Kual and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 36

Kual and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 36 (21 January 2025)
Applicant/s:  Dang Manyol Amed Yal Kual
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9051

Tribunal:General Member S. Fenwick
Place:Melbourne
Date:21 January 2025

Decision:The Tribunal sets aside the decision of the delegate dated 20 October 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa and substitutes it with a decision that there is another reason why the mandatory cancellation should be revoked.

..............................[SGD]..................................
General Member S. Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of South Sudan – Class XB Subclass 202 Global Special Humanitarian Visa – failure to pass character test – various offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – ties to Australia and best interests of minor children considered – decision set aside and substituted
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
NYZQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1 v Minister for Home Affairs [2022] HCA 17
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND

Mr Kual applied on 7 November 2024 for review of a decision of a delegate of the Respondent Minister on 30 October 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
Mr Kual was born in Sudan in 1999 and arrived in Australia in late 2005, and has not since departed the country. He has a child with a former partner, now nearly three years old, and is part of a very large immediate and extended family group in Australia.
The Applicant has appeared in court on a dozen occasions between 2017 and 2023 on a broad range of criminal charges. His most recent conviction included charges of common assault and affray, leading to – among other outcomes – an aggregate term of 14 months imprisonment.
During his incarceration, Mr Kual’s visa was cancelled under the character provisions of the Migration Act 1958 (Cth) (the Act), due to the fact he was determined to have a substantial criminal record. He made representations in respect of this cancellation, and the delegate’s decision that there was not another reason to revoke this cancellation is the matter before me in this review.
Mr Kual also has an earlier instance of offending as a young man when he was sentenced to 27 months’ imprisonment for an aggravated robbery. As a result of this conviction, Mr Kual’s visa was also subject to mandatory cancellation. This decision was later revoked.
Mr Kual represented himself at the hearing, and he lodged a short written statement in support of his claims, dated 8 January 2025, and statements dated 7 January 2024 from two siblings, Abong and Atung. The Respondent lodged a Statement of Facts, Issues and Contentions (RSFIC), and relies on a bundle of material lodged under summons by the New South Wales Department of Communities and Justice (S-DCJ), and New South Wales Police Force (S-NSWPF). No witnesses other than the Applicant appeared at the hearing.
The statements from Mr Kual’s siblings were received via email by the Tribunal and Respondent’s representative on the evening prior to the hearing, inside the period specified in s 500(6J) of the Act. For this reason, I declined to formally consider them in evidence in the first scheduled day of the hearing. With the cooperation of the Respondent, it was agreed to resume briefly on a subsequent day to permit this material to be relied upon by the Applicant.
LEGISLATION
Under s 501(3A) of the Act, a person’s visa is subject to mandatory visa cancellation in circumstances of a substantial criminal record. Substantial criminal record is defined as including the situation where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a); s 501(7)(c)).
Mandatory cancellation may be revoked if a person is found to pass the character test, or where there is ‘another reason’ to revoke the decision (s 501CA(4)). Direction No. 110 (issued under s 499 of the Act) (the Direction) is a mandatory source of guidance in these cases. It conveys guidance under a series of factors, which I will refer to in my reasons. Considerations under the Direction are to be informed by the following principles:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
I am satisfied from review of Mr Kual’s criminal record (G11) that he was sentenced in 2023 to a term of imprisonment of 12 months or more and on this basis fails the character test. I note that the outcome, which I will deal with in more detail below, was a sentence in aggregate of 14 months (adjusted on appeal). Following the decision of the High Court in Pearson v Commonwealth of Australia [2024] HCA 46 (and related decisions on that date), there is no doubt that an aggregate sentence can amount to a substantial criminal record.
