KZHP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 631

KZHP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 631 (28 March 2024)

Division:GENERAL DIVISION

File Number:          2024/0154

Re:KZHP

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:28 March 2024

Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. In its place, the Tribunal finds there is another reason under s 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the cancellation of the Applicant’s visa.

.....................[sgn]...................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of a global humanitarian visa – applicant likely to be citizen of Republic of South Sudan – visa cancelled mandatorily as delegate satisfied of substantial criminal record – applicant invited to make representations – delegate of Minister refuses to revoke mandatory cancellation – review by Tribunal – substantial criminal record conceded by applicant – is there another reason to revoke visa cancellation – application of ministerial direction – primary considerations – other considerations – serious offending – all but two of applicant’s offences committed as a minor – this fact and impediments he would face if removed to South Sudan determinative that there is another reason to revoke mandatory cancellation of visa – decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)

Youth Justice Act 1992 (Qld)

Cases

Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Secondary Materials

Department of Foreign Affairs and Trade – South Sudan (dfat.gov.au/geo/south-sudan)(viewed 22 March 2024)
Department of Foreign Affairs and Trade – Smart Traveller advice – South Sudan (smartraveller.gov.au)(viewed 22 March 2024)

Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Senior Member D. J. Morris

27 March 2024

BACKGROUND

1. At the request of the Applicant, not objected to by the Respondent, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) that he will be referred to by an anonym ‘KZHP’ in these reasons.

2. KZHP was born at the end of February 2003 in the village of Wau, then part of the Republic of Sudan and which is now, following partition in 2011, part of the Republic of South Sudan. He is of Dinka ethnicity.

3. When he was born, Sudan was in the grip of a civil war. The Applicant’s family moved to the capital, Khartoum, when KZHP was a few weeks old. In 2004 they fled Sudan and went to Egypt. In 2005 the Applicant, in company with his parents, arrived in Australia. They were all holders of Global Special Humanitarian (Subclass 202) visas.

4. KZHP and his family lived in various cities across Australia; Adelaide, Perth, Brisbane and, finally, Melbourne. It was submitted the reason for the first moves was in order to afford housing, and, for the last, to separate the family from the Applicant’s father. It was not disputed that KZHP’s domestic life in his early years was significantly dysfunctional. His father perpetuated violence against him, his siblings and his mother. Police and child protection authorities were involved, and the Applicant’s mother was hospitalised owing to physical domestic violence. When KZHP was aged 12, his mother escaped her violent marriage and the family settled in Melbourne. KZHP has not seen his father since then.

5. From around the age of 13 the Applicant said he began experimenting with cannabis and, about three years later, he began using Xanax (alprazolam, a tranquilizer that can be highly addictive). He said he used both frequently. The Applicant has, as was aptly described in the Respondent’s submissions, a lengthy and profoundly serious history of offending. He was first before the Children’s Court of Victoria in August 2017 on sixteen charges. His offending from then until September 2021 has had a melancholy regularity. It has also involved crimes against the person, property crimes, offences against emergency workers on duty, use of weapons and frequent breaches of orders made by the Courts.

6. On 18 May 2020 KZHP was sent a notice of intention by the Department of Home Affairs (‘the Department’) to consider cancellation of his visa under s 501(2) of the Migration Act 1958 (‘the Act’). On 18 May 2021, the Applicant was given notice that his visa had been, in fact, cancelled under s 501(3A) of the Act.

7. In response to an invitation, KZHP made representations requesting revocation of the cancellation of his visa and on 3 January 2024 a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the visa cancellation. On 9 January 2024 KZHP sought review by this Tribunal.

   HEARING

8. A hearing was held on 19 March 2024. The nature of the hearing was hybrid. The Applicant, his counsel, Ms Kylie McInnes, and her instructors appeared in person in a Melbourne hearing room. KZHP, his mother, Mrs MB, and a sister, Miss MM, gave evidence in person. Another witness appeared by telephone. Counsel for the Minister, Mr Jonathan Barrington, and his instructors participated by video link, as did the Tribunal.

9. The Tribunal admitted into evidence the documents listed in the annexure to these reasons. The Tribunal also took into account a document titled Applicant’s Statement of Facts, Issues and Contentions, a Respondent’s Statement of Facts, Issues and Contentions, and a Statement in Reply from the Applicant. At the conclusion of the hearing, the Tribunal reserved its decision.

10. Section 500(6L) of the Act provides that, where an application of this nature is made and the applicant is in the migration zone, the Tribunal must make a decision on review within the period of 84 days after the day on which the person was notified of the decision under review. Otherwise the reviewable decision is taken to have been affirmed by operation of law. In this case that date, as agreed by the parties, is 28 March 2024.

11. For the reasons that follow, the Tribunal has decided to set aside the decision under review and substitute a decision that there is another reason that the cancellation of KZHP’s visa should be revoked, and the visa restored to him.

    QUESTIONS BEFORE THE TRIBUNAL

    Does the Applicant fail the character test?

12. It was conceded by the Applicant that he does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more, and that he was serving a full-time sentence at the date his visa was cancelled.

