KMXK and Minister for Home Affairs (Migration)

KMXK and Minister for Home Affairs (Migration) [2019] AATA 1234 (11 June 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1702
Re:KMXK
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:11 June 2019
Place:Adelaide

The decision under review is affirmed.
..............[Sgnd]..........................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Omar v Minister for Home Affairs [2019] FCA 279
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
11 June 2019
INTRODUCTION

This matter relates to an application for review filed by KMXK (“the Applicant”) on 29 March 2019. The Applicant seeks to review the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 20 March 2019 not to revoke the mandatory cancellation of his visa.
At the hearing before me, the Applicant appeared unrepresented. The Respondent was represented by Mr Arran Gerrard, Australian Government Solicitor.
BACKGROUND
The Applicant was born in Bor, South Sudan in 1998. He is currently aged 21 years and is a citizen of South Sudan.
The Applicant was separated from his parents at a very young age. He, together with his aunt, uncle, and two cousins fled South Sudan in 2000, when he was aged 2 years. They eventually went to a refugee camp in Kakuma, where they stayed for four years before coming to Australia.[1]
[1] Exhibit A, G Documents, page 51.
On 27 April 2005, at the age of 7, the Applicant arrived in Australia and was granted a Class XB Subclass 202 Global Special Humanitarian visa.[2] This is the visa that is the subject of this application.
[2] Ibid, page 62.
The Applicant has an appalling criminal history as outlined in his National Police Certificate.[3] He first appeared before the Youth Court of South Australia at the age of 12. His first conviction was recorded against him when he was aged 14 years and he thereafter frequently appeared before the Adelaide Children’s Court, having been dealt with for a range of offences including offences of violence, dishonesty, failure to comply with bail and bond obligations, carry offensive weapon, and damaging property. He has been sentenced to a number of periods of detention. He appeared before the Adelaide Children’s Court or Youth Court of South Australia each year between 2012 and 2017, accumulating over 70 convictions in that period.
[3] Ibid, pages 26 – 29.
On 16 December 2016, the Applicant committed his first offence as an adult for which he was sentenced on 25 August 2017 to a term of imprisonment of three years and three months, with a non-parole period of two years.
On 9 April 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1988 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.[4]
[4] Ibid, pages 56 – 61.
On 30 April 2018, the Applicant provided the department with representations dated 20 April 2018 seeking revocation of the mandatory visa cancellation.[5]
[5] Ibid, pages 33 – 55.
On 20 March 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa.[6]
[6] Ibid, pages 7 – 9.
On 29 March 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.[7]
[7] Ibid, pages 1 – 6.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act states that 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.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, 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;
…
Pursuant to s 501CA(4) of the Act, the Tribunal 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 25 August 2017, the Applicant was sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for revocation of the Original Decision.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether another reason exists for the Original Decision to be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
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.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 women or children or vulnerable members of the community such as 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 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.
Paragraph 8 of the Direction 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 …
(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 of more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account, where relevant, are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These Other Considerations are (but 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; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers 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 non-citizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(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… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)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);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
Youth Offending
The Applicant arrived in Australia in 2005, aged 7 years. In evidence before the Tribunal, the Applicant said that things started to change when he was aged 11 or 12 years; he began drinking and taking drugs. He smoked marijuana daily from the age of 12. The Applicant said it relaxed him and made him feel good. When aged 13 or 14 years, he started smoking methamphetamine. He said friends introduced him to methamphetamine and that he smoked it through a pipe approximately once a week. He did not know why he consumed the drug but said he would use it when he felt stressed or depressed about not knowing what was happening to his family back in South Sudan and whether his parents were still alive. He said the drug would keep him awake but did not make him more alert or violent. He said he would obtain the drug from “a mate that knows a mate”. The Applicant did not know how much methamphetamine he would consume, but estimated he would spend about $120 a week on the drug, financed from Centrelink payments.
