KMXK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3815
•6 October 2021
KMXK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3815 (6 October 2021)
Division: GENERAL DIVISION
File Number(s):2019/1702
Re:KMXK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member Damien O'Donovan
Date:6 October 2021
Place:Canberra
The Reviewable Decision dated 20 March 2019 is set aside, and in substitution, the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian Visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of the Act.
……………[sgd]…………
Senior Member Damien O'Donovan
CATCHWORDS
VISA CANCELLATION - substantial criminal record – Ministerial Direction No. 90 – whether there is another reason the visa cancellation should be revoked – nature and seriousness of offences – best interests of minor children – extent of impediments if removed – strength, duration and nature of ties – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) ss 36, 195A, 197AB, 197C, 499, 501, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Parliamentary Privileges Act 1987
Young Offenders Act 1993 (SA) ss 13, 63.
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Eligibility Requirements of the Nationality Act 2011 (South Sudan) s 8
WRITTEN REASONS FOR DECISION
Senior Member Damien O’Donovan
Reasons published on 8 October 2021
The applicant is a 23 year old citizen of South Sudan. His family fled what was then Sudan when he was very young and he has no memory of ever having lived there. He spent at least 5 years in a refugee camp in Kenya. At some point the applicant was separated from his own family and ended up travelling to Australia with his uncle and his family.
He arrived in Australia on 27 April 2005 at the age of 7 holding a humanitarian visa. Initially, he lived in Adelaide with his uncle and later moved in with his aunt who was also living in Australia. His parents remain in a refugee camp in Uganda and he still has contact with them.
The applicant was a difficult teenager. He began using drugs and abusing alcohol at a young age. From the age of 14 he began engaging in criminal conduct of increasing seriousness. As a 16 year old he was involved in an assault on a security guard at a petrol station. As a 17 year old he robbed a taxi driver at knife-point. These offences were dealt with by the South Australian Youth Court. After he turned 18 the applicant assaulted and attempted to rob some strangers in the company of two other friends. He was charged and convicted and given a head sentence of three years and three months. As a consequence, his visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act).
On 20 April 2018 he sought to have the mandatory visa cancelation revoked. That request was refused in a decision dated 20 March 2019. An application for review was lodged with the Tribunal and the decision under review was affirmed on 11 June 2019. That decision was subsequently set aside by consent following an application to the Federal Court. The matter was remitted to the Tribunal for re-determination according to law.
The matter was heard again by this Tribunal on 19 and 20 July 2021. The Tribunal must determine whether it is satisfied that there is another reason why the original decision should be revoked.
The applicant attended the hearing from immigration detention in Perth using video-conferencing technology. The applicant’s representative and the respondent’s representative both appeared using videoconferencing technology. All other witnesses gave evidence by telephone.
The following persons gave oral evidence and were cross-examined at the hearing:
·The Applicant
·The Applicant’s cousin, DA
·Debora Yar
The Tribunal also had regard to the witness statement of the mother of the applicant’s son, MF, who was to be called at the hearing but could not be located by the applicant’s solicitor when the time came.
In addition to the evidence of these witnesses the Tribunal also had regard to the following material:
·A bundle of material entitled ‘Reduced Remittal Bundle’ (Exhibit 1) which included:
oThe request for revocation of a mandatory visa cancellation under section 501(3A);
oThe decision of the delegate and the material considered in making that decision;
oDocuments provided by the Youth Court of South Australia pursuant to a summons;
oA psychologist’s report by Dr L Lim dated 5 June 2017;
oDocuments provided by the South Australian Department of Correctional Services pursuant to a summons;
oA transcript of the first tribunal proceeding;
oAn affidavit of the applicant sworn on 8 June 2020 (including annexures);
oDocuments lodged by the applicant in these proceedings including:
§Raising a child of colour in America – While White by Beth Hall
§A protection visa decision record in relation to the applicant;
§Screenshots of text communications between the applicant and MF;
§Statement of MF;
§Statement of the applicant;
§Photographs of the applicant’s son, BHBH;
§Statement of the applicant’s cousin, DA;
§Statement of Debora Yar, the wife of DA;
§Parole Report
·Order for release on parole (Exhibit 2);
·Violence Prevention program – Post-treatment Report (Exhibit 3)
·World Health Organisation Report on Hepatitis B (Exhibit 4)
·Statement of Jasmin Angel, explaining the circumstances in which the applicant was unable to make MF available for cross examination (Exhibit 5);
·Department of Foreign Affairs and Trade Country Information Report – South Sudan (Exhibit 6);
·UNHCR Position on Returns to South Sudan (Exhibit 7);
·Report of the Commission on Human Rights in South Sudan (Exhibit 8)
ADMISSIBILITY OF SOME EVIDENCE
10.Before turning to the substantive issues in this case, it is necessary to deal with one procedural matter.
11.The applicant objected to the Tribunal receiving into evidence 7 pages of material included by the respondent in what was called the ‘Reduced Remittal Bundle’ which was taken into evidence as Exhibit 1. The pages objected to consisted of three sets of sentencing remarks in the Youth Court South Australia:
(a)the sentencing remarks of Magistrate Deland in relation to the applicant’s assault on a taxi driver in 2015;
(b)the sentencing remarks of Judge Prescott made on 25 May 2012 in relation to a variety of offences committed by the applicant in 2012; and
(c)the sentencing remarks of Judge Prescott made on 19 July 2012 in relation to a variety of offences committed by the applicant in 2012.
12.This material was produced to the Tribunal in response to a summons issued to the Youth Court of South Australia. The applicant objected to the receipt of the material on the basis that receipt of the material into evidence would breach either section 63C or section 13 of the Young Offenders Act 1993 (SA).
13.Section 13 of that Act relevantly provides:
(1) A person must not publish, by radio, television, newspaper or in any other way, a report of any action or proceeding taken against a youth by a police officer or family conference under this Part if the report –
(a)identifies the youth or contains information tending to identify the youth; or
(b)reveals the name, address or school, or includes any particulars, picture or film that may lead to the identification, of any youth who is in any way concerned in the action or proceeding; or
(c)identifies the victim, a person who has suffered loss or damage or any other person involved in the action or proceeding (other than a person involved in an official capacity) without the consent of that person.
