Maut and Minister for Home Affairs (Migration)
[2018] AATA 2754
•24 July 2018
Maut and Minister for Home Affairs (Migration) [2018] AATA 2754 (24 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2539
Re:William Maut
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:24 July 2018
Place:Sydney
The delegate’s reviewable decision of 30 April 2018 is set aside.
In substitution for the 30 April 2018 decision, the 17 July 2017 decision to cancel the Applicant’s Global Special Humanitarian visa (Class XB, subclass 202) is revoked.
.............................[SGD]...........................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
MIGRATION – Class XB Subclass 202 Global Special Humanitarian visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – criminal convictions – protection of the Australian community – risk of reoffending – expectations of the Australian community – best interests of minor children – strength nature and duration of ties – impact on victims – hardship – applicant's disability – PTSD – trauma survivor – alcohol abuse – international non-refoulement obligations – decision set aside and substituted
LEGISLATION
Crimes Act 1990 (NSW)
Criminal Code Act 1995 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 193 FCR 113
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Maioha v Minister for Immigration and Border Protection [2018] FCA 1016
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; 227 FCR 562
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203; (2015) 151 ALD 107; (3015) 319 ALR 181YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 56 – Consideration of Protection Visa applications
Ministerial Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Ministerial Direction No. 75, Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
24 July 2018
Mr Maut was born, raised and educated in Khartoum, Sudan. In the latter part of the prolonged (1983 – 2005) conflict that afflicted the country during its second civil war, Mr Maut’s Dinka ethnicity saw him targeted, apprehended and seriously injured by Sudanese soldiers. His injuries required, or at least resulted in, the amputation of his left leg. Shortly afterwards, in about 2001 when he was 30 years old, he fled to Egypt with his wife and members of his family. Four years later, after having been granted a Class XB (Refugee and Humanitarian) Subclass 202 (Global Special Humanitarian) visa, facilitated by the assistance of the UNHCR, he came to live in Australia. That was in late August 2005.
Mr Maut continued to hold his Global Special Humanitarian visa until 17 July 2017. At that time he was serving a one month term of imprisonment. Given Mr Maut’s criminal record, the cancellation was in accordance with the mandatory obligation that arose under of Migration Act 1958 (“MigAct58”) s 501(3A). Despite Mr Maut’s August and October 2017 representations, on 30 April 2018 a Ministerial delegate refused to revoke the visa cancellation. That refusal decision is the subject of Mr Maut’s review application.
MR MAUT’S CRIMINAL RECORD
Since his 2005 arrival in Australia Mr Maut has incurred convictions for approximately 32 offences. Their basic relevant details, including the penalties they attracted, are outlined in the Schedule to these reasons. The Schedule includes the actual date of each offence, and has been arranged in that order. It also includes the conviction date and Mr Maut’s age at the time of each conviction. I have added to the Schedule (i) the date of the July 2014 counselling letter (see paragraph 36 below), (ii) the month and year of Mrs Maut’s death, and (iii) what I regard as the most appropriate (although somewhat impressionistic) categorisation of the range of Mr Maut’s various offences. The Schedule details reveal the following.
(a)Fourteen of Mr Maut’s offences involved some form of assault or intimidation, but only eight of those occurred in the last decade, and the most recent occurred in May 2015.
(b)Six of Mr Maut’s assault and intimidation offences (those that occurred between February 2012 and May 2015) attracted sentences of imprisonment totalling 48 months. But no individual sentence exceeded 12 months, each sentence was suspended, and he was never called up for re-sentencing.
(c)Since May 2015 Mr Maut’s six convictions have all been for offences that are properly characterised as offensive behaviour.
(d)In 2017 Mr Maut was dealt with for failure to comply with good behaviour bond conditions on two occasions. On those occasions he was incarcerated for the first time. His periods in prison custody were for a fortnight in late March / early April 2017, and for a further one month period from 27 June to 26 July 2017.
MIGRATION ACT PROVISIONS AND THE MINISTERIAL DIRECTION
By December 2013 three of Mr Maut’s convictions had resulted in sentences totalling 12 months. That meant he had acquired a “substantial criminal record” – notwithstanding the suspension of those sentences. As a result of those offences (and his three further sentences in May 2015) he could no longer satisfy the statutory “character test” in s 501(6)&(7) of the Migration Act 1958 (Cth); see Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113. That fact, coupled with the circumstance that he was actually in prison on 17 July 2017, triggered the visa cancellation decision.
The Minister has a conditional discretion to revoke a visa cancellation decision. Because Mr Maut undoubtedly has a “substantial criminal record”, exercise of the discretion depends on satisfaction that there is “another reason why” the cancellation decision should be revoked:- MigAct58 s 501CA(4)(b)(ii).
Subject to the difficulties that can arise in connection with non-refoulement claims (see paragraph 95 below), the “another reason” criterion requires regard to all the relevant considerations, both those that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The task of that consideration is to achieve that is both lawful (in the sense of properly exercising the statutory discretion) and “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; 227 FCR 562. The obligation of this Tribunal in exercising the statutory discretion is to determine the “correct or preferable” outcome in the particular circumstances:- Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577 at [589].
MINISTERIAL DIRECTION NO. 65
The “another reason” revocation discretion exercised by the Tribunal is subject to the discipline of compliance with “ Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”). That is a Ministerial direction authorised by MigAct58 s 499(1) & (2A).
Direction no. 65 mandates consideration of relevant matters, without derogating from the Tribunal’s duty to reach the “correct or preferable” decision in the particular case before it. The actual purpose of the requirements in the Direction is to facilitate appropriate decision making: Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35] … the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction, but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act…
Notwithstanding that Direction no. 65 is a publicly available document, it is prudent to outline its material content. The Preamble to Direction no. 65 details the objectives of the relevant MigAct58 provisions. It then requires the relevant discretion (variously relating to visa grant, cancellation or cancellation revocation) to be exercised after consideration of “the specific circumstances of the case”:- cl 6.1(2) &(3). The immediately following part of the Preamble provides a statement of “general guidance” for decision-makers. That guidance statement commences with a declaration of government commitment to “protecting the Australian community from harm as a result of criminal activity”, and from what is referred to as “other serious conduct”. (The latter reference may be to situations where a person’s mental incapacity precluded formal conviction, but their conduct would otherwise have been characterised as criminal:- see MigAct58 s 501(7)(e)&(f).) The guidance statement continues with a reference to “principles” which it describes as providing “a framework” within which decision-makers should operate in individual matters. The “principles” are said to “reflect community values and standards” relevant in assessing whether “the risk of future harm from a non-citizen is unacceptable”. They are stated to be of “critical importance” in furthering the objective of the Government’s protective commitment:- cl 6.2(1)&(3).
