LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 179

LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 179 (10 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7689
Re:LGLH
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:10 February 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.................................[sgd]......................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held Global Special Humanitarian visa – applicant born in Sudan – threshold question about country of reference – country of reference now South Sudan – visa mandatorily cancelled under s 501(3A) of Migration Act – applicant concedes fails statutory character test – is there another reason to revoke the mandatory cancellation of the visa – consideration of Direction No. 79 – Part C – primary considerations – protection of the Australian community – nature and seriousness of offending – serious sexual crime – risk of re-offending – best interests of affected minor children – can the best interests of an unborn child be considered under this part of the Direction – expectations of the community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 33A, 35
Migration Act 1958, ss 36, 499, 501CA
The Nationality Act 2011 (South Sudan)
The Sudanese Nationality Act (Amendment) 2011 (Sudan)
Transitional Constitution of the Republic of South Sudan, 2011
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
JNMK v Minister for Home Affairs and Another (2019) 168 ALD 206
Kalm v Administrative Appeals Tribunal [2013] FCA 890
Secondary Materials
DFAT Country Information Report South Sudan – 5 October 2016
Migration Act 1958 – direction under s 499 – Direction No. 75 – refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (commenced 7 September 2017)
Migration Act 1958 – direction under s 499 – Direction No. 79 – refusal or cancellation of visa on character grounds under s 501 and mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
10 February 2021
GENERAL BACKGROUND

As the Applicant in this matter has made certain claims relating to his status as a refugee, on 3 December 2020 the Tribunal issued an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), prohibiting the publication of his name. He will be known in these reasons by the anonym ‘LGLH’. Certain details which would tend to reveal the identity of members of his family, some of whom gave evidence in the hearing, will also be anonymised.
LGLH is a 26-year-old man. He was born in 1991 in Khartoum in the Republic of Sudan. His parents have Dinka ethnicity and were from what was then the southern part of Sudan but which, since partition in 2011, is now part of the Republic of South Sudan.
LGLH arrived in Australia in June 2009 as the holder of a Global Special Humanitarian (Subclass 200) visa. That visa was cancelled on 29 March 2017 by a delegate of the Respondent Minister under section 501(3A) of the Migration Act 1958 (the Act) on the basis that the Minister was satisfied that the Applicant does not pass the character test because he had a ‘substantial criminal record’ (as defined in section 501(7)(c) of the Act). He had been sentenced to a term of imprisonment of 12 months or more and, under section 501(3A)(b) of the Act was at the time of the cancellation of the visa 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.
LGLH was invited by the Department of Home Affairs (the Department) to make representations as to whether there was another reason, under section 501CA(4)(b)(ii) of the Act, that the mandatory cancellation of his visa should be set aside. He made representations. On 15 February 2019 the Assistant Minister decided not to revoke the mandatory cancellation of the visa. That decision was quashed by the Federal Court of Australia on 3 March 2020. On 11 November 2020 a delegate of the Respondent decided that the discretion available under section 501CA was not enlivened and decided not to revoke the mandatory cancellation of LGLH’s visa. On 20 November 2020 LGLH applied to the Tribunal for review of this decision. This is the decision which is now before the Tribunal for review.
The decision before the Tribunal is therefore the decision of 11 November 2020 by a delegate of the Minister. A hearing was held on 28 and 29 January 2021 by videoconference as permitted by section 33A of the AAT Act, and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency. At the hearing, LGLH was represented by Mr Julian R. Murphy of counsel, instructed by Ms Amelia Sturton of the Refugee & Immigration Legal Centre Inc. The Respondent was represented by Mr Adam Cunynghame, of Sparke Helmore Lawyers. LGLH gave evidence and was cross-examined. The Applicant also called other witnesses who gave evidence and were cross-examined. They were: Ms XG, the Applicant’s sister; Mr XD, the Applicant’s stepfather; Ms XE, the Applicant’s sister; Mr XB, a cousin of the Applicant; Mr XN, the Applicant’s father; Ms Selba Luka, of Afri-Aus Care Inc.; and Dr Leon Turnbull, consulting psychiatrist. The Tribunal was assisted by interpreters in the Dinka language in relation to two witnesses, Mr XD and Mr XN.
The Respondent lodged with the Tribunal two volumes of documents, which are described as ‘G’ documents (‘GD’) (admitted into evidence as Exhibit R1) and supplementary ‘G’ documents (‘SGD’) (Exhibit R2).
The Applicant tendered the following documents, which were admitted into evidence by the Tribunal:
a)Statement by the Applicant dated 15 December 2020 (Exhibit A1);
b)Report of Ms Katie Grech, CRAMLI Counselling and Wellbeing Services (Exhibit A2);
c)Report of Ms Christine Nathan, The Victorian Foundation for Survivors of Torture Inc. (Exhibit A3);
d)Bundle of supporting documents submitted by the Applicant (Exhibit A4);
e)Statement of Mr XD, dated 14 December 2020 (Exhibit A5);
f)Statement of Ms XE, dated 15 December 2020 (Exhibit A6);
g)Statement of Mr XD, dated 14 December 2020 (Exhibit A7);
h)Statement of Mr XN, dated 15 December 2020 (Exhibit A8);
i)Letter of Support from Ms Selba Luka of Afri-Aus Care, dated 20 January 2021 (Exhibit A9);
j)Psychiatric Report of Dr Leon Turnbull dated 18 December 2020, with letter of instruction (Exhibit A10);
k)Supplementary Psychiatric Report of Dr Leon Turnbull dated 19 January 2021, with letter of instruction (Exhibit A11).
The Tribunal also had regard to written Statements of Facts, Issues and Contentions lodged by both parties, and a Statement in Reply lodged by the Applicant.
Threshold question – the country of reference of the Applicant
In the written Statement of Facts, Issues and Contentions submitted by the Applicant on 18 December 2020 it was conceded (at paragraph 18) that if LGLH were to be deported from Australia, he would be deported to South Sudan. The Respondent asserted that LGLH was a citizen of South Sudan in his Statement of Facts, Issues and Contentions dated 11 January 2021 (at paragraph 47). At the hearing the Tribunal asked the parties whether it was not in question that the country of reference for the Applicant, if the decision were affirmed, is the Republic of South Sudan, and both Mr Murphy and Mr Cunynghame confirmed that was their view.
Consideration
Chapter III of the South Sudan Nationality Act relates to Nationality by Birth and section 8(1) of that Act states:
A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
Section 9 states:
Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Tribunal accepts the evidence that LGLH is of Dinka ethnicity. His father, Mr XN states in Exhibit A8:
I am originally from what is now South Sudan and am Dinka and Moru. I moved a lot growing up due to war. My dad’s family was from Wau, from the Moru tribe, and my mother’s family was from Rumbek and the Dinka tribe.
The Tribunal notes that Rumbek is a city in (and the former capital of) South Sudan, and Wau is also a city in South Sudan. Applying section 8 of the South Sudan Nationality Act, LGLH “shall be considered” a South Sudanese National under the law of that country.
The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011. It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
Finding
I am satisfied that LGLH is entitled to citizenship of the Republic of South Sudan by force of law. Although it is strictly not relevant to this finding, I note that (given that LGLH was born in Khartoum, the capital of the Republic of Sudan) a South Sudanese National may not, by Sudanese law, also be a citizen of Sudan (see The Sudanese Nationality Act (Amendment) 2011).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (the ‘Act’) is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act 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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that LGLH does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38]).