14.Section 63C provides:
(1) A person must not publish, by radio, television, newspaper or in any other way, a report of proceedings in which a child or youth is alleged to have committed an offence, if –
(a)the court before which the proceedings are heard prohibits publication of any report of the proceedings; or
(b)the report –
i.identifies the child or youth or contains information tending to identify the child or youth; or
ii.reveals the name, address or school, or includes any particulars, picture or film that may lead to the identification, of any child or youth who is concerned in those proceedings either as a party or a witness.
15.I do not accept that I should exclude from consideration the material identified. I am satisfied that I am not legally prevented from considering the material by the identified provisions of the Act, nor, as a matter of discretion, am I inclined to disregard the material.
16.The first question I need to address is whether I am prevented from considering the material by section 13 of the Act. Dealing with the matter as a straightforward question of statutory construction, I am satisfied that I am not. Section 13 forms part of Part 2 of the Act which regulates minor offences through police action and conferencing. It is clear on the face of the documents which are the subject of objection that the relevant magistrate was dealing with charges and imposing sentences. Consequently, to the extent that the documents report on anything they do not report on proceedings under Part 2 of the Act.
17.The question then is whether section 63C operates to prevent the Tribunal receiving the material.
18.I accept the respondent’s submission that section 63C is clearly directed to restricting media reporting to the public at large. It cannot be read as preventing the Minister or the Tribunal from referring to documents relevant to the applicant’s criminal past where primary documents are obtained pursuant to a summons. Read in context, section 63C prevents ‘at large’ publication of reports on proceedings involving youth crime where the child or youth is identified. It does not prohibit the recording of sentencing remarks and then provision of those remarks under summons to a body like the Tribunal.
19.I do not consider that I should exercise my discretion to exclude the sentencing remarks from consideration. The material is relevant to the questions I have to decide and has been lawfully obtained under summons. I am satisfied that there is no basis on which I ought to exclude it from my consideration.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA relevantly provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In considering whether to revoke the visa cancellation and whether there is another reason why the original decision should be revoked, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[1]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[2]
[1] [2016] FCA 1166; (2016) 153 ALD 337, [38].
[2] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
MINISTERIAL DIRECTION NO. 90
In the present case it is accepted that the applicant has made representations in accordance with s 501CA(4)(a) and does not pass the character test. Accordingly, the only question is whether there is another reason why the original decision should be revoked. The exercise of this power is regulated by Ministerial Direction No 90.
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, including the Minister’s delegates and the Tribunal, but does not apply to the Minister himself.[3]
[3] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked Direction 79, the previous direction which dealt with section 501CA, on the same date.[4]
[4] Direction, cl 2-3.
The Direction provides that:
A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The factors that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2 of the Direction. The following principles in paragraph 5.2 of the Direction provide a framework for decision makers:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of Part 2 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(d)Protection of the Australian community;
(e)Family violence committed by the non-citizen;
(f)The best interests of minor children in Australia affected by the decision; and
(g)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia; and
(ii) Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ This does not however preclude the Tribunal giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[5]
[5] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
ISSUES FOR DETERMINATION
The only issue for determination is whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
FACTS
Fact finding principles
Set out below are my findings of fact. To the extent that any of the findings are controversial the evidence on which the finding is based is cited.
I have for the most part accepted the evidence given orally by various witnesses at face value, including the applicant’s evidence. However, on some occasions the applicant gave evidence that was not consistent with material found in documentation kept by the Department for Correctional Services. Where any inconsistency has emerged, I have preferred the written record. The applicant, in my assessment, did his best to be frank and honest with the Tribunal. To the extent that there are inconsistencies between the applicant’s oral evidence and the written record, I am satisfied it was a failure of memory rather than an attempt to mislead the Tribunal.
The applicant’s background – work, social and criminal history
The applicant was born in Bor, Sudan, on 1 January 1998.
In or around the year 2000 the Applicant fled Sudan with his uncle, CA and his uncle’s family. The applicant travelled to Kenya and by 2001 the applicant was living in a refugee camp near Nairobi.
In early 2005 he received a Global Special Humanitarian Visa (subclass XB-202) and arrived in Australia on 27 April 2005.
Initially the applicant lived with his uncle’s family in Adelaide, but soon moved in with his aunt MA.
Initially these arrangements worked well. The applicant learned English and settled into primary school. However, as a teenager he became rebellious, ran with a bad crowd and started drinking alcohol and taking illegal drugs. The applicant began smoking marijuana from the age of 12 and began using methamphetamine later in his teenage years.
In or around 2013, the applicant’s parents and his three siblings began living in a refugee camp in Uganda. He has remained in periodic contact with them ever since.
Between the ages of 13 and 15 the applicant mostly lived with his aunt. However, he ‘couch surfed’ at friends’ houses during periods when he felt he could not stay with his aunt. Between March 2012 and 12 February 2016 KMXK was convicted of approximately 76 offences. At least 21 of these were discharged without penalty. For others, KMXK spent the following periods in youth detention:
(a)Two weeks in March 2012;
(b)8 June – 8 September 2012;
(c)22 January 2015 – around May 2015;
(d)11 September 2015 - December 2015;
(e)26 December 2015 – mid-November 2016.
Much of the applicant’s early criminal history involved property offences and hostile interactions with police. But the seriousness of the crimes escalated. His last offence as a juvenile was a serious assault. The sentencing remarks reveal the following.
On 26 December 2015 the applicant and a friend were picked up by a taxi. After the ride commenced, the driver asked for the fare up front and stopped the vehicle so that he could enter the address which the applicant wanted to go to, into his GPS. The applicant held a knife to his neck and told him to keep going. He did so. The applicant demanded that the taxi driver give him money and pushed the knife harder into his neck. The taxi driver gave the applicant money and his phone while driving and the applicant kept up pressure on the knife. The driver then tried to pull into a service station. The other person in the vehicle grabbed the steering wheel and tried to stop the taxi from pulling in. The taxi driver managed to get into the service station, then got out and ran into the service station. The applicant was arrested shortly afterwards.[6]
[6] Exhibit 1, ‘Sentencing Remarks of Magistrate Deland’, p 73.