The Applicant said that the drugs changed his life and that his aunt, uncle and cousins, with whom he came to Australia, pushed him away as a result. His relationship with his aunty (“MA”), who was his primary caregiver in Australia, deteriorated and he was “kicked out” when he was 14 years of age for two weeks. When not living with MA, the Applicant couch surfed at friends’ residences. During this time, he was consuming alcohol and marijuana heavily. From there, he was backwards and forwards from MA’s residence, with intermittent periods in detention, until he was imprisoned.
The Applicant said he had previously asked his aunt and uncle, who came to Australia with him, for help. He went to their house and met with them. He was about 16 years of age at this time. He said that after they met they all went their separate ways and they did nothing to help him. He acknowledged that MA tried to persuade him to go to school and he attended until he “got locked up”. He estimated that he had been in detention approximately 20 times.
The Applicant has an appalling criminal history. On 25 May 2012, in the Youth Court of South Australia, the Applicant appeared before Judge Prescott for various offences, namely damage motor vehicle, interfere with motor vehicle without consent, dishonestly take property without owner’s consent, two offences of fail to comply with bond obligation, two offences of fail to comply with bail agreement, and unlawfully on premises. The Learned Sentencing Judge said he was “disturbed” about the Applicant and worried about his future. He noted that he had been in custody for two weeks in March 2012. His Honour had before him a report that said that the Applicant had been smoking, drinking, and using marijuana. His Honour said “It is going to be a very slippery ride from here unless you control yourself. Breaking into cars is going to cause you a lot of grief.” [8] In sentencing, the Applicant entered in a 12 month obligation to be of good behaviour, and was to be under the supervision of an officer from Families SA.
[8] Exhibit B, Supplementary G Documents, pages 123 – 124.
The Applicant’s first convictions were recorded on 19 July 2012 in the Youth Court of South Australia where he again appeared before Judge Prescott on a variety of offences, namely six offences of fail to comply with bond obligation, three offences of violence, one offence of carry offensive weapon and dishonestly take property without consent, and one offence of damage property. On that occasion, the Applicant had been in custody since 8 June 2012 and was sentenced to seven months detention to be released after three months upon entering into a bond. There was an order for forfeiture of a knife. The Learned Sentencing Judge said “You had better improve your behaviour”.[9]
[9] Ibid, pages 125 – 126.
On 12 February 2016, in the Youth Court of South Australia, the Applicant pleaded guilty to a charge of robbery committed on the 26 December 2015 when aged 17 years. In the sentencing remarks, Magistrate Deland noted that the Applicant was released from detention on 1 December 2015; approximately three weeks prior to committing the offence. That offence occurred when the Applicant and another male were picked up by a taxi driver. The driver asked for the fare upfront and tried enter the address of the intended destination into his electronic system. The Learned Magistrate described what then happened as follows:
“You held a knife to his neck and told him to keep going. He did so. You kept saying to him ‘Give me money’ and pushed the knife a little harder into his neck. He produced about $100. You still continued to tell him to give you more money. Eventually he took out his money and a phone. You kept asking for the password and you still kept pressure on the knife.”[10]
[10] Ibid, pages 119 – 122.

The taxi driver was able to drive into a service station and run from the car. The Learned Magistrate described the offending as particularly serious and that she had no doubt the victim would have been terrified. The Applicant expressed his remorse and said he was drunk at the time of the offending. The sentence for that offending would have been one year and six months, however it was reduced by 30% to 12 months allowing for his guilty plea. The Learned Magistrate further dealt with the Applicant for a suspended sentence imposed on 1 December 2015 which, she said, was for identical offending. The suspended sentence was revoked and a further sentence of three months detention was ordered to be served cumulatively upon the 12 months detention imposed for the offence of robbery.
The Applicant was asked in evidence before the Tribunal to explain why he was carrying a knife on this occasion. He said that he was going to a party where he did not know anyone. He said he armed himself with a knife because he did not know what would happen at the party and he wanted to be safe because he had seen violence at parties before. The Applicant was referred to the sentencing remarks of Magistrate Deland and the reference to the knife being approximately 25 cm in length. The Applicant rejected that description and said it was 3 to 5 cm in length, describing it as a pocket knife or flick knife. His explanation for having the knife in his possession was unconvincing. He also denied, contrary to the sentencing remarks, that he took $100 from the taxi driver, but admitted taking his mobile phone. He accepted that this offence was committed approximately three weeks after being released from detention. He said that he had been drinking and had smoked one point of methamphetamine that day.
