the context of other disregard for the law and of ever-increasing penalties for the same sorts for things accompanied by some increase in the seriousness of the offending. The other context is, of course, that the offending that occurred after 5 March 2015 when his visa was cancelled and after 1 March 2016 when the delegate revoked that cancellation, and as such was in the face of the ‘warning’ that those events would have telegraphed to the Applicant.
I am satisfied that the overall nature and seriousness of the offending is to be regarded as objectively very serious.
THE RISK OF REOFFENDING?
I am required to consider the risk to the community should the Applicant be permitted to remain in the community and if he were to engage in further offending. There are two aspects to this: the first is the nature of the harm to individuals or the Australian community should the Applicant engage in further offending and the second is the likelihood of the Applicant engaging in further criminal offending, having regard to information and evidence concerning that and evidence of rehabilitation.
The harm resulting from further offences is likely to be more of the same. The fact that medical attention was required by two of the victims demonstrates that the harm is significant but should not be overstated. None of the victims involved required ongoing hospitalisation although some appeared to obtain medical attention at hospitals. One victim’s injury was described as serious involving a cut to his eye. Another involved a laceration over the eye. There were other offences that involved some degree of physical injury. Offences of personal violence of the kind involved generally are impulsive so it is difficult to assess things so far as consequences are concerned, but it is probably fair to say that the Applicant’s offending could have more significant consequences if it were repeated in the future. The nature of the harm that is involved is within the serious level of harm involving as it does physical injury and the consequences that may emerge psychologically from that but could not be described as being at the highest level, which, for example, might involve permanent impairment or even death, or such that of itself any risk would be unacceptable.
The other aspect of this part of this consideration is, as is often the case, difficult to assess, requiring the assessment of the likelihood of reoffending. There are several factors that make reoffending likely.
First, there is the pattern established by the Applicant’s record of offending itself. That is, he has a history of repeated offending involving on a fairly regular basis offences of violence. Second, that history is accompanied by a history of some of the offences being dealt with leniently by way of being given chances reflected in good behaviour bonds which on at least two occasions have been called up. Those warnings were accompanied by the warning that the Applicant received by the cancellation of his visa and revocation of that cancellation in March 2016. None of those things appeared to deter him. Third, he has had the experience of being imprisoned, albeit for limited periods of time until his most recent imprisonment. He has not been deterred by those previous periods of imprisonment. Fourth, there is the fact that he was undeterred by his previous close shave with having his visa cancelled. That cancellation was revoked, so it seems, because of his promises to leave drugs and alcohol behind him and not to offend again. He did not keep his word.
There are some factors in the Applicant’s history of offending which suggest that the risk might be moderated. Some of the material suggests that his offending has much to do with his mental illness, schizophrenia, and his post-traumatic stress disorder. He has been prescribed medication by way of injections which he has continued to take whilst in detention. He intends to keep taking his medication if released into the community which will involve him going to a medical centre to have his injections once a month. The Applicant’s partner has offered support for him in ensuring this happens which is a change from the past. I gathered from the way she gave her evidence and my overall assessment of her as an honest witness that she is likely to be good to her word.
There are also some pro-social factors that will be available to him if he is released into the community; in particular, a partner and family who love him and who he loves, his understanding that there are children who need him and an offer of employment which he can take up immediately. True it is, those things did not stop him offending before, but they are in the context now of his time in custody and detention, his being brought to the brink of being sent back to South Sudan which he fears and his current prognosis concerning his psychiatric and psychological conditions if he receives appropriate treatment. The other context is of his own rehabilitative efforts whilst in custody and in detention and the intervention of some counsellors to assist him that I refer to below.
There is also the fact that the Applicant has in fact tried to do some things to redress his propensity to offend. To that end, whilst incarcerated he has probably done as much as he could engaging in programs directed to dealing with some of the other likely contributors to his offending behaviour. Those courses have dealt with substance abuse and his aggression. There were some documents, contemporaneous notes taken by others, that confirmed that the Applicant was genuinely engaged in those courses. One such note recorded that the Applicant ‘showed insight into his behaviour’. There was, as the Applicant submitted, a consistent pattern of engagement in the courses he did. He also attended four counselling sessions whilst in detention which involved the NSW Service for the Treatment of Rehabilitation of Torture and Trauma Survivors while he was at Villawood detention centre. He said that in future he intended to walk away from arguments with his partner, remove himself from the conflict, and apply the strategies he has learnt from the courses he has done. It is difficult to say but there is some prospect that the courses he did in custody and the treatment he received in detention will have helped him for the future so far as re-offending is concerned.
He has also expressed remorse for his offending conduct. I accept his remorse is genuine. He has expressed it at earlier times as well. I have seen and heard what he had to say about it. I accept the Minister’s submission that such matters must be treated with caution, considerable caution in my view, especially having regard to the fact that the Applicant has expressed his remorse previously and nonetheless has continued to commit very serious offences. Nonetheless, his genuinely expressed remorse and the things he has done to make sure he does not offend again run in his favour.
