LGNC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2282
•31 July 2023
LGNC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2282 (31 July 2023)
Division: GENERAL DIVISION
File Number: 2023/3288
Re:LGNC
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:31 July 2023
Place:Sydney
The reviewable decision is set aside and the decision is made that there is another reason to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
.................................[SGD].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – family violence – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on victims – reviewable decision set aside
LEGISLATION
Migration Act 1958 (Cth)
Nationality Act 2011 (South Sudan)
National Disability Insurance Scheme Act 2013 (Cth)
Nationality Act 1994 (Sudan)
CASES
Bugmy v The Queen (2013) 249 CLR 571
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Do and Minister for Immigration and Border Protection [2016] AATA 390
ECE21 v Minister for Home Affairs [2023] FCAFC 52
FTYC and Minister for Immigration and Border Protection [2018] AATA 20
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VXKK and Minister for Home Affairs [2018] AATA 3268
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
31 July 2023
Introduction
The Applicant, LGNC, was born in Sudan in October 1991. He arrived in Australia from a refugee camp in Kenya on 7 September 2005 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (visa).
On 17 May 2021, the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) because:
(i)he did not pass the character test because he had a substantial criminal record (section 501(6)(a) of the Act) because
(ii)he had been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c) of the Act), and
(iii)he was serving a sentence of imprisonment on a full-time basis for an offence against a law of a State.
The Applicant sought to have that decision revoked pursuant to Section 501CA(4) of the Act.
On or about 11 April 2022, the Applicant was released on parole and transferred to immigration detention.
On 8 May 2023, the delegate of the Minister decided not to revoke the cancellation of the visa. That is the reviewable decision before the Tribunal.
Issues
That the Applicant does not pass the character test is not in dispute.
The issue to be decided is whether there is another reason why the cancellation decision should be revoked under section 501(CA)(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act.
The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct the applicant has engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The decision-maker must also take into account the “other considerations” set out in Direction 99 where they are relevant. Those considerations include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[1]
Primary considerations
[1] Paragraph 7(1) and (2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community, should the non-citizen commit further offences.
The nature and seriousness of the non-citizen’s conduct to date
The following table is based on the table in the Applicant’s Submissions in Reply dated 14 July 2023. It sets out the Applicant’s offending history. The dates on which some offences were committed are not before the Tribunal. Where they are known, they have been added to the Applicant’s table.
Jurisdiction
Sentence Date
Charge
Result
Summary
(Local Ct)24/01/2011 · Use offensive language
· Spit in public area
· s 10 discharged no conviction, bond 6m, $79 fine (indicative sentences unclear)
· Resist officer T2 · s 10 discharged no conviction Summary 21/09/2011 · x3 failure to appear
· Resist officer T2
· Use offensive language
· Refuse to comply w. police direction
· s 10A conviction with no penalty · Assault occasioning ABH in company T2
· Affray T1
· s 9 good behaviour bond 4y Indictable (District Ct) 14/12/2011 · Assault with intent to rob in company – SI · Non-parole 6m (total 18m) Summary 19/12/2011 · Affray T1 · Non-parole 6m (total 12m) Summary 16/01/2012 · Destroy damage property <=$2000 T2 · Head sentence:
Non-parole 5m (total 7m)
· Indicative 1m · Armed w/ intent to commit offence T1 · Indicative 7m Summary 21/08/2013 · Resist officer
· Fail to leave premises
· s 10A conviction with no penalty · Assault occasioning ABH T2 · Head sentence:
Non-parole (on appeal) 4m
(total 8m)· Indicative 8m · x2 assault officer T2 · Indicative 2m · Stalk T2 · Indicative 2m Summary 21/01/2014 · Drive with low-range PCA · $500 fine, disqualified 6m Summary 10/05/2017 · Possess prohibited drug · $400 fine, good behaviour bond for 12 m Summary 19/06/2017 · Drive during qualification period · s 10 discharged no conviction, bond 12m · Assault occasioning ABH T2 · s 12 fully suspended sentence 12m Summary 05/06/2019 · Drive, licence suspended · $800 fine, disqualified 1m Summary 17/06/2019 · Resist officer T2
· Destroy/damage property <=$2000 T2
· Head sentence:
Community correction order 15m
(indicative sentences unclear)Summary 27/08/2019
(ACT)· x2 minor theft, $2k or less · Head sentence:
s 20(1)(A) convicted without penalty, good behaviour 6m (indicative sentences unclear)
Summary 02/09/2019 · Drive, license suspended
· $300 fine · Drive, middle range PCA