In cross examination, the Applicant said that, when he got into the taxi, he gave the driver $20 but the driver refused to leave. The Applicant was asked to comment on the summary of facts of offending as contained in Magistrate Deland’s sentencing remarks which were inconsistent with that evidence. The Applicant said, in reference to the court, that they believe whose side they want to believe. He maintained that he gave the taxi driver $20 and did not receive or take money from him. I do not accept the Applicant’s factual explanation for the offending.
The Applicant said that whilst in juvenile detention he had undertaken rehabilitation courses that included “Plus Plus” in which they talked about the offending and what the Applicant would do when released; and drug and alcohol counselling in Adelaide Youth Training Centre (“AYTC”) with Mission Australia which was directed toward learning about drinking and drugs and their effect. He said that course helped him reduce his drug and alcohol use. However, when cross-examined, he acknowledged that the courses were really of no long term benefit to him given he had only been released from detention for three weeks before committing the offence against the taxi driver after consuming alcohol and drugs.
In cross examination, the Applicant was also asked about an offence in 2014 at a petrol station where he punched a security guard. The Applicant said he saw a security guard hit his friend so he went up and hit the security guard. He described three security guards who were “starting up on” his friend and he tried to stop it. He acknowledged that he was intoxicated by alcohol at the time.
Adult Offending
At the time of his adult offending and having been released from detention, the Applicant was living in the city at a facility that supported homeless youths. He said that there were bad people there. He was receiving no support from MA or any other family members. He said he was young and with no parents. He had no other support. The Applicant was arrested for the adult offending, which I will detail below, on 17 December 2016, the day after the offence. He remained in the Adelaide Remand Centre until he was sentenced to imprisonment on 25 August 2017.
Whilst in the Adelaide Remand Centre, the Applicant said he saw MA on one occasion in or about mid-2017 and has not seen her since that time because he was located in Port Augusta Prison. He acknowledged that for some time he has been in custody at Mobilong Prison, just outside of Adelaide, but MA has not visited him there. He said he speaks to her by telephone approximately once a fortnight. This is contrary to the evidence given by MA. She said that she has not visited the Applicant at all whilst he has been in prison. She said that she had asked the Applicant to obtain the address of the prison so that she could visit, however the Applicant had told her that the workers would not give him the address. MA estimates she had only spoken to the Applicant five or six times since he has been imprisoned. She had difficulty contacting the Applicant by telephone.
The circumstances of the offending were as follows. On 16 December 2016 at about 11 p.m. the Applicant was in the company of two other younger males. They were on the banks of the River Torrens. The Applicant was the oldest member of the group and the only adult. They assaulted and robbed a young couple, aged 17 and 18 years, who were walking along the River Torrens.
The Applicant said that he was pressured by his co-offenders into committing the offence. When asked to describe the pressure that they applied to him, he said that the 16-year-old said, after the couple walked past, that he wanted to rob them. The Applicant was again asked to explain what pressure was put on him to engage in the robbery, including his actions in trying to steal the female’s mobile phone, kicking the male, and stealing the female’s bracelet. The Applicant said he was intoxicated at the time, his mate said “let’s go” and so he went. He had admitted he was the eldest member of the group.
The Applicant’s evidence about being pressured into committing the offence was wholly unsatisfactory and fanciful. He provided no satisfactory explanation for his conduct.
On 25 August 2017, the Applicant was convicted and sentenced for that offence and for the first time as an adult in the District Court of South Australia. The offence was attempted aggravated commit theft using force contrary to s 137(1) and s 270A(1) of the Criminal Law Consolidation Act. Judge Cuthbertson, having noted the male and female victims were aged 18 and 17 years respectively, described the Applicant’s conduct as follows:
“On 16 December 2016 at about 11 p.m. the victims were walking along the River Torrens when they were approached by three males … [the Applicant] tried to grab the mobile phone of the female victim causing her to fall to the ground. Her male friend tried to intervene but was kicked and punched by K, and then by [the Applicant] and the third male. They did not manage to take the phone but they did take a bracelet from the female victim after it fell off her.
