KYMM and Minister for Home Affairs (Migration) - [2019] AATA 5174

KYMM and Minister for Home Affairs (Migration) [2019] AATA 5174 (28 November 2019)
Division:GENERAL DIVISION
File Number: 2019/5610
Re: KYMM
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd

RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris

Date:28 November 2019
Place:Melbourne

The Tribunal decides to affirm the reviewable decision.
.....[sgd]..................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa because of substantial criminal record – Refugee and Humanitarian (Class XB) Subclass 202 Global Special Humanitarian visa – character test – the applicant’s offending history – place of birth and age of applicant – citizenship of applicant – consideration of Direction No. 79 – primary considerations – protection of Australian community – expectations of Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – other considerations – extent of impediments if removed – other matters – citizenship of Applicant – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 35
Migration Act 1958 (Cth), ss 5M, 36, 499, 501, 501CA
Migration Regulations 1994 (Cth), reg 2.52
Sudanese Nationality Act (Amendment) 2011 (Sudan)
The Nationality Act, 2011 (South Sudan), ss 5, 8. 9
The Sudanese Nationality Act 1994(Sudan), ss 4, 10
Transitional Constitution of South Sudan, 2011 (South Sudan), Chapter II
Cases
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1986) 169 CLR 379
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 58
Minister for Home Affairs v HSKJ [2018] FCAFC 297
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
QDWQ and Minister for Home Affairs [2019] AATA 4622
Secondary Materials
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force
4 October 1967)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
DFAT Country Information Report South Sudan – Department of Foreign Affairs and Trade, 5 October 2016
Migration Act 1958 – direction made under s 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Commenced 7 September 2017)
Migration Act 1958 – direction made under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – dated 20 December 2019 (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
28 November 2019
Preliminary matters and background

The Tribunal made an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to prohibit the publication of the name of the Applicant in these proceedings; instead he is given the anonym ‘KYMM’.
KYMM was born in the Republic of Sudan in, the Tribunal finds, May 1995. In 2003, with his mother and three of his siblings, KYMM left Sudan for Egypt. They lived there in a refugee camp. In 2004 the Applicant’s mother applied for a Refugee and Humanitarian (Class XB) Subclass 202 – Global Special Humanitarian visa (the visa) for herself and on behalf of four of her children, including KYMM. This class of visa was granted to each of them on 23 May 2005. The Applicant and the members of his family mentioned arrived in Australia on 5 December 2005.
On 15 October 2018 KYMM’s visa was cancelled by a delegate of the Respondent under section 501(3A) of the Migration Act 1958 (Cth) (the Act) after the delegate decided that KYMM did not pass the character test by reason of him having a ‘substantial criminal record’ within the meaning of section 501(6)(a) of the Act. This was on the basis of section 501(7)(c) of the Act, namely that on 11 November 2011 KYMM was convicted of the offence of Robbery and sentenced to 12 months’ detention in a Youth Training Centre. The delegate was also satisfied that, at the time of the cancellation of the visa in 2018, KYMM was serving a sentence of full-time imprisonment at Ravenhall Correctional Centre in Victoria for a criminal conviction. KYMM was invited to make representations to the Department of Home Affairs (the Department) seeking that the mandatory cancellation of the visa be revoked.
On 24 October 2018 KYMM made representations in response to the Department’s invitation. A different delegate of the Respondent found that KYMM had made representations as required under section 501CA(4)(a) of the Act. The delegate considered the representations, but was not satisfied that KYMM passes the character test. After considering the matters required to be taken into account by a decision-maker contained in Direction No 79 issued by the Minister for Immigration, Citizenship and Multicultural Affairs under section 499 of the Act, the delegate also decided there was not another reason why the original decision to cancel KYMM’s visa should be revoked.
KYMM has brought this latter decision to the Tribunal for review. The hearing was held on 14 and 15 November 2019. The Applicant was represented by Ms Daye Gang of counsel, instructed by Mr Benjamin Goulding of Refugee Legal. KYMM gave evidence and was cross-examined by Ms Rachel Noronha of Clayton Utz, representing the Respondent. The Tribunal also heard evidence from the Applicant’s mother, Ms A. In respect of Ms A, the Tribunal appreciates the assistance of an interpreter in the Dinka language.
Both parties submitted Statements of Facts, Issues and Contentions, and the Applicant lodged further Submissions in Reply. The Tribunal also took into evidence a volume of documents submitted by the Respondent (‘G’ documents) and a volume of material produced under summons by Victoria Police (Exhibit R6). Submissions were made by counsel for the Applicant that the Tribunal should not accept into evidence material related to uncharged matters or police briefs of evidence where the contents cannot be corroborated. The Tribunal decided to take the volume into evidence, but advised that, subject to any submissions, no weight is attached to (a) matters that did not lead to a charge; or (b) withdrawn matters, and (c) limited weight may be attached to disputed material where the authors are not available to attest to the contents.
The Tribunal took into evidence other documents tendered by parties which are listed at the end of these reasons.
Legislative framework
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that the Applicant had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (section 501(3A)(b)).
Relevantly, section 501(7) of the Act states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
Section 501CA of the Act relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
If the Tribunal finds that KYMM fails the character test, the sole issue before the Tribunal then becomes, whether there is another reason why the original decision to cancel the visa should be revoked. In this exercise, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Respondent must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
The Tribunal had before it (G2, p 29-32) a Criminal History Check report produced by the Australian Criminal Intelligence Commission (ACIC report) dated 12 October 2018. The ACIC report states that on 11 November 2011 KYMM was convicted of the crime of Robbery before Melbourne Magistrates’ Court and sentenced to 12 months’ detention in a Youth Training Centre. At G2, page 33 was a file note from the Department dated
15 October 2018 stating that the unnamed officer, the author of the file note, had been advised by Corrections Victoria that KYMM was serving a sentence of imprisonment on a full-time basis in a correctional centre in Victoria.
On this evidence, the Tribunal is satisfied that KYMM has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. On the facts of the convictions made against him and the sentence imposed in 2011, the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. As such, the remaining task is for the Tribunal to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.
The Direction
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the cancellation of KYMM’s visa consulted Direction No. 79 (‘the Direction’), made under section 499. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
The Applicant’s offending
There was some discussion at the hearing about the completeness of the ACIC report. The Applicant submitted, and the Tribunal accepts, that the table of offences listed by the Respondent in his Statement of Facts, Issues and Contentions should be the reference point for the Tribunal’s consideration.
On 19 August 2011 at the Melbourne Children’s’ Court the charges of ‘Assault police’ (2 charges), and ‘Behave in offensive manner public place’ were found proven against KYMM without conviction. He was fined $500.
On 11 November 2011, at the Melbourne Magistrates’ Court, KYMM was found guilty of the following offences: ‘Resist police; Theft; Unlawful assault; Failure to answer bail (2 charges); Handle/receive/retention stolen goods; Theft; Resist police; Theft; Assault police on duty; Internationally damage property; Robbery.’ KYMM was sentenced to varying periods of detention in a Youth Training Centre for each offence, ranging from a period of 1 month to 12 months (the longest period of 12 months being for the offence of Robbery).
On 18 November 2011 at Heidelberg Children’s Court the charge of ‘Resist police’ was found proven against KYMM and he was released on entering an accountable undertaking for a period of six months (which concluded on 17 May 2012).
On 30 January 2012 KYMM was back before the Children’s Court at Melbourne. The following offences were found proven against him, without conviction: ‘Exceed prescribed concentration of alcohol within 3 hours after driving or being in charge of a motor vehicle (2 counts); Drive without ‘L’ plates displayed; Drive at night with ineffective headlights; Fail to answer bail; Use unregistered motor vehicle on highway; Learner driver driving vehicle without expert driver; Drive without front ‘L’ plate displayed; Drive whilst authorisation suspended.’ The offences were adjourned to 30 October 2013 and KYMM was released on entering a good behaviour bond in the amount of $200. He gave an undertaking to be of good behaviour during the period of the bond and his licence was cancelled and he was disqualified from driving for a total period of 12 months.
On 11 February 2013 KYMM appeared before the Melbourne Magistrates’ Court. The following offences were proven against him without conviction: ‘Burglary (2 charges); Theft (4 charges); Robbery; Recklessly cause injury; Dealing with property suspected of being proceeds of crime; Fail to answer bail; Attempt robbery.’ A Community Correction Order was imposed on KYMM until 10 February 2014 for him to perform 100 hours of unpaid community work. He was also ordered to pay $376.50 compensation in regard to the proven offence of Robbery.
On 29 August 2013 the Applicant was before the Melbourne Magistrates’ Court. He was convicted of the following offences: ‘Intentionally damage property; Unlawful assault; Theft from shop (shop steal); Unlicensed driving; Careless driving of a motor vehicle; Failure to give name/address when property damaged; Exceed prescribed concentration of alcohol within 3 hours after driving or being in charge of a motor vehicle.’ The Court imposed a Community Correction Order for 12 months requiring KYMM to do 120 hours of unpaid community work. He was disqualified, in relation to the drink driving offence, for a total period of 26 months. The Court also found that KYMM had breached the Community Correction Order imposed on him on 11 February 2013.
On 12 September 2014 at Melbourne Magistrates’ Court, KYMM was convicted of these offences: ‘Drive whilst disqualified; Theft; Robbery; Shop theft – less than $600; Hinder police; Criminal damage (intent to damage/destroy); Theft from shop (shop steal).’ For these offences he was sentenced to a total term of 9 months’ imprisonment (to be served concurrently), wholly suspended.
He was also convicted of the offences of: ‘Use unregistered vehicle on highway; Use vehicle – not safe and roadworthy condition; Exceed prescribed concentration of blood-alcohol; Drive vehicle whilst exceeding prescribed concentration of drugs; Careless driving of a motor vehicle.’ For these offences KYMM was fined $1,000 and his driver licence cancelled for four years. The Court also found that the Applicant had breached the Community Correction Order made on 29 August 2013.