Evidence in relation to the character test
At GD p 25 was a National Police Certificate dated 14 September 2015, which stated that in mid-2015 LGLH was convicted by the County Court of Victoria of the offence of Rape, for which he received a sentence of 5 years’ imprisonment. At same Court hearing he was also convicted of the offences of Contravene Family Violence Intervention Order with Intent to Cause Harm/Fear, for which he received 2 months’ imprisonment (to be served concurrently with the head sentence); the offence of Stalking (Following Person), for which he received 1 month imprisonment, to be served concurrently; and the offence of Fail to Answer Bail Granted, for which he received 7 days’ imprisonment.
Finding in relation to character test
On the evidence before me, I find that LGLH does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections 501(6)(a) and (7)(c), because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. I note that both parties conceded in written submissions, and reiterated at the hearing, that the Applicant did not pass the character test set out in the Act.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of LGLH’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
Opening Submission of the Applicant
Counsel for the Applicant said that it was accepted that the offending by LGLH is ‘very serious’. Mr Murphy submitted that LGLH had no criminal history at all until he committed the index offence of rape. He said this is not a case where the person before the Tribunal has a long criminal history, and that LGLH is genuinely remorseful and reflective about his crimes.
Mr Murphy said that LGLH has been recently assessed as a ‘low risk’ of re-offending and noted that the delegate accepted that there would be minor children in Australia affected by the decision to cancel the Applicant’s visa.
Counsel submitted that the particular crime, while serious, does not foreclose the possibility of revocation of the mandatory cancellation. He said that all of LGLH’s meaningful family connexions are in Australia and if returned he will go back to a place of trauma.
Opening Submission of the Respondent
Mr Cunynghame made a brief opening submission, noting LGLH was born in Khartoum but that the country of reference in relation to the Applicant is South Sudan, and reiterated the contention made in written submissions that the expectations of the Australian community outweigh anything else in this case, noting the nature of the main offence.
Evidence of the Applicant, LGLH
LGLH adopted his statement (Exhibit A1). He said that his early life in Sudan with his two sisters, XE and XG was hard. Their parents had left the country and he was living with his grandmother. He said it was hard not having parents around and he tried to be a big brother to his younger siblings.
LGLH said that he came to Australia in 2009 and was reunited with his parents, and also with three other younger siblings, XM, XC and XE. He said he was very excited to meet them and the whole family was together for the first time. Later, a further brother was born, XA.
LGLH said he had a close relationship with all of his siblings before he was arrested. He said his mother was under some pressure and had opened a shop. His parents’ marriage had ended, and his mother had remarried, and his stepfather, Mr XD, was at work, so the four youngest children were at home. He said that XM, XC, XE and XA ‘go to my sister’s most of the time’, but that he babysat them, if he was at home and had nothing to do.

LGLH said that he used to get regular visits from members of his family while he was serving his prison sentence, but it has been more difficult since he was transferred to immigration detention, partly owing to restrictions because of the pandemic.
LGLH said he tries to speak to his siblings twice a week; he said he does not like to talk about what is happening in prison or the detention centre and talked to them about school, life and told them to do what their parents told them.
When asked what he hoped his future relationship with his youngest siblings would be if allowed to stay in Australia, LGLH said he would continue being a good brother to them and ‘make up for lost time’.
When asked where he would live, LGLH said he was ‘thinking of going back to Mum’s house. I will try to get work and support them financially.’ He said that he was looking to get into work as a tradesman and had done his white card and a course in traffic management whilst incarcerated.
The Tribunal asked LGLH about his apprenticeship as a bricklayer. He said he had undertaken about two months of this before he was arrested and had to complete six months of pre-apprenticeship work before he could be accepted as an apprentice.
LGLH said that he had plans to stay in Melbourne ‘for 12 months or more’ to get experience and then move to Sydney to live with his father, Mr XN. He said he needed to spend time with his siblings first. He said he wanted to move to Sydney to get a fresh start. He said his father works in construction, and his cousin, Mr XD, also lived in Sydney and was employed. He thought they could assist him to find work.
Asked what would happen if he is sent back to South Sudan, LGLH said ‘I don’t know. I lived there as a minor. I don’t know what I would face. I wouldn’t see my family. I don’t speak Dinka.’
Mr Murphy asked LGLH about his language proficiency, he said: ‘I know the basics – hello, how are you doing? I can understand, but I can’t respond.’
When asked whether he speaks Dinka when he talks to his father, Mr XN, LGLH said the only time he uses the language is when he talks to his father, and on those occasions, he mixes it up with English.
When asked whether he speaks Sudanese Arabic, LGLH replied: ‘Not really. Half of it is gone. I understand basic bits.’
When asked whether he had extended family in South Sudan, LGLH said he believed so, but he hadn’t met them. He said he had a grandmother, but ‘we don’t know where she is. He said he had never spoken to any of his extended relatives in South Sudan since he has been in Australia.
Mr Murphy asked LGLH what he would do for money in South Sudan. He responded: ‘I have no clue. It would be a struggle.’
Counsel then asked LGLH about his offending. He said: ‘I got charged with raping my ex-partner. That is what I did. I pleaded guilty. When first arrested I got scared and panicked. I never denied it.’
LGLH said he now felt sorry and ashamed about what happened. ‘It was wrong of me to put her through the trauma. I am remorseful for what I did.’ LGLH said he was young and selfish and did not consider someone else’s feelings, but ‘I copped it on the chin. It was my fault.’
Counsel asked whether, in the time he was in gaol, LGLH has undertaken any programmes. LGLH confirmed that he had completed the Sex Offender Program in 2019 and had done other courses on how to ‘maintain emotions’ and dealing with risk strategies. He was drawn to a handwritten document titled ‘HLS Plan’ in Exhibit A4, and the Applicant confirmed that he had written it The Tribunal understands this is part of a Healthy Lifestyle Plan administered by the Victorian Department of Justice and Regulation for offenders.
When asked whether he had had any contact with the victim since being sentenced, LGLH said that he had not, and did not wish to in the future.
Under cross-examination, LGLH was taken to an earlier statement he wrote in June 2020 in which he said (GD, p 113) that his relationship with his father (Mr XN) “is much better these days”. LGLH said that when he was younger, he did not communicate with his father, including when they lived together. He said that Mr XN had told him that he had a new partner, but LGLH said he had not yet met her, but had spoken to her on the telephone.
LGLH said that his parent’s separation affected him, and it was hard for him to tell his mother that he did not have a relationship with his father.
LGLH said he had attended school in Australia up until Year 12 and had enjoyed school, especially sport. He said he was not a troublemaker. He said he did not get into trouble with teachers but there were some incidents of racial abuse to which he was subjected as he was the only African student at a particular school. Shortly after he changed schools.
LGLH referred to corporal punishment from his Auntie (in Sudan) and his father (SGD, p 66). He said they ‘definitely always hit me when I was young. The culture is different in Sudan to Australia.’ Under cross-examination, he said his father never hit him.
The Applicant agreed that he was isolated from his family prior to his offending. He said that there had been a misunderstanding between him, and his mother and he was living at a friend’s house for about a week, then with his father, who was living in Melbourne at that time.
