LVSW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3092

LVSW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3092 (30 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5228

Re:LVSW

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:30 August 2022

Date of written reasons:        16 September 2022

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 30 August 2022, the Tribunal sets aside the decision under review and in substitution it is decided that the Applicant’s visa not be cancelled.

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Deputy President B W Rayment OAM KC

Catchwords

MIGRATION – where the applicant’s visa has been cancelled pursuant to subsection 501(2) of the Migration Act 1958 (Cth) – whether the applicant passes the character test or whether there is another reason to revoke the decision to cancel the applicant’s visa – consideration of the primary and other considerations contained in Direction 90 – relevant law, policy and facts considered – decision under review set aside and substituted.

Legislation

Crimes Act 1914 (Cth)
Crimes (Sentencing) Act 2005 (ACT)
Migration Act 1958 (Cth)

Cases

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, (2016) 160 ALD 123
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, (2018) 267 FCR 628

Secondary Materials

DFAT Country Information Report – South Sudan

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR ORAL DECISION

Deputy President B W Rayment OAM KC

16 September 2022

1. The applicant in this matter is, according to evidence which I accept for the purpose of these reasons, 36 years of age. He was born in Sudan, the area now known as South Sudan, and in 1990, when he was probably just four years old, he fled with his family to Ethiopia because of unrest within Sudan. The family was separated after a fairly short time in Ethiopia and, eventually, the applicant, his elder sister and younger brother spent some 10 years in Kenya at Kakuma, in a UNHCR refugee camp.  Their circumstances were difficult there. In the year 2002, he was given a visa to enter Australia and came here in the company of his sister, his sister’s partner, his younger brother and a child of his sister.

2. The family arrived in Sydney and were shortly thereafter sent to Adelaide where they lived for some time. The family of the applicant, in 2003 when he arrived here, consisted of a number of sisters and his brother, his mother, who was still in Africa, and his father, who was still in Africa, and various other relatives. Most of those family members now live in Australia and they include three sisters. One of the sisters has seven children, another has six children and a third has three children, of whom the youngest was recently born. The applicant, himself, has two children, one aged five and one born this year. 

3. In South Australia, the applicant completed Years 11 and 12 in high school, having studied English. He worked part-time and was the primary caregiver to his younger brother, who accompanied him to Australia. Both the applicant and his brother play basketball in South Australia. Tragically, the younger brother had a drink of his spiked by someone else and died as a result of the spiking of his drink some years ago. He and his sister believed at first that his mother and other siblings had probably died after he came to Australia but in 2004, by various means, he discovered that his mother was still alive and that some of his siblings were still alive. His father went back to Sudan not long after the family moved to Ethiopia for a short period of time and in 2016 his father died. 

4. Eventually, with the help of the applicant, his mother came to Australia in 2012 and I am told is now an Australian citizen. The applicant lived mainly in Adelaide and, thereafter, in Canberra and, most recently, he was living in Canberra before he was taken into detention several months ago. He has, from time to time, had employment, either as a cleaner, a labourer, or doing other work, and, most recently, he has established a gardening business after buying some equipment and he was beginning to establish himself as a gardener in the Canberra area when in June of this year he was taken into detention following the cancellation of his visa.  His visa is a class XB subclass 200 refugee visa and the subject matter of these proceedings is that the tribunal is to review a decision by a delegate to cancel the visa.

5. Presently, his mother is in Kenya because one of his other sisters, who bore two children, was very ill and she died, as did one of the two children. The applicant’s mother, therefore, has a grandchild in Kenya at the moment and is seeking to obtain a visa to bring that grandchild back to Australia with her. She went to Kenya at the expense of the applicant, who paid some $2800 for a return airfare, and gave her $US700 for her expenditure on the journey.  He has since sent other moneys to his mother to enable her to get by and to look after her grandchild. Until the mother went to Kenya, she had been living in accommodation with the applicant and the applicant looked after her in many ways. He is the senior male member of the family following his father’s death and the mother placed great reliance upon him. That was not only financially but, in other respects. He helped her obtain medicine and looked after her while they lived together. She knows the five year old child of the applicant, who was a visitor from time to time at their house in Canberra. 

6. The gardening business of the applicant was, as I say, just getting off the ground when he was taken into detention.  He said in evidence that nine customers have been in touch with him asking him to come back to do gardening for them. One motivation for starting the gardening business was so that the applicant did not need to depend on others to have secure employment and income. On account of a number of convictions, including sentences of imprisonment, the delegate took action quite recently to cancel the applicant’s visa. While the applicant has a criminal record, to which I will refer, he has never actually attended a gaol since all convictions of courts were accompanied by orders suspending the sentences.