On 7 September 2018 at Melbourne Magistrates’ Court, KYMM was convicted of the offence of ‘Drive whilst disqualified’ (8 charges). For these offences, he was sentenced to an aggregate of 3 months’ imprisonment to be served concurrently. He was also convicted of the offences of: ‘Hinder emergency worker on duty; Intentionally damage property; Fail to answer bail; Obtain property by deception (4 charges); Contravene a conduct condition of bail; Theft from shop (shop steal); Behave in riotous manner in a public place; Contravene Interim Family Violence Intervention Order; Handle/receive/retain stolen goods; Dealing with property suspected of being proceeds of crime (2 charges); Intentionally damage property; Enter intersection – red traffic light; Refuse to undergo breath test; Fail to give information as to driver.’ The Court imposed a fresh Community Correction Order on KYMM for a period of 12 months. For refusing to undergo a breath test and failing to give information as to the driver of a vehicle, KYMM’s driver licence was cancelled for a period of four years. For intentionally damaging property, he was ordered to pay $500 compensation. For the offence of entering an intersection against a red traffic light, KYMM was fined $100.
On 7 December 2018, KYMM was convicted at the Melbourne Magistrates’ Court of the following offences: ‘Dishonestly undertake the realisation of stolen goods; Dishonestly assist in the retention of stolen goods; Obtain property by deception (3 charges); Theft from shop (shop steal)(4 charges); Commit indictable offence while on bail (2 charges); Unlawful assault; Traffick [sic] cannabis.’ The Court imposed a Community Correction Order for a period of nine months requiring him to do 200 hours of unpaid community work.
The Applicant’s date of birth
There was conflicting evidence before the Tribunal as to KYMM’s date of birth. In his personal circumstances form (G2, p 43) provided to the Department, the Applicant stated he was born on [redacted] May 1993. That is also the date KYMM gave to the police during a record of interview in June 2015 (Exhibit R6, p 446). In his mother’s Application for an Offshore Humanitarian visa (Exhibit R1), his date of birth is recorded as both