In my view the engagement by the Applicant in rehabilitation and his expressed remorse are important even though he had expressed remorse when he had offended before his previous visa cancellation, largely because he had not then engaged in any rehabilitation and because of the matters that I will refer to below concerning the counsellor’s assessments. I also consider the role of the Applicant’s partner in assisting him in future, especially so far as compliance with his medication is concerned, to be a significant difference to the circumstances that existed when his visa was previously cancelled. I accept that his statements about his future intentions needed to be approached carefully.
Next, I turn to some of the evidence concerning his mental or psychological state. A report was provided to the Tribunal that was prepared by Mr Tsolis, a clinical psychologist. The report was dated 7 July 2020, but even though it is nearly a year old it is unlikely so far as the matters that the report deals with are concerned that much has changed since then. The report diagnosed the Applicant as suffering from Post-Traumatic Stress Disorder and Major Depressive illness. It noted the Applicant’s previous diagnosis of schizophrenia and his history of substance abuse.
The report made recommendations about therapy and other things that the Applicant should engage in which were by and largely directing towards the establishment of ‘pro-social behaviours.’ The prognosis was, so far as reoffending was concerned, having regard to the Applicant’s ‘insight that he has gained into his own psychological trauma and behaviours’ along with the support available and the commitment expressed to seeking treatment that it was unlikely that the Applicant would continue offending. Mr Tsolis explained that it needed ‘to be remembered is that [the Applicant’s] upbringing pretty much made it impossible for him to get, you know, the normal I guess social skills that the rest of us would, you know, would pick up very, very naturally’ and that his conditions had not been treated. He was not prepared to give any percentage to the Applicant’s likelihood of reoffending, but he expressed the opinion that the probability, in his view, was low.
I am reluctant to accept that assessment especially given that it was made on the basis of only one consultation with the Applicant and relied a great deal on what the Applicant reported. It involved no formal testing of any kind. Nonetheless, some of the information in it, such as the identification of therapy and the need to establish pro-social behaviours, is important as it demonstrates some of the things that are open to the Applicant. I accept the report so far as it suggests that the risk of reoffending was moderated by some of the other factors that I have referred already to.
There was also other evidence from Mr Nemorin, a counsellor who provided four counselling sessions to the Applicant while he was in detention. Although he only provided four one hour sessions to the Applicant, some of his evidence was particularly instructive and persuasive so far as demonstrating that through his counselling with the Applicant, Mr Nemorin had identified that the Applicant had a genuine desire to make amends and an intention to do better. Mr Nemorin’s evidence was persuasive to the conclusion that the risk of re-offending might not be as great as one might first think. Part of his evidence is worth recounting:
There was a lot of reflection, particularly around his relationship with his partner, some of the events that precipitated towards that. He took responsibility for his actions whilst also attributing, you know, some of the negative behaviour that he was involved in based on past trauma and his - well, I guess, his anti-social behaviour as well. You know, a lot of the sessions did touch on shame and the shame, you know, of how things had happened in the past, you know, violence, et cetera. But I think, as I tried to mention before, in one of the things that was transformative for KMJM was seeing the love of his partner, despite everything. And I think for someone who had grown up in the environment that he did, you know, the abandonment, the loss, the experience of being shown genuine love and care was a very foreign concept for KMJM. And we talked about that a lot. There was a desire from KMJM to make amends, there was a reflection to do better and a lot of that was around things that I’d mentioned before in terms about, you know, taking responsibility for his life, taking responsibility for his family and also taking responsibility for his family overseas.
Mr Nemorin expressed the opinion that trauma counselling reduces the probability of reoffending but accepted that he was not qualified to express an opinion on the probability of the Applicant reoffending. Mr Nemorin’s evidence was that in his opinion the Applicant was invested in the process and had expressed a desire and willingness to engage in further counselling. That is, in my opinion, more than a little significant. The balance in Mr Nemorin’s evidence is something that gives me some comfort in relying upon it.
One aspect of the evidence of both Mr Tsolis and Mr Nemorin was a little surprising, especially given that mental health issues were identified from time to time during the Applicant’s interaction with the criminal justice system over a long period of time. That was that there appears to have been no interventions or assessments over that period that identified the kinds of things that both of them had turned up. That is, there appears to have been no assessment made that identified much at all about why the Applicant was a repeat offender and what might be done in that respect. The evidence they gave was persuasive about both things and especially about the prospect that things could realistically be done to reduce the Applicant’s risk of re-offending. It remains to be seen what the Applicant does but, in my assessment, having regard to the evidence about his ‘engagement’ in the process, his desire to make amends and his acceptance of responsibility, the prospects of must be considered favourably albeit even only slightly so given the Applicant’s past record.
The issue is a vexed one but having regard to each of the factors I have identified, I think there is a real risk, albeit not a high one, that the Applicant will re-offend again. I do not consider that the risk, having regard to the likely consequences, is unacceptable. It is certainly one, when considered on its own, that the community should not have to run, but when considered with the factors that may realistically help the Applicant from re-offending, his attempt to rehabilitate himself and the real prospect that future treatment may genuinely help him it is one that community could take a chance about because of those factors that weigh in favour of revocation which I deal with later.