· Exceed speed >10km
· Head sentence:
Community correction order 12m; disqualified 3m (indicative sentences unclear)
Summary 18/09/2019 · Contravene AVO · $200 fine, community correction order 12m Summary 13/01/2021 · Possess prohibited drug · s 10A conviction with no other penalty · Custody of knife in public · $500 fine · Destroy/damage property $2k or less T2
· Resist officer
· Contravene AVO
· Destroy/damage property
· Head sentence: 5m
(allocation of indicative sentences unclear: 2m, 2m, 3m, 3m)
Summary 28/04/2021 · Possess prohibited drug · s10A conviction with no other penalty Indictable 06/04/2022 · Robbery T1 · Non-parole 1y 3m (total 2y 6m) · Steal <=$2000 T2 · Community correction order 2y Summary 25/07/2022 · Obtain financial advantage by deception T1 · s 10A conviction with no other penalty; compensation $950
The cancellation decision was made on 17 May 2021 because of the 18 month sentence to imprisonment imposed on 14 December 2011 for the Assault with intent to rob in company offence. When the cancellation decision was made, the Applicant was again in prison following the sentence of five months’ imprisonment imposed on 13 January 2021. He was also on remand from 12 January 2021 in relation to the robbery offence for which he was sentenced on 6 April 2022.
The Applicant has a lengthy and extensive criminal record, from 2011 to 2013 and then from 2017 to about January 2021. Thereafter he was in prison until about 11 April 2022 when he was transferred to immigration detention where he remains. The range of his offending is apparent from the above table.
He has committed offences which are considered very serious, involving violence, including against women, that is, against his sister-in-law, and family violence, that is, against the mother of three of his children (M).
The offence against his sister-in-law took place on 26 May 2011 at 12am. The Applicant attended her home while intoxicated, apparently to farewell his brother and nephew. He did not leave when asked to and woke up his nephew. In self-defence, the victim had taken a knife and thrown it in the direction of the Applicant who responded by taking a large kitchen knife, grabbing her around the throat at the same time, raising his arm holding the knife and stating, ‘I am going to kill you’. A friend pulled him away from the victim and the Applicant left. He was sentenced on 16 January 2012 to seven months imprisonment with a non-parole period of five months.
He has committed crimes that are considered serious against police.
Within 12 months of beginning offending in January 2011, he had been sentenced to imprisonment on four occasions, ranging from 1 month to 18 months. He was sentenced to terms of imprisonment in 2013 for four offences. Imprisonment is the last resort in the sentencing hierarchy. That he was sentenced to imprisonment so early in his criminal offending and so often, shows how serious his offending then was.
The Applicant pointed out that all but two of the Applicant’s proceedings were dealt with in the summary jurisdiction which reflected that the offences were on the lowest end of seriousness for its crime type. That may be, but the sentences of imprisonment reflect the seriousness of the offences regardless of which jurisdiction heard the proceedings.
The Applicant’s proposition reinforces a finding that the Applicant’s offending from 2017 to 2021 increased in frequency and seriousness, culminating in his imprisonment for robbery for two and a half years with a non-parole period of one year and three months. The sentencing judge in the District Court said:
The offender used threats of violence to a young woman who was working the late shift at the service station. She was in a position of vulnerability and would have undoubtedly been extremely frightened of what might happen to her. She was left with little choice but to comply with the offender’s demands.
This matter also falls towards the lower end of the scale of seriousness for offences of that kind and certainly below the midrange but by no means at the lowest end, particularly given those threats of violence.
The robbery was committed even after the offender was aware the police had questioned him for the first matter and within two weeks of that occurring. Both the incidents were brash, thoughtless and frightening.
The first matter was stealing a man’s wallet.
The Respondent Minister relied on the Department writing to the Applicant on two separate occasions about the potential consequences of any further offending on his migration status.
The first was Notice of Intention to Consider Cancellation of Visa dated 5 March 2012 and addressed to the Applicant at a correctional centre.
The Applicant accepted that on 5 June 2012 he had signed an acknowledgement that he had received the undated Notice of decision not to cancel a visa under subsection 501 of the Migration Act 1958 which included that he understood that he can again be considered for refusal or cancellation of any visa if further relevant information came to the Department’s attention in the future and his past conduct and previous information can be reconsidered. His signature was his first name handwritten in printing.
