LPNN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 61
•27 January 2023
LPNN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 61 (27 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9226
Re:LPNN
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:A G Melick AO SC, Deputy President
Date:27 January 2023
Place:Melbourne
The decision under review is set aside and in substitution the Tribunal decides not to exercise the discretion in s 501(2) of the Migration Act 1958 to cancel the Applicant’s visa.
……[sgn]………………………………………………………….
A G Melick AO, SC, Deputy President
Catchwords
MIGRATION –- Cancellation of a Class AH Subclass 117 Child (Migrant) Visa – where Applicant does not pass the character test – whether the discretion to cancel the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Home Affairs [2020] FCFC 109
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Home Affairs v Omar [2019] FCAFC 188
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 [9]
QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Commonwealth, Parliamentary Debates, Senate, 11 November 1998 (Sen Rod Kemp)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
27 January 2023
INTRODUCTION AND BACKGROUND
The Applicant is 23 years old and a citizen of Sudan. The Applicant arrived in Australia in 2012 at the age of 12.[1] Prior to its cancellation, the Applicant held a Class AH Subclass 117 Child (Migrant) visa. The Decision to cancel that visa is the subject of this application for review.
[1] G-documents, 17.
The Applicant was charged with a series of offences. On 2 September 2016 the Children’s Court of Victoria found the Applicant guilty without conviction of ‘theft of a motor vehicle’ (four counts) and ‘dishonest undertaking in retention of stolen goods and unlicensed driving’. The Applicant was placed on nine months probation.[2]
[2] G-documents, 14.
On 25 January 2018, the Children’s Court of Victoria found the Applicant guilty without conviction of ‘learner driver drive vehicle without experienced driver’, ‘drive without ‘L’ plates displayed’ and ‘exceed prescribed concentration of alcohol in breath within three hours of driving or being in charge of a motor vehicle’.[3]
[3] Ibid.
On 16 January 2018, the Magistrates Court of Victoria found the Applicant guilty of ‘sexual assault’ (2 counts) and ‘possess cannabis’. The Court ordered a 24-month Community Correction Order and 20 hours of unpaid community work. The Applicant was on bail at the time the offences were committed. The Director of Public Prosecutions appealed the sentence on grounds that the sentence was manifestly inadequate. On 10 April 2018, the County Court of Victoria heard the matter as a complete rehearing. The County Court found the Applicant guilty of ‘sexual assault’ (two counts) and convicted him of ‘possess cannabis’. The Court ordered a 24-month Community Correction Order and 100 hours of unpaid community work for the sexual assault matters. The Applicant contravened the Order and on 31 January 2020, the Court found the Applicant guilty without conviction of ‘contravene Community Correction Order’.[4]
On 20 April 2018, the Magistrates Court of Victoria found the Applicant guilty without conviction of ‘unlawful assault’ (two counts) and ‘attempt robbery’, the matters were adjourned and then dismissed due to compliance with the undertaking.[5]
On 4 December 2019, the Magistrates Court of Victoria convicted the Applicant of ‘affray’. The court ordered a 24-month Community Correction Order and 300 hours of unpaid community work. The Applicant contravened this order on 3 March 2022, the Court found the Applicant proven of ‘contravene community correction order’.[6]
On 9 September 2019 the Applicant received a Notice of Intention to Consider Cancellation (the Notice) related to his Class AH subclass 117 Child (Migrant) visa, informing him that the Respondent or a delegate of the Respondent intended to consider whether there were grounds to cancel his visa.[7] The Applicant made representations on 1 October 2019 followed by further submissions on 23 July 2021.
8.On 24 October 2022, the Respondent decided to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Respondent reasonably suspected the Applicant did not pass the character test (the “decision under review”).[8]
[4] G-documents, 15.
[5] G-documents, 16.
[6] Ibid.
[7] G-documents, 34-7.
[8] G-documents, 34-6.
The Applicant subsequently lodged an application for review in this Tribunal on 10 November 2022.[9] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(b) of the Act.
[9] G-documents, 1.
A hearing in this matter was held on 11 and 12 January 2023. The Applicant appeared in person and the Respondent was represented by Mr Oliver Morris, solicitor. The Tribunal was greatly assisted by the very thorough and very fair manner in which Mr Morris presented the Respondent’s case.