I am satisfied that the nature and serious of the Applicants criminal conduct to date is very serious, that the likelihood of the Applicant reoffending is real, this consideration is one that stands firmly in the way of non-revocation; however mostly so because of the very serious nature of the Applicant’s conduct to date.
FAMILY VIOLENCE
This consideration directs attention to Australia’s concerns about permitting people who are not citizens who engage in family violence to remain in Australia. The Direction expressly refers to the fact that those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There are three particular sets of offending that involve family violence; more particularly, violence against his partners at the time that are relevant. They are the offence against his pregnant partner in October 2014, assault occasioning actual bodily harm that involved punching her several times to the head; two offences in December 2019 of assault occasioning actual bodily harm and another of contravening a condition in an apprehended violence order; as well as the common assault offences against his partner which he was sentenced for on 28 January 2020. There were three relevant apprehended violence orders.
There are two broad periods of time when the offences were committed: late 2014, and late 2019 to early 2020. The two most recent offences are more frequent than before. Likewise, they all appear to be very serious offences with comparable levels of violence involved; physical violence involving punching is the main thing they seem to have in common. The later offences occurred after the warning in 2016 following revocation of the then cancellation. I note there was nothing specific then about the consequences of further acts of family violence, as this particular consideration was introduced in the revised Direction in April 2021.
I have referred earlier to the rehabilitation courses that the Applicant has undertaken whilst in prison and his remorse. It is unnecessary to repeat those things again other than to observe that they demonstrate that the Applicant has been genuine in his attempts to rehabilitate himself, confined as he is to those things that are available to him in prison. I gained the impression that he understands his wrongdoing from his evidence as well as what he needs to do to avoid offences of this kind in the future. So far as understanding his offending, acceptance of responsibility and remorse are concerned I will not extract again what Mr Nemorin said about those things.
I have referred earlier to the warning that the Applicant received by reason of his previous visa cancellation. Again, I do not repeat what I said about that here and my consideration of it.
In my assessment, given especially what the Applicant has done about rehabilitating himself to the extent that he can whilst incarcerated and his remorse, this consideration weighs against revocation of the visa, but having regard to those matters not strongly so.
THE MINOR CHILDREN
There are six young children who will be affected by this decision, two of whom face the stark reality that if the visa remains cancelled that the greatest likelihood is that they will not see their father again. I am required to determine whether non-revocation is or is not in the best interests of each of the relevant children.
The first child is now about 6 years of age. His mother died when he was a little over 18 months of age. The child is in the regular care of the Applicant’s step-sister who, it may be accepted, presently stands in the position of parent for all intent and purposes. That has been so since some time in 2016. The Applicant is the child’s biological father. The Applicant described that ‘he had a strong bond’ with the child. The Applicant filed an application in the Federal Circuit Court of Australia in late January 2019 seeking sole parental responsibility of the child and that the child live with him. Since 2016, presumably other than when he was in custody on 2016 and 2017, the Applicant has spent time with the child on weekends. The child would stay at the Applicant’s partner’s home overnight on Saturday when the Applicant moved in with her, at about the time the second child was born. His time in a relationship with the child was something like four or so years but was interrupted by his time in custody in 2016 and 2017. It ended when the Applicant went into custody most recently.
The second child is now about two and half years old. The child lives with his mother, the Applicant’s partner, and her four other children. The Applicant also lived with the child for about a year before he went into custody. The Applicant evidence was that ‘I cook him dinner and clean the house and tuck him into his bed’. He did a lot of ‘simple things that a father can do for his children’. The time he has spent in a meaningful relationship with the child to date is less than a year, though this does not diminish his commitment for the future.
The Applicant’s partner lives with and cares for the second child along with her four other children. I will say a little more about her later but for present purposes it is necessary to note that she gave evidence that she and the second child have regular contact with the Applicant by phone and, video and text. This was, at least initially, the product of the pandemic, but now is more a consequence of the Applicant’s relocation to Yongah Hill while his partner and the children remain in New South Wales.
The Applicant’s partner says she is unable by herself to provide emotionally and financially for the second child, as well as the other children. She is currently in receipt of a parenting allowance from Centrelink. She does not work in paid employment. I accept her evidence about this because there is something real about the fact that a single parent caring for five children under 17 years of age would be challenged by their position. Her evidence was also generally given frankly and there was no suggestion that she was not telling the truth. She says the children need their father in their life. I do not accept that it is necessarily the case that she looks to the Applicant predominantly for financial support. It is true that that was an important factor for her, but that is hardly surprising given the financial position in which she finds herself and her need to providing for her children. She said that the Applicant had supported her from immigration detention by calling ‘on a daily basis, every morning and helping and praying for things to get better.’