The applicant was given a total sentence of one year and three months commencing on 26 December 2015.
The applicant served that sentence until mid-November 2016.
He did not wait long before committing a further crime. The following is drawn from the sentencing remarks.
On 16 December 2016 at about 11pm the applicant’s victims were walking along the River Torrens in Adelaide when they were approached by three males including the applicant. 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 he was kicked and punched by the applicant and the other two offenders. They did not manage to take the phone but they did take a bracelet from the female victim after it fell off her. When he committed this offence the applicant was under the influence of amphetamines.[7]
[7] Exhibit 1, ‘Sentencing remarks of the District Court of South Australia at Adelaide’, p 24-26.
He was remanded in custody on 17 December 2016 and charged with aggravated theft using force. The applicant pleaded guilty.
He was assessed by a psychologist on 22 June 2017. The psychologist assessed the applicant as not suffering significant psychological impairment either at the date of assessment or at the time of his offending. He considered that the applicant was experiencing some elements of Post-Traumatic Stress Disorder (PTSD) arising from his childhood. The psychologist assessed the applicant as having the potential to become a meaningful and productive member of society despite his extensive juvenile record. He assessed the applicant as the optimal age for early intervention to militate against the ongoing developmental trajectory of an Antisocial Personality Disorder. It was noted that his capacity for remorse and victim empathy were intact. The psychologist did however conclude that the applicant ‘will remain a high risk of re-offending if he does not receive specialised psychological intervention for his long-standing mental health difficulties (i.e. his PTSD symptoms) and to address his poor repertoire of healthy coping strategies to manage future episodes of psychological distress.
The applicant was sentenced on 25 August 2017 and given a sentence of three years and three months to be served in an adult jail – initially at Yatala Labour Prison, then at Port Augusta Prison and finally at Mobolong Prison.
While in prison he undertook the ‘Making Changes Men’ program in February 2018 and the Violence Prevention Program in the first half of 2019.
He was only involved in one violent incident while in custody which happened while he was on remand and involved an altercation between prisoners. The applicant was not the aggressor in that case.
In October 2017 he was subjected to a disciplinary charge concerning drug possession and received a penalty in relation to it early in 2018.[8]
[8] Exhibit 1, ‘Parole Report’, p 295.
His urinalysis samples collected in February 2018 and June 2019 both came back negative for illicit substances.
When the applicant was being assessed for parole, the following was noted:
There are no Departmental records of KMXK having committed any inter-relationship violence, and when questioned denied any history of domestic violence. KMXK also denied having been the perpetrator of any relationship violence in the past. There are no recorded Intervention Orders.
KMXK has been convicted of violent offending and is recorded as a Serious Offender. At the time of interview, KMXK reported he had commenced participation within Departmental Violence Prevention Program in January of this year, and is due to complete participation within the program in September. KMXK reported he is finding participation within the program beneficial, stating “Yeah its good, it’s helping us learn what makes us angry”.
The applicant reported that he had not used drugs or alcohol or other illicit substances after he was remanded in custody. That appears unlikely to be true, but I am satisfied that since early 2018 the applicant has not consumed alcohol or illicit drugs.
Towards the end of his sentence, the applicant completed the Violence Prevention Program and a post-treatment report was prepared on 14 November 2019. The applicant was described as an unenthusiastic participant in the program and criticisms were made of his participation and attendance. The program organisers formed the view that the applicant had unresolved trauma and PTSD from his experience of the civil war in South Sudan and later as a child in refugee camps but indicated they were unable to address those issues in the program. The applicant was noted as having demonstrated a good understanding of the precipitants to his past violent behaviours. He was able to identify substance abuse, anti-social peers, impulsivity and a lack of consideration for the consequences of his behaviour as factors related to his offending. It was noted that in prison there were times when he reacted in counterproductive ways. Bad behaviour was noted including ‘ignoring staff direction and failure to attend work and required programs’.[9] However when these issues were raised with the applicant he expressed a desire to follow jail rules. It was also noted that the applicant remained somewhat ambivalent about ceasing alcohol use and stated that he hoped to be able to drink moderately in the future.[10] It was noted that the applicant’s relationship with his family in Australia had improved since his imprisonment and that he would continue to have the support of his aunt and grandmother when he was released from prison. Following treatment, the applicant’s risk of violent reoffending was re-assessed using the VRS actuarial risk assessment tool on 13 September 2019. This assessment indicated that the applicant’s risk of violent re-offending was estimated to be within a high range in comparison to the normative sample for this tool and offence type. The report noted that the applicant had limited opportunity to demonstrate progress due to being within the prison environment but some positive changes had been observed. The report also noted that ‘should KMXK be exposed to situations whereby he returned to previous antisocial associates or he began to use substances to deal with problem emotions then his risk of engaging in problematic behaviours may increase.’[11]
[9] Exhibit 3, p 6.
[10] Ibid, p 7.
[11] Ibid, p 10.
That was the last time the applicant’s risk of reoffending was formally assessed.
He was released on parole on 11 December 2019. However, because his visa had already been cancelled, he was taken immediately into immigration detention. A mental health assessment was undertaken by a primary health nurse on 17 December 2019.[12] The applicant was assessed as posing a low risk of self-harm, a low risk of harm to others and a low risk of harm from others.
[12] Exhibit 1, ‘Affidavit of the Applicant sworn on 8 June 2020 (including annexures)’, p 203.
There is no evidence before me that the applicant has engaged in violent behaviour while in immigration detention or consumed drugs or alcohol. I am satisfied that he has not.
The Applicant’s Son
When this matter was originally heard, it was heard on the basis that there were no minor children whose interests would be affected by the decision. However there have been significant developments since then. A friend of the applicant has come forward recently and provided evidence that the applicant has a son BH. BH was born on 6 January 2016 which makes him 5 years old.[13] The reason the applicant did not know he had a son was that the applicant and BH’s mother were not in a relationship when they slept together. When BHBH’s mother, MF found out she was pregnant, she, to use her words, ‘freaked out and left Adelaide without telling [the applicant] about the pregnancy’.
[13] I note that in her statement MF wrongly suggests that BH is 6 years old. The birth date given for him is 6 January 2016 which makes him 5 years old. This cross checks against the age MF is now and the age she was when she gave birth to BH.
