Lukasa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 192

Lukasa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 192 (25 January 2022)

Division:GENERAL DIVISION

File Number:          2021/8461

Re:Sam Charles Elioba Lukasa

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:25 January 2022

Date of written reasons:        9 February 2022

Place:Brisbane

The reviewable decision of the Respondent, dated 3 November 2021, is affirmed.

............[SGD]...................

Member R Maguire

Catchwords

MIGRATION – non-revocation of mandatory cancellation – Class XB (Subclass 200) Refugee Visa – citizen of Sudan – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction No 90 – history of violent and drug offences, family violence, assault/obstruct police and other offences – non-refoulment obligations not enlivened – decision under review affirmed

Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Nationality Act 2011 (South Sudan)

Sudanese Nationality Act 1994 (Sudan)

Cases

Ali v Minister for Home Affairs [2020] 380 ALR 393
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) FCR 513
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BAL19 v Minister for Home Affairs [2019] FCA 2189
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
GLD18 v Minister for Home Affairs [2020] FCAFC 2
JLJF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3888
Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1994
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 539
SZOQD v Minister for Immigration and Border Protection [2012] FCAFC 40
TYXB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 9
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
International Covenant on Civil and Political Rights and its Second Optional Protocol
United Nations Convention of the Rights of the Child

1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol)

REASONS FOR DECISION

Member R Maguire

9 February 2022

BACKGROUND

1. The Applicant, Mr Sam Charles Elioba Lukasa, seeks review of the decision of a delegate of the Minister (“the Respondent”), dated 3 November 2021, made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee Visa (“the visa”).[1]

   [1]     Exhibit 1, Section 501G Documents, page 6.

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant 28 day time period provided for in regulation 2.52 of the Migration Regulations 1994 (Cth) (“the Regulations”), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is “another reason” why the mandatory cancellation should be revoked.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or their delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a “substantial criminal record”. as defined by section 501(7). Relevantly, section 501(7) of the Act states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more;

   …

4. The Applicant is a 32-year-old male, who, on arrival in Australia, declared in a Form 80, Particulars for Character Assessment, that he was a citizen of Sudan, having been born in the town of Omduran, in the state of Khartoum. He entered Australia on a Sudanese passport issued in Khartoum in August 2003.[2]  He came to Australia on 24 October 2006 and has not left since arriving. He has now lived in the country for some fifteen years.[3]

   [2]     Exhibit 2, Supplementary Section 501G Documents, SG1, pages 349 to 350.

   [3]     Exhibit 1, Section 501G Documents, G2, page 110.

5. On 26 October 2020, the Applicant was convicted and sentenced at the Local Court of New South Wales at Parramatta to twelve months’ imprisonment on one count of Affray – T1.[4]

   [4]     Ibid, page 35.

6. On 24 November 2020, whilst the Applicant was serving that term of imprisonment (that is, in actual criminal custody), the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa, as he did not pass the character test pursuant to section 501(6)(a) (substantial criminal record), on the basis of section 501(7)(c) (i.e., that he had been sentenced to twelve months or more imprisonment).

7. Notice of this decision was given to the Applicant by hand. In accordance with regulation 2.52(2)(b) of the Regulations, the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days of receiving the notice. The Applicant made representations to the Minister on 9 December 2020, within the period specified, seeking revocation of the cancellation decision.[5] The representations were accompanied by two Personal Circumstances Forms.[6]

   [5]     Ibid, pages 66 to 73.

   [6]     Ibid, pages 74 to 104.

8. On 3 November 2021, pursuant to section 501CA(4) of the Act, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act. On 11 November 2021, the Applicant made the present application to this Tribunal for a review of that decision.[7] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[8]

   [7]     Ibid, pages 1 to 8.

   [8]     Migration Act 1958 (Cth), section 500(6B).

9. The hearing of this application took place on the 10^th, 20^th, and 21^st January 2022, respectively. The Applicant appeared via video link from Villawood Immigration Detention Centre and was represented by Mr Fardin Nikjoo of Nikjoo Lawyers. The Respondent was represented by Mr Will Sharpe of HBL Ebsworth Lawyers. The Tribunal also received oral evidence from the witnesses set out below. The complete suite of written material forming the Exhibit Register is further particularised in ‘Annexure A’ of this decision.

10. By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review, in accordance with subsection 501G(1), the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) to affirm the decision under review. At the hearing, the representatives of the parties agreed that that for the purposes of this review, and section 500(6L)(c) of the Act, the 84^th day, was 26 January 2022 – the Australia Day Public Holiday.

11. On Tuesday, 25 January 2022, the Tribunal affirmed the decision under review, and now provides its written reasons.

    ISSUES

12. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

    (4) The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be  revoked.

13. It is not disputed by either party that the Applicant has made the representations required by section 501CA(4) of the Act.

14. There are therefore two issues before the Tribunal:

    (a)Whether the Applicant passes the character test; or

    (b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

15. If the Applicant succeeds on these grounds, the mandatory cancellation of the Applicant’s visa should be revoked.

16. In considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]

    …there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…

    [9] [2018] FCAFC 151.

    DOES THE APPLICANT PASS THE CHARACTER TEST

17. The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have, “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”. Section 501(7A) provides that for the purposes of the character test,  if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total length of the terms.

18. The Applicant pleaded guilty before Magistrate Brender in the Local Court at Parramatta on 26 October 2020 to one charge of Affray. He received a twelve-month sentence of imprisonment, with a non-parole period of six months.

19. As the custodial term imposed was, “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record”, as defined in section 501(7)(c) of the Act.

20. The Applicant has conceded that he fails the character test and has not disputed that the original decision to mandatorily cancel his visa was properly made under section 501(3A) of the Act.[10]

    [10]    Exhibit 4, Applicant Statement of Facts, Issues and Contentions, page 3, paragraph 6.

21. Having regard to the foregoing, the Tribunal is satisfied that the Applicant does not pass the character test, pursuant to section 501(6)(a) of the Act and therefore cannot rely on section 501CA(4)(b)(i)[11] of the Act for the mandatory cancellation of his visa to be revoked.

    [11]    This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).

22. The remaining question therefore is found in section 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.

    IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

    Ministerial Direction No. 90

23. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”, or “Direction 90”) has application.

24. The purpose of the Direction, as stated in paragraph 5.1(4), is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.

25. Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:

    The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

    (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 other 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.

26. Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.

27. Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

28. Paragraph 8 of the Direction sets out the following primary considerations in making a decision under section 501(1), 501(2), or 501CA(4):

    (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

29. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 9 of the Direction. 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.

30. The Tribunal now turns to a more detailed consideration of the Direction.

    Primary Consideration 1: Protection of the Australian Community

31. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers are to have 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, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

32. Paragraph 8.1(2) of the Direction requires consideration to be given 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.

    Nature and Seriousness of Conduct

33. Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types   of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than  being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the  department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending  in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    Risk To Australian Community

1. Paragraph 8.1.2(1) of the Direction requires 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 becomes lower as the seriousness of the potential 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.

2. Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the noncitizen to the Australian community, decision makers must have regard to, cumulatively:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)The likelihood of the non-citizen engaging further criminal or other serious conduct, taking into account:

   (i)information and evidence on the risk of the non-citizen re-offending; and

   (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   (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.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

3. Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of  the family violence engaged in by the non-citizen.

4. Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:

   (a)the non-citizen has been convicted of an offence, found guilty of an offence, or had  charges proven, howsoever described, that involve family violence; and/or

   (b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.

5. Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family  violence engaged in by the non-citizen, the following factors must be considered where relevant:

   (a)the frequency of the non-citizen’s conduct and/or whether there is any trend  of increasing seriousness;

   (b)the cumulative effect of repeated acts of family violence;

   (c)Rehabilitation achieved at time of decision since the person’s last known act  of family violence, including:

   (i)the extent to which the person accepts responsibility for their family violence related conduct;

   (ii)The extent to which the non-citizen understands the impact of their behaviour on the abuse and witness of that abuse (particularly children);

   (iii)efforts to address factors which contributed to their conduct; and

   (d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.

   PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

6. Paragraph 8.3(1) of the Direction requires decision-makers making a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

7. Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is,  or would-be, under eighteen years old at the time of the decision.

8. Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

9. Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:

   (a)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);

   (b)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 eighteen, and including any Court orders relating to parental access and care arrangements;

   (c)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;

   (d)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;

   (e)whether there are other persons who already fulfil a parental role in relation to the child;

   (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g)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; and

   (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

   PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

10. Paragraph 8.4 of the Direction details the expectations of the Australian Community as follows:

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

    (2)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.

    (3)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.

    Other Considerations

11. Paragraph 9(1) of the Direction requires decision makers to take into account other considerations, including, but not limited to:

    (a)International non-refoulement obligations, in accordance with paragraph 9.1;

    (b)Extent of impediments if removed, in accordance with paragraph 9.2;

    (c)Impact on victims, in accordance with paragraph 9.3; and

    (d)Links to the Australian community, reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.