There are, as I have already said, four other children who are the children of the Applicant’s partner. They are 10, 12, 14 and 17 years of age. The Applicant’s partner gave evidence that they do not see their biological father and in effect, since the Applicant moved in after the birth of the second child, he had fulfilled the something like the role of a father. He did homework with them, played with them, got them ready for school in the morning and so on. The third child, who is now 17 years of age wrote a letter last year describing the Applicant as his stepfather. The letter also said of the Applicant that ‘when he does not drink, he is a nice and kind including to my siblings’. The reference to when he does not drink is not necessarily a reference to drinking in front of the children as is suggested; it may simply refer to the Applicant’s return home after he has been drinking. In any event, the letter supported the difficulties that his mother was having. The letter spoke of the moral support that the Applicant had provided to the child, his provision of advice and the practical things, providing food and money, that the Applicant did for the child. It confirmed that the Applicant had ‘never been mean to me’ and ‘he is a very kind person to all of us’ (which I read as a reference to him and his siblings).
The four children have had the Applicant in their lives on since their mother started her relationship with him in 2018 and lived with him in their home for about a year after the birth of the second child where, as I said, he occupied something of the role of a father. The relationship is not parental, but he lived with them and assisted with their care. He cared for them in particular between about 5am and 7am every morning when his partner went to work, and the children were waiting to be taken to care or school. The children have been in contact with the Applicant daily through phone calls, video calls and text messages. This is all that is possible since the pandemic commenced and then later when the Applicant was moved to Western Australia.
I should add that neither of the instances of violence directed to the children’s mother were witnessed by any of the children and there is nothing that would suggest that any of the children have suffered as result of any of the Applicant’s actual offending . It is unlikely that his conduct in the future will have any direct negative impact upon them. There is certainly no evidence that it will. He is likely to play a positive role in their lives if he is able to stay away from alcohol, seek appropriate help for his mental illness, and remain compliant with his medication regime which I consider as having some likelihood, given the matters I have referred to and considered earlier. The fact that he has not offended in front of the children at any time is also very important. His care for the first child over many years and his care in the short time he lived with his partner and the other five children suggest he is likely to be a positive factor in their lives. His work ethic as a hard worker is something that suggests he would be a positive influence on them in the future. The kindness he has shown his partner’s children also suggests as much.
I do not accept that contact with the children by telephone should the Applicant leave Australia is a matter that should play a significant factor in this consideration, because such contact would be no substitute for the emotional and financial care that the Applicant could offer them in Australia. I also have doubts about the Applicant’s ability to maintain such contact from South Sudan, given the personal and financial position he is likely to be in if he returns there which I deal with later. I do not consider of any of the children from the Applicant would be in their best interests. In particular, so far as the first and second child who are his biological children, I do not consider that it would be in their best interests given that he is their father.
I am satisfied that the best interests of each of the minor children in question weighs firmly in favour of revocation given the likely impact upon the children due to the loss of their father, or someone who is prepared to occupy that role for them, as a carer and a provider and someone who is likely to assist their mother in their upbringing.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I am required to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia:
has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia
This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.’
Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.
I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[4] This involves an evaluation about how strong this factor is in the particular circumstances of the case.
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
The nature of the criminal offending involving violence against women constituting family violence as well as offences against government officials is such that the expectations of the community are a weighty consideration in favour of non-revocation. The offences are very serious, but the conduct if repeated and the harm likely to be caused if they were to be repeated is not so serious that revoking the mandatory cancellation is out of the question. The Applicant has been in Australia for about 15 years. He has made some contribution to the community through paid employment in the since 2016 as a restaurant worker and later as a construction worker. Those are matters that may slightly moderate the weight to be given to this consideration, that is the Australian community may be more tolerant given the Applicants time and contribution to the community.
I am satisfied that the expectations of the Australia community are such that the weight to be given to this consideration should be only slightly moderated, but nonetheless, this consideration is a weighty matter that stands in the way of non-revocation.
FEAR OF RETURN TO SOUTH SUDAN
I am required to consider Australia’s international non-refoulement obligations, which involves a duty not to forcibly return, deport or expel a person to a place where the person will be at risk of harm. The obligation is found in various international instruments to which Australia is a party which are the Convention Relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.
I am required to give weight to this consideration by engaging with the circumstances confronting the Applicant and what is really being done to him. When weighing this consideration, I need to be satisfied that a non-refoulement obligation exists; and second, I need to determine what are the consequences of it in a practical legal way.
The first matter is where the Applicant will be returned if he is to be returned anywhere. This arises because of the establishment of South Sudan since the Applicant left Sudan. After the civil war ended, South Sudan was established. The Applicant was born in Nymlal and was a member of the Aweil ethnic community, which is an ethnic community of South Sudan. The effect of the Nationality Act 2011 (South Sudan) is that a person who belongs to one of the indigenous communities of South Sudan is a citizen of South Sudan. Likewise, any suggestion of his having Sudanese nationality is dispelled by the Sudanese Nationality Act 1994 which provides that if a person acquires de jure nationality of South Sudan their Sudanese nationality is revoked. The resolution of the issue is straightforward. The Applicant would be returned to South Sudan if he does not get his visa back. That was the Minister’s position and it is undoubtedly correct.