Accordingly, the sole issue to be determined is whether, taking into account the factors identified in the Direction, there is another reason the mandatory cancellation should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
I will first briefly summarise Mr Kual’s criminal record (G11):
(a)offences involving violence:
(i)convictions in June 2023 for common assault and affray, carrying indicative sentences of imprisonment of eight and twelve months (within an aggregate);
(ii)conviction in May 2021 for common assault, sentenced to a twelve-month community corrections order (CCO); and
(iii)conviction in March 2019 for aggravated robbery, with a sentence of imprisonment of 27 months;
(b)drug related offending: two convictions in 2019 and 2020, one contributing to an aggregate sentence of imprisonment, and one with conviction only;
(c)dishonesty offences:
(i)conviction for larceny in April 2022 resulting in a small fine; and
(ii)convictions in May 2017 and May 2021 for shoplifting to a value under $2,000, with a small fine and a 12-month CCO, respectively;
(d)conduct offences:
(i)appearances for stalk/intimidate in September 2020, September 2022, and June 2023, with outcomes including without conviction and conditional release, imprisonment for twelve months, and an 18 month CCO;
(ii)an appearance in May 2023 addressed breach of conditional release order and CCO, both originating in 2022;
(iii)conviction in May 2021 for an intoxication/move on direction with no further penalty; and
(e)conviction on a single unlicensed driving charge in July 2017 with a $1,000 fine.
Sentencing remarks provide some insight into the nature of Mr Kual’s conduct in respect of the more recent matters of common assault and affray, and stalk/intimidate:
(a)in June 2023, a District Court Judge dealt with three matters including Mr Kual’s appeal from his initial aggregate sentence of imprisonment for common assault and affray (G5), and in doing so remarked as follows:
(i)the offence of affray was committed while on parole and Mr Kual was not the instigator, but it was ‘significant’, involving a number of people;
(ii)a charge of stalk/intimidate arose in circumstances where Mr Kual threatened to bash a security guard while holding a glass bottle;
(iii)the common assault was a serious offence in which a number of people were involved and during which Mr Kual punched the victim, a security guard, twice in the head and also kicked him in the head;
(iv)a sentencing assessment report indicates the Applicant has ‘considerable issues with alcohol’; and
(v)the judge reduced the aggregate sentence from 18 to 14 months.
(b)a Magistrate dealt initially with these matters in May 2023 (G6) and remarked as follows:
(i)Mr Kual plead guilty to a charge of common assault that occurred in February 2023 and which brought him into breach of the prior conditional release order and CCO;
(ii)the assault took place on a second visit to a shop after an earlier instance apparently involving theft, and was serious given the vulnerability of the victim;
(iii)the affray took place in a local mall and was a ‘very, very serious incidence of violence’, albeit Mr Kual’s involvement consisted of shadow-boxing with the victim at one point;
(iv)all offences were at or above the mid-range for offending and Mr Kual’s record shows that he is ‘known for a propensity towards violence’;
(v)while substantial interventions are required due to alcohol use and some mental health issues, the Magistrate declined to impose an intensive corrections order; and
(vi)the CCO carried a requirement to obey all directions with respect to therapeutic intervention and the Magistrate explained directly to Mr Kual that they hoped this would help the Applicant to ‘do something other than commit further offences of violence … you need to work on yourself before you get out, and then you need to work on yourself when you get out …’.
Sentencing remarks are also available in respect of the conviction in a District Court in 2019 for aggravated robbery (G5). I summarise briefly:
(a)after an evening nightclubbing when aged 19, Mr Kuol and friends returned home by train;
(b)the Applicant decided to rob a Sikh gentleman, then approached him, shoved him and then punched him in the eye, and during this encounter the victim’s turban fell off;
(c)Mr Kual escaped when a companion propped open the train door and the attack was ‘cowardly’, and in the absence of a statement from the victim, the judge assumed the incident to have been very frightening;
(d)the offending was just between the mid-range and bottom of objective criminality, and there are far more serious examples;
(e)the judge referred to likely trauma Mr Kual experienced as a young child, as well as a report of a sexual assault when he was also very young;
(f)Mr Kual was largely brought up by his own brothers because his father had died and his mother was not able to provide the guidance desirable, and some of his brothers were not a good influence;
(g)the Applicant’s schooling was problematic, and Mr Kual left school in year 11 after a suspension;
(h)Mr Kual started abusing alcohol at 15 and by 17 was drinking to excess, and he also used cannabis regularly and excessively, as well as harder drugs;
(i)the judge considered that Mr Kual had a major depressive disorder and alcohol and cannabis use disorder, and had not yet received any relevant rehabilitation or intervention;
(j)the judge expressed real concern at the possibility of Mr Kual developing a more serious mental health condition because of his drug use, and that he was ‘high as a kite’ at the time of the offence; and
(k)the judge fixed a longer period of parole (being the 15-month balance after the non-parole period) in order for the Applicant to work with probation officers to turn his life around.