She returned to Adelaide a couple of years later but couldn’t find the applicant.
In late 2019 or the early part of 2020, quite by chance, the applicant ended up in contact with MF. He was speaking to a friend who he was in touch with while he was in detention and the friend told him that MF was with him and put her on the phone. The applicant and MF chatted for a while and then MF revealed that the applicant had a son. There has been talk of getting a DNA test to confirm that the applicant was the father but that has not yet occurred.
There is some doubt in my mind as to whether the applicant is indeed the father of BH. The applicant was in custody until sometime in May 2015 and BH was born on 6 January 2016. While the timing of the birth casts some doubt on whether or not the applicant is indeed BH’s father, the respondent ‘[did] not dispute MF’s claims’[14] that the applicant was the father of BH. I have proceeded on that basis.
[14] Respondent’s Statement of Facts, Issues and Contentions, p 12.
After it was revealed that the applicant was the father of BH, he and MF struck up a relationship over text and telephone. For a period in 2020 and early 2021, despite never meeting in person they appear to have been close. At times MF referred to the applicant in texts as her ‘fiancé’.[15]
[15] Exhibit 1, ‘Screenshots of communication between the Applicant and MF’, p 267.
By the time this matter came on for hearing though, the applicant’s relationship with MF may have cooled. He gave evidence that he was not in a relationship with her at the time of the hearing.[16]
[16] Transcript p 27
At present BH is in the care of his grandmother who lives in Melbourne. MF is living in Adelaide. While the details are unclear, it seems that MF is assault charges in Adelaide and has left the care of her son to her mother.
The applicant has never met BH in person and has spoken to him only once on the phone. MF is not presently caring for BH or even in the same location as BH and it is unclear how long this has been the case. Despite the fact that the applicant has never met BH and MF does not presently care for BH, MF talks about co-parenting BH with the applicant when he is released, as does the applicant and Ms Yar in her evidence. The applicant indicated that he is planning to bring on an application in the Family Court with MF to take custody of BH away from MF’s mother.
Despite the fact that BH’s grandmother appears to be offering stable and continuous care to BH, both MF and the applicant are highly critical of her. In MF’s statements she describes her mother as ‘controlling’ and ‘racist’ while the applicant was critical of her for smoking in the house.
MF’s statement indicates that her hope is that she and the applicant will live together when he is released and they will take joint custody of BH. If that hope had any foundation when MF originally gave her statement in March this year, by the time this matter was heard in July it seemed to be a very distant prospect. The applicant made it clear that it was his intention to move to Melbourne on release and live with his cousin. He did not regard himself as in a relationship with MF but it was possible a relationship might build in the future.[17]. At present it is clear that MF is in Adelaide and there is no indication that she has plans to move back to Melbourne to be closer to BH. There is however evidence that BH’s primary carer, MF’s mother, is hostile to the applicant having any involvement in BH’s life.
[17] Transcript p 27
Given that the applicant has given evidence that he does not intend to live with BH’s mother, it appears unlikely that the applicant will be in a position to have much involvement with BH in the short term once released.
The applicant’s work and study history
The applicant reported a very limited work history. He worked for Dominos Pizza for two months as a teenager and in his oral evidence he indicated that he did some work with a butcher for approximately six months.
If he was released, he was hopeful of arranging employment working in a warehouse in Melbourne with the help of his cousin.
In relation to his education, despite his regular run-ins with the law growing up, the applicant maintained reasonable school attendance. In February 2015 he remained enrolled at St Paul’s College as a year 12 student. His attendance at school was reported by the Head of Student Development as being ‘consistent’ although he was often late. At that time, he was on track to complete his South Australia Certificate of Education. The applicant was enrolled in a trade pathway and undertook a vocational training course directed towards work in the construction industry. The applicant played football for the school in 2015.[18] According to reports from the school the applicant’s attitude and behaviour was positive with no significant behavioural issues inside school. The same could not be said for the applicant’s behaviour outside of school. In 2015 the applicant spent a significant amount of time incarcerated and did not regularly attend school after term 2 in 2015.
[18] Exhibit 1, ‘Section 32 Report’, p 89.
Prior to his long-term incarceration, he applicant earned a Certificate I and Certificate II in Building Construction and he participated in work experience as a cabinet maker.
Mental and physical health
In around November 2015 the applicant was diagnosed with chronic Hepatitis B. He takes medication every day for that and once every six months he gets an ultrasound on his liver and a blood test.
It has been regularly noted that the applicant has symptoms of PTSD. It was recommended that as part of his parole that he attend the Survivors of Torture and Trauma Assistance and Rehabilitation Service for assessment to effectively manage his childhood trauma. As the applicant has been in custody or detention since that recommendation, he has been unable to access that service.
Applicant’s community engagement
When the applicant was free in the community, he played football for a club as well as his school. He also claims that he was involved in meals on wheels,[19] but he did not mention this during cross examination when asked about previous work experience. I am not satisfied that it was the case. It seems quite out of character for him to be involved in such an activity.
[19] Exhibit 1, ‘Personal Circumstances Form’, p 40.
Courses and programs in gaol
The applicant received drug and alcohol counselling through Mission Australia while he was detained in Adelaide Youth Training Centre between late 2015 and late 2016. The course ran on a weekly basis. He continued with that counselling after he was released - 2 hours every week until he returned to custody in late 2016. Clearly the counselling program was not successful.
While in prison following his 2017 conviction, the applicant undertook the Making Changes program and the Violence Prevention Program. The applicant’s evidence was that he learned important techniques in the Violence Protection Program which he still used to prevent conflict escalating when he was in detention.
Future plans
When the applicant prepared his statement in March 2021 his plan if he was released from detention was to live with his Aunt in Adelaide. MF was hopeful that he would live with her but as noted above I consider that unlikely to happen.
More recently, statements were filed by the applicant’s cousin and his wife who live in the Point Cook/Werribee area of Melbourne. They indicated that the applicant was welcome to live with them and that they had space for the applicant to live with them. They were willing to assist him to find work.