On 3 July 2014, the Department wrote to the Applicant in a correctional facility to advise him that the decision had been made not to cancel his visa, that the decision was ‘a very narrow one on this occasion’ but warning him of the consequences of further offending:
"[the Applicant]’s criminal conduct was considered very seriously and he needs to be aware that a decision not to cancel his visa was a very narrow one on this occasion. If [the Applicant] wishes to remain in Australia and maintain a relationship with his son (and expected child), he is urged to address his personal issues and commit to a reformed life free of crime. [the Applicant] should understand that his traumatic past and arrival as a refugee in no way excuses his persistent violent behaviour. If he offends again, visa cancellation is a very real prospect and he should not expect further reprieve."
The letter stated that it had notified him on 11 April 2014 that his visa may be liable to cancellation under section 501 of the Act on character grounds.
There is a signed acknowledgement but the Applicant did not accept that he had signed it. The signature is in running writing and indecipherable. His counsel pointed out that at that time he was not in a correctional facility.
The Applicant was involved in the first consideration of cancelling his visa. I infer that a legal centre provided information to the Department on his instructions. I am not persuaded to what extent or if at all he was aware of the 2014 consideration or the decision not to cancel his visa. The 2012 notification was before the 2018 brain injury. Having avoided cancellation of his visa, he continued to offend.
While accepting that his offending is serious, the Applicant submitted that it should be considered within the context of his background and his health conditions. The submission referred to the chapter on ‘Refugee Background’ in the Bugmy Bar Book, an evidence-based resource utilised in NSW courts ‘to promote greater understanding of certain vulnerable cohorts of defendants’ within the legal profession and judiciary and the impact sentencing may have on those cohorts. It applies the principles outlined by the High Court in Bugmy v The Queen (2013) 249 CLR 571.
The Applicant referred to the sentencing judge’s remarks in relation to the 2022 convictions for stealing and robbery which took into account the Applicant’s refugee history and brain injury in sentencing and submitted that the Tribunal should also consider those matters in assessing the nature and seriousness of the Applicant’s conduct, with the consequence that this consideration should not weigh heavily against revocation of the cancellation decision.
I agree with the Respondent’s position that the Applicant’s submission is not consonant with what Direction 99 requires in relation to this consideration. I must have regard to the matters set out in paragraph 8.1.1, which includes the sentence imposed by the court, with the exception, relevantly, of violent crimes against women and acts of family violence.
My task is to take the resulting sentence into account where that is relevant. In this case, according to the Applicant, the sentencing judge in relation to the 2022 convictions for stealing and robbery has acted in accordance with the principles in Bugmy.
The risk to the Australian community should the non-citizen commit further offences
Before considering the risk of the Applicant’s reoffending in detail it is relevant to note the following salient facts.
During the hearing, the Applicant claimed that he did not know the people he called his Australian parents were not his actual parents until he was about 12 years old when someone told him that his mother had died when he was two years old. He said that he knew his father while he was in Sudan but not that he was his father. His father worked for the government in Khartoum and had a family there. He visited the village where the Applicant lived with his Australian mother. When his father died in Sudan in 2010, the Applicant was very upset because he had not had the chance to go to meet and talk to him. This led to his offending.
The Applicant’s relationship with M broke up sometime between the end of 2017 and before he suffered a severe traumatic brain injury on 23 October 2018 when he was attacked by about 10 people.
I will refer to the three children of the Applicant and M as Child 1, Child 2, and Child 3. The Applicant has a fourth child (Child 4) who was born in July 2018. It was the fact that the Applicant had fathered a child with another woman that caused the breakdown of his relationship with M.
The stability and support he benefited from during his relationship with M are reflected in there being no convictions for almost the four years that relationship endured. Absent such support, his offending has been serious. Paragraph 8.1.2(1) of Direction 99 states that the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Considering the Applicant’s history of offending, the potential harm, physical or otherwise, that would be caused if the Applicant committed further offences is serious.
Just before or just after his brain injury in October 2018, the Applicant began using the drug crystal methamphetamine (ice). He stopped using it while in prison from January 2021 until December 2022 when he resumed using it while in immigration detention. Drugs were too expensive in prison. They were much cheaper in immigration detention and readily available. He said that he started to use ice again because it was Christmas time, he missed his children and was under the stress of being in detention. He ceased using it in February 2023. He asked himself the question will he end up robbing someone? He would rather be sober while in immigration detention. It will be hard to be sober outside. He slept while the dealers were active and got up when they were asleep. He realised the effect drugs and alcohol had on him while he was in prison. He repeatedly said that he had used drugs and alcohol to numb the pain.