12. The Tribunal now turns to a consideration of the evidence before it.

    Evidence before the Tribunal

    Documentary Evidence

13. Attached to his Request for Revocation form, dated 9 December 2020, was a handwritten statement from the Applicant.[12] He referred to the untimely death of his mother in 2005 and that prior to that time, his father had gone into hiding to escape, “the clutches of a corrupt government. The same people who were hunting my father were now threatening to harm my sisters and myself. Fleeing our home was the only option we had.” He said he no longer had any ties to the Sudan and that Australia was now his home. He blamed his incarcerations on his, “ongoing battle with alcohol addiction.” He said he was now aware of his addiction and was addressing it, “through education on alcohol dependency, along with counselling, in regard to rehabilitating and abstaining from alcohol altogether.” He expressed confidence that he could become a valued and respected member of the community. He said, “… unfortunately my family are now inadvertently victims too. I have let them down completely.” He recounted the circumstances which led him to flee his home country. His entire family, comprising four sisters, were Australian citizens and he said he had a child of his own who was born in Australia.

    [12]    Exhibit 2, Supplementary Section 501G Documents, pages 69 to 71.

14. The Applicant submitted one Personal Circumstances form, dated 3 November 2020[13] and another, dated 8 November 2020.[14] What follows is a composite of information provided in the two parts of which were, in each form, left blank. In both forms, at Item 2, where the Applicant was asked to describe his current citizenship status, he described himself as a permanent resident. However, in both forms, he simultaneously described his stepsister and sisters as being of Sudanese nationality. The Applicant was born in Sudan in 1989, as were his parents, who have never entered Australia. He entered Australia in October 2006, in company with his three sisters, the youngest of whom was born in 2002, and his stepsister. All these siblings currently reside in Australia. He has applied twice for Australian citizenship but failed both times due to his lack of English proficiency. In his first form, he nominated, as his contact, a woman (who shall be identified only as “A”) as being his de facto partner, yet in the second form, he nominated one of his sisters. In both forms, he asserted that he had a de facto relationship and variously described the start date as both 2008 and 2009. He said he would be living with his de facto partner upon returning to the community.

    [13]    Exhibit 1, Section 501G Documents, G2, pages 74 to 89.

    14   Ibid, pages 90 to 104.

15. The Applicant said he had met A in high school and that they had known each other in Africa. He described his present relationship with A as, “currently good.”. They share a daughter and plan for more children and to settle down. He said that a negative outcome for his application would, “really effect her mentally and physically” and that they needed to be together to raise their daughter. The Applicant said his partner relied on him financially and emotionally and that his absence would damage her mental health irreparably, which would adversely affect their daughter. Although his partner was from Sudan, he considered that it would be unsafe for them to return and that this was not an option.

16. The Applicant identified his only minor child as his eleven-year-old daughter (who shall be referred to as “L”), a Sudanese citizen. In the first Personal Circumstances Form he described her nationality as Sudanese, and in the second he described her nationality as Australian. When asked to provide details of any court orders that related to his minor children, the Applicant said he was trying to get full custody of his daughter who was in the custody of Family and Community Services (“FACS”), along with her other siblings, as her mother could not cope without his support. He described his relationship with L as strong, and said he’d always been there for her until last year when he was placed in immigration detention. She had resided with him on a full-time basis in a loving and caring environment. He expressed a desire to be with her to help her mentally. He said that if he were deported, it would really shatter L because he’d always been there for her. Despite her getting taken into care last year, he’d always been there for her, and he did not know how she would cope without him. He said he could see no reason why FACS would not allow his daughter back into his care once he is released. He said his de facto wife suffered from severe depression and he could not say for certain that she would be able to cope with bringing up the child without his help. He said the same could be said for her siblings, to whom he was a father figure.

17. When asked to list all other minor children in his life, in the first Personal Circumstances Form, the Applicant nominated only one child, a ten-year-old girl (who shall be described as “E”), but described no relationship with her, and no impact of a negative outcome to this application. This child was not listed in the second form (unless under another name). In the second form, rather than listing just one child in this category, the Applicant listed eight, three of whom were over eighteen. Of the remaining five children, only one was a male; all were listed as Australian citizens; their parents’ names were left blank, as were the addresses. The Applicant’s relationship with the children was described variously as ‘in-laws’ and ‘co-carer’.

18. The Applicant said that his partner had taken over the role of carer for her siblings due to her mother suffering from alcoholism. He had assumed the same role, which he intended to continue if he is permitted to stay in Australia. He said his role with his partner’s siblings is similar to the one he has with his own child and the impact on them will be the same.

19. When asked to outline factors contributing to his offending, in the first Personal Circumstances Form the Applicant said that at the time of the offence he was facing financial hardship and problems with his girlfriend which led him to drink and take drugs. In the second form he said that alcohol is not prevalent in Sudan like it is in Australia. He said it is also part of Australian culture; a culture that he tried to embrace. He said, “unfortunately however, it is a culture that doesn’t agree with me. I now realise that I have a problem with alcohol that can be fixed through counselling, AA meetings and abstinence.” He said he was learning things that would help in his recovery and with continued support, he believed he could conquer his reliance on alcohol as a crutch. The Applicant listed several courses he had undertaken in support of this objective. He said alcohol was the common factor in all his offending and stressed that he was taking measures through education, counselling and Alcoholics Anonymous meetings to minimise the risk of his reoffending. He believed his risk of reoffending was minimal.

20. The Applicant said that he had completed High School Certificate at Doonside Technology High School, in New South Wales. He also listed continuous employment since 2010, with positions ranging from chicken catcher to manager. He said that he had had full employment since 2010 and had undertaken volunteer work for the Salvation Army for ‘Youth of the Streets’. He expressed the view that his daughter, family, and de facto partner would be shattered by his removal from Australia.

21. The Applicant said that he suffered Attention Deficit Hyperactivity Disorder, and depression – anxiety. He said he was being treated at Odyssey House and St Vincent’s Hospital.

22. In his first Personal Circumstances Form, the Applicant did not express any concerns about what would happen to him if he would return to his own country of origin. In the second form, he said that the people who were hunting his father would seek revenge by targeting him. He said that being classed as a returned refugee was an offence in his birth country, such that he would be imprisoned upon his return. He also said that he did not face any criminal charges in his country of origin. He said he would have no family there and would basically be destitute, without support from family and friends.

23. The Applicant said that he was truly sorry for the harm and inconvenience his actions had caused and that he still hoped, one day, to become a citizen of Australia and a valued member of the community.

24. In support of his request, the Applicant provided a handwritten, undated statement[15] from his sister, Ms Manol Lado, who pleaded that he be given another chance to redeem himself. She said there was no doubt that he had made a lot of stupid mistakes and choices that had led him to trouble with the authorities. She said he was not a bad person and that he had been the backbone of their family since the death of their mother; looking after them and paying all the bills. She said he had promised her that he would change by not doing stupid things and hanging around with gangs on the street. She said that she was very angry and sick of his lifestyle and had given him a last warning. She said that his daughter cried every day for her father.

    [15]    Ibid, page 133

25. The Applicant also provided a Certificate of Compliance, dated 25 March 2021, from the New South Wales Department of Justice and Corrective Services which demonstrated that he had met all the requirements to complete the 20-session EQUIPS Addiction Program.[16]

    [16]    Ibid, page 134.

26. The Applicant also provided an unsigned email, dated 23 April 2021, from Mr Kennedy Henry.[17] Mr Henry described his relationship with the Applicant as being, “more like a brother” and said he had known him for twelve years. He said that the Applicant had been going through a lot of traumatic events in his life due to what he described as, “cultural clutch and family breakups.” He said that the Applicant was the only man in his family and that he had four sisters, five nieces and one daughter who looked up to him and depended on him (in terms of leadership advice and so on). He said this hard responsibility, and his lack of experience growing up without any of his parents, had affected him, leading to drug abuse and gambling. He said he believed the Applicant regretted his wrong decisions and was working on making himself a better person. He said the Applicant was an intelligent person with a kind heart.

    [17]    Ibid, page 139.

27. The Applicant also provided an unsigned email, dated 24 April 2021, and accompanying letter of support from Mr Charles Wani.[18] Mr Wani said that he was an Australian citizen and had known the Applicant since he came to Australia. He said that he had been a close friend of his for many years and had watched him grow into, “a responsible person, learning how to adjust into Australian way of life through gaining some good moral characters and being a good citizen. He worked hard for a better life and managed to have a family (one daughter).” He said the Applicant had learned a lot from his mistakes and would follow and respect the laws without any objection in the future. He said that he would adjust and become a better person and that he was now a different person. Mr Wani said that he was quite sure that the Applicant had learned and changed, requesting that the Applicant be given another chance to remain in Australia.