The offence occurred at a public area … where members of the public frequently engage in recreational activities. The seriousness of the offence is increased by the fact that three persons were engaged in this cowardly attack on a male and female person who were minding their own business and promenading in a public space.”[11]
[11] Exhibit A, G Documents, pages 30 – 32.
Judge Cuthbertson said that the Applicant came before the court with an appalling record. He was then 19 years of age. His Honour said that, by his calculations, the Applicant had about 76 prior offences as a juvenile. His Honour sentenced the Applicant, after reduction of the sentence for his plea of guilty, to three years and three months imprisonment with a non-parole period of two years.
Judge Cuthbertson also said the Applicant’s “interaction with police on the night … demonstrates a cockiness and the fact that he is not at all overawed in any respect by thoroughly of the police”.[12] His Honour also referred to the contents of the victim intact statements and that considerable distress was caused to the victims, especially the female victim by this offending. He also said that “Given the age of the offender and his prior, record, the offence is most disturbing”.[13]
[12] Ibid.
[13] Ibid.
In evidence before the Tribunal, the Applicant did not deny that he was the one who initiated the violence by attempting to steal the female victim’s mobile phone. He said that he punched and kicked the male victim, in particular kicking him to the legs. He could not recall the theft of the bracelet or what happened to it.
The offending that gave rise to this visa cancellation is of a violent nature and is therefore to be viewed seriously. The Applicant received a lengthy sentence for his first offence as an adult, which is indicative of the seriousness of the offending and when viewed against his antecedent history.
The Applicant submitted that he has changed, and that he has demonstrated this by having not been in any trouble since being in prison. The Applicant’s attention was drawn to Department of Correctional Services’ records which show the Applicant has been involved in two incidents, namely making verbal threats of harm towards other offenders via a Youth Worker on 11 May 2017 and an altercation between prisoners on 29 June 2017. The Tribunal notes that, although paragraph 13.1.1(i) of the Direction talks about further crimes having been committed in immigration detention, offences committed in prison are analogous to those committed in immigration detention in that they are committed whilst under supervision and are against the rules of the institution.
The Applicant could not recall the circumstances of the former incident and given the insufficiency of the material before me I do not take that into account.
As for the latter incident, the Applicant’s evidence in relation to this incident was of concern. The Applicant said that he was jumped on by another prisoner however, when asked to detail what happened, he declined to answer the Tribunal’s questions. He said it was a prison rule that you do not speak. The Applicant was pressed by the Tribunal to answer the questions and reminded why he was before the Tribunal. He then said that, when in the Adelaide Remand Centre, he saw someone who he “had beef with” on the outside. He said he was “trying to sort it and talk to him” when that person got his mate. The Applicant said he was leaving but when he went to his cell both men came into his cell and attacked him. The Applicant fought back. He agreed that incident could be described as the fight but said he did not do or say anything to start it.
The Respondent submitted that the Applicant’s criminal history is lengthy and serious, particularly in relation to a number of violent offences committed against vulnerable members of the community. The Applicant’s sentence of three years and three months imprisonment for his first offence committed as an adult is also indicative of the seriousness of his offending, given imprisonment is generally a sentencing option of last resort. The Applicant’s offender history demonstrates a sustained pattern, having accumulated over 70 convictions in a little over five years.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)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).
Judge Cuthbertson referred to the comments of the victims, in their victim impact statements, who described the considerable distress the incident caused them.