The second matter is whether the Applicant has a well-founded fear of harm in the event he is returned to South Sudan. The Applicant said in his evidence:
Due to my mental illness, I will suffer discrimination and harm in South Sudan especially as I am from the border between Sudan and South Sudan and as a person who has come from overseas, I will be forced to engage in the civil war that is happening in South Sudan this period.
He also said that: ‘
There is a lot of hatred for people who come from overseas in South Sudan as they believe we are spreading the disease and due to my mental illness I am very susceptible to infection and COVID 19 is spreading still even in South Sudan.
The basis of the Applicant’s fear of harm in South Sudan is his fear as being a returnee from overseas and as person suffering from mental illness.
In order to consider and understand these claims, it is necessary to consider some of the information that is available concerning South Sudan both generally and specifically.
A useful starting point is the Department of Foreign Affairs and Trade published a report titled ‘Country Information Report South Sudan’ on 5 October 2016 (DFATR). The DFATR was prepared for ‘protection status determination purposes only’, but there is no reason to believe that it is anything but accurate because it was prepared for some different or other purpose. Given the sources from whom information is collected are identified within the DFATR it is likely to be both credible and reliable. Although five years old it is likely to still have relevance today because other information to which I later refer to tends to create the strong impression that not much has changed since October 2016.
The DFATR records much about the conflict, crime and poverty being the prevailing features of life in South Sudan. The Department of Foreign Affairs and Trade Travel Information published 26 August 2020 (DFATTI) identified the humanitarian situation in South Sudan as ‘dire’ with over ‘four million people internally displaced or seeking refuge in neighbouring countries’. The Australian Government’s Smarttraveller Guide advises against travelling to South Sudan. It confirms that the position today so far as violence, crime and terror in South Sudan is much the same as it was in October 2016 when the DFATR was published. None of this information depicts South Sudan as a very pleasant place to be, and one might add that it is hardly likely to be better in a world afflicted by the pandemic.
The DFATR says that social discrimination and violence are linked to a person’s ethnicity mainly through the formal conflict between the Government and the main arm of opposition, the Sudan People’s Liberation Movement in Opposition (SPLMO) and through informal tribal conflict. There is a little detail about the tribal conflict between the three main tribes to which I will come but none of that particularly or directly concerns the Applicant’s tribe, the Aweil. The security situation in South Sudan is described by DFATR as ‘extremely volatile’, noting that given the ‘frequency of inter-tribal conflict throughout the country, it is difficult to provide an accurate overview of the current security situation’.
The DFATR tells that ‘[e]thnicity is a common cause of societal and official discrimination and violence’. Three prominent ethnic groups, Dinka, Nuer and Shilluk are said to be most at risk but ‘there are credible examples of other ethnic groups facing risk, mainly from inter-tribal conflict…which can be complicated by an individual or ethnic groups actual or perceived political opinion.’ There is no elaboration on which ‘other ethnic groups’ are involved in such violence or how it might arise. On one view it is sufficient to say that the Applicant has an ethnic group so potentially that group is within the class of people at risk. That, as the Minister suggested, expresses things at a fairly high level of generality. There is, however, more than that which is germane to the Applicant’s situation.
The DFATR identified that so far as conditions for people returning to South Sudan were concerned, much depended, again, on their ethnicity and whether the person was perceived to have questioned the Government. The information focuses on those with Dinka, Nuer and Shilluk links but stressed that without the existence of substantial protection of Civilian Camps, a real risk still exists (albeit particularly for those perceived to be associated with amongst either the Nuer or Shilluk or the SPLMO). The risk of violence appears to be informed by ethnicity although political opinion and perceived political opinion play a part.
The United Nations High Commissioner for Refugees in its April 2019 Position on Returns to South Sudan–Update II (UNHCRU) recorded:
…the United Nations Mission in South Sudan (UNMISS) continues to corroborate incidents that pose a threat to human rights and physical security. They include instances of killing or wounding civilians, abduction, sexual violence, arbitrary arrest and prolonged detention, the recruitment and/or use of children by armed groups or forces, forced displacement, looting and the destruction of civilian property and extortion.’
It also concluded that:
…persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention or would otherwise meet the criteria contained in the refugee definition in Article 1(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa.
Relevantly, so far as overseas returnees were concerned, UNHCRU said that:
The security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of safe and dignified return for any person originating from South Sudan, whether or not the individual is found to be in need of international protection. Accordingly, while UNHCR recognizes that political changes are underway in South Sudan, the impact of these changes on the ground are not yet such as to make return under conditions of safety and dignity feasible. Therefore, UNHCR reaffirms its April 2015 position on return to South Sudan–Update I, recommending States to suspend forcible returns of nationals or habitual residents of South Sudan to the country.