    [18]    Ibid, pages 140 to 141.

1. The Applicant also provided an unsigned, undated statement from Mr Godwin Anyanwu,[19] who said he had known the Applicant since 2012 from when they used to work together. He described the Applicant as a very hard-working man and a kind-hearted person. He pleaded for the Applicant to be forgiven and for the Department to give him a second chance. He said he was sure that the Applicant had regretted his wrongdoings.

   [19]    Ibid, page 142.

2. The Applicant also provided a certified New South Wales Birth Certificate for his daughter, L.[20]

   [20]    Ibid, pages 193 to 194.

3. The Applicant also provided a Remand Domestic Abuse Letter of Attendance[21] from the Offenders Services & Programs, Corrective Services New South Wales Department of Justice, dated 8 May 2020, which recorded that the Applicant had attended six sessions of ‘Remand Domestic Abuse’, conducted on 7 and 8 May 2020.

   [21]    Ibid, page 195.

4. The Applicant also provided a letter[22] from the New South Wales Department of Communities and Justice, dated 20 May 2021, which stated that the Applicant’s daughter, L, was under the Parental Responsibility of the Minister until the age of eighteen, and that she was currently residing with a departmentally certified carer.

   [22]    Ibid, pages 196 to 197.

5. On 17 June 2021, the Department wrote[23] to the Applicant requesting that he provide comment on further attached information consisting of:

   ·Sentencing remarks of the Local Court of New South Wales at Parramatta on 26 October 2020[24];

   ·Sentencing remarks of the Local Court of New South Wales at Blacktown on 23 July 2020[25];

   ·Sentencing remarks of the Local Court of New South Wales at Blacktown on 4 April 2019[26];

   ·Sentencing remarks of the Local Court of New South Wales at Blacktown on 6 September 2017[27]; and

   ·Notice of Intention to Consider Cancellation, dated 14 October 2020 and an acknowledgement letter, dated 22 October 2020.

   [23]    Ibid, pages 198 to 201.

   [24]    Ibid, pages 40 to 41.

   [25]    Ibid, pages 42 to 56.

   [26]    Ibid, pages 57 to 60.

   [27]    Ibid, pages 61 to 64.

6. On 28 June 21, the Applicant’s representative wrote to the Department providing comment, as requested in the Department’s letter of 17 June 2021.[28]

   [28]    Ibid, pages 202 to 211.

7. It is convenient at this juncture to set out in chronological order extracts of the various sentencing remarks in respect of which comment was invited, followed by a summary of the comments offered by the Applicant.

   Sentencing of 6 September 2017

8. On 6 September 2017, the Applicant was dealt with by Magistrate Robinson in the Local Court at Blacktown for the offences of:

   ·Contravene prohibition/restriction in apprehended violence order (Domestic);

   ·Fail to appear in accordance with bail application; and

   ·Common assault (DV) – T2.

9. Before her Honour, via his legal representative, the Applicant denied that he had, “grabbed the victim by her throat for a second before letting go” and that, “this caused the victim to feel a little pain to her throat and to feel weak in herself.” Her Honour replied, “the facts are as they are” and said that it was, “a serious matter.”[29]

   [29]    Ibid, page 61, lines 45 to 50; page 62, lines 1 to 10.

10. Extracts of her Honour’s sentencing remarks include the following:[30]

    [30]    Ibid, page 63, lines 3 to 50; page 64.

    The offender in this matter… Who is 27 years of age appears for sentence today on two matters of domestic violence involving his sister, together with a fail to appear. The failure to appear arises from him having not attended on a prior occasion when the matter was listed for sentence. The matters before the Court are of common assault and breach AVO. They both involve his sister. At the time of the offences, the offender was 27 years of age approximately, and his sister was 14 years of age. There is some contest to one aspect of the facts but I deal with the matter on the basis of those facts today. The facts indicate what can only be described as a prolonged occasion of violence directed by this accused to his younger sister.

    In circumstances where he was acting as the father figure and attempting to discipline her. The violence involved him grabbing her by the throat for a second before letting go, slapping her to the arms and body, punching her with a closed fist to her arms and body, pushing her on her left arm causing her to hit the wall. Using his chest to push against her to prevent her from leaving, slapping her on the left leg, touching her on the right leg and stomach multiple times with both fists and lifting her right leg up into the air and continuing punching her in the right thigh. There is also a further episode of them each punching each other. The matter is aggravated by the fact that they occurred within the home of the complainant, his sister.

    Also in the presence of a number of children which are in essence the younger siblings of these two. A plea of guilty was entered to the offences at an early opportunity, there was some contest to the facts. The contest relates to the allegation of the offender grabbing his sister around the throat for a second. Outside of these matters the offender has a limited history and not one that includes matters of violence or domestic violence. Sorry, not one that includes domestic violence, he has had matters involving police and assaulting police officers on prior occasions. There is a short presentence report before the Court and I have heard further submissions regarding the subjective circumstances of the offender.

    One of the matters that comes before the Court is a breach of an apprehended violence order, the breach is by way of violence, section 14 (4) of the relevant Act indicates in those circumstances a term of imprisonment must be considered by the Court or must be imposed by the Court. That fact by itself coupled with the extent of violence involved on this occasion leads me to form the view that a section 9 bond is a completely inadequate and inappropriate way to deal with the matter. As I have indicated already in the course of submissions I am of the view not only because of section 14 (4) but because of the nature of the violence that was involved over a lengthy period of time that nothing other than a term of imprisonment is the appropriate sentence.

    The only issue to consider is whether or not that term of imprisonment should be by an alternative means such as an intensive correction order or by way of suspending the sentences with some reservation I propose to adopt the latter course and suspended the term of imprisonment that I intend to impose. I do so and I do find that there is some basis for support for the proposition that there is a possibility of possible grounds for rehabilitation for this offender, given the absence of any prior domestic violence matters, given his background which shows substantial cultural diversity, given the absence of any further offences since the commission of these offences back in June and given the fact that there appears to be an ongoing relationship with this sister or sibling and others.

    In those circumstances I am prepared to find that the principle of rehabilitation ought to be given more priority than that of denunciation and deterrence in this particular matter. They of course being particularly relevant factor was in sentencing for domestic violence offences and I propose to deal with the matters in that way.

    Mr Lukasa, in relation to sequences one and two you are convicted. You are sentenced to a term of imprisonment of nine months which is suspended on condition that you enter into a bond under section 12 for that period of time.

    The conditions of the bond are that you are to be of good behaviour and you are to accept supervision from the community corrections. You need to go and see them at their Blacktown office within the next seven days. You need to make sure that you don’t commit any further offences whilst you are on those bonds. If you do, I can safely guarantee that you would be looking at full-time imprisonment for that nine-month period. In addition must make sure you cooperate with community corrections and do what they ask you to do.

    You have shown already a history of not complying with the directions that they have made in the preparation of reports. If you continue with that attitude you will find yourself in breach of the supervision condition and then you will be in breach of the suspended sentence and then you’ll be looking at the nine months in custody do you understand that?

    Regarding sequence 3 the Fail to Appear, that matter is dealt with pursuant to section 10 (A) conviction without further penalty.

    [Tribunal bolding for emphasis]

11. The comment provided by the Applicant through his representatives in respect of these sentencing remarks included the following:[31]

    The circumstances of the incident were such that Mr Lukasa being the older brother and seen and respected by his family as a father figure acted as a father figure, was attempting to discipline his younger sister [N]. He recalls N was yelling at M, her older sister, she was grossly disrespectful towards M. Mr Lukasa did not like the way N spoke to her. Mr Lukasa never intended to hurt or intimidate N, she is like a daughter to him, the siblings are a very close-knit family.

    In the sentencing remarks, it is evident that the court acknowledged Mr Lukasa had an ongoing relationship with N and other siblings and that there was a substantial cultural diversity, given the background of the family.

    [31]    Ibid, page 203.

    Sentencing remarks of 4 April 2019

12. On 4 April 2019, the Applicant was dealt with by Magistrate Robinson in the Local Court at Blacktown for the offences of:

    ·Resist officer in execution of duty – T2;

    ·Assault police officer in execution of duty cause actual bodily harm – T1; and

    ·Goods in personal custody suspected being stolen (not M/V); Fail to appear in accordance with bail acknowledgement.

13. Extracts of her Honour’s sentencing remarks include the following:[32]

    The assault on the police officer in particular is a serious matter because you bit him and that is a really terrible way of assaulting someone.  An assault police matter is always a serious offence because the police officer just turns up to do his job and he does not need to be assaulted especially in that way. You have also got a criminal history that shows you have committed these types of offences in the past. So, what I’m going to do is I’m going to give you an overall sentence for all of the offences.…

    The Fail to Appear I am going to deal with by way of a conviction and nothing else.…

    For sequences 12 and three you are sentenced to an aggregate sentence of 10 months with a non-parole period of five months. I have changed the usual ratio because I accept that you need some help in particular for your mental health issues. The indicative sentences, so the sentences that I indicate for the three offences; for the Goods in Custody is one month, for the Resist it is three months and for Assaulting the police officer it is nine months. So all up for that set of offending I have given a 10-month jail sentence, five months on the bottom which started back on 19 March meaning that it will finish on 18 August of this year.

