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

[2022] AATA 3626

MJMG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3626 (31 October 2022)

Division:GENERAL DIVISION

File Number:          2021/1493

Re:MJMG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Dr Stewart Fenwick, Senior Member

Date:31 October 2022  

Place:Melbourne

The decision of the Respondent dated 9 March 2021 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa is set aside the substituted with a decision that there is another reason why the cancellation should be revoked.

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

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – mandatory cancellation of Class XB subclass 202 (Global Special Humanitarian) visa – applicant entitled to citizenship of South Sudan – failure to pass character test – lengthy and diverse criminal history – whether another reason the mandatory cancellation should be revoked – applicant has diagnosed mental health condition – risk to the Australian community – extent of impediments if removed – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
MJMG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1486

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

31 October 2022

background

1. This matter came before me on remittal from the Federal Court of Australia in orders made by consent on 13 April 2022. This followed a decision by the Tribunal, differently constituted, dated 26 May 2021 (MJMG and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1486).

2. The orders of His Honour Justice Bromwich of the Federal Court were not included in material lodged in this matter by the Respondent, however the Tribunal was provided with a copy of those orders. It is relevant to note that in consenting to the remittal, the Respondent Minister conceded that MJMG had made a substantial and clearly articulated argument that he faced harm if removed to South Sudan on account of their mental health condition, and lack of treatment he could access there. The orders also indicate that MJMG’s mental health condition was an issue of general relevance to making the revocation decision.

3. MJMG’s Global Special Humanitarian (Subclass 202) visa was originally cancelled on 17 February 2020. This decision was upheld by a delegate of the Minister on 9 March 2021, following a request for revocation by MJMG.

4. MJMG was born in 1995 in a refugee camp in Kenya, his family having fled territory that now forms part of South Sudan. The Applicant arrived in Australia in January 2005, and his first recorded convictions date to October 2013.

5. The Applicant’s immediate family reside in Australia and comprise his mother, Ms FP, two older sisters (S1 and S2), a younger sister, and several half siblings. MJMG’s father died in Sudan in approximately 2003 and MJMG’s older brother, DM, was murdered in Australia in 2021 in an unprovoked attack by a stranger.

6. MJMG was represented at the hearing and lodged a Statement of Facts, Issues and Contentions (SFIC), and Submissions in Reply, as well as an evidence bundle. The Respondent lodged a SFIC and a Hearing Book (HB) of 1269 pages, incorporating the Applicant’s material. The Respondent’s bundle includes G documents (lodged under s 37 of the Administrative Appeals Tribunal Act1975), material summonsed at the time of the previous Tribunal hearing, and additional material arising from the period of detention subsequent to that hearing. Applicant material in the bundle includes updated statements provided by family members, country information relating to South Sudan, and the report of Dr Gerald Chew, Consultant General & Forensic Psychiatrist, dated 19 August 2022.

7. The following persons gave evidence at the hearing: the Applicant; MJMG’s siblings S1 and S2; MJMG’s mother, Ms FP; Dr Chew; Ms Selba Luka; and Mr KM.

   legislation

8. The Tribunal has jurisdiction to review a decision not to revoke the mandatory cancellation of a non-citizen’s visa, made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), by virtue of s 500(1)(ba) of the Act.

9. Pursuant to s 501(3A) of the Act, in conjunction with ss 501(6) and (7), the Minister is obliged to cancel a non-citizen’s visa if they do not pass the ‘character test’ as a result of their having a ‘substantial criminal record’, and their serving of a full-time sentence of imprisonment. Relevantly, a person is taken to have a substantial criminal record where they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (s 501(7)(d) of the Act).

10. Once the Minister has made a cancellation decision, they must notify the affected person as soon as practicable, and invite them to make representations with respect to revocation (s 501CA(3) of the Act). Subject to the receipt of those representations, section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke their original decision if they are satisfied that the person passes the character test, or there is another reason the original decision should be revoked. For the Applicant, this discretion was not so exercised.

11. The task confronting the Tribunal is that contemplated in s 501(7) of the Act, namely, to determine whether the original decision should be revoked by virtue of the Applicant passing the character test, or whether there is another reason for revocation. To aid in this decision-making task, written directions have been given by the Minister under s 499(1) of the Act: 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 the Direction and to take into account, where relevant, those considerations contained therein.