As well as providing written evidence the Applicant gave oral evidence and called the following witnesses to give oral evidence in addition to statements they had previously provided.
EVIDENCE
The Applicant lodged a Statutory Declaration filed 11 January 2023 which was tendered into evidence.[10] A further two statements dated 1 October 2019 and 23 July 2021, as well as a personal circumstances form[11] were tendered as part of the G-documents.
[10] Exhibit 3.
[11] G-documents, 161.
In the statement dated 1 October 2019, the Applicant described how he would fear for his life if returned to South Sudan. The Applicant belongs to a minority tribe (Bari) and fears persecution from the majority tribes Dinka and Nuer who control the country. He does not know anyone in South Sudan and no longer has a “connection with the culture or language”.[12] There was evidence before the Respondent that the Applicant’s parents were killed in the conflict after which his older brother extracted the family from South Sudan by a circuitous and dangerous route.
[12] G-documents, 146-7.
The Applicant accepts responsibility for his offending behaviour and explained the circumstance that led him astray. He was "falsely accused of being a father" which led to various mental health issues and substance use as a coping mechanism. At the time of the offending the Applicant began seeking professional help.[13]
[13] Ibid.
In a statement dated 23 July 2021 the Applicant acknowledged that his affray conviction and community order contravention “points to a bad character” and described being embarrassed by the “shame and pain” he has brought on his family and community.[14]
[14] G-documents, 148.
The Applicant’s personal circumstance form lists two nephews as minor children relevant to the decision under review.[15]
[15] G-documents, 161.
The nephews are four and eight years old. The Applicant also describes his close relationship to his siblings, they rely on each other to “pay the bills and put food on the table”. He writes that having his visa cancelled “will be like losing…my parents”.
The Applicant did not realise the impact that losing his parents as a child had on him. He started associating with a “bad crowd” and using substances as a coping mechanism.[16]
[16] G-documents, 162.
The Applicant has acknowledged the following programs that would help him avoid further offending:
·Youth Support and Advocacy Services (YSAS)
·The Applicant’s former school
·Youth Justice Offence Mapping
He has engaged in ongoing employment between studies, including customer services, sales and construction roles. He explained that at the time of the offending he “was going through a really dark time like I have most of life”.
The Applicant’s Statutory Declaration noted his removal to South Sudan would cause “major health and mental health issues” from not being able to see his family, friends and co-workers. In particular, he laments the prospect of not being part of his nephews lives anymore.[17]
[17] Exhibit 3.
In 2018, the Applicant was suffering from depression and attempted suicide. He was admitted into a psychiatric ward where he made subsequent suicide attempts. With the support of family and counselling, he was discharged a few weeks later and noted his ongoing struggles with mental health.
The Applicant is currently employed and takes part in community sports, he considers that he is “not [that] person anymore”.[18]
[18] G-documents,161.
In cross examination the Applicant was asked about the warnings he received from a Magistrate on 16 January 2018. He recognised that he was given a firm warning and had continued to re-offend after being given similar warnings in the County Court of Victoria on 10 April 2018.
He admitted to kicking a man whilst the man was lying on the ground and lying to the police about it when questioned, this led him to be convicted of affray on 4th December 2019.
He conceded that on 31 January 2020 he had indicated to YSAS that he had ceased substance-abuse but six days later had driven a car with cannabis in his system.
The Applicant had not intended to be driving at the time but received a phone call from his former partner, in some distress, at about 10 o'clock at night needing to be collected from a railway station to get home. He had been unable to get a taxi or Uber to collect his former partner and so he decided to drive because he had not had much to drink. However, at that stage, he was not permitted to drive with any alcohol in his system and when breathalysed he was not much over that limit.
He also conceded that he was driving unlicensed, having lost his license due to demerit points, although he believed he was due to get it back any day. That incident led to the charge of contravene Community Correction Order found proven with no penalty on 3 March 2022.
When it was suggested to him that no matter how many times he was warned nothing would stop him reoffending, the Applicant said emphatically “I will stop myself reoffending”.
The Applicant was asked why he could not go back to South Sudan and conceded that he was 23 years old and that there are no physical reasons for not being able to go back to South Sudan however, he acknowledged there would be significant mental-health impediments bearing in mind he begun taking medication for mental health issues in 2018.