    [Tribunal bolding for emphasis]

    [32]    Ibid, page 60.

14. The comment provided by the Applicant’s representative in respect of these sentencing remarks included the following:[33]

    Mr Goodridge (solicitor) appeared on Amicus curio basis for Mr Lukasa. Mr Goodridge mentioned to court that he took significant instructions in terms of Mr Lukasa’s background in Sudan and other things that had difficulties obtaining clear instructions so asked the court to directly ask Mr Lukasa as to his wishes on how to proceed in the matter.

    On an Amicus basis Mr Goodridge interrupted and told the court that Mr Lukasa had told him earlier how he had been drinking with friends and was very worried about the financial issues and other worries at home. Mr Godoridge (sic) asked the judge to take into consideration the presentencing report which clearly referred to Mr Lukasa’s need to address his mental health issues and alcohol addiction. These factors were taken into account by the judge.

    The sentencing remarks evidently show the judge was sympathetic towards Mr Lukasa’s estate, the judge acknowledged that Mr Lukasa needed help, in particular for his mental health issues.

    [33]    Ibid, page 204.

    Sentencing remarks of 23 July 2020

15. On 23 July 2020, the applicant was dealt with by Magistrate Stewart in the Local Court at Blacktown for one offence of:

    ·Stalk/intimidate intended fear physical etc harm (domestic) – T2.

16. Extracts of his Honour’s sentencing remarks include the following:[34]

    [34]    Ibid, page 54.

    The victim in the matter refused to provide police with a statement in relation to the incident. She said the defendant was intoxicated, had been drinking alcohol early in the morning and that he had been consuming marijuana. He made admissions to that. Police noted he was very erratic, talking to himself, and formed the view he was under the influence of other substances besides alcohol.  Those comprise the facts.

    The offender’s record is one that affords him little leniency .  An assault police matter in 2011, in other words a matter of violence.  A further assault police matter in 2011. Offensive manner, resisting police matters.  Alcohol appears to be a factor.  Mid-range matter 2015. A drug matter 2016. Possession that is.  Contravene AVO and common assault in 2017 for which he was imprisoned  but suspended due to section 12 of the Crimes (Sentencing Procedure) Act as it was at the time.

    2019, he was given an aggregate sentence of imprisonment for resisting police, assaulting police causing actual bodily harm, goods in custody …  on appeal, those convictions and sentence were confirmed. The sentence expired on 18 January this year. The offending occurred on 11 January this year, so he was still on parole at the time. That is a statutory aggravating factor under section 21 A  (2) (j) of the Crimes (Sentencing Procedure) Act.

    The intimidation, in my view, is one that is to stop the complainant from calling police. Such conduct has the potential to perpetuate domestic violence by intimidating victims of domestic violence into becoming reluctant. Indeed the victim is reluctant and demonstrated that as set out in the facts. I note there is alcohol and drug issues matters of violence on the record.

    I would have to say his prospects of rehabilitation are guarded. I cannot say that he is unlikely to reoffend, notwithstanding the fact that he has taken part in the Positive Lifestyles Program and DV course. There is a reference provided by R? and M?. They are siblings of the defendant. I have read that document as well.

    The objective seriousness, I do not agree that it is in the low range at all. It is a matter that sits probably just below the mid-range, but domestic violence simply will not be tolerated as to trying to persuade witnesses not to call police. It simply will not be tolerated. It is conceded appropriately, that s. 5 is crossed and that only a period of imprisonment is appropriate. I note that his parole was revoked. He served a period of seven days in relation to that. …

    I will make final orders for the protection of A… For a period of two years.…

    His Honour: The orders are as follows, Mr Lukasa. I want you to tell me whether or not you understand this. You’re not to do any of the following to A or anyone with whom she has a domestic relationship. You must not assault or threaten, stalk harass or intimidate, intentionally or recklessly destroy or damage property belonging to her or in her possession. Do you understand that?

    Accused: Yes I understand. That’s not my wish your Honour. I am trying to set my life together and get the custody of my daughter. So I’m trying to start my life, you know, and I’m not looking to do anything stupid again.

    His Honour: thank you. You must not approach or be in the company of A for at least 12 hours after drinking alcohol or taking illicit drugs. Do you understand that?

    Accused Yes, your Honour.

    His Honour: That doesn’t mean getting drunk. It means even having a sip of alcohol means you’ve got to stay away.

    Accused: Yes, your Honour.

    His Honour: Thank you. The orders are in place for a period of two years. I must warn you that a breach of those orders carries a $5500 fine and two years’ imprisonment as a maximum penalty.

    Accused: Just one thing, your Honour, for my understanding. I’m allowed her to be around her, but if I’m under influence of alcohol or drugs I have to step away, yes?

    His Honour: Yes.

    Accused: Alright. Thanks a lot for that.

    His Honour: for 12 hours you can’t go anywhere near.

    Accused: No worries, your Honour.

    [Tribunal bolding for emphasis]

17. The comment provided by the Applicant’s representative in respect of these sentencing remarks included the following:[35]

    The complainant was [A], his partner of 10 years, and the mother of his child.

    Mr Lukasa had pleaded guilty to intimidation on 15 January at the very earliest opportunity and the other charges were withdrawn.

    A conviction was recorded and Lukasa was sentenced to imprisonment of six months from 11 January to 10 July.

    Comment

    The judge made an ADVO with the mandatory conditions and explained the orders to Mr Lukasa, when asked by the judge if he understands that?

    Mr Lukasa replied “Yes I understand, that’s not my wish (i.e. to stalk harass or intimidate his partner), I am trying to set my life together and get the custody of my daughter, I am trying to start my life, I am not looking to do anything stupid again.”

    It is submitted Mr Lukasa was trying very hard to address his ongoing issues and desperately wanted to change for the sake of his family and for his daughter.

    [Tribunal bolding for emphasis]

    [35]    Ibid, page 204.

    Sentencing remarks of 26 October 2020

18. On 26 October 2020, the Applicant was dealt with by Magistrate Brender in the Local Court at Blacktown for one offence of:

    ·Affray.

19. Extracts of his Honour’s sentencing remarks include the following:[36]

    You are charged with affray and that can carry a 10-year jail sentence. Two years is the maximum in this Court. You have pleaded guilty at the earliest opportunity which is today. This happened on 29 September. I note that you have been in custody since 1 October. The facts on which you are being sentenced are that you did not know the victim; you were intoxicated to the point the police could not interview you; you hit the back of the victim’s head with a closed fist and then you straddled him, and you continued to strike him two or three more times. This is in front of police. He had injuries, including blood, grazing and the like.

    This sort of intoxicated conduct in public against innocent people has got to be strongly condemned. Your criminal record is not assisting you. You had a couple of matters of violence in 2011 when you assaulted and resisted an officer and then a further matter in 2014 were you resisted an officer, and then you have had three matters which have crossed the threshold for a jail term; some proceedings in 2017 for common assault and contravening an AVO, then some proceedings in 2019 for assaulting police causing actual bodily harm and resisting police, as well as goods in custody. Then finally, the matter that you are currently serving a two-month term for, stalk intimidate, domestic violence related. Sorry I withdraw that.  That is the third one and then the fourth is another contravention AVO for two months from 1 October.

    I have heard the evidence that you have been in Australia since 2006. You came from difficult circumstances overseas with your mother. You have been in and out of jail; you have been using ice at least since 2014. You have had some time in Cumberland Hospital. No doubt whatever your difficulties were before, they were only made worse by the use of ice. In all the circumstances I think there has to be a jail term. I have to make a finding that there is some special circumstances as a result of your need for rehabilitation and the danger that you’re going to end up institutionalised; but there needs to be some consequences for this sort of conduct and you obviously need some time in custody which might give you the benefit of getting you off these drugs and making you think about how you want to spend the rest of your life.

    I propose to impose a 12-month term with a non-parole period of six; special circumstances involving the need for right hand. I will date it from 1 October, which is when you went into custody, which gives you the benefit of almost a month overlapping. So you will be eligible for release on 31 March next year, then you will have six months on parole.

    [Tribunal bolding for emphasis]

    [36]    Ibid, page 40.

1. The comment provided by the Applicant’s representative in respect of these sentencing remarks included the following:[37]

   The sentencing remarks confirms (sic) the judge acknowledged Mr Lukasa’s dire situation and his appalling background, which included his arrival to Australia in 2006, his difficult circumstances overseas, his issue with ice since 2014, his delicate mental health and time spent at the Cumberland Hospital to address his mental health issues. The judge made a finding of some special circumstances and a need for rehabilitation.