13. Before the Tribunal was an Australian Criminal Intelligence Commission nationally coordinated criminal history check (‘ACIC report’) dated 19 July 2023 (GD, pp 66-70) which records that in March 2021 before the Children’s Court the Applicant was convicted of the offence of Recklessly causing serious injury. He was ordered to be detained in a Youth Justice Centre for a period of 24 months.

14. Section 501(7) of the Act provides relevantly as follows:

    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 12 months imprisonment or more; or…

15. Section 501(12) of the Act provides that the definition of “imprisonment” includes any form of punitive detention in a facility or institution. The Tribunal stated at the commencement of the hearing that it was its interpretation that KZHP’s detention at a youth justice centre was encompassed by this provision, and this was not disputed by the parties.

16. The Tribunal finds on these facts that the Applicant has a ‘substantial criminal record’ in terms of s 501(7)(c) of the Act. Before the Tribunal was a file note of the Department dated 18 May 2021 (GD, p 1182) which notes that the author contacted the Youth Parole Board in Victoria and was advised that KZHP was serving a sentence of imprisonment on a full-time basis at a youth justice centre in Victoria. The Tribunal is therefore satisfied to find that the two ingredients required – that the person has a ‘substantial criminal record’ and were, at the date their visa was cancelled, serving a sentence of imprisonment on a full-time basis, are satisfied. As a result, KZHP’s visa was cancelled by a delegate by operation of law. Because of this, he cannot rely on s 501CA(4)(b)(i) of the Act, as a person who passes the character test.

    The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?

17. Having made the finding that the Applicant does not pass the character test, and being satisfied that KZHP was invited under s 501CA(3) of the Act to make representations about the revocation of the decision to cancel his visa, the power was enlivened for the Minister or his delegate (or the Tribunal now standing in the Minister’s shoes) to potentially revoke the cancellation decision if satisfied, under s 501CA(4)(b)(ii) of the Act, that there is ‘another reason why the original decision should be revoked’. This is the question both parties agreed was at issue before the Tribunal.

18. In considering this question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. There has been a series of directions made by successive ministers in relation to revocation of mandatory cancellation of a visa. On 23 January 2023, the latest of these was made by the Minister. It is Direction No. 99 (‘the Direction’) and commenced on 3 March 2023. Under s 499(2) of the Act, decision-makers including this Tribunal, must comply with the Direction. However, it is important to keep in mind that the Direction does not cover the field, and the Tribunal is not narrowly confined to it in deciding whether there is ‘another reason’ under s 501CA(4) of the Act to revoke the mandatory cancellation.

    THE APPLICANT’S OFFENDING HISTORY

19. As mentioned above, and set out in the ACIC report before the Tribunal, KZHP’s first appearance before the Children’s Court was in August 2017. He faced the following offences: Aggravated burglary (person present) (four counts); Aggravated burglary – offensive weapon; Handle/receive/dispose of stolen goods; Theft of a motor vehicle (four counts); Commit indictable offence whilst on bail (three counts); Theft (three counts); Unlawful assault; Criminal damage with intent to damage or destroy (two counts); Handle/receive/retention of stolen goods. For the first four charges of Aggravated burglary (person present), KZHP was convicted and ordered to be detained in a Youth Residential Centre for 223 days. For the group of other offences no conviction was recorded, but the Applicant was released on a Youth Supervision Order for 12 months until August 2018.

20. KZHP was before the Children’s Court in October 2017. The offence of Breach of Youth Supervision Order was found to be proven. In relation to the other offences referred to above, he received convictions and was ordered to be detained at a Youth Residential Centre for varying periods, some concurrent and some partly concurrent.

21. In April 2018, the Applicant was before the Children’s Court and convicted of the offence of Robbery (two counts). He was ordered to be detained for four months in a Youth Justice Centre. The following month he was before the Children’s Court and convicted of Theft from Shop (Shopsteal) and two counts of Unlawful assault. For these three offences he was ordered to be detained for three months in a Youth Justice Centre.

22. In April 2019, KZHP was before the Children’s Court and charged with Affray (threat), Commit indictable offence whilst on bail, Fail to company with direction to assist, Breach of Youth Supervision Order, and breach of an earlier order relating to the offence of Affray. On this occasion no convictions were recorded, the orders were varied, and the breaches proven.

23. On the same date, the Applicant was convicted of the offence of Intentionally causing serious injury, Assault emergency service worker on duty, and Robbery (two counts). He was ordered to be detained in a Youth Justice Centre for three months, and on the Robbery counts was convicted and released on a Youth Attendance Order for eight months.

24. In March 2020 KZHP was before the Children’s Court charged with Affray (two counts), Entering a private place without authorisation or excuse, and Recklessly cause injury. He was convicted on each charge and ordered to be detained at a Youth Justice Centre for four months.

25. In June 2020, KZHP was before the Children’s Court and convicted of Assault emergency worker on duty (two counts), Affray, and Unlawful assault. He was released on a Youth Attendance Order for a period of six months.