7. Now, it will be convenient to discuss some of the matters dealt with in these reasons by reference to Direction no.90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), which binds decision-makers, including this tribunal, to act in accordance with the Minister’s Directions.  I will not repeat the terms of Direction 90 because they are published. They include a preamble and certain principles which inform, or are meant to inform, the contents of the Direction. It divides the mandatory considerations with which it deals into primary and other considerations.  The Direction is, of course, a non-exhaustive list of matters required to be taken into account by a decision-maker when deciding, amongst other things, whether to cancel a visa. 

8. The first primary consideration in Direction 90 relates to the protection of the Australian community and requires a decision-maker to examine the nature and seriousness of any criminal offending and the risk that it might recur and the risk to the community should further offences be committed now by the former visa holder. The papers include a National Police Certificate in relation to the applicant, the contents of which are common ground between the representatives of the parties. The Police Certificate appears at pages 36 and 37 of the bundle of G documents in the case. Chronologically, the convictions of the applicant start in February 2008 when he was convicted of driving dangerously to escape police and, for that offence, he was convicted, ordered to serve 15 months of imprisonment with a non-parole period of 10 months, those sentences being suspended sentences and he was disqualified from driving for three years.

9. At the same time in February 2008, the applicant was convicted of two other offences, attempting to drive while under the influence of alcohol and entering an intersection against a red light. Then in February 2009, there were other motor vehicle offences, failing to comply with a bail agreement; driving under disqualification or suspension; and failing to comply with breath analysis directions, for which he was convicted and ordered to spend seven days in prison but that sentence was also suspended. In 2010, and the relevant events were 2008 events, the applicant was convicted of unlawful sexual intercourse with a person under the age of 17 years and there were four counts of that offence, which took place, I think, over the same 24-hour period. For that offence, he was convicted in the District Court of South Australia and sentenced to 18 months’ imprisonment with a non-parole period of nine months.  The District Court Judge, however, suspended that sentence and required him to enter into a three year good behaviour bond. I will return to discuss some of the detail of that offence later in these reasons.

10. No other court action was taken against him until 2016 when he was convicted in the ACT Magistrates Court, he having moved to Canberra, of obtaining a financial advantage and he was convicted and sentenced under section 20(1)(b) of the Crimes Act 1914 (Cth) to six months’ imprisonment but released forthwith on entering into a recognisance to be of good behaviour for two years. That produced a debt owing to Centrelink, which is still not fully discharged, but which the applicant wishes to discharge. Finally, in January 2019, he was convicted in Canberra of driving a motor vehicle with alcohol in his blood. He was convicted and released immediately pursuant to section 13 of the Crimes (Sentencing) Act 2005 (ACT) on entering into a good behaviour order for 18 months and he was disqualified for driving for a year, which has now expired.

11. When the applicant entered this country, he did so on papers coming from Kenya, which indicated that the year of his birth was 1984 on a certain date.  He said in evidence that, in fact, he did not know his birth date when he was in UNHCR refugee camp and that the authorities there estimated his birth by measuring his height. He is quite a tall man and their estimation turns out to be different from what the applicant said that his mother told him in 2004. His mother told him that his true date of birth was late in 1986, which makes him, speaking generally, two years younger than he previously thought he was, depending on the month of the year.

12. The District Court Judge described the age of the applicant at the time of the sexual offences as being 20, whereas the delegate noted that he was 24 according to the records of the department which came from his entry documents. On any view, that date was wrong because the date which the mother gave produced mathematically the view that he was then 21 when the offending took place. The mother has not given evidence in the tribunal because she is in Kenya and, presumably, relevantly out of contact. If the applicant ever desires to seek to alter the date recorded by the respondent as his birth date, it may very well be necessary for some evidence to be given by the mother of a direct nature, rather than the kind of evidence which I have received.  The evidence would justify the conclusion that today he is 36, not 38, and that he was 21 at the date of the offending, not that it matters very much to the seriousness of the offence.

13. The applicant gave some evidence about conversations he had had with the young lady with whom he had sexual relations and, if that evidence was correct, I think the result is that he may not have been guilty of the offences with which he was charged and of which he was convicted, but I do not believe that it is open to me in the tribunal, in the light of the convictions, to take such a view, even if I was prepared to accept the applicant’s evidence on that matter. All of the offending of the applicant led to him pleading guilty before the relevant courts and accepting the consequences. The offending, in what is undoubtedly the applicant’s most serious offence, is now 14 years ago and has never been repeated with any other minor. He still has approximately two years to go as part of the sexual offenders register and needs to continue reporting his conduct for the next two years or so. 