[redacted] April 1995 on the application form and, on the proposal form,

[redacted] September 1995. It is simply recorded as ‘1995’ in his mother’s Sudanese passport which lists children travelling with her on that travel document.
In his written statement (Exhibit A4), KYMM wrote:
From memory, I arrived in Australia with my family when I was about 9 or 10 in 2005. I believe my date of birth is incorrect. As a child, my year of birth was 1995. When I got to Australia, I was given 1993 as my date of birth and I believe that the date of birth that the Department of Home Affairs has for me is incorrect. I feel like over time my identity has been taken away from me.
In his oral evidence, KYMM said he believes his birthdate to be the second date entered onto his mother’s application for a visa, which is [redacted] September 1995. He said that at one stage of his schooling his school principal considered he was older than his stated date of birth and sent him to have a ‘wrist test’, by which the Tribunal gleaned he underwent a hand radiograph which is used as a bone-density chronological age test for children under 18. He said he was subsequently told by his school principal to use the date [redacted] May 1993 as his ‘legal’ date of birth.
The accurate date of KYMM’s birth is not pivotal to the Tribunal’s consideration except insofar as it might inform me about his early offending; in any event in assessing character of an adult the Tribunal places less weight on determinations by a children’s court in circumstances where the offences themselves are at a lower level of seriousness. Conduct as an adult is more telling. There was no explanation before the Tribunal as to why not only the year but the day and month of KYMM’s birth was apparently changed after the hand radiograph.
On balance, the Tribunal accepts KYMM’s belief and finds, on the evidence before it, that his date of birth is [redacted] September 1995.
The Applicant’s place of birth
KYMM states (G2, p 43) that he was born in Port Sudan. His mother’s oral evidence was that he was born in that city. The Tribunal prefers this evidence to the record in Exhibit R1 that KYMM was born in the town of Aweil.
In 1995 both Port Sudan and Aweil were in the Republic of Sudan (Sudan). Sudan was partitioned on 9 July 2011 when the new state of the Republic of South Sudan (South Sudan) was created, by essentially the carving out of territory in the south of Sudan. Port Sudan remains in Sudan after partition, but Aweil is now in South Sudan.
On the evidence before it, the Tribunal finds that KYMM was born in Port Sudan, in what was then, and remains, within the sovereign territory of Sudan.
The Applicant’s citizenship
In her statutory declaration (Exhibit A5), the Applicant’s mother, Ms A, declares:
I was born in Wau. This was before Sudan and South Sudan split. My family moved to Khartoum when I was about 14 or 15 years old, to escape the war. I met my husband [name redacted] in Khartoum, Sudan. [My husband] was born in Aweil. Our families are both from South Sudan. [name redacted] was Jur-chol and my mother’s family were Jur-chol. My father’s family were Dincka [sic] but we were brought up by my mother, [KYMM’s] family are from South Sudan.
The Tribunal exercised the power under section 33(1)(c) of the AAT Act and obtained a copy of an English translation of The Nationality Act, 2011 (South Sudan)(the South Sudan Nationality Act). Section 5 of the South Sudan Nationality Act provides:
“South Sudanese National” means a person who satisfies the eligibility criteria provided under Chapters III and IV of this Act.
Chapter III of the South Sudan Nationality Act relates to Nationality by Birth. Section 8(1) states:
8. Eligibility Requirements
(1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
(2) A person shall be considered a South Sudanese National by birth, if at the time of coming into force of this Act –
(a) he or she has been domiciled in South Sudan since 1.1.1956; or
(b) if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956.
(3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person.
…
Section 9 states:
9. Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Applicant’s father disappeared when KYMM was aged about two and he said his mother has never told him what happened to him (Exhibit A4). KYMM’s mother’s statement that she was born in Wau in what is now in South Sudan was not contested by the Respondent.
The Respondent submitted that the basis of the Minister’s submission that KYMM is a citizen of Sudan is founded partly on his stated place of birth as Port Sudan and partly on the fact that his mother cited ‘Sudan’ as his place of birth when she originally applied for the visa, and was travelling on a Sudanese passport which included, among other children, KYMM’s name. The Tribunal pointed out that, as a matter of fact, South Sudan had not been created as a State in 2005 when the Applicant’s mother filled out this paperwork.
Sudan has a principal piece of legislation governing citizenship, The Sudanese Nationality Act 1994 (Sudan) (1994 Act), which was amended by the Sudanese Nationality Act (Amendment) 2011 (Sudan).
The 1994 Act states, at section 4(1)
4(1)In respect of persons born before the coming into force of this Act, a person shall be Sudanese by birth if he satisfies the following conditions:
(a)If he has already acquired Sudanese nationality by birth;
(b)(i) if he was born in Sudan or his father was born in Sudan;
…
The Applicant submitted that KYMM is a citizen of South Sudan because of section 8(1)(b) of the South Sudan Nationality Act, because he belongs to one of the indigenous ethnic communities of South Sudan, namely the Jur-Chol ethnic community, and that he can no longer be a citizen of Sudan because of section 10(2) of The Sudanese Nationality Act (Amendment) 2011 (Sudan) because it would have been automatically revoked on his acquisition of South Sudanese nationality. Ms Noronha submitted before the Tribunal that the Respondent accepts that KYMM is a member of the Jur-Chol ethnic community.
It would seem to the Tribunal that, because of section 8 of the South Sudan Nationality Act, KYMM ‘shall be considered’ a national of South Sudan under the law of that country. Bolstering this is that the Transitional Constitution of the Republic of South Sudan, 2011, provides at Chapter II – Citizenship and Nationality, at Article 45(1):
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
As set out in Ms A’s statement, Chapter II is relevant in this case because KYMM’s mother was born in Wau in what is now South Sudan, and his father was born in Aweil, also in what is now South Sudan.
It may also be that KYMM is entitled to Sudanese citizenship because he was born in Sudan. It is not abundantly clear how the 2011 amendment to the 1994 Act affects this legislated right because section 4 of the 1994 Act, set out above, was not amended by the 2011 Act. Presumably the Sudanese legislature was acting as a consequence of the partition of the country, but following the principles of interpretation that where a later legislative action has an effect on an earlier enacted statute, the better conclusion is that because KYMM has acquired South Sudanese citizenship by virtue of being a member of one of the indigenous ethnic communities of South Sudan, he has thereby acquired the status of a South Sudanese National. The Tribunal notes that the 1994 Act as amended by The Sudanese Nationality Act (Amendment) 2011 (Sudan)(the Sudanese Act) states, at section 10(2):
Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
The Tribunal’s conclusion is that KYMM is a citizen of South Sudan. If the Tribunal is wrong, to the extent that the potential outcome of KYMM’s repatriation to Sudan or South Sudan is markedly different, the Tribunal will consider that later on.
Evidence of KYMM
In regard to family in Australia, KYMM said that his mother, Ms A, lives here and is an Australian citizen. He has three sisters here and three half-brothers, born in Australia of a different stepfather. He said his sisters are aged 27 or 28, 22 and 20. He said his half-brothers are aged 12, 11 and 8.