LGLH said that he remembered spending time with Dr McGrail, a psychologist appointed by the Court to provide a pre-sentence report. He confirmed that she undertook an interview with him in prison for about two and a half hours. He agreed that, at that time, he did not have a good relationship with his father.
LGLH said that a woman came into his family’s shop and this woman ‘placed a curse’ on the family. He was not sure whether this woman was having a relationship with his father, but her name always came up when his parents were arguing, so he assumed she was. He agreed that he talked to his victim about the curse but could not remember what he said to her.
In her report of 1 May 2015 (SGD, pp 72-79), Dr McGrail wrote that LGLH “reported that he has had approximately 20-30 partners and described himself as a “player”…”. LGLH said this was not correct and Dr McGrail must have misheard what he said. He said he told her that he knew about 20 girls who are friends.
LGLH was asked whether he agreed with Dr McGrail recording that his longest relationship prior to the relationship he had with the victim was for four months. The Applicant agreed. He said that he had had two relationships before, both in high school, including the one which lasted for four months, and that they had ended mutually. He said that he did not have sexual intercourse with either of these previous partners.
LGLH told the Tribunal that the first time he had intercourse was with the victim. When asked directly by the Tribunal whether he had said that most of his sexual partners were older, LGLH said he did say that, but was referring to after he got out on bail.
Mr Cunynghame asked LGLH if he remembered telling Dr McGrail that his first sexual experience was when he was aged 14. He said: ‘I remember saying that to her. It wasn’t proper sex. I am talking about kissing.’
LGLH was asked about his mother’s attitude to the victim and whether she had thrown him out of the family home (SGD, p 74). LGLH said that was correct, and he slept in the park for a couple of days. He said he was thrown out of the house for ‘not following the rules and stuff’.
When asked by the Tribunal whether he had told Dr McGrail that the victim was a “junkie girl (he explained that this meant that she used to go out a lot, drinking and partying)”; LGLH said he did say this because he was angry with the victim for getting him into trouble. He said that he had thought about it since, and had no right to be angry, and was older now.
LGLH was referred to a statement by the victim (SGD2, p 20) in which she referred to her and the Applicant having a ‘big fight’ at Victoria University, which included a physical fight. LGLH agreed that it was an argument that became physical and got out of hand.
When asked about where his mother is at present, LGLH said he believed she was currently in Uganda, having been in Juba to see her own mother who had been unwell. He said he thought she had been away for about two months and was trying to come back to Australia because of the COVID-19 pandemic.
LGLH said he thought his mother had been in Juba for about two weeks but moved her mother to Uganda for medical treatment, but he was not aware whether she had seen other family while in South Sudan. When asked whether his mother had returned to South Sudan before, since settling in Australia, LGLH said he did not know.
LGLH said that in his mother’s absence his youngest siblings were being cared for by their stepfather and that his two sisters, Ms XG and Ms XE, occasionally visited to help him out.
The Tribunal asked the Applicant about an infant son of his sister, Ms XE. LGLH said that the baby was about one year old know, and they had brought him to visit LGLH in prison. He said that his sister is pregnant with her second child.
Evidence of Ms XG, sister of the Applicant
Ms XG adopted an earlier statement of 8 May 2020 (GD, pp 127-130). She said that when she, her sister and LGLH were all in Sudan, LGLH was a ‘parent figure or a guidance’ to her and Ms XE. She said he had always been there, if anything were to happen to their parents.
Ms XG said there was not too much for LGLH to do in this guidance role at that time, because they lived separately, but she knew he was her brother.
Ms XG said they were excited to come to Australia and were all living together before LGLH went to gaol. She said LGLH was an active person, especially at high school, playing sport after school.
Ms XG said she had visited the Applicant in prison but had not been able to since he has been in detention because of the restrictions imposed by the COVID-19 pandemic. She confirmed that their four youngest siblings also visited and LGLH would go outside and play with them in the prison play area.
Ms XG said she did not want LGLH to go back to South Sudan because ‘he’s already lived that’ and their family and parents are all here. She felt her youngest siblings would not understand such a concept. While they knew LGLH had gone to gaol, she did not want them to have the image of their oldest brother going back to Africa.
Under cross-examination, Ms XG confirmed that she knew the victim, who would often visit their home and cook for them. She said her mother really liked the victim: ‘it was like mother-in-law/daughter-in-law love’.
Ms XG confirmed that her stepfather was looking after her youngest siblings while their mother was in South Sudan, and sometimes her sister, Ms XE, looks after them, and she also helps out during their mother’s temporary absence.
Evidence of Mr XD, stepfather of the Applicant
Mr XD adopted his statement (Exhibit A5). He said he had known LGLH since 2012. He said before LGLH went to prison, he was living in the same household. He said LGLH had a good relationship with his younger siblings. Mr XD confirmed that he, with the rest of the immediate family, had visited LGLH while he was in prison.
Mr XD said he had spoken to LGLH about the crime and that he had expressed sorrow for what he had done. He said he had seen a change over the last six years and felt LGLH had grown up.
Mr XD confirmed that LGLH would be able to stay with him if released from detention and he would support him in finding a job. Mr XD said his younger stepchildren would feel very disappointed and stressed if LGLH is sent back to South Sudan, because they know no one will support the Applicant there.
Under cross-examination, Mr XD confirmed that he spoke Dinka with LGLH and agreed that he speaks the language ‘confidently’. Mr XD said he prefers to speak in Dinka because his own English proficiency is not high.
Mr XD confirmed that he provided the usual support in a family home to XM, XC, XE and XA, including food and clothing when required. He said he had been working but had lost his job owing to the pandemic and was now on Jobseeker allowance.
Mr XD said that his wife has been in Africa since the beginning of October, visiting Wau, where her ailing mother is. He said she has spent about three months in South Sudan, that she has been to Juba but not to Uganda. He said he spoke to his wife two days before the hearing and she was in Juba, making arrangements to return to Australia. He said he believed she had been staying with her sister but was not sure if she still was.
Mr XD said that his wife was hoping to leave Juba at the beginning of February but was not sure whether she will be able to or not, given the current uncertainty with flight availability.
In answer to a direct question from the Tribunal, Mr XD said that, in terms of LGLH’s Dinka, he did not think the Applicant could speak as fluently as others in South Sudan, because he came to Australia when young.
Evidence of Ms XE, sister of the Applicant
Ms XE adopted her statement of 15 December 2020 (Exhibit A6). She said she had a strong relationship with LGLH and that he was protective of her and Ms XG.
In terms of LGLH’s relationship with their younger siblings, Ms XE said that he always helped out cooking, cleaning and taking them to school if their mother was out and was a ‘good big brother’.
Ms XE said that she had not been able to visit LGLH because she had fallen pregnant but had seen him once or twice before that. She said they now talk about three or four times a week.
Ms XE said she wanted LGLH to be around her children, if he is allowed to remain in Australia. She said that would ‘give him confidence’. Ms XE said that she had a son who was now aged 2, and was five months’ pregnant, and she knew that the baby was a girl. She confirmed that she had taken her son to visit LGLH when he was in prison.
She said that LGLH could be a role model for her children, and her son would not know his uncle if he is returned to South Sudan. She said it would ‘break my heart if he is sent back’. Asked how she felt LGLH would fare in South Sudan, Ms XE responded: ‘Honestly, I don’t think he would survive.’
Under cross-examination, Ms XE confirmed her mother was currently in South Sudan. She said they do not know people on her mother’s side of the family, because when they were younger, they were only around relatives on her father’s side.