A prisoner report prepared by the NSW Department of Communities & Justice includes a summary of 13 incidents reported during Mr Kual’s time in prison (G3/E) and a statement of convictions, sentences and appeals in the summons material (S-DCJ, 220-221) lists punishment details arising. The incidents described include: two instances of assault; one fight or physical combat; one damage or destroy property; one unlawful deliver/receive article; and, the balance comprises other conduct issues. The punishments arising comprise what appear to be three instances of confinement to cell, some suspension of privileges, and some warnings. The RSFIC includes a summary of the incidents, with references to the corresponding records in the summons material [45.2(d)-(e)], and I address below matters arising in evidence from this record.
Material provided under summons by the NSW Police Force includes a lengthy events report (S-NSWPF, 3-17) that appears to be a log of every interaction between the police and Mr Kual over an extended period of time.
In his revocation submission (G13/H1), Mr Kual states that the recent common assault offence arose in the context of him being intoxicated, but also wishing to obtain baby formula for his infant child. He admits here that he stole a drink and also attempted to steal the formula and nappies.
At the hearing, Mr Kual gave very little evidence about his offending. He acknowledged that he was intoxicated in many if not all relevant incidents, and this affected his recall of the circumstances. Mr Kual also acknowledged making bad decisions and associating with friends who were not positive influences. He stated that his most recent offending occurred at the time he was caring for his daughter, and I understood him to mean to convey that this was an overwhelming period for him. Mr Kual said that he just wanted a break and went out for a day and ‘got carried away and forgot about the important things’.
I invited Mr Kual, if he chose, to acknowledge his criminal record in the form of the national criminal history check report (G11). He replied that he thought too much had been included, which I understood to reflect his belief that there likely to be matters recorded that had been withdrawn. He declined to offer a view on the NSW Police Force events log.
Mr Kual also acknowledged in evidence that he recalled the previous instance in which his visa was cancelled. He recalled engaging a lawyer at the time to assist with the revocation request.
Mr Kual was taken in evidence to records relating to his conduct in prison and, in summary, the Applicant:
(a)denied participating in a three-on-one assault in September 2018 and stated he was confined for one day and then absolved;
(b)admitted breaking a storeroom door in November 2018;
(c)denied possession of a drug implement in February 2019, despite ownership being acknowledged in the contemporary record;
(d)acknowledged a physical altercation with another inmate in May 2020;
(e)denied participation in a fight in June 2020 and specifically denied a punishment of five days in cells, claiming he had never received this level of punishment;
(f)acknowledged an incident in June 2020 of receiving an article during which he ingested powder and was hospitalised, stating that he ‘wanted to get rid of it’;
(g)agreed that he was found in possession in July 2020 of 15 litres of homebrew;
(h)agreed that he had used bad language in an incident in June 2023 which he explained as arising after he returned from five days in ‘punishment’ when he found another inmate temporarily assigned to his cell; and
(i)appeared to conflate another incident in July 2023 with a separate recorded incident.
Mr Kual specifically denied being associated with the movement of contraband in the prison. He denied consuming alcohol or drugs in prison.
In submissions, the Respondent focused in particular on the formal record of convictions between 2017-2023, which reveals a wide range of offences, including a number of examples of violent crime. The Respondent acknowledged that otherwise the record overall was not comprised of the most ‘heinous’ examples of offending. It also acknowledged Mr Kual’s relative youth at the time of his offending. Written submissions note that offending has taken place during the terms of release on parole and CCO’s.
It was contended that Mr Kual’s record shows a trend of increasing seriousness, and that he has received sentences of lengthy terms of imprisonment on multiple occasions. Ultimately, the Respondent contends that the nature of Mr Kual’s most serious violent offending weighs heavily against revocation. With respect to the wider record, I understood the Respondent to note that the event log in summons material suggests a substantial history of ‘misbehaviour and misdemeanour’. However, as a matter of procedural fairness in the context of self-representation, I did not understand the Respondent to contend that any specific weight be placed on this material. The Respondent relies upon incidents in detention in respect of the second arm of this consideration (see below).