The various “principles” are set out in cl 6.3 of Direction no. 65. They involve the following propositions:-
(a)the character of a non-citizen’s lawful presence in Australia is a conditionally available statutory right (described as a “privilege”) to which attach corresponding expectations of law abiding respectful conduct, and harmlessness to both individuals and the Australian community:- cl 6.3(1)
(b)the commission of “serious crimes” (non-exhaustively exemplified as violent, sexual offences or those where victims were disabled, elderly or children) attracts a general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3)
(c)the range of tolerance for “criminal or other serious conduct” by non-citizens, will be influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”. The degree of tolerance is stated to be “low” in the case of (i) visa applicants, (ii) limited stay visa holders and (iii) where the visa holder’s Australian community presence has been “only for a short period of time”. It is described as “higher”, where the person has lived in Australia since an early age, or “for most of their life”:- cl 6.3(5)&(6).
(d)the extent and nature of a non-citizen’s positive contribution to the Australian community are relevant considerations in the exercise of the statutory function:- cl 6.3(7)
(e)any adverse impact of visa cancellation on Australian resident family members and minor children, is also a relevant consideration to which decision makers are required to have regard:- cl 6.3(7)
(f)in “some circumstances” either the nature of the conduct, or the risk of associated harm, may be so serious as to be unacceptable, despite the existing of “strong countervailing considerations”:- cl 6.3(4).
Section 2 of Direction no. 65 deals specifically with the exercise of the various visa related discretions. It begins with a general requirement that decision-makers (i) exercise the discretion “informed by the principles” (ii) take into account “the primary and other considerations relevant to the individual case”, and (iii) recognise that primary considerations “should generally” be given greater weight:- cl 7 & 8. It then differentiates between grant, cancellation, and revocation decisions. (In relation to that differentiation, Direction no. 65 explains that, unlike visa applicants, non-citizens who hold a substantive visa will generally have an expectation of being “permitted to remain for the duration of their visa”:- cl 8(1). That explanation implicitly complements the substantive distinction drawn in cl 6.3(5)&(6) between non-citizens who hold unlimited stay visas, and those who do not.)
Irrespective of whether or not they are dealing with grant, cancellation, or revocation decisions, all decision makers are directed have regard to “primary considerations” and to “other” considerations. Part C of Section 2 articulates the “primary” considerations (which are in fact common to all the discretions), and some of the “other” considerations, to which regard must be had in the exercise of the revocation discretion. The “primary” considerations are:-
(a)the protection of the Australian community – ie., the governmental commitment declared in the Preamble of Direction no. 65;
(b)the expectations of the Australian community; and
(c)the best interests of Australian resident minor children.
The “other” considerations specifically discussed in Section 2 Part C, to the extent they are material to Mr Maut’s particular circumstances, are:
(a)the strength, nature and duration of his Australian ties;
(b)the impact of any revocation decision on victims of his conduct; and
(c)the nature and extent of any difficulties he is likely to encounter if removed from Australia as a result of the visa cancellation decision.
I note that one other potentially relevant matter – non-refoulement obligations – is l within the constellation of specifically identified “other” considerations. I address that matter later in these reasons:- see paragraph 95 below.
MR MAUT’S PERSONAL CIRCUMSTANCES
It is implicit in the fact of the April 2018 revocation refusal decision that the Ministerial delegate regarded Mr Maut as posing an unacceptable risk of harm, having regard to the protective commitment relevant to the exercise of the statutory discretion. But the breadth of that discretion, in the light of the guidance contained in Direction no. 65, requires acknowledgement that neither the fact a person has a (statutorily defined) “substantial criminal record”, nor apprehension that they pose a risk of harm, is a necessarily determinative consideration. Whilst the apprehension of a real risk of significant harm is an important consideration, so also is the required impressionistic assessment about whether any such risk is “acceptable” in the constellation of relevant considerations. And in the case of a person with the complexity of Mr Maut’s circumstances, that assessment requires, at the outset, an informed understanding of his personal circumstances.
Mr Maut was born in Khartoum in 1971, close to the end of the first period of civil war (from 1955 to 1972) in Sudan. His father, who died many years ago, was an office worker there. Mr Maut is the eldest of five children, the youngest of whom, his only sister, was born in 1982. He was schooled up until year 12 and both during and after his schooling he worked as a labourer in the construction industry. Mr Maut married in 1993. His wife fled with him to Egypt and they lived together in Australia, until her death in a fatal car accident in February 2016.
Mr Maut’s flight from Sudan followed his abduction by Sudanese soldiers some time in about the year 2000. He was assaulted in the street, bundled into a truck, blindfolded, and then detained for about a week. During that time, he was repeatedly tortured and beaten – on one occasion with blows to his leg with an iron rod. He has no recollection of how his detention came to end, save that he remembers being in a medical centre after his left leg had been amputated. (It had been amputated just below the top of his thigh.)
In a choice of words that must be something of a euphemism, Mr Maut says he was terrified by the experience. As soon as he could manage, he and his wife, and at least two of his brother and their families, fled to Egypt. They lived in Egypt for the next four years until they obtained humanitarian visas and came to Australia.
At this point, it is both useful and important (having regard to the distinctions drawn in cl 6.3(5)&(6) & 8(1) of Direction no. 65 – see the parenthesised passage in paragraph 11 above) to outline some aspects of the Global Special Humanitarian visa Mr Maut obtained in 2005. As is typical of most visa categories, it had specific eligibility criteria. Some applied at the application date. Others applied when the visa grant decision was made. The principal eligibility criteria at the visa application date can be sufficiently summarised as involving:- (i) the applicant's presence outside both Australia and their home country, (ii) having been subject to substantial discrimination, constituting gross violation of their human rights, in their home country or, (iii) having an Australian resident family member proposer who had been granted a similar visa. The principal eligibility criteria at the time of the visa grant decision were (i) Ministerial satisfaction there were "compelling reasons" for giving special consideration to granting the person a permanent visa having regard to, amongst other things, the degree of discrimination to which they would be subject to in their home country, (ii) similar satisfaction that “permanent” settlement in Australia was appropriate for the person and not contrary to Australia’s interests, and (iii) the person’s ability to satisfy various "public interest criteria" in Schedule 4 of the Migration Regulations 1994 (Cth). The criteria with the most apparent present relevance were 4001 (relating to the alternative of either passing, or not being required to pass, the "character test"), 4009 (relating to an intention to reside permanently in Australia) and 4010 (relating to an applicant’s apparent ability to establish themselves in Australia). The present significant aspects of these various eligibility criteria are that the visa grant was (i) only consistent with acceptance of “compelling” evidence of the likelihood of Mr Maut suffering “substantial discrimination” if he returned to Sudan, and (ii) not necessarily dependent on affirmative satisfaction that Mr Maut met the usual “character test” requirement contemplated by paragraphs (a) & (b) of public interest criterion 4001. Although a Class XB visa was not included in the specific classes of “permanent” visa in Schedule 1 Part 1 of the Migration Regulations 1994, the visa was not time limited. As a consequence of that fact, together with the specific eligibility criteria relating to permanent residence, it was a “permanent” visa for the purposes of MigAct58 s 30. (It was not a “limited stay visa” of the kind referred to in cl 6.3(6) of Direction no. 65.)
After his 30 August 2005 arrival in Australia Mr Maut and his wife lived in Western Sydney. But he had difficulty with the challenges of a new language and culture, and with the demons of his traumatic past. The language and cultural difficulties he partly addressed by attending English classes. With time and perseverance he achieved a level of conversational English proficiency sufficient for everyday functions. The difficulties of his traumatic past however soon mastered him, as did the solace he sought for them in alcohol. Within months of his arrival in Sydney he was regularly drinking litres of alcohol – on a daily basis if he had the money and the opportunity. With some, but few, periods of comparative abstinence, that has remained his habit in the intervening years. For a long time he has been an alcoholic whose drinking has been beyond his control.
That proposition may be illustrated by the circumstances of Mr Maut’s May 2012 offences. They all stemmed from an occasion when Mr Maut was grossly intoxicated at a railway station. His youngest brother summoned the police, because Mr Maut was so intoxicated and offensive in his language and behaviour that he was beyond his brother’s ability to control. The incident apparently led to Mr Maut being referred to a Salvation Army rehabilitation program in July 2012. That was likely to have been a prudent measure that anticipated the potential relevance of participation in such a program to the sentencing options likely to be considered in relation to his offences. Unfortunately Mr Maut completed only three of the ten modules of the program. In the present proceedings he said that part of the reason for his failure to follow through and complete the program was the language difficulty he encountered in trying to understand some aspects of the program.
Around 2012 / 2013 (most likely between his May 2012 offences and his December 2013 court appearance) both Mr Maut’s English language proficiency, and his motivation to address his alcohol abuse, appear to have improved. At some stage in 2013 he was admitted to an acute care psychiatric hospital in Blacktown, apparently as a result of his alcohol abuse and depression. After that he managed to abstain from alcohol for a time. It was at about the same time that he enrolled in a TAFE business administration course, and managed to complete the Certificate 1 and Certificate 2 levels of the course. The efforts that Mr Maut made, and the period of abstinence he managed to achieve, in 2013 may partly explain why the custodial sentences originally imposed (in February 2013) for his February 2012 offences were varied on appeal (In December 2013) to suspended sentences. But Mr Maut’s period of abstinence did not last, he said he struggled with the written English tasks required in his business administration course, and again lost control of his alcohol consumption. By early February 2014, his alcohol abuse had resumed, and he reported drinking up to 4 litres of wine in a day.
Mr Maut’s relapse into uncontrolled alcohol abuse, and his desultory attention to rehabilitation programs in which he was required to participate, had been apprehended in the February 2013 Local Court sentencing remarks. What was taken to be Mr Maut’s indifference to rehabilitative efforts was remarked on in a pre-sentence report in February 2014, in connection with his March 2014 conviction and sentencing for drink driving.
No bond condition relating to treatment for his alcohol abuse was imposed in relation to his March 2014 convictions (no doubt as a result of the February 2014 pre-sentence report about the likely futility of such a requirement, given Mr Maut’s past performance in relation to previous bond conditions). But conditions to that effect were imposed in August 2014, and again in October 2015. Following the October 2015 sentencing Mr Maut made some attempt to follow up with alcohol counselling. But his personal circumstances altered dramatically when his wife was killed in a car accident in February 2016. He did continue to attend counselling during 2016, with some reported persistence and success in achieving periods of alcohol abstinence – but did not achieve the objectively desirable degree of either regularity or success.
THE PROTECTIVE CONSIDERATION
Limited tolerance of criminal conduct is a corollary of the protective commitment declared in both the General Guidance provided in cl 6.2 of Direction no. 65, and in the corresponding mandatory protective consideration set out in cl 13.1. That consideration requires regard to both the “nature and seriousness” of the person’s past conduct and to the risk to the Australian community in the event of “further offences”.
There is a sense in which all criminal activity could be regarded as “serious”:- see eg., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But other parts of Direction no. 65, at least implicitly disavow the inevitability of such a classification. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. This permissive suggestion implies a corresponding possibility that such a characterisation may not be appropriate for some offences. Elsewhere, Direction no. 65 uses the expression “serious crime”:- see eg., cl 6.3(2), 6.3(3). That expression has no specific definition – in either the interpretation annexed to Direction no. 65 or elsewhere in MigAct58. A similar expression – (“serious” Australian and foreign offences) is defined in MigAct58 s 5. The general thrust of those definitions is to include offences involving violence, serious property damage and serious drug offences, where they are punishable by at least a maximum three year term of imprisonment. In addition to that possible statutory insight, the exegesis in cl 13.1.1(a) & (b) of Direction no. 65 points to the likelihood that “serious crime” includes violent and sexual crimes, as well as crimes against officials and vulnerable victims. The further discussion in cl 13.1.1(c)-(d) & (f) of Direction no. 65 requires that both repeated offending, and particular sentences, can provide a basis for characterising offences as relevantly serious. All of those matters provide insight into the exercise involved in determining whether one or more of the offences of which a particular individual has been convicted merit characterisation, for the purposes of the revocation discretion, as “serious”. But they ought not be regarded as the sole, or even the necessarily determinative, source of information relevant to the characterisation. As Buchanan J emphasised in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (at [202] & [207]) a visa applicant / former visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances. The best guide to the objective seriousness of a particular person’s offences will likely come from an understanding of the actual circumstances involved and the penalty imposed.
Direction no. 65 does not deal specifically with offences committed under the influence of alcohol. Other legislative provisions dealing with offences of that kind make two broad distinctions. They involve (i) circumstances where the person’s intoxication is “self induced”, and (ii) particular kinds of offences where “specific intent” is an essential element of the offence, nothwithstanding the person’s intoxication:- see eg., Crimes Act 1900 (NSW) Part 11A; Criminal Code Act 1995 (Cth) Pt 2.3 Div 8. Nothing in these kinds of statutory provisions detracts from any otherwise appropriate categorisation of an offence as relevantly serious, where a person was intoxicated at the time of the offence. However, the circumstance that a person had been both prone to self-induced intoxication, and has a history of offending when intoxicated, is likely to be relevant in making any assessment of the risk of further offending, the likelihood of further offending, and of the potentially harmful consequences of any such offending.
Mr Maut’s long history of alcohol abuse, the likelihood that his traumatic past has inclined him to resort to alcohol as a means of self-medication, and his past poor participation in rehabilitative programs, combine to require the conclusion that there is a significant risk of his future re-offending. To that extent his history provides a bias favouring the visa cancellation decision, given the protective emphasis required by Direction no. 65.
The significance of that protective consideration is complemented by consideration of some of the circumstances of Mr Maut’s past offences. On two occasions (in April 2006 and, eight years later, in August 2014) again in a severely intoxicated state, Mr Maut had assaulted his wife. The first occasion, despite involving Mr Maut pushing his wife to the ground and using a headlock hold on her, does not appear to have involved any significant injury, although the capacity for it to have so done is apparent. The second incident, which again occurred in the course of an argument at home, and followed excessive alcohol consumption by all involved, involved Mr Maut biting his wife on her face and back. In this instance, the capacity for significant injury – in the sense of one likely to have involved a risk of long term consequences or disability – is less apparent.
On two occasions (the February and June 2012 offences) Mr Maut picked up kitchen knives in the context of heated drunken arguments at his home. The February 2012 offences flowed from a heavy drinking session with at least two other people. In the course of that argument one of the people blocked Mr Maut’s path and got hold of either the knife or his hand. She suffered a small cut when Mr Maut pulled his hand away from her. The June 2012 offence involved an occasion when Mr Maut’s cousin visited him from Canberra and stayed overnight. Early the following morning, an intoxicated Mr Maut demanded the cousin leave. Then, in an angry state he went to the kitchen, collected two kitchen knives and then “hopped” back to another room and towards the cousin – who made his way uneventfully out of the house and called the police.
The fact that Mr Maut picked up knives on each of these occasions shows the potential for each of them to have involved serious injury. The sentencing magistrate was obviously concerned about that potential, given Mr Maut’s alcohol abuse. He described Mr Maut as “a very great risk to the community and, in particular, to those persons close to him”. That concern led to the original imposition of a 7 month term of imprisonment, with a four month non-parole period. But on appeal, that sentence was wholly suspended. Notwithstanding that suspension, the Minister’s submissions placed significant emphasis on the sentencing judge’s remarks about the objective seriousness of the knife offences. That emphasis is appropriate, but needs to be balanced by objective realities. First, it is relevant to note that the maximum penalties for the February 2012 “bodily harm” offence (under the Crimes Act 1900 NSW s 59(1), and the June 2012 offence (under the Crimes (Domestic and Personal Violence) Act 2007 NSW s13(1)) was imprisonment for five years. It follows that the actual sentences imposed reflected less than 10% of the maximum available sentence for the former offence, and just over 10% of the maximum for the June 2012 offence. In both instances, therefore, the sentences were very much at the lower end of the range of the sentencing options. Furthermore, the fact that the originally imposed custodial sentences were overturned on appeal, tends to indicate that the District Court did not share the original sentencing Magistrate’s characterisation of Mr Maut as “a very great risk to the community” – at least not in the sense of anticipating a significant likelihood of similar future offences.
The only other occasion after June 2012 when Mr Maut’s offending involved any element of violence was in May 2015. Those offences occurred, somewhat atypically, in a public place, rather than at Mr Maut’s home. They appear to have involved another instance of a drunken and abusive argument, in which the victim may have first assaulted Mr Maut. Mr Maut retaliated by trying to use one of his crutches to the other person. That person grabbed the crutch and prevented any blow being struck. He briefly took the crutch from Mr Maut, and then handed it back. The following day, Mr Maut renewed the argument with the other man (apparently angry that one of his cousins was associating with the man). Mr Maut made various verbal threats, but there was no actual violence.
The only other offences when Mr Maut’s conduct potentially carried a risk of injury involved his driving offences. Except in one instance, the circumstances of these matters was not the subject of any detailed evidence – and that lack of information restricts the significance that can reasonably and properly be accorded to them. The exceptional instance was that of Mr Maut’s drink driving offence in late December 2013. It involved Mr Maut turning left against a stop sign, and then exceeding the 60kph speed limit, before being apprehended. So far as appears from the available information, the incident did not involve any other vehicles, nor any overt danger to any other road users. Nevertheless, the sentencing magistrate curtly observed that until Mr Maut changed his attitude “it is simply unsafe to have you on the road”.
Mr Maut’s offences since May 2015 have been characterised by gross intoxication, sometimes to the point of urinary incontinence, and offensive public behaviour. In themselves none of them properly merits characterisation as “serious” – having regard to their nature and the apparent absence of any real risk of physical harm. They do merit description as being objectively offensive, and they highlight the reality of Mr Maut’s hitherto unsuccessful battle in achieving any consistent control of his alcohol use.
A measured view of Mr Maut’s offending conduct has to acknowledge the reality that he has in the past not been the cause of any significant injury. His drunken behaviour carried the risk of harm but, notwithstanding verbal threats reported in some accounts of his various conduct, it is probably unlikely that he ever intended to cause any significant injury or harm. It is also unlikely (given that he typically ambulates only with dual underarm crutches, and does not wear a leg prosthesis) that he had a meaningful capacity to carry out any verbal threats of harm he may have made in the past. The most significant past risk of harm appears to be most appropriately characterised as that associated with the unpredictability of his disinhibited behaviour when intoxicated. Those risks are properly characterised as real – as the sentencing court comments of February 2013 and March 2014 recognised. But there is no firm basis for opining that they are any more likely to eventuate in significant harm in the future than has been occasioned in the past.
In that context, it is significant to note the attitude taken on the Minister’s behalf in 2014 to Mr Maut’s offending. On 23 July 2014 an officer from the National Character Consideration Centre in the Minister’s Department wrote to Mr Maut about his criminal record. The letter warned Mr Maut that any further offending could result in consideration being given to the cancellation of his visa, but it explicitly stated that “at present, no consideration is being given to cancelling your visa”. That statement was made against the apparent background of awareness of Mr Maut’s 2012 offences and, presumably, also his March 2014 convictions. This statement tends to point to the appropriateness of the view that Mr Maut’s pre-July 2014 offences do not weigh significantly in favour of the visa cancellation decision.
In the present proceedings the Minister’s submissions urged the view that Mr Maut had continued with his offending behaviour after the warning contained in the July 2014 letter. Those submissions differed from the view that had been taken by the Ministerial delegate in the decision under review. The delegate had been apprised of, and accepted, Mr Maut’s denial that he had ever received the letter. Mr Maut maintained that denial in the present proceedings. There was no objective evidence tending to contradict Mr Maut’s denial and, like the delegate, I accept it.
Nevertheless, Mr Maut’s drunken offending continued to occur after July 2014, and it did so despite the fact that he has frequently been required to undertake alcohol rehabilitation counselling. Consequently, the totality of the circumstances point to the conclusion that the protective consideration to which Direction no. 65 requires regard weighs in favour of the visa cancellation decision. It does so primarily because of the significant risk of Mr Maut’s future alcohol related offending, and the uncertain extent of the harm that it might occasion.
Does Mr Maut’s experience in Detention relevantly inform assessment of the protective consideration
The delegate was dismissive of Mr Maut’s dual contentions that (i) he had not been afforded meaningful past rehabilitation opportunities, and (ii) that his immigration detention experience provided significant comfort about the likelihood of his future lawful behaviour. The delegate emphasised his adverse conclusion by contrasting the reality of Mr Maut’s post October 2015 offences with the content of the assertion attributed to him during the 23 October 2015 sentencing – that he recognised his significant alcohol problem and that he would participate in alcohol rehabilitation counselling.
Scepticism of Mr Maut’s ability to discipline his alcohol consumption and future conduct is justified by his history. But a balanced consideration also needs to have regard to things that have occurred since October 2015. Not the least of those considerations is the death of his wife in February 2016, and the adverse impact it had on Mr Maut. (That impact, and Mr Maut’s “significant health issues”, were remarked on in a June 2018 report about his counselling attendances in calendar 2016.) The other relevant consideration is Mr Maut’s treatment and behaviour in immigration detention – matters that I detail later in these reasons: see paragraph 83 below. In combination, those matters do not remove the basis for concluding there is a real risk of Mr Maut’s future re-offending. But they do tend to establish that his rehabilitative intention preceded his immigration detention, and has continued and been re-inforced during that detention. They also provide a measure of confidence in his ability to adhere to his intention. That tendency is underscored by the likelihood that the July 2017 visa cancellation decision, and the present proceedings, have brought to Mr Maut’s consciousness the gravity of the risk that future offending would attract. That grave risk is to his own personal safety and well-being – given the “miserable” contemporary situation in South Sudan:- see paragraph 73 below.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction no. 65 declares a community expectation of lawful conduct by non-citizen visa holders:- see cl 13.3(1). The same sentiment is evident both in the principle statement that a visa is granted as a privilege in the expectation of the holder’s future compliance with Australian law, respect for its institutions, and harmlessness to its people and community: see cl 6.3(1).
Clause 13.3(1) contemplates the possibility that maintaining a visa cancellation decision may be appropriate because the nature of the non-citizen’s offences “are such that the Australian community would expect that the person should not hold a visa”. This contemplation necessarily takes into account the “principle” of an expectation that a visa should be cancelled where the person has committed “serious crimes”: see cl 6.3(2). The imperative implicit in the use of “should” in cl 6.3(2) is emphatic, and the statement of expectation is inherently prescriptive. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said that
[76] In substance this consideration is adverse to any applicant. … it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
The thrust of Mortimer J’s observation was directed at the circumstance of a person who had convictions of “serious crimes of a certain nature”. Neither that observation, nor the actual wording of cl 13.3, conveys an expectation of inflexible refusal of visa status in the case of any convictions. The explicit statement that non-revocation “may be appropriate”, and the postulation that “the nature and character” of the person’s offences would trigger a community expectation of non-visa status, is not an inflexible direction that supplants consideration of the totality of primary and other considerations.
When cl 13.3 is read as a whole, and applied in a context where all relevant considerations must be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation requires a non-revocation decision. Community expectation will depend upon consideration of “the nature and character” of the offences. Where that consideration triggers the non-visa status expectation, it is a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight contributes determinatively to assessment of the preferable outcome of the revocation discretion, depends on the totality of the relevant circumstances.
In the present case, Mr Maut’s offences and convictions are not matters that merit characterisation as “serious” within the exegesis provided in cl 13.1.1(1)(b). And although his various suspended sentences sometimes involved, and certainly total, periods that require characterisation as involving a substantial criminal record, the circumstances of the preponderance of his offences since mid 2012 are more properly characterised as anti-social offences associated with drunkenness, than as serious criminality. Nevertheless, Mr Maut’s offending has continued, despite repeated occasions of encouragement to undertake effective rehabilitative action. His hitherto conspicuous failure to purse effectively the opportunities provided to him, and his repeated drunken offences suggest that the balance of community expectation weighs in favour of the visa cancellation decision being maintained.
THE BEST INTERESTS OF MINOR CHILDREN
Mr Maut and his wife did not have any children. Two of his Australian resident brothers have eight children between them. The eldest of these is Mr Maut’s 25 year old niece. (She is a signatory to the commendation letter to which I later refer:- see paragraph 48 below). The other seven of Mr Maut’s nieces and nephews are aged between five and seventeen. He claims to have a close relationship with them, but there is little information about the nature and extent of that relationship beyond his bare assertion. The assertion is likely to be true at one level, but it also appears to be the case that Mr Maut’s chronic alcohol abuse has in the past impeded the quality of his family interaction, even with his brothers. There is no information to substantiate that his relationship with any of the children extends beyond occasional visits and the affectionate familiarity of episodic family interaction. There is no indication that any of these individual children lacks adequate parental care. Nor is there anything to evidence that Mr Maut himself would be capable of providing any significant care or support.
Consideration of the best interests of minor children requires attention, at least primarily, to the role that the non-citizen plays in each child’s support and development, particularly where that role is of singular significance:- see cl 13.2(4). In the present case there is no evidence to detail the extent of Mr Maut’s involvement with any of his nieces and nephews, nor to demonstrate that he has made any significant tangible contribution to their maintenance, formal education or social development. There is therefore no basis for concluding that the best interests of any of the children would be materially affected – either positively or adversely – by adherence to the revocation decision. And although Direction no. 65 requires consideration of whether or not the revocation decision “is, or is not” in the best interests of each relevant child, that consideration can permissibly result in the equivocal conclusion that the children’s separate best interests involve a neutral factor in the exercise of the revocation cancellation discretion:- see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203; (2015) 151 ALD 107; (2015) 319 ALR 181 at [67]. That is the appropriate conclusion in the present circumstances.
AUSTRALIAN TIES
Mr Maut came to Australia in 2005 with one of his brothers, his wife, and with his brother in law. Another of his three brothers followed shortly afterwards. Those two brothers live with their families in Western Sydney. They are part of a significant family and friendship group. That is evidenced by a commendation letter signed by 29 people. The signatories included Mr Maut’s seven close relatives (brothers, brother in law, sister in law, uncle and eldest niece), seven of his cousins, and fifteen friends (who claimed associations with Mr Maut ranging for periods from 5 to over 10 years). Apart from acknowledging the reality and impact of Mr Maut’s alcohol abuse, the letter made two points. The first was to endorse Mr Maut’s inherent qualities as an honest and decent person. The second was to suggest that his disability as an amputee had led to him being “exploited by unfriendly visitors”. This was a matter that Mr Maut had raised in his August 2017 representation letter, and the commendation letter lends some credibility to that complaint.
The permanent character of Mr Maut’s visa (see paragraph 19 above), Mr Maut’s long period of Australian residence, the Australian presence of his brothers with their Australian citizen children, and his Australian resident supportive friends combine to give Mr Maut significant ties to Australia. His own personal contribution to Australia and its community is however minimal, no doubt as a result of the language and cultural differences, difficulties he has encountered, his disability, and his alcohol abuse. Consequently, whilst Mr Maut’s Australian ties are a significant factor favouring retention of his visa status, on their own they are less influential in the exercise of the revocation discretion than the primary protective consideration, and that of community expectation.
VICTIM IMPACT
There is nothing to suggest that the people involved as “victims” in Mr Maut’s February 2012 and May 2015 offences suffered any significant harm, or have any ongoing association with, or apprehensions about, Mr Maut. The only other identifiable “victim” of his offences has been his wife, who died in February 2016. There were some offences involving police assaults (in April 2006 and May 2012) but those matters were dealt with by behavioural bonds and may be taken not to have involved any significant injury. Consequently, the proper view to take is that any decision about the visa revocation decision is not significantly influenced by consideration of its impact on people who may have previously been affected by Mr Maut’s offending conduct.
ANOTHER REASON – THE SITUATION IN SOUTH SUDAN
Mr Maut’s 3 August 2017 representation responding to the visa cancellation decision included a request to consider the significance of his disabilities in any decision about the non-revocation of his visa. He pointed out that as a leg amputee he would encounter very great difficulty if he were to be returned to Sudan. The representation also asked for consideration to be given to his significant mental health problems, in the light of the medication and treatment which he had begun to receive after being taken into immigration detention.
The Ministerial delegate considered Mr Maut’s claims of harm in the event of his return to Sudan. The delegate accepted that he would face hardship arising from his ethnicity if he were to be returned to Sudan. The delegate accepted this assertion on the basis of an explanation that Mr Maut’s Dinka ethnicity involved a risk that he would be targeted and victimised by the Sudanese government or its supporters. But the delegate dismissed concerns of that kind as inconsequential, on the basis that Mr Maut would be sent to the Republic of South Sudan, rather than to Sudan.
The delegate noted that as a former resident of Khartoum, and despite his Dinka ethnicity, Mr Maut had no familiarity with life in South Sudan. But the delegate also dismissed the significance of that lack of familiarity. The delegate did so on the understanding that Mr Maut had a number of family relatives (mother, brother, sister, six uncles and aunts, nine nieces and nephews and 15 cousins) living in South Sudan. The delegate in one place considered it “feasible” that Mr Maut could obtain some support from family members. In another place the delegate expressed the view that it was “likely” that Mr Maut would have physical and psychological support from his family in South Sudan”.
The reality of Mr Maut having any familial connections in South Sudan is very questionable. Notes of family information he gave in an August 2017 psychological assessment record that his mother and two siblings lived in “Sudan”. In his evidence in these proceedings Mr Maut explained that the information he had provided (in his August 2017 representations to the Minister) was purely historical, and based on what he had been told by members of his family prior to leaving Khartoum in 2000 / 2001. Since then he had not had any contact with any members of his extended family, and had no idea of their survival or whereabouts. There was nothing to contradict Mr Maut’s evidence to that effect, and its credibility is complemented by knowledge of the overall situation that has led to the contemporary situation in South Sudan.
The proposition that there was either a feasibility or a likelihood of Mr Maut receiving meaningful familial assistance in South Sudan seems glibly optimistic in the light of the scant information about the location of Mr Maut’s relations and the delegate’s other observations that the security situation in South Sudan was “chaotic” and that there had been a “breakdown of the economy and government”. In an attempt to provide meaningful factual information about the situation in South Sudan, the submissions advanced on Mr Maut’s behalf included a number of reports – from the UNHCR, the Canadian Immigration and Refugee Board, and the Department of Foreign Affairs and Trade. Some of this information provided an apparent basis for the delegate’s description of the situation in South Sudan as chaotic. It tended to illustrate the following propositions:-
(a)December 2013:- Civil war had broken out in South Sudan:- (Canadian Immigration and Refugee Board: December 2016).
(b)October 2016:- An estimated 1.5m people were internally displaced in South Sudan. Another 1.18m were refugees in neighbouring countries – most of which had presumptively acknowledged the people’s refugee status:- (Canadian Immigration and Refugee Board: December 2016; UNHCR May 2017).
(c)2016:- South Sudanese authorities had largely failed to provide “even the most basic assistance”:- (Canadian Immigration and Refugee Board: December 2016).
(d)2016:- Mental health and psychosocial support services in South Sudan were extremely limited. Only the public hospital in Juba provided psychiatric care:- (Canadian Immigration and Refugee Board: December 2016; UNHCR May 2017).
(e)May 2017:- There had been a significant increase in displacement following the failure of the peace agreement. Fighting had plunged the country into a severe economic crisis. More than 7m people were estimated to be in need of urgent humanitarian assistance:- (Refugee Council of Australia)..
(f)May 2017:- The South Sudanese crisis had become the largest and most complex emergency in Africa, and security in the country had continued to deteriorate. Close to 4m people (reflecting about one-third of the total population) were said to have been displaced. The total included more than 1.9m who had been internally displaced, and about 1.7m who had fled the country. An estimated 7.5m people within South Sudan were said to be in need of urgent humanitarian assistance:- (UNHCR Report)
(g)December 2017:- South Sudan had remained engulfed in conflict throughout the year:- (UNHCR Report: Regional Refugee Co-ordinator / Special Advisor to South Sudan).
The information outlined in the previous paragraph covered a four year period and did not convey a reliable understanding of the actual current state of affairs in South Sudan. Consequently, I sought assistance from the Minister’s representatives in obtaining meaningful contemporary information about the realities of the situation in South Sudan, and the difficulties that would likely be faced by a person such as Mr Maut being required to live there.
In response to my request the Minister’s representatives provided both the “DFAT”’ (Department of Foreign Affairs and Trade) current travel advice relating to South Sudan, and the results of an apparently comprehensive review of contemporary relevant “country information”. DFAT’s travel advice, as at 10 November 2017 was unequivocal – “do not travel to South Sudan”. The stated reason for the advice was “instability, ongoing conflict and a deterioration of law and order”. The advice went on to note that conflict was widespread and that there was a serious risk of attacks by armed groups throughout South Sudan, especially outside Juba.
Much of the relevant “country information” outlined in the response to my request for assistance was derived from an October 2016 DFAT report. That report had been prepared for the specific purpose of informing protection status determinations, and contained information that decision-makers were obliged to take into account in any an assessment of protection status – in accordance with Ministerial Direction Number 56 of 21 June 2013. The DFAT report described the 2011 creation of the new Republic of South Sudan after two civil wars (1955-1972 and 1983–2005). The wars were estimated to have resulted in the deaths of more than 1.5m people. The report went on to describe the outbreak of civil conflict in December 2013 between rival Dinka and Nuer ethnic groups, and the resumption of ethnic hostilities in 2016. (That resumption of hostilities occurred despite an August 2015 “Agreement on the Resolution of the Conflict in the Republic of South Sudan”.)
The 2016 DFAT report described South Sudan as having an estimated population of 12m. The vast majority (more than 80%) lived in rural areas. The report stated the following in relation to the humanitarian situation South Sudan:-
2.6 The humanitarian situation South Sudan is dire and has been aggravated by the recent escalation in conflict. As of August 2016, 1.6 million people were internally displaced, including 190,000 people in Protection of Civilian Camps run by the UN Mission in South Sudan, and a further 818,950 South Sudanese people seeking refuge in surrounding countries. The Government accepted the deployment of a 4,000 Regional Protection Force in early September 2016, in addition to the roughly 12,000 UN Mission in South Sudan personnel already serving in South Sudan.
Other relevant parts of the DFAT report included the following:-
2.12 South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy.
2.14 Eighty-five percent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7% of the population in 2011 to 57.2% in 2015, contributing to increasing levels of crime. …
2.17 South Sudan’s population has extremely poor access to healthcare. Accurate data prepared by the Government on health indicators is often non-existent or outdated. …
2.19 Data collected prior to the outbreak of conflict in December 2013 found that 76% of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12% of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However as at 2016, DFAT assesses that as the security and economic situation deteriorated, employment opportunities (both in the formal and informal sectors have also worsened.
2.30 Conflict continues between the Government’s Sudan People’s Liberation Army and the Sudan People’s Liberation Movement in Opposition SPLA-IO in Upper Nile State, Unity State and Jonglei State. Incidents of conflict in Central Equatorial Estate and Eastern Equatorial Estate are also rising, particularly following the recent escalation of conflict in Juba in July 2016. As a result, there are significant numbers of internally displaced people throughout South Sudan.
2.31 While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba.
3.7 Overall, DFAT assesses that Dinkas living in conflict affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because of the Dinka dominated government currently has almost unencumbered control over Juba.
5.20 Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence.
Another source for the information provided in answer to my question was a 14 April 2015 UNHCR report: This report outlined the extent of continuing conflict and intercommunal violence. That included reports of targeted violence, even within protection of civilian sites, the killing of humanitarian workers and widespread systematic human rights violations. It described the effect on the civilian population as catastrophic, with internal displacement of 1.5m people and 0.5m others who had fled to the neighbouring countries of Ethiopia, Kenya, Sudan and Uganda. It also noted that all those countries “recognise civilians who fled South Sudan as refugees on a prima facie basis”. The report concluded with the observations that:-
[8] … the situation in South Sudan has continued to deteriorate since the outbreak of the current civil conflict in December 2013, with the security, rule of law and human rights situation in South Sudan remaining deeply compromised. In such a context, persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention, or would otherwise meet the criteria contained in the refugee definition in Article 1(2) of the 1969 OAU Convention…
[9] The security, rule of law and human rights situation pertaining today in South Sudan also stands in the way of safe and dignified return to any person originating from South Sudan, whether or not the individual is found to be in need of international protection. Accordingly, UNHCR hereby reaffirms the February 2014 position, recommending States to suspend forcible returns of nationals or habitual residents of South Sudan to the country. The bar on forcible returns serves as a minimum standard and needs to remain in place until such time as the security, rule of law and human rights situation South Sudan has improved sufficiently to permit a safe and dignified return of those determined not to be in need of international protection.
Mr Maut’s offences since mid-2015 have not involved any significant violence. They evidence drunken misbehaviour that he has fallen into because of the unresolved anxiety, depression, and post-traumatic stress disorder of his deeply troubled past, and the grief associated with his wife’s death in 2016. Those causes contribute an historical explanation to his alcohol abuse. Their existence as a likely significant cause is a relevant consideration, in the light of Mr Maut’s apparent significant progress in attempting to ameliorate their significance in influencing his future behaviour. The latter factor, when combined with the potentially grave consequences of Mr Maut’s forced transfer to South Sudan, and the limited factual basis for apprehending the likelihood of any significant future serious harm resulting from Mr Maut’s re-offending, lead to the conclusion that the preferable outcome of the review application, in his particular circumstances, is to set aside the decision under review and to restore his visa status.
DECISION
The decision under review is set aside. In substitution for the 30 April 2018 decision, the 17 July 2017 decision to cancel the applicant’s Global Special Humanitarian visa (Class XB, subclass 202) is revoked.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
.................................[SGD].......................................
Associate
Dated: 24 July 2018
Date(s) of hearing: 21 and 27 June 2018 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Michael Vassili Solicitors Solicitors for the Respondent: Minter Ellison Schedule - Maut v Minister for Home Affairs
Reasons paragraph 3
C'vctn Age Drugs Violence Resist Offend Traffic Other Offences Penalty Penalty (actual sentence) Bond or Parole conditions Ref Ref Victim No
no of offences (cumulative)
Date
Type
Custodial Period
Bond
Fine
Event
(Court)
(months)
Start
End
(months)
$
1
35
1
8-Apr-06
18-Apr-06
Common assault
9 (s9)
s.9 bond
H27394941
Wife
2
35
2
8-Apr-06
18-Apr-06
Stalk/intimidate with intent to cause fear/harm
9 (s9)
s.9 bond
86, S47
H27394941
Wife
3
35
1
8-Apr-06
18-Apr-06
Resist officer in execution of duty
9 (s9)
s.9 bond
86
H27394941
7
35
6
8-Apr-06
18-Apr-06
Assault officer in execution of duty x 4
9 (s9)
s.9 bond
H27394941
8
40
1
25-Feb-11
5-Apr-11
Drive with middle range alcohol concentration
800
Disqualified driving 12 months concluding 04/04/2012
86
H45014255
9
41
7
26-Feb-12
9-Dec-13
Assault occasioning actual bodily harm (dv)
4
4(s12)
s 12 - Suspended
~G85, 96, 100 / ~S69
H47192248
Pairama - knife cut
10
41
8
26-Feb-12
9-Dec-13
Common assault (dv)
1
1(s12)
s 12 - Suspended
~G85, 96, 100 / ~S69
H47192248
Pairama
11
41
1
31-May-12
3-Oct-12
Use offensive language in/near public place/school
100
~S33
H47992172
R'wy station - br not control
12
41
2
31-May-12
3-Oct-12
Resist officer in execution of duty
18(s9)
s.9 bond - attend lifestyle program
H47992172
13
41
9
31-May-12
3-Oct-12
Assault officer in execution of duty
18(s9)
s.9 bond
H47992172
14
41
10
24-Jun-12
9-Dec-13
Stalk/intimidate with intent to cause fear/harm
7
7(s12)
s 12 - Suspended
~G 85, 100, s79-80
H47733009
Alter - "hopped" with knife
15
42
2
26-Dec-13
17-Mar-14
Drive with middle range alcohol concentration
18(s9)
1,000
s.9 Bond, 18 months disqualification
~93, ST ~4,5
H53515776
16
43
1
10-Jan-14
17-Mar-14
Possess prohibited drug (cannabis - 1.7gm)
200
S~15 , S100
H53544012
"Shirley" Collins
23-Jul-14
FORMAL COUNSELLING LETTER - sent but not acknowledged and said not to have been received
17
43
3
6-Mar-14
9-Oct-14
Negligent driving
800
83, Ex13R ~7
H55420763
19
43
4
6-Mar-14
9-Oct-14
Not give particulars to other driver
300
83
H55420763
20
43
5
6-Mar-14
9-Oct-14
Drive motor vehicle while licence suspended
250
Disqualified: 1 year (9 Oct 2014) - 2 years 13 Nov 2014)
83
H55420763
22
43
1
20-Aug-14
13-Oct-14
Fail to appear in accordance with Bail
150
84
H55582261
23
43
11
4-Aug-14
13-Oct-14
Assault occasioning actual bodily harm (dv)
18(s9)
100
s 9 bond - counselling, educational dev and D & A rehab
84, S143
H55582261
Wife - bite
44
4-Aug-14
25-May-15
Bond call up - Assault … actual bodily harm (dv)
18(s9)
s 9 bond - Undertake programs to address alcohol abuse
84
H55582261
Wife
24
44
2
14-May-15
25-May-15
Contravene restriction in avo (domestic)
18(s9)
s 9 bond - counselling, educational dev and D & A rehab
~S107, FS7
H58035148
Wife - thought AVO was over
44
4-Aug-14
23-Oct-15
Bond call up - Assault … actual bodily harm (dv)
18(s9)
s.9 bond
84
H55582261
Wife
25
45
12
18-May-15
23-Oct-15
Stalk/intimidate with intent to cause fear/harm
12
12(s)
s.12 - obey instructions for D & A counselling
84, S115,118, 124
H58089713
Mawien - crutches
26
45
13
18-May-15
23-Oct-15
Common assault
12
12(s)
s.12 - obey instructions for D & A counselling
H58089713
Mawien
27
45
14
19-May-15
23-Oct-15
Stalk/intimidate with intent to cause fear/harm
12
12(s)
s.12 - obey instructions for D & A counselling
H58089713
Mawien
Feb-16
Mrs Maut killed in car accident
~152
45
28
46
2
1-Sep-16
3-Nov-16
Behave in offensive manner in/near public place/school
150
84, 136
H62647466
43
4-Aug-14
10-Apr-17
Bond call up - Assault … actual bodily harm (dv)
0.5
27-Mar-17
9-Apr-17
83
H55582261
28
46
3
25-Jan-17
10-Apr-17
Wilful and obsecene exposure public place/school
100
S164,5
H64103968
30
46
4
25-Jan-17
10-Apr-17
Behave in offensive manner in/near public place/school
3(s9)
s 9 - counselling, educational dev and D & A rehab
H64103968
31
46
5
25-Jan-17
10-Apr-17
Destroy or damage property - (incontent in police cell)
6(s9)
s 9 - counselling, educational dev and D & A rehab
H64103968
32
46
6
25-Jan-17
10-Apr-17
Use offensive language in/near public place/school
s.10a conviction with no other penalty
H64103968
33
46
7
13-Feb-17
10-Apr-17
Wilful and obsecene exposure public place/school
100
S156
H63564518
34
46
8
13-Feb-17
10-Apr-17
Use offensive language in/near public place/school
100
S156
H63564518
25-Jan-17
27-Jun-17
Call up bond - behave offensive / damage property
1
27-Jun-17
26-Jul-17
ST~163
Totals
1
14
2
8
5
2
Total
32
49.5
Note 1:
(s 9) :- a good behaviour bond granted under s 9 of the (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 2:
(s 10a) :- a matter where a conviction was recorded - but no penalty imposed 10 (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 3:
(s 12) :- a suspended sentence imposed under s 12 of the (NSW) Crimes (Sentencing Procedure) Act (1999)
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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12
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