26. In March 2021 KZHP was before the Children’s Court in relation to breaches of orders imposed in June 2020. On that occasion he was ordered to be detained in a Youth Justice Centre for a period of six months. He was separately convicted of the offence of Common law assault, Violent disorder, Dishonestly receiving stolen goods, Possess methylamphetamine, Use controlled weapon without excuse, Possess controlled weapon without excuse, Internationally cause injury, and Recklessly cause serious injury. He was ordered to be detained for 24 months at a Youth Justice Centre. This was the offence that triggered the cancellation of the Applicant’s visa.

27. There were two other Court appearances by the Applicant. In September 2021, aged 18, he was before the Children’s Court, convicted of the offence of Affray, and ordered to be detained in a Youth Justice Centre for six months. In August 2022, aged 19, KZHP appeared before the Magistrates’ Court of Victoria and was convicted of two offences: Wilfully injure property and Assault emergency worker on duty. For these offences, he was ordered to be detained for one month in a Youth Justice Centre.

    THE MINISTERIAL DIRECTION

28. In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of KZHP’s visa, as mentioned above, the Tribunal must have regard to the relevant contents of the Direction made by the Respondent.

29. The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.

    Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

    The nature and seriousness of the conduct (para 8.1.1)

30. The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.

31. It was conceded by Ms McInnes that the Applicant has committed violent crimes. There is no evidence before the Tribunal of any sexual crimes or crimes against women or children, or any acts of family violence.

32. Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. Of these categories, KZHP has several convictions for assaulting emergency workers on duty. The facts of these offences reveal assaults on workers in Youth Justice facilities in the performance of their duties. This is therefore serious conduct.

33. Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. As the summary set out above shows, and as set out in the ACIC report, the Children’s Court has been patient with the Applicant. On several occasions he has been given various attendance orders, and many times there have been stipulations requiring him to attend counselling, courses and abide by a curfew. The Applicant has a history of ignoring these conditions, which is illustrated by the breach findings made against him at subsequent Children’s Court hearings.

34. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. The Tribunal considers that the chronology of KZHP’s offending shows regular offending when the Applicant has not been in youth detention, and some offending when he has been. For a man who has only recently entered adulthood, his criminal history is nothing short of appalling. He has been involved with others in menacing people in their homes, taking car keys and then motor vehicles, stealing property and some violent assaults. The Tribunal finds that his offending has been frequent and that, while there has been some fluctuation in the nature of the offending, there is a trend of increasing seriousness.

35. Paragraph 8.1.1(1)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of relatively regular offending through a very large number of property, dishonesty and violence offences.

36. Paragraph 8.1.1(1)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence of this. Ms McInnes also noted that the Applicant had pleaded guilty before the Courts, and the Tribunal accepts this.

37. Paragraph 8.1.1(1)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. KZHP was sent a notice on 18 May 2020 flagging to him that the Department was considering whether or not to cancel his visa. He continued to offend. In June 2020 he participated in a fight involving about 35 young African males believed to be associated with two known gangs. The fight was pre-arranged between two people, one from each gang. KZHP was in a group of about 15 said to be associated with one gang. There was a brawl. KZHP stabbed one victim four times in the torso, and punched the person. He was involved while others punched and kicked another victim. He punched a third victim to the head and stabbed him several times to the legs. KZHP tried to dispose of the knife, but CCTV footage showed him dropping it through a drain gate and it was subsequently uncovered by police.

38. The first victim was hospitalised for four weeks and required surgery for stab wounds and a punctured lung. He refused to make a statement to police. The second victim was hospitalised for four days and had minor surgery for his stab wounds. He refused to make statement to police. The third victim was also taken to hospital, but refused to make a statement. In relation to the charges that arose from this fight, KZHP pleaded guilty at an early stage.

1. In October 2020 KZHP was in a youth detention centre in Victoria. There was a fight between two other detainees. KZHP joined in. He was convicted of Affray for this incident and ordered to be detained for six months.

2. In terms of adult offending, in September 2021 when KZHP was aged 18, he was in youth detention. He and one other set upon a detention officer and removed his equipment belt, which held a radio, keys and swipe card. KZHP and his co-accused ran off and apparently used the swipe card to pass through a security door. An emergency response team attended and attempted to restrain the Applicant and his co-accused. The delegate noted representations by Refugee Legal that the Magistrates’ Court, when it heard the matter in August 2022, had an option to send KZHP to an adult prison, but chose instead to sentence him to a term in youth justice detention, which indicates that a rehabilitative approach was the considered response.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

3. The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.

4. Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend would, because of the trajectory of his offending, be likely to involve danger to persons as well as to property. Although it was urged on the Tribunal that some of his assault offending has been within confined institutional settings, KZHP has also been involved in what have effectively been home invasions (as evidenced by his convictions for aggravated burglary – person present). This is a particularly antisocial form of offending because not only can it lead to crimes against the person as well as property offences and, in this case theft of motor cars, but in addition this type of offending traumatises people who rightly considered they were safe in their residences.

5. Both parties urged the Tribunal to pay particular heed to a report provided by Mr Patrick Newton, psychologist, which was at GD pp 1011-1028. Although the report was written in July 2023 and was as the result of a video interview between the author and KZHP, the Tribunal notes that Mr Newton has endorsements in forensic and clinical psychology and considers that these qualifications and his professional experience warrant his report and clinical opinions being given considerable weight.