The Applicant claims that he is a good person and that all his offences have involved drugs or alcohol.
Dr McSwiggan, consultant neuropsychologist, wrote a pre-sentencing report dated 24 February 2022. She recorded the Applicant as having a ‘long history of daily Cannabis and hazardous Alcohol Use’ in addition to a more recent methamphetamine addiction in the year leading up to his arrest. The Applicant told Dr McSwiggan that he had not been able to access stimulants for the then 13 months he had been in custody, and ‘admitted to concerns around relapsing on his return to the community’.
Dr McSwiggan made the following comments about the Applicant’s brain injury, referring to medical records. He sustained permanent damage to the frontal lobe area of his brain as a result of his injury in 2018, generally resulting in ‘impairments in judgment, impulse/self-control and emotional regulation’. In her opinion, those impairments contributed to his offending, but were ‘challenging to reliably measure’ in the Applicant’s case, beyond that he presented as someone who was not ‘grossly behaviourally impaired’.
Relevantly, the sentencing judge in relation to the stealing and robbery charges took those impairments into account but noted ‘however that he was offending in similar ways prior to that injury and so there is a limit to which it has contributed to the commission of these offences’.
Dr Stevens, clinical and forensic psychologist, prepared a mental health assessment dated 25 June 2023. He reported that the Applicant was born in North Sudan. He was sexually assaulted by an older cousin between the ages of 7 and 14. Dr Stevens wrote:
[the Applicant] has some strengths. While he has little formal education, he has managed periods of employment since coming to Australia. He has a reasonable understanding and ability to communicate in English (after studying three years at TAFE).
The Applicant relies on Dr Stevens’ report to support the following propositions. The Applicant has demonstrated that he has insights into his offending and is motivated to rehabilitate. He takes responsibility for his criminal actions. He told Dr Stevens that counselling has helped him and he has grown up. He is motivated to care for his children and be involved in their lives as they grow up. The extended period of incarceration has woken him up. He is taking his medications.
Dr Stevens referred to the Applicant’s unstable and traumatic childhood, fleeing as a refugee, and the early death of his mother when he was two. He diagnosed PTSD (moderate) and Major Depressive Disorder (moderate to severe). The Applicant has been suicidal at times and has self-medicated, initially with alcohol, then cannabis and finally ice.
The Applicant submitted that he has a lower chance of reoffending because of the now two years and six months that he has spent in prison and immigration detention and has achieved some rehabilitation. He also claimed having the support of family and friends in Australia.
While in immigration detention, he has participated in programs about anger management, drug and alcohol, and domestic violence. He has the support of his four children and their mothers. A cousin has offered him work opportunities. He has the assistance of a Mr M from a not-for profit organisation in Sydney which supports offenders from Africa to re-enter the community, and another not for profit organisation in a regional centre in NSW which has offered assistance to apply to the National Disability Insurance Scheme (NDIS), which the Applicant has applied to without success in June 2019 because he did not provide sufficient information. A further application was made in February 2023. However, while his visa is revoked, he will not satisfy the residential criteria for the NDIS.[2]
[2] National Disability Insurance Scheme Act 2013 (Cth) section 23(1).
The Applicant emphasised the importance of the NDIS because of his brain injury and the fact that for some reason he was unable to complete outpatient rehabilitation when he was released from hospital in 2018 and he may be able to access ‘reasonable and necessary support’. If the visa cancellation decision was revoked, he would be eligible to apply for assistance through the NDIS.
Mr M gave evidence. I accept that he has provided support to the Applicant in recent times through more than 20 telephone calls. However, I do not accept the Applicant’s contention that Mr M will provide ongoing support. The role of his organisation is to connect individuals to Centrelink for income, to find housing and employment and connect the person to a community mentor. I accept that there is follow up such as with an employer. An aspect of such follow up is to protect the reputation of the organisation. Poor behaviour by someone they have supported would not reflect well on the organisation. Mr M’s role is not one of long-term friendship.
Mr M and Mr O will assist the Applicant to enter non-residential alcohol and drug treatment and residential rehabilitation programs. The Applicant has expressed a strong desire to undertake a six month residential rehabilitation program.
The Applicant gave evidence of re-engaging with religious observance in prison and immigration detention.