KYMM said he believes his grandmother is in Africa, he thinks living in her village in South Sudan. He has an older brother living in Egypt and a twin brother living in France. When asked by his counsel what he had done to support his family, KYMM said he wanted to get a TAFE certificate and get a job to provide support to his mother, but instead was taken to a refuge house by police. He said that he had a ‘really tough life in Australia. I had people sent my way who led me astray.’
KYMM said he had a car accident in 2013 and blacked out and, because of the injuries he sustained, he has not been able to work consistently since that time. He said he did have a work history both at K-Mart for maybe four or five months, and McDonalds, for ‘probably six months’. He said it was his aim to go back to study at TAFE if his visa is restored.
He said he commenced a carpentry course at TAFE but withdrew and ‘started hanging around with street boys’. He said he played various sports at school and also played periodically for Preston Lions soccer club and Winchelsea Stallions, for around half a season.
When asked about the list of offences in the ACIC report (G2, p 29-32) KYMM said he felt ‘wrongfully convicted, set up.’
In terms of a head injury he sustained in 2018, KYMM said he was talking outside the house of a friend when a person came up who he had seen around the neighbourhood before, but hadn’t previously spoken to. He said the person became aggressive and hit him on the head with a piece of wood. He said at the time he didn’t think it had affected him, and he had got on a bus to go home, but began to feel dizzy and so he went to the Outpatients Department at the Royal Melbourne Hospital by ambulance and had a CT scan.
The Tribunal notes that before it was an Outpatient Referral from the Royal Melbourne Hospital (Exhibit A3), dated 14 March 2018. Dr Tim Wastney, Radiology Fellow, after summarising the report of the injury, stated:
Findings:
Comparison made with CT Head performed 12/12/2013.
Longitudinal fracture through the left petrous temporal bone. The fracture appears to spare the otic capsule, however there is fluid within the inner ear. Partial opacification of the left mastoid air cells. The visualised paranasal sinuses and right mastoid air cells are well aerated.
Small amount of associated pneumocephalus adjacent to the fracture. No acute intracranial haemorrhage. The normal grey-white differentiation is maintained. No midline shift or mass effect. The ventricles and CSF spaces are within normal limits for the patient’s age. G
Conclusion:
Longitudinal fracture of the left temporal bone. The fracture appears to spare the otic capsule, however there is fluid within the inner ear. Associated pneumocephalus. No acute intracranial haemorrhage identified.
Under cross-examination, in respect of the 2011 offences for two charges of assaulting police, KYMM said he didn’t remember the details, that he didn’t assault police and ‘the lawyer I had told me to plead guilty.’ When asked if he accepted that he pleaded guilty, he said he did not accept that. The offence of theft related, according to the Victoria Police summary, to the assault of a person in the Melbourne CBD and the theft of that person’s mobile phone. In answer to a direct question from the Tribunal KYMM said he accepted he had stolen a mobile phone in the past, and it was possible he did on this occasion.
KYMM said he did not enter a guilty plea at Court, and then said he was ‘tricked into pleading guilty because his lawyer didn’t explain anything’ to him. When asked by the Tribunal whether the lawyer might have entered a guilty plea on his instructions, KYMM said ‘yes, I just told them to get it over with.’
Asked about his 2012 conviction for drink driving, and why he had driven while intoxicated, KYMM said that he ‘could have been hanging out with people.’ KYMM agreed that he was placed on a good behaviour bond but was back in front of the Court in February 2013. KYMM said he ‘can’t recall any of these offences. I was surrounded by a group of people sent to put me in this situation. I’m really not sure I committed these crimes.’
For several other questions regarding the contents of the ACIC report, KYMM said either that he could not remember the offending, or the details of the offending, or that he was surrounded at the time by people acting in that way and ‘I didn’t want to act in that way.’
When asked whether he committed offences against people he knew, KYMM said he never committed a crime against anyone he knew.
In regard to the offence of trafficking in cannabis, KYMM said he never trafficked in cannabis.
The Tribunal directly asked which offences he accepted in the ACIC report. KYMM accepted that he had been convicted of stealing from a shop, stealing a mobile phone, smashing a mobile phone, driving without a licence, but that he did not remember any of the assault offences.
When asked about the September 2018 conviction for contravening a Family Violence Interim Intervention Order, KYMM said that his mother placed the order on him, but he was not aware. He said he went to the family home and his mother told him he was not allowed within 200 metres of the house.
When asked directly by the Tribunal about the conviction for the offence of hindering an emergency service worker on duty, KYMM responded: ‘It is B.S. I did not commit that crime.’
When asked by the Respondent whether, in relation to the eight counts of driving whilst disqualified, he knew he was not allowed to drive at that time, KYMM said that he did know that, but drove ‘because I thought I wouldn’t get caught driving.’
When asked about his failure to complete obligations under a Community Correction Order, KYMM said he had an ‘incident with my supervisor and after that I didn’t turn up anymore.’
In terms of his family life, KYMM said he moved out of home aged about 15 or 16, and had not lived at home since then, but used to go home sometimes to visit. He said on one occasion the police told him not to go back and his mother told him she didn’t want him back at home. He said he did maintain some contact with his young half-brothers.
KYMM said that he had been given a two bedroom unit by the Victorian Department of Health and Human Services when living with a girlfriend but they had broken up and he has (since being in immigration detention) been reallocated a one bedroom unit by that department, and his belongings have been moved there (Exhibit A2).
In terms of his relationship with his family he wrote (Exhibit A4):
My life has been very tough, and I’ve not had the support of my family or my community for a long time. I ended up homeless from a young age and my life was really tough. I was just a kid when I first started offending. This isn’t an excuse for my offences, but it is the reality. I’ve gone through stuff in my life that most people will never experience. I fled my country, I’ve ended up homeless and I experience chronic pain. Despite all of that, I take full responsibility for my offences. I have got into trouble and I’ve always done the right thing [sic] and for this I am very sorry.
When KYMM was asked about this passage and the lack of family support, KYMM said he believed his mother did really care about him but ‘we are a bit distant. It has become very difficult.’ He said what he meant was that he had to go to Court on his own, and had no one beside him, no father figure to help him through everything he was going through.
Evidence of Ms A
The Tribunal had before it a written statement from the Applicant’s mother, Ms A (Exhibit A5).
Ms A said KYMM regrets all the offences he has done and if given another chance will come home with her and his half-brothers, and planned to go back to TAFE to improve his skills.
Ms A said she would support her son if he is allowed to stay in Australia by taking him to his medical appointments. She said she had supported him in Court at all his prior appearances, except for the last occasion when she was abroad and didn’t learn of his arrest until her return to Australia.
Ms A said they don’t have many family members back in Sudan who were not killed in the civil war. She said her husband had been ‘caught’ by the security organs of the Khartoum government and she herself was abused and raped by Sudanese personnel and managed to escape to Egypt with the Applicant and his three sisters. Ms A said she was ‘quite sure’ her husband was no longer alive.
Ms A said she believed it would be a death sentence if KYMM was returned to Sudan or South Sudan, because there is still civil war in South Sudan and he doesn’t know the language there.