The applicant’s evidence at hearing about his plan was that he intended to live with his cousin, DA, in Melbourne if he was released from detention. He stated that he does not know anyone other than his cousin in Melbourne and it would be a ‘fresh start’. Protection Visa
Following the cancellation of his Humanitarian Visa the applicant applied for a protection visa. The delegate who considered the application formed the view that the applicant was a member of a particular social group, namely ‘long absent South Sudanese, Dinka, failed asylum seeker males returning to South Sudan from a Western country without family or other support’. The delegate was satisfied that the applicant feared persecution on return by reason of his membership of that social group and that the fear was well-founded. The delegate was satisfied that the applicant was a refugee and a person in respect of whom Australia owed protection obligations. The delegate also found that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed to South Sudan, there was a real risk the applicant would suffer significant harm as required by s 36(2)(aa) of the Act and that it would not be reasonable for the applicant to relocate as outlined in s 36(2B)(a) of the Act. Further, the delegate found that the applicant could not obtain from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. The risk was determined to be a risk faced by the applicant personally.
Despite these findings, the protection visa was refused on the basis that the applicant was convicted by final judgment of particularly serious crimes and the applicant is a danger to the Australian community.
The decision to refuse a Protection Visa is currently the subject of a separate application for review in the Tribunal.
As part of assessing the applicant’s application for a Protection Visa, the delegate considered whether the applicant was a citizen of South Sudan. Based on the findings and reasons given in that decision I am satisfied that the applicant is eligible for citizenship of South Sudan and accordingly any assessment of Australia’s non-refoulement obligations should be done by reference to that country.[20]
[20] Exhibit 1, ‘Protection visa decision record’, p 226.
The fact that the applicant’s parents were born in what is now known as South Sudan would make the applicant eligible for citizenship by virtue of the fact he would most likely be able to satisfy section 8(1)(a) of the Eligibility Requirements of the Nationality Act 2011 (South Sudan).
Other matters
The matters expressly raised by the applicant in his request for revocation of the cancellation are set out below. There is some repetition in what follows but it is recorded in this way to ensure that I give consideration to every matter which was raised:
(f)He views Australia as his home country;
(g)All his family supports are located in Australia;
(h)He needs medical treatment for his liver condition which is not available in South Sudan;
(i)South Sudan is a war torn country which is not able to provide the support he needs;
(j)He seeks protection against return to South Sudan;
(k)He has been rehabilitated in prison;
(l)He has supports in Australia;
(m)He has completed his education in Australia
(n)He is pursuing work in cabinet-making;
(o)He no longer has any contacts in South Sudan.
He described the impact on his family of the visa cancellation as devastating as ‘I currently provide support with tasks at home, help take children to school, provide financial assistance when I am working. Family would be despondent as they came to Australia to provide me with greater opportunity’
When asked to identify factors which explained his past offending the applicant identified:
(a)Drugs and alcohol;
(b)Peer pressure and negative influences;
(c)Fleeing war torn country;
(d)Experiencing trauma;
(e)No stability with housing and family; and
(f)Minimal family support.
The applicant stated that he believed that there was no chance of him re-offending as ‘I have time to have a hard think’. He emphasized that he felt rehabilitated and hoped to complete internal courses “Making Changes” to help prevent re-offending.
He listed as his contribution to community activities, ‘I volunteer at meals on wheels and I helped with youth leadership at Paradise Church with kids’.
He indicated that his family would worry about his welfare if he was removed to a war-torn country. In relation to impediments to return he identified his Hepatitis B as a diagnosed medical condition.
He identified political concerns and feeling unprotected as issues if he were returned to the Sudan.
He identified the following other concerns if he were sent to South Sudan:
(a)Fear of political repercussions (war torn country);
(b)Health (liver conditions) – mental health
(c)No family – No supports – No home;
(d)Return to Sudan ‘makes me feel like receiving a death sentence’.
The other information he put in his request included:
I was very young when I fled Sudan with the support of my Uncle and Aunt. I remember seeing people being killed and still suffer from this trauma. I have lost all contact with my immediate family and am unaware if they are currently still alive. I am unsure of where they are currently resident. I consider my family in Australia as the only family I have and the only home I have. A return to Sudan would find me to be at extreme risk due to my homelessness – nil family – no supports my health would suffer and I consider my mental health to be affected by the trauma, grief and loss I was exposed to in Sudan.
It is not the case that the applicant has lost touch with his immediate family and he currently does know where they live, but the remainder of this information still has currency.
Submissions
The closing submissions put on behalf of applicant focused on the contention that the applicant had changed and grown whilst in prison and detention, and he was no longer a threat to the community and on that basis should be given back his visa.
The applicant’s Statement of Facts, Issues and Contentions were more comprehensive in addressing the criteria raised by the Direction. I have considered all of the matters put on behalf of the applicant.
CONSIDERATION
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
The applicant contends: (a) that I should find that he is a low risk of reoffending, (b) that the best interests of his five-year-old Australian citizen son are served by revoking the cancellation, (c) that he would experience hardship if removed and (d) that Australia’s non-refoulement obligations would prevent his removal. Consequently, I should consider that indefinite detention is a real prospect and that is a matter which weighs very strongly in favour of revocation of the decision.
Further, the applicant contends:
(a)The Australian community does not require further protection from criminal or other serious conduct by him;
(b)The applicant has not engaged in family violence;
(c)The best interests of the applicant’s child favour revocation of the decision (a matter conceded by the respondent);
(d)The expectations of the Australian community are that Australia will honour its non-refoulement obligations and that the applicant’s adult criminal record is minor when compared to the list of conduct contained in paragraphs 8.4(2)(a)-(f) of Direction 90.
Primary Consideration 1 – Protection of the Australian community
Paragraph 5.2 states that:
a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Having regard to the factors in paragraph 8.1.1 of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is very serious.
The applicant has a long history of offending which has become more serious over time. The crimes in which he engaged included crimes involving violence. I regard his last offence as a juvenile as his most serious, involving a terrifying assault on a taxi driver, using a knife.
Very soon after he was released from custody he offended again. Again, the crime was violent. The crime included the targeting of a woman and involved violence (although primarily directed at a man). The lengthy custodial sentence imposed demonstrates the seriousness of the offence. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Having regard to the factors in paragraph 8.1.1(d) of the Direction, I have considered the frequency of the applicant’s offending. When he was free in the community, he was a prolific offender. The paragraph also directs attention to any trend in the seriousness of the offending. That is present here. He began with comparatively minor offences as a teenager but has moved to offending involving violence and weapons.