6. Mr Newton provided a comprehensive report and applied criminogenic testing to KZHP. In regard to a risk assessment. Mr Newton considered important rehabilitative factors in the Applicant’s case were further education and counselling in regard to his substance abuse; treatment of his depression and anxiety, including any residual trauma; improvement in his interpersonal and general communications skills; and assistance with re-integration into the community after any release.

7. Mr Newton’s opinion was that KZHP’s depressive symptoms were sufficiently severe to meet the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (‘DSM-5’) for a ‘persistent depressive disorder’, which he described as a chronic form of relatively mild clinical depression. He also was of the view that KZHP met diagnostic criteria for an ‘adjustment disorder with anxiety.’

8. Mr Newton provided an opinion on the risk of KZHP again committing violent offending. He wrote (GD, p 1023-1024):

   In particular, it would be vital that he remains drug free, that he avoids ongoing contact with other disaffected youths and that he is assisted to engage with meaningful work and/or study.

   Assuming [KZHP] were indeed both willing and able to engage with intervention to address these challenges, the risk for further violence on his part would be significantly contained. That is, in a situation of demonstrated abstinence from illicit substances and assuming he engages with ongoing supports, [KZHP] would be assessed to be at moderate-low risk for further violent offending.

   In the absence of effective treatment and support, he would be at considerably elevated risk for further violence. The most likely scenarios for such violence would be if he were to relapse to substance use or find himself in contact with disaffected youths. Given the variety and persistence of his substance-related problems and considering his limited insight into issues associated with his substance use, [KZHP] is considered to be at elevated risk for relapse to problematic substance use. Assuming this were to occur, the various factors extant in [KZHP’s] case and the disinhibition of substance abuse would leave him at a moderate-high risk of recidivism to violent offending.

   …

   Assuming [KZHP] were able to return to life in the community without relapsing to substance misuse and/or re-affiliating with dysfunctional peer groups, the risk of general recidivism would be relatively low. In the context of further substance use or involvement with negative groups, the risk of recidivism to general offending would be elevated significantly, falling in the moderate risk range under the circumstances.

   (Emphases in the original.)

9. The Tribunal accepts these assessments by Mr Newton, and notes the point made in submissions by Mr Barrington that the risk assessment is conditional. The Tribunal concludes that there is a low to moderate risk of KZHP re-offending both in a general manner and in terms of violent offending. However, this risk will abate if he engages in counselling and prosocial activities, such as educational courses or employment, and keeps away from illicit drugs (which he has been able to do in the protective environment of detention). On the other hand, the risk will elevate if he consorts with other disaffected young people: this seems to the Tribunal to have been a particular feature of his past offending. As set out above, some of his assault offending has been during street fights with other young men.

10. In his oral evidence, the Applicant himself found some difficulty in articulating his plans if released. He said he wants to get a job and has successfully qualified for a ‘white card’ whilst in youth detention. He said he wants to keep away from reverting to cannabis or Xanax use, and he abjures alcohol. He would return to live at home, and the Tribunal accepts that his mother, Mrs MB, has endeavoured to provide a positive home environment for him. However, he admitted to the Tribunal that, in the past, he would take illicit drugs out of sight of his mother, and although she supported him at Court appearances, Mrs MB has 12 other children to care for, one of whom has special needs. Only three of her children are now adults. So, with the best will in the world, the Tribunal appreciates that it is hard for Mrs MB to provide more than an encouraging and supportive environment. Unfortunately, KZHP’s past offending has (except for the offences in youth detention) all occurred whilst he was living at home. So it has not been a robustly protective place, in terms of the Applicant’s conduct.

11. Overall, the Tribunal concludes that this primary consideration weighs against restoring KZHP’s visa. He has been involved in violent crime, not always as the principal perpetrator, but sometimes in that role. Although his convictions for assaulting emergency service workers on duty were in the context of youth detention, the last instance outlined above where he and another detainee set upon an officer with a view to taking his swipe card and, it is reasonable to conclude, attempting to escape, shows an element of premeditation and displays wilful disregard for authority.

12. There are green shoots in terms of significant improvements in his more recent behaviour, and no behavioural incidents reported since he has been in immigration detention, but the persistent nature of his offending, and the low to moderate risk of re-offending combine to mean that this consideration carries relatively heavy weight against the Applicant.

    Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)

13. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

14. Both Ms McInnes and Mr Barrington submitted that none of the Applicant’s offending or other conduct related to family violence. The Tribunal accepts those submissions and finds that this primary consideration weighs neutrally in this assessment.

    Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)

15. The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration. Reflecting this, a new paragraph 5.2(2) was inserted in the Principles in the Direction which reads:

    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the community, particularly in their formative years.

16. Paragraph 8.3(4) of the Direction also exhorts decision-makers to have regard to the length of time a non-citizen has resided in the Australian community and notes that considerable weight should be given to the fact that a non-citizen who has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced, and the level of that offending.