   A 12-month term with a non-parole period of six months. The judge encouraged Mr Lukasa to see this as an opportunity to get off the drugs and contemplate on how he would want to spend the rest of his life.

   Comment

   The transcripts indicate Mr Lukasa pleaded guilty to the offences at the first given opportunity, he genuinely made an effort to change himself, however unfortunately his early history in Sudan where his family was ostracised haunted him, and he kept relapsing, but he did not give up.

   The sentencing remarks in relation to the offences also indicate that the court had been sympathetic towards Mr Lukasa and encouraged him to seek help.

   Mr Lukasa shows deep regret in relation to his conduct and accepted that his conduct was unacceptable. He wanted to change for his only child, his daughter, he continues to work towards being a good man and a good father. Mr Lukasa wishes to provide a safe secure home for his daughter, he wants to give her everything he never got, love, guidance, encouragement and a complete fulfilling childhood.

   [37]    Ibid, page 205.

2. The submission by the Applicant’s representative also recounted the Applicant’s early life in Khartoum, Sudan. In particular, how his parents were separated, and how, from the age of nine, he worked in his mother’s illegal alcohol supply business. The associated police harassment of his mother led to her frequent arrest and imprisonment. It was said that he was also arrested by police and lived in fear, uncertainty, and despair. From an early age, he assumed the role as father to his siblings, particularly during periods of his mother’s imprisonment.

3. Following the death of his mother, he and his siblings were forced to leave the country and moved to Egypt. It is from there that they migrated to Australia on refugee visas. It was contended that he did not know how to fit into Australian society, and, “got mixed up with the wrong crowd.” It was also submitted that the Applicant started drinking, taking drugs, and getting into trouble with the law.

4. Around 2007, the Applicant met A, who became his partner and the mother of his child, L (born in 2010). However, he started gambling and drinking, eventually losing all his savings. A’s parents separated in 2016 and she took on the responsibility of her seven younger siblings, who went to live with her and the Applicant.

5. Referring to the Applicant’s assault of his youngest sister, his representative submitted that, “he tried to discipline her, it went out of control. Mr Lukasa understands he overreacted, he is very sorry for his actions.” They further submitted that he and his partner A, “never had physical fights.”[38]

   [38]    Ibid, pages 206 to 207.

6. The Applicant’s representative also reported that in 2019, the Applicant’s “emotional pain from the past and his situation at the time was unbearable.” This caused him to get intoxicated, which led to a fight between a police officer and the Applicant.  Around 2020, the Applicant had no job or money, and the children were taken away by the Department of Communities and Justice (“DCJ”). Eventually A called the police. The Applicant’s representative submitted that, “Mr Lukasa recalls saying words to the effect “I have not hit her, but I will if she doesn’t stop…”.” This led to his arrest, charge and subsequent conviction.

7. The Applicant’s representative also submitted that his child, L, has been in the care of the DCJ and that the Applicant had tried, in the past, to get in touch with her, maintaining that she was very close to him. He had expressed fears for her mental health and was concerned that he did not want her to go through the same experience as he had had. He blamed his repeat offending, alcohol and drug addiction on lack of good role models in his early life. His representative submitted that his long-term plan was to: continue to work on his rehabilitation, remain drug and alcohol free, find a job and house, as well as to have his daughter, L. back in his life, full time.

8. The Applicant’s representative also made submissions in relation to Direction 90, which the Tribunal has considered.

9. Regarding the nature and seriousness of the Applicant’s conduct to date, his representative submitted that nearly all of his offending had been linked to his alcohol use and mental health issues. They also submitted that his family violence offending was, “influenced by the cultural values the Applicant grew up with” and that the incidents were on the lower scale of the objective seriousness of the offence. They also submitted that the, “Australian community at large has not been subjected to violence [committed by the Applicant].”

10. Regarding the risk to the Australian community should be Applicant commit further offences or engage in other serious conduct, his representative referred to numerous programs and psychological rehabilitation programs undertaken by the Applicant between 2018 and 2020. It was submitted that he wished to continue engagement with professional services to address his issues and as such, it was highly unlikely that the Applicant would engage in violent crime in the future.

11. Regarding the family violence committed by the Applicant, his representative referred to his, “very difficult childhood” and submitted that he could not cope with the amount of responsibility given his financial stress and pressure from the DCJ, which led him to be, “crushed under [the] pressure”.

12. Regarding the best interests of minor children in Australia, the Applicant’s representative submitted that his return to Sudan would have a devastating impact on his daughter who would have to grow up without him. They submitted that, “Mr Lukasa has never physically abused any children in his care including his own siblings and his daughter.”

13. His representative also made submissions regarding the expectations of the Australian community that the Applicant, “has met to some extent the expectations of the Australian community.”

14. Regarding international non-refoulement obligations, the Applicant’s representative submitted that the Applicant was a person in respect of whom Australia owed obligations under The Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and the International Covenant on Civil and Political Rights (“ICCPR”). They submitted he would suffer serious harm, or there was a real risk that he would suffer significant harm on the basis of his mental health. There was also a real chance that he would suffer significant harm on the basis of his race, ethnicity or nationality, or on the basis of civil unrest and the humanitarian crisis in Sudan.

15. Regarding the strength of nature and duration of the Applicant’s ties to Australia, the Applicant’s representative submitted that he had lived in Australia since arriving as a seventeen-year-old, in 2006. He had been on Centrelink for a short time, after which he started working full-time and contributed towards supporting his family until his incarceration. He had supported his siblings, his partner, her siblings and other family members. He had been involved in his daughter’s life and wish to maintain that role. It was submitted that he maintains strong ties with his siblings, his partner’s family and his daughter.

16. Regarding the impact on victims, it was submitted that it would have a negative impact on his daughter, L, if he were to be sent back to Sudan.

17. Regarding the extent of impediments if removed, it was submitted that the Applicant had been born in Khartoum, Sudan, and that the country was now divided into two countries – Sudan and South Sudan. The Applicant’s representative submitted that the Applicant’s father had fled Sudan and had gone into hiding to escape political persecution. As such, if the Applicant were to be sent back, he was, “certain he will be prosecuted by the authorities for fleeing Sudan in the first place.”

18. It was further submitted that the Applicant is suffering from serious personality traits and mental health issues, and would not be able to gain much needed access to appropriate psychological, or psychiatric services there.  It was submitted that, “there is strong possibility that he will continue to abuse alcohol and will put himself in danger of violent confrontation[s] with others in Sudan and most likely this will lead to his (sic) being punished by the criminal justice system in Sudan.” It was further submitted that he would get very limited social, medical, or economic support there, given the amount of time is been absent from the country. It was also submitted that he would have, “difficulty to pick up the language and culture of Sudan.” [Tribunal bolding for emphasis] It was further submitted that the Applicant’s lack of family and support, limited chances of finding employment, language and cultural barriers, political persecution and Sudan’s civil unrest would destroy him, leaving no hope if he was to be refouled.

19. It was further submitted that there would be hardship and harm to the Applicant because he would be permanently separated from his family in Australia, and this is the only family he has. It was submitted that he is stateless, and, “at the mercy of the Sudanese government on whether they accept him as a citizen.” It was submitted that owing to a range of factors, he would not be able to survive for long.

20. The Applicant’s representative also submitted that the Applicant was remorseful, showed insight, and took responsibility for his actions and was willing to undertake rehabilitation programs. He wished to keep in contact with his daughter and his sisters. He was also eager to engage in programs that would assist him.

21. The complete suite of written material forming the Exhibit Register is further particularised in Annexure A to these reasons. In support of his application, the Applicant also submitted the various documents listed in the Exhibit Register as Exhibits 4 through 10, 12 through 13 and 17.

    Applicant Evidence at Hearing

22. Mr Nikjoo conceded that his client’s record of offending, as set out in paragraph 3 of the Respondent’s Statement of Facts Issues and Contentions[39] (and set out below) was accurate:[40]

    [39]    Exhibit 3, Respondent Statement of Facts, Issues and Contentions.

    [40]    Transcript (10 January 2022), page 6, line 6.