Ms XE said she did not have a relationship with her father, Mr XN, but felt that her father did listen to LGLH. She had past disagreements with her father but felt that LGLH would be able to repair her relationship, if he is allowed to stay.
Evidence of Mr XB, cousin
Mr XB adopted his statement dated 15 December 2020 (Exhibit A7). He lives in Sydney. He said he had known LGLH since 2009 when the Applicant and his older sisters came to Australia. Mr XB said LGLH briefly lived with him when he arrived. He said he had maintained a relationship with him and would fly down to Melbourne to see him, sometimes accompanied by his father, Mr XN.
Mr XB said he had discussed the offending with LGLH and said he ‘feels very guilty and full of remorse’. He said he had changed over the last six years, was a wiser person and has learned a lot, and had undertaken young offender programmes.
Mr XB said that LGLH likes Sydney and most of his cousins are there. He said that if the Applicant was allowed to stay in Australia and came up to Sydney, he can help him look for a job. He said that in prison LGLH had been doing a construction course, which he can complete on release.
Asked what he would do if sent back to South Sudan, Mr XB said: “He doesn’t have anyone there. When he was little, he was in Uganda. I feel that the situation there is not settled and is not safe.”
Mr XB said he considered the effect on LGLH’s siblings if he is deported would be ‘devastating’ in relation to Ms XG and Ms XE, but he didn’t know about the younger siblings. He considered it would be a big loss to the family.
Mr XB said that Mr XN lives quite close to him in Sydney and he saw him every weekend. He considered that LGLH and his father have ‘a normal father and son relationship’.
Evidence of Mr XN, father of the Applicant
Mr XN adopted his statement dated 15 December 2020 (Exhibit A8). He said that he lived with LGLH for about six years after the Applicant came to Australia. He said that LGLH was good at home, and well-behaved at school. He said that LGLH helped his younger brothers and sisters with their homework, took them to the library and the park, and was always looking out for them.
Mr XN said he would travel down from Sydney to Melbourne with Mr XB to see LGLH when he was in prison and before the borders were closed. He said he had spoken to his son about his offending.
Mr XN said he spoke Dinka to his son, and English when they do not understand the Dinka words. He said that LGLH’s ‘English is increasing, and his Dinka is fading, which is the same with my daughters, so I speak in English sometimes.’
Mr XN said that there is a lot of support waiting for LGLH if he is released into the community, including Mr XB, people at their local church, cousins and siblings. Mr XN said he works in construction and if there is a job in that area, he can help him obtain that.
When asked what would happen to LGLH if he is sent to South Sudan, Mr XN said “his life will never be the same if you guys deport him. There is war and other problems there.” He said that he speaks to his own mother daily, and she updates him on the local situation in South Sudan.
Under cross-examination, Mr XN said he had first been told about the arrest for rape by his ex-wife, and subsequently was told directly by LGLH when he visited him in custody. He said LGLH did not go into details and he (Mr XN) did not know the name of the victim, but he knew what he had done and that it was completely unacceptable.
Mr XN said that when LGLH first came to Australia, he spoke Dinka ‘fluently’, but he speaks more English than Dinka now. He said that when he visited LGLH in prison he went with Mr XB; he would speak to his son in Dinka but sometimes Mr XB would interpret a word into English, when LGLH did not understand it.
Mr XN said he wanted LGLH to move to Sydney, after he has spent some time with his siblings who he has missed.
Mr XN said that he had five sisters and one brother in South Sudan, but his brother there has mental health issues. He said he was aware that his ex-wife was currently in South Sudan, because LGLH had told him.
Mr XN said he had never been violent towards his son. When asked about the remarks by Dr McGrail where LGLH told her he felt ‘mistreated’ by his father, and felt resentment and anger towards him, Mr XN responded: “Nothing like that ever happened.”
Mr XN said that he had a good relationship with his son at the time of the offending, but he was not living in the family house and was living in Geelong, but LGLH would come to Geelong to visit him.
Mr XN said he was ‘shocked’ at the suggestion that LGLH had anger towards him; he said he never saw it. When asked directly by the Tribunal whether he had discussions with LGLH as a father and son about romantic relationships, Mr XN said that he had.
Evidence of Ms Selba Luka
Ms Selba Luka, of Afri-Aus Care Inc., which is described as a ‘culturally appropriate mental health organisation’ headquartered near Melbourne, gave evidence. Her report dated 20 January 2021 was Exhibit A9. She said she first met LGLH in 2019 when her organisation took a soccer team to the correctional centre where LGLH was incarcerated.
She said she had spoken to LGLH since then when he was transferred to immigration detention. Ms Luka said she had offered support and had referred him to CRAMLI. If LGLH is allowed to remain in Australia, Ms Luka said she would refer him to a general practitioner for treatment and further psychological support, if that is assessed as warranted.

Ms Luka said she would work with LGLH’s mother and assess whether he wants employment, because her organisation has good links with employers who are prepared to hire ex-offenders. She said Afri-Aus Care Inc. has assisted ex-detainees before and felt a minimum commitment would be twelve months. If LGLH moved to Sydney, Ms Luka said care could continue because they have an online platform for interstate and overseas clients.
Evidence of Dr Leon Turnbull, consulting psychiatrist
Dr Turnbull’s report (Exhibit A10) and supplementary report (Exhibit A11) were before the Tribunal. He confirmed that he was aware of the Tribunal President’s Guideline for Persons Giving Expert and Opinion Evidence, dated 30 June 2015.
Dr Turnbull said he had interviewed LGLH over video-link. He said that he considered LGLH genuinely reflective, that was his overall impression. Dr Turnbull was asked about the conclusion at page 7 of his report where he stated:
My best estimate is that he is a low risk of reoffending.
Dr Turnbull said LGLH had an actuarial assessment in 2015 (carried out by Dr McGrail) and he assessed how the Applicant has progressed in the last five or six years. In regard to the STATIC-99 test, Dr Turnbull said by definition such a test cannot take into account a subject’s maturity or changes – it is looking at a ‘slice of time’. Dr Turnbull said a STATIC-99 test is ‘somewhat informative, but if a person does good or bad things after, it renders it totally meaningless.’
Dr Turnbull said that LGLH is free of a lot of the problems he finds with other clients. He is not a drug-taker, does not have a problem with alcohol, or any personality disorder. ‘He’s a bit of a clean-skin, to use a layman’s term. He doesn’t have a major mental illness and does not need psychological or psychiatric treatment.’
Mr Murphy asked Dr Turnbull about his remark that LGLH is ‘largely rehabilitated’. Dr Turnbull responded: “He needs to stay on that path. He doesn’t need to be over medicalized. He has the capacity to lead a normal and functioning life.’
Dr Turnbull was asked about his supplementary report, written after he was provided with additional material produced under summons including incident reports from prison. Dr Turnbull said that his answers remained unchanged from his first report.
Asked specifically about whether the incident reports change his opinion, Dr Turnbull said he had a mixed opinion. He noted that most of the reports were from 2015. He said that he would not place these reports from prison as heightening the risk of LGLH re-offending.
Dr Turnbull was asked about Dr McGrail’s conclusions in her 2015 report for the Court in which she said that LGLH had a “superficial appreciation of the significance of his actions, a sense of entitlement and a lack of empathy with his victim.” Dr Turnbull said that these may have been conclusions to draw at that time and he was not here to say Dr McGrail was wrong, but these were not conclusions he drew when he examined LGLH in December 2020. He said he felt LGLH was ‘reasonably reflective’ about his crime.
