LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 3613

LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3613 (28 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/7689
Re:LGLH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:28 October 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 11 November 2020, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution decides that the cancellation of the Applicant's Global Special Humanitarian (Class XB) (subclass 202) visa is revoked.
..............................[SGD]..........................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – Migration Act s 501CA(4) – matter remitted from the Federal Court of Australia – whether there is another reason to revoke mandatory cancellation of applicant's visa – Ministerial Direction No. 90 – whether the same material can be considered for two or more considerations – nature and seriousness of offending – family violence – whether ex-partner in relationship breakdown is a family member – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – whether Tribunal is obligated to consider non-refoulement obligations – Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417– whether non-refoulement obligations are owed – South Sudan – consequences of adverse decision – detention with no chronologically fixed endpoint – extent of impediments if removed – links to the Australian community – strength, nature, and duration of ties – reviewable decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Amos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4774
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3146
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Batson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1715
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Clegg and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2020] AATA 3383
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
JTNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4948
LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529
LGLH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 179
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stowers [2020] FCA 407
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Pourabbas Aghbolagh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4269
RTTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4813
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
Vovk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1328
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.
XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138.
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Secondary Materials
Al Jazeera, "In South Sudan, stigma and underfunding plague mental health care," (18 January 2019) available at: plague-mental-health-care
Amnesty International, " "Do you think we will prosecute ourselves?" – No prospects for accountability in South Sudan,"(7 October 2019), available at: l9ENGLISH.PDF
Amnesty International, "Our Hearts Have Gone Dark" The Mental Health Impact of South Sudan's Conflict (2016) available at:
T. Mayai, Abraham A. Awolich and Nhial Tiitmamer, 'Policy Brief: The Economic Effects of the COVID-19 Pandemic in South Sudan' The SUDD Institute (10 May 2020) <
Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020
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)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, ‘Destinations – South Sudan’, Smart Traveller (15 July 2022) < "DFAT Country Information Report – South Sudan," (5 October 2016), available at: Direction 90 – Direction under section 499 Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Immigration and Refugee Board of Canada, "South Sudan: Reports of forcible recruitment and military conscription by the government and armed groups (2014-December 2015)," (21 December 2015), SSD105374.E, available at: 7bf4.html.
International Committee of the Red Cross, 'South Sudan: Ten years after independence, hundreds are treated for gunshot wounds each year' (7 June 2021) < id=28048-c3hj5cv0s0vd7p6vd8kg>.
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Joseph Lou K. Mogga, "The mental health treatment gap in South Sudan," South Sudan Medical Journal, (February 2019) available at:
of the Commission on Human Rights in South Sudan (Advanced Edit Version) (4 February 2021)
< High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan – Update Ill, October 2021, available at: 7676fD4.html [accessed 29 March 2022]
UN Human Rights Council, "Assessment mission by the Office of the United Nations High Commissioner for Human Rights to improve human rights, accountability, reconciliation and capacity in South Sudan: detailed findings," (10 March 2016), A/HRC/31/CRP.6, available at: Human Rights Council, "Report of the Commission on Human Rights in South Sudan," (12 March 2019), A/HRC/40/69, available at: ny.un.org/doc/UNDOC/GEN/G19/065/05/PDF/G1906505. pdf?OpenElement
UN Human Rights Council, "Report on the human rights situation in South Sudan," (23 February 2018), available at: Human Rights Council, "Report on the human rights situation in South Sudan," (12 March 2019), available at:
Human Rights Council, 'Detailed findings of the Commission on Human Rights in South Sudan' (18 February 2021)
United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) < States Department of State, '"2020 Country Reports on Human Rights Practices – South Sudan," (30 March 2021), 2, practices/south-sudan/
United States Department of State, "2020 Country Reports on Human Rights Practices – South Sudan," (30 March 2021), p. 13, Department of State, “South Sudan 2018 Human Rights Report,” (13 March 2019), available at: Food Program, "South Sudan Emergency", emergency. Secondary Materials
REASONS FOR DECISION
Senior Member Dr Linda Kirk
28 October 2022
INTRODUCTION