Court	Date	Offence	Result
Parramatta Local Court	26/10/2020	Affray-T1	Imprisonment: 12 months Commencing: 01/10/2020 Concluding: 30/09/2021 Non-parole period: 6 months
Blacktown Local Court	01/10/2020	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 2 months Commencing: 01/10/2020 Concluding: 30/11/2020
Blacktown Local Court	23/07/2020	Stalk/intimidate intend fear physical etc harm (domestic)-T2	Imprisonment: 6 months Commencing: 11/01/2020 Concluding: 10/07/2020
Blacktown Local Court	10/10/2019	Possess prohibited drug	Fine:$500
Parramatta District Court	18/07/2019	Resist officer in execution of duty-T2	Order confirmed on appeal Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months
Parramatta District Court	18/07/2019	Goods in personal custody suspected being stolen (not m/v)	Order confirmed on appeal Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months
Parramatta District Court	18/07/2019	Assault police officer in execution of duty cause abh-T1	Order confirmed on appeal Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months
Blacktown Local Court	04/04/2019	Fail to appear in accordance with bail acknowledgment	S10A conviction with no other penalty
Blacktown Local Court	04/04/2019	Fail to appear in accordance with bail acknowledgment	S10A conviction with no other penalty
Blacktown Local Court	04/04/2019	Resist officer in execution of duty-T2	Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months Severity appeal lodged
Blacktown Local Court	04/04/2019	Assault police officer in execution of duty cause abh-T1	Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months Severity appeal lodged
Blacktown Local Court	04/04/2019	Goods in personal custody suspected being stolen (not m/v)	Imprisonment (aggregate): 10 months Commencing: 19/03/2019 Concluding: 18/01/2020 Non-parole period with conditions: 5 months Severity appeal lodged
Blacktown Local Court	06/09/2017	Common assault (DV)-T2	Imprisonment: 9 months Commencing: 06/09/2017 Concluding: 05/06/2018 Suspended on enter bond s12: 9 months Supv NSW prob service obey all reasonable directions for counselling, education development or drug and alcohol
Blacktown Local Court	06/09/2017	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 9 months Commencing: 06/09/2017 Concluding: 05/06/2018 Suspended on enter bond s12: 9 months Supv NSW prob service obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation
Blacktown Local Court	06/09/2017	Fail to appear in accordance with bail acknowledgment	S10A conviction with no other penalty
Blacktown Local Court	01/11/2016	Licence expired less than 2 years before- first offence	Fine: $600
Blacktown Local Court	27/04/2016	Possess prohibited drug	Fine: $300 drug to be destroyed
Blacktown Local Court	16/02/2015	Drive with middle range PCA- 1st off	Fine: $500 Disqualification- driver: 12 months
Blacktown Local Court	16/02/2015	Drive, licence suspended under s66 Fines Act- 1st off	Fine: $500 Disqualification- driver: 3 months
Blacktown Local Court	11/09/2014	Resist officer in execution of duty-T2	Fine: $500
Blacktown Local Court	11/09/2014	Behave in offensive manner in/near public place/school	Fine: $500
Downing Centre Local Court	09/07/2013	Excluded person remain in vicinity of licensed premises	Fine: $500
Penrith Local Court	23/06/2011	Assault police officer in execution of duty w/o abh- T2	Fine: $500 Bond S9: 12 months
Penrith Local Court	23/06/2011	Resist officer in execution of duty- T2	Bond S9: 12 months
Penrith Local Court	23/06/2011	Assault officer in execution of duty- T2	Bond S9: 12 months Costs- Court: $79

1. The Applicant gave evidence of having made his statutory declaration, dated 5 January 2021, and his written statement.[41] He was taken to Australian Criminal Intelligence Commission Check Results Report.[42] When asked why he committed his last offence of Affray and Contravene AVO, he said that he, “wasn’t in the right state of mind” and that he, “was under the influence of alcohol and drugs.”[43]

   [41]    Ibid, pages 65 to 71.

   [42]    Ibid, page 35.

   [43]    Transcript (10 January 2022), page 8, lines 10 to 19.

2. He was referred to his statement,[44] where he noticed his mental health issues in 2015. He said he realised that every time he was under the influence of alcohol or drugs, he got into trouble. He stated that he tried counselling, but it did not work. He was also dealing with gambling and family problems. He said he knew he had depression then, but he did nothing about it.  He was put on medication while he was in gaol but stopped the medication after he was released.[45]

   [44]    Exhibit 9, Applicant Statement.

   [45]    Transcript (10 January 2022), page 9.

3. He said that he had attended drug and alcohol counselling at Odyssey House and Cumberland Hospital. He said he felt bad about himself, separated from his family his daughter and his freedom.[46]

   [46]    Ibid, lines 27 to 47; page 10, lines 1 to 23.

4. The Applicant referred to courses he had undertaken to assist him with his drug and alcohol addictions between 2019 and 2021. These included the EQUIPS Addiction Program[47] and the Remand Domestic Abuse Program.[48]

   [47]    Exhibit 1, Section 501G Documents, G2, page 134.

   [48]    Ibid, page 195.

5. When asked by Mr Nikjoo when he had last used ice, he said he had used it whilst in immigration detention.[49]

   [49]    Transcript (10 January 2022), page 11, lines 1 to 5.

6. The Applicant was referred to a conversation between himself and Magistrate Stewart.[50] After initially stating that he remembered the discussion, the Applicant recanted and said that he didn’t remember.[51] He was referred to a passage wherein he had said to the Magistrate, “I’m not looking to do anything stupid again.”[52]

   [50]    Exhibit 1, Section 501G Documents, G2, page 55.

   [51]    Transcript (10 January 2022), page 12, lines 1 to 4.

   [52]    Exhibit 1, Section 501G Documents, G2, page 55, line 20.

7. He was then asked by Mr Nikjoo why he committed another offence just a few months after this statement. The Applicant stated that he had been drinking and gotten jealous of his ex-partner, who had recently ended her relationship with him, when she had invited him to stay at her home whilst a friend (whom the Applicant suspected was his ex-partner’s current partner) was also there. He said, “like, I asked myself, like I just got out of gaol, why the hell did I do such a thing you know.” He said all his offences were because of alcohol and drugs, and maintained:[53]

   …I am not a bad person actually. Like I’m not a troublemaker. I’m not like this – it says all in this statement that I’m dangerous to the community. Like I never harm anybody you know. All the harm I was causing was either toward myself or toward my family or toward the law enforcement, which the law of enforcement is kind of traumatic, like, from childhood. Like seeing my mum always getting taken by police because she was selling alcohol and, like, I always did like them. And when I got here I started drinking. What do you call it? It started to trigger that trauma again and that’s how I reacted against them.

   [53]    Transcript (10 January 2022), page 12, lines 28 to 37.

8. The Applicant said that he now knows the consequences of his actions and is growing up. He acknowledged that if he offends further, he will be sentenced to prison and moved to detention, meaning he would not see his daughter or family again. He also stated that his daughter is becoming a teenager and needs him to go in the right direction.[54]

   [54]    Ibid, page 12, lines 43 to 47.

9. He stated that he would do his best to fix his mental health and get a job and get his daughter back. When asked by Mr Nikjoo if he had received any warnings about the consequences of his offending, he said that his sister always warned him of the consequences of his conduct, but he did not realise how bad the consequences were. He said he had received a warning from an officer of Corrective Services in 2019 before his release.  Within two months of his release from jail, his daughter was taken and his house was lost. He knows if he is released and reoffends he will be deported.

10. The Applicant claimed to have been disciplining and trying to protect his sister when he, “slapped” her.  He stated:[55]

    At that time the only way I know how to discipline is the one that I grew up with and my father – fathers grew up with, is if you do something wrong you get a little bit of a slap so that you know that you did something wrong. And I, like, a lack of knowledge and education or how things work in Australia, I didn’t know it was the wrong thing to do. But now I realise it that it’s not how we supposed to deal with an issue.

    [Tribunal bolding for emphasis]

    [55]    Ibid, page 14, lines 12 to 17.

1. It has been submitted on the Applicant’s behalf that Australia owes him non-refoulement obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol (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”).

2. 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). Accordingly in considering non-refoulement obligations, the Tribunal 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 obligations 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 197C 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 the visa. This is because such a decision will not necessarily result in removal to the country in respect of which the non-refoulement obligations exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195 A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB 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 recent refusal or cancellation decision or nonrevocation decision, if the non-citizen applies for a protection visa, the noncitizen would not be liable to be removed while their valid visa application is being determined.

   …

   (6) It may not be possible at the section 501/section 501 CA 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 Fact. A decision-maker, in making a decision under section 501/section 501 CA, is not required in every case to make a positive finding with acclaimed 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 is responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations is given effect by the Act, and that noncitizen 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 noncitizen. 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.

3. 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. However, it 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 the Applicant non-refoulement obligations. The Tribunal must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to a receiving country. That assessment will also inform the Tribunal’s 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 wants consideration.

4. The Applicant has claimed that he will suffer harm if returned to Sudan by reason of the fact that:

   (a)the people who were hunting his father will now seek revenge through committing violence against him;

   (b)being a returned refugee is an offence in his birth country so he would consequently be imprisoned upon his return[311];

   (c)there is a real risk that he will suffer significant harm on the basis of his race, ethnicity or nationality and on the basis of the civil unrest and humanitarian crisis in Sudan.[312]

   [311] Exhibit 1, Section 501G Documents, G2, page 103.