KL, the Applicant’s sister
The Applicant, KL and their younger siblings lived for several years in a refugee camp in Uganda. The Applicant was about five when his older brother helped the family leave the camp, and around 12 when the family made it to Australia in 2012.
The siblings lived in difficult conditions and without parents. It was commonplace to fear for their lives, KL noted those struggles will remain with them for the rest of their lives. As a result, the siblings are close.
KL observes that the Applicant is a "father figure" to his younger brother, a family man and a friend. He is "always looking out for those around him, sometimes to his detriment".
She has spoken to the Applicant about his offending, noting his remorse and empathy for his victims and embarrassment about his offending. In 2018, the Applicant became an informal mentor through St Francis Xavier College, a role which he enjoys and takes seriously.[19] She further noted his removal to South Sudan would result in the loss of an "integral part of the family unit".[20]
[19] G-documents, 21.
[20] G-documents, 237.
During cross-examination, KL stated she attended the County Court in 2018 to support her brother and was aware that he had been involved in a fight whilst affected by alcohol. The incident surprised her as she did not think her brother drank alcohol often.
KL described her brother as a very soft person and not a fighter. She was surprised that the Applicant told the Tribunal he had kicked someone whilst they were on the ground and did not accept that he committed either sexual assault.
KL gave evidence that her brother does listen to her. She was not aware of him using cannabis.
KL concluded her oral evidence by reinstating that she loves her brother and will always be there for him.
SL, the Applicant’s brother
The Applicant’s brother prepared a statement but was not able to give evidence at the hearing.
In 1999, SL fled South Sudan to Egypt with his wife and daughter. He had two further daughters in Egypt. In 2004, him and his family arrived in Australia. As the older brother, he felt it was responsibility to ensure the safety of his family and began the process of bringing them to Australia. [21]
[21] G-documents, 235.
In 2012, his siblings were granted visas and resided with him and his extended family in Pakenham. SL describes a difficult and traumatic upbringing and the impact life in a refugee camp would have had on the Applicant.
SL has had many discussions with the Applicant regarding his offending behaviour and notes the Applicant's deep regret. He stated that if the Applicant were removed to South Sudan, he would have no supports available to him and would likely be recruited and forced to fight in the war. [22]
[22] Ibid.
BJA, the Applicant’s partner
BJA prepared a Statutory Declaration that was tendered into evidence[23] and gave oral evidence in support of the Applicant.
[23] Exhibit 2.
BJA is aware of the Applicant's prior offending, however noted his willingness to attend therapy and surround himself with people who are better influences.
The Applicant’s partner described how the Applicant would be affected mentally if returned to Sudan as he would not have the support system he has in Australia. This would lead to him suffering from further mental health problems as he has no family in Sudan.
BJA described how the Applicant’s removal from Australia would also adversely affect her and his family in Australia, given the emotional support he provides. She gave evidence that the Applicant is a kind, lively and caring person.
During cross-examination the Applicant’s partner stated she has been in a relationship with the Applicant for five to six months, they have lived together for the past three months and they do not share a bank account.
BJA is aware of the Applicant’s previous offending but does not believe that he committed the sexual assaults although he has never denied it to her. She did not believe that he would kick a person lying on the ground and was surprised that the Applicant had admitted to doing so.
BJA gave evidence that the Applicant only uses alcohol occasionally and she has not seen him significantly affected by it. Her increased knowledge of the Applicant’s’s offences has not caused her to change her opinion of him as she believes he has been turning his life around.
I also take into account the following statements contained in the G-documents[24] that were before the Delegate.
[24] Exhibit 1.
Youth Support and Advocacy Service (YSAS)
An email dated 1 October 2019 from YSAS provided an update on the Applicant’s Community Correction Order. The Applicant was excused from community work in 2018 as he was completing year 12. The Applicant was referred to YSAS and engaged well, achieving a number of treatment goals. He attended eight appointments and did not miss any. The Applicant has since voluntarily reengaged with YSAS.
In a letter dated 31 January 2020, YSAS wrote that the Applicant self-referred himself to the YSAS Transformer program on 9 August 2019 and has attended fortnightly appointments. He has been “unfailingly polite and respectful and has proactively maintained phone contact outside of formal appointments in pursuit of his treatment goals”.[25]
[25] G-documents, 214.