17. These parts of the Direction are directly relevant to KZHP. As set out above, he came to Australia in May 2005 (GD, p 1098) and has not departed. He was then aged two years and three months. He has spent all his life in Australia, except for a short period of infancy when he was in Sudan and then in Egypt, at an age when he would not have any memory of that period. He has been to school in Australia, in the community and at Parkville College, which is the school conducted within youth detention settings. There was some evidence that his maternal grandparents reside in South Sudan, and some other relatives, but all his close relatives – his mother, his estranged father, his siblings and some uncles, aunts and cousins – are in Australia.

18. In respect of his education at Parkville College, Mr Hyde, the Principal, gave oral evidence. He also provided a written statement in which he relevantly wrote (Exhibit A5):

    During the entire course of his stay at Parkville and [redacted], [KZHP] was enrolled with the College. During this time, he consistently attended school, worked hard to develop, and grew in a range of areas. He was a lead member of various College Youth Leadership Councils, and an educational mentor to many students he resided with.

    In my role as Principal of Parkville College, I have known [KZHP] since 2018. I have spent considerable time with him both inside and outside of classrooms, and have watched him grow, develop, and mature considerably across the past 5 years. Whilst [KZHP] has always been thoughtful and considerate whilst attending Parkville College, it was during his last stay at [redacted] where I believe we saw him grow the most.

    Whilst at…[he] went from being a mentor in education, to being a prolific leader for others in the holistic sense. Youth Justice is an incredibly difficult place to navigate. There is uncertainty, shame, and confusion. In my role, I was able to watch [KZHP] provide an enormous level of guidance and support to every young person he encountered. This support was not bound by friendship groups or community-based alliances, but open and on offer to all involved. [KZHP] wanted everyone around him to have hope, aspiration, and a pathway for better once they exited.

    …

    He is a prolific musician, writer, and debater of social constructs. He engaged in all classes, bringing humility, curiosity and a desire to learn more. He became astute at debating a delicate topic with maturity and care and would often lead class discussions on important topics around race, culture and sexuality.

19. In his letter and in his oral evidence, Mr Hyde reiterated that he can only speak to his observations and opinions of his interactions with the Applicant from an educational perspective. He said that he had known KZHP from the age of 14 to a young man, and had seen him become more mature and ‘almost a peer support for other young men…a real advocate role.’ Mr Hyde said he had maintained contact with KZHP since he entered immigration detention and he and another teacher recently visited him and discussed engagement with Jobs Victoria to help him find a job. He said the Applicant was keen on a warehouse or labouring role, to give him income whilst he also enrols part-time in educational courses.

20. Also before the Tribunal was a statement from Mr AN, at Parkville College, who recorded that since 2021 he has seen ‘profound growth in [KZHP]. He is confident, mature and his understanding of the world seem[s] to be expanding day by day.’ Mr AN relevantly wrote (Exhibit A2):

    This is a pivotal time for [KZHP], at 20 years old he has already missed out on a large portion of his life and is itching to achieve the goals he has set for himself. I know [KZHP] has strong and secure relationships with his mother and siblings, as well as support services working with his family. I have no doubt he will be supported adequately upon release, especially as he has developed into a more confident 20-year-old who seeks support when he needs it and advocates for himself. I also know he will be of great support to his family as one of the eldest in a big family.

21. Another teacher, Ms EA, who is a Campus Principal at Parkville College, also wrote a supportive letter regarding KZHP and his development and maturing since 2020 (Exhibit A3), as did Mr SO (Exhibit A4).

22. Mrs MB said she would be devastated if KZHP was deported because she, quite reasonably, felt that in that case she would not see him again, and nor would his siblings. His older sister, Miss MM, said he was ‘like a father in the house,’ and that if he were sent to South Sudan ‘it would break all of our hearts, not just me but my siblings.’

23. KZHP left Sudan (i.e. Khartoum) when very young and had fled his home village, Wau, which is now in the Republic of South Sudan, when in swaddling clothes. The only country he has known in his formative years has been Australia. His ties here are strong and, more importantly, he does not have ties of any significance anywhere else. The Tribunal is satisfied that this primary consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)

24. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

25. The Applicant has no children of his own. He does however have 12 siblings or half-siblings. He has an older sister, Miss MM, who is aged 25, and a 19-year-old brother. They are not relevant to this part of the Direction. The remaining 10 siblings are minors, ranging in age from 17 to 2. When he has not been detained, KZHP has always lived in the household with his mother and siblings.

26. The Tribunal is satisfied, on the basis of KZHP’s evidence, the evidence of his mother, Mrs MB, and his adult sister, Miss MM, that he has a warm and loving relationship with all of his siblings except the youngest, who he has yet to meet because he has been in detention. The evidence is that he speaks to most of them on regular basis and Mrs MB said he often will ring from detention and take some of his siblings through their homework at the end of the day, working on an iPad. He also plays electronic games with them.