Mr Kual has clearly committed a number of violent crimes and, consistent with the Direction, this must be considered as very serious conduct (8.1.1(1) a)). Based on sentencing remarks, the few instances in question are not among the most serious examples of their kind. I do not take account here of the incidents in prison, in part due to the relatively scant state of the oral and written evidence, and because the nature of the conduct overall does not rise, I consider, to a level warranting categorisation here. I will return to it in the second part of this consideration.

The Applicant has received a wide range of penalties including, importantly, multiple sentences of imprisonment at or in excess of 12 months’ duration (8.1.1(1) c)). I consider it relevant to note that while he has had the benefit of non-custodial outcomes, and indeed has breached such orders through further offending, he also received a CCO as part of his most recent offending.
I consider that Mr Kual has offended relatively frequently, and there appears to me to be a discernible increase in seriousness, marked in part by the common assault conviction (8.1.1(1) e)). I also take note of the cumulative effect of repeat offending (8.1.1(1) f)).
It is also relevant as part of this consideration to note that Mr Kual must be taken to be aware of the consequences of his conduct for his visa status, since his visa was previously cancelled in 2019 (8.1.1(1) h)). Despite this, he continued to offend in a serious manner.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In his written statement, Mr Kual states that he has had time to reflect on his behaviour and the choices he has made, and ‘the things he can do to focus on a better future’. He states his primary consideration is to ‘focus on building a better future, accept what I’ve done and move forward’. Mr Kual states that he would like to show a good example to his daughter, and has participated in programs dealing with anger management and problem solving. He expresses remorse for his actions.
The Applicant expresses similar sentiments in his revocation request (G13/H1). Here, he also expresses a wish to help youth and his plan to study. Mr Kual records also his mother’s recent fight with cancer and his desire to be there for her.
In his personal particulars form (G13/H2), Mr Kual declares employment in construction in 2016-2018, as a builder’s labourer in 2021-2022, and as a scaffolder in 2022-2023, and that he used to participate in South Sudanese community events. He also states here that he has a good relationship with the mother of his daughter and has support from his family. He intends to abstain from alcohol. In this form, Mr Kual also declares that he previously had ‘full custody’ of his daughter (‘the best thing in my life’) when the child’s mother experienced post-natal depression. Elsewhere, he acknowledges the importance of parental roles based upon his own experience of losing his father at a young age.
Mr Kual also acknowledges in this form the role of alcohol in his offending. He states further that he has been ordered to undertake programs by community corrections and agrees to participate if released. He states further there is no reason for him to reoffend because of the support of his family and his focus on his daughter. Mr Kual declares here also that while he has not been diagnosed with any psychological issue, he believes that he suffers from PTSD and has difficulty speaking about past abuse. He also states that he has been diagnosed with Hepatitis B, but has been advised his liver is ‘ok’.
Mr Kual’s prisoner report (G3/E) records that he was identified for the Short Sentence Intensive Program but could not participate due to the length of his sentence. It states he did not participate in anger management, but did undertake several skills related courses. The report states further that for three periods of several months’ duration across 2019, 2020 and 2023, he was employed in several different business units in three different correctional facilities.
A number of case notes are found in the summons material (S-DCJ, 104, 106, 109). These appear to be parole assessments undertaken by community corrections staff. One refers to Mr Kual having engaged with the Ted Noffs Foundation in 2019 and his willingness to engage in counselling. Others include reports of engagement with the Applicant’s mother, who stated that he was not violent at home, and the family look forward to him returning. Another report confirms Mr Kual was to be released on parole on 4 August 2024.
I note there are numerous other case notes by community corrections through 2019 and 2020. They do not appear to disclose provision of any specific therapeutic or other supports. They do appear to indicate that Mr Kual engaged positively in all meetings and appeared to show insight into his offending.
In their letters of support, Mr Kual’s siblings speak in very positive terms about their brother. They state that they believe he can turn his life around, and that he has in the past and will in the future make a positive contribution to family life. The address on the correspondence is the same as the address for the Applicant’s mother, and one of the siblings reports having five children, and that Mr Kual has always been there for them.