In a report titled Mental Health Impact of South Sudan’s Conflict Amnesty International (Amnesty Report) reported that mental health facilities ‘remain practically non-existent’, ‘that there is a dire shortage of trained mental health professionals’ and that there ‘are only two practising psychiatrists in the country’. More disturbingly, the same report refers to ‘the routine use of prisons to house individuals with mental health conditions’ and that ‘[i]ndividuals with mental health conditions deemed to pose a danger to themselves or others often end up arbitrarily detained in prison, even if they have not committed any crime’. The same report said that there was insufficient medical care provided to people in prison ‘if any at all’.
The DFATR says that ‘conditions in prison are harsh with significant overcrowding, inadequate sanitary conditions and a lack of medical care.’ But for those with mental illness the situation is worse, as the Amnesty Report observed, with them left ‘often naked, chained or held in solitary confinement’. It is sufficient to say, as the Amnesty Report concluded that:
‘detention of people with suspected mental disorders violates a host of rights, including the prohibition of arbitrary detention, the right to non-discrimination, to health, to due process as to be free from cruel, inhuman and degrading treatment or punishment’.
There was no issue that the Applicant suffers from mental illness, having been diagnosed some years ago as suffering from schizophrenia and more recently with post-traumatic stress disorder. He will, if returned to South Sudan, be returning from overseas. He also carries with him his own ethnicity. It follows that I am satisfied that if forced to relocate back to South Sudan the Applicant would be exposed to the very real risk of harm whether it be by arbitrary detention or by being subject to other forms of violence and inhumane treatment because he is a person who is identified as someone returning from overseas or because he is a person who suffers from mental illness or both. In addition, the ethic group with which he identifies and perceptions about that group’s political position are a possible source of the risk of harm to the Applicant. The Applicant is a person to who non-refoulement obligations are owed.
It was submitted for the Minister that because the ‘limitation on access to mental health treatment in South Sudan is clearly a situation that is faced by the population generally and is not one of the types of harm encompassed by Australia’s interpretation of its non-refoulment obligations as enunciated in the Act’ I should not have regard to it. Aside from the fact that Australia’s international obligations are in the Conventions to which I have referred and are wider than the criteria in the Act[5], the issue is not whether that access to health care is a problem faced by the population generally. The issue is whether people who suffer from mental illness are treated less favourably than the population more generally, because they suffer from or have the attributes of a mentally ill person and, more significantly, whether they are subject to harm, because they are people who are mental suffering from mental illness. It is clear that once the matter is viewed that way there are non-refoulment obligations under each of the Conventions identified.
[5] Ali v Minister for Home Affairs [2020] FCAFC 109 at [24]
I am satisfied that the Applicant is a person who is likely to suffer harm if he is returned to South Sudan such that Australia has non-refoulement obligations.
THE CONSEQUENCE OF THE OBLIGATION
The Direction says that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of the visa because the decision not to revoke the mandatory cancellation will ‘not necessarily result in the removal of the non-citizen to the country in respect to which the non-refoulement obligation exists’. This is because the Direction notes that consideration may be given to removing someone to somewhere other than their country of origin, or the Minister might consider personally intervening and grant a visa under s 195A, or consideration might be given to making a residence determination allowing a person to reside in the community subject to conditions. There is also the prospect of an application for a protection visa and the Applicant would, at least, not be removed whilst that was being processed. Although these are examples of means by which a person to whom non-refoulement obligations is owed might not be refouled, there do not appear to be any other means by which that consequence would be avoided.
I accept that each of those avenues which may or might be considered are legally available to the Applicant and that consideration of them may or might occur in the future. The question is the practical likelihood that will result from any consideration of those possibilities; that is, what is likely to happen if any of those things are pursued and considered.
In large part, those considerations would in likelihood be informed by the Minister’s position in this application which is that the cancellation of the visa should not be revoked principally because, so it would seem, the Applicant poses an unacceptable risk to the Australian community. It is the position taken by the Minister that makes the favourable consideration of any of the options referred to that all involve the Applicant remaining in Australia unlikely.
In MNLR[6] Wigney J referred to the ‘incongruity’ involved in arriving at a position where some other option would be permitted by the Minister in circumstances where the Minister has opposed this application on character grounds. Kenny and Mortimer JJ expressed the position differently although with similar effect in WKMZ[7]:
[I]t is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the “national interest’’.
[6] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [55]
[7] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124]
Bromberg and Mortimer JJ said much the same in DCM18[8] describing the prospects of the applicant in that case, who was in materially similar circumstances as the Applicant, namely having had his visa cancelled on character grounds twice together with a serious criminal record, as ‘infinitesimal’ which was said to be:
…a “logical deduction grounded in the seeming improbability” of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community.
[8] DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [108]
I should, because of the Direction, act on the possibility that the Applicant will not necessarily be removed because the Minister might consider and grant to the Applicant another visa, but I would do so by considering the prospects of that happening as possible, even though, unlikely as I have said because of the Minister’s position in this application.