Under cross-examination, Dr Turnbull said he did not take Ms Luka’s report very seriously because such organisations can be ‘very advocative’ and he did not consider that the author of the report had any great qualifications to discuss criminal risks. Dr Turnbull said his personal view was that some refugee advocates apply too much support and need to focus on practical life advice. He said that the result was that some refugee former offenders come to see themselves as victims, rather than people able to exercise free will.
In answer to direct questions from the Tribunal Dr Turnbull said that, while he did not have his clinical notes at hand, his recollection was the LGLH told him that the victim was his first main or significant partner. When asked about whether there is a heightened level of offending with what he knows about the Applicant, Dr Turnbull said that the victim was not a stranger, and there had been ‘some sort of relationship there. That is a crucial difference. Offending is not exerted on someone down the street. I don’t think I am looking at a man who has a proclivity towards sexual offending with others.’
APPLYING THE DIRECTION
As discussed above, decision-makers, including the Tribunal, must take guidance from Direction No. 79 because of the provisions of section 499 of the Act.
Primary consideration: Protection of the Australian community (paragraph 13.1)
The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain listed factors, as relevant to the particular circumstances.
(Paragraph 13.1.1(a)) The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously; (Paragraph 13.1.1(b)) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
The principal offence of which LGLH was convicted was a violent, sexual crime. Rape is, intrinsically, a crime of violence as well as a sexual crime, because it involves a personal violation by one person of another without their consent, or reckless as to whether they are consenting. In this case, the circumstances of the offences themselves are stark. They were set out in the sentencing remarks of the Judge (GD, pp 26-26). The circumstances were that LGLH had been in a romantic relationship with the victim since the end of 2013. She ended the relationship in May 2014.
Over three days in June 2014, using friends’ mobile phones, LGLH called the victim 37 times and sent her 74 text messages. He then went to her home. He saw her walking in the street and began following her, attempting to talk to her. She boarded a bus. LGLH got on the bus and then got off when she alighted with friends, and then followed them to the friend’s car. LGLH told her he would stop following her if he got a lift to the local shopping centre. However, at the shopping centre, the Applicant continued to follow the victim. She got into her friend’s car and locked the doors. LGLH stood in the way of the car, but the driver managed to drive away. The following day, LGLH texted and called the victim many times. She did not respond. LGLH went to her house and waited for her. In the Judge’s words:
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 [name redacted] 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.
The police subsequently arrested LGLH. He was remanded in custody for some weeks and then bailed. On the day he was released, a 12-month intervention order was made between LGLH and the victim, which included a condition that he not contact or communicate with the victim by any means. The day after he was released from custody, LGLH 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 Judge said that the messages included threats against the victim so that she would drop the charges, but also stating “I know I done a bad thing to you.”
When initially interviewed, LGLH told the police that the sexual encounter was consensual, that he had used a condom and that he 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 the earlier conduct, outlined above, which founded the conviction for the offence of Stalking.
The Judge said that there were a number of aggravating features in respect of LGLH’s offending. It was, in Her Honour’s words, a “serious example of rape occurring in the context of a breakdown of a relationship and your inability to accept that”. Other aggravating features were that LGLH persistently harassed the victim prior to the rape offence. The offence occurred in her home. The Applicant was well aware the victim was scared, having locked herself in her room, and crying and struggling whilst the rape was taking place. His later conduct indicated an inability to understand the seriousness of the offending. There was, in the Judge’s words, a significant effect on the victim. An extract of the victim’s impact statement was read into the Judge’s remarks.
(Paragraph 13.1.1(c)) – The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.
There is no specific evidence before the Tribunal that this subparagraph of this part of the Direction is relevant.
(Paragraph 13.1.1(d)) – Subject to subparagraph 13.1.1(b), the sentence imposed by the courts for a crime or crimes
The sentencing Judge took into account his plea of guilt which, while not at the earliest opportunity, was indicative of remorse. Her Honour also concluded that LGLH had been, prior to the commission of these offences, of good character. The Judge stated that she took into account the fact that the offender held a temporary visa and there may be immigration consequences for him. The Judge also noted the offender’s age and prospects of rehabilitation, and that if the sentence was for more than three years, he would have to go to an adult prison. The sentence then imposed for the Rape conviction was five years. That is a significant custodial sentence. The sentences for the other offences of which LGLH was convicted were cumulatively three months, to be served concurrently.
Paragraph 13.1.1(e) – The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; Paragraph 13.1.1(f) – the cumulative effect of repeated offending.
LGLH was a first-time offender. LGLH has not offended frequently. His offending conduct is confined to a relatively brief period spanning around three months, including the stalking, the rape, and subsequent breach of orders not to contact, and then the subsequent breach of bail undertakings. While, as set out above, the offending was very serious, there has not been a cumulative effect of repeated offending. However, he did disobey orders of the Court in breaching the Family Violence Intervention Order and in breaching bail. This shows a wilful disregard for the authority of the Court, compounded by the fact that an element of the breach was social media messages to the victim threatening her and asking her to withdraw her allegations. There have been some incidents in prison, but they were relatively isolated and confined to early in LGLH’s time in custody. The Tribunal tends to agree with Dr Turnbull’s view that the nature of a prison environment must be taken into account when looking at prison officers’ reports. However, where there is a consistent level of violence or other offending in prison, that may be an indication of future conduct. That does not seem to me to be present in the case of LGLH.
(Paragraph 13.1.1(g)) – Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There was no evidence before the Tribunal that the Applicant had provided false or misleading information to the Department.
(Paragraph 13.1.1 (h)) Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There was no evidence before the Tribunal that LGLH had been formally warned by the Department. There would be no basis to trigger such a warning as his prior conduct would appear, on the evidence, to have been law-abiding and, up until the offending, the Judge considered that he was of good character.
(Paragraph 13.1.1(i)) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
There was no evidence before the Tribunal of any misconduct in detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Paragraph 13.1.2)
In considering the risk to the Australian community, the Tribunal must have regard, cumulatively, to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further criminal conduct, taking into account available information and evidence on the risk of re-offending.
There was certain inconsistency, as set out in the summary of evidence above, in what LGLH said at this hearing and what Dr McGrail recorded in her report, especially about his previous sexual history prior to committing the main offence of which he was convicted.
Dr McGrail was writing a report, as LGLH said he was aware, that would be presented to the Court and would inform the Judge in conferring sentence. LGLH told Dr McGrail about having his first consensual sexual experience when he was aged 14 but told the Tribunal that was just ‘kissing’. Dr McGrail recorded that he told her that if he has sexual thoughts ‘he usually finds a female to have sex with’ (her words), and later she recorded that he had had approximately 20-30 partners and described himself as a “player” prior to meeting the victim. LGLH said that she misunderstood, and that he meant he knew around 20 girls. I am not convinced about LGLH’s evidence in this respect. It may be that he was showing some braggadocio in detailing his sexual history, and that he was exaggerating, but I am inclined to think that was not the case, because he knew the purpose of the report was to be placed in front of the Judge, and how important it was in terms of the quantum of sentence the Court might impose.