In evidence at the hearing, Mr Kual essentially adopted the substantive written statements. He stated that he does not wish to see another drop of alcohol and explained that, in the past, his mother’s preference was that he drink at home rather than consume to excess away from the family. Mr Kual stated that his preferred employment is in scaffolding and he would like to obtain relevant qualifications. He reiterated his desire to be around to support his daughter and her mother. Mr Kual declined to elaborate on his relationship with his ex-partner, but stated that he had received visits while in prison from her and his daughter, as well as his own mother.
Mr Kual stated that, if released, he intended to live at his mother’s house with two siblings. He stated further that he does not have regular contact with all of his family, but I also understood this may have been due to limited means of communication. When asked about his mother’s care needs given her health, Mr Kual acknowledged that she is currently out of the country visiting Sudan with his oldest brother. The Applicant was unable to provide any further information about her visit, other than acknowledging she had made another return visit some years ago.
Mr Kual denied any history of mental health problems. He stated that in immigration detention he has commenced speaking with what I understood may be a nurse or counsellor, and has begun to identify possible future support needs. Mr Kual agreed that he had previously engaged with the Ted Noffs Foundation, but it appears this was brief and did not comprise treatment or support. He stated that he will no longer associate with individuals who are a bad influence.
The Respondent submitted that the matter of Mr Kual’s rehabilitation is of great concern. It was contended he has engaged in little or no rehabilitative work, despite the emphasis placed on this in sentencing remarks. It was also contended that he has had ample time to reflect upon his past, and yet shows limited inclination to engage in rehabilitation, and demonstrated no clear plan to do so. Given Mr Kual’s history of offending and inability, largely, to live safely and prosperously in the community during his early 20’s, a real question is raised about future risk to the community.
In written submissions, the Respondent contends that the nature and circumstances of Mr Kual’s offending, being marked by substance abuse and some social dysfunction, do not justify or diminish the impact of his offending. It is contended he has repeatedly engaged in counter-productive behaviour, and as he offended in a serious manner after his daughter was born, fatherhood should not be seen as a protective factor. Further, previous expressions of remorse have not prevented reoffending. It is submitted this consideration weighs heavily against revocation.
The Respondent also submits that Mr Kual’s conduct in prison demonstrates that he has not been able to remain free of violence in a controlled environment. It also demonstrates a continued disrespect for rules and regulations.
Consideration must be given here to the level of tolerance that may be afforded the risk of future harm, noting that some levels of harm may be considered unacceptable (8.1.2(1)). I must give some consideration, initially, to the nature of any future harm (8.1.2(2) a)).
It is well established that the bare recitation of past offending history alone is insufficient to establish the likelihood of future conduct, and the nature and circumstances of past offending are integral to assessment of the risk of its future occurrence (Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132). That said, the findings I have made about Mr Kual’s offending can inform consideration of the question of harm. That is, the Applicant has committed acts of violence in the past and has a record of non-compliance with community-based orders. He also has a record of diverse other offending, and of misbehaviour while imprisoned. It appears to me to be rationally open to conclude that this past record, including in particular repeated acts of violence, can be a guide to future offending.
However, sentencing remarks and the body of evidence in this matter overall clearly demonstrate that there are particular factors that, if not causative of offending, are important framing conditions for Mr Kual’s offending. While the source material for findings in his 2019 sentencing remain obscure, I consider the judge’s remarks to contain important information about the Applicant. They stress aspects of social and family background, mental health and substance abuse relevant to the offending conduct. Later sentencing remarks vary somewhat in detail and level of consideration, but reflect similar themes.
Against this background, the Respondent has identified the important question: with little or no actual rehabilitative action, what likelihood is there that Mr Kual will take appropriate steps in future? In the absence of any forensic assessment of risk, a specified relevant consideration here is evidence of rehabilitation achieved (8.1.2(2) b ii)). I consider the Respondent is essentially correct to point to limited if any formal rehabilitation. I consider that, broadly speaking, the Respondent is also correct to identify poor conduct in prison as a factor counting against Mr Kual. I consider him to have attempted to minimise, where possible, the nature and seriousness of reports of misconduct, which only compounds the record itself which I consider to be accurate.