Whether he will be able to access and complete the necessary drug and alcohol residential rehabilitation is uncertain. The Applicant has experienced long term imprisonment and immigration detention and absence from his children with the threat of permanent removal from seeing them in person. Those are strong motivations not to reoffend. He did manage to stop using ice in February this year after resuming use in December 2022. The Applicant is untested in the community. He is aware that it will be very hard.
I accept Dr Stevens’ opinion:
[The Applicant] has a very poor history of offending. I believe that he has a chance to live in a more prosocial way, but this will depend upon a complete and lasting recovery from recreational drug use. He appears to be highly motivated to live a responsible life for the sake of his four children in Australia. However, if he reverts to alcohol and drug abuse, it is almost certain that he will reoffend.
The protection of the Australian community weighs strongly against revocation of the mandatory decision to revoke his visa.
Family violence
The Applicant has committed family violence against M, the mother of three of his children. Those offences were:
(a)assault occasioning actual bodily harm in November 2016 which involved the Applicant grabbing (M’s) arm and head-butting her head with a "moderate amount of force" (at which time she was 16 weeks pregnant, with another three year old child in the home);
(b)contravening the prohibitions of an ADVO on two occasions in 2019 by refusing to leave her residence, acting erratically and aggressively, and intentionally causing damage to property by kicking an air conditioner out of the front window, snapping the wood off the veranda roof, and smashing a beer bottle on the veranda; and
(c)a further "flagrant" ADVO contravention and destruction of property offence before the court in 2021, where the Applicant "clearly was told to go away...and then was banging so vigorously on the window of the victim that he broke the pane of the glass”.
The Applicant acknowledged the first offence was the more objectively serious and sought to rely on M ‘to put context’ around it. She claimed that the events were not as serious as found by the magistrate, supported the Applicant through those proceedings, and continues to support him in view of the best interests of their children.
The magistrate made findings of fact constituting the offence. It is not my role to go behind those findings.
I accept the Applicant’s submission that the offences that occurred after the brain injury were of lower level of objective seriousness.
The Applicant has disregarded the law and safety and property of others. During the later incident he told police that he was above the law and did not care about breaching the ADVO. That is consistent with his evidence at the hearing that he formerly believed that the police were out to get him and it was not really his fault.
He repeated during the hearing many times in relation to his various offences that he was very regretful and ashamed of his actions. He has expressed similar sentiments before judges during sentencing. There are many references in the evidence to the various programs he was supposed to be engaging in as part of sentencing, including with a brain clinic in a regional centre. There was little evidence to suggest that he actually did so, which is consistent with him having no insight into his offending at that time.
As set out in relation to the risk of reoffending, the Applicant has participated in some programs while in immigration detention.
This consideration weighs against revocation of the visa cancellation.
The strength, nature and duration of ties to Australia
The Applicant arrived in Australia before his 14th birthday and has lived here for nearly 20 years. The Respondent accepted that alone merits considerable weight in favour of revocation.
He attended school and TAFE, has contributed positively to the Australian community through his employment from about 2010 to 2018, but not after he suffered the brain injury and beginning to use ice. He began using ice just before or after his brain injury.
The Applicant’s strongest ties to Australian citizens are with his four children, as amplified below in relation to the consideration best interests of minor children.
He has the support of M and the mother of Child 4. Both women support the Applicant because they believe that is important to their children that the Applicant remains in Australia. I agree.
Having heard his evidence, I am not persuaded that he has any other close ties to Australian citizens or people who have a right to remain in Australia or social links generally with Australian citizens. It seems to me that has been one of the difficulties he has faced. His links with other people in the regional city where his children and their mothers live are negative. I infer that the reason he plans to stay in Sydney is because he fears being attacked again and also wants to avoid his former friendship group who engaged in drug and alcohol use. He really has little engagement with his relatives in Australia. He had some engagement with the person he describes as his uncle, who has recently suffered a brain injury, and his wife. His brother does not want to speak to him. He is not close to his Australian mother who is currently in hospital. Although she cared for him and about five other children from when he was two years old, there seems to have been no affection between them. He expressed resentment towards some members of his extended family in Australia. Other individuals have provided indications of support for him at different times, but the associations seem to have been short-lived, for example a fellow inmate in 2021.
This consideration weighs in favour of revocation.
Best interests of minor children add letters from the three children
If the Applicant returns to Africa, he may continue to contact his four children by digital means, subject to having the financial means to do so.