The Applicant has been engaging in drug and alcohol support. The focus on the Applicant’s treatment included Alcohol and Other Drugs counselling, harm minimisation and education, particularly the impact illicit substances were having on his life and future direction, decision making, relationships and offending behaviour.
The Applicant engaged meaningfully in treatment, showed remorse and took ownership over his actions. He made the decision to cease substance use and engage professional support, successfully completing treatment with YSAS on 4 August 2020.
The Applicant engaged with a psychologist in Hampton Park and an anger management day course on 6 July 2021. He begun playing Australian Rules football with a club in 2019. He spends most of his time at the club and has made some positive friends and no longer associates with those he had a few years prior.
Department of Justice, Contravention of Community Correction report dated 28 January 2022[26]
[26] G-documents 229, 231.
Between 14 December 2019 and 31 December 2021 the Applicant completed eight episodes of care with YSAS. The Applicant engaged in three sessions with a psychologist between 19 December 2019 and 18 February 2020. During this time, he acknowledged the benefit to his mental health and the difficulty he found in talking about his past and trauma.
The Applicant was referred for a further anger management program that commenced on 17 October 2022 and was removed due to nonattendance.
The Applicant was contracted for onsite community work which commenced on 9 December 2019. On 17 January 2020, he requested this be amended to a weekend group due to commencing employment, and commenced in the weekend group on 19 January 2020. His attendance was sporadic due to “his mind being all over the place” from working six days per week, forgetting or not being aware he was contracted. He failed to attend 18 different instances of community work.
In March 2020, it was agreed he would attend fortnightly to allow for a rest period from employment. During this time, the Applicant's onsite community work was put on hold due to the pandemic. This recommenced in October 2020 within the home.
In March 2021, the Applicant was required to complete the community work induction via Zoom. He failed to attend on several occasions and once fell asleep during the Zoom call. He was warned on 21 July 2021 about this non-compliance.
In July 2021, the Applicant commenced Knitting Nancy, an at home community work option and showed motivation regarding the work. He returned all completed work in October 2021.
He failed to attend a program relating to his offending as directed on four different occasions. He failed to be supervised, monitored and managed as directed on two different occasions.
Access Employment Enterprises (Access), letter dated 15 July 2020
Access has been assisting the Applicant for eight months. He obtained full-time employment with S, working in a metal fabricating role. He worked for three months until he was stood down due to COVID-19 and had been offered the opportunity to return to work once operations recommence.
The Applicant worked hard on his job applications, applied for roles online and undertook tasks requested of him with prospective employers. He is now employed in another fulltime role in Civil Construction as a Machine Operator. Access describes the Applicant's "enthusiasm and commitment" to finding employment during COVID-19 as "outstanding".[27]
[27] G-documents, 184.
JR, the Applicant’s former employer
The Applicant worked for MC for over a year. However, JR has known him for many, having met at a local football club. He describes the Applicant as a “dedicated and reliable person”. After graduating high school, he sought employment from MC.
The Applicant worked as a full-time employee and became “a vital part of the business”. He was enthusiastic to learn new skills, was happy to work overtime and on weekends if asked, “never letting the team down”.
SFX, the Applicant’s former school
The Applicant was a student from 2013 to 2018 and graduated successfully with his Victorian Certificate of Education.[28]
[28] G-documents, 176.
Most of the Applicant’s offences were committed during the time he was falsely accused of being the father of an unborn baby, subsequently proven not to be his. This led to suicidal ideation and a suicide attempt. In response to these feelings he developed a dependence on cannabis and alcohol. He was understood to have been under the influence of cannabis and/or alcohol during each offence.
His offending may be attributed to his adolescent brain development and history of complex childhood trauma. This limits his ability to judge long-term consequences of his decision making. His trauma has led to an “overactive amygdala”, limiting his capacity to regulate his emotions.
The Applicant has reduced chance of reoffending as he has engaged in counselling, leading to a significant reduction in alcohol and cannabis use. He reengaged with his education and gained valuable insight about the causes of his substance use and offending. He has shown increased empathy for victims.
The Applicant is a mentor to his younger brother NL. He has legitimate fears of heing harmed if returned to Sudan and would not have access to social security, health care or education.
DA, the Applicants trainer and advisor[29]
[29] G-documents, 179.
The Applicant has a good attendance record, is always on time and never wants to leave early. He assists slower students to complete their work so everybody is able to get home on time.