Ms A said that her three youngest children were all Australian citizens, as their father was an Australian citizen. She herself has become an Australian citizen.
In terms of her own mother, Ms A said she does not know her mother’s current location. Ms A said she went back to Egypt in 2018 and paid for an agent to travel to Sudan to find her son, who is now in Egypt. She said the agent had been unable to locate her mother. Ms A said another son lives in France, about three hours from Paris.
Ms A said that KYMM dropped out of school in either grade 9 or 10 owing to family violence at home from her ex-partner which KYMM witnessed, and on which he intervened.
In terms of the neck injury KYMM sustained in 2013, Ms A said he didn’t recover fully and the injury causes him pain in cold weather, and that KYMM had been advised not to undertake certain activities.
Ms A said that, in spite of some family friction, KYMM was close to his younger half-brothers and in some ways, because of the age difference, they viewed KYMM as a sort of ‘father figure’; she said she had taken her three youngest children to see the Applicant while he has been in immigration detention.
Closing submissions of Applicant
Ms Gang referred to the execution of Ronald Ryan in 1967, the last judicial execution in Australia. She said that the Tribunal, in effect, would be exercising a ‘capital function’ in relation to KYMM’s visa and, if it did not restore the visa, it ‘would be sentencing him to death.’
Ms Gang said that many of KYMM’s offences were at the lower level of seriousness, but acknowledged that there had been some offences of violence. She said that he knew the consequences of his re-offending might lead to more severe penalties but he had not been aware that re-offending could lead to cancellation of his visa.
Ms Gang said that there was little risk to the Australian community that KYMM would re-offend as he was now aware that it would lead to an immigration outcome, and deportation would lead to him being caught up in an inter-ethnic war and ‘quite possibly, death’.
In terms of Australia’s treaty obligations not to return a person to a country where they would face a real risk of harm, Ms Gang said KYMM faced a real risk of direct harm because of his Jur-Chol ethnicity by birth, and that, if returned, he would be ‘assumed to be wealthy’ and thereby face an additional risk of harm. She said that because of his absence from Sudan or South Sudan from such a young age, KYMM would be unlikely to be able to distinguish which ethnic grouping was which, and his risk of harm would be thereby heightened.
Ms Gang said ‘[KYMM] will die’ if the Tribunal decided not to invoke Australia’s non-refoulement obligations. In terms of the consideration in the Direction of the extent of impediments if removed, Ms Gang said that this should be read in the context of KYMM’s exposure to risk, that he would be targeted for his ethnicity, imputed wealth and lack of affiliations.
Closing submissions of Respondent
Ms Noronha submitted that KYMM had a frequent and sustained record of offending, which illustrated a blatant disregard for the law. She said as much was clear from his breaches of obligations imposed by the Courts.
The Respondent said KYMM lacks insight into his offending, shown by his disputing of many offences and attribution of blame to others. She said that Ms A’s (positive) influence in KYMM’s life has previously been insufficient to prevent him from re-offending.
In contrast to the written Statement of Facts, Issue and Contentions, at the hearing Ms Noronha said the Respondent accepted that three minor children would be affected by the visa cancellation decision, KYMM’s three half-brothers but, given that he has lived apart from them for a long period, submitted his role in their lives is ‘intermediate’.