Child 1 was born in December 2012. He is not the Applicant’s biological child. Child 1 does not know that and both the Applicant and M do not want him to know because that information may harm him. I accept that the Applicant has treated Child 1 as his own child and has not treated him any differently from his two biological children with M.
Child 2 was born in January 2015 and Child 3 was born in May 2017.
The Applicant lived with M and the three children until sometime between the end of 2017 and 2018. Thereafter, he visited every afternoon after work until he was arrested in January 2021. He telephoned them once a week while he was in prison because of his limited access to telephone calls. Since he has been in immigration detention, he has spoken to them every day. One page letters from each of the three children to their father expressing affection for him were in evidence.
I am satisfied that the Applicant has a close on-going relationship with Child 1, Child 2 and Child 3. He has played a very active parental role in their lives until he was taken into custody in January 2021. If he is released into the community, he will live several hundred kilometres from them. He plans to visit them, and them to visit him.
The primary parental role in the lives of the three children is played by M and will be in the future, whether or not the Applicant remains in Australia. She has a new partner who has two children of his own who visit M and her three children during school holidays. M’s new relationship began in 2019. She and her new partner live separately, however, he is involved in the lives of M and three children. M emphasised that while the children love her new partner, he is not their father.
Child 4 was born in July 2018. The Applicant has never lived with Child 4. There was some dispute between the parties as to the Applicant’s involvement in Child 4’s life.
The mother of Child 4 provided a letter of support to the Applicant but did not give oral evidence and was not cross-examined. Her evidence is that after the birth of Child 4, the Applicant demonstrated his love for the child but he went through a really dark time in 2018 and he was not the same person he had been. Child 4 is confused as to why his father is not around anymore. Child 4’s mother has another child who has an active ongoing relationship with his father. She wants both her children ‘to have an amazing relationship with their fathers’. She ‘will always have (Child 4’s) voice at the back of (her) mind just begging to go see his dad when his brother sees his father’. She asked for the Applicant’s visa to be given back ‘so he can be a part of (Child 4’s) life again’. She provided two photographs of the Applicant with Child 4 who appears to be about two years of age. He is wearing different clothes in the two photographs. I accept that the photographs were taken on two different days. Both the Applicant and Child 4 are smiling broadly and appear to be very happy to be in each other’s company.
The Applicant said that he has not spent a lot of time with Child 4. His contact with Child 4 depends on the mother’s mood. If he ran into her at the shops, he would go and play with Child 4. It is not apparent that he has had any contact with Child 4 since January 2021. Child 4’s mother plays the parental role in the child’s life. The Applicant has been a father-figure to Child 4 in the past and may resume that role in the future.
The revocation of the visa cancellation is in the best interests of each of the four children.
The weight to be attributed to this consideration is tempered by the possibility that the Applicant may resume the use of alcohol and drugs and reoffend.
The consideration best interests of minor children, weighs significantly in favour of revocation of the visa cancellation decision with respect to Child 1, Child 2 and Child 3. It weighs somewhat in favour of revocation with respect to Child 4.
Expectations of the Australian community
Paragraph 8.5(1) of Direction 99 states that the Australian community expects non-citizens to obey Australian laws while in Australia and where the non-citizen has breached this expectation, the community ‘as a norm, expects the Government to not allow such a non-citizen to…remain in Australia’.
The Applicant accepted that the ‘expectations of the Australian community’ expresses ‘an expectation deemed by the government to be held by the Australian community’ and that it is not for the decision-maker to make their own assessment.[3]
[3] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).
He accepts that he has breached Australian laws and this consideration is deemed to weigh against revocation. However:
…it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision.[4]
[4] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at 72].
The Applicant submitted that this consideration should be given relatively less weight where:
(a)The Applicant is a refugee;
(b)He migrated to Australia as a 13 year old;
(c)He has resided in Australia for 17 years;
(d)He has been diagnosed with a number of serious health conditions, including a severe brain injury;
(e)The support systems that will be available to him on release; and
(f)He has engaged in and achieved the only rehabilitation available to him while in immigration detention.
The Applicant referred to cases which stated that there is a value in rehabilitation, Australia is built on second chances, and he has been punished for his offending and the community would not want to see visa cancellation misused to inflict further punishment.[5]
[5] VXKK and Minister for Home Affairs [2018] AATA 3268 at [83]; Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
The Applicant also pointed to the prospect of the harm that he would suffer if returned to Africa being such that the community would rather put up with his continuing presence, despite his criminal offending for which he has been punished.[6]
[6] FTYC and Minister for Immigration and Border Protection [2018] AATA 20 at [21].