LGLH (‘the Applicant’) was born in Sudan in 1994.[1] On 23 June 2009, the Applicant arrived in Australia as the holder of a Global Special Humanitarian (Class XB) (subclass 202) visa (‘the visa’).[2]
[1] Exhibit R3, Tab 15, 707.
[2] Exhibit R1, 65.
The Applicant’s National Criminal History check dated 14 September 2015 records that on 27 July 2015, he was sentenced to five years imprisonment for Rape and also convicted of Contravene family violence intervention order with intent to cause harm/fear, Stalking (following person) and Fail to answer bail granted.[3]
[3] Exhibit R1, 25.
On 29 March 2017, the Department of Immigration and Border Protection issued the Applicant with a Notice of Visa Cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act (‘the Mandatory Visa Cancellation Decision’). [4] The delegate was satisfied the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to paragraph 501(7)(c), a ‘substantial criminal record’.[5] At the time the Applicant was serving a sentence of full-time imprisonment at Karreenga Prison in Victoria for a criminal offence.
[4] Exhibit R1, 58.
[5] Under s501(7)(c) a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
On 2 May 2017, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6]
[6] Exhibit R1, 37.
On 15 February 2019, the Assistant Minister made a decision under subsection 501CA(4) of the Act not to revoke the Mandatory Visa Cancellation Decision.[7]
[7] Exhibit R1, 155; Exhibit R3, 732, [4].
On 3 March 2020, the Federal Court of Australia made orders quashing the decision of the Assistant Minister by consent.[8]
[8] Exhibit R1, 155.
On remittal, the matter was considered by a delegate who on 11 November 2020 decided not to revoke the Mandatory Visa Cancellation Decision under subsection 501CA(4) of the Act (‘the Reviewable Decision’).[9]
[9] Ibid, 10.
On 20 November 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the first Tribunal’) seeking a review of the Reviewable Decision.[10]
[10] Ibid, 1.
On 28 and 29 January 2021 the Applicant appeared before the Tribunal (‘the first Tribunal’) and gave oral evidence and presented submissions in support of his review application. On 10 February 2021 the first Tribunal affirmed the Reviewable Decision.[11]
[11] LGLH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 179.
On 24 February 2021, the Applicant sought judicial review of the first Tribunal’s decision.
On 7 December 2021, the Federal Court quashed the first Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law.[12]
[12] LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529.
The matter was heard by the currently constituted Tribunal (‘the Tribunal’) on 14 and 22 June 2022. The Applicant attended the hearing in person and was represented by counsel. He gave oral evidence and was cross-examined at the hearing.
The following persons also gave oral evidence and were cross-examined at the hearing:
·Selba-Gondoza Luka, Applicant’s support worker
·EA, Applicant’s sister
·RY, Applicant’s mother
·NA, Applicant’s father
The material before the Tribunal consists of:
·Section 501G Documents filed on 22 July 2020 (Exhibit R1)
·Supplementary Section 501G Documents filed on 23 December 2020 (Exhibit R2)
·Respondent’s Tender Bundle (Exhibit R3)
·Applicant’s Statement dated 10 May 2022 (Exhibit A1)
·Statement of EA1 dated 6 May 2022 (Exhibit A2)
·Statement of support from Ms Selba-Godoza Luka dated 16 May 2022 (Exhibit A3)
·Print-out sheet of programs offered by Afri-Aus Care Inc. (Exhibit A4)
·Statement of RY dated 10 May 2022 (Exhibit A5)
·Statement of NA dated 8 May 2022 (Exhibit A6)
·Affidavit of Mr Filip Gelev dated 11 May 2022 (Exhibit A7)
·Respondent’s Amended Statement of Facts, Issues and Contentions (‘RSFIC’) dated 6 May 2022
·Applicant’s Amended Statement of Facts, Issues and Contentions (‘ASFIC’) dated 30 March 2022
·Applicant’s Submissions on Double-counting dated 30 June 2022
·Respondent’s Submissions on Double-counting dated 28 June 2022
·Applicant’s Submissions on M1 dated 17 June 2022
·Respondent’s Submissions on M1 dated 6 June 2022
The Tribunal has reviewed the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)    The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)     been found by a court to not be fit to plead, in relation to an offence; and
(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)    as a result, the person has been detained in a facility or institution.
Subsection 501CA(1) of the Act provides that section 501CA applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person (a ‘mandatory visa cancellation decision’).
Subsection 501CA(4) confers on the Minister the discretion to revoke a Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa (a ‘non-revocation decision’).
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[13]
[13] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[14]
[14] Direction [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[15] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[16]
[15] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[16] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[17] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4): [18]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...
[17] [2018] FCAFC 151.
[18] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years in Sudan and Uganda
The Applicant was born in Sudan in October 1994.[19] He is single, Christian and of Dinka ethnicity.[20] His parents are from a city which is now in South Sudan.[21]
[19] Exhibit R3, Tab 1, 67.
[20] Ibid.
[21] Ibid, 113, [4].
When the Applicant was approximately five years of age, his parents fled Sudan due to the civil war and went to Egypt, leaving him and his two younger sisters with family members. The Applicant recalls them having limited food and shelter and experiencing ongoing physical and emotional abuse from family members, in particular his aunt.[22] Being the eldest sibling, the Applicant felt responsible for his sisters but helpless to adequately care for them. The Applicant attended primary school in Sudan for only two years. At approximately 12 years of age, the Applicant and his sisters, along with his aunt and her children, moved to Uganda. They remained in Uganda for two years whilst waiting to be granted visas. In Uganda the Applicant did not go to school as his aunt could not afford it, however she sent her own children which the Applicant resented.[23]
Life in Australia
[22] Ibid, 114, [12].
[23] Exhibit R3, Tab 5, 392.
The Applicant and his sisters managed to reconnect with their parents who were in Australia. He was reunited with his parents and three younger siblings when he and his two sisters arrived in Australia in June 2009.[24]
[24] Exhibit R3, Tab 1, 114, [16].
The Applicant attended an English language school in Sydney for two terms and then commenced high school entering Year 9. He enjoyed school and was hardworking and he made friends and performed well at sports. [25]
[25] Ibid, 115, [19].
In 2011 the Applicant’s parents separated, and in 2013 he relocated from Sydney to Geelong in Victoria with his mother.[26] The Applicant’s distress at his parents’ separation was compounded by his mother commencing a new relationship.[27] His recently developed friendships and connections ended when he relocated to Victoria, and he was required to rebuild and create new connections.[28] The Applicant abandoned his year 12 studies as a result of the family moving again to Werribee, which required him to travel several hours per day by public transport to reach school.[29]
[26] Exhibit R3, Tab 1, 115, [23].
[27] Ibid, [25].
[28] Ibid, 116, [27].
[29] Ibid, [28].
After leaving school, the Applicant commenced a bricklaying apprenticeship at TAFE, and he had plans to work in the construction industry. He only completed one month of his apprenticeship prior to him being charged.[30]
[30] Ibid, [30].
Drug and alcohol use
The Applicant only drank alcohol on one occasion when he was 18 years of age. He consumed a two-litre bottle of whiskey and passed out resulting in him being hospitalised. Since this time, he has not consumed alcohol. He tried cannabis once with his peers, but he did not like it. He denies having tried or used other illicit substances.[31]
[31] Exhibit R3, Tab 5, 392.
Criminal history in Australia
The National Criminal History Check report in relation to the Applicant dated 14 September 2015 records that on 27 July 2015 he was convicted at the County Court of Victoria at Melbourne of Rape and several related offences, namely Contravene family violence intervention order with intent to cause harm/fear, Stalking (following person) and Fail to answer bail granted and sentenced to five years imprisonment.[32]
[32] Exhibit R1, 25, 26.
The circumstances of the Applicant’s offending are set out in the sentencing remarks of Judge Quin dated 27 July 2015.[33] In June 2014, when he was aged 19 years, the Applicant committed rape against a female who had just ended a relationship with him. Over a period of three days, the Applicant called the victim 37 times and texted 74 times, before following her on the street, on a bus, to a friend’s car and then to a shopping centre before she locked herself in a car and drove away. The Applicant stood in the way of the car, but the driver managed to drive away. The following day, the Applicant texted and called the victim many times. She did not respond, and the Applicant went to her house and waited for her. In her sentencing remarks, Judge Quin described what then occurred:[34]
When she arrived home and opened the front door you grabbed her from behind and pushed her forcefully into the house. There was a struggle inside, though [the victim] managed to break free from you. She then locked herself in a bedroom, where she was able to telephone a friend, [name redacted]. You were yelling and banging on the bedroom door. [The victim] opened the door, worried you would damage the house and she also wanted to calm you down. You said all you wanted was to have sex with her and you grabbed her. She again broke free and ran to her sister’s bedroom. You followed her and pushed her onto the bed and held her down by her wrists. She was struggling with you and screaming, begging you to stop. You covered her face with a pillow, pulled her pants down and penetrated her vagina with your penis. You remained on top of her and said you did not care what you were doing, as she had broken your heart. [The victim] was screaming and crying during this time. You said you did not care how she was feeling before again inserting your penis into her vagina. You continued penetrating her until you ejaculated inside her vagina. You then got off her and dressed yourself, at which time [the victim] also got dressed and ran out of the house. Outside the house she spoke to her friend [name redacted] who, as I previously mentioned, she had called earlier, and she told him what had happened. She then called the police.
[33] Exhibit R3, Tab 1, 26.
[34] Ibid, 26-27, [6]-[7].