14. He has attended courses as a result of the Court’s orders and his convictions and he is fortunate that Ms Dombrowski, a forensic psychologist, prepared a detailed report about the prospect that he might offend again. She consulted audio-visually with him for three and a half hours while he was in Villawood and gave oral evidence in the tribunal, as well as writing a lengthy report.  At page 9 of that report, she referred to his having attended the Sex Offender Treatment Program in Adelaide following his conviction.  She also referred to him having done other courses designed to bring about his rehabilitation, including drink driver awareness. At page 9 she referred to the Sexual Offender Treatment Program in Adelaide as having a duration of 12 months and that he successfully completed it. In addition to his drink driver awareness program in Canberra in 2019, he attended an intake assessment for alcohol and other drugs intervention and completed the SMART Recovery Program at the direction of the court. 

15. Most recently, he completed a ‘kNOw the Risk’ program, a driver education program designed to reduce the risk of further drink driving, a six hour program provided across two sessions and that program was completed in a April last year.  That was part of the material on the basis of which Ms Dombrowski expressed a view that his risk of recidivism was of the order of 6 per cent over the next five years, a figure which she described as relatively low. The applicant said that he has made every effort to ensure that any lady with whom he has relations is above the age of consent and the evidence suggests that that is the position that for 14 years he has not reoffended in that way. He was described in psychological reports given to the District Court Judge as naïve and inexperienced when he dealt with the young girl. 

16. Amongst the mandatory considerations mentioned in Direction 90 is the expectation of the community. Those expectations are deemed governmental expectations, and I take these into account.

17. Now, he has partnered twice, first with the mother of his five year old son and later with the mother of the new baby born this year.  For a time, the mother of the five year boy lived, as I understand it, with the applicant and his mother and their relationship broke down some years ago when the son was, I think, 18 months old. Apart from a very short period of a couple of months, the applicant has made every endeavour to see his son regularly, and consensually with his former partner, the boy spent time on the weekend with his father, almost every weekend, and that is the occasion on which the boy met the applicant’s mother. He has, what he describes, as a good relationship with his five year old son, who sometimes has burst into tears when he takes the child back to the child’s mother.

18. The mother obtained orders for payment of monetary assistance for the raising of that son and the applicant needs a source of income in order to pay the relevant child support and I will come back to the question of the imperatives which face the applicant but, one of them, is certainly the need to continue to provide financial assistance for his son now five years of age. In due course, he will have a similar obligation about his son born this year. He also intends to firmly occupy the role of father for both his sons as they grow up. It is unquestionably in the best interests of both his sons that he should be released into the community and enabled to go back to work in the gardening business, which he has now started.  He has a natural paternal feeling towards each of those sons and it would devastate him to have his relationship with those sons disrupted, either by his being sent away or by his being kept into detention, which may, of course, be indefinite if the department assesses him as having non-refoulement obligations owed in respect of him under the protective provisions of the Migration Act 1958 (Cth) (the Migration Act).

19. In addition to his own children and his strong desire to be a continuing source of support for his mother, who wishes to continue to live with him, the applicant is the uncle of a series of minor children, being the children of his sisters, some 10 or 11 of whom are all still minors.  He plays the role of the most senior male member of his family. Indeed, he acts in that position within the family and it is inevitable that as the need may emerge over the years, he will be called on to provide guidance to all his nephews and nieces, whether or not minors, as required. Apart from one sister who has mental health problems, who herself has three children, his relationship with his sisters is a good one and several of the sisters are single mothers.  It is in the best interests of all minor nephews and nieces that he should be released into the community.

20. Now, returning to the mandatory considerations mentioned in Direction 90, the first of the other considerations mentioned in that Direction is non-refoulement obligations which may be owed to the applicant. The Direction’s reference to non-refoulement obligations appears to be a reference to the protection obligations mentioned in the Migration Act, rather than to obligations owed under international treaties to which this country is a party. Mr Rohan, who appeared for the applicant, has drawn attention to a number of matters appearing in country reports about South Sudan if the applicant should be returned there. Those matters may persuade a decision-maker that protection obligations are owed in respect of him under the Migration Act. Similarly, they may persuade a decision-maker that if Australia were to send this man back to South Sudan it may be in breach of its treaty obligations, another serous matter.