Judge Cuthbertson had before him a report from psychologist Dr Lorraine Lim dated 5 June 2017, which report was also before the Tribunal. In that report, Dr Lim opined that the Applicant was not suffering from any significant mental impairment at the time of his offending nor was such impairment present at the time of the interview. He appeared to have been experiencing some elements of Post-traumatic Stress Disorder (PTSD) for many years, arising from his traumatic childhood in South Sudan. He experienced chronic stress and anxiety in response to the precariousness of his immediate family’s welfare and safety in South Sudan. This impacted upon his behaviour, he became behaviourally disinhibited when under the influence of alcohol and drugs, and his judgment became impaired which significantly increased his susceptibility towards negative peer influences.
There were inconsistencies in that report when viewed against the Applicant’s evidence and other material before the Tribunal. Dr Lim reported that the Applicant was sent away to a refugee camp by his father, together with his paternal aunt and uncle, at the age of 5 years, and that his father hoped that he would benefit from the education and employment opportunities in Australia and would eventually be able to support them financially back in South Sudan or sponsor their family to come to Australia on a humanitarian visa. Dr Lim also referred to the Applicant as having been traumatised by memories of the many atrocities he had witnessed on the streets of Bor. However, in a SACE Research Project paper prepared in 2017, the Applicant wrote that he left South Sudan in the year 2000 (aged two years) and went to Nairobi. In 2004, he went to a refugee camp in Kakuma where he stayed for four years before coming to Australia in 2005.[14] I note that the years referred to are not consistent with the Applicant having been in a refugee camp for four years.
[14] Ibid, page 51.
In evidence, the Applicant said that his father did not send him away to a refugee camp but that he, and his aunt and uncle, ran away from South Sudan. His parents did not know of their whereabouts until they telephoned his parents from the refugee camp. It was in that telephone call that his father encouraged him to stay in the refugee camp given the potential future benefits he might enjoy. The Applicant then acknowledged that he may have been as young as two years of age when he left South Sudan. He could not recall witnessing any atrocities, but that he may have heard about atrocities from others. His first real memory was being in the refugee camp.
Dr Lim reported that the Applicant said his aunt and uncle did attempt to intervene and support him in relation to his alcohol use and actively encouraged him to disassociate from antisocial peer groups. Further, that he would not listen to them and they eventually gave up and “kicked him out of home” when he was 13. The Applicant reported that between the ages of 13 and 15 years he lived on the streets or couch surfed at friends’ houses, with intermittent periods of remand in detention. He maintained limited contact with MA during this period. He reported that his uncle gave up on him a long time ago and they had been estranged for many years.
In cross examination, the Applicant was asked to comment on the inconsistencies between his evidence and that reported history from Dr Lim. In particular, that he had said in evidence that he was not he “kicked out” of his aunt and uncle’s home but moved out voluntarily to live with MA who was on her own. He did not couch surf between the ages of 13 and 15 years, but moved backwards and forwards between his aunt’s home and friends’ homes until he was placed in detention. He denied the suggestion of limited contact with MA and said that he did not know where Dr Lim would have got her information, even though some of the reported details were in quotations. He denied giving her that history. He did agree that his relationship with his aunt and uncle and cousins was estranged.
Dr Lim opined that the Applicant would remain a high risk of reoffending if he did not receive specialist psychological intervention for his long-standing mental health difficulties and coping strategies for dealing with his condition.
The Applicant said that, whilst in custody, he has been undertaking the Violent Prevention Program (“VPP”) for the last three months, and that he has never missed a session. He said the program is one in which they discuss what he has been through, what he would do when he gets out of prison, and how to be resilient. There are 12 others in this course. There are group sessions on Monday and Tuesday mornings. On Tuesday afternoons he has a one on one session with the conveners.
The Applicant was cross-examined about the Department for Correctional Services’ report about the VPP. That report says that on 27 March 2019 the Applicant attended an individual session to discuss him becoming more actively engaged in the VPP. On 10 April 2019, the Applicant attended an individual session to discuss his absence from the group in recent weeks. The Applicant claimed to have injured his back playing football and so was unable to attend. He said he had told another group participant to advise the course facilitators of his expected absence. It is reported that it was made clear to him that anymore unexplained absences would seriously jeopardise his ability to complete the VPP. He agreed to attend in the future and let facilitators know if he was unwell. He was assisted with homework and agreed to share his responses with the group the following week.