The police subsequently arrested the Applicant. He was remanded in custody on 18 June 2014 and released on bail on 27 August 2014. When he was initially interviewed, the Applicant told the police that the sexual encounter with the victim was consensual, that he had used a condom and did not ejaculate, and that he had stopped when requested. He then admitted the victim was crying and screaming and that he continued having sex knowing she was not consenting. He also admitted his earlier conduct, which founded the conviction for the offence of Stalking.
A Family Violence Intervention Order was made between the Applicant and the victim on 27 August 2014 which included a condition that he not contact or communicate with her by any means.[35] Upon his release from custody on 28 August 2014 the Applicant breached the Family Violence Intervention Order when he contacted the victim by Facebook. He failed to appear at his next scheduled hearing before the Magistrates Court, breaching his bail. He then sent a series of messages to the victim through Facebook. The messages included threats against her so that she would drop the charges, but also stating ‘I know I done a bad thing to you.’ The Applicant was charged with a breach of the Family Violence Intervention Order.
[35] Exhibit R2, 171.
In her sentencing remarks, Judge Quin described the Applicant’s offending as ‘a serious example of rape occurring in the context of a breakdown of a relationship and [his] inability to accept that’.[36] Her Honour further noted that the rape occurred in the victim’s home, that the Applicant was ‘well aware’ that the victim was scared, and that the rape ‘has had a significant impact on all aspects of her [the victim’s] life’.[37] In a victim impact statement presented at court, the victim expressed feeling fear every morning, which only subsides with the knowledge that the Applicant is ‘behind bars and won’t be able to hurt me’.[38] If she does not tell herself this, she ‘simply can’t get out of bed’.[39] She explained her feeling of having brought shame to her family and said that her family no longer trust or support her.
[36] Exhibit R3, Tab 1, 29.
[37] Ibid.
[38] Ibid, 30.
[39] Ibid, 30.
Remorse and responsibility for offending
In his statement dated 10 June 2020 the Applicant stated:[40]
I would like to start by apologising for my actions, for what I did to [the victim]. I’ve thought about it so much for the past several years whilst I’ve been in prison and in detention. I was young and stupid at the time I committed the offence. I know this is not an excuse. I made a mistake and I was very selfish. I didn’t think about [the victim]. I’m deeply sorry for my actions and fully responsible for what I did.
[40] Exhibit R3, Tab 1, 116, [34].
In his statement, the Applicant explained that he is aware of the impact of his offending on his victim:[41]
I have had a lot of time to think about my behaviour towards [the victim]. I make no excuses. I am very sorry for what I did. I was gutted by it. I was very unhappy with myself for a long time afterwards. I didn’t stop thinking about it for the first three years that I was in prison. I’m not proud of what I did and couldn’t work out how I had come to this point. I understand that I really hurt her and she has been through a very hard time because of my actions. In court I heard her witness impact statement and I remember from what was said in that she felt afraid a lot of the time, because of what I did. It affected many parts of her life and her family blamed her for what happened and that she has brought shame to her family and the community. I felt gutted by all of this. I couldn’t believe that I had done this to her and hurt her so much. Sometimes I thought about taking my life because I was so ashamed of what I had done and the impact it had on [the victim]. I think about my own sisters and I would not want anyone to do something like that to them. To hurt them. I started noticing more through news stories and social media how women are treated badly. I had never taken much notice before this. I feel strongly that it is not right for women to be treated in this way.
[41] Exhibit R3, Tab 1, 117, [34].
Judge Quin noted that the Applicant made full admissions in relation to his conduct in the record of interview, and ultimately accepted that he knew the victim was not consenting to engaging in sexual activity with him. Her Honour took into account his plea of guilty which, while not at the earliest opportunity, was ‘indicative of remorse’. [42]
[42] Exhibit R3, Tab 1, 32.
Judge Quin observed that the Forensicare report dated 1 May 2015 authored by Dr Jennifer McGrail, Forensic Psychologist, noted the following in relation to the context in which the Applicant offended:[43]
[The Applicant’s] offending appears to have occurred in the context of feelings of resentment, rejection and anger. His initial stalking behaviour appears to have been an effort to resume a relationship with the victim. When this has not occurred, his anger appears to have intensified and escalated to sexual violence. Underlying this is his belief that women should meet his sexual needs. [The Applicant’s] offending does not appear to have been motivated by deviant sexual interest. His offending appears to have been opportunistic rather than predatory.
[43] Exhibit R3, Tab 5, 398.
Risk of reoffending
In her sentencing remarks Judge Quin referred to a report by Dr McNabb who assessed the Applicant’s risk of reoffending and stated:[44]
A risk assessment in respect of further offending was also conducted by Dr McNabb. A number of tests were administered to determine your risk of future sexual offending and stalking behaviour. The results placed you in the category of moderate to high risk of sexual recidivism. Similarly, it is estimated that your risk of engaging in future violence in the context of a stalking episode is moderate to high.
[44] Exhibit R3, Tab 1, 33.
In her report, Dr McGrail assessed the Applicant’s risk of sexual recidivism. She found:[45]
[The Applicant] had evidence of four of the ten risk factors on the STATIC-99 including having an unrelated victim, an index non-sexual violence conviction, never having lived with a lover for at least two years and being young. His score totalling four places him in the category of moderate-high risk of sexual recidivism. In the studies upon which this measure was developed, the percentage of offenders in the 'moderate-high' range who went on to sexually reoffend was 26% over five years, 31% over ten years, and 36% over 15 years. …
[T]o the extent that the information available to me to conduct this assessment is valid, [the Applicant’s] risk of sexual reoffending, based on static factors alone, is somewhat elevated than the average score on the instrument which was 18% in 5 years, 22% in 10 years and 26% in 15 years.
[45] Exhibit R3, Tab 5, 396. The STATIC-99, based on large scale research involving more than 1,301 sexual offenders from the UK and Canada, provides an overall estimate of future risk based on 10 items. The ten items include 1) the presence of prior sexual offences 2) having committed a non-sexual violent index offence 3) having a history of non sexual violence 4) the number of previous sentencing dates 5) age less than 25 years old 6) having male victims 7) having never lived with a lover for two continuous years 8) having a history of non-contact sex offences 9) having unrelated victims and 10) having stranger victims. The scores for each item are combined into a total risk score. The risk categories range from ‘low’, 'moderate-low', moderate-high' and 'high'. The recidivism estimates provided by the STATIC-99 are group estimates based upon reconvictions. As such, the measure does not assess all relevant risk factors for individual sexual offenders.
In her report, Dr McGrail found that the Applicant was a moderate risk of further stalking behaviour in relation to his victim:[46]
[The Applicant’s] behaviour was most consistent with a Rejected stalker. Using a structured professional judgement approach, the risk of future stalking-related violence is judged to be moderate to high in the event of persistence of stalking behaviour. [The Applicant] said he is not currently seeking to have contact with the victim. However, in the context of difficulties with long term viable plans, a sense of entitlement, cognitive distortions and lack of empathy for the victim, [the Applicant] was judged to present a moderate risk of further stalking behaviour to the current victim in the short to medium term. Likely future risk scenarios are stalking behaviour that commences following the breakdown of an intimate relationship.
[46] Exhibit R3, Tab 5, 398.
In his report dated 18 December 2020, Dr Leon Turnbull, Occupational and Forensic Psychiatrist, referred to an earlier report that had estimated the Applicant’s risk of reoffending as ‘at least moderate’ and opined:[47]
A significant time has passed between then and now, and the main things in favour of a lower risk assessment are a lack of problems with drugs or alcohol, no other offending, a seeming benefit from formal sex offender management programs, generally prosocial attitudes in terms of himself and members of the public and his future, and ongoing family of supports.
In my assessment today, it is difficult to find any strong factors, other than the challenges of day-to-day living, in an environment that he has been out of for a few years, that lend themselves towards a risk of reoffending.
He also seems to be blessed by a plethora of peoples who are prepared to back him.
In my opinion, there is no precise way to calculate this man’s risk of offending again.
What I can say, is that he is free of any intellectual impairment, he does not suffer an obvious major psychiatric illness, and the statements he provided today are consistent with someone who has reflected on and matured in terms of his attitudes towards women.
My best estimate is that he is a low risk of reoffending.
[47] Exhibit R3, Tab 8, 576.
Courses and programs
When in gaol, the Applicant completed the ‘Better Life’ program, which ‘opened his eyes’ and helped him ‘grow up as a better person’.[48] He also engaged in several courses to address his offending behaviour, including an emotional management course and a compulsory program for sex offenders.
[48] Exhibit R3, Tab 1, 51.
In his statement dated 10 June 2020, the Applicant described what he learnt from his completion of the compulsory sex offenders’ program:[49]
I was ashamed when I first started going to the course, at having to talk about what I had done but then started to listen to others and see what I could learn. I learnt that I have to consider other people’s feelings, not just think about myself, to ask for help, to learn about other people’s feelings and that violence, especially against women, is not okay. When I was younger I had no clue about what a relationship was like and how to behave. I did not grow up with my parents in my life until after I arrived in Australia. I’ve learnt that relationships are about two people getting along well and communicating well together. Communication is so important. Sharing the same values and respecting each other opinions are very important. I also learnt to stay focused and to be there for my family and live a good life …
[49] Ibid, 118, [38].