He submitted that only limited weight be given to this consideration.
The Respondent referred to paragraph 8.5(2) of Direction 99 that states that non-revocation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not continue to hold a visa. This expectation is stated to apply to certain kinds of conduct, relevantly, including ‘(a) acts of family violence’ and ‘(e) commission of crimes against government representatives or officials…in the performance of their duties’, notwithstanding the time the person has resided in Australia.[7]Those expectations apply regardless of whether the person poses a measurable risk of causing physical harm to the Australian community.[8]
[7] Direction 99, paragraph 8.5(2)(a) and (d).
[8] Direction 99, paragraph 8.5(3).
The Applicant arrived in Australia as a refugee, however, he has now resided here for more than half his life and is an adult. He has suffered a brain injury and been diagnosed with a number of mental health conditions. He has investigated and engaged with agencies to support him if he is released into the community. However, he will not have the support of the kind that he had during his relationship with M which assisted him not to offend. His rehabilitation will depend on his motivation and resilience. He has failed to rehabilitate in the past despite his many sentences and consequential opportunities to do so. His lengthy imprisonment and immigration detention and the prospect of being removed from Australia may lead to him successfully rehabilitating. He appears now to understand that the issue is his conduct and not police picking on him.
Given his lengthy, extensive, and serious criminal offending, this consideration weighs significantly against revocation.
Other considerations
The consideration ‘impact on Australian business interests’ does not apply. Each of the ‘other considerations’ will be considered.
Legal consequences of the decision
Two issues arise in respect of this consideration: Australia’s international non-refoulement obligations and the prospect of indefinite detention.
The Applicant is not the subject of a ‘protection finding’ within the meaning of section 197C of the Act and therefore must be assessed pursuant to paragraph 9.1.2 of Direction 99.
While I may defer assessment of non-refoulement obligations, I must still ‘read, identify, understand and evaluate’ representations raised by the non-citizen.[9] Consideration is not necessary in the same level of detail as would be the cases in a protection visa application.
[9] Direction 99, paragraph 9.1.2(1) and (2); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [124].
The Applicant claims that he is of Dinka ethnicity and fears being killed if returned to Sudan due to civil conflict. He was granted a Class XB Subclass 202 Global Special Humanitarian visa in 2005 to come to Australia.
The Respondent contended that the Applicant should be found to be a citizen of South Sudan.
There is conflicting information in the evidence. He claims to have been born in Khartoum, the current capital of Sudan. Other evidence states that he was born in a city in South Sudan. The Applicant claims that he moved to the city in the south due to the war. The evidence is not reliable. I consider that the claim is with respect to Sudan and South Sudan.
Another claim was that being from South Sudan, if he returns, he will be made to join the army, creating a very high possibility of being killed in action.
He also contends that there is a possibility that he is stateless.
I accept the Respondent’s contention that the Applicant is a South Sudanese National by birth. Pursuant to the Nationality Act 2011 of South Sudan, section 8(1)(b), he belongs to one of the indigenous ethnic communities of South Sudan, the Dinka.
I have not considered the alternative proposition relying on the birth of his Australian mother in South Sudan because she is not his birth mother.
Because he has acquired, de jure or de facto, the nationality of South Sudan, if he had been national of Sudan, that nationality would be automatically revoked.[10]
[10] Nationality Act 1994 (Sudan), as amended in 2011, s 10(2).
Therefore, if his visa cancellation is not revoked, he will be returned to South Sudan.
The country information provided by the Applicant suggests that conflict is widespread in Sudan but not in South Sudan. It refers to widespread conflict in Sudan, affecting the Dinka population, with conflict also occurring on the southern border with South Sudan in Abyei. The most recent country information report for South Sudan by the Department of Foreign Affairs and Trade (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’.[11]
[11] DFAT Country Information Report South Sudan, 5 October 2016, [3.7].
Whether the Applicant will suffer serious or significant harm will depend on where in South Sudan he returns to. On the information before me, I am unable to make any conclusive findings in respect of non-refoulement at this stage.
The Respondent conceded that there is a possibility that Australia’s non-refoulement obligations may be engaged if the Applicant returns to South Sudan and that the consideration should be given some weight in favour of revocation, while acknowledging that a proper assessment will occur if and when the Applicant decides to apply for protection. The Applicant will have the opportunity to provide additional evidence to support his claim.
This finding weighs in favour of revocation.