This is not an insignificant matter, because I am required to make an informed assessment of risk of the Applicant re-offending. I consider the evidence of Dr Turnbull that an important factor in the circumstances of the offending was that the victim was not a stranger. This was not an opportunistic crime. There were clearly emotions at play, as well as a desire for sexual gratification, and support for this observation may be found in the victim referring to a fight at Victoria University, in the lead up to the day of the major offence, which she said (and LGLH agreed) developed into a physical altercation.
I give significant weight to Dr Turnbull’s conclusions about LGLH’s risk of recidivism, principally because they are more contemporary. In saying that I echo what Dr Turnbull made clear in his oral evidence: he did not conclude that Dr McGrail’s assessment of risk was wrong, only that it was made at a point in time.
Referring to the earlier risk assessment, Dr Turnbull wrote at page 7 of his report (Exhibit A10):
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 [i.e. 15 December 2020], 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.
After careful consideration of the medical reports, and the oral evidence of Dr Turnbull, the Tribunal adopts this conclusion, that LGLH is a low risk of re-offending. The Tribunal prefers this more contemporary assessment to that of Dr McGrail, conducted some five years ago. While the group of offences were serious, and the main one perhaps the second most serious crime any person can commit, they were contained in a short period of a few weeks. There had been no prior offending or conduct that would pose a question about character, up to that point.
However, there is no doubt that the main offence for which LGLH was convicted, and which he admitted, was very serious. This was not a circumstance where there was any question of whether or not a person had consented to sexual intercourse; plainly the victim had not. The victim, while she knew the perpetrator, was frightened, crying and trying to evade him. That he persisted, uncaring about her feelings or indeed well-being, places the nature of the offence in a particularly bad light. As the Judge said, and as outlined above, there were several aggravating circumstances in the commission of the offence. Even accepting there is a low risk of re-offending, the extent of harm if LGLH did re-offend in this manner, or a similar manner, would be profound. His conduct towards a young woman for whom he previously had romantic feelings was disgraceful and showed a distressing attitude that was completely callous to her wishes and her entitlement to end their romantic relationship. The nature of the harm, to which the Tribunal must have regard under the Direction, is such that even a low risk of re-offending is not a risk that the Tribunal finds can be tolerated.

The Tribunal finds that this primary consideration weighs against the Applicant, and strongly so.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether revocation is in the best interests of any relevant minor child.
The two older siblings of the Applicant, Ms XG and Ms XE, are aged 19 and 18, respectively. Counsel for the Applicant contended that there are five relevant minor children, whose best interests would be affected if LGLH’s visa is not restored. They were identified as the Applicant’s younger siblings, XM, who is 15; XC, who is 11; XE, who is 13 and XA, who is aged 8. Mr Murphy also submitted that LGLH’s nephew, the son of Ms XE, who his mother says is aged 2, is also a child whose best interests should be considered, as – to the extent that the law allows – is the prospective daughter of Ms XE, who is still in utero, but due to be born in the next four months or so.
I stated during the hearing that previous Tribunal members and the Courts have expressed views about how the interests of unborn children should be treated, and while I did not consider such children could be taken into account in this part of the Direction, the fact that a relevant relative or other person connected with an Applicant may be shortly to give birth could, depending on the circumstances, be otherwise relevant to the question of ‘another reason’ under section 501CA(4)(b)(ii) of the Act. I will consider that question further below.
The Direction states that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. There was no evidence before the Tribunal that there were any special circumstances which would single out any of the minor siblings of the Applicant, so I will consider them as a group of four whose best interests are relevantly in common.
There was consistent evidence from the Applicant’s father, Mr XN, his stepfather, Mr XD, and his two older sisters, Ms XG and Ms XE, that LGLH has a good relationship with his younger siblings. Mr XN, in particular, gave evidence about the Applicant helping them with homework, taking them to the library and the park and otherwise sometimes babysitting them when their parents were away. The Applicant’s sister spoke about LGLH playing with them at the prison playground when the family all visited him during his time in gaol.
Counsel for the Applicant relevantly submitted, in his written submissions, at page 8:
The Applicant has played an enduring an important role in his siblings’ lives and maintained consistent and authentic relationships with them throughout the period of his incarceration and detention.
I am satisfied that LGLH has a good brotherly relationship with XM, XC, XE and XA. The Direction states that less weight should generally be given when a relationship is non-parental or when there have been long periods of absence. Certainly, LGLH has been absent from their daily lives for the last six years, which will have some effect, but I am satisfied on the evidence that a regular relationship has been maintained by regular visits, telephone calls and social media contacts.
The Direction requires me to take into account whether other persons already fulfil a parental role in relation to the minor children. That is the case for XM, XC, XE and XA; their mother and stepfather fulfil a conventional role in providing their accommodation, food, clothes and daily necessities. Their father, albeit he now lives in another city, also would appear to have regular contact. Their older sisters, on their evidence, also provide periodic care and support.
While Ms XG said in her evidence she did not think her younger siblings would understand if LGLH was sent to South Sudan, the overall impression from the evidence is that they have a good relationship with their oldest brother and there would be some adverse impact if he is deported from Australia.
The Tribunal determines that it would be in the best interests of XM, XC, XE and XA for the cancellation of LGLH’s visa to be revoked.
Turning to the infant son of Ms XE, she told the Tribunal he is now 2 years of age. He visited the Applicant in prison with his parents when he was about 1 year old. Because of his tender age, he does not yet know his uncle.
The Applicant’s Counsel submitted, in terms of this nephew:
A decision not to revoke the cancellation of the Applicant’s humanitarian visa will deprive his nephew of developing a positive and meaningful relationship with his uncle (G2, p 120). This should be considered in [the] light of his infancy.
Ms XE’s own mother provides the usual parental support to LGLH’s nephew, and the Tribunal determines it would be in the best interests of this son if LGLH were to remain in Australia, however the weight of that particular factor is light, because of the nascency of the contact.
Can the best interests of an unborn child be taken into account in this primary consideration?
Counsel asked me to consider the best interests of Ms XE’s unborn child, who when born will be the niece of LGLH. The Federal Court of Australia considered a contention where an applicant’s partner was pregnant with a child when his visa was cancelled in Kalm v Administrative Appeals Tribunal [2013] FCA 890. Jessup J said, at [8]
…the Direction picks up the definition of “minor” in s 5 of the Act, namely, “a person who is less than 18 years old”. As used in the Act (both in s 5 and elsewhere), the word “minor” is a noun. As used in cl. 11(1)(b) of the Direction, the word is an adjective. However, the sense of the expression “minor children” in the Direction is clear: it means children less than 18 years of age. The word “child” is not defined in the Direction. Neither, at least relevantly to the present question, is it defined in the Act. But it must also be said that none of the many occasions upon which that word is used in the Act could include within its connotation an unborn baby. In my view, on a natural reading of cl. 11(1)(b) of the Direction, the expression “minor children” does not encompass an unborn baby in its mother’s womb, both in the sense that such a biological entity is not a “child” in normal parlance and, to pick up the definition of “minor” in the Act and the Direction, in the sense that it is not a “person”.
His Honour’s reasoning in this respect is also reflected in the more recent judgment of Jackson J in JNMK v Minister for Home Affairs and Another (2019) 168 ALD 206, at [26].