12. The following principles inform decision-making under the Direction:

    (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 measureable risk of causing physical harm to the Australian community.

13. Informed by the above principles, the Direction provides the primary and other considerations to be taken into account by a decision-maker. Clause 8 of the Direction states that the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)Whether the conduct engaged in constituted family violence;

    (c)The best interests of minor children in Australia; and

    (d)Expectations of the Australian community.

14. Clause 9 of the Direction identifies the following non-exhaustive list of other considerations:

    (a)International non-refoulement obligations;

    (b)Extent of impediments if removed;

    (c)Impact on victims; and

    (d)Links to the Australian community, including (i) strength, nature and duration of ties to Australia, and (ii) impact on Australian business interests.

15. The Direction further provides that ‘primary considerations should generally be given greater weight than the other considerations’, and that ‘one or more primary considerations may outweigh other primary considerations’ (clause 7(2)-(3)). The weight to be accorded to each consideration is a determination for the decision-maker.

    issues

16. As seen above, the Act provides for mandatory cancellation in circumstances where a person fails the character test on the basis of a substantial criminal record. It is therefore necessary to be satisfied that MJMG’s criminal record supports such a finding. Having done so, I am satisfied that he fails the character test.

17. The national criminal history checks (G3 and G4) for MJMG demonstrate he has been sentenced to two or more terms of imprisonment totalling 12 months or more (s 501(7)(d)). These comprise sentences of nine months’ imprisonment in 2017, 10 months’ imprisonment in 2020, and additional sentences for 39, 83, 104 and also 123 days’ imprisonment.

18. It follows that the remaining issue for consideration is whether, taking into account in particular the factors identified in the Direction, there is another reason that the mandatory cancellation decision should be revoked.

    primary considerations

    Protection of the Australian community

    The nature and seriousness of the conduct

19. The scope of this consideration is potentially quite broad as it includes both criminal offending and ‘other conduct’ (paragraph 8.1.1(1)). The Direction states that violent crimes and acts of family violence are viewed ‘very seriously’ by the Australian Government and Australian community (8.1.1(1)(a)).

20. Family violence is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful’ (4(1)). It includes assault and damage to property among other non-physical actions.

21. Consideration is also to be given to the sentences imposed, frequency of offending, the cumulative effect of repeated offending (8.1.1(1)(c), (d), (e)).

    Criminal conduct

22. MJMG has appeared before courts on 11 occasions, in every year between 2015 and 2019 (G3). In addition to the periods of custody identified above, the remaining sentences comprise several Community Corrections Orders (CCOs), fines or compensation payments, and licence suspensions. These outcomes arise from charges include breaches of CCO’s, driving offences, property and dishonesty offences, conduct offences, assault, affray, criminal damage, and recklessly or intentionally cause injury.

23. The materials include transcripts arising from sentencing in the Magistrate’s Court in December 2019 (G6), and a subsequent appeal in the County Court in May 2020 (G7). These appearances relate to a set of charges for which MJMG received his most substantial prison sentence.

24. Summarising briefly from the Magistrate’s Court sentencing, the charges related to an assault on a person in pre-trial detention, several driving offences, and charges arising from theft in company from a convenience store. The Magistrate described the assault as ‘quite vile’ and a serious example of such an assault, and the aggravated burglary at the convenience store as ‘quite serious as well’. A total effective sentence of 18 months’ imprisonment was imposed.

25. As a result of the appeal, MJMG’s term of imprisonment was reduced to 10 months, and combined with a relatively elaborate CCO arrangement. The judge does not appear to have identified any specific aspects of the offending, nor to have highlighted factors influencing the outcome. I note, however, that the materials before me include the Summary of Defence Submissions on Appeal (G48, pp 645-649). Reference is made in these submissions to the report of Ms Miriam Latif, Consultant Psychologist, dated 25 November 2019 (G48, pp 650-660).