The applicant’s assault on the couple near the Torrens river was perhaps not as serious as his attack on the taxi driver, but, viewing his criminal record as a whole, it shows a pattern of increasing seriousness. I note however, that the applicant has not offended since being in custody and has not initiated violence when in custody which is perhaps a promising sign.
I am satisfied that the applicant’s criminal offending is very serious in nature and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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:
(i) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The applicant’s record shows that in the past he had a propensity to commit property offences and on occasions he has combined those offences with violence. His victims have been injured but not seriously, in what were undoubtedly terrifying encounters with the applicant. If the applicant were to commit crimes in the future I am satisfied that there is a risk of some physical injuries and psychological trauma if the applicant were to re-offend but it is unlikely that he would kill or seriously wound another person or sexually assault a person. Consequently, while the potential harm is serious, it is not so serious that any risk of repetition is unacceptable.
The more difficult question is how likely is it that the applicant will engage in further criminal activity or other serious conduct.
The respondent contends that the risk of recidivism is significant. He notes that the applicant’s criminal record is one involving repetition and escalation and that there are significant reasons to be pessimistic about his rehabilitation. It has been noted at various times that the applicant has poor coping strategies, has a history of unaddressed PTSD and when formally assessed the conclusion is that the applicant has a high risk of re-offending. The respondent also notes the adverse comments made about the applicant’s engagement with the violence prevention program and his poor attendance record and contends that there is a clear risk of re-offending and that this is not a risk that the community should be expected to take.
The applicant claims that he is fully rehabilitated and that his previous lengthy criminal record is simply a matter of him being young and stupid. He is now a changed man who benefited from the programs he undertook in prison. Given his generally good behavioural record in prison and the length of time he has spent incarcerated, there is significant force in that submission.
I accept that the matters pointed to by the respondent all are cause for pessimism in relation to the applicant. However, in my assessment, the standard of the applicant’s conduct while in prison and detention provide a significant foundation for optimism that the applicant has matured during his period of incarceration and that, given the right environment, he will not resume his offending if returned to the community.
In my assessment, much depends on where he goes on release and who he chooses to associate with after leaving detention.
If the applicant returns to Adelaide, joins up with his previous networks and resumes using drugs and alcohol, there is a high chance of the applicant relapsing into crime. The evidence before me though is that this is not his intention. He has a plan to move to Melbourne if he is released and his visa restored. His plan is to live with his cousin and his cousin’s wife in Melbourne. If he does that then there is a good chance that the applicant will stay clean and sober and avoid further offending. If he were to return to Adelaide and live with MF or his aunt, it is unlikely that he will resist the temptations of his previous life.
The respondent submits that I should be doubtful that the arrangement between the applicant and his cousin will eventuate. The applicant has never lived with his cousin and it will be hard for the applicant to get work given his criminal history and poor employment record.
I accept what the respondent says at a factual level but I am satisfied that the applicant’s post-release circumstances will be better than the picture the respondent paints., I consider that it is likely that the applicant will move to Melbourne and live with his cousin and, in those circumstances, he is unlikely to re-offend. I do accept as the respondent submits that there is also a chance that he will end up in Adelaide and gravitate towards his old lifestyle and the factors which led him to offend, but given the clear and supportive evidence given by the applicant’s cousin and his wife, I consider that such an outcome is much less likely.
Applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration one weighs against the revocation of the Mandatory Visa Cancellation Decision in that there is a risk of the applicant re-offending, and the risk to the Australian community is serious, but not so serious that it could not be outweighed by other factors.
Primary Consideration 2 – Family violence committed by the non-citizen
The applicant has no history of family violence.
Accordingly, Primary Consideration two neither weighs in favour of or against revoking the cancellation.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of any minor children affected by the decision. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The only relevant child is the applicant’s son BH.
Generally speaking, it will always be in the best interests of a child to have access to their biological father. Further, I accept the evidence which suggests that BH would like to meet his father and is curious about him.
The respondent concedes that it is in BH’s best interests that the applicant remain in Australia, but submits that the weight that should be given to this consideration should not be as great as might ordinarily be expected in the absence of a more detailed consideration of the relationship. I accept that submission for the following reasons.
The relationship between the applicant and BH at present is slight. On his own evidence the applicant says that he has spoken to BH only once. He has never met BH in person and did not know that BH was his son until many years after BH was born. One witness claimed that the applicant is ‘co-parenting’ BH.[21] There is nothing to support that claim. BH is not in the care of his mother and has, for some time, been in the care of his grandmother. The relationship between the applicant and BH’s grandmother appears to be poor and the evidence indicates that she is hostile to BH having contact with the applicant.
[21] Exhibit 1 – statement of Debora Yar
The applicant gave evidence that it was his goal to apply to the Family Court for custody of BH following his release so that he and MF can look after him. Accepting that that is the applicant’s intention, I do not consider that the disruption this could potentially cause would be in BH’s best interests.
The applicant contended that another factor which supported the view that it was in BH’s best interests that he have ongoing contact with his biological child was that it was important for the raising of BH that he connect with his ‘racial identity’. It was said that there was a ‘plethora of literature’ regarding this. The literature that the applicant relied on was from the United States and in my assessment very United States-specific and of doubtful quality.
For example, one article states ‘the most important thing a white mother of a multiracial child can do is to become embedded in communities of colour…’. While it can be readily accepted that doing such a thing might have benefits for a child who is black who lives in a white community, to describe it as the ‘most important thing’ a mother can do is not a proposition which the evidence cited in the article sustains.
The submission made by the applicant raises the possibility that in circumstances where the race of a person who has had their visa cancelled is different to the race of the person who will raise their child, the race of the applicant will, in and of itself, provide a basis for a finding that it is in the best interests of a child for the applicant to remain in Australia. The introduction of a race-based distinction of this kind for the purposes of assessing whether a visa should be cancelled is, on its face, an unattractive distinction to draw. In a country where discrimination on the grounds of race is unlawful, a finding that race alone enlivens an additional reason for ensuring a parent has access to a child does not naturally commend itself. Certainly, the material filed by the applicant was not persuasive in that regard.