His Civil Course has a classwork component. He is at the top 5-10% of students for his literacy skills.
The Applicant has a "happy go lucky" personality and his nickname is "Lucky".
GB, the Applicant’s football coach
The Applicant integrated into the team wonderfully. He has a “first class” attitude and has found a great group of friends amongst the club.[30]
[30] G-documents, 181.
He follows instructions better than most other players. GB believes that with the “right guidance”, the Applicant could achieve anything.
LEGISLATIVE FRAMEWORK
The Minister has the power to cancel a visa where the Minister reasonably suspects a person does not pass the character test pursuant to s 501(2):
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Section 501(2) requires two stages with the first requiring that before the discretion is enlightened, there must be an answer to the question:
“Does the Applicant Pass the Character Test?”
The character test is defined in s 501(6) of the Act. Under s 501(6)(c)(i), a person will not pass the character test if having regard to “the person’s past and present criminal conduct, the person is not of good character”. Under s 501(6)(c)(d)(i) a person will not pass the character test where “in the event the person were to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia”.
The Respondent submitted that, when considering the requirements of s 501(6) including the elements set out in s 501(6)(d)(i), the Applicant does not pass the character test where there is a risk the Applicant will commit further criminal offending.
I agree with the very useful summary set out by Deputy President Britten-Jones at [3-7] in QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431:
Section 501 provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is defined in s 501(6) and says relevantly at s 501(6)(d)(i) that a person does not pass the character test if in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. The Full Court of the Federal Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2] said that this section requires an evaluative judgment by the decision-maker as to whether the decision-maker is satisfied there is such ‘a risk’. If I am so satisfied, then the discretion is enlivened, and I may refuse to grant a visa having regard to Direction no. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79).
It follows that the legislative scheme provides for a two-step process. The first step is the evaluative judgment as to whether the applicant is of good character and in particular in this case whether there is a risk of further criminal conduct. The second step arises if I am not satisfied that the applicant is of good character in which case, I may exercise a discretion to refuse to grant the applicant a visa.
The first step involves a forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia. In Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574–575):
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or Tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or Tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
More recently, it has been found that the evaluation of the risk of offending in the future must have an evident, intelligible and rational foundation.[2]
As to the level of risk required to satisfy the statutory test, Kerr J said in Sabharwal v Minister for Immigration and Border Protection [2018] FCA10 at [84] that ‘a derisorily small possibility’ is not sufficient. In that decision, Kerr J referred to the terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at paragraph 46 of Schedule 1, which states that the “intention” of s 501(6)(d)(i) was that ‘the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
I note that in relation to the above there is no significant distinction to be drawn between the relevant parts of Direction 79 and Direction 90.
When considering the level of risk of the Applicant reoffending, I take into account all of the behaviour outlined above and in particular the following aspects:
(a)The Applicant committed further offences whilst on bail;
(b)The Applicant failed on many occasions to report for Community Correction Orders;
(c)There was an increase in the severity of the offending;
(d)All of the serious offences were committed when the Applicant was substantially affected by alcohol; and
(e)There was no detailed evidence about the mental health interventions provided or undertaken and the Applicant still continues to drink alcohol, although apparently not to the prior hazardous levels.
I also take into account the following factors that mitigate in favour of the Applicant:
(a)The Applicant obeyed all Community Correction Orders after being given a formal warning;
(b)The Applicant only committed relevantly minor offences after being given a formal warning that his visa might be revoked. All of those offences arose from the one incident after a phone call from a distressed former partner; and
(c)There is significant evidence and supporting statements to the effect that the Applicant has matured and changed his ways.
When balancing all the factors I consider that the risk of the Applicant reoffending is more than trivial or minimal and I find that he fails the character test.
I now turn to consider whether the correct and preferable decision is to exercise the discretion contained within s 501(2) to cancel the Applicant’s visa, taking into consideration the requirements of Direction 90.
Should the Applicant’s visa be cancelled?
In considering whether to exercise the discretion to cancel the Applicant’s visa in s 501(2) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[31]
[31] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa, or whether or not to revoke the cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[32]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[33]
[32] [2018] FCA 594.
[33] Ibid, [23].
BACKGROUND and offending
As noted above the Applicant has been charged with a series of offences, many of which were committed as a juvenile.