The Applicant also enrolled in several practical courses including a work safety course, work planning and life skills, traffic management, white card and commenced a small business diploma.[50]
[50] Exhibit R3, Tab 1, 118, [39].
Behaviour in prison and immigration detention
The Applicant was reported to have been of generally good behaviour in prison. In the early part of his prison sentence, the Applicant was reported to have been involved in incidents where he was abusive to prison staff and involved in various physical altercations with staff and other prisoners. In December 2015, the Applicant was found involved in an altercation with another prisoner and wielding a knife, which he dropped when instructed to do so.[51]
[51] Exhibit R3, Tab 5, 329.
In his oral evidence to the first Tribunal, Dr Turnbull was asked whether these incident reports changed his opinion in relationship to the Applicant’s risk of re-offending. He noted that most of the reports were from 2015 and said that he did not consider them as heightening the risk of the Applicant re-offending.[52]
[52] Exhibit R3, Tab 22, 929.
The Applicant was appointed as a ‘peer listener’ in prison. In his statement dated 10 June 2020, he described what this role involved:[53]
In jail I was appointed a ‘peer listener’ which meant that I worked with one of two clinicians who were in charge of a group of prisoners. It was my job to support and mentor the guys coming into the prison. I helped with practical things as well as providing emotional support. A lot of people were on suicide watch and I would let prison officers know when someone was having trouble. I understood you are chosen for this role by one of the facilitators and that you need a good prison record to qualify. I felt respected and trusted by other prisoners. I played sport in prison and gained friends and respect for this too.
[53] Exhibit R3, Tab 1, 118, [40].
The Applicant also worked as a Mixed Sports Helper which involved setting up the field for sports matches, e.g. cricket or soccer, and then packing up at the end of matches. He did this on an almost daily basis.[54]
[54] Exhibit A1, [8].
Immigration detention centre records indicate that the Applicant has been of good behaviour and is engaged in various activities offered in the centre.[55] Serco officers describe him as ‘polite’ and that he ‘interacts well’ with other detainees and staff.[56]
[55] Exhibit R3, Tab 1, 141.
[56] Ibid, 142-144.
Mental health and counselling
In his statement dated 10 June 2020, the Applicant described how his mental health has been affected by his period in detention and the counselling he has obtained:
Just recently my mental health has suffered and I have been having difficulty sleeping and feeling low. I have been in detention for a long time now and it is difficult not knowing how much longer this will go on for and what the future holds for me. When I was feeling very low I let the detention officers know that I wanted to speak to someone about my mental health. They organised an appointment for the next day and kept a watch on me overnight. I didn’t feel suicidal but accepted they were just doing their duty of care.[57]
Selba [the Applicant’s support worker] referred me to a counsellor, Sally, who I speak to by phone on a weekly basis. We have been talking about my past and just getting to know each other. I’ve set some goals for the future, including getting a job and supporting my family, working with Selba in programs for the community and hopefully to start my own family one day. It is a relief to talk to a counsellor and get some feedback.[58]
These days I feel that that I’m able to talk about my feelings much more openly. Particularly since being involved in the peer prisoner program. I’ve come to realise that if I have an issue and need support then it’s okay to ask for help. These days If I’m feeling really down I call on Selba, my support worker, and we talk through what I’m feeling and what the issues are for me. It really helps to discuss my feelings with someone that I trust. I also understand more about how my emotions affect my thinking and about the choices I can make in my actions to do the right thing.[59]
[57] Ibid, 119, [44].
[58] Ibid, 119, [43].
[59] Ibid, 118-119, [42].
In his statement dated 10 May 2022, the Applicant described his attempts to obtain counselling at the Christmas Island Immigration Detention Centre where he has been detained since mid-2021:[60]
I have not been able to get much counselling at Christmas Island. About once a month I get a general "health" session for about 45 minutes. I don't know the exact qualifications of the people who do these sessions with detainees, I am guessing they are probably nurses. I do know that every couple of months it is a different person who comes. These "sessions" are not meant as counselling sessions to improve our wellbeing. The Department of Home Affairs just wants to make sure that detainees with serious health conditions, mostly physical health problems, get some treatment.
I feel I am going nowhere because almost every time I have a session, it is with a new person and they do not know me at all. They ask me how I am going and whether I am healthy and that is about it. They have no idea about my case, when and why my visa was cancelled, and they cannot really help me.
I cannot get proper counselling that would improve my mental health through these monthly check ups. Everything in the detention centre is complicated. At the moment I do not have a working telephone and I cannot call people on the mainland easily. People from outside, such as my lawyer, can organise a telephone appointment to talk to me, but it is not so easy for me to call health professionals in Melbourne or elsewhere on the mainland. There is also a time difference between Christmas Island and Melbourne that is up to four hours for half the year and that makes things even more difficult. This is why I have no psychologist or counsellor at the moment.
Even if I do get counselling somehow with a psychologist or counsellor over the phone, they cannot change the reality of my detention. The reason why my mental health is declining is because I am in detention. It is pointless to talk about my detention because the psychologist or counsellor cannot have me released.
[60] Transcript, 171; Exhibit A1, [9]-[12].
Request to be returned to South Sudan
In late 2021, the Applicant made a request to the Department to be voluntarily returned to South Sudan. In his statement dated 10 May 2022, the Applicant explained why he made this request:[61]
Towards the end of 2021 I was losing my grip. I was desperate and could not understand why the Federal Court was taking such a long time to decide my case. I had trouble getting through to Refugee Legal. I did not know what to do and ended up asking to be sent "back" to South Sudan. At the end of the day, I signed the paper out of frustration. I have never really lived in South Sudan as I already said, so in really dark moments I think no matter what it is, it cannot be as bad as being mentally tortured by indefinite detention in Australia. I have completed my prison sentence, I have done all I can to show that I am a rehabilitated person. I cannot imagine spending the rest of my life in a detention centre. I thought it might be better to face whatever comes my way as a free man than to die in detention.
[61] Exhibit A1, [14].
The Applicant confirmed that he subsequently withdrew this request after the Federal Court remitted his case to the Tribunal. He did so after his family and his lawyers spoke to him, and they were able to ‘bring [him] to some sense’ and he proceeded with his review application.[62]
[62] Transcript, 164.
Children
The Applicant has four minor aged siblings
·MA born 2005 aged 17 years
·EA2 born 2007 aged 15 years
·CA born 2009 aged 13 years
·AA born 2012 aged 10 years
The Applicant told the Tribunal that prior to his arrest in June 2014, he was living with his mother and four siblings. He would sometimes drop them off at school and often took care of them after school when his mother was out.[63]
[63] Transcript, 158.
When the Applicant was in prison, he communicated with his siblings regularly. They would speak on the phone, and they would visit him monthly or every couple of months.[64] Since he went into immigration detention, he has not been visited by his four younger siblings. He has however maintained communication with them through social media and phone calls.[65]
[64] Transcript, 159.
[65] Ibid.
In his statement dated 10 May 2022, the Applicant described his ongoing relationship and contact with his four younger siblings:[66]
I talk with my youngest siblings who live with my mum, who are all still minors and going to school: [MA, CA, EA2 and AA]. I wish I was there to help them with their lives and to offer them guidance as an older brother. I want to be a positive example for them and to help with practical things. My mother doesn't drive and it means my siblings miss out on things that other kids take for granted, such as participating in sports – soccer, basketball, netball – because it takes a long time to get to places on public transport and it often means after a sports game, they will have to go home in the dark on public transport, by themselves.
For example, I cannot let my nine year old brother [AA] do this by himself and because there is nobody else who can drive him around, it means my siblings will miss out on opportunities that most other kids get. I feel very sad that I cannot do more for them.
I also want to show my siblings that they need to do the right thing, study hard, finish school and do something with their lives. They are pretty smart, switched on kids, I want them to succeed in life. I want to see them grow up, do all the things other Australians get to do, get married and have children of their own.
[66] Exhibit A1, 3, [20]-[21].