On 16 April 2019, the Applicant attended an individual session for the VPP to discuss his lack of participation in the group sessions. He was asked to sign a behavioural contract which provided guidelines for his future participation. He signed the contract. I note this occurred shortly prior to the hearing before me.
In cross examination, it was suggested that this report painted a different picture from that of someone who had never missed a VPP session. It was put to him that the report referenced absences in recent weeks, which was suggestive of more than one absence. The Applicant admitted he failed to attend one or two sessions having hurt his back playing football. As to the report that he did not engage with the VPP, the Applicant said that if he has nothing to say then he will say nothing. His explanation and demeanour when giving this response was unsatisfactory. His demeanour became cocky and argumentative.
The Applicant in closing submissions said that he will be engaging in courses between now and his release date because those courses were not available to him until closer to the end of the sentence. They include drug and alcohol courses. The Applicant listed the ways in which he will change his behaviour in future and implement what he has learnt in the courses he has undertaken, namely identifying and avoiding triggers, employing healthy coping strategies, concentrating on school and work, establishing positive connections with people, and reaching out for help. However, there are no firm plans that have been made for the Applicant at this stage.
I note that the Applicant has taken part in other courses, in particular the Step Out program which he completed at the end of 2017, and the Making Changes Program.
The Respondent credited the Applicant for having undertaken some rehabilitative courses, however submitted that the Applicant’s risk of reoffending has not been mitigated as a result of these courses and that this has been demonstrated by the Applicant’s resumption of substance misuse and offending less than three weeks after release from detention in December 2016, lack of insight into the effects of methamphetamine use and his offending, general lack of remorse, and inconsistent evidence as to his engagement with the VPP. The Applicant has been assessed as being at a high risk of reoffending by professionals in the absence of the recommended interventions (which I note have not taken or been put into place). The Applicant has also not been tested in the community.
Conclusion: Primary Consideration A

The Applicant’s offender history demonstrates appalling recidivist acts of violence including upon a vulnerable victim, namely a taxi driver. He has undertaken various courses whilst in youth detention but those courses have had no impact upon him and have not deterred him from consuming drugs, including methamphetamine, abusing alcohol, and offending. The offending is serious.
The offence that gave rise to the mandatory cancellation of his visa was against a young couple at night, including a young female who was knocked to the ground in an attempt to steal her telephone. The attack on her young boyfriend, by the Applicant and his co-offenders, was rightly described by Judge Cuthbertson as “cowardly”. I do not accept that the Applicant was pressured into committing the offence. He was the eldest of the three offenders, and initiated the violence, when he attempted the theft of the female’s telephone.
The Applicant was a poor historian. I accept that he has had an unfortunate life prior to coming to Australia, but the history given to Dr Lim including about witnessing atrocities, his movements from South Sudan and into the refugee camp, and the circumstances of him leaving his aunt and uncle’s home and couch surfing between the age of 13 and 15 years versus the evidence he gave before the Tribunal, and inconsistencies with his attendance and involvement in the VPP course, raise serious concerns about the credibility and reliability of the Applicant. I accept that he was a young child who left South Sudan in difficult circumstances. I note MA said that given his young age he would not have any memory of his life in South Sudan. That was consistent with the Applicants lack of any recollection of his life in South Sudan and no memory of witnessing atrocities there. His first memory was the refugee camp.
In evidence, the Applicant was repeatedly asked to detail how the Tribunal could be confident that he would not reoffend in the future given his antecedent history. He became argumentative and said that counsel for the Respondent should stop looking at the past and being negative, that he accepted that he had committed offences in the past but he should look to the future, and that he will not be reoffending. He displayed arrogance and cockiness in his response. I note in the sentencing remarks of Judge Cuthbertson that that, at the time of the Applicant’s arrest, His Honour referred to interaction with the police on the night as demonstrative of cockiness and that he was not at all overawed in any respect by the authority of the police.