The Applicant has the following criminal record:
96. Date 97. Charge 98. Result 99. Court 100. 03/03/2022 101. Contravene Community Correction Order Proven
102.
Dandenong Magistrates Court 103. 31/01/2020 104. Contravene Community Correction Order 105. Proven without conviction
106. Fine: $400
107. Melbourne County Court 108. 04/12/2019 109. Affray 110. Convicted and a Community Correction Order for 24 months.
111.
112. Preform 300 hours of community work.
113. Dandenong Magistrates Court 114. 20/04/2018 115. Attempt Robbery
116.
117. Unlawful Assault
118. (2 Charges)
119. Without Conviction 120. Dandenong Magistrates Court 121. 10/04/2018 122. Sexual Assault
123. (2 Charges)
124. Without Conviction
125.
126. Community Corrections Order for 24 months.
127.
128. To preform 100 hours unpaid community work.
129. Melbourne County Court 130. 10/04/2018 131. Possess Cannabis 132. Convicted and discharged 133. Melbourne County Court 134. 25/01/2018 135. Exceed prescribed amount of alcohol in breath within three hours of driving or being in charge of a motor vehicle 136. Without Conviction
137.
138. Released upon entering a Good Behaviour Bond of $200.
139.
140. License cancelled and disqualified for 12 months.
141. Ringwood Childrens Court 142. 25/01/2018 143. Learner driver drive vehicle without experienced driver
144.
145. Drive without ‘L’ Plates displayed
146. As Above.
147.
148. Ringwood Childrens Court 149. 02/09/2016 150. Theft of a motor Vehicle (4 Charges)
151.
152. Dishonest Undertaking in Retention of Stolen Goods
153.
154. Unlicensed Driving
155.
156. Without Conviction
157.
158. Probation for a period of 9 months.
159. Dandenong Childrens Court PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Direction indicates that violent and sexual crimes are viewed very seriously by the Australian Government and the Australian community. As discussed above, the Applicant has a record of violent and sexual offences which include sexual assault, unlawful assault and affray.
I am concerned about the escalating seriousness of the Applicant’s offending up until early 2019, but note that there has been no serious offending for almost four years despite the Applicant being at large in the community. The Delegate noted that in addition, Victoria Police have advised of the Applicant’s links to persons involved in serious crime, and his association with known street gang members/youth offenders, as well as the APEX and Menace to Society street gangs.
The Applicant’s offending was of significant concern to Victoria Police, such that they held concerns about the risk he posed to the community. However, there was no evidence before me that the Applicant is still involved or associating with such gangs and I accept his evidence that he has not associated with the offenders in question since his last serious offending being the affray, which occurred in April 2019.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As noted the Applicant’s offending escalated over a short period of time which provides a significant cause for concern, although mitigated by a relatively long period of no serious offending.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant's repeated offending.
The cumulative effect of the offending as outlined above is indicative, as at early 2019, of somebody who was fast becoming a danger to society and if such offending had continued there would be a significantly higher weighting in favour of non-revocation of the decision under review.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status.
The only offending since being formally warned, on or about 9 September 2019 was the relatively minor incident in early 2022. I find this aspect of the consideration of little weight.
I do not consider factors set out in sub-paragraphs (b), (c), (f) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very significantly against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
I have found that the nature and seriousness of the Applicant’s conduct is very serious and that this type of conduct has the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
The risk of further or other serious conduct has been discussed above in relation to the Character Test where I considered the risk of the Applicant reoffending is more than trivial or minimal. However, because there has been no serious offending by the Applicant since having been convicted of affray and subsequently being warned by the Department of Home Affairs, together with his apparent maturing and more stable home environment and the many supportive statements and references, I consider the risk of the Applicant reoffending to be low. The Respondent submitted that the Applicant’s repeated failures to attend, as required by various Community Correction Orders, was indicative of a disregard of Australian laws and indicated a heightened risk of reoffending. I do not place too much weight on that behaviour because, since being formally warned about his non-attendance, the Applicant complied with all future orders in a timely manner.
Although required to consider sub-paragraph 8.1.1(2)(c) if relevant, I do not consider this to be relevant in this case, as there has been no application for, or suggestion of, any visa other than the one revoked by the delegate.