The Applicant also has one minor aged nephew, A born in 2018 aged three years, and a minor aged niece R, born in 2021 aged 18 months who are the children of his sister EA1 and are resident in Melbourne. The Applicant met his nephew when he was one year old and his mother and sister EA1 brought him to the prison. He has not met R.[67] He does however communicate with them both when he speaks to his sister EA1 via video calls.[68]
[67] Transcript, 160.
[68] Ibid.
In his statement dated 10 May 2022 the Applicant described his ongoing connection with his niece and nephew:[69]
I also regularly speak with my sister [EA1] and her two children, my niece [R] and nephew [A]. [R] recently turned one. I wish I was there for her birthday and to see her grow from a baby into a toddler. I have already missed many milestones in the lives of my siblings, niece and nephew, but I will continue to do my best to maintain a strong connection with all of them even from detention.
[69] Exhibit A1, [19].
The Applicant told the Tribunal that he wants to be present in his niece and nephew’s lives as an uncle and to support his sister, including financially.[70]
[70] Transcript, 160.
Family members in Australia
The Applicant’s mother RY and father NA, and two adult sisters EA1 and GA, reside in Australia. In his statement dated 10 May 2022 the Applicant described the impact on his mother of his imprisonment and ongoing detention:[71]
My mother is very sad, disappointed and confused as to why I am still in detention. She tried her best to raise seven kids and because I am the first born, I have a special place in her heart. I was a father figure to the younger children. My imprisonment and immigration detention has been a very hard journey for her. Sometimes she cannot sleep and she will call me in the middle of the night and just cries because all she wants is for me to go back home. I hate to see her like this and I am always thinking of the day when I can finally get home to her and tell her this nightmare is over.
[71] Exhibit A1, [18].
Plans for the future
If the Applicant is able to return to the community he will live with his mother and four minor aged siblings in Melbourne. He would like to return to Sydney when he is financially stable. He has completed his white card and wants to get work on construction sites. Alternatively, he would like to work in traffic management as he completed a course in this field while he was in gaol.[72]
[72] Transcript, 162.
In his statement dated 10 June 2020, the Applicant outlined his future plans if he is released into the community:[73]
If I am given the chance, I intend to continue with counselling to support my transition back into the community. When I am ready, Selba can link me into community support programs that Afri-Aus Care run when I am released so I can support other young people. I’m really keen to do this as I’ve been through a lot and want to support other young people to avoid going down the path I went down. I think I have good communication skills and could do a good job of this. I want to return to playing sport and reconnect with people this way as well. I have spoken to Selba about work opportunities, so when I get released I can work in construction, painting, that kind of work. I have a long term aim to return to TAFE to complete an electrician course.
[73] Exhibit R3, Tab 1, 119, [45].
Family in Sudan
The Applicant’s evidence is that he is not in contact with his family in South Sudan:[74]
… I do not know where my extended family are in South Sudan or even if they are alive. I have not spoken to any of them since I arrived in Australia. My dad has sisters that I have never met. My mum has one sister who lives in Egypt and I never met any of her other family. The war has really split our family and they are no longer connected.
[74] Exhibit R3, Tab 1, 120, [51].
Impediments on return
In his statement dated 10 June 2020, the Applicant outlined his fear of harm if he is returned to Sudan or South Sudan:[75]
I cannot return to Sudan or South Sudan. The situation in South Sudan is still very unpredictable and unsafe particularly for Dinkas. I fear that I will be killed by the Army when they realise that I left the country to seek protection from the war along with my family. I will also be open to attack as people will know that I have lived overseas and will expect that I have money to give them. I would stand out because of the way I speak. I can’t speak Dinka language fluently and can no longer speak Sudanese Arabic. They would notice the way I dress and the way I look is different from other people.
[75] Ibid, [49].
He also outlined his concerns about finding employment and housing if he is returned to South Sudan, and the effect his removal will have on his family in Australia:
It would be really difficult to find a job and support myself. I would be at risk of starvation and homelessness as there are no support services like there are here.[76]
…
If I am deported I would not feel my life is worth living. I cannot see any kind of future for in South Sudan. I will be taken away from my family with no chance of seeing them again. I know they will be heartbroken and I will miss them very much. When I was first told that the Department had decided not to revoke my visa cancellation I didn’t tell my mum the full story as I knew how upset and worried she would be. I wanted to protect her. If I was deported there is a high chance that we would never see each other again. I have already experienced separation from my family as a young child and do not want to experience that again.[77]
[76] Ibid, [50].
[77] Ibid, [52].
The Applicant told the Tribunal that he knows nothing about South Sudan:
I’m basically just going to get sent back to a country that I left when I was young. Like I have no idea about that. I don’t know nothing there.[78]
WITNESS EVIDENCE
[78] Transcript,165.
Ms Selba-Gondoza Luka
Ms Selba Luka, of Afri-Aus Care Inc., provided a support letter dated 16 May 2022,[79] and gave oral evidence at the hearing. Afri-Aus Care (‘AAC’) is a not-for-profit community service organisation that ‘works to address mental health taboos’ within African and other Culturally and Linguistically Diverse communities.’ AAC ‘assists individuals by using the concepts of UBUNTU and the Positive Change Model to deliver a variety of programs such as primary mental health intervention, intensive support programs, and culturally appropriate counselling.’ Using these frameworks, AAC ‘supports those in contact with the Justice System because of unresolved trauma, family conflict, substance abuse, and many other factors that are all too common amongst migrant groups.’ The programs that AAC currently run are Black Rhinos, Ubuntu Peer Support, Community Engagement, Legal Support, Employment Pathways, Emergency Response, Empowering African Mothers Project and Referral Pathways.[80]
[79] Exhibit A3.
[80] Exhibit A4.
The Applicant was referred to Afri-Aus Care in early 2019 by a Senior Recreation Officer at Karreenga Correction Centre, where the Applicant was serving his sentence. The Applicant met Ms Luka and expressed his interest in learning more about AAC programs, particularly the Black Rhinos. After being transferred to Broadmeadows Detention Centre, the Applicant contacted Ms Luka on one occasion and expressed suicidal ideations, as well as reporting severe depression. Ms Luka provided counselling services to the Applicant over the phone and contacted the Applicant’s mother for additional support. Since January 2020, the Applicant has contacted Ms Luka a number of times expressing the difficulties he is experiencing in immigration detention. Ms Luka has continued to offer counselling services to the Applicant over the phone and has contacted the Applicant’s mother on a number of occasions.[81]
[81] Exhibit A3.
Ms Luka described to the Tribunal the assistance AAC could provide to the Applicant if he is released into the community. He would be invited to visit the community centre and learn about the programs that are run there. A health assessment by a GP would be offered to him, and he would also be invited to participate in the volunteer programs and Employment Pathways to assist him to get employment. In addition, he would be offered a culturally appropriate counselling service for psychological support.[82]
[82] Transcript, 235-236.
Applicant’s sister, EA
The Applicant’s sister, EA1 provided a written statement dated 6 May 2022,[83] and gave oral evidence at the hearing. EA1 told the Tribunal that her four younger siblings, with the exception of MA, do not remember what they did with the Applicant before he went to prison.[84] MA will be ‘heartbroken’ if the Applicant is returned to South Sudan and the other siblings will be ‘very sad’ that they will not have the chance to get to know their older brother.[85]
[83] Exhibit A2.
[84] Transcript, 226.
[85] Transcript, 228
In her statement she described the relationship between the Applicant and her two children, A and R:
[The Applicant] already has a relationship with them, but he has never had a chance to develop a strong bond and be involved in their lives every day – hug them, play with them, comfort them when they cry, put them to bed, change their nappy.
If he is released from detention, he can develop a stronger relationship with them and he can help me to look after them to give me a little bit of time to myself and to relieve the pressure on me.[86]
[86] Exhibit A2, [5]-[6].
EA1 told the Tribunal that if the Applicant is returned to South Sudan, he would not have any family to support him. Their maternal grandmother is sick, and they have lost contact with their relatives on their father’s side.[87]
[87] Transcript, 227.
Applicant’s mother, RY
The Applicant’s mother, RY, provided a statement dated 10 May 2022,[88] and gave oral evidence at the hearing. She told the Tribunal that the Applicant and his four minor siblings ‘have a very good relationship’ and they love each other.[89] The Applicant gives his siblings advice, and they respect and listen to him. Before he went to gaol, the Applicant would take them to school and to sport.
[88] Exhibit A5.
[89] Transcript, 243.