The Applicant has demonstrated a disregard for the laws of Australia. His recidivist breaching of bonds and bail agreements demonstrate an unwillingness to have regard to and comply with agreements that gave him the opportunity to return to or remain in the community. His offence against the taxi driver, who was a vulnerable victim, committed three weeks after his release from detention further demonstrates a lack of contrition and remorse for his prior offending and that he is not deterred from continuing to offend. I note that at the time of the offence he was 17 years of age but was 18 years of age when sentenced. He was sentenced to 15 months detention backdated to 26 December 2015. I also note that the adult offence was committed on 16 December 2016 at a time when I infer he must have recently been released from the sentence of detention imposed by Magistrate Deland.
From his conduct, there is nothing to indicate that the Applicant has benefited from any rehabilitative courses he has undertaken. The report in relation to his VPP course further indicates a lack of engagement and interest in the course and its purpose, and gives no confidence that it has or will be of any benefit to him in the future. I do not accept that, by his recidivist behaviour of violent offending and the serious offence committed as an adult, there is any acceptable contrition or remorse on the part of the Applicant.
I find that the Applicant has been a recidivist offender since 2012 and that his offender history is appropriately described as appalling. He said in evidence that he had not been in trouble whilst in custody but that is plainly not the case. His attitude of remaining silent about the circumstances of that fight whilst in the Adelaide Remand Centre because it is a prison rule demonstrates a lack of maturity and insight into his conduct. I find he has a high risk of reoffending should he be released into the Australian community. I also find that, given his history of violent offending as both a youth and an adult, members of the Australian community would be placed at risk should he be released.
Having considered all of the evidence, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
No evidence was advanced that the revocation of the Original Decision would have a negative impact on the best interests of any minor children in Australia.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. 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 person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
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 for only 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.
The Applicant has spent a significant period of his life in Australia. He is a young man now aged 21 years. Nonetheless, there is no evidence before me to indicate that the Applicant has positively contributed to the community to any significant degree or at all. He has Certificates 1 and 2 in Building and Construction, and a white card. He undertook work experience at Domino’s pizza in about 2015 or 2016. However, he has spent a large part of his teenage and adult years in detention and in prison.
The Applicant said that upon release he wants to work in the building industry. He has been training in carpentry whilst in prison, which he enjoys. There is no evidence of that training before me other than from the Applicant. Given the credibility and reliability of the Applicant’s evidence, and in the absence of any evidence corroborating that the Applicant has engaged successfully in carpentry training, I place little weight on his evidence in that respect.
I accept that the Applicant has spent much of his life in Australia and from the age of 7 but there is still an expectation that he obey the law. His recidivist breaching of the laws of Australia and the seriousness of those breaches as a youth, culminating in his offence as an adult, represents an unacceptable risk in the future. He has breached the trust of the Australian community.
The Respondent drew the Tribunal’s attention to paragraph 6.3(2) of the Direction which states:
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.
With reference to the Applicant’s serious and lengthy offending history as described above and paragraphs 6.3(5) and 13.3(1) of the Direction, the Respondent submitted that the community’s tolerance has been exhausted and the community would not expect the Applicant to hold a visa.
Conclusion: Primary Consideration C
Having considered all of the evidence I find that primary consideration C weighs heavily in favour of non-revocation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, 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; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
The Applicant has submitted that there is an ongoing risk of war in Sudan and, if returned, he would fear for his life. He said he could be hurt by the Rebels. His family would worry about him. He will be scared if he returned to South Sudan.
The Tribunal notes that the Applicant has a current application for a Protection visa which will consider the non-refoulement obligations owed to the Applicant. In this matter, the Applicant has provided no supporting evidence to substantiate his fear of harm in order for the Tribunal to reach an informed conclusion on this specific issue (c.f. Omar v Minister for Home Affairs [2019] FCA 279).
Conclusion: Other Consideration 1
No evidence was advanced that the revocation of the Original Decision would have an impact on Australia’s non-refoulement obligations such that it is of any relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(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; and
(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 Australian indefinitely).