Turning to the possibility of indefinite detention, the Applicant referred to two oft-quoted observations from judges of the Federal Court.
Justice Wigney has said that it would be:
…rather incongruous, if not somewhat bizarre, to think that there was a realistic possibility that the Minister would, on the one hand, vigorously oppose the revocation of the cancellation of the appellant’s visa on character grounds…yet on the other, decide not to exercise his discretion to refuse to grant the appellant another visa on character grounds… [12]
[12] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [55].
The Full Court of the Federal Court has subsequently expressed a similar view in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55. Justices Kenny and Mortimer at [124] describe a protection visa application in such circumstances as appearing “fruitless”:
…it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community…
If the Applicant applies for a protection visa, he will be subject to the character considerations under section 501 of the Act and other character and public interest criteria such as section 36(1C) of the Act.
If the Applicant applies for a protection visa, the processing of the application will take an indeterminate time during which he would be held in immigration detention. The Applicant may seek review in the Tribunal if the application is rejected and thereafter if it is rejected again, may seek judicial review and appeal eventually to the High Court.
I acknowledge that the Minister’s personal discretion under section 195A of the Act in respect of granting a visa, and under section 197AB of the Act to make residence determination, is non-compellable.
Indefinite detention is a very grave possible consequence of a non-revocation decision, as observed by Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123]:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
I have also taken into account the recent comments of the Full Federal Court in ECE21 v Minister for Home Affairs [2023] FCAFC 52.
The Applicant’s mental health conditions are likely to be exacerbated by indefinite detention. Dr Stevens described the Applicant as being ‘quite fragile in terms of his mental health with a history of chronic depression and trauma related symptoms’ and had conveyed:
…I think if I am here forever my mental health will be really bad. I already have really bad nightmares. I don’t know how I will survive.
There is a possibility that the Applicant will suffer serious harm if he returns to South Sudan. If he remains in Australia, he may face indefinite detention.
The legal consequences of the decision weigh in favour of revocation.
Extent of impediments if removed
In this case, paragraph 9.2(1) of Direction 99 requires consideration of the extent of any impediments that the Applicant may face, if removed from Australia to South Sudan, in terms of ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country’ taking into account three matters.
The Applicant is 31 years of age. He has suffered from a severe brain injury which has consequences for him as discussed earlier in this decision. He did not receive the follow up he should have after the operation. He has been diagnosed with severe substance abuse use disorder (currently in remission) and depression, anxiety and PTSD.
The Applicant may face some cultural and language barriers to the following extent. He grew up speaking Dinka, including in the refugee camp, however it has not been his principal means of communication for about 13 years. He says that he might be understood in the city but not in the country. I accept that he will face some difficulty in communication and will be recognised as a person who has been absent. He may also face cultural barriers because of his young age when he left Sudan and his relatively lengthy absence.
There would be limited if any social, medical or economic support to him in South Sudan. Paragraph 9.2(1) of Direction 99 does not invite a comparison between the standards in South Sudan and those in Australia.
In the context of what is available to other citizens of South Sudan, the Applicant will face substantial difficulties establishing himself and maintaining basic living standards after an extended period of absence from a young age. He will have no family support or connections to assist him. The impact of his brain injury and his mental health conditions set out above, will compound his difficulties. Medical support and treatment will be extremely limited or non-existent.
This consideration weighs in favour of revocation.
Impact on victims
There will be a negative impact on both M and the mother of Child 4 because they will have to deal with their children’s reactions to having little if any contact with their father. I give greater weight to the negative impact on M than on the mother of Child 4 who has had relatively little contact with the Applicant, although apparently expressing a wish to have him present in the life of Child 4.
This consideration weighs in favour of revocation.
Conclusion
I have concluded that the primary considerations, protection of the Australian community, family violence and expectations of the Australian community are outweighed by a combination of the primary considerations, the strength, nature and duration of ties to Australia and the best interests of minor children in Australia, and the other considerations, legal consequences of the decision, extent of impediments if removed and impact on victims.
There is another reason to revoke the cancellation given the specific circumstances of the Applicant’s case.
DECISION
The reviewable decision is set aside and the decision is made that there is another reason to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...................................[SGD].....................................
Associate
Dated: 31 July 2023
Dates of hearing:
19-20 July 2023
Counsel for the Applicant:
Ms C Nguyen
Solicitors for the Applicant:
Mr D Pham, Legal Aid NSW
Solicitors for the Respondent:
Ms J Xiao, Clayton Utz
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