26. The judge in the County Court describes the CCO conditions as ‘significant and onerous’ (G7, p 69), and they are set out in the Result of Appeal (G5). In summary, the CCO requires:

    (a)300 hours unpaid community work over two years;

    (b)100 hours of treatment and rehabilitation satisfactorily undertaken, to be counted as hours of community work;

    (c)supervision for two years by a Community Corrections Officer;

    (d)assessment and treatment (including testing) for drug and alcohol abuse or dependency;

    (e)undergoing ‘any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager’;

    (f)participation in any programs that address factors relating to offending behaviour as directed;

    (g)non-association with the co-offender for two years;

    (h)residence with the Applicant’s sister for two years; and

    (i)‘Judicial Monitoring’, entailing appearance at court for review of compliance as directed, with the first such review directed to be 10 August 2020.

27. I will return to the report of Ms Latif when addressing risk of reoffending, below. This report, and other material including the report of Dr Chew, assist in understanding the structure of the CCO, absent specific references in the transcript.

28. I note that during the appeal hearing, the judge explained to MJMG that the judicial monitoring entails His Honour ‘checking up’ on the Applicant every few months (G7, p 71). The judge added that if they are not satisfied that MJMG is complying, that this will result in a breach of the CCO and MJMG is liable to be re-sentenced to the original term of 18 months’ imprisonment (G7, p 71).

    Other conduct

29. In his most recent written statement, dated 7 September 2022 (HB 6), MJMG acknowledges acts of family violence involving a sister and their mother, and acknowledges being asked about this in the previous Tribunal hearing. MJMG states that he ‘chose to be aggressive and harmful to my family’ ([12]).

30. In cross-examination, MJMG was taken to a number of alleged instances of family violence reported in records obtained under summons from Victoria Police (G44). I understand MJMG’s evidence to be that he acknowledged quite a number of instances of family violence which include:

    (a)an assault upon a cousin at their property in August 2015 (G44, p 474) during which a knife was used, and other acts of violence occurred;

    (b)an assault upon his mother at her home in January 2015 (G44, p 476) in which she ultimately ran naked and bleeding from the property;

    (c)an incident in August 2011 (G44, p 481) in which he punched his sister, S1, until she became unconscious; and

    (d)other instances of verbal arguments with a sister or sisters and an incident with their mother in March 2017 (G44, p 494) in which Ms FP fled the house with younger children and called the police.

31. I understand MJMG to have also acknowledged other instances of violence involving weapons including against a former school mate in 2014 (G44, p 478), an affray at a McDonald’s restaurant in 2011 (G44, p 480), and damage to a vehicle in 2018 (G44, p 490). The Applicant was also asked about problems at school, and MJMG stated that he was suspended, possibly three times, mostly due to fights.

32. MJMG was also asked about his conduct in remand and prison settings. The Applicant appears to have acknowledged in cross examination: raising fists at guards after a fight (G13, p 127); swearing and hostility toward guards (G13, p 129); assaulting another prisoner (G13, p 140); and other altercations (G13, p 144 and 149).

33. MJMG was further asked about his conduct in immigration detention. The Applicant was able to recall an incident in November 2020 in immigration detention (G15, p 157) in which he was observed on CCTV placing a package under a fence. The package was found to contain methamphetamine. MJMG stated he did not know why he did this, and had been asked ‘by a friend’ to do it. He accepted that it was against the rules and also accepted there were other similar incidents.

34. During re-examination, MJMG stated he had no recent conduct issues while in immigration detention, but in further cross-examination accepted that he had in fact been in an altercation in February 2022 (G60, p 897) which included kicking a roommate.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

35. The Direction states that I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (8.1.2(1)). In assessing risk, I must have regard, cumulatively, to the nature of future harm, and its likelihood, taking into account relevant evidence (8.1.2(2)).

    Applicant’s evidence

36. In his initial written statement dated 23 August 2022 (HB, 3a), MJMG states that when younger he was immature and had problems with anger ([12]) and started drinking and using cannabis with friends ([20]), as well as ice ([24]). He states in several paragraphs that he grew up surrounded by violence. MJMG states that he was troubled by a relationship that formed between a cousin and his mother ([26]-[29]). He acknowledged hurting both his mother and sisters and regrets this behaviour ([28], [31]).