   [312] Exhibit 4, Applicant Statement of Facts, Issues and Contentions, page 17, paragraph 48.

5. In accordance with paragraph 9.1(1) of the Direction, the Tribunal proceeds to assess those claims against the tests enunciated in the Act. Section 36 of the Act relevantly provides:

   (1A) An applicant for a protection visa must satisfy:

   (a) both of the criteria in subsections (1B) and one C); and

   (b) at least one of the criteria in subsection (2).

   (1B) A criterion for a protection visa is that the applicant is not as assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

   (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a) is a danger to Australia’s security; or

   (b) having been convicted by a final judgement of a particularly serious

   crime is a danger to the Australian community.

6. There is no evidence before the Tribunal to allow it to gauge the Applicant’s prospects of satisfying section 36(1B) of the Act.

7. Section 5M(a) of the Act provides that a reference in section 36(1C)(b) to a, “particularly serious crime” is a reference to a, “serious Australian offence”. Section 5 of the Act provides a definition of, “serious Australian offence”:

   serious Australian offence means an offence against a law in force in Australia where:

   (a) the offence:

   (i) involves violence against a person;

   … and

   (b) the offence is punishable by:

   …

   (ii) imprisonment for a fixed term of not less than three years; or    

   (iii) imprisonment for a maximum term of not less than three years.

8. The sentencing remarks of Magistrate Brender[313] make it clear that the Applicant has been convicted of the offence of affray, which carries a maximum sentence of ten years’ imprisonment. His strong history of violence clearly demonstrates that he is a danger to the Australian community. Were this Applicant to seek a protection visa, this Tribunal considers he would be unsuccessful, either on the basis of failing to meet the character test, or by reason of failing to meet the mandatory criteria found in section 36(1C)(b). In consequence, he does not meet the requirements of section 36(1)(c), and therefore does not meet section 36(1)(a).

   [313] Ibid, page 40.

9. Whilst it can be accepted that having regard for the Applicant’s former XB (Subclass 200) Refugee Visa, an assessment of any risk he might face in the receiving country raises a threshold question as to what country that might be.

10. Section 5 of the Act provides the following definition of, “receiving country”:

    receiving country, in relation to a non-citizen, means:

    (a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b) if the non—citizen has no country of nationality– a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

11. Section 36(6) of the Act provides for the determination of nationality:

    (6)Determining nationality For the purposes of subsection (3), the question of whether a noncitizen is a national of a particular country must be determined solely by reference to the law of that country.

    The Receiving Country

12. The Applicant entered Australia on a Sudanese passport.  The Applicant did not assert that he had renounced his citizenship of Sudan and gave oral evidence that he has received no notice that he has ceased to be a Sudanese citizen, and has taken no steps to confirm that he continues to be such.

13. The Applicant’s Statement of Facts, Issues and Contentions described the Applicant as a citizen of Sudan[314] but asserted that, “the county since divided into two countries, Sudan and South Sudan, he is not sure where he belongs”. The submission proceeded to assert, without reference to evidence, or law, that, “this renders Mr Lukasa a stateless person at the mercy of the Sudanese government on whether they accept his as a citizen.” [315]

    [314] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 2, paragraph 3.

    [315] Ibid, pages 17 to 18, paragraph 50.

14. The Applicant denied he was guessing when he claimed to be stateless but agreed that he had not attempted to verify that fact with either government.[316] Neither had he taken any steps, nor expressed any interest in taking steps to establish the status of his South Sudanese citizenship. He did say that he had never lived there, even though his parents were born there.

    [316] Transcript (20 January 2022), page 111, lines 4 to 17.

15. There is no evidence before the Tribunal that the Sudanese government has revoked the Applicant’s citizenship or has any plans to do so. Neither the Applicant, nor his representative have taken any steps to contact the Sudanese Embassy to clarify the claimed uncertainty as to his citizenship status, and have provided no argument based on evidence, logic, or law as to how this uncertainty equated to statelessness. Regrettably, Mr Nikjoo misrepresented the Respondent’s position as to the Applicant’s claimed statelessness.[317] He further submitted that the Applicant, “is not a Sudan citizen”,[318] notwithstanding his contrary prior submission[319] to the effect that the Applicant was a, “citizen of Sudan”. Yet, Mr Nikjoo proceeded to submit that for the purpose of this Application, the Applicant is stateless.[320]

    [317] Transcript (21 January 2022), page 155,  lines 4 to 5. cf Exhibit 3, Respondent Statement of Facts, Issues and Contentions, page 12, paragraph 29: “In respect of the Applicant’s claim of statelessness, if that is so…” [Tribunal bolding for emphasis]

    [318] Ibid, lines 13 to 14.

    [319] Exhibit 4, Applicant Statement of Facts, Issues and Contentions, page 1, paragraph 3.

    [320] Transcript (21 January 2022), page 155, lines 4 to 5.

16. The Applicant has provided no credible evidence that he has ceased to be a citizen of Sudan, or to support his claim that he is stateless, or any reasonable basis for making this claim.

17. There is some limited evidence before the Tribunal which supports a finding that he remains a citizen of Sudan, and there is no credible evidence to show that is citizenship status has changed as a consequence of the division of Sudan once he departed.

18. However, the determination of the Applicant’s nationality must be made, “solely by reference to the law of that country.” The relevant law provided in the respective Statement of Facts, Issues and Contentions’ was limited:[321]

    The Respondent refers to the following provisions of the Sudanese and South Sudanese citizenship laws:

    (i)Section 8 of the Nationality Act 2011 (South Sudan), which provides:

    A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements—

    (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or…

    (ii)Subsection 10(2) of the Sudanese Nationality Act 1994 (Sudan), which provides:

    Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.

    [321] Exhibit 3, Respondent Statement of Facts, Issues and Contentions, page 12, paragraph 30.

19. These limited extracts do not provide a sufficient basis for the Tribunal to form a view solely according to the law of either county.

20. On the basis of the limited information before the Tribunal, it is unclear whether the Applicant would wish to, or indeed could provide credible evidence to satisfy the South Sudanese regime, in respect of the requirements of section 8(a) of the Nationality Act 2011 (South Sudan).

21. The Tribunal is unable to form a view as to whether section 10(2) of the Sudanese Nationality Act 1994 (Sudan) impacts his previously acknowledged citizenship of that country.

22. There is not sufficient, credible evidence before the Tribunal to satisfy it that the Applicant is stateless. Left to make a determination on the material before it, the Tribunal is unable to conclude that the Applicant’s Sudanese citizenship has been disturbed. As such, Sudan would appear to be the likely receiving country. This appears to accord with the Applicant’s submissions, discussed in the next paragraph.

    Perceived risks

23. Regarding risks to the Applicant, Mr Nikjoo submitted that:[322]

    He is certain he will be prosecuted by the authorities and will suffer serious harm and/or there is a real risk that he will suffer significant harm on the basis of his mental and physical health…. Mr Lukasa will not be able to gain much needed access to appropriate psychological or psychiatric services in Sudan.

    [322] Exhibit 4, Applicant Statement of Facts, Issues and Contentions, page 18, paragraph 51.

24. The specific harm that the Applicant claims will befall him in either country had its basis in the unspecified enemies of his father (stemming from his father’s former military activities), whose whereabouts seem to be unknown.

25. The Applicant euphemistically told the Tribunal that he was, “guessing” in relation to his father’s whereabouts.[323] He also said he was just, “guessing or speculating” about the perceived threats from those he claimed were hunting for his father and whether he would be imprisoned on his return.[324]

    [323] Transcript (20 January 2022), page 109, line 23.

    [324] Ibid, page 110, lines 30 to 40.

26. The Applicant’s claims, being based on his, “guesses”, better described as lies, cannot be well founded.  Moreover, they are not related to reasons of his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal considers that in either Sudan or South Sudan, the Applicant would be at the same risk of generalised violence and crime as is faced by the population of either country more generally.

27. There is not sufficient evidence before the Tribunal to allow it to make any finding that the applicant will suffer significant harm, as contemplated by section 36(2A) of the Act.

28. The Tribunal therefore is not satisfied that this Applicant is entitled to Australia’s protection obligations.

29. The Tribunal accepts and adopts the post-hearing submissions of the Respondent in respect of the relevant issues contained therein.

30. At present, the Applicant has not made a claim for a protection visa under section 36 of the Act, and section 48A does not present a bar to his doing so. In consequence of this adverse decision, he remains entitled to apply. Were he to do so, he would have to satisfy the character test, as well as overcome the further obstacles of sections 36(1B) and 36(1C)(b), respectively, in that he has committed a particularly serious crime; namely affray, which carries a maximum sentence of ten years imprisonment. It would be up to a future decision maker to determine whether he is, at the date of that decision, a danger to the Australian community.