There are, however, a number of positive indicators in the evidence. These include Mr Kual’s otherwise good record in prison which is marked by a number of instances of employment. He has also shown the capacity to engage with community corrections in the past. The smaller family group with whom he associates will form his primary social circle and embrace him in the family home. He plans to work, to eschew alcohol, and to play a role as a supportive father. Finally, I note my observation that Mr Kual exhibited some reticence in his oral evidence. It stood in contrast to his more colourful and detailed written submissions. I have no clinical guidance in this respect but consider it open to find him somewhat immature, and also vulnerable in the sense of lacking support at the hearing.
The evidence overall also indicates clearly, as confirmed with the parties at the hearing, that Mr Kual remains subject to release on probation for a period of some months. That is, as I understand the material, due to immigration detention the Applicant has not yet served the balance of his CCO. As noted, he has already engaged with community corrections. There is clearly some speculation involved in determining what precisely might take place were he to be released. However, I consider it reasonable to conclude that Mr Kual will be under a measure of supervision in the community for an initial period. As in the past, during this time any offending or failure to meet requirements of supervision will be a breach of court order.
To summarise, there are a number of factors pointing to continued risk which include propensity to use alcohol, leading to offending behaviour, and a lack of substantive social or psychological interventions. There are evident pro-social factors, being a degree of motivation to behave, a small family group providing support, and at least a modest period of supervision in the community.
On balance, I consider there to be some real risk, based in particular upon the length of Mr Kual’s criminal record, his failure to take advantage of flexible sentencing options in the past, and his relatively recent misconduct (short of offending), of the Applicant reoffending. This risk includes a risk of further violent offending. However, given the fact that previous violent offending was not of a severe kind, and to the likely moderating impact of a brief period of community supervision, I find that the future risk of reoffending is not of a kind that makes it unacceptable in the sense carried by the Direction.
Summary finding
I have found that Mr Kual’s offending has included instances of serious violent offending. I have also found that there is some real risk of future reoffending. Accordingly, I find that this primary consideration weighs strongly against revocation.
Family violence committed by the non-citizen
This is not a matter in which there is any indication that this primary consideration is engaged, and it therefore weighs neutrally.
The strength, nature and duration of ties to Australia
I must consider ‘any impact of the decision upon the non-citizen’s immediate family members in Australia’, where they are citizens, permanent residents or otherwise with a right to permanently reside (8.3(1)). I must also consider the strength, nature and duration of other ties to the Australian community (8.3(2)). The Directions provides that this consideration is in the context of the length of time a non-citizen has resided in Australia.
The definitive source for information about Mr Kual’s family network is his personal particulars form (G13/H1). I have considered this, as well as the summary contained in the RSFIC [52]. In brief, his immediate network includes his ex-partner and daughter, his mother, two sisters and four brothers. For context, I note that the Applicant is the third youngest of the family. Other family listed are his mother and father-in-law, three cousins and two uncles. A total of eight nieces are also listed, aged between around four years and fourteen years.
Mr Kual describes in this form the impact of non-revocation upon his ex-partner and daughter and his family as ‘massive’. The reasons are due to the earlier vulnerability of his ex-partner and daughter, and the previous experience of trauma among his own family unit.
The Respondent emphasised in submissions the large size of Mr Kual’s family network, noting differing degrees of contact across the group. It was also contended that there is now some direct corroborating evidence from family members, and it was accepted that some emotional impact may be felt should Mr Kual not return to the community. Nonetheless, it is submitted that the other primary considerations outweigh factors in Mr Kual’s favour.
Even in the absence of the recent correspondence, the community corrections material summarised above gave some indication of the support likely to be had in Mr Kual’s immediate, small, family circle. The siblings have not explicitly spoken to the degree of impact of a negative outcome, but I take from the material overall that Mr Kual is a loved member of the family and is close to those who have shown direct support. His mother’s current absence from Australia does not alter the weight of this factor.
Mr Kual has lived in Australia for nearly his entire life. He has had periods in which he made a positive contribution through casual employment. He has also had a brief period of parenting which stands in his favour.
I find that this consideration weighs moderately strongly in favour of revocation.
Best interests of minor children in Australia affected by the decision
In this primary consideration, the best interests of each child under 18 affected by a decision not to revoke visa cancellation must be given individual consideration, to the extent they differ (8.4(1)-(3)).