Although Jessup J was referring to an earlier version of the Direction, the wording of paragraph 13.2 in Direction No. 79 is relevantly the same. The Tribunal cannot take into account the best interests of the unborn child of LGLH’s sister in this primary consideration because a child in utero is not a ‘minor child’ in terms of the Act or the Direction. In addition, it could be unduly speculative to attempt to divine what is in the best interests of a child when that child is yet unborn.
However, the pregnancy of Ms XE may well be a factor that the Tribunal can take into account in a general sense, because in this consideration I am not constrained only to take into account the considerations stipulated in the Direction; any other matter that is contended and which the Tribunal considers is relevant to the purpose of the Act can be taken into account in considering the question of whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the original decision should be revoked.
The Tribunal finds, mainly because of the evidence relating to LGLH’s relationship with his four youngest siblings, that this primary consideration weighs in favour of revoking the mandatory cancellation of his visa, but the weight is tempered by the fact that others perform a parental role in their lives.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
An earlier and now superseded version of the Direction (Direction No. 65) contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority of the Court found that this part of the Direction expresses a ‘norm’.
The Court decided that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or evaluations that a decision-maker may derive by some other process.
Charlesworth J stated at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further, it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.
In a separate judgment, Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(1)non-citizens will obey Australian laws when in Australia;
(2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(3)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
His Honour said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances.
On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
Mr Murphy submitted that the nature of the main offence of which LGLH was convicted should not ‘foreclose’ the question in regard to revocation of the mandatory cancellation. The Tribunal agrees with that submission. Neither the Act nor the Direction stipulate offences which automatically act to cancel a person’s visa. However, Section 1 of the Direction sets out the Principles at paragraph 6.3, which relevantly include, at 6.3(3):
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
The Tribunal’s considered view is that the main offence of which LGLH has been convicted, being a violent sexual offence against a woman, falls squarely within the scope contemplated by this Principle. I believe that a properly informed and objective member of the Australian community would not expect LGLH to continue to hold a visa to remain in Australia.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively strongly so.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
Counsel for the Applicant asserted that LGLH is a person with respect of whom Australia owes non-refoulement obligations but did not in its written submissions expand upon that contention, particularised to the Applicant himself. LGLH’s legal representatives attached an annexure to their written submissions which, while addressed the circumstances of persons being returned to South Sudan, did not once mention the Applicant by name. It concerns the Tribunal that this annexure has the quality of being a ‘boilerplate’, rather than presenting arguments tailored specifically to the personal circumstances of LGLH himself. In any event, the Tribunal will consider the submissions contained in this document.
It was contended that LGLH has a well-founded fear of persecution upon return to South Sudan ‘due to the political opinion that will be imputed to him on account of his Dinka ethnicity’. The Tribunal notes, first, that the current Government of South Sudan is Dinka-led, and Juba as the capital has a significant Dinka population. The submissions state that LGLH is ‘at risk of death or directed violence if returned to South Sudan’. During the hearing, the concentration of the Applicant when asked about his feelings about being sent to South Sudan was about not knowing anyone there and having what the Tribunal considers are legitimate concerns about future employment and financially supporting himself. It is noted that the Applicant’s mother was in South Sudan at the time of the hearing (which prevented her giving oral evidence) and had voluntarily gone there to visit her mother in Wau and was staying, apparently, with her sister in Juba, making arrangements to return to Australia. Comments were made by other witnesses that they were aware she was keen to leave, but it seemed to me this was a combination of the uncertainty of the pandemic as well as unsettling aspects of the local situation. It was not contended by anyone that she was in fear of harm.
The second contention made in the annexure is that LGLH is at risk of serious and significant harm as a returnee from a Western country and ‘as a person therefore perceived to be wealthy’. It went on to contend: “He would be easily identifiable as returnee from a Western country by his inability to fluently speak the local languages, and his ability to speak English.” For reasons which are expanded upon later in these reasons and consistent with the oral evidence of LGLH himself, he speaks English (the official language of South Sudan), some Sudanese Arabic, and Dinka, and is relatively fluent, if not completely so, in the last of these.
The annexure refers to Department of Foreign Affairs and Trade travel advice in relation to South Sudan and to a curfew imposed by the South Sudanese authorities in order to enforce coronavirus social distancing, and submits that there are ‘reports of violent threats against UN personnel on social media and an increase in anti-foreigner sentiment’ due, it is said, to the COVID-19 pandemic. The Tribunal considers that this is a special factor that may potentially increase the potential of harm to LGLH, as someone newly arrived from abroad.
The annexure discusses the situation regarding mental health services in South Sudan. The most contemporary evidence in relation to LGLH is that given by Dr Turnbull at page 6 of his report (Exhibit A10):
He is not a sufferer of nightmares or flashbacks, and clear post-traumatic features were not present. He maintains reasonable physical health and exercise, and I did not elicit features of a Major Depressive Disorder. Intellectually, his use of vocabulary in sentence structure was consistent with someone who was at least average intelligence. I have not formally neuropsychologically tested him, but I doubt he has any clear intellectual deficiencies.
There is some worry about his current state, there is a bit of a sense of futility, and he is concerned about deportation. Despite those concerns and worries, he has maintained some plans for his future and has not entirely abandoned hope.

And at page 7:
What I can say, is that he is free of any intellectual impairment, he does not suffer an obvious major psychiatric illness…
And at page 9:
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 is finding goals.
Dr Turnbull did conclude that, should LGLH stay in prolonged detention, “there is a not insignificant risk of a more obvious psychiatric deterioration”. Dr Turnbull in his oral evidence at the hearing said his opinion was that LGLH does not have a major mental illness and does not need psychological or psychiatric treatment.
While the Tribunal concludes that some of the contents of the annexure are generic, there are some characteristics of LGLH, having spent the majority of his school years in Australia and, while being able to speak, to some extent, three of the locally used languages, could mark him out as a newcomer, noting especially that the Applicant has never lived in Juba or anywhere in what is now South Sudan.
The DFAT Country Information Report (CIR) on South Sudan of October 2016, at paragraph 2.31, remarks:
While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and more broadly).
LGLH is of Dinka ethnicity. The CIR also states, at paragraph 3.7:
Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba. [Emphasis added].
The UN Special Rapporteur on South Sudan has recently reported sporadic conflicts across the country and in the more remote parts, and a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community.
During the hearing Mr Cunynghame reiterated the Respondent’s written submissions which note that LGLH can apply for a protection visa, which has not yet done. He still has such an opportunity and, by consistent submissions on government policy that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered, LGLH would not be removed from Australia. The consideration of such an application would allow expansion of any claims that LGLH might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered. The Tribunal notes that the Minister issued a different direction under section 499, Direction No. 75, on 6 September 2017 and that Direction No. 75 provides that a decision-maker must first assess an applicant’s refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
Although the Applicant’s mother has travelled to South Sudan and been there for several months apparently without incident, LGLH is a young male and if he is returned would be seeking out work and accommodation on a permanent basis. I am satisfied that this might raise the risk of LGLH being specifically targeted as a newcomer, by persons who might want to do him harm, and it is a risk that I find is not fanciful or remote,
The Tribunal finds that this consideration weighs, on balance, in favour of the Applicant.
Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether he or she arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community.
Regard must also be had for the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents or people with an indefinite right to remain in Australia, including the effect on the non-citizen’s immediate family of non-revocation.