The other possibility is that the Applicant might apply for and be granted a protection visa, but that application would be based upon satisfaction of the criteria in s.36 of the Act and not upon the wider evaluative considerations raised by s. 501CA(4)(b)(ii). In particular, that application need not deal with the Australia’s departure from the obligations under any of the Conventions to which Australia is party that engage the obligations or the consequences of non-compliance with them. Again, and in any event, the prospect of the Applicant being granted a protection visa are unlikely having regard to the Minister’s opposition to this application because of the character concerns he has about the Applicant.
The other possibilities, resettlement to another country or the making of a residence determination with conditions, seem a little speculative given that I have no evidence or information about the likelihood that those things will happen. I do not know what would inform that happening, how they would be implemented and what any conditions might be. In circumstances where the consequences are so grave, both for the Applicant and for Australia’s international reputation, I should not speculate about them. In the absence of evidence or information about them I do not regard them as realistic possibilities.
It follows that there is practically only two alternative consequences of non-revocation: the Applicant will be refouled contrary to the obligation with the likelihood of serious harm to him in South Sudan and serious damage to Australia’s international reputation or he will be indefinitely detained in Australia because he will lack any lawful permission to reside in Australia.
The latter consequence is the likely result because of the recent amendment to s.197C of the Act which precludes removal of someone where a ‘protection finding’ has been made. This is likely to be the result of any application for a protection visa which as I have observed is unlikely to be granted because of the Minister’s character concerns. I should take the prospect of indefinite detention into account because ‘liberty is one of the most basic human rights and fundamental freedoms known to the common law’ to borrow the words of Kenny and Mortimer JJ in WKMZ[9]and the Applicant would be deprived of it.
[9] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123]
Both possible consequences of non-revocation of the mandatory cancellation of the visa are both weighty considerations that weigh in favour of revocation.
Finally, it is also important to observe that the Direction specifically contemplates that:
[a] decision maker, making a decision under section 501/501CA, is not required in every case to make a positive finding whether the claimed harm will occur, but in an appropriate case may assume in the non-citizens favour that claimed harm will occur and make a decision on that basis.
I consider this is an appropriate case where I should weigh this factor in favour of the Applicant, especially because I am satisfied the claimed harm to him in South Sudan is likely to occur and because there are other factors that favour revocation. I also consider this to be an appropriate case to make a positive finding because I have found that this is a case where the risk of reoffending or further offences is not unacceptable.
I consider that this consideration weighs strongly in favour of revocation of the cancellation of the visa.
WHAT DIFFICULTIES WILL BE FACED IN SOUTH SUDAN?
I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in their home country. The basic living standard referred to in the Direction is by reference to that which is available to other citizens of that country. I am required to consider age, health, language and cultural barriers, and social, medical and economic support that may be available.
The Applicant is a relatively young man being around 40 years of age. He lived in Sudan for about the first 25 or so years of his life even though some of those years were spent trying to leave Sudan. He would have some familiarity with the culture of Sudan and because he was from the area that is now South Sudan. He speaks Dinka and Arabic.
So far as support in South Sudan the Applicant only has his elderly mother in South Sudan. She is unlikely to provide him with much support, emotional or otherwise.
His ability to establish any standard of living in a country where ‘the humanitarian situation is dire’ and people are leaving to be refugees elsewhere. According to the DFATR employment opportunities, whether formal or part of ‘informal trade’ economy, were worsening. Only 12 per cent of the population are actively in employment in the formal part of the economy. It is relevant that he suffers from significant mental illness problems, schizophrenia and post-traumatic stress disorder. His mental illness conditions are serious ones. They too will make his re-establishment and maintenance of any life in South Sudan extremely difficult, especially so because he is, as I have already observed, unlikely to be able to obtain any meaningful or perhaps any treatment at all for that condition in South Sudan. He is a returnee and the UNHCRU recommends against return because it would not be safe or dignified which suggests there will be difficult for the Applicant establishing a basic living standard.
Finally, the general situation in South Sudan involving as it does violence, serious crimes such as killing, wounding, kidnapping, looting, destruction of property and so on, poverty and human rights violations are all likely to stand in the way of him establishing any basic standard of living. The pandemic will not help that either. Even if the comparison is to the standards which is available to the general population is the measure it is difficult to see how, as mentally ill man returning to South Sudan after very many years away from there, he will be able to establish any meaningful standard of living.
In the circumstances, the impediments confronting the Applicant establishing a basic standard of living even when compared the general population of South Sudan are enormous. I consider that this consideration weighs strongly in favour of revocation.
TIES TO THE AUSTRALIAN COMMUNITY
The Direction requires that attention be paid to links to the Australian community which are broken into two categories, first the strength, nature and duration of ties in Australia, and second, the impact on Australian business interests. I will deal with them in turn even though it is a little remarkable that the second category has even been raised for consideration.
So far as the strength, nature and duration of the Applicant’s ties to the community are concerned, I must consider how long the Applicant has lived in Australia but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.