Ms Noronha noted that Ms A refers in her written statement to one of her daughters having two children, but there was no other information before the Tribunal on them.
The Tribunal then asked the Applicant to provide direct information on his sister’s children. He said that one sister has 2 children, a 10 year old boy and a 4 year old girl, and that they used to visit his mother’s house and he would see them there. KYMM said he had not seen them since he was incarcerated; before that he said he might see his niece and nephew ‘two or three times a week’.
Ms Noronha said that, as a result of this evidence, the Respondent also accepted that these minor children may be affected by the visa cancellation decision.
In terms of non-refoulement obligations, the Respondent said that, as a response to the decision of the Full Court of the Federal Court of Australia in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar), a decision-maker is required to consider clearly articulated, substantial claims, made by an Applicant, but was not required to become a de facto decision-maker in respect of any claim an affected person may make for a protection visa.
The Respondent submitted that, if the Tribunal decides that the Applicant’s citizenship is of South Sudan, it was accepted that there is insecurity and instability in South Sudan and that KYMM may be at risk of harm there owing to his Jur-Chol ethnicity but that the Tribunal is not required to determine whether Australia’s international obligations are enlivened.
In terms of the extent of impediments if KYMM is returned, the Respondent submitted that this consideration favours the Applicant.
CONSIDERATION OF THE DIRECTION
Primary consideration – Protection of the Australian community (paragraph 13.1)
The Direction requires decision-makers to have regard to the principle that the Government is committed to protect the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Tribunal must consider the nature and seriousness of KYMM’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Taking account of the Applicant’s age, his offending started when he was aged 15, his first appearance at Court being in August 2011 just before KYMM turned 16 years of age. In November 2011 KYMM was in Court again and convicted of some twelve offences, which led to his being incarcerated at a youth detention centre.
These early sanctions appear not to have had any particular effect in modifying KYMM’s behaviour. The ACIC report lists a total of some ninety offences, spanning the period from August 2011 to September 2018. Some of the offending is at the lower end of seriousness, such as failing to display ‘L’ plates or driving at night with ineffective headlights. However, there are several other offences which are at the mid-range of seriousness, including driving while licence suspended, driving whilst under the influence of alcohol and drugs, careless driving and intentionally damaging property. There are also offences in the higher range of seriousness, including several theft and shop-lifting offences, dishonesty offences, assault, robbery and burglary.
In addition, there are a number of offences which illustrate a consistently cavalier attitude to the justice system, such as failing to answer bail, several failures to adhere to conditions imposed by the Courts in Community Correction Orders, resisting police and assaulting police on duty. The offences for which he received three months’ imprisonment, eight counts of driving while disqualified, illustrates KYMM’s disregard for judicial sanctions imposed upon him.
This is an unimpressively long list of offences that KYMM has accumulated in just seven years.
In terms of KYMM’s risk of re-offending, he gave sparse evidence before the Tribunal of strategies he planned to put in place if allowed to stay in Australia that would deter him from embarking on further offending. His frequent responses to questions in the hearing that his offending was owing to the company he was keeping at the time, or others who had ‘led him’ to offend may be accepted for what they are. His other responses when asked about individual Court appearances, which was to blame others, including the lawyers representing him at Court and, in certain cases, to flatly deny offences, even when he was reminded that he entered guilty pleas, cannot be accepted by the Tribunal. It is well established that the Tribunal cannot go behind findings of the Courts (see, for example, Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, at [45]).
KYMM showed little signs of remorse except for a somewhat self-serving response, and the statement of contrition in his written statement (Exhibit A4 “…I take full responsibility for my offences”) was effectively abandoned and contradicted in the content of many responses in his oral evidence.
Because of the Applicant’s consistent attitude in his evidence, which amounted to denial for much of the offending even when faced with the evidence in the documents he was shown, the Tribunal concludes that there is a real risk of re-offending. Because of the lack of articulated strategies to reform his behaviour, apart from a somewhat inchoate desire to resume TAFE studies, I find that the risk of KYMM re-offending is not only real, but relatively high.
The Direction requires decision-makers to have regard to the nature of harm to individuals or the community should the Applicant engage in further criminal or other serious conduct. The harm that is obvious, given his history of driving offences, is to other road-users. On his own admission, the harm to individuals from KYMM’s property offences, such as theft of mobile phones and shop lifting, would be both economic and personal to the victims. The Tribunal finds that the likelihood of KYMM engaging in criminal or other serious conduct in the future is high.
I accept the genuineness of Ms A’s desire to support KYMM if he is released back into the Australian community, but I frankly doubt her ability to provide more than moral support, especially given she herself has, on KYMM’s own evidence, had to seek court orders, or support those brought by the police, against him for his past behaviour, given that he has not lived with her for many years and given his insouciant attitude to his past criminal conduct.
I find that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal should consider minor children in Australia affected by the visa cancellation decision. In this consideration, the Tribunal finds that the relevant children are KYMM’s three half-brothers and his sister’s son and daughter, all of whom live in Melbourne. The evidence is that the three half-brothers are Australian citizens. Apart from the evidence from the Applicant that their father is from Liberia, there was no evidence of the citizenship of KYMM’s niece and nephew, but that does not affect my consideration of their interests.
KYMM said that he had a relationship with his three half-brothers. His mother said they treat him in some ways as a ‘father’ figure, and they have visited him since he has been in custody. Ms A said that her three younger children have even made cards for KYMM on father’s day, which gave the Tribunal some sense, without their own testimony, that they look upon him as an older male figure in their lives. The Tribunal accepts that they would be detrimentally affected if KYMM’s visa remains cancelled. It is also accepted that KYMM has a relationship with his niece and nephew but that is not quite as close as with his half-brothers.
The Tribunal considers that KYMM’s criminal conduct has not had a major effect on any of the minor children, given he has lived apart from them for all of their lives. It is also noted that Ms A plays the principal parental role in relation to KYMM’s half-brothers, and the Applicant’s sister and her own partner provide parental roles in relation to KYMM’s niece and nephew.
There was no evidence directly from any of the five minor children as to their views. The Tribunal, on balance, considers that this primary consideration weighs in favour of revoking the visa cancellation, but not heavily so, given the sporadic nature of contact KYMM has had with the children and given that he does not play a central role in their lives.
Primary consideration – Expectations of the Australian community (paragraph 13.3)
In this primary consideration, the starting point is that members of the Australian community expect non-citizens to obey the laws of this country. I might add that this expectation also applies to persons who are Australian citizens. It is a fundamental principle of our ordered society. This particular primary consideration emphasises (at paragraph 13.3(1)) that decision-makers should have due regard to the Government’s view in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), Charlesworth J stated, at [69-73]:
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl. 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker should necessarily do. The question that arises on this appeal is not whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
FYBR related to a different part of the predecessor to the current Direction, but the wording of the primary consideration in the instrument is relevantly the same, and the Respondent submitted that the Tribunal should take this judgment into account in its consideration.
The Tribunal finds that the expectation of the Australian community would be that KYMM’s visa should be cancelled. He has accumulated a very large number of offences in a relatively short period of time, albeit some of them are at the lower end of the spectrum of seriousness. Nevertheless, he is a non-citizen on a visa who has shown scant regard for the law and, in some instances, has harmed people. In his responses to questions in the hearing, KYMM has shown a propensity to blame others and does not appear to accept responsibility for many of the actions which led to convictions, including some where he agreed he had entered guilty pleas.
This primary consideration weighs against revoking the mandatory cancellation of the visa.
Other consideration – International non-refoulement obligations (paragraph 14.1)
Australia’s obligations in regard to non-refoulement relate to this country being a signatory to the 1951 Convention Relating to the Status of Refugees. The Tribunal may also consider complementary protection, where it is relevant. As the Direction states, a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person where that person will be at risk of a specific type of harm.
The Direction states at paragraph 14.1(2) that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa because Australia will not remove a non-citizen, as a consequence of the cancellation of the person’s visa, to the country in respect of which the non-refoulement obligation exists. The Tribunal regards this particular paragraph as a commentary on what the Minister making the Direction is saying is Government policy of which a decision-maker should take note.
The Direction also goes on to state, at paragraph 14.1(4), that where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation was not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the person for the purposes of determining whether the cancellation of their visa should be revoked.
How paragraph 14.1(4) of the Direction should be properly interpreted by decision-makers has been affected by the decision of the Full Court of the Federal Court in Omar. The Court held that there was an obligation on the Minister (in that case the decision-maker) to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request (see particularly [36] to [40] of the judgment).
The Tribunal considers, and notes, that the Respondent made submissions in support of this approach, that where relevant representations have been made (as they have in this case), they must be properly and actively considered. However, it is important to make the distinction that this addressing of relevant submissions made by parties is clearly done within the architecture of the task before the Tribunal, which is considering whether there is another reason, under section 501CA(4)(b)(ii) of the Act, why the mandatory cancellation of a visa on character grounds should be revoked, with reference to a Direction made under section 499 of the Act, which under section 499(2A) of the Act, must be followed. The Tribunal would lead itself into error if, in undertaking this necessarily responsive task, it engaged in an exercise of assessing whether or not an applicant meets the criteria for the grant of a protection visa. That is not a question for this Tribunal to determine.
So, the distinction in the Tribunal’s task here is, consistent with the Direction, that it remains unnecessary for the Tribunal to determine whether non-refoulement obligations are owed to KYMM. It is, however, essential, as relevant representations have been made in this case, to determine whether a case is made out that such obligations may be owed to him.
The Applicant submitted (Applicant’s Reply to the Minister’s Statement of Facts, Issues and Contentions dated 11 November 2019):
The country information and arguments presented in relation to the existence of non-refoulement obligations, both at the primary stage of decision making and to this Tribunal, address the applicant’s particular circumstances directly under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention).
In addition to engaging Australia’s protection obligations under the Refugee Convention, the Applicant is also at risk of significant harm in the form of arbitrary deprivation of his life, torture, and cruel, inhuman and degrading treatment or punishment if returned to South Sudan. As such, Australia’s obligations are also engaged under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture) and the 1966 International Covenant on Civil and Political Rights (ICCPR).