27. The Direction requires the Tribunal to distinguish any special features in relation to affected minor children in Australia. The Tribunal makes no distinction between nine of KZHP’s minor siblings. The Tribunal makes a determination that it would be in their best interest for their brother to have his visa returned. There is no evidence of any family violence perpetrated on them by the Applicant, indeed his mother said that when he is at home, he helps in her management of the large family and in household chores. KZHP does however have one brother, KM, who merits specific consideration. KM is aged eight and has Down Syndrome. He is non-verbal and Mrs MB said he is unable to bathe himself or eat or walk without assistance.

28. Mrs MB said that when KM was young, he had many visits to hospital over a period of two years, and at this time she left KZHP to help run the house, with Miss MM and another aunt who assisted. Mrs MB noted that the Applicant lacked a father figure at that time, because her former husband was off the scene. Mrs MB said that KZHP never took any illicit substances in front of her or at home, but he also did not tell her about his interactions with the police; she only learned when he went to Court, and she attended there to support him.

29. The Tribunal is satisfied to make a specific determination under the Direction that it would be in the particular best interests of KM for the Applicant to have his visa restored, so that he can provide support to Mrs MB in the extra care needs of KM.

30. Overall, the Tribunal finds that this consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa. However, the weight is slightly tempered by the fact that KZHP does not play a parental role, and, because of his offending, he has frequently been absent over the last six years. The Tribunal accepts that, as the oldest male in the household, when he has been present, the Applicant plays a significant cultural role in relation to his younger siblings – Mrs MB described him sometimes being like ‘her brother,’ rather than a son, because of the span of years of her children.

    Primary consideration: Expectations of the Australian Community (paragraph 8.5)

31. Paragraphs 8.5(1) and (2) of the Direction state:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

    …

32. The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.

1. The expectation of the Australian community is deemed – that is, it is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ The phrase in the then version of the Direction was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government of the day has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.

2. The Direction has imported the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.

3. The Tribunal finds that the weight of the deemed expectations of the community would be against restoration of the visa. Although the Applicant’s offending has been for a short span of years, it has been persistent and, in some cases, violent. It has all been particularly antisocial. There has been a trend of increased seriousness, and, from May 2020, the Applicant was on notice about the possible effect on his migration status, but did not significantly modify his offending behaviour.

4. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.

   Other consideration: Legal consequences of the decision (paragraph 9.1)

5. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

6. This part of the Direction is a point of contention between the parties. Ms McInnes accepted that KZHP is not currently owed protection by Australia under s 197C of the Act and that it was not in dispute that the Applicant was not eligible for removal to South Sudan. She submitted that he does not hold a passport for South Sudan, but noted that he was likely to be eligible for citizenship of that country by reason of his Dinka ethnicity.

7. Ms McInnes noted that the Respondent’s delegate accepted it would be difficult for the Applicant to obtain the documents he would need to prove his citizenship and be issued with a Republic of South Sudan passport. She submitted that no action has yet been taken by the Minister in spite of the obligation under s 198 that non-citizens must be removed from Australia as soon as is practicable.

8. Ms McInnes submitted that KZHP was owed non-refoulement obligations on the basis that he is Dinka, there is ongoing violence against Dinka people, and that, if returned, the Applicant would be at risk of arbitrary violence, torture or death. She referred the Tribunal to previous submissions made on behalf of the Applicant (GD, pp 910-929; 949-954; 983-1001 and Exhibits A7 and A8 in this hearing).

9. Ms McInnes submitted that the Tribunal should consider the non-refoulement obligations under international law and the reputational damage to Australia if KZHP were deported.

10. Mr Barrington agreed that the Applicant is subject to the duty to be removed and in the meantime, he will be required to be retained. Mr Barrington accepted that, at present, KZHP is subject to ‘indefinite’ immigration detention in the sense that there is no chronological endpoint, but not in the sense described by the High Court in NZYQ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, where there is ‘no real prospect of the removal of [the Applicant] from Australia becoming practicable in the reasonably foreseeable future’. However, Mr Barrington accepted that the uncertainty in terms of when KZHP would be able to be removed should be given some weight.

11. The Tribunal finds that there has been no protection finding in relation to the Applicant, and that it is open to him (and has been open to him) to apply for a protection visa. If he does so, s 198(5A) of the Act precludes his removal until there has been a determination on the protection visa application. The consideration for such a visa would require a substantive analysis of Convention-related harm to which KZHP might be exposed if he were returned to South Sudan. The Tribunal declines the invitation from the Applicant’s representative to make findings that the Applicant is or may be owed protection by Australia. There are other avenues for that to occur, and it is open to KZHP to take up those options available to him.

12. The Tribunal also notes, as it said in the hearing, that it would have been improper of the Respondent, as a model litigant, to take action to remove the Applicant whilst he had a review on foot before the Tribunal. In fact, the Tribunal and the Courts would take a bleak view of any such action, to involuntarily remove a non-citizen while they are in the process of availing themselves to a review as of right.