The Applicant has been in Australia for a little over 15 years. His offending started within about 18 months of his arrival and his more serious offending started about five years after his arrival. He was employed after 2016 as a restaurant worker and after that in the construction industry for about 3 years. His last employer regarded him highly as a worker because of his hard work, reliability and flexibility such that he indicated he would re-employ the Applicant if he stayed in Australia. He obviously has ties to that employer.
He has two uncles in Australia and a sister in law. He has about ten cousins here. He, of course, has his two children and his partner and her four children. His family members, his partner and children all appear to be permanent residents of Australia and as such are entitled to remain here. His ties to his immediate family appear to be close. The Applicant has some other friends, such as the Chairman of the Aweil Community in New South Wales who he has known for ten years. He has some other friends too. He has links to the Aweil community in Australia to whom he has contributed over some years.
I consider that his consideration weighs in favour of revocation of the cancellation of the visa; in particular, having regard to the ties that the Applicant has and the fact that he has contributed to the community by paid employment for the whole time. His offending history, having started shortly after he came to Australia and its consistent pattern means that the weight given to this consideration must be reduced. I give it moderate weight.
I am also required to consider the impact on Australian business interests if the person is not allowed to remain in Australia. The Direction makes clear ‘that an employment link’ would generally only be given weight where the decision under s.501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The only evidence relevant to this consideration was the offer of employment to the Applicant by his former employer as a construction labourer. I do not consider that that is what this part of the Direction is concerned with. I have dealt elsewhere with the relevance of the job offer. There is no question that any project let alone major project will be impacted or that delivery of a service let alone important service will be impacted. There is nothing I can see about how any business will be impacted if the Applicant is not employed by the prospective employer who has offered him employment. This part of this consideration is not relevant to my satisfaction about whether the cancellation should be revoked or not.
As I have said the Applicant’s ties to the Australian community should be given some meaningful weight in the overall consideration of whether there is another reason to revoke the cancellation of the visa.
THE VICTIM(S) OF THE OFFENDING
This consideration requires attention being given to the ‘impact of a decision not to revoke on members of the Australia community, including victims of non-citizen’s criminal behaviour, and the family members of the victim or victims where the information is available and the non-citizen being considered for revocation has been afforded procedural fairness.’
The Applicant’s partner, the only victim who I have evidence about, will be impacted by the decision that is made here. It is clearly her desire that she have the Applicant in her life for her own benefit and that of the children. She says she needs the financial and emotional support of the Applicant. The issue of the victim of the Applicant’s domestic violence offending wanting him in her life after his offending is a complex one and is made more complex by reason of the fact that the Applicant is the father of one of the children. In effect, she as the victim of the Applicant’s offending says she will be a victim a second time if the Applicant returns to South Sudan.
I referred earlier to the Applicant’s partner’s evidence about her situation as the sole ‘bread winner’ and carer for five young children who are all under 17 years of age, the youngest of whom is not yet three years old. She says that before he went to prison the Applicant helped her and that is how they coped. She says that she has had difficulty coping and as I have said that is hardly surprising given that she is a single mother on parenting benefits with five young children to care for.
The human consequence to the Applicant’s partner of non-revocation of the cancellation is reasonably significant. I should treat this consideration as weighing in favour of revocation.
THE CANCELLATION SHOULD BE REVOKED
I have found that the protection of the Australian community and consideration of family violence weighs firmly in favour of non-revocation of the cancellation of the visa. The consideration of the Applicant’s risk of reoffending, his rehabilitation efforts and prospects of future rehabilitation, and his understanding of his wrongdoing all moderate the weight that I would otherwise give to this consideration having regard to the seriousness of the Applicant’s offending. I have also found that the expectation of the Australian community favours non-revocation of the cancellation. I have found that the best interests of the Applicant’s two children and the four children of his partner firmly weigh in favour of revocation. The primary considerations weigh against revocation of the cancellation.
So far as the other considerations are concerned, I have found Australia’s non-refoulement obligations weigh firmly in favour of revocation, that the impediments to the Applicant if he returned to South Sudan weigh firmly in favour in favour of revocation and that the strength, nature and duration of his ties to Australia weigh moderately in favour of revocation. The impact upon the Applicant’s partner as a victim of the Applicant’s offending is a weighty consideration in favour of revocation.
Although generally the weight given to primary considerations should be greater than that given to other considerations, this is a case where I consider it appropriate to treat the other considerations as being weightier because this case is one that is outside the circumstances that generally apply. The significant human consequences to the children involved, which is a primary consideration, the consequences to the Applicant’s partner even though she was victim of the offending and the personal consequences to the Applicant and the likely harm he will suffer if returned to South Sudan acutely define another reason for revoking the cancellation of the visa.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian (Permanent) visa.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member Reitano
.........................[sgd]...............................................
Associate
Dated: 7 July 2021
Date(s) of hearing: 17 & 25 July 2021 Solicitors for the Applicant: Iyare Lucky Ehimudiamen (Lucky Iyare & Associates) Solicitors for the Respondent: Lauren Hargrave (Clayton Utz)
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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