In her statement, RY wrote that if the Applicant is released, he can live with her and her family. They ‘can be a good influence on him and help him to not make the same mistakes again.’ She knows that the Applicant ‘has grown up and become more mature’ and is ‘ready to be responsible.’ She wants her son to come home so that he can help her and their family.[90]
[90] Exhibit A5, [3].
RY told the Tribunal that she runs a small business (a shop) and she will make the Applicant work there with her. She will also try to get him to the AAC community centre so that he can get help finding employment.[91] In her statement dated 18 May 2020, RY stated that she believes the Applicant will provide support to her and the children:[92]
His siblings look to him as their big brother and I know [the Applicant] wants to support me in caring for the family. I know he will find work and get back into playing sport and live a good life in Australia.
[91] Transcript, 244.
[92] Exhibit R3, Tab 1, 126, [36].
RY’s evidence is that she does not have any relatives in South Sudan or Sudan. Their family was ‘scattered because of the war and he would be all alone. There is no one to look out for [the Applicant].’[93] She confirmed that she returned to South Sudan in 2020 and said she spent nine months there and stayed in a hotel.[94]
[93] Exhibit R3, Tab 1, 125, [30].
[94] Transcript, 255.
In her statement dated 18 May 2020, RY described the impact on her and her family if the Applicant is removed to South Sudan:[95]
If the Australian Government sends [the Applicant] to South Sudan I will be devastated and my children as well. I was separated from him for so many years when he was a child and I do not want to go through that again. I would not feel safe to return to the country to see him.
We are a close family and support each other. His siblings ask about when he is coming home and I am certain they will be very sad if this does not happen. Especially his older sisters, [GA] and [EA1], because the three of them have been through so much together.
[95] Exhibit R3, Tab 1, 126, [34]-[36].
Applicant’s father, NA
The Applicant’s father, NA provided a statement dated 8 May 2022,[96] and gave oral evidence at the hearing.
[96] Exhibit A6.
NA told the Tribunal that he visited his son in gaol twice a month between the period 2014 and 2019.[97] He would visit for one to one and a half hours and would speak to the Applicant in English. He told the Tribunal that the Applicant could speak Dinka well when he arrived in Australia, but now his Dinka is ‘no good’.[98]
[97] Transcript, 267.
[98] Transcript, 268.
In his statement dated 8 May 2022, NA stated that if the Applicant lives in Melbourne when he is released, he will keep in touch with him and, if he decides to move to Sydney, he can help him to look for work.[99] He is confident that the Applicant will not re-offend. He was young when he offended but ‘now he has grown up into a man, ready to be out in the community.’[100]
CONSIDERATION AND REASONS
[99] Exhibit A6, [4], [6].
[100] Ibid, [5].
1) Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 14 September 2015 recording his criminal convictions and sentence.
Based on the evidence before it, the Tribunal finds that the Applicant has a ‘substantial criminal record’,[101] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[102] On 27 July 2015 the Applicant was convicted of Rape, Contravene family violence intervention order with intent to cause harm/fear, Stalking (following person) and Fail to answer bail granted and sentenced to five years imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of paragraph 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 29 March 2017 the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the state of Victoria.
[101] Migration Act s 501(6)(a).
[102] Migration Act ss 501(7)(d), 501(7A).
It follows that the requirement in subsection 501CA(1) is satisfied and the discretion to revoke the Mandatory Visa Cancellation Decision is enlivened. The Applicant does not pass the character test, and as a result the Mandatory Visa Cancellation Decision cannot be revoked under subparagraph 501CA(4)(b)(i).
2) Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
The issue for determination by the Tribunal is whether, for the purpose of subparagraph 501CA(4)(b)(ii) of the Act, there is ‘another reason’ why the original mandatory cancellation decision should be revoked.[103] The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.[104]
[103] Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [55].
[104] Ibid.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:[105]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[105] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
In considering whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal has had regard to the following Considerations as required by the Direction.
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   …
(ii) ...
(iii) …
(iv) …
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   …
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Having regard to paragraph 8.1.1(1)(a) of the Direction, the principal offence of which the Applicant was convicted was a violent, sexual crime. Rape is a crime of violence as well as a sexual crime because it involves a personal violation by a person of another without their consent, or recklessness as to whether they are consenting. The circumstances of the Applicant’s offending, which involved protracted pursuit and harassment of the victim, add to its seriousness. In accordance with the Direction, the Tribunal finds that the Applicant’s offending was very serious because it included a sexual crime involving violence directed towards a woman. The Tribunal has no discretion to view violent offending other than very seriously.[106]
[106] Minister for Home Affairs v Stowers [2020] FCA 407 at [45].
The Tribunal respectfully concurs with the following observations of the sentencing judge, Judge Quin in relation to the seriousness of the Applicant’s offending:[107]
[The Applicant’s] offending as a consequence of the end of [his] relationship with [the victim] or in response to her ignoring you cannot be tolerated in a civilised society. People or, in this instance, women are entitled to choose freely to end relationships without fear of retribution if the other party is not happy about that situation.
[The Applicant’s] response in continuing to harass [the victim] and subjecting her to physical force to meet [his] sexual needs was serious criminal conduct. His communications with her after [he] had been arrested and spent two months in custody breaching the intervention order was reflective of [his] lack of understanding of the seriousness of [his] offending and in blatant disregard of court orders.
The community demands protection for those in [the victim’s] position and punishment for those who disregard her rights.
[107] Exhibit R3, Tab 1, 34-35.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the seriousness of the Applicant’s offending is confirmed by the sentence imposed. The five year custodial sentence imposed on the Applicant by the Court is an objective indicator of the seriousness of his criminal offending. The maximum penalty for the offence of Rape is 25 years, and for Stalking the maximum penalty is 10 years. The Applicant was sentenced to five years’ imprisonment for his offending, notwithstanding that it was the first time he had been charged with an offence. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[108]
[108] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587 at [21].
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
In relation to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, particularly those who are in a personal relationship with the Applicant, should he engage in similar conduct could include trauma and very serious physical or psychological injury. The Applicant has demonstrated a propensity to act violently with disregard for the harm caused to his victim. If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) (‘XFKR’),[109] the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[109] [2017] AATA 2385.
In addition to the potential harm to individuals, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. The Tribunal finds that the harm to individuals and the community should the Applicant engage in similar criminal offences is very serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the information and evidence before it on the risk of the Applicant re-offending, and finds for the reasons that follow, that the Applicant is a low risk of re-offending.
On the basis of the evidence before it, the Tribunal finds that the Applicant is genuinely remorseful for his actions and has accepted full responsibility for his offending against his victim, including by his plea of guilty. He fully appreciates the wrongfulness of his actions and the significant impact his offending had on his victim, and the ongoing fear and shame it instilled in a young woman with whom he was in an intimate relationship. The Applicant has demonstrated insight into the contributors to his offending, particularly his previous inability to control his emotions and his refusal to respect the decision of a romantic partner to end their relationship. The Tribunal accepts the Applicant’s evidence that his offending was contributed to by his immaturity and lack of relationship experience. Whereas this does not excuse or mitigate his criminal offending, it does support a finding that the risk of the Applicant committing similar offences in future is decreased in circumstances where he has had eight years in prison and immigration detention to reflect on his behaviour and its consequences for himself, his family and his victim. In making this finding, the Tribunal has had regard to the evidence that prior to the offending for which he was convicted, the Applicant had not previously been charged or convicted of any other criminal offence.
The evidence before the Tribunal is that in the past eight years the Applicant has taken a number of positive steps to improve his emotional intelligence and develop his life skills, including completing a course in emotional management. He reports that from this course he learned how to deal with emotions and to accept rejection.[110] In her May 2015 report, Dr McGrail recommended that the Applicant engage in offence-specific psychological intervention to address his future risk. She suggested he be assessed to determine his eligibility for treatment with the Sex Offender Assessment and Treatment Service (SOATS). The Applicant completed a compulsory program for sex offenders in gaol, and reported learning that ‘violence, especially against women, is not okay’ and the importance of respect in relationships.[111]
[110] Transcript, 163.
[111] Exhibit R1, 118, [38].
In addition to completing these courses, the Applicant has learned to reach out and ask for help when he is experiencing stress or anxiety, including by seeking counselling for his mental health. The Applicant’s evidence is that if he is released into the community, he will access counselling and other support programs, specifically those offered by AAC. Whilst in prison, the Applicant also took steps to improve his work skills, including obtaining his white card and completing a course in traffic management.
In relation to the likelihood of the Applicant re-offending, the Tribunal has had regard to the opinions of the experts who have assessed the Applicant’s risk of committing further offences, specifically Dr McGrail and Dr Turnbull. For the reasons that follow, the Tribunal has given more weight to the report and findings of Dr Turnbull in relation to the risk of the Applicant re-offending.