13. The Tribunal accepts that there would be administrative processes KZHP would have to go through to obtain a South Sudanese passport. These processes are made more complex because, when he departed Wau when only a few weeks old, the state of South Sudan did not exist. Partition created a new state, which includes Wau, and the nationality laws of the Republic of Sudan do not permit a person to hold citizenship of that country and the Republic of South Sudan. However, the Tribunal also notes that the Applicant’s older sister, Miss MM, came to Australia much later than he, in 2015. Her evidence was that she had been taken to safety by a grandparent to Uganda. Miss MM’s Republic of South Sudan passport (now expired) was in evidence (GD p 1130). Miss MM in her evidence said that her uncle applied for the passport on her behalf because she did not speak Arabic or English at the time, and it was issued in Juba, South Sudan’s capital.

14. The Tribunal considers that, whilst there would be some delay, the evidence that KZHP’s blood sibling has been issued a South Sudanese passport in the past would strongly indicate he would be able to be issued one, as well.

15. In terms of the other claims about what would face KZHP if he were deported to South Sudan, the Tribunal will consider those later in these reasons.

16. The Tribunal finds that this consideration weighs very slightly in favour of revoking the mandatory cancellation of the visa, on the basis that a non-citizen is entitled to certainty of their migration status, and it is clear that there would be delay in respect of obtaining relevant travel documents to enable patriation.

    Other consideration: Extent of impediments if removed (paragraph 9.2)

17. The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.

18. In terms of his age and health, the medical reports from the Applicant’s time in immigration detention were before the Tribunal. The evidence is that he is in good physical health. The evidence supports that he has been abstinent from illicit drugs for more than three years, which is a promising sign. Mr Newton has, as set out above, diagnosed KZHP with two mental health conditions, one of them chronic but mild and the other with the prospect of developing into a more serious and florid condition if not properly treated and managed.

19. The Tribunal accepts that the Applicant might not have the same access to health and, in particular, mental health services as he currently has if he were deported to South Sudan. But that is not the yardstick the Tribunal is required by the Direction to apply. The Tribunal must examine what access KZHP would have in common with other citizens of that country.

20. The Department of Foreign Affairs and Trade (‘DFAT’) does not appear to have updated its Country Information Report since 2016. DFAT does provide certain travel advice advising Australians not to travel to South Sudan, of which the Tribunal has informed itself under s 33(1)(c) of the AAT Act. It relevantly states:

    Fighting and instability continue across the country. The political and security situation is volatile and can worsen without warning. Border areas are especially dangerous. If you’re in South Sudan and it’s safe to do so, leave as soon as possible. Terrorist attacks could occur without warning. Public places, hotels, restaurants and government buildings are targets. Airports and transport hubs may also be targets…Kidnappings, murder, shootings, home invasions, armed robbery, carjacking and sexual assault are common throughout South Sudan, including Juba.

21. In respect of health services, DFAT advise there is a high risk of polio in South Sudan, as well as Yellow fever, typhoid, cholera and hepatitis. HIV/AIDS is common. Medical facilities in the capital, Juba, are basic and extremely limited elsewhere. Should the Applicant’s mental health conditions become florid, this would be a special characteristic personal to him that would affect him more than other South Sudanese citizens.

22. The Applicant speaks English fluently. Although English is an official language of South Sudan, the reality is that ethnic languages are more widely used. Miss MM came to Australia later than the rest of the family and was fluent in the Dinka language. She gave evidence that her brother learned Dinka from her, so that he could speak on the phone with his great grandmother. She said KZHP was about 50 per cent fluent.

23. The Tribunal considers that KZHP would be particularly vulnerable if deported, because of his lack of language proficiency, lack of local geographical knowledge, absence of any close relatives who could offer shelter and support, and lack of obvious employment opportunities. He may also be targeted as someone who has recently arrived from a western country and who may, therefore, be perceived to be wealthy. He would effectively be a stranger in a strange land. These characteristics, coupled with what DFAT terms as a ‘dire’ internal political and civil situation in South Sudan, make him particularly vulnerable, in the Tribunal’s estimation, to physical harm.

24. Overall, the Tribunal finds that this other consideration weighs strongly in favour of revoking the mandatory cancellation of the visa.

    Other consideration: Impact on victims (paragraph 9.3)

25. The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.

26. There was no evidence before the Tribunal from victims of the Applicant’s offences and both parties’ counsel submitted that this consideration was not engaged.

27. The Tribunal agrees and finds that this consideration weighs neutrally.

    Other consideration: Impact on Australian business interests (para 9.4)

28. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. As held by Rangiah J in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, at [68]) decision-makers must consider any impact on Australia’s business interests, not just business interests of a particular scale or importance.

29. There is no evidence of KZHP engaging in paid work, though it is noted that he has undertaken some vocational courses whilst in youth detention. The Tribunal finds that this consideration weighs neutrally.

    SUMMATION

30. In relation to the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs against revoking the mandatory cancellation of the Applicant’s visa. He has offended often, and there has been some escalation in the seriousness of his offending. Some of it has been violent. If he were to relapse into taking illicit drugs or re-engaged with antisocial associates, there would be a significantly elevated risk of recidivism.

31. The primary consideration relating to family violence has been found not to be engaged, and weighs neutrally. The primary consideration relating to the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of KZHP because he has spent almost all of his life in Australia and all of his (admittedly short) adult life.