If the applicant is submitting that because he is black, that there is some additional interest BH has in having him around over and above the interests of child and father of any other race, I would take a good deal of persuading that that is a proper conclusion to reach.
The material filed by the applicant was not persuasive in that regard. The second article relied on by the applicant suggested that it was bad for a black child to be raised in a white home because they were less fluent in uniquely African American modes of communication. This, it was argued, renders them ‘culturally incomplete’. This article goes perilously close to legitimising prejudice against black children raised in white households and on that basis should be approached with scepticism. In any event, the article and its arguments are so clearly grounded in the US racial experience that it has no application to the Australian cultural landscape. Accordingly, the argument concerning racial identity, and the literature brought forward in support of the notion that it is important to BH’s interests, is unconvincing.
I am however satisfied that it is in BH’s best interests for him to live in the same country as his father. Allowing the applicant to stay in the same country as his son, gives him opportunities to provide material and emotional support to BH. Accordingly, this consideration weighs in favour of revoking the applicant’s visa cancellation but significantly less strongly than is usually the case given the unusually weak relationship BH has with the applicant.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Full Court of the Federal Court in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) considered paragraph 11.3(1) of Direction 65, which was in similar terms to paragraph 8.4 of the Direction. The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[22] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[23]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[24] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[25]
[22] Charlesworth J at [66]; Stewart J at [91].
[23] Charlesworth J at [67]; Stewart J at [104].
[24] Charlesworth J at [76].
[25] Stewart J at [97].
Direction 90 is expressed in terms consistent with this view of the consideration. At 8.4(4) the Direction provides:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Consideration 8.4 imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration. The relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[26] As a normative expression, this consideration indicates that community expectation will in most cases lead to non-revocation.
[26]Charlesworth J at [77].
The applicant points out that in the principles section of the Direction, it provides:
Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
This principle applies to the applicant. He has lived in Australia since he was 7. He is now twenty-four. He has certainly lived in Australia for most of his life and I regard the age of 7 as qualifying as a ‘very young age’. Accordingly, in approaching this consideration I am proceeding on the basis that, notwithstanding that the general expectation is that non-citizens will obey the law and failure to do so means that the applicant will not be allowed to stay, because of the time spent in Australia by the applicant and the age he was when he arrived, more tolerance can be shown in the face of his failure to obey the law. However, this factor still weighs against revoking the cancellation of the applicant’s visa.
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the applicant has breached numerous Australian laws and has been convicted of many offences in Australia. The applicant’s offences include violence and a violent offence against a woman. It is recognised by paragraphs 8.4(2)(a), (c) and (d) of the Direction that offences of this kind should generally result in the cancellation of the non-citizen’s visa.
Against that, the applicant has been in Australia from a very young age. In these circumstances this factor weighs against the cancellation being revoked, but less heavily than would otherwise be the case.
OTHER CONSIDERATIONS
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J relevantly observed in relation to an earlier iteration of the Direction in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations
There is no doubt that Australia owes the applicant non-refoulment obligations, but there is some uncertainty what that will mean for the applicant at a practical level.
The legal framework for examining this consideration has changed significantly in recent months. Direction 90 is cast in different terms to the version which it replaced on 8 March 2021, the Migration Act has been amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (the Amending Act) and the High Court recently handed down its decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural v AJL20 which is also relevant.
While the legislative amendments and the High Court decision clarified the circumstances in which a person is likely to be subject to detention with no chronologically fixed endpoint, there remains some tension between the Direction and the views expressed by the Federal Court when determining the extent of Australia’s non-refoulement obligations.
The Direction states:
The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision makers should follow the tests enunciated in the Act.
What this means in practice is difficult to state with any certainty. The Federal Court has made it clear that section 36(2) of the Migration Act does not provide coverage that is ‘coterminous’ with what Australia covenanted to provide under the international treaties into which it has entered. This has the necessary consequence that Australia’s international non-refoulement obligations extend to refraining from relocating a class of persons which is wider than those to whom protection visas might be granted under the Act.[27]
[27] Ali v Minister for Home Affairs [2020] FCAFC 109, [28].
Mercifully, it is not necessary for me in this case to tease out all of the possible consequences of these changes. A few things are clear. First, the applicant has applied for a protection visa and the delegate has made what is called a protection finding within the terms of s 197C - the delegate was satisfied that the applicant satisfied the criteria in both paragraphs 36(2)(a) and (aa) of the Migration Act. The finding was that the applicant has a well-founded fear of persecution and the delegate was also satisfied that Australia owes the applicant protection obligations because there are substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to South Sudan, there is a real risk that the non-citizen will suffer significant harm. The protection visa was declined on character grounds and on the basis that the applicant was a danger to the community. Those last aspects of the decision are subject to review in a separate process before the Tribunal, but for the time being at least, the applicant does not have a protection visa, but does have the benefit of protection findings which are not the subject of challenge. Because a protection finding has been made, the applicant cannot be removed to South Sudan unless the finding is reversed or he asks to be removed.
The net result is that if the cancellation of the applicant’s visa is not revoked, the applicant will be held in indefinite detention (in the sense of detention without a chronologically ascertainable end point) unless:
(a)The Minister exercises a personal discretion under either section 195A or 197AB of the Act;
(b)The AAT on review grants the applicant a protection visa; or
(c)He asks to be removed to South Sudan.
The respondent submits, by reference to the explanatory memorandum to the Amending Act, that I should conclude that if the applicant can be released from detention he will be, and if he remains in detention that his ongoing detention is reasonable, necessary and proportionate. It is on this basis that the respondent submits that the non-refoulement consideration should be given minimal weight.
There is a significant problem with this submission.
Subsection 16(3) of the Parliamentary Privileges Act 1987 provides as follows:
In proceedings in any court or tribunal it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a)…
(b)…
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Subsection (2) provides:
For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee and, without limiting the generality of the foregoing, includes:
(a) …
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
Subsection (5) provides an exception for the purposes of statutory interpretation.
In my view what the respondent is inviting me to do is to draw an inference about what will happen to the applicant based on a document which was prepared for the purposes of transacting the business of Houses of Parliament.
If I were to do that it would involve a breach of the Parliamentary Privileges Act. For that reason, I cannot draw any factual inferences about the applicant’s likely fate from the terms of the explanatory memorandum.
If the respondent wishes to invite me to draw a conclusion that the applicant is likely to be released into the community pending an opportunity to return him to South Sudan in circumstances which would not involve a breach of Australia’s non-refoulement obligations, evidence concerning the pattern of executive decision making would be appropriate.
Absent reliance on the explanatory memorandum, the facts on which I can determine the applicant’s fate in the short to medium term are sparse. At the moment, there is a finding by a delegate of the Minister that the applicant represents a danger to the community. I consider it unlikely that a Minister would exercise his discretion to release a person into the community in circumstances where such a finding has been made. While there is some prospect that that finding may be overturned on review, there remains a significant chance that it will not. In those circumstances, if I do not revoke the cancellation of the applicant’s humanitarian visa, there is a significant chance that he will remain in detention for many years. While I remain confident that Australia will observe the non-refoulement obligations which it owes, I am also satisfied that it is likely to do so by detaining the applicant indefinitely pending a change in circumstances in South Sudan or until the applicant requests removal to South Sudan. I am satisfied that neither of those events will occur for in the foreseeable future. The applicant is very afraid of returning to South Sudan and the country information concerning the situation there does not suggest that the turmoil within the country will resolve any time soon.
The fact that detention of uncertain length, and potentially spanning many years, is the likely result of the non-refoulement obligations Australia owes to the applicant weighs heavily in favour of revoking the visa cancellation.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider 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 first point to note is that it is extremely unlikely that the applicant will be returning to South Sudan any time soon. That affects the weight which I give to this consideration. However, in the unlikely event that the applicant is returned to South Sudan there is no doubt that the impediments that the applicant would face in establishing and maintaining a basic standard of living are enormous. He has no close relatives who live in South Sudan. He has not in his living memory lived in South Sudan. He has Hepatitis B which requires regular medical treatment. He also has long-standing psychological symptoms related to PTSD. I am satisfied that if the applicant did return to South Sudan he would face very significant impediments to establishing and maintaining a basic standard of living.
I give this consideration some weight, but given how unlikely it is that a return to South Sudan will eventuate in the short to medium term, it only counts in favour of revocation of the cancellation to a small degree.
Strength nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction provides as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian communityb) 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.
As the applicant notes in his SOFIC, this part of the Direction instructs decision makers to have regard to how long the applicant has resided in Australia noting that less weight should be given where the applicant began offending soon after arriving in Australia.
The applicant has been residing in Australia since he was seven years old. He accepts that he began offending not long after arriving in Australia.[28]
[28] Applicant’s Statement of Facts, Issues and Contentions, [117].
However, all of the close family that he knows well, his uncle, his aunt and his cousin are all in Australia. He has not lived with his immediate family since he was two. Accordingly, all of his very closest family associations are in Australia. He has spent almost 17 years living in Australia which constitutes half his childhood, his adolescence and all of this adult life.
In Australia the applicant was able to consistently attend school when he was not in trouble with the law and he was involved in football as a teenager. While the applicant’s offending is the dominating theme of his teenage years, he developed and still maintains social links in Australia.
As previously noted, the applicant has a son and is in contact with his son’s mother.
The fact that the applicant has been in Australia so long and that most of the family to which he is closely attached are here means that this consideration weighs heavily in favour of revoking the visa cancellation.
Impact on Victims
Paragraph 9.3 of the Direction provides as follows:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In the present case there is no information about the impact of the decision on victims or other members of the Australian community. This consideration is neutral.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the visa cancellation. The nature and seriousness of the Applicant’s offences are of concern, particularly the violent offending. There is however a low risk of the applicant committing future criminal offences provided he takes up the opportunity to move to Melbourne and live with his cousin. I am satisfied that this is the most likely outcome if the applicant is released into the community. That said, there is no doubt that the Australian community would be best protected by the non-revocation of the visa cancellation.
Primary Consideration 2 is not relevant.
Primary Consideration 3 weighs in favour of revoking the visa cancellation but not significantly. The applicant’s relationship with his son is tenuous and there is significant potential for the applicant’s involvement in his son’s life to work against his son’s interest in having stable care arrangements with his grandmother.
Primary Consideration 4 on balance weighs against revocation of the visa cancellation as the expectations of the Australian community are that the Applicant’s serious offences should cause him to forfeit the privilege of remaining in Australia. However his young age on arrival in Australia and the duration of his residence in Australia, are such that the community would have greater tolerance for the Applicant’s offending meaning this factor weighs much less heavily in favour of upholding the visa cancellation than would often be the case.
In regard to the relevant Other Considerations, the prospect of the applicant being detained for an indeterminate period of time weighs very heavily in favour of revoking the cancellation. Whether this is treated as an ‘other relevant consideration’ or part of the non-refoulement consideration does not matter. In the current circumstances it appears very unlikely that the applicant will be released into the community or returned to South Sudan. Consequently, the practical result of Australia’s non-refoulement obligations is likely to be that to comply with them in circumstances where the applicant is without a visa, indefinite detention will occur. This prospect weighs heavily in favour of revoking the cancellation.
The strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the visa cancellation decision, as do the impediments he will face if returned to South Sudan, though such an outcome is unlikely in the foreseeable future.
Although the matter is finely balanced, the Tribunal is satisfied that there is ‘another reason’ why the visa cancellation decision should be revoked. The applicant’s offending, though extensive, is not at the most serious end of the spectrum and there are good reasons to believe it will not be repeated. In these circumstances to remove the applicant from the community to which he is connected and detain him for what could be an extended period of time is not appropriate. Accordingly, the reviewable decision should be set aside.
DECISION
The Reviewable Decision dated 20 March 2019 is set aside and In substitution, the cancellation of the Applicant’s Class X13 Subclass 202 Global Special Humanitarian visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of the Act.
I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan
....................................[sgd].................................
Associate
Dated: 8 October 2021
Date(s) of hearing: 19 & 20 July 2021 Solicitors for the Applicant: Ms Jasmin Angel Solicitors for the Respondent: Mr Arran Gerrard
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