I will not repeat fundamental parts of the evidence already set out. Mr Kual has a very young daughter and a group of eight nieces and nephews whose interests arise for consideration. In his personal particulars form (G13/H2), the Applicant declares a ‘very deep’ connection with his nieces and nephews, most of whom he states also grew up without a father. He describes undertaking ordinary play activities with them and giving them a hand with homework. He considers the impact of non-revocation would be ‘massive’, partly because he is the favourite uncle.
The Respondent made particular note in submissions of Mr Kual’s support to his daughter, and accepted the nieces and nephews may have been reliant upon him from time-to-time. Written submissions also address the fact that Mr Kual has not played a direct role during incarceration and there are other adult figures in his daughter’s life. It is also contended that it is reasonable to assume Mr Kual’s siblings can meet the direct needs of their own children, and there is no evidence they will be deprived of someone who is essential in the case of a non-revocation decision.
With respect to Mr Kual’s daughter, this is self-evidently a parental relationship, in circumstances where the Applicant has undertaken a direct care role, albeit interrupted with incarceration and detention (8.4(4) a)). I consider it reasonable to accept that he will play a positive role in her life in the future (8.4(4) b)). I also consider it reasonable, given their prior contact, that separation would have a more than moderate impact on his daughter (8.4(4) d)), but clearly there are other individuals in a position to care for her (8.4(4) e)).
With respect to Mr Kual’s nieces and nephews, I consider the Respondent to be correct. The evidence does not reveal any special role undertaken by Mr Kual, and he does not fulfil a parental role. Nonetheless, I accept that some moderate emotional impact might arise from separation. This group of minor children do not add substantive weight to this consideration.
Overall, this consideration weighs heavily in favour of revocation, due to the particular importance of Mr Kual in his daughter’s life.
Expectations of the Australian community
Reflecting the principles around community expectations in the Direction, this consideration is expressed in normative terms. It holds that there is an expectation a non-citizen will obey the law and that the Government should not allow those who do not to remain in Australia (8.5(1)). Some conduct may raise such character concerns that non-revocation is appropriate, even where there is no level of risk of future re-offending (8.5(2)-(3)).
The Respondent submits that because the Applicant has been convicted of serious offences, the expectation here is that Mr Kual’s visa remains cancelled, and that this consideration weighs significantly against revocation.
I have found that Mr Kual has been convicted of some instances of serious criminal conduct involving violence. I have also noted his repeat offending and multiple sentences of imprisonment. I have found that the risk of future reoffending is real, but not unacceptable.
Overall, I consider this consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
Of the specified other considerations, there is no material indicating that impact on Australian business interests (9.3) is engaged, and accordingly it weighs neutrally. I am not confined to only the specified other considerations, but the circumstances and submissions do not raise any other factors.
Legal consequences of the decision
This consideration is framed primarily around the provisions of the Act that govern the detention of unlawful non-citizens and their removal from Australia as soon as reasonably practicable, in the context of any claims of harm in another country (9.1(1)-(3)).

In his recent written statement, Mr Kual acknowledges that he is able to apply for a protection visa, but his current priority is to seek revocation of his original visa and build a better future for himself and his family. He states that he has concern for his safety if returned to Sudan.
Similarly, in his personal particulars form (G13, 275), Mr Kual expresses ‘big concerns’ for removal from Australia because of war, tribal vendetta, and considers his life would be in danger. He states that he will be perceived as an outsider on return which would make him a target. He reiterates that he has no one to help him.
At the hearing, Mr Kual appeared to need prompting to identify his ethnicity, being Dinka. He acknowledged being able to speak the language but does not consider himself fluent. When first asked about whether he had any family left in Sudan, I understood Mr Kual to state in the negative. Later in the hearing when discussing his mother’s cancer, as noted, it emerged that she is visiting her home country.
The Respondent contends that it is open for Mr Kual to apply for a protection visa, and the Tribunal may defer a decision about any protection issues (Plaintiff M1 v Minister for Home Affairs [2022] HCA 17). It was contended that despite his apparent reluctance to apply for a protection visa, this may change. The Respondent submits that no weight either way be given to this consideration.