The Respondent conceded that LGLH has family ties with Australia, including his parents, siblings, uncles, aunts and cousins, and that he has provided witness statements from his mother and siblings attesting to the strength of the relationship with LGLH. The Tribunal notes that of the family members who gave evidence – the Applicant’s father, two sisters, stepfather and cousin, all were consistent in their view that the deportation of LGLH would have a significant effect on them and, to the extent that they could speak for them, on his mother and younger siblings and nephew.
LGLH did not start offending soon after he arrived in Australia. He attended school in Australia and by all accounts was a good student, and enjoyed participating in sport, particularly soccer.
It could not be said that LGLH has spent time contributing positively to the Australian community, but the facts are that he was a student for the bulk of his time in Australia until his arrest. He had begun to learn a trade, and he had become involved in sport. His contribution to the community was similar to other young people in the community of his age, up until he committed the crimes. The Respondent conceded that the Applicant has provided some evidence of volunteering in Australia, and the Tribunal notes that LGLH had provided a mentor role to other prisoners.
LGLH has strong family links with his parents, stepfather, six siblings, nephew and at least one cousin in Sydney. The Tribunal noted that all of those people named regularly visited him when he was in custody, and the evidence was that his father and cousin frequently travelled from Sydney to Victoria to see him in prison. There is no doubt in the Tribunal’s mind that LGLH is a member of a relatively strong family unit. Each of the witnesses who gave evidence expressed concern at LGLH being deported, and the effect it would have on them.
While it is not explicitly referred to in this part of the Direction, the Tribunal notes the Applicant’s sister is due to have her second child relatively soon, and it is clear from her taking her infant son to see LGLH in prison and from her evidence at the hearing that she would also want this new baby (which she advised is a girl) to know her uncle.
Overall, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively strongly.
Impact on Australian business interests (paragraph 14.3)
The Direction requires the Tribunal to take into account the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia. There was no submission from the parties that this was relevant in the case of LGLH.
The Tribunal finds that this consideration, not being relevant in the circumstances, weighs neutrally.
Impact on victims (paragraph 14.4)
The Tribunal is required to take into account the impact of a decision not to revoke on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal interprets this as meaning that information must be before it that a victim of the Applicant’s offending must (a) know of the Applicant’s immigration status and (b) must have expressed a view on whether LGLH should retain a visa. The victim impact statement referred to by the sentencing Judge is not relevant here, because it was not written with the author having knowledge, or having apparent knowledge, that there could be an immigration implication in relation to LGLH. The Tribunal therefore finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that LGLH may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health; any substantial language or cultural barriers; and any social, medical and/or economic support available to him in the Republic of South Sudan.
LGLH is aged 26 and the evidence is that he is in good health. Dr Turnbull in his evidence said that the Applicant was not in need of either psychological or psychiatric counselling. In respect of any substantial language barriers he may face if deported to South Sudan, the Applicant’s evidence at the hearing was that ‘half’ of his understanding of Sudanese Arabic is gone, but that he understands ‘basic bits’. In terms of his ability with Dinka language, there was somewhat competing evidence. LGLH said in his evidence that he understands basic terms but could not respond, but then said that he spoke Dinka to his father, Mr XN, but ‘mixed it up’ with English. Mr XB, his stepfather, told the Tribunal that when he speaks to LGLH he speaks in Dinka and confirmed that the Applicant can speak it, and agreed in the term of the question put to him, ‘confidently’. He said that he prefers to speak Dinka to LGLH because of his own lack of proficiency in English. Mr XD then added that LGLH could not speak ‘as fluently as anyone in South Sudan because he came here when young’.
The Applicant’s father said that he speaks to his son in both English and Dinka. He told the Tribunal that LGLH spoke Dinka ‘fluently’ when he first came to Australia, but that he speaks more English now. Mr XN said that when he visited the Applicant in prison, he spoke to him in Dinka, but that Mr XD interpreted the occasional word in English if LGLH had difficulty understanding.
My conclusion in regard to all this evidence is that LGLH has a good working knowledge of Dinka. I accept that his proficiency in that language has receded since he has been in Australia, has been educated here and has used English more. I consider that, while his Dinka may be rusty, he would be able to make himself understood with other Dinka speakers and would be able to understand Dinka spoken to him, and to a lesser extent, Sudanese Arabic. I also note the Respondent’s submission that the official language in South Sudan is English. I find that there would not be significant language barriers facing LGLH if deported to South Sudan. There may be some cultural barriers because of the large period of time LGLH has spent in Australia; I accept that he would be unfamiliar with the local cultural landscape.
The Tribunal accepts the submissions of the Applicant that he would not have the support he has in Australia in South Sudan. While there was evidence before the Tribunal of an elderly maternal grandmother and aunts, and one uncle who has, on the evidence of Mr XN, a mental health condition, I am not confident that there is firm evidence that any of these people would be able to give LGLH assistance, and certainly no evidence that they could provide financial assistance or accommodation.
I note the Applicant’s evidence that he has undertaken some courses while in prison, and that he had commenced a bricklaying pre-apprenticeship course before being arrested. It would seem to me that, with a good education and certain skills, and with the innate intelligence that was apparent to the Tribunal during his evidence, LGLH would be somewhat equipped to procure employment in the construction or other field in Juba.
While it is objectively clear that the social security and health care systems in South Sudan and Australia are not comparable, the yardstick required by the wording of this part of the Direction is a comparison with what is available to other citizens of South Sudan, not what is available in this country. An impediment may arise if an applicant had a particular medical or other special need which was not available in the country of reference, but LGLH is in good health, so that is not a relevant factor here.
Because the Tribunal has not been apprised of any particular economic support that would be available to LGLH in South Sudan and because of his unfamiliarity with the locale, I conclude that this consideration weighs slightly in favour of revoking the mandatory cancellation of LGLH’s visa.
CONCLUSION
The Tribunal has weighed all the considerations in this matter. As mentioned above, the Tribunal is not confined only to those matters directed to it by section 499(2A) of the Act, which are contained in the Direction and which it must take into account, but can also take into account any other matter consistent with the purpose of the Act.
In this matter two of the three primary considerations, those relating to the protection of the community and the expectations of the community, weigh heavily against the Applicant, because of the nature and circumstances of the crimes he committed. The other primary consideration in relation to the best interests of relevant minor children affected by the decision goes in his favour, but the weight of that is diluted because he does not perform a parental role in relation to any of the children concerned. In the other considerations, the Tribunal has found that those relating to international non-refoulement considerations weighs in favour of revoking the mandatory cancellation of the visa, as does the consideration relating to the strength, nature and duration of ties. The consideration relation to the extent of impediments if removed weighs in his favour, but lightly. The two other considerations at paragraph 14(1)(c) and (d) are not relevant.
After carefully considering this matter, the Tribunal finds that the weight of the two primary considerations against revoking the mandatory cancellation of the visa is determinative. LGLH committed a particularly serious crime against a woman, in aggravating circumstances. In so doing he triggered the cancellation of his visa and the Tribunal finds that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened in this case.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 10 February 2021

Dates of hearing: 28 and 29 January 2021

Counsel for the Applicant: Mr Julian R. Murphy

Solicitors for the Applicant: Refugee Legal & Immigration Legal Centre Inc

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore

Dates of hearing:	28 and 29 January 2021
Counsel for the Applicant:	Mr Julian R. Murphy
Solicitors for the Applicant:	Refugee Legal & Immigration Legal Centre Inc
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore