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

LZQZ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2261 (14 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3203
Re:LZQZ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:14 July 2022
Place:Melbourne

The decision of the Respondent dated 21 April 2022 not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 202 Global Special Humanitarian visa is set aside and substituted with a decision that there is another reason why the mandatory cancellation should be revoked.
...................[sgd].....................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – failure to pass character test – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 90 applied – various instances of criminal offending – multiple minor children in Australia – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
Direction No. 90 – Migration Act – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
14 July 2022
BACKGROUND

LZQZ applied to the Tribunal on 21 April 2022 for review of a decision of a delegate of the Respondent not to revoke, under s 501CA(4) of the Migration Act 1958 (the Act), the mandatory cancellation of their Class BA Subclass 202 – Global Special Humanitarian visa under s 501(3A) of the Act.
LZQZ was born in Sudan in 1983 and moved to Egypt with their mother at a young age. LZQZ arrived in Australia in late 2000 in the company of a maternal uncle, who has since passed away.
LZQZ’s record of criminal offending began in 2003 and includes convictions for dishonesty, driving offences, two convictions for affray, and a weapons offence. LZQZ has been imprisoned on two occasions; recently for an affray and weapons offence, and previously some years ago following their conviction for culpable driving.
In late 2009, LZQZ was given notice of intention to cancel their visa and gave written acknowledgement of this notice. In late 2013, a delegate of the Minister decided not to cancel LZQZ’s visa and gave written acknowledgement of advice that their visa may again be considered for cancellation. The cancellation decision in respect of the current application was made on 15 June 2020.
LZQZ was represented at the hearing, and lodged a Statement of Facts, Issues and Contentions (SFIC) dated 6 June 2022 and a Statement in Reply dated 17 June 2022 (Applicant’s Reply). The Applicant also lodged a Hearing Book (HB). In addition to a statement dated 6 June 2022 (HB4), I note that the documents lodged by the Respondent include a further eight statements or letters from the Applicant in respect of revocation issues.
The Respondent lodged G documents, Supplementary G Documents (SG), Further Supplementary G Documents (FSG) and a SFIC.
I informed the parties at the commencement of the hearing that material lodged would comprise the material for the purposes of the hearing and decision. No objection was raised by the Applicant to the reception of supplementary material composed of documents obtained under summons.
Evidence was given at the hearing by the following, all of whom provided statements or letters of support:
(a)the Applicant, LZQZ;
(b)Mr AmK, a friend of the Applicant;
(c)Ms LK, a friend of the Applicant, and mother of one of their children;
(d)Mr AbK, a friend of the Applicant;
(e)Ms D, a counsellor presently assisting the Applicant; and
(f)Mr AN, a community leader and visa sponsor to the Applicant.
LEGISLATION
Pursuant to s 500(1)(ba) of the Act, the Tribunal has jurisdiction to review a decision made under s 501CA(4) not to revoke the mandatory cancellation of a non-citizen’s visa.
Mandatory cancellation arises under s 501(3A) of the Act, in conjunction with ss 501(6) and (7), where a non-citizen does not pass the ‘character test’ by virtue of having a ‘substantial criminal record’ and is serving a full-time sentence of imprisonment. Substantial criminal record, in this case, means a sentence to a term of imprisonment of 12 months or more.
Written directions have been given under s 499 of the Act to guide decision-makers in considering the revocation of mandatory visa cancellation: Direction No. 90 ‘Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction). I must comply with these Directions, and the Direction requires me to take into account, where relevant, primary and other considerations, which I will set out below.
These considerations are taken into account in the course of determining whether, under s 501CA(4) of the Act, LZQZ passes the character test or, if not, whether there is ‘another reason’ why the original decision should be revoked.
Decision-making under the Direction is informed by the Principles set out at paragraph 5.2:
(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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
ISSUES
The first issue arising in this matter is whether the Applicant fails the character test.
I am satisfied, on the basis of the National Criminal History Check (G2A), that LZQZ has been convicted to terms of imprisonment of 12 months or more, and accordingly has a substantial criminal record.
Accordingly, I find that LZQZ fails the character test.
This being the case, I must therefore consider whether there is another reason why the mandatory cancellation of LZQZ’s visa should be revoked. I will address the considerations arising from the Direction and the specific factors also arising for consideration below.
PRIMARY CONSIDERATIONS
Protection of the Australian community
This consideration (paragraph 8.1(1)) commences by, substantially, restating the Principle at paragraph 5.2(1). It also states that decision-makers should have regard to (paragraph 8.2(2)): the nature and seriousness of conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under this consideration, I am to have regard to a number of factors (paragraph 8.1.1(1)) including, relevantly:
(a)whether the crimes or conduct are viewed ‘very seriously’ by the Australian Government and community, with certain kinds of crime or conduct specifically identified;
(b)the sentence imposed for offending;
(c)the frequency or any trend of increasing seriousness in offending;
(d)the cumulative effect of repeat offending; and
(e)whether offending occurred following a formal written warning about its consequences for a non-citizen’s migration status.
Evidence
I note the details of LZQZ’s offending history contained in the National Criminal History Check (G2A). I include below the outline of their offending history in the summary of the sentencing remarks of the Magistrate in respect of the most recent offending, in May 2020 (G2B):
(a)LZQZ was involved in an argument at a shisha bar, which they initially left but subsequently returned to in company with an associate, LZQZ carrying a long-arm firearm and their associate a sword;
(b)Both LZQZ and their associate were disarmed by interveners who ‘wrestled’ them to retrieve the items;
(c)submissions on their behalf addressed LZQZ’s description of the weapon as a BB gun, and that they had no intention to use it nor was anyone threatened;
(d)submissions also addressed LZQZ’s disrupted childhood in Sudan and Egypt, being tormented as a child due to assumed mixed race origin, beatings by their mother, and living on the streets in Egypt;
(e)while in Australia, LZQZ’s tendency to gravitate toward people who had a destructive influence and exploited their tendency to be ‘easily led’;
(f)LZQZ has attempted suicide previously, and incurred a head injury as a result of an accident in which a passenger of the car they were driving was killed;
(g)LZQZ has a number of children with whom they have sporadic contact;
(h)LZQZ has appeared in court on nine separate occasions between the ages of 19 and 31 resulting in one fine, three community based orders (one of which was breached, possibly due to a subsequent period of imprisonment), a suspended sentence (breached), and four terms of imprisonment;
(i)LZQZ has largely been sentenced for driving offences, with some dishonesty, an affray, and criminal damage;
(j)a psychological assessment by Dr Julianne Reid of April 2020, and a neuropsychological assessment of Rachel Hutchins and Dr Michelle Morendin of September 2009, were considered;
(k)LZQZ had a history of suicidal behaviour, unstable mental health, poorly developed coping strategies, ‘and considerable unresolved trauma that is continuing to impact’ their life;
(l)several factors point to LZQZ having sustained a brain injury ‘from neglect and trauma in childhood, alcohol abuse from a young age and head injuries’, and they have been diagnosed in 2009 with major depression and post-traumatic stress disorder;
(m)LZQZ presents with a high number of risk factors for general reoffending that may include violence; and
(n)this was a very serious example of an affray and there was a clear need for general and specific deterrence and, but for the plea of guilty, a sentence of three and half years with a non-parole period of two and half years would have been imposed.
The sentence imposed was successfully appealed in the County Court in July 2020 (G2C) and the following sentences were imposed:
(a)Prohibited person possess a firearm – 15 months imprisonment;
(b)Affray – 6 months imprisonment (4 months concurrent);
(c)Bring body armour into Victoria – 2 months imprisonment (1 month concurrent);
(d)Weapons offences – 1 month imprisonment on each count; and
(e)Possess cannabis - $100 fine.
I summarise also the findings of the Court of Appeal of the Supreme Court of Victoria in August 2006 (G2E) in respect of the offence of culpable driving. In making its decision declining to reduce the sentence, the Court made, among others, the following observations or findings:
(a)LZQZ was found guilty of a number of driving offences including culpable driving and negligently causing serious injury, the maximum penalties being 20 years’ and five years’ imprisonment respectively;
(b)LZQZ was sentenced to six years’ imprisonment on the first charge, and three years’ on the second, with a total effective sentence of seven years’ imprisonment, with a non-parole period of four-and-a-half years;
(c)on the day prior to the offence in 2003, LZQZ and a number of friends attended the home of another friend and a ‘good deal of alcohol’ was consumed, although how much was consumed by the Applicant was unclear;
(d)LZQZ left and returned the following morning at 5.00 AM visibly affected by alcohol and, despite a suggestion that someone else should drive, LZQZ insisted on driving their own vehicle with six other people on board;
(e)over the short distance to the accident site, LZQZ’s driving caused great alarm to the passengers, the vehicle’s speed attracted the attention of other road users, and the estimated speed at time of impact was about 96 kph;
(f)for no apparent reason, while driving, LZQZ had attempted to pass another vehicle and upon cutting back in front of that vehicle, the car struck the curb and slid a considerable distance before colliding with a pole;
(g)the passenger in the position adjacent to the pole died instantly, the car broke in two with the passengers uninjured in the rear portion of the car, and another front seat passenger sustained multiple injuries, and LZQZ a closed head injury;
(h)in Australia, LZQZ lived an itinerant existence, suffers from reduced intellectual capacity such that ‘95% of people [their] age would do better’, has a speech impediment, and is unable to read or write;
(i)it was a bad example of a serious offence, LZQZ had been told not to drive, the vehicle was both unregistered and unroadworthy, and the Applicant was not fit to drive; and
(j)although LZQZ’s intellectual limitations and disadvantaged background could not fail to engender sympathy, no submission was made that these circumstances contributed to the offending.
At the hearing, LZQZ stated in cross-examination that the cannabis the subject of a conviction in 2020 was not theirs and had been left over after a party at their property.
I asked LZQZ whether they understood they had previously acknowledged receipt of a formal warning about the possible future cancellation of their visa (G2FF). LZQZ replied that they did not understand what this document was at the time, and in re-examination stated they thought it may have had something to do with their license.
In their written statement (HB4, [60]), LZQZ describes the incident at the shisha bar as involving a ‘BB gun’ and ‘decorative swords’. They state that they were followed outside, assaulted, and had a knife pulled on them, and that their actions were influenced by alcohol and fear ([61]).
Mr AmK gave evidence at the hearing that the vest, the subject of one of LZQZ’s convictions in 2020, was in fact his own property as he had worked in the security industry and left some possessions at the Applicant’s house.
Submissions
For the Applicant, it was submitted at the hearing that LZQZ had received reductions in sentence on appeal in relation to the most recent offending. It was contended that this reflected a different view as to the context of the affray to that of the sentencing Magistrate, noting that the circumstances remain serious. It was also contended that LZQZ has no further history of firearms offending. The submission of Refugee Legal on revocation (G2Q, [64]-[65]) argues that the Applicant was embraced by the definition of prohibited person, as only 10 years had expired since the completion of their imprisonment following the culpable driving conviction.
It was further submitted that while affray is a form of violent offending, no physical harm was caused in the most recent incident, and that the earlier charge for this offence occurred in 2002 when LZQZ was much younger. That is, the Applicant’s violent offending is quite limited. It was noted, again, that the terms of imprisonment imposed in 2020 were substantially below the maximums, and that the Applicant was released following the culpable driving offence just outside the minimum applicable sentence. It was also submitted that much of LZQZ’s offending occurred when they were in their early 20’s, there was no trend of increasing seriousness, and LZQZ had not offended in the six years prior to the most recent events.
Finally, it was submitted that LZQZ had no recall or understanding of the nature of the warning provided about the consequences for their migration status of further offending.
It was submitted for the Respondent that LZQZ had engaged in several forms of very serious criminal offending, being affray, a firearms offence, and very serious driving offending leading to death and injury. It was contended that the cumulative effect of offending over a long period of time should be taken into account, including the community and court resources consumed in response to this offending.
The gap in LZQZ’s offending between 2014 and 2020 is acknowledged in the Respondent’s SFIC. It is also contended here that consideration be given to the formal warning about the effect of offending on their immigration status.
Summary finding
No submission was made that LZQZ’s criminal record includes a history of acts of physical violence, however, I accept the Applicant’s submission that the charges of affray may be considered incidences of violent offending.
The Direction explicitly places no limit on the kind of offending that might be considered very serious, and accordingly I consider the 2020 affray, involving carrying of a weapon in public to be very serious. I also consider that LZQZ’s culpable driving offence should be considered very serious due to the death and injury resulting.
I accept the Applicant’s submissions that the range of sentences applied to these instances of very serious offending to indicate that they may not have been the worst examples of such offending. Nonetheless, the sentence of imprisonment for culpable driving was quite substantial.
I consider that the offending history overall demonstrates a relatively sustained and persistent record of offending, although it does not necessarily declare a particular trend in seriousness. However, the cumulative impact of LZQZ’s repeat offending is a matter of concern.
Balanced against this, I note a period of some six years between September 2014 and July 2020 where LZQZ was not convicted of any offences.
It is factually correct to observe that LZQZ has reoffended since being formally warned about the consequences of reoffending for their immigration status. I accept, however, LZQZ’s evidence that they were not cognizant of the meaning of the warning. This is on the basis of the professional opinions rendered about LZQZ’s cognitive ability and past history, which includes neglect, trauma in childhood, and alcohol abuse at a young age.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

The stated basis for this consideration is the need to protect the Australian community from harm, and that decision-makers should have regard to the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (paragraph 8.1.2(1)).
In assessing future risk of harm, I am to have regard, cumulatively, to the nature of any such harm, and its likelihood (paragraph 8.1.2(2)).
Evidence
At the hearing LZQZ stated in evidence that, in respect of the incident at the shisha bar, they wished they had not listened to ‘those two people’. They have accordingly suffered a lot and missed out on seeing their kids. LZQZ explained that after being assaulted by persons at the bar, two friends jumped in the car with the Applicant and spoke in a manner encouraging LZQZ to respond.
LZQZ stated further that they now appreciate that this was not an appropriate way to react. The Applicant also stated that in any future stressful situations, they would breathe, and think through what might occur. LZQZ acknowledged attending courses in prison, the names and specifics of which they could not recall at the hearing. LZQZ stated that they had also been working more recently on a weekly basis with Cohealth, a not-for-profit community health organisation.
LZQZ gave evidence about their history of employment but demonstrated difficulty being specific about periods of employment or related dates. I note the consistent evidence of the Applicant with respect to a history of truck driving roles, and they expressed a strong desire to return to this line of work, and to enhance their licensed driving credentials.
With respect to future living arrangements, LZQZ stated they have lost all their property and possessions, and that two friends (Ms LK and Mr AbK) had both offered housing with them. In re-examination, LZQZ restated their desire to return to driving, making reference to potential work in the mining sector interstate.
In their written statement (HB4, [69]) LZQZ lists a substantial number and diversity of education and training programs undertaken while in prison. These include programs dealing with anger, alcohol, and relapse, and LZQZ also attests to attending a Positive Parenting Program ([27]).
In cross-examination, LZQZ was unable to recall details of the circumstances of the culpable driving offence. However, the Applicant added they were influenced by older people, and had now changed their life. LZQZ pointed to acquiring a car and, later, truck license. In respect of later driving offences in 2013, LZQZ stated that at this particular time they were going through a difficult period both financially and psychologically, was living in their car, and unable to pay for the vehicle’s registration.
LZQZ stated they had relied on alcohol in the past and acknowledged drinking at the shisha bar. When asked whether alcohol would be a problem in the future, LZQZ stated that they intend to drink only at home, and not to intoxication. LZQZ expressed understanding of this issue from being a truck driver, stating that they do not want to lose their truck licence, and by extension, their main source of income.
With respect to factors making them less likely to offend in the future, LZQZ highlighted the desire to be present in their children’s lives. I will address this issue in detail under the relevant primary consideration, however I refer to and rely on here the evidence in this matter as to the existence of at least four biological children.
I add to this direct evidence the following additional material from LZQZ’s most recent statement (HB4):
(a)they deeply regret their actions on the night of the culpable driving offence, and did not intend to hurt anyone by their actions at the shisha bar;
(b)LZQZ understands that alcohol was the main issue in their actions, and now sees that it is not a good way to cope with life’s difficulties;
(c)they lived a stable life in rental accommodation for several years but regressed in 2019 due to the influence of their late uncle; and
(d)LZQZ considers they are a different person now and has sincere remorse for their past behaviour and is able to move forward to be a good parent.
In his evidence, Mr AmK stated that he had been a friend to, and played an older brother role for, LZQZ since around 2012. He stated that he had in the past helped LZQZ with mail, banking and tax affairs and other daily administration. He stated his willingness to assist LZQZ in the future in the same capacity.
In her evidence Ms LK confirmed that she and LZQZ were hoping to restart their personal relationship and that they have ‘plans to live together’. She stated that both she and the Applicant had drunk alcohol together in the past, but that she no longer did. Ms LK did not consider LZQZ to have a problem with alcohol, however in her view the Applicant needed to address the emotional impact of the car accident.
In his evidence Mr AbK stated that he had known LZQZ on and off for 15 years. The Applicant had his ‘one hundred percent full support’. Mr AbK stated they had previously worked in a warehouse together and he knew LZQZ’s skills and experience. Mr AbK stated his willingness to assist with finding employment for the Applicant including with his current employer. Mr AbK stated that he owns a house with four bedrooms and is happy to offer LZQZ accommodation upon release.
Ms D gave evidence that she was presently acting in the role of ‘psycho-social support peer’ for LZQZ in her position with Cohealth. She confirmed that the organisation provides a wide range of services and referrals to support people experiencing issues including homelessness, and drug and alcohol problems. Ms D stated she has weekly contact with LZQZ for approximately an hour per session in which she provides mental health support to reduce the Applicant’s anxiety. She is also currently trying to assist with improving their literacy.
Ms D stated that LZQZ engages well with her, however sometimes forgets her name. She understood the Applicant had previously engaged with the organisation in 2010 but had worked with her since March 2022. Her assistance is due to end in September 2022. Ms D did not identify any specific planned referral for professional health support for LZQZ but would arrange any necessary referral.
Mr AN stated in evidence that he had coordinated community funding to arrange the original sponsorship for LZQZ and his late uncle to Australia. Mr AN currently runs a South Sudanese community organisation that will soon expand its operations beyond this particular group. When asked if he would function as a mentor in the future, Mr AN stated that LZQZ needs someone to rely on. They have been in touch since April 2022 and he told the Applicant if they believe they can change, Mr AN would help them.
Expert opinion
Dr Read’s report dated April 2020 (G2K) has been briefly referred to above. It is comprehensive, and I summarise here some key observations:
(a)LZQZ was a poor historian, experiences difficulty with memory, found it difficult to discuss early childhood experiences, and ‘struggled to provide a cohesive narrative of his life generally’ ([6]-[7]);
(b)their employer, at the time of the assessment, reported a period of employment of two or three months, and that LZQZ required prompting and encouragement to attend, but was a hard worker ([22]-[23]);
(c)a housemate described LZQZ as being easily exploited by others due to their ‘impairment’, and that he often assisted LZQZ with basic paperwork and provided social and emotional support ([31]);
(d)after the car accident in 2009, LZQZ received a severe rating on the Glasgow Coma Scale, but CT scans detected no abnormalities at the time of and following admission ([48]);
(e)LZQZ had been treated with antidepressant and antipsychotic medication during their period of imprisonment ([55]);
(f)in a structured risk assessment of violence to others administered by Dr Read ([87]-[97]):
(i)seven out of ten historical risk factors were present, but importantly there did not appear to be a history of a pattern of violence;
(ii)three out of five clinical risk factors were present, but there was no current evidence of violent intent;
(iii)three of five risk management factors were present;
(iv)overall LZQZ presented with a high number of risk factors, mostly historical but with key clinical factors, including ‘poor insight, instability and symptoms of major mental disorder’;
(v)these factors contribute to poor planning and decision making, but future risk of violence was not imminent, and if it did occur would likely be an attempt at self-protection; and
(vi)reducing or abstaining from alcohol would be a mitigating factor.
(g)LZQZ struggled to identify factors that may have contributed to the 2020 offending, may have been operating in ‘survival mode’, and continues to feel justified in actions taken to stand up for themself ([101]-[103]);
(h)the offending appears to have been out of character, and LZQZ has very poor coping strategies for dealing with distress, and they have considerable unresolved trauma ([104]);
(i)it is recommended LZQZ receive assistance to access the NDIS, have periodic psychiatric and medication review, and have access to individual psychological therapy ([108]).
Dr Brooke Langskaill gave evidence at the hearing consistent with her report dated 2 June 2022 (HB9). In this report Dr Langskaill states:
(a)LZQZ expressed their main priority as to ‘be there for my kids’ and spoke of obtaining custody of daughter J, exploring a potential relationship with Ms LK, and returning to employment ([10]-[11]);
(b)the prospect of being deported appeared to be overwhelming to LZQZ ([12]);
(c)administration of the Depression Anxiety Stress Scale was attempted but ceased due to the time and difficulty of completing it ([16]-[17]);
(d)LZQZ has voluntarily referred to alcohol and drug counselling, and participated in a small number of sessions by telephone ([26]);
(e)LZQZ accepted that his offending behaviour was wrong but appeared not to identify the cost to any victims or the community ([30]);
(f)LZQZ was open to counselling but not able to identify what would be beneficial for him, and treatment options outlined by Dr Read were endorsed ([32]-[34]); and
(g)‘[LZQZ’s] prospects of rehabilitation and risk of recidivism are closely tied to the capacity in which [LZQZ] engages with … personal and professional supports that are (mostly) currently in place …’.
At the hearing, Dr Langskaill confirmed that her report was to be read in conjunction with that of Dr Read. She affirmed her agreement ([27]) with Dr Read’s opinion that future risk of violence did not appear to be imminent, and that she did not ‘endorse’ (meaning mark as a risk factor) ‘Future Problems with Professional Services and Plans’. This was because she understood that referrals of LZQZ to services have now been made, which was not the case at the time of Dr Read’s assessment. Dr Langskaill added that risk of violence should be evaluated every 12 months ([28]).
Dr Langskaill stated that LZQZ had taken responsibility for the recent offending and recognised the cost/benefit aspect, rather than being resentful of their experience. When asked her view of LZQZ’s rehabilitation were they to engage with supports, Dr Langskaill responded that the prospects were sound, but that the Applicant’s engagement with supports must be at a ‘high and consistent’ level. Linkage to health services to process emotional issues arising from the death of LZQZ’s uncle was strongly recommended ([32]).
In cross-examination, Dr Langskaill stated that LZQZ’s inability to nominate particular objectives for future counselling was not uncommon, particularly among those that have not previously attended counselling. Although to do so would indicate a high level of insight, Dr Langskaill did consider that LZQZ displayed some capacity for insight ([6]). She acknowledged that Dr Read found that LZQZ presented with a high number of risk factors for future general offending.
In re-examination, Dr Langskaill described the periods of time in which no offending by LZQZ occurred as ‘encouraging’, as it shows they can function for significant periods of time in a pro-social manner. In relation to having multiple offers of accommodation, she added that LZQZ does not like feeling dependent, so understood these offers as being for ‘as long as needed’.
I sought clarification from Dr Langskaill as to the foundation finding as to risk. She stated that the instrument on which the risk assessment has been based looks at what needs to happen to maintain the identified level of risk. Dr Langskaill summarised it in this way: ‘if things start to unravel, the level of risk increases’. She added that the motivation to play a role in the children’s lives was a protective factor.
With respect to the previous neuropsychological evaluation of LZQZ, Dr Langskaill referred to the summary in Dr Read’s report ([57]) and recommended that the Applicant be reassessed.
This material was briefly referred to above in the summary of the sentencing remarks of the Magistrate. It is an assessment made in 2009 by the Acquired Brain Impairment Assessment Unit (G2J). The report arose from the referral of LZQZ by the Judy Lazarus Transition Centre, with a view to assessing their needs for community reintegration. Key observations and findings include (pp 4-7):
(a)limited information about LZQZ’s childhood, education, and physical abuse when young made it difficult to assess premorbid functioning, but the Applicant was assessed as falling within the low average, to average range;
(b)LZQZ presented with borderline range attention span and working memory verbally, and equivalent to matched peers for non-verbal assessment;
(c)speed of processing ranged between equivalent to age matched peers and extremely low range for certain tasks;
(d)language ability was not comprehensively assessed due to difficulties with both English and Arabic, but performed in the extremely low range for higher order reasoning using verbal information;
(e)LZQZ performed in the low, extremely low average and borderline range for visuospatial (non-verbal) abilities;
(f)new learning and memory assessment produced results varying from average, borderline and extremely low range;
(g)LZQZ exhibited variable performance on executive functioning measures and demonstrated severe impairment in abstract reasoning using verbal information;
(h)LZQZ self-reported cognitive difficulties in everyday life tasks, but a clear cognitive profile was unattainable due to inconsistent performance in testing (although apparent effort was shown throughout), however LZQZ demonstrated ability to learn beyond their immediate attention span;
(i)relief from self-reported psycho-social factors (anxiety and moderate symptoms of depression) may result in an improvement, but LZQZ ‘will have ongoing deficits related to more permanent factors’;
(j)it is clear LZQZ has a number of risk factors for acquired brain injury (ABI) including childhood trauma, alcohol abuse, and past head injuries.
Submissions
At the hearing it was submitted for the Applicant that LZQZ now appreciates the consequences of their previous actions. It was submitted that the Applicant is clearly future focused on goals that are protective against risk including his children and employment as a truck driver. Further, emphasis was placed on the expert opinion that LZQZ had no history of violent behaviour, no intent to cause violence, and that there is no imminent danger of violence. It was also contended that with the assistance of Cohealth, LZQZ will be able to access a range of services and supports. It was also submitted for LZQZ that they have multiple offers of accommodation and that this certainty and stability of residence is also an important protective factor for successful return to the community. LZQZ will also receive assistance seeking employment.
It was submitted for the Respondent that there was an unacceptable risk of LZQZ reoffending. It was emphasised that a recent expert opinion had confirmed the high number of risk factors, and LZQZ had a questionable understanding of the necessary supports they required. The harm of any repeat offending would be substantial.
The Respondent’s SFIC acknowledges LZQZ’s low risk assessment in custody and educational and rehabilitation programs undertaken. It is also submitted that LZQZ’s offending has been associated with problem drinking and they have limited insight into the role of alcohol in offending behaviour.
In the Applicant’s Reply, contentions focus on aspects of the expert reports. It is submitted that these assessments speak to a low risk of reoffending, and to the role of supports that will be available should LZQZ be released, both professional and personal.
Summary finding
There are two key elements to the professional assessment of the risk of LZQZ reoffending. LZQZ presents with a high number of risk factors for general offending, which may include violence. However, the risk of imminent violence is assessed as low. I accept that the evidence of Dr Langskaill is to the effect that protective factors have increased somewhat given that there appear to be linkages in place for professional services and support to LZQZ.
That said, I consider the professional judgment about LZQZ’s prospects for successful return to the community to be relatively strongly qualified. In short, the opinions, which I accept, indicate that LZQZ is in need of mental health therapy and a range of other supports (articulated in Dr Read’s report at [108]).
I accept that LZQZ is presently a client of what I understand to be an appropriate organisation, but that this engagement is of very recent standing; namely, March 2022. Further, I note that LZQZ’s formal engagement is due to end with this organisation in September 2022, as a matter of procedure. Accordingly, I consider it reasonable to observe that there is a degree of fragility and, to a lesser extent, speculation, as to what may or may not transpire in practice to deliver the kind of assistance required to maintain or reduce the level of risk.
It is certainly a positive factor, however, that LZQZ is engaged with Cohealth. It is also a positive factor that LZQZ has around them several individuals who are familiar with their needs and appear to be willing and in a position to provide guidance and support. I accept their evidence that they will provide both direct forms of support, including at least short-term accommodation, and other advice and assistance.
I accept that LZQZ is not only an experienced truck driver but is highly motivated to return to this occupation. I also accept that LZQZ has completed a wide range of vocational courses which speaks to their capacity and motivation to apply themself to gainful activity. Their evidence about being interested in the mining sector slightly clouds the picture with respect to LZQZ settling into a relationship and returning to a direct parenting role. However, I take this as evidence, principally, as to their level of motivation to work.
LZQZ gave evidence that they intend to consume alcohol in the future on what can be described, in summary, as a social basis. The weight of evidence indicates that the Applicant does not have an ongoing problem with alcohol, and their period free from criminal offending and experience driving would appear to reinforce this interpretation.
I also accept that LZQZ intends to rekindle, or perhaps properly commence for the first time, a relationship with Ms LK. This intention forms part of a wider and clearly expressed desire to return to a parenting role in respect of several children. I will address this directly under the relevant consideration but note here the strong possibility that this kind of focus may function as a protective factor against reoffending.

The Direction states that information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7(1)). Accordingly, I consider it appropriate to adopt the expert opinion that LZQZ has a high number of risk factors for general offending, but that there is a low risk of violent offending.
Taking into account the factors and findings I have set out above, I accept that there are some good indications that LZQZ will be in a position to pursue supports that will moderate the high number of risk factors. These supports are, naturally, undeveloped perhaps due to the fact that LZQZ remains in detention. However, it is also apparent that LZQZ lacks the capacity to articulate any insight they might possess as to the priority and relevance, particularly, of mental health supports.
I also consider it appropriate and relevant to note that LZQZ’s presentation during evidence tended to reinforce the impression that they may not function at a high level, certainly with respect to cognitive and verbal skills. LZQZ exhibited a tendency to wander slightly off topic in providing answers to questions. More concerningly, LZQZ appeared to develop and, largely, maintained a kind of verbal tic, particularly when under pressure.
Finally, I note that early in their evidence at the hearing, LZQZ stated that they rely on an application on their phone to help with converting text to voice, and voice to text. This was not elaborated upon in other evidence but does appear to reinforce the ongoing cognitive and literacy challenges faced by LZQZ. This is consistent with a similar statement made in their most recent statement (HB4, [89]).
For this reason, I consider that there is overall a real risk of LZQZ reoffending, and a low risk of violent offending. Given LZQZ’s experience as a professional driver, and despite their record of driving related offences, I consider the risk of harm arising from any driving related offences to be serious, but not unacceptable.
Finding
It was submitted for the Applicant that this primary consideration weighs in favour of revocation.
For the Respondent, it was submitted that this primary consideration weighs strongly against revocation.
I have found that LZQZ’s offending should be considered very serious. I have also found that there is a real risk of reoffending.
Accordingly, I find that this primary consideration weighs against revocation.
Family violence committed by the non-citizen
There is no evidence of offending or other conduct that engages this consideration in accordance with paragraph 8.2(2) of the Direction. Accordingly, it weighs neutrally.
Bests interests of minor children in Australia affected by the decision
There are a number of factors identified in the Direction (paragraph 8.3). These include:
(a)that children receive individual consideration to the extent that their interests differ;
(b)the nature and duration of the relationship with the non-citizen;
(c)the extent to which the non-citizen is likely to play a positive role in the future; and
(d)the likely effect of separation; and
(e)the views of the child (if known).
There are several minor children whose interests arise for consideration in this matter:
(a)siblings S, born 2010 (aged 12), and T, born 2012 (aged 10);
(b)J, born 2015 (aged six and a half);
(c)Y, born 2017 (aged five); and
(d)M, born 2020 (aged two).
A summary of LZQZ’s engagement with the children is found in the Applicant’s statement dated 6 June 2022 (HB4). LZQZ gave evidence consistent with this statement. They confirmed that they had not been aware of their child M until informed by Ms LK. LZQZ has since conducted video calls with M since being in detention and understands that the mother and child live in Brisbane. LZQZ confirmed in evidence that M’s mother is facing financial challenges with respect to the care of her other children, which has in turn led to custody issues with M’s maternal grandparent. As a result of these issues, M’s mother is reportedly considering a suggestion made by LZQZ to relocate closer to them. In cross-examination, the Applicant confirmed their desire to conduct a DNA test to confirm paternity.
LZQZ confirmed that they had been given care of J as a very young child by welfare authorities as the child’s mother was incapable of caring for them. The Applicant stated further that from recent contact, they had concerns about the level of care being given to J, who appeared not to be eating and to have rashes on their body. LZQZ wished to regain custody if returned to the community.
Ms LK confirmed that she had provided records of bank transactions between herself and the Applicant, and call records (HB13-14). I noted during the hearing for the benefit of the parties that the transactions appeared to balance out, meaning that those from LZQZ to the witness totalled those from the witness to the Applicant. Ms LK stated that she had provided financial support to LZQZ while in prison via money order, and during detention. She stated that the Applicant had recently transferred a sum to her to pay for registration.
Ms LK stated that her child Y misses LZQZ and would like them to be at school drop off and pick up. Y had also stated that they wished to have LZQZ at an upcoming birthday. Ms LK also stated that she had offered to the Applicant to live with her on release.
In cross-examination, Ms LK responded ‘it’s complicated’ when asked if the couple had previously ever been in a relationship. She understood LZQZ’s interest in caring for J.
It was submitted at the hearing that LZQZ was deeply focused on having ongoing contact with their children. The positive relationship with Y was attested to in evidence by Ms LK and it was contended that the development of the relationship between the parents would give stability to the child. With respect to M, it was contended that it is in that child’s best interests to know LZQZ, and Ms LK had assisted in the Applicant’s awareness of this child and LZQZ was considering asking for M to relocate to Melbourne. The ongoing welfare concerns for J were highlighted along with LZQZ’s desire to resume primary care. It was further submitted that LZQZ had been involved in the care of their older children S and T.
It is submitted ultimately for LZQZ that this primary consideration weighs heavily in favour of revocation, as it is plainly in the interests of all minor children to have them physically in their lives.
The Respondent submitted that the interests of all minor children clearly weigh in favour of revocation, but to varying degrees. As LZQZ intends to pursue a paternity test to confirm parentage of M, the interests of this child, it was submitted, is less compelling than with respect to other minor children. It was contended in the Respondent’s SFIC that only marginal weight should be given in favour of revocation in respect of this child.
Consideration and finding
Child J
I accept the evidence given with respect to the risks facing this child, and I have considered the material provided evidencing the prior care arrangement when this child was approximately one and half years old (G2V). I have noted above some of the uncertainties around LZQZ’s return to the community, however I do not consider these sufficiently concrete to substantially undermine the Applicant’s desire and general capacity to play a positive role in this child’s life.
Child Y
I accept the evidence given as to the ongoing and apparently positive relationship between LZQZ and this minor child. Despite some vagueness as to the history between Ms LK and LZQZ, no submission was put before me questioning the mutual support provided to each other in recent times. I accept Ms LK’s evidence as to the sincere intention to seek to create a functioning and stable relationship with the Applicant for her only child.
Children S and T
The mother of these minor children provided a statement in support of LZQZ’s revocation request (G2T). The statement speaks to the mother’s difficult personal circumstances arising from the breakdown of her marriage, from which she has two other children. I note that in their most recent statement, the Applicant states that the positive engagement with the mother of S and T, including frequent contact during detention, changed very recently. LZQZ considered this may be due to the role of Ms LK in their life.
Nonetheless, the evidence overall demonstrates to my satisfaction that LZQZ has in the past played a direct parental role, particularly in respect of S. The Applicant, according to the mother’s statement, always sought to maintain active engagement in the lives of these minor children and indeed remains thankful to the Applicant for his supportive role after the difficult births of both children.
Child M
The evidence demonstrates that M has never played a direct parental role in this child’s life, the child being born while LZQZ was incarcerated, without their knowledge. The evidence also indicates that there remains some uncertainty as to LZQZ’s capacity to engage actively with a child that lives interstate. However, I also note the evidence with respect to M’s mother facing financial challenges in caring for her other children, and the potential for their relocation, with M, closer to LZQZ.
In respect of all minor children, I note that there is no evidence that LZQZ’s past conduct, or any future conduct, is likely to have a negative impact. Indeed, the material overall indicates quite to the contrary. I noted above LZQZ’s enthusiasm and motivation with respect to playing roles in their children’s lives.
Accordingly, I find that the interests of minor children J, Y, S and T weigh strongly in favour of revocation. I find that the interests of minor child M weigh in favour revocation.
Overall, given the particular situations of minor children J and Y, I find that this consideration weighs strongly in favour of revocation.
Expectations of the Australian community
This consideration states as an overarching expectation that the Australian community expects non-citizens to obey Australian laws and that, ‘as a norm’, the community expects the Government to not allow a non-citizen to remain here when they have, or may, breach this expectation (paragraph 8.4(1)).
The Direction states that non-revocation may be appropriate simply due to the nature of character concerns, citing particular examples of offending types that would raise such concerns (paragraph 8.4(2)). Further, it states that the expectation applies whether or not there is a measurable risk of physical harm (paragraph 8.4(3)).
For the Applicant, it is submitted that this consideration should be given minimal weight, relying on the core contentions made in respect of the risk of reoffending, namely, that LZQZ has been found to be a low risk of reoffending. The Applicant’s willingness to engage in services and the exact circumstances of the previous offending, as mitigating factors, were otherwise referred to in support of this submission.
For the Respondent, it is contended that this consideration should weigh heavily against revocation. At the hearing it was submitted that this consideration merits considerable weight due to the seriousness of LZQZ’s offending. It is submitted in the Respondent’s SFIC that LZQZ, in their offending, has demonstrated persistent disregard for the law, and their conduct has caused serious harm to the community.
This consideration is expressed in normative terms. It has been interpreted as likely to weigh, in almost all cases, against revocation, but the weight to be afforded the consideration should be considered in the circumstances of the individual case, and the seriousness of the offending (FYBR v Minister for Home Affairs [2019] FCAFC 185).
None of the specific forms of serious character concern identified in the Direction arise in the context of LZQZ’s offending. I have found, however, that the Applicant’s offending should be considered very serious.
I note the Principles which inform the application of the Direction, set out above, state that the Australian community may have a low tolerance for criminal conduct by non-citizens who have participated in or contributed to Australia for a limited period of time. LZQZ did not arrive in Australia at a young age but, having arrived in Australia in December 2000, has lived here for the majority of their life. Despite their record of offending, LZQZ has also made a positive contribution to Australia through employment and demonstrated a capacity not to offend for a sustained period.
Without contradicting the outcomes of the judicial process or the seriousness of offending, represented by periods of imprisonment, I note that LZQZ’s personal background and life circumstances have been key factors in their offending. I consider them to be, in the terms of the Principles, important countervailing factors.
On balance, I find that this consideration weighs against revocation.
OTHER CONSIDERATIONS
International non-refoulment obligations
This consideration addresses Australia’s obligations not to return a person to a place where they will be at risk of harm (paragraph 9.1(1)). The harm is specifically identified as being expressed in the terms found in the Act. I note, in this respect, that the harm is defined in s 36 of the Act as a real risk of serious harm in the context of a well-founded fear of persecution, or a real risk of significant harm under Australia’s complementary protection obligations (that is, convention-based obligations).
I must carefully weigh any such obligation against the seriousness of criminal offending, mindful that an unlawful non-citizen is liable to immediate removal, regardless of any such obligation (paragraph 9.1(2)).
The most recent authority regarding this other consideration is Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (M1). The High Court considered the scope of the consideration, and the actions available to a decision maker. The majority reasoning can be summarised in the terms adopted in the decision (M1 at [9]):
(a)a decision-maker is required to ‘read, identify, understand, and evaluate’ representations made in respect of Australia’s non-refoulement obligations;
(b)the obligations unenacted in Australia (that is, found solely in international law) are not a mandatory relevant consideration; and
(c)to the extent the obligations are given effect in the Act, one available outcome for the decision-maker is to defer assessment as to whether an Applicant is owed these obligations, on the basis that they may apply for a protection visa.
Evidence
In LZQZ’s most recent statement (HB4) they say as follows:
(a)South Sudan is not a safe place for them and they fear they will ‘be targeted and suffer harm’ ([76]);
(b)while part of, or descended from, the Dinka tribe, LZQZ does not speak the language and does not consider that they will be accepted or protected by them ([77]);
(c)they may suffer discrimination on the basis of lighter skin colour and having lived in the West for most of their life ([78]-[80]);
(d)LZQZ has no job, no place to live, no family and no support for cognitive or mental health issues in South Sudan ([81]);
(e)LZQZ considers that their memory issues, as well as their appearance and background, makes them a target for crime [81]; and
(f)LZQZ considers that South Sudan is not an appropriate place for their children to visit and therefore that they will not see them again ([85]).
LZQZ agreed in evidence that they would have concerns if returned to South Sudan. The Applicant stated they were born in Sudan, had an Islamic sounding name, and referred to the civil war that had led to the creation of South Sudan in 2011. LZQZ stated their father was a European but their mother was South Sudanese and the Applicant had led their teenage years in Egypt. In response to a question from myself, LZQZ stated they had departed Cairo when they moved to Australia.
In cross examination, LZQZ confirmed that he had brothers overseas but did not know where they are and had no contact with them.
Dr Langskaill affirmed in evidence her opinion that if LZQZ was transferred to South Sudan this would sever contact with their children, which would cause a disturbance to the Applicant’s mental health.
Mr AN gave evidence that he came to sponsor LZQZ though a community funded program in which persons overseas seeking sponsorship would write to people in Australia, asking for assistance. While he did not know the Applicant or their uncle personally, Mr AN stated that he knew them as part of a prominent family grouping. Mr AN stated this family has its origins in Warrap State which is now part of South Sudan. He himself shared similar ethnicity as part of the wider Dinka group.
Submissions
The Applicant’s SFIC restates claims as identified above from LZQZ’s statement. It also identifies further claims including:
(a)the possibility of the Applicant being recruited as a soldier ([93]);
(b)lack of protection for the Applicant from the State ([93]); and
(c)the Applicant would be considered South Sudanese due to their mother’s ancestry, under South Sudan’s Nationality Act 2011, although it is not clear if the Applicant would satisfy requirements to evidence citizenship ([94]-[95]).
I note the detailed submission by Refugee Legal (G2Q) that elaborates (at [180]) the membership of various groups said to put LZQZ at risk on return, and I consider the summaries of claims above correlate with those specific forms of identification.
That submission also addresses (at [181]) the question of LZQZ’s nationality with reference to the Nationality Act 2011, specifically noting a person shall be considered South Sudanese if any parent were born in South Sudan or belongs to an indigenous ethnic community of South Sudan.
I note the decision record supporting the decision under review proceeded on the assumption that South Sudan is the country of reference with respect to the Applicant. While observing that a comprehensive assessment of the Applicant’s non-refoulement claims could take place in a protection visa application process, the delegate accepted there was a real likelihood LZQZ could face a real risk of suffering the specific kinds of harm claimed.
It was submitted for LZQZ at the hearing that the most likely country for return was South Sudan. In the Applicant’s SFIC, it is contended that as the holder of a humanitarian visa, LZQZ has already been assessed as suffering substantial discrimination. It is submitted that despite the decision in M1, it is appropriate for the Tribunal to proceed to make a finding under this other consideration. This is not only because of their status as a humanitarian visa holder, but also because LZQZ would, most likely, fail in a protection visa application due to their offending history.
The Respondent agreed at the hearing that the country of reference is South Sudan as country information indicates that the family form part of the dominant ethnic group. The Respondent contended that, following M1, the appropriate course was to defer consideration of non-refoulement obligations. The Respondent’s SFIC also contends that, also following M1, a decision-maker should take account of the facts underlying claims made by an Applicant in support of considering any ‘other reason’ the decision should be revoked.
The Applicant’s Reply offers a dictionary definition of ‘evaluate’, contending that the term is synonymous with ‘consider’. It also stresses that the Tribunal should not only undertake consideration of claims made in respect of this other consideration, but to also carefully and appropriately weigh the factors arising.
Consideration and finding
Notwithstanding the additional submissions made for the Applicant with respect to the task the Tribunal must undertake under this other consideration, the best guide is, I consider, the decision of the High Court in M1. All clearly articulated claims must be evaluated, whether for the purposes of assessing their strength and relevance under this heading, or in respect of any further other consideration (whether identified in the Direction, or apparent on the face of the evidence).

The High Court also made it clear that it is not incumbent on the Tribunal in all cases to then proceed to make actual findings of fact (M1 at [24]). The Respondent is also correct in submitting that a decision-maker can elect to defer consideration of non-refoulement in circumstances where a non-citizen may make a protection visa application ([30] and [39]).
Among the country information material lodged in this matter (HB16-20) are two relatively recent reports, being a report of the United Nations Security Council (HB18), and a US Government State Department report (HB19). Both attest to ongoing communal violence, increasing humanitarian needs, and extensive human rights abuses in South Sudan. Particular forms of violence highlighted include arbitrary killings, forced military recruitment, and extrajudicial killings. The former report records an extreme concern about the level of intercommunal violence (HB18 at [99]). The latter records systematic and widespread discrimination arising from communal tensions (HB19 at p 35). I note that the United Nations document nominates issues arising in numerous locations, including Warrap State.
I consider that the particular claims about harm made by LZQZ correlate realistically with this body of country information. While there is some generality associated with the Applicant’s claims, they point to particular characteristics personal to LZQZ that highlights the likelihood that they could well be vulnerable to harm if returned to South Sudan.
I also consider that the submissions of the parties, and the approach taken by the delegate, are correct in LZQZ’s particular circumstances, in that it is appropriate to proceed on the assumption that South Sudan is the country of reference.
I take account of the fact that LZQZ is entitled to apply for a protection visa and that, in the course of any such process, their claims in respect to non-refoulment will be more fully considered. Equally, I note the Direction states that a decision-maker is not required in all cases to make a positive finding about whether a claimed harm will occur but may make such an assumption.
In this case, I consider it appropriate to assume that LZQZ’s claims of a risk of harm (specifically, lack of protection despite Dinka ethnic affiliation, lack of protection by the state, discrimination on the basis of their appearance, and lack of cultural and linguistic ability) are indeed realistic.
Accordingly, I find that this other consideration weighs in favour of revocation.
Some of the claims and country information set out here also warrants consideration under the following other consideration.
Extent of impediments if removed
I must consider the extent of impediments a non-citizen may face if removed to a ‘home country’, in establishing themselves and ‘maintaining basic living standards (in the context of what is generally available to other citizens of that country)’ (paragraph 9.2(1)). I must take into account age and health, substantial language or cultural barriers, and any social, medical or economic support available to them.
At the hearing, the Applicant’s submissions noted LZQZ’s lack of literacy, their physical appearance and mental health issues. In the Applicant’s SFIC, all claims under the previous other consideration are relied upon in respect of this consideration. It is contended that this other consideration weighs heavily against revocation.
The Respondent submits in its SFIC that facts underpinning the Applicants claims in respect of the previous other consideration may be relevant to this consideration. In light of what are described in the SFIC as ‘significant health issues’, the Respondent contends that LZQZ’s mental health and cognitive impairments are likely to be significant impediments to him establishing himself in South Sudan.
It is further contended in the Respondent’s SFIC that LZQZ faces significant practical, financial and emotional hardship if returned to South Sudan. It is submitted the impediments to return ‘clearly weigh in favour of revocation’.
It is submitted in the Applicant’s Reply under the previous other consideration, that the relevant facts arising apply also to this other consideration.
LZQZ’s age is not necessarily an impediment of itself, except to the extent that the Applicant is no longer a young person and has no experience of their background culture. More relevantly, while I understand LZQZ to be of sound health, I have referred above to their particular issues with cognitive ability (noting that expert opinion is in need of updating). I accept that there is no current diagnosis of a mental health condition, but evidence points to a strong need for LZQZ to obtain mental health support.
There are clearly, on the evidence, some important social, cultural and linguistic barriers facing LZQZ should they return to South Sudan. As I understand the body of material overall, LZQZ has no immediate familial or social contacts in South Sudan and is unable to communicate in a local language.
These same factors also mean that it is clear that LZQZ, if returned, would enter a country and social context with no social supports and no obvious means of economic support. I accept that the evidence demonstrates that LZQZ has a range of skills and some work history, but I consider it reasonable to assume that with their lack of connections and language ability, employment opportunities may be difficult to secure, at least initially.
In this context, however, I note the country information referred to above indicates relatively widespread human rights abuses and discrimination. On this basis, the disadvantages identified here borne by LZQZ could readily turn into substantive vulnerabilities, further reducing their capacity to establish themselves.
The threshold established in the Direction for this other consideration is relatively low; that is, a non-citizen’s capacity is considered by reference to basic living standards. However, even by that relatively modest measure, I consider that LZQZ has several distinct and critical disadvantages that would cause them quite significant difficulty in establishing themself in South Sudan. This might be summarised by saying that despite some obvious cultural links, South Sudan could not be described as the Applicant’s ‘home country’.
Accordingly, I find that this other consideration weighs strongly in favour of revocation.
Impact on victims
There is no evidence indicating that this consideration is engaged, and no submissions were made by the parties in respect of this other consideration. I find that it weighs neutrally.
Links to the Australian community
This other consideration comprises two elements, however no evidence or submissions address the second, being Impact on Australian business interests. This latter element of this other consideration accordingly weighs neutrally.
The strength, nature and duration of ties to Australia
In this consideration I must consider the impact of a decision on immediate family members in Australia who are citizens or have a right to reside permanently (paragraph 9.4.1(1)). I must also consider other family or social ties to the Australian community with regard to the length of time the non-citizen has resided here and in the context of their offending (paragraph 9.4.1(2)).
Decision-makers must give consideration to the impact of a decision on immediate family members of the non-citizen where they are citizens, permanent residents, or have the right to remain in Australia indefinitely (paragraph 9.4.1(1)).
Consideration should also be given to the strength, nature and duration of any other ties to the Australian community (paragraph 9.4.1(2)). In doing so, regard must be had to the length of time the non-citizen has resided in Australia, and less weight should be given when offending commenced soon after arrival, and more weight to time spent contributing positively. Consideration should also be given to family or social links.
LZQZ is nearing 40 years old and has spent a little over half their life and the majority of their adult life in Australia. The Applicant’s offending commenced within a few years of arrival in Australia but, as noted, LZQZ has been employed for periods of time and their record of offending includes a period of six years without conviction.
I accept that LZQZ has four or possibly five biological children that are Australian citizens. The evidence indicates that the mothers of the children are Australian citizens. Evidence in this matter indicates that the non-family witnesses in this matter are either Australian citizens or persons with a right to reside permanently in Australia
The Applicant’s SFIC and submissions at the hearing stress that LZQZ has been a resident of Australia for over 20 years. It was contended the Applicant has overcome many personal difficulties to make a home in Australia and that LZQZ has a number of children, and supporting individuals, that are Australian citizens. It is submitted that this other consideration weighs in favour of revocation.
It was submitted for the Respondent at the hearing that, other than their children, LZQZ’s links to the Australian community are relatively limited. It was contended that LZQZ has spent a limited amount of productive time contributing to the community. In the Respondent’s SFIC it is contended that, given LZQZ’s links to Ms LK and the mother of S and T, that this other consideration carries some weight in favour of revocation.
LZQZ does not at present have an immediate family unit to which they may return, or with whom they resided for substantial periods. However, this other consideration encourages close consideration of the impact of a decision on persons who would be affected by it. Clearly the several children qualify for such consideration, and Ms LK might also be considered a person in a family-like relationship with LZQZ.
The Respondent’s contention as to the nature of LZQZ’s community ties is accurate, to the extent that there is limited evidence before me as to tangible links to persons other than family and friends or associates. However, I consider it relevant to take account of the fact that this other consideration permits consideration of these links, and that they form the entirety of LZQZ’s social links.
It is clearly not to LZQZ’s credit that they commenced offending within a few years of arrival, but I note his youth at that time, and the fact that the offending was dealt with by non-custodial orders.
I find, overall, that this consideration weighs in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that Protection of the Australian community and Expectations of the Australian community weigh against revocation, and that The best interest of minor children in Australia affected by the decision weighs strongly in favour of revocation.
Of the other considerations I have found that International non-refoulment obligations and Links to the Australian community weigh in favour of revocation, and that Extent of impediments if removed weighs strongly in favour of revocation.
I have found that particular weight should be afforded to the primary consideration relating to the interests of minor children and, for clarity, add that consistent with the Direction (paragraph 7(3)), this primary consideration outweighs the other two primary considerations.
I also consider that the particular weight afforded to the other considerations, given LZQZ’s circumstances, means that these considerations are not outweighed by the primary considerations that weigh against revocation.
LZQZ’s personal background and circumstances do not excuse their offending, which I have found to be very serious. However, as noted above, there may be countervailing considerations that justify revocation. In this matter, I have noted the particular deficits, such as those characterising the Applicant’s presentation of evidence, which have also informed – among other factors – the findings on the identified considerations.
DECISION
For the reasons given above, the Tribunal sets aside the decision of 21 April 2022 not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 202 – Global Special Humanitarian visa and substitutes it with a decision that there is another reason why the mandatory cancellation of their visa should be revoked.

I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..................[sgd]....................................................

Associate

Dated: 14 July 2022

Date of hearing: 23 and 24 June 2022

Counsel for the Applicant: Uthra Ramachandran

Solicitors for the Applicant:

Advocate for the Respondent:

Carina Ford Immigration Lawyers

Ned Rogers

Solicitors for the Respondent: Australian Government Solicitor

166.

[2022] AATA 2261

14 July 2022

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