While the vast majority of references in the materials in this matter is to the country of Sudan, I consider it more likely that the country of reference (the likely destination in case of deportation) to be South Sudan. There is no evidence about Mr Kual’s place of birth or other relevant indicators of origin, other than his ethnicity. His claims to protection are also of a very general nature.
Under the circumstances, I consider that it is difficult to attempt to assess, in any helpful way, Mr Kual’s fears of harm, other than to acknowledge them as representing his state of mind. They may well, with some further material, carry some weight but I also note in this matter neither party has lodged any country information which affects my capacity to make any relevant finding.
Accordingly, I defer consideration of the Applicant’s claims of harm. In the event of a non-revocation decision the legal consequences are that Mr Kual will be liable to be detained until deported to his place of origin or perhaps some third country, a matter that appears to be subject to ongoing policy evolution. Should he make a protection visa application, his detention may be prolonged. Currently, there may also be a possibility of Mr Kual applying for or being granted a bridging visa, should a determination be made that there is no real prospect of removal becoming practicable in the foreseeable future (NYZQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37).
Given the speculation associated with certain possible future outcomes, I consider that overall this consideration weighs neutrally.
Extent of impediments if removed
This factor requires consideration of the extent of any impediments a non-citizen may face if removed to their home country by reference to establishing and maintaining basic living standards (9.2(1)).
The essential relevant facts and evidence have already been set out above and I rely on them also here.
The Respondent submitted that, whether or not family members had ongoing contact in the country of origin, Mr Kual has not identified anyone himself. It was contended that impediments may well be considerable due to the size of the Applicant’s family in Australia. It was further contended that Mr Kual’s hepatitis may prove challenging to manage upon return. It is accepted in written submissions that Mr Kual may face ‘significant practical, financial, and emotional hardship upon return’ and that this consideration be given some moderate weight in favour of revocation.
I accept that Mr Kual is young and, aside from some questions over liver function, is in good health. He is quite well educated and has some familiarity with a language spoken in South Sudan. Beyond these relatively meagre positive factors, I consider that there are indeed likely to be substantial hurdles facing Mr Kual upon deportation – even taking into account the modest standard by which this consideration is measured.
Accordingly, I find this consideration weighs strongly in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that Protection of the Australian community from criminal or other serious conduct and Expectations of the Australian community both weigh strongly against revocation. I have found that Best interests of minor children in Australia weighs strongly in favour of revocation, and Strength, nature and duration of ties to Australia weighs moderately strongly in favour. The remaining consideration concerning family violence weighs neutrally.
Of the other considerations, I have found that Legal consequences of the decision weighs neutrally, and Extent of impediments if removed weighs strongly in favour of revocation. The remaining consideration concerning business interests weighs neutrally.
The Direction states that Protection of the Australian community is generally to be given greater weight, and primary considerations should be generally given greater weight than other considerations (7(2)). One or more primary considerations may outweigh other primary considerations (7(3)).
The primacy in the Direction of protection of the Australian community was stressed by the Respondent at the hearing. It was also acknowledged that Mr Kual’s relative youth should be taken into account, and the Direction further affords some higher tolerance of offending among non-citizens who have lived in the Australian community most of their life.
I have noted and accepted judicial pronouncements about the nature of Mr Kual’s more serious offending. That is, I consider his record long and concerning, it does not include instances of real severity, and it is accompanied by evidence of a youth wasted in poor company, making poor judgments. I have also noted my opinion that Mr Kual presents as immature.
For these reasons, and in recognition that Mr Kual has spent the majority of his life in Australia as an escapee from violence and disruption in his home country, I find that there is another reason that the mandatory cancellation of Mr Kual’s visa should be revoked.
DECISION
For the reasons given above the Tribunal sets aside the decision of the delegate dated 20 October 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa and substitutes it with a decision that there is another reason why the mandatory cancellation should be revoked.

Date(s) of hearing: 13 and 15 January 2025

Applicant: Self-represented

Counsel for the Respondent: Mr Kevin Tang

Solicitors for the Respondent: Hunt & Hunt Lawyers

Date(s) of hearing:	13 and 15 January 2025
Applicant:	Self-represented
Counsel for the Respondent:	Mr Kevin Tang
Solicitors for the Respondent:	Hunt & Hunt Lawyers