The UNHCR updated its position on returnees to South Sudan in October 2021, and concluded that states should suspend forcible returns of nationals or habitual residents of South Sudan to the country:[203]
Human Rights Situation
8.Self-defence groups continued to cause most of the localized violence. Between 1 June 2021 and 31 August 2021, "UNMISS documented 179 incidents that negatively affected the human rights and protection situation, including arbitrary killings, extrajudicial executions, injuries, abductions, conflict related sexual violence, arbitrary arrests and detention (including proxy detention), torture and ill treatment, forced military conscription, and the looting and destruction of civilian property." UNMISS documented at least 395 civilian casualties (297 killed and 98 injured) as a result, including at least 31 women and 21 children. Despite serious violations of human rights and international humanitarian law, there is limited access to justice and perpetrators continue to commit violations with impunity.
…
International Protection Needs and Non-Return Advisory
26.UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention, or would otherwise meet the criteria contained in the refugee definition in Article 1(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa. In this respect, UNHCR welcomes the fact that South Sudanese fleeing the conflict continue to enjoy prima facie refugee status in all neighbouring states, in line with Article 1(2) of the 1969 OAU Convention.
27.... UNHCR reaffirms its call on States to refrain from forcibly returning South Sudanese nationals or habitual residents of South Sudan to any part of the country.
28.The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security, rule of law, and the human rights situation in South Sudan has significantly improved to permit the promotion of safe and dignified returns of those determined not to be in need of international protection.
[203] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update Ill, October 2021, available at: 7676fD4.html [accessed 29 March 2022]
Based on this country information, the Tribunal finds that the Applicant’s claim that he is at risk of arbitrary detention, torture or cruel inhuman or degrading treatment or punishment contrary to Article 7 of the ICCPR and Article 3 of the CAT is objectively well-founded, and therefore he engages Australia’s non-refoulement obligations under these treaties.
Having considered the Applicant’s claims and the evidence before it in relation to the existing human rights and security conditions in South Sudan, the Tribunal finds that returning the Applicant to South Sudan would place Australia in breach of its non-refoulement obligations, and that this other consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
Consequences of finding that non-refoulement obligations are owed
Having found that the Applicant engages Australia’s non-refoulement obligations, the Tribunal has considered the consequences of a non-revocation decision in circumstances in which he cannot be involuntarily removed from Australia. The Applicant contends that a finding that the Applicant is owed non-refoulement obligations will, in light of the recent amendments to section 197C of the Act,[204] result in four possible outcomes::[205]
·He remains detained for an indefinite period but, at some time in the future, a third country expresses a willingness to accept him (despite his criminal convictions);
·He remains detained for an indefinite period but, at some time in the future, the Minister exercises a non-compellable power in section 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention;
·He remains detained for an indefinite period but, at some time in the future, chooses to voluntarily return to South Sudan
·He remains detained for as long as can reasonably be foreseen in the future.
[204] Section 197C addresses the relevance of Australia’s non-refoulement obligations to the removal of non-citizens from Australia as required by section 198 of the Act:
[205] ASFIC, [51].
The Respondent accepts that the Applicant will be liable for detention until:
·he is removed; and
·if he applies for a Protection visa, until the application is decided.[206]
[206] RSFIC 22, [101].
The Respondent further concedes that if the Applicant makes a Protection visa application and the application is refused but a ‘protection finding’ is made in respect of him, he will not be liable to removal to South Sudan. In these circumstances the Applicant will be detained until such time as:
·a decision is made by the Minister whether or not to exercise his non-compellable powers under ss 195A and 197AB of the Act;
·he is resettled in a third country;
·there is no longer a real chance of serious or significant harm such that any return to South Sudan in the future is free from such risk.
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(‘WKMZ’),[207] the Full Federal Court referred to the possible outcomes of a non-revocation decision: removal, indefinite detention, and the grant to the non-citizen of a visa.[208] Kenny and Mortimer JJ observed that completion of the steps associated with these outcomes may take considerable time:[209]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[207] [2021] FCAFC 55. This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction.
[208] WKMZ at [97].
[209] WKMZ at [132].
The Applicant contends that indefinite detention is a breach of articles 7 and 9 of the ICCPR, and asserts that the circumstances of his indefinite detention would inflict ‘serious psychological injury’.[210] The Respondent points out that whether or not the Applicant faces the prospect of indefinite detention depends upon a number of possibilities, including the outcome of any application made by him for a Protection visa.[211]
[210] ASFIC 14, [58].
[211] RSFIC 23, [104].
While the Tribunal has found that the Applicant engages Australia’s non-refoulement obligations, it cannot speculate on the outcome of any Protection visa application that he may make in the future. Nor can the Tribunal speculate about the duration of any detention to which the Applicant may be subjected. However, it finds that all the possible outcomes of a non-revocation decision outlined in [217]-[218] inevitably involve the Applicant remaining in ongoing immigration detention while the various administrative processes are completed. Accordingly, the Applicant’s ‘loss of liberty may be very lengthy, and have no chronologically fixed endpoint.’[212]
[212] WKMZ at [132].
The Applicant has made representations that ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked is the possibility that he might be indefinitely detained in immigration detention. The Tribunal therefore must consider the impact of the Applicant being subjected to ongoing immigration detention, and whether this amounts to ‘another reason’ for the revocation of the Mandatory Visa Cancellation Decision.
The evidence before the Tribunal is that the Applicant has been held in immigration detention for more than three years,[213] and this has had an adverse impact on his mental health. In his oral evidence, the Applicant was asked about how his mental state has been while he has been in detention. He stated:
Like, it’s been really challenging, you know, since – ever since I left from prison, came to the detention centre. I haven’t been able to see my family, that’s the main thing, you know, and all those things. But my head, yes, like, I’m depressed most of the time. Just worried, you know. Not knowing what’s going to happen, basically, in – in detention centre, you know. Just the unknown that I’m facing every day, it’s you know – and not having my freedom, not having that chance as a young person, you know. I’ve been, like, I’ve been locked up for almost since I was 19, so I’m going on eight years, you know. And I know it’s all these things, they just – but mentally here, like, yes, it’s slowly, slowly, you know, like, I guess you can say it’s breaking me down, you know, because I’m depressed. I just want my freedom. I just want nothing more.[214]
[213] Released from gaol on 24 September 2019.
[214] Transcript, 163-164.
In his December 2020 report, written after the Applicant had been in immigration detention for approximately three months, Dr Turnbull made the following observations about the impact of immigration detention on the Applicant:[215]
I think he is coping in detention as well as he could expect. He is having some mental health hiccoughs along the way, but if anything, he has been largely resilient, and he is trying to maintain his health without psychotropics, and he is finding goals for the future. In a general sense, and having visited Nauru, and seen and assessed multiple people in various detention facilities, prolonged detention does tend to have an insidious institutionalising and denigrating effect, and I do not think he is immune from that. Thus, were he to remain, and things to be unclear and him to not see much of a future for himself, there is a not insignificant risk of a more obvious psychiatric deterioration.
[215] Exhibit R3, Tab 8, 578.
The Tribunal finds that the consequence of a non-revocation decision is the Applicant’s ongoing immigration detention without a chronologically fixed endpoint which will cause him psychological harm and may also be in breach of Australia’s international obligations and human rights standards. The Tribunal finds that the consequences for his mental health of the Applicant’s ongoing immigration detention is a factor that weighs very heavily in favour of revoking the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia
The Direction states at paragraph 9.2:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
a)    The non-citizen’s age and health;
b)    Whether there are substantial language or cultural barriers; and
c)     Any social, medical and/or economic support available to them in that country.
Whereas the Tribunal has found that the Applicant is owed non-refoulement obligations and therefore he cannot be involuntarily returned to South Sudan, it has considered the factors in paragraph 9.2 for reason that he may again request to be removed to South Sudan at some future time due to his distress at the conditions and uncertainty of immigration detention.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is aged 27, and he is generally in good physical health, but is experiencing depressive symptoms in immigration detention. If the Applicant is returned to South Sudan, his separation from his parents, siblings, niece and nephew who will remain in Australia will cause him considerable emotional hardship and likely exacerbate his mental health condition. Country information referenced in [204] above documents that South Sudan has one of the largest mental health gaps in the world, with an estimated 99 per cent of individuals who require treatment being unable to receive it. Accordingly, if the Applicant’s mental health were to worsen upon return to South Sudan, it is extremely unlikely he would be able to access appropriate mental health treatment.
Having regard to the factors in paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face language and cultural barriers on his return to South Sudan. He has limited familiarity with the country, having left there when he was aged 12, and he can no longer speak Sudanese Arabic and his Dinka language skills are limited. The Applicant’s lack of language skills together with his limited knowledge of his tribal or cultural heritage, will set him apart from the community he will join on return to South Sudan. The Applicant’s grandmother in South Sudan is ill and he is not in contact with any of his other relatives. There is a risk that without familial assistance he will not be accepted or fully assimilated into the Dinka or wider South Sudanese community, and he will not be afforded any community protection.
Relevantly to the factors in paragraph 9.2(1)(c) of the Direction, as a citizen of South Sudan, the Applicant would have the same access to any social, medical and economic support as other citizens. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. As referenced in [203] above, in June 2021 the Red Cross reported that only about 40% of South Sudan’s already rudimentary healthcare system remains operational and health treatment is severely under-resourced. The country does not have a formalised welfare system. Social structures are the primary tool for the provision of safety nets for those in need with relatives providing assistance.[216] Without access to health care, welfare support and the support of family members, the Applicant will be in a very precarious situation and may become homeless and destitute. His likely vulnerability as a consequence of these factors also places him at higher risk of suffering discrimination if not serious harm given the unstable political and security environment in the country.
[216] Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020.
The evidence before the Tribunal supports a finding that the Applicant will face extreme practical hardship if he is returned to South Sudan. He will have considerable difficulty finding safe accommodation and maintaining basic living standards. The country information indicates that there are several reports of a deteriorating humanitarian situation with flooding, extreme poverty and the COVID-19 pandemic.[217] The World Food Program reports that in early 2022 ‘[f]ood insecurity in South Sudan has reached the most extreme levels since independence in 2011’ and ‘8.3 million people – 75 percent of the population are facing severe food insecurity.’[218]
[217] United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) < World Food Program, "South Sudan Emergency", emergency.
Whereas the Applicant has some transferable work skills, his language skills will limit his ability to find secure employment. In a policy brief written for the Sudd Institute – an independent research organisation that conducts and facilitates research and training to inform public policy and practice regarding South Sudan, the authors describe how COVID-19 has had a devastating effect on an already depressed economy, effecting virtually every field of employment, with the informal sector being the hardest hit in terms of job losses.[219] The economic downturn in the country will further exacerbate the difficulties the Applicant will face in finding employment and becoming financially stable.
[219] Augustino T. Mayai, Abraham A. Awolich and Nhial Tiitmamer, 'Policy Brief: The Economic Effects of the COVID-19 Pandemic in South Sudan' The SUDD Institute (10 May 2020) < 8.
On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs very heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the views of the Applicant’s victim and the impact on her of a decision to revoke the Mandatory Visa Cancellation Decision. The Tribunal has given this other consideration neutral weight.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(1) and paragraph 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that the Applicant’s immediate family members reside in Australia, including his parents, siblings, niece and nephew. Based on the statements and oral evidence of his parents and sister, the Tribunal finds that the Applicant’s family members will experience considerable emotional hardship and distress if he is removed from Australia.
In relation to his other ties, the Applicant has resided in Australia for 13 years having arrived here in 2009 as a 14-year-old. As required by paragraph 9.4.1(2)(a)(i) of the Direction the Tribunal has attached less weight to the Applicant’s period of residence in circumstances where he committed his offences in 2014, being only five years after his arrival. In relation to the factors in paragraph 9.4.1(2)(a)(ii) there is evidence that the Applicant has not had paid employment since he left school, and he has not therefore made a contribution to the Australian economy. He did however make a worthy contribution to the prison community through his role as a peer listener.
Impact on Australian business interests