Conclusion: Primary Consideration 1
Despite the low risk the of the Applicant reoffending, I find the nature and seriousness of his offending and the risk to the Australian community weighs significantly against revoking the delegate’s decision to revoke the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
There was no evidence to suggest any of this type of inappropriate conduct so this consideration is neutral.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides 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.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
When considering whether a decision to cancel the Applicant’s visa would affect any child in Australia, I note the Applicant has two nephews aged eight and four who I accept, because of the evidence given by him and his family, he is very close with, despite the fact he is not in a parental role and does not see them on a day-to-day basis. He takes them on excursions every two to three months and I accept that he wants to mentor his nephews throughout their childhood and adolescence. There was no suggestions that the children are not well cared for by their parents but I accept that it would be difficult for the Applicant to maintain contact if forced to return to South Sudan and that the children would miss the Applicant’s company and influence.
Conclusion: Primary Consideration 3
When taking into account the consideration set out above, I note that the Applicant does not fulfill a parental role and is not in frequent regular contact with his nephews, so I only place moderate weight upon this consideration.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[34]
[34] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
The Applicant has committed sexual offences and offences involving violence. Accordingly the Australian community would expect his visa to be cancelled. He has lived here since arriving in 2012 as a child which could lead to a higher level of tolerance but I still consider that the Australian community would expect his visa to be cancelled.
Conclusion: Primary Consideration 4
I consider that this consideration weighs heavily in favour of the cancellation of the Applicant’s visa but, because of his age upon arrival and length of time in the community, not overwhelmingly so.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The term ‘non-refoulement’ is derived from Article 33 of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”).[35] It provides:
1.[35] See Ali v Minister for Home Affairs [2020] FCFC 109.
197.Article 33. - Prohibition of expulsion or return ("refoulement")
198.1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
199.2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
Non-refoulement obligations are also found in other instruments. Paragraph 9.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section l97C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non- citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.l2AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia’s international non- refoulement obligations.
The Applicant contends that he would face harm if removed to South Sudan. The Applicant submits that his tribe, Bari, are being targeted and persecuted by the Dinka and Nuer tribes who control South Sudan. He fears for his life due to this ‘ongoing civil war’ between tribes. He also fears for his life as he will be alone. Finally, he fears that his life will be in grave danger as he will be targeted for leaving Sudan for Australia, possibly forcibly imprisoned and will be required to do military service.
The Applicant’s visa that was cancelled was a Subclass 117 Child (Migrant) visa, which is not a protection visa. ‘Protection visa’ is defined by s 35A of the Act as a visa of a class provided for in that section, which includes Class XA, Class CSD and safe haven enterprise (Class XE) visas. It would be open for the Applicant to apply for a protection visa if the decision under review is affirmed.
I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he/she will face if removed to Sudan in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration. The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application.
At this stage I do not consider it possible to consider non-refoulement issues in the same level of detail as they would be considered in a protection visa application. In the circumstances of this matter the Applicant is able to make a valid application for a protection visa and his claims would be conclusively assessed before any consideration is given to any character or security concerns associated with him.[36]
[36] Direction 90, paragraph 9.1 and Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 [9].
The Applicant’s claims are very complex and, as he was self-represented, were not advanced in sufficient detail to allow the Tribunal to undertake the necessary assessment of Australia’s international obligations in relation to the particular circumstances of the Applicant.
I consider the appropriate course is for the consideration of any non-refoulement claims to be deferred to any future protection visa application when the Applicant's claim could be comprehensively assessed.
Despite such deferral of non-refoulement obligations, I consider it appropriate to take into account the factual matters raised by the Applicant, including those which could give rise to non-refoulement obligations, when dealing with the extent of impediments if the Applicant was to be removed from Australia.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are any substantial language or cultural barriers; and
c) any social, medical and/or economic support available to that non-citizen in that country.
The Respondent very fairly accepted the Applicant would likely face substantial hardship if returned to South Sudan noting that, although the Applicant is young and physically healthy, there is evidence to support the conclusion that the Applicant has faced mental health difficulties throughout his life, treatment which is unlikely to be readily available in South Sudan.
The Respondent also very appropriately submitted that:
The Applicant has indicated that he does not speak the language in South Sudan. Although it should be accepted that English is an official language of South Sudan, the Respondent acknowledges that the applicant would likely face hardship due to the widespread use of tribal languages and dialects. From a cultural perspective as well, the responder acknowledges that the applicant has not lived in South Sudan since his childhood and is unlikely to be closely familiar with the culture. Finally, the Respondent accepts that there is no evidence to support a conclusion that the Applicant would have any social, medical or economic support in South Sudan.