These assertions were then followed up with more detailed submissions which related directly to the exercise that decision-makers are charged to undertake under section 36 of the Act, relating to the criteria for the grant of a protection visa. As I have said above, that is not the task in front of the Tribunal.
The Tribunal also records, for completeness, that in the course of the hearing, counsel for the Applicant withdrew the submission that KYMM is of Dinka ethnicity, and asked the Tribunal to strike that part of the Applicant’s submissions out. Ms Gang said that KYMM would maintain that he is of Jur-Chol ethnicity, and Ms Noronha, on behalf of the Respondent, submitted they agreed with that particular submission.
The Respondent submitted that KYMM had not articulated specific harms to which he would be exposed if sent to Sudan but that he has made general statements that he fears Sudan to be unsafe due to insecurity in Sudan. The Respondent submitted that harm that the Applicant claims he would face in Sudan ‘while a possibility’ is not a sufficient reason for the Tribunal to exercise the discretion, given the competing primary considerations of protection of the Australian community and expectations of the Australian community, and that KYMM has not provided any probative evidence to support a finding that he would face harm.
The Tribunal notes, as mentioned above, that the Respondent submitted that if the Tribunal finds that KYMM’s country of citizenship is South Sudan, the Respondent accepts he would be exposed to harm if returned there. The Tribunal has made that finding.
I have carefully considered the representations made by the Applicant, in regard to this consideration. At the outset, the Tribunal notes the oral submissions at the hearing from counsel for the Applicant drawing some analogy with the judicial execution of Ronald Ryan in 1967 and saying that, should I affirm the original decision, I would be exercising a ‘capital function’ which ‘would’ lead to KYMM’s death. The Tribunal regards this particular submission as not only speculative but somewhat baroque. As a general principle, flamboyant submissions do not advance the case of a party.
Putting that to one side, there is ample material before the Tribunal on the precarious nature of civil society in both Sudan and South Sudan. Both parties have submitted that KYMM is of Jur-Chol ethnicity, and the Tribunal formally finds that he is of Jur-Chol, Luo tribe ethnicity.
In Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1986) 169 CLR 379 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Chan), McHugh J said, at [35]:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as "well-founded" for the purpose of the Convention and Protocol.
Ms Gang submitted that KYMM was young when he left Sudan and would therefore have limited awareness of the particular dangers that might await him there. The Tribunal notes that Ms A in her written statement said:
My husband found work in the north as a truck driver and we had a home in Port Sudan.
One day my husband and a friend were transporting petrol when they were stopped by rebels. They questioned [husband’s name redacted] and searched the truck for papers to show where and who the petrol was being delivered to. [Husband’s name redacted] didn’t keep papers on him so couldn’t prove where he was going. His friend managed to get away and hid until the rebels left. He heard them threatening [husband’s name redacted] and saw him being hit before he was taken away. By the time this friend returned to our home the rebels had already come to my house, searched it, set fire to it and taken me away. Thankfully, the children were not at home at the time. This friend found the children and hid them to keep them safe. My husband was never seen again and I believe he must have been killed.
I was blindfolded and taken to a place where they questioned me and tortured me. The next day they let me go. My husband’s friend helped me and the children escape to Egypt. We went by car and then train to Wadi Halfer. Our friend believed we would be killed if we stayed behind. We caught a boat to Aswan and paid people smugglers to take us by boat to Abyssir. We went to the Catholic Church for help along with other refugees. They put us on a train to Cairo where we lived in an area with lots of other refugees.
The Tribunal finds that this unchallenged material, and the material provided by the Applicant relating to recent abuses in Wau (the Applicant’s mother’s home town) of retaliatory attacks by Dinka government forces and militias against, among others, Luo civilians, provide a plausible basis for concluding that KYMM’s ethnicity will directly increase the harm the Respondent acknowledges he would face if sent to South Sudan.
While this is not the test to establish a non-refoulement obligation, the Tribunal is unable to find that this level of harm would rise to the level suggested by the Applicant’s counsel (and Ms A) of certain death. However it is certainly rational to conclude, based on the following extract about State Protection in the DFAT Country Information Brief – South Sudan, that this risk of persecution is not far-fetched but real (to borrow the words of McHugh J in Chan):
STATE PROTECTION
Several areas in South Sudan are not under effective state control, owing to the broader security situation. These include areas under the control of the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) and Shilluk forces, particularly in Upper Nile State and Unity State. DFAT is unable to comment on the ability of the SPLM-IO to provide effective protection, but anecdotally understands that its authority on the ground is very limited.
DFAT also understands that the Government’s ability to maintain effective control and provide adequate state protection is weak. The Government’s control over the Sudan People’s Liberation Army, National Police Service and National Security Service is limited with these groups often acting with impunity and without adequate oversight.
On the basis of the DFAT information, the Tribunal accepts the Applicant’s submissions that he would be unable to rely on police protection if returned to South Sudan. It may also be that, owing to his having spent two-thirds of his life in Australia and not understanding the local languages, it could also be imputed by others that KYMM is ‘wealthy’ (in a relative sense) and this may be an ingredient which adds to the real risk of harm to KYMM the Tribunal has found exists.
The Tribunal also accepts that, lacking knowledge about local affiliations in what is an unstable febrile situation in South Sudan, KYMM would be ill-equipped to know who to trust and who not to, and thereby would face a greater level of potential peril than some others might, who have better local language skills and, depending on the particular area, are not of Jur-Chol ethnicity.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of KYMM’s visa. Although there was a paucity of material which may assist with a better assessment linking the personal circumstances of KYMM as an individual with the generally fractured situation in South Sudan, such as his own oral evidence, should he be returned there, this consideration weighs relatively heavily in the Applicant’s favour.
If it is the case that KYMM is repatriated to Sudan, the Tribunal considers that its conclusion in terms of this particular consideration would not be materially different. Generally speaking, the civil society situation in Sudan may be slightly better than it currently is in South Sudan, but in this case KYMM may be found to be a person officially shunned by the Sudanese authorities on the basis that his citizenship of Sudan has been revoked by reason of his Jur-Chol ethnicity and consequent entitlement to citizenship of South Sudan. That would of itself place him at disadvantage and, possibly, increase the general level of risk of harm, were he to be returned to Sudan.
Other consideration – Strength, nature and duration of ties [to Australia] (paragraph 14.2)
The Direction requires decision-makers to have regard to how long a non-citizen has resided in Australia, including whether he arrived as a young child. That is the case with KYMM who arrived here, the Tribunal finds, aged around 10. His offending began when he was aged around 15 or 16. It was dealt with by various tools available to the Courts, including a period of incarceration at a Youth Detention Centre. However, many of the penalties imposed on KYMM have been in the nature of rehabilitative measures, such as suspended sentences, offences proven but no conviction recorded, Community Correction Orders and other like sanctions.
There has been some positive contribution by KYMM to the community, by his participation in sporting teams and by his (short) periods of employment. He has strong links with family in Australia and, noting his mother’s evidence that she is hoping that KYMM’s brother currently in Egypt may be given permission to migrate to Australia, KYMM’s only other known relative outside Australia is his twin brother who lives in rural France. As mentioned above, the whereabouts of his maternal grandmother are unknown to the family.
Owing to the fact that KYMM’s principal family support are his mother and siblings and half-siblings in Australia, most of whom are Australian citizens, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of KYMM’s visa.
Other consideration – Impact on Australian business interests (paragraph 14.3)
There were no submissions made by the Applicant on this consideration. The Respondent submitted that it weighs neutrally. The Tribunal notes that the Direction states that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project or service in Australia. The Tribunal also notes that KYMM has not been in paid work for some time, partly owing to his head injury, but only partly.
The Tribunal finds that this consideration is not engaged, and thereby weighs neutrally.
Other consideration – Impact on victims (paragraph 14.4)
This consideration is only relevant if there is information before the decision-maker that a victim of a non-citizen’s offending is aware of the visa cancellation process and has expressed a view on it. There was no such information proffered by the parties.
The Tribunal finds that this consideration is not engaged, and weighs neutrally.
Other consideration – Extent of impediments if removed (paragraph 14.5)
The Direction requires the Tribunal to consider the extent of any impediments KYMM may face if removed from Australia to ‘their home country’ (which the Tribunal has found is South Sudan) in maintaining basic living standards in the context of what is generally available to other citizens of that country. The Tribunal must take into account KYMM’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in that country.
The Respondent submitted that in circumstances where KYMM arrived in Australia as a refugee and does not appear to have significant social and familial support in Sudan or South Sudan this factor weighs in favour of the Applicant. The Respondent also submitted that KYMM ‘would not have access to comparable social, practical, medical and financial opportunities as he would in Australia,’ and this should also be taken by the Tribunal to weigh in his favour.
The Tribunal made clear during the hearing that this second point is a partial misreading of paragraph 14.5 of the Direction. The yardstick that the Direction refers decision-makers to is ‘the context of what is generally available to other citizens of that country’. Decision-makers are not charged with the duty of making a comparison between what is available to a non-citizen in Australia on the one hand, and what is available to that person in the country to which they would be returned.
However, this part of the Direction then goes on to alert decision-makers to specific factors to take into account: the non-citizen’s age and health, whether there are substantial language or cultural barriers and any social, medical and or economic support available in that country. KYMM is a young man. There was some evidence that he has minor residual health issues from his 2013 car accident, such as neck ache affected by weather. His mother said that she would assist him in going to medical appointments, but when asked directly by the Tribunal whether he was still undergoing any course of treatment or taking prescribed medication for either his car accident injuries or the subsequent blow to his head, KYMM told the Tribunal he was not.
Accepting the medical evidence that he has had two head fractures, in 2013 and 2018, there was no strong evidence before the Tribunal that these injuries have left lingering health consequences. However, the Tribunal accepts that there has been at least some residual effect from his two head injuries. It is therefore relevant to note the DFAT Country Information Report for South Sudan, which states:
South Sudan’s population has extremely poor access to health care….Only 55 per cent of the population has access to improved sources of drinking water (ie a drinking-water source that is protected from outside contamination) and around 38 per cent of the population walk more than 30 minutes one way to collect drinking water. Eighty per cent of the population do not have access to toilet facilities. DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation.
The Tribunal accepts that, because he left Sudan in 2003 aged 10 and then spent from 2003 to December 2005 in a refugee camp in Alexandria, Egypt, before coming to Australia, and apart from ‘a few words of Arabic’ (a language Ms A says is used in the north but not the south), KYMM does not speak Dinka or any of the other local languages. His everyday language is English. The Tribunal finds that KYMM would therefore face significant language barriers if returned to either South Sudan or Sudan.
The Tribunal also concludes that KYMM would face cultural barriers, which may be very significant, because there has been no acculturation of the Applicant into any of the communities in South Sudan: he was born in what is now a separate country (Sudan) and there is no evidence he has ever been in what is now South Sudan.
The Tribunal also concludes that KYMM would face financial challenges because there is no apparent social security system operating in South Sudan, he has not acquired employable skills in Australia, and he has a relatively sparse work history.
Balancing all these factors, the Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Summary
The Tribunal has found that two of the primary considerations, protection of the Australian community and the expectations of the Australian community, weigh against the Applicant. One primary consideration, the best interests of minor children in Australia affected by the decision, weighs in his favour, but given he is not in a parental role of any of these children, not heavily so.
Of the other considerations, two, the impact on Australian business interests and the impact on victims, are not engaged in this consideration and weigh neutrally. Three others, the strength, nature and duration of ties to Australia, the extent of impediments if removed and international non-refoulement obligations, weigh in favour of the Applicant, and two of them strongly so.
In undertaking the weighing exercise relating to the exercise of the discretion available under the Act, the Tribunal must take into account the totality of the Direction (see, relevantly, Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 58, at [57]). In addition, the Full Court of the Federal Court has also made clear (Minister for Home Affairs v HSKJ [2018] FCAFC 297, at [35]) that the Tribunal would err if it concluded that an ‘other consideration’ was incapable of outweighing a primary consideration. I consider this is consistent with the Minister’s explicit use of the word ‘generally’ in paragraph 8(4) of the Direction.
While the Tribunal has set out its conclusions above, especially about non-refoulement obligations and impediments facing KYMM if he is removed above, what became obvious in the hearing is that the Applicant takes almost no personal responsibility for his offending history, and exhibited scant remorse.
The judicial system has deployed a range of sanctions in an attempt to respond to his conduct, but this has been of little avail, in terms of him continuing to offend. He has consistently breached orders of the Court. When invited to tell the Tribunal what steps he would take to follow a new path, KYMM’s responses were vague and regrettably unconvincing. The Tribunal was left with a melancholic inevitability about the risk of KYMM re-offending.
A recent Tribunal decision, QDWQ and Minister for Home Affairs [2019] AATA 4622 concerned a young male non-citizen from Afghanistan, like KYMM without children of his own, with an extensive record of criminal offending. Deputy President Britten-Jones said, at [127]-[128]:
The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi’a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making.
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations of the protection and expectations of the Australian community than on the other countervailing considerations. The dangers and difficulties that the applicant would meet upon his return to Afghanistan are real and serious but they do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes and has not shown appropriate remorse nor has he shown that he is rehabilitated. By cancelling the applicant’s visa, the Government is exercising its commitment to protecting the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including non-refoulement and the extent of impediments if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation. In this regard, I note that primary considerations should generally be given greater weight than the other considerations. I see no reason not to apply this approach in this case.
(Footnotes omitted.)