The Applicant has resided in Australia since the age of seven. He is now aged 21. However, less weight should be given to this Other Consideration as the Applicant began offending approximately five years after his arrival in Australia whilst still a youth. There have been no significant periods of break in the Applicant’s offending save for when the Applicant has been in custody.
The Applicant has two aunts, an uncle, and at least two cousins in Australia. In evidence, he said that he did not know the whereabouts of his parents and siblings.
In the Applicant’s Personal Circumstances Form, he refers to his parents, two brothers and sister as all residing in the United Kingdom.[15] He said in evidence that was an error. He said that his parents and siblings live in a refugee camp in Uganda. Further, he said that he had spoken to his parents by telephone when he was approximately 15 years of age but has not spoken to them since. This evidence raises questions as to the reliability of his earlier evidence that he consumed drugs, and in particular methamphetamine, because he did not know what was happening to his family in South Sudan.
[15] Ibid, pages 38 – 49.
The Applicant said he took his cousins to school and provided financial assistance when he was working. Further, he said his family will be devastated if cancellation of his visa was not revoked. This must be weighed against his acknowledgement that his relationship with MA is tenuous and he has been estranged from his other aunt, uncle and cousins for a number of years.
The Respondent submitted that, given the Applicant’s pattern of behaviour, any connections he has with the community are largely negative. While the Applicant does have the support of MA in particular, this relationship has been tenuous in the past and there is no guarantee that this supportive relationship will last.
Conclusion: Other Consideration 2
I accept that the Applicant will be distressed, as will MA and potentially other members of his family, should the cancellation of his visa not be revoked. However, at least with respect to the Applicant’s aunt, uncle and cousins, the same could not be said. I accept that, given the family members have fled South Sudan in very difficult circumstances, there will be continued sympathy and concern for the Applicant should he be required to return to that country.
I find that this Other Consideration weighs slightly in favour of the Applicant and the revocation of the cancellation of his visa.
Other Consideration 3: Impact on Australian business interests
No evidence was advanced that the revocation of the Original Decision would have a negative impact on Australian business interests.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the Original Decision would have a negative impact upon any victims.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
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.
The Applicant suffers from hepatitis, takes medication daily and requires bi-annual medical check-ups. There is no evidence before me with respect to medical support that will be available to him in South Sudan. I accept that it will not be to the standard that one might expect in Australia, but I am not satisfied that he will be prohibited from accessing appropriate medication.
The Applicant has little to no familial support in South Sudan. He believes his parents and siblings reside in Uganda. He would have the opportunity to make enquiries with authorities to renew contact and a relationship with his parents and siblings. I accept that the living environment will not be to the standard he has enjoyed in Australia. I accept that the living standard may be poor but there is no evidence upon which I can come to an acceptable finding in that respect.
The Respondent accepts that the Applicant would face some difficulty if returned to South Sudan, however there is no suggestion that the Applicant would face any additional barriers to those faced by citizens in that country. To the Applicant’s benefit, he would have the support of his family in Uganda and he has stated that it is his intention to re-establish connections with his parents and siblings.
There is no evidence before me about any language or cultural difficulties. Nonetheless, given the age at which the Applicant came to Australia, I accept that there will be difficulties but that they are not insurmountable.
Conclusion: Other Consideration 5
Having regard to the whole of the evidence I find this Other Consideration weighs moderately in favour of the Applicant and the revocation of the cancellation of his Visa.
There are no more Other Considerations to be considered on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, I find:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B is given no weight in favour of the Applicant;
(c)Primary Consideration C weighs heavily in favour of non-revocation; and
(d)The combined weight of the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that I have attributed to Primary Considerations A and C.
I therefore find that, taking into account all of the considerations in the Direction, they weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

112. I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.......[Sgnd]...................................
Associate
Dated: 11 June 2019

Date(s) of hearing: 30 May 2019 and 3 June 2019

Applicant: In person

Advocate for the Respondent: Arran Gerrard, Australian Government Solicitors

[2019] AATA 1234

11 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	30 May 2019 and 3 June 2019
Applicant:	In person
Advocate for the Respondent:	Arran Gerrard, Australian Government Solicitors