21. On any view of it, however, the material to which Mr Rohan has referred satisfies me that the applicant suffers a risk of personal harm, such as was described by Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, (2016) 160 ALD 123. That is because South Sudan is a country with a very poor health system, which is very difficult to access and which is, itself, impoverished. It is not given enough funding to enable it to provide for the health of the population. Now, it happens that the applicant has type 1 diabetes and needs blood tests to be undertaken several times a day in case he needs more than one, and up to three, insulin injections. That puts his health and, indeed, his life at risk if he were to be sent back to South Sudan. This relevant matter also bears on the mandatory consideration of impediments if removed.

22. Dinkas are often made the subject of violence and that is a matter that is detailed in DFAT and other country reports to which the applicant’s representative has referred the tribunal.  The 2016 DFAT Country Information Report for South Sudan, states at paragraph 2.17:

    South Sudan’s population has extremely poor access to health care.  Accurate data prepared by the Government on health indicators is often non-existent or outdated.  According to data collected prior to the outbreak of conflict in December 2013, South Sudan ranked 169th out of a total of 187 countries in the UN Development Programme’s 2015 Human Development Index.  South Sudan has an average life expectancy at birth of 56.7 years for women and 54.7 years for men.

1. It states further that:

   Only 55 per cent of the population has access to improved sources of drinking water … and around 38 per cent of the population walk more than 30 minutes one way to collect drinking water.  Eighty per cent of the population do not have access to toilet facilities.  DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation…  76 per cent of households in South Sudan survive on subsistence activities and informal trade… [They] had a very high unemployment rate with only 12 per cent of the population [in 2012] being actively employed... 

2. The tribunal has had occasion to refer previously to the great difficulty facing persons seeking to use medical services in South Sudan and the position of Dinkas, in particular, is discussed at page 31 of the DFAT report. Mr Rohan’s Statement of Facts, Issues and Contentions contains other details concerning South Sudan. If the department assesses that protection obligations are owed in respect of the applicant, which is quite possible having read the material to which the applicant’s counsel has referred, then the effect of section 197C of the Migration Act is that he could not be returned to Sudan but that will not prevent him being detained, indeed indefinitely detained, instead and both of those things, that is sending him back to Sudan or keeping him for a prolonged period of time in detention, would completely make impossible a series of imperatives which the applicant now faces.

3. The first is his paternal support, and financial support, for both his own children. He would not have an income if he is kept in detention. The second is he would be unable to provide continuing support to his sick mother as soon as she gets back to Australia and that would be contrary to the way he has behaved since his mother arrived in this country in 2012 with his help. He would be a remote person if kept in detention, normally not in direct contact with his sisters or their children or his mother. His business would just be unavailable to him. He would have no employment in detention. 

4. So, in my judgment, sending him back to South Sudan, like keeping him in detention, would be contrary to the dictates of good government in that imperatives, which face this relatively young man at the moment, would be denied to him.  In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 (Hands), Allsop CJ said this at paragraph 3. His Honour said:

   By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law… The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

5. Now, that, in my opinion, is a good description of aspects of the need for good government, which since the beginning of the existence of this tribunal has been emphasised as the touchstone of action taken in the tribunal.  Two other matters should be mentioned.  The first is that this applicant is a mentor among Sudanese and other Africans, and the G documents include a Certificate of Appreciation by a charitable body in respect of his work in that field. That work was also referred to by a character witness, whose evidence I accept, called yesterday in this tribunal. That is a lady who has a significant experience in public service, including in the Commonwealth Public Service, at what I gathered was a fairly high level, who expressed in strong terms her confidence that the applicant is unlikely to reoffend and that he is likely to continue to give assistance, not only to her and to others that she has seen, but to disadvantaged people whom he wishes to continue to mentor, including from Africa. 

6. Not only, therefore, does the tribunal have a specialist opinion of Ms Dombrowski, but the evidence of the witness to whom I have referred, strongly reinforces that view. 

7. I had the opportunity myself over the course of his evidence in the tribunal to form views about him, not perhaps summing him up completely, but telling me enough about him to know that his bent of mind at the present time is, undoubtedly, to do good for his family, including his children especially and his mother, and his sisters and their children and his community and the view I have come to after balancing each of the considerations mentioned in these reasons is that the only course consistent with the dictates of good government, including the statements made by Allsop CJ in Hands, is to set aside the reviewable decision and to substitute a decision that the visa not be cancelled.

8. I express my appreciation for the assistance of both Ms Hargrave, who appeared for the Minister with diligence, and Mr Rohan from the Legal Aid Commission, who appeared for the applicant.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 16 September 2022

Date(s) of hearing:	29 & 30 August 2022
Solicitor for the Applicant:	Mr G Rohan, Legal Aid NSW
Solicitor for the Respondent:	Ms L Hargrave, Clayton Utz