For the above reasons, the Respondent accepts that the Applicant would face very substantial practical impediments if returned to South Sudan. Furthermore, the Respondent accepts that the Tribunal also ought to have regard to the serious emotional hardship the applicant is likely to experience if removed to South Sudan-a country he fled as a child.
I agree with the matters accepted by the Respondent set out above and I am satisfied that the Applicant would face severe impediments if removed to South Sudan but I defer any consideration of the applicability of Australia’s non-refoulement obligations to be considered if and when the Applicant lodges an application for a protection visa.
I refer to the findings set out above when considering International non-foulement obligations and adopt them for the purpose of considerations pursuant to the extent of impediments if removed. I find that the Applicant would face substantial impediments if removed to South Sudan this consideration weighs heavily against revoking the Applicant’s Visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before me as to the impact that any decision to affirm or set aside the reviewable decision might have upon any of the victims of the Applicant’s offending and hence I consider that this consideration is not relevant to the matter before me.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
Paragraph 9.4.1 of the Direction requires decision makers to have regard to the strength, nature and duration of a person’s ties to Australia. This consideration has two elements:
(a)first, the Tribunal should have regard to the impact that a person’s removal might have upon the person’s immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who should have a right to remain in Australia indefinitely[37]; and
[37] Paragraph 9.4.1(1).
(b)secondly, the Tribunal should have regard to the person’s broader ties to the Australian community; including by reference to how long that person has resided in Australia (less weight should be attributed to this factor where a person commits offending shortly after their arrival), how long the person has been contributing positively to the Australian community, and the strength, duration and nature of social ties with Australian citizens, permanent residents or people who have an indefinite right to remain in Australia.[38]
[38] Paragraph 9.4.1(2).
The Applicant has lived in Australia for a substantial period of time, has been educated in Australia, has had multiple jobs across different industries (with very few periods of unemployment) and has played team sports in Australia at a not insignificant level. As noted above there have been several letters of support from members of the Australian community. I find that the Applicant has significant ties to the Australian community.
The Applicant has strong family ties in Australia including a partner who is an Australian citizen and with whom he lives. He has siblings, including his older brother who brought the family out to Australia after their parents were killed, as well as aunts, uncles nieces and nephews. I find that the Applicants removal from the Australian community would have an adverse impact upon his partner and family members.
Although the Applicant commenced offending within four years of entering Australia, he has now not offended in a serious manner for approximately four years.
I find this consideration weighs significantly against the cancellation of the Applicant’s visa.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Accordingly, this consideration is not applicable.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(f)international non-refoulement obligations: no weight
(g)extent of impediments if removed: heavy weight against the cancellation of the Applicant’s visa
(h)impact on victims: no weight; and
(i)links to the Australian community including the strength, nature, and duration of ties to Australia; significant weight, and the impact on Australian; business interests: no weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction:
(j)Primary consideration 1: Significant weight in favour of the cancellation of the Applicant’s visa
(k)Primary consideration 2: Not relevant
(l)Primary consideration 3: moderate weight against the cancellation of the Applicant’s visa
(m)Primary consideration 4: Significant weight in favour of the cancellation of the Applicant’s visa
(n)Other considerations: Overall significant weight against the cancellation of the Applicant’s visa.
This is a carefully balanced matter in which it is not appropriate to merely to place the competing considerations upon a set of scales.
The protection and expectations of the Australian community weigh heavily in favour of revoking the Applicant’s visa. However, unlike most people in his situation, the Applicant has been at large in the community with an ability to demonstrate that his behaviour has significantly improved. He has availed himself of that opportunity and I consider that this just tips the balance in favour of non-revocation of his visa. However, the Applicant must realise that it is highly unlikely, if he reoffends, that he will retain the right to remain in Australia.
Decision
Consequently, I set aside the decision under review and in substitution decide not to exercise the discretion in s 501(2) of the Act to cancel the Applicant’s visa.
I certify that the preceding 227 (two-hundred and twenty seven ) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
........................[sgd].............................................
Associate
Dated:
Date of hearing:
Applicant
27 January 2023
11-12 January 2023
In person
Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Natural Justice
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