32. The primary consideration relating to the best interests of minor children in Australia weighs relatively heavily in favour of the Applicant, especially because of the large number of minor siblings and stepsiblings he has in Australia and his role within the tapestry of the household. The special needs of one minor brother are also relevant. The primary consideration relating to the expectations of the Australian community weighs against the Applicant.

33. In terms of the other considerations, that relating to the legal consequences of the decision weighs slightly in favour of revoking the mandatory cancellation of the visa. The two other considerations which relate to the impact on victims and impact on Australian business interests both weigh neutrally in this assessment.

34. The other consideration relating to the extent of impediments if removed weighs strongly in favour of KZHP, as set out above.

35. In weighing all the applicable considerations individually and cumulatively, the Tribunal finds, in this case, that the combined weight of the two considerations relating the strength, nature and duration of ties the Applicant has to Australia, and the impediments KZHP would face if removed are together determinative in satisfying the Tribunal that there is another reason under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa.

36. The Tribunal notes, in particular, as will be evident to anyone reading these reasons, that all but two offences KZHP has committed have been as a minor, and dealt with by the Children’s Court. He has had one appearance in the Magistrates’ Court, and on that occasion the Court decided he should be dealt with by youth detention, in spite of the fact he had become an adult. Australia has a children’s justice system deliberately separate from that which governs the conduct of adults. Youth justice is centred on rehabilitation rather than punishment. There is no doubt that KZHP has had instances of appalling conduct, but there are good prospects that he has now learnt the error of his ways and genuinely wants to put that conduct behind him. The future is squarely in his hands. He clearly has some innate skills which he can put to positive use to improve his education, obtain employment and provide proper support to his mother and siblings.

37. Having made this finding, the Tribunal makes a gratuitous observation. This Applicant has a string of offending as a young person. Sometimes a conviction was recorded and sometimes it was not. The first offending the Minister’s delegate took into account occurred when KZHP was aged 13. It did not lead to a conviction. He has appeared before an adult court on one occasion, relating to two offences. His age when he has appeared in Court has been 14 (two Court appearances); 15 (three appearances); 16 (two appearances); 17 (two appearances); and 18 (two appearances for offending as a minor). Because his offending occurred in Victoria, the Tribunal (and the delegate earlier) must consider the offending in toto. That is not the case if an applicant in a similar situation had offending as a minor in a jurisdiction where State legislation had an interaction with s 852ZR(2)of the Crimes Act 1914 (Cth)(‘Crimes Act’) in regard to how findings of guilt without conviction for a person under 16 (NSW) or convictions as a minor (Queensland) are to be regarded. The decision in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (Beech-Jones J, with whom Gageler CJ, and Gordon, Edelman and Gleeson JJ agreed) found that the Tribunal was in error in taking into account New South Wales offending by a non-citizen under 16, because of the interplay between the Children (Criminal Proceedings) Act 1987 (NSW) and the Crimes Act.

38. The decision in Minister for Immigration, Citizenship and Multicultural Affairs v Thornton [2023] HCA 17 is also relevant, in relation to the interplay between the Youth Justice Act1992 (Qld) and the Crimes Act. In Thornton, the High Court held that the effect of Queensland State legislation was that a finding of guilt for which no conviction was recorded was not, and was not taken to be, a conviction for any purpose, including the purpose of whether to revoke the mandatory cancellation of a visa. See also the recent judgment by consent in Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252.

39. The consequence is, in the Tribunal’s understanding, that offending by a minor in some States may have an effect on the weighing exercise required by the Direction as to whether a visa should be cancelled, or remain cancelled, but is specifically not to be taken into account in other jurisdictions. This may be considered to be an unsatisfactory situation.

    DECISION

40. Pursuant to s 43(1)(c) of the AAT Act, the decision under review is set aside. In its place, the Tribunal decides there is another reason under s 501CA(4)(b)(ii) of the Act to revoke the cancellation of the Applicant’s visa.

I certify that the preceding 110 (one-hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

....................[sgn]....................................................

Associate

Dated: 27 March 2024

Date(s) of hearing:	19 March 2024
Counsel for the Applicant:	Ms Kylie McInnes
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	Mr Jonathan Barrington
Solicitors for the Respondent:	Sparke Helmore Lawyers

ANNEXURE

Schedule of exhibits

Exhibit R1      Volume of ‘GD’ documents

Exhibit R2      Volume of supplementary ‘SGD’ documents

Exhibit A1       Statement by the Applicant dated 26 February 2024

Exhibit A2       Letter of support of AN dated 21 February 2024

Exhibit A3       Letter of support of EA dated 21 February 2024

Exhibit A4       Letter of support of SO dated 21 February 2024

Exhibit A5       Letter of support of Mr Matthew Hyde dated 21 February 2024

Exhibit A6       Letter of support of AT dated 21 February 2024

Exhibit A7South Sudan Humanitarian Snapshot – UN Office for the Coordination of Humanitarian Affairs (December 2023)

Exhibit A8South Sudan: Response to the South Sudan Crisis Situation Report No 25 – UN Office for the Coordination of Humanitarian Affairs (19 January 2024)