The Applicant does not claim that any Australian business interests would be affected by his removal to South Sudan. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the strength of his ties to family members and the length of time the Applicant has resided in Australia, the Tribunal finds that this consideration weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it involved sexual violence offences against his former girlfriend. Despite the low risk of him committing future criminal offences, the nature and seriousness of the harm this would cause to any future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 does not weigh against the revocation of the Mandatory Visa Cancellation Decision because although the Applicant’s family violence offences are very serious, the seriousness of his offending is mitigated by the fact the offending was limited to offences committed over a period of three days, he has taken full responsibility for his offending, he understands the impact of his offending on his victim, and he has made considerable efforts to address the factors that led to his violent actions.
Primary Consideration 3 weighs very strongly in favour of the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision as it is clearly in the best interests of the Applicant’s four minor aged siblings, niece and nephew for him to be permitted to remain in Australia.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the likelihood the Applicant will face ongoing immigration detention by virtue of him being owed non-refoulement obligations, the nature and extent of the impediments he will face on return to South Sudan, his 13 years’ residency in Australia, and the devastating impact of his removal on his family members, particularly his parents and siblings, weigh very heavily in favour of revocation of the Mandatory Visa Cancellation Decision
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 11 November 2020, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution decides that the cancellation of the Applicant's Global Special Humanitarian (Class XB) (subclass 202) visa is revoked.

I certify that the preceding 249 (two hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

................................[SGD]........................................
Associate
Dated: 28 October 2022

Date(s) of hearing: 14 & 22 June 2022

Date final submissions received: 30 June 2022

Counsel for the Applicant: Mr J Murphy

Solicitors for the Applicant: Refugee Legal

Counsel for the Respondent: Mr M Cleary

Solicitors for the Respondent: Sparke Helmore

197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3)Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.

Date(s) of hearing:	14 & 22 June 2022
Date final submissions received:	30 June 2022
Counsel for the Applicant:	Mr J Murphy
Solicitors for the Applicant:	Refugee Legal
Counsel for the Respondent:	Mr M Cleary
Solicitors for the Respondent:	Sparke Helmore