The Tribunal, with respect, agrees with the principles in the conclusions of the Deputy President set out above.
In this case there is a primary consideration which weighs somewhat in the Applicant’s favour, the best interests of his half-brothers and niece and nephew. But the Tribunal is satisfied that the countervailing primary considerations weighing against revoking the cancellation of KYMM’s visa outweigh those considerations weighing in the opposite direction. The conclusion of the Tribunal is that the exercise of the discretion is not enlivened in the sense of there being another reason why the original decision should be changed.
The Tribunal notes that it is open to KYMM to apply for a protection visa, where any claims he may make that Australia owes him protection would be assessed under section 36 of the Act (taking note that section 5M of the Act appears not to be, on the facts, relevant), and also notes the oral assurances given by the Respondent at the hearing that he would not be removed from Australia until he had the opportunity so to do.
The Tribunal also notes that a decision-maker, in considering a protection visa assessment, must first assess an applicant’s refugee claims and any complementary protection claims before considering any character or security concerns (see Direction No. 75 – Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b), made by the then Minister for Immigration and Border Protection under section 499 of the Act).
DECISION
The Tribunal decides to affirm the decision under review.

I certify that the preceding 161 (one hundred and sixty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

......[sgd]..................................................................
Associate
Dated: 28 November 2019

Dates of hearing: 14 - 15 November 2019

Counsel for the Applicant: Ms Daye Gang

Solicitors for the Applicant: Mr Ben Goulding, Refugee Legal

Solicitors for the Respondent: Ms Rachel Noronha, Clayton Utz
List of Exhibits
Exhibit G – ‘G’ documents tendered by the Respondent
Exhibit A1 – Letter to KYMM from Victorian Department of Health and Human Services, 11 October 2019.
Exhibit A2 – Statutory Declaration of KYMM dated 22 October 2019.
Exhibit A3 – Documents from Royal Melbourne Hospital relating to the Applicant.
Exhibit A4 – Statutory Declaration of KYMM taken to be signed 17 January 2019.
Exhibit A5 – Statutory Declaration of Ms A, dated 11 November 2019.
Exhibit R1 – Application for an Offshore Humanitarian Visa Form 842, 3 June 2004.
Exhibit R2 – Refugee and Special Humanitarian Proposal Form 681, 29 January 2004.
Exhibit R3 – Letter to Ms A from Australian Embassy, Cairo, 23 May 2005.
Exhibit R4 – Emirates itinerary issued 1 December 2005
Exhibit R5 – DFAT Country Information Report Sudan, 27 April 2016
Exhibit R6 – Documents produced by Victoria Police pursuant to a summons.

Dates of hearing:	14 - 15 November 2019
Counsel for the Applicant:	Ms Daye Gang
Solicitors for the Applicant:	Mr Ben Goulding, Refugee Legal
Solicitors for the Respondent:	Ms Rachel Noronha, Clayton Utz