31. His prospects of obtaining a protection visa, as things stand at the date of this decision, appear to this Tribunal to be poor,[325] but the ultimate question of whether he is entitled to one must await a determination of an as of yet, unmade application.

    [325] Exhibit 4, Applicant Statement of Facts, Issues and Contentions, page 17, paragraph 49. Citing, inter alia, BAL19 v Minister for Home Affairs [2019] FCA 2189 at [42].

32. The Tribunal has given consideration to whether there is any realistic possibility in all the circumstances, that the Applicant may be given a visa under section 195A of the Act. The Tribunal notes that by virtue of the recent amendments to section 197C(3) of the Act, an unlawful non-citizen in respect of whom a protection finding has been made and finally determined will not be liable for removal, pursuant to section 198 of the Act. However, in the present case, this Tribunal has found that no such protection finding has been made.

33. Having regard for the Applicant’s history of criminal offending, the Tribunal considers it highly unlikely that the Minister would grant the appellant a visa in the exercise of his power or discretion under section 195A of the Act.

34. As stated above, the Tribunal is not satisfied that the applicant is owed non-refoulement obligations by Australia.

35. Accordingly, this Other Consideration 9.1 is not relevant and given neutral weight.

    9.2 Extent of Impediments if Removed

36. The Applicant is a 32-year-old citizen of Sudan who has been treated for depression and has previously been medicated for it, though he ceased medication on release from prison and does not appear to have sought treatment for that condition whilst at liberty. He claimed to suffer a bad back to avoid work whilst in prison, but there is no medical evidence before the Tribunal that, if this condition actually exists, it presents any real obstacle to his productivity.  He also claims to have suffered pneumonia and asthma, but this claim was only raised relatively recently and is unsupported by any medical evidence. Having regard for the Tribunal’s finding as to his credibility, the Tribunal is not satisfied that the Applicant suffers any significant physical or ongoing mental health conditions. He has not sought medication for his claimed depression since being at liberty in Australia and as such, there is little reason to believe he would seek medication for it in Sudan.

37. The Tribunal does however accept that the Applicant’s substance abuse and mental health issues (if diagnosed) would amount to an impediment to his ability to establish himself and maintain basic living standards in Sudan.

38. Notwithstanding the Tribunal’s findings as to the Applicant’s credibility, the Tribunal is prepared to accept that he has no family in Sudan, and because of the period of time he spent out of the country, he is likely to have lost contact with any old friends or associates.

39. The Applicant grew up speaking Arabic and has continued to speak it with relatives and associates whilst in Australia. The Tribunal does not consider that he would face any substantial language barriers upon return to Sudan.

40. The Applicant has also spent a significant part of his life living in Sudan and is unlikely to encounter any significant cultural barriers upon his return.

41. The Tribunal accepts that health and social welfare support systems in Sudan are limited, but the Applicant would be no worse off than any other citizen of the country. The Tribunal accepts that the Applicant will likely face poverty and unemployment in Sudan.

1. The Tribunal considers that the Applicant is likely to suffer significant emotional hardship if removed to Sudan and will not be able to play a fatherly role in his daughter’s life in Australia.

2. Other consideration 9.2 therefore does weigh in favour of revocation of the cancellation of the Applicant’s visa.

   9.3 Impact on Victims

3. There is no contemporaneous evidence from any of the victims in this matter directly addressing the impact of a section 501CA decision. This consideration is therefore not relevant and is given neutral weight.

   9.4 Links to the Australian Community

   9.4.1 The Strength, Nature and Duration of Ties

4. The Tribunal accepts that there will be adverse impact on the Applicant’s immediate family, particularly his daughter and sister, Ms Lado. Whilst he has a number of sisters living in Australia, only Ms Lado came forward to give evidence on his behalf. The Applicant also told the Tribunal that he did not have a close relationship with his other sisters anymore. There is insufficient evidence before the Tribunal regarding the other members of his family resident in Australia to enable it to form a view of the impact a decision not to revoke the mandatory cancellation of the Applicant’s visa would have on them.

5. The Tribunal has had regard to paragraphs 5.2(4) and 9.4.1(2)(a) of the Direction and whether the Australian community might afford the Applicant a higher level of tolerance.  The Applicant arrived in Australia in 2006 as a seventeen-year-old and has lived here ever since. This is a considerable period of time, but not quite most of his life.  A seventeen-year-old can hardly be described as a young child and he has lived in Australia for almost half of his life.  Evidence before the Tribunal shows that his first offence as being an assault on a police officer (dealt with in June 2011), so he does not appear to have begun offending soon after arriving. Whilst the Applicant has claimed to have had some employment and contributed to the Australian community, his evidence has been found to be not credible. There is not sufficient evidence before the Tribunal to satisfy it that the Applicant has spent any time of significance contributing positively to the Australian community.

6. This Applicant has resided continuously in Australia since October 2006, at which time he was about seventeen years of age. The duration of his stay presents as a strong tie to Australia.  However, he is estranged from most members of his family, as well as his former partner. He does have a daughter in Australia (though she is in the care of the State), and this presents as a strong link to Australia. His only friends to come forward and speak on his behalf appear to have limited contact with him. He otherwise appears to have limited social links.

7. The Tribunal finds that a consideration of paragraph 9.4.1 weighs slightly in favour of the Applicant.

   9.4.2 Impact on Australian Business Interests

8. It was not submitted by either Party that this was a relevant consideration. As such, the Tribunal gives it neutral weight.

9. An overall consideration of the Applicant’s links to the Australian community, as required by paragraph 9.4 of the Direction, weighs slightly in favour of revocation.

10. The application of the Other Considerations in the present matter can be summarised as follows:

    ·International non-refoulement obligations: neutral;

    ·Extent of impediments if removed: weighs in favour of revocation.

    ·Impact on victims: neutral;

    ·Links to the Australian community: weighs slightly in favour of revocation; and

    ·Impact on Australian business interests: neutral.

    Conclusion: Other Considerations

11. An overall consideration of paragraph 9 of the Direction, Other Considerations, weighs slightly in favour of revocation.

    CONCLUSION

12. The Tribunal is now required to weigh all the Considerations in accordance with the Direction.

13. In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:

    ·Primary Consideration 1 weighs very heavily in favour of non-revocation;

    ·Primary Consideration 2 weighs very heavily in favour of non-revocation;

    ·Primary Consideration 3 weighs in favour of non-revocation;

    ·Primary Consideration 4 weighs very heavily in favour of non-revocation; and

    ·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they do not outweigh the heavy and determinative weight applied to Primary Considerations 1, 2, 3 and 4, respectively.

14. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

15. Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

16. The reviewable decision of the Respondent, dated 3 November 2021, is affirmed.

I certify that the preceding 447 (four-hundred-and-forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.............[SGD]......................

Associate

Dated: 9 February 2022

Dates of hearing:			10th, 20th and 21st January, 2022
Applicant: Solicitor for the Applicant:			Sam Charles Elioba Lukasa Mr Fardin Nikjoo (Nikjoo Lawyers)
Solicitor for the Respondent:			Mr William Sharpe (HBL Ebsworth Lawyers) ANNEXURE A
Party		Exhibit No	Description of Exhibit		Date of Document	Date of Filing	Page/s
G Documents and Summons Material
R		1	G-Documents (incl. Table of Contents)		Various	26 November 2021	1
R		2	Supplementary G-Documents (incl Table of Contents)		Various	20 December 2021	349
Statements of Facts, Issues and Contentions
R		3	Respondent’s Statement of Facts, Issues and Contentions		1 September 2021	1 September 2021	564
A		4	Applicant’s Statement of Facts, Issues and Contentions		10 December 2021	10 December 2021	579
Submissions
A		5	Human Rights Report for South Sudan (US Government)		2020	29 December 2021	599
A		6	Article by Doctors without Borders – “South Sudan UN Failure to Protect Citizens”		10 November 20216	29 December 2021	642
A		7	WHO information on South Sudan		Undated	29 December 2021	648
A		8	WHO information on Sudan		Undated	29 December 2021	662
A		9	Applicants Statement		5 January 2022	5 January 2022	655
A		10	Witness Statement of Kennedy Henry (by email)		5 January 2022	5 January 2022	669
R		11	Further Supplementary Summons Documents – Blacktown Local Court Originally filed 10 January; re-filed 17 January 2021		Various dates	17 January 2022	33

Submissions
A	12	Applicant Statement	11 January 2022	14 January 2022	1
A	13	SBS News Article	11 January 2022	14 January 2022	9
G Documents and Summons Material
R	14	Supplementary Summons Documents – Parramatta Local Court	Various dates	19 January 2022	12
Submissions
R	15	Statement from Department of Home Affairs RE: COVID 19 Measures in Immigration Detention Centre's	Undated	21 January 2022	1
R	16	Respondent Closing Submissions	24 January 2022	24 January 2022	6
A	17	Applicant Closing Submissions	24 January 2022	24 January 2022	2