37. MJMG states that he has undertaken anger management programs ([33]) and that he understands how to handle provocation or being upset ([37]). The Applicant states that he understands the conditions of his CCO and this will help him achieve his goals ([41]). He states he has stayed ‘clean’ in detention ([44]).

38. In the future, MJMG intends to spend time with family and build a social life ([46]). He has just learned about the diagnosis of schizophrenia, understands the benefit of his medication and other substance abuse treatment options ([48]-[54]).

39. MJMG states that he reconnected with his mother after the death of his brother, is motivated to assist her with family life, and understands his role as the only uncle for his sister’s children and as the eldest son ([64]-[69]). MJMG is motivated to find employment and can work with Mr KM immediately upon release ([71]).

1. In his evidence, MJMG stated that they ‘way I was living was not good’. The death of his brother in 2021 has brought the family closer together, and he believes they will support him in his rehabilitation work. MJMG stated that he is positive that his previous behaviour toward his family will not be repeated. He understands he will be returned to prison if he breaches the CCO.

2. In cross-examination, MJMG stated he had never attended rehabilitation programs before but this was now the best solution for him. He confirmed his intention to live with S1 if released into the community.

3. In re-examination, MJMG confirmed that he had not previously completed any certified programs while in prison or detention. He stated that he had missed some clinical appointments while in detention due to the lethargic effect of his medication.

   Evidence of family members

4. S1 provided written statements dated 23 August 2022 (HB, 3d) and 7 September 2022 (HB, 8). In her first statement, S1 states that she speaks to MJMG on a weekly basis and that he is now ‘in a good head space’ ([8]-[9]). MJMG also speaks to S1’s husband and wishes to settle down as they have ([13]-[14]). S1 acknowledges the past family incidents and states MJMG has now had a ‘reality check’ though prison and detention ([16]-[18], [25]). S1 has provided financial support to MJMG and is happy for him to live with her and her children ([26]-[27]). She will assist with his participation in programs with Ms Luka’s community organisation ([29]-[31]) and considers MJMG understands his cultural role as the oldest male in the family ([32]-[33]).

5. In her evidence, S1 stated that MJMG had previously lived with her prior to prison. He has a good relationship with her husband and children. They have spoken about how he has improved and his missing out on family life, and S1 considers the death of their brother has woken MJMG up.

6. When asked about his past behaviour toward her, S1 stated that MJMG is normal when he is not taking anything (by which she meant drugs or alcohol). She has no concerns for her safety or for her children should the Applicant come to live with her.

7. In cross-examination, S1 acknowledged that at the time of the previous Tribunal hearing she had withdrawn an offer of accommodation. She stated this was because she then felt like a failure after having put so much effort into supporting MJMG.

8. In response to a question from myself, S1 stated that she lives in a five-bedroom house and that MJMG previously had a room of his own.

9. Ms FP provided written statements dated 23 August 2022 (HB, 3f) and 7 September 2022 (HB, 7). In the first statement, Ms FP states that she speaks with MJMG about once a week and that he has noticeably improved over the past year ([11]-[13]). She states that ‘he used to always complain about hearing noises in his head’ but that these have now gone ([14]). Ms FP states that the eldest male has an important cultural role and she hopes to rely on him to support her ([16]). She acknowledges past family issues but states that these have passed ([19]-[20]). In her second statement, Ms FP states that she is not concerned for her safety and does not fear MJMG ([10]).

10. In her evidence, Ms FP described the cultural significance of the eldest male as ‘very, very important’. While she explained MJMG’s offending and conduct as a result of ‘bad company’, she stated that she has forgiven him. She has already lost one son and would like to ‘fix [MJMG] up’. Ms FP confirmed that she is now a single mother to four children.

11. S2 provided a written statement dated 23 August 2022 (HB, 3c) in which she states that she and her children now speak regularly with MJMG ([7]). She has discussed his plans for his future, regrets about his past behaviour, and that he has encouraged her with her own sobriety ([10]-[17], [20], [22]). S2 states she is willing to offer accommodation to MJMG and that family conflict is now in the past ([29]-[30]).

12. Her evidence at the hearing was consistent with this statement. I will turn to her further evidence about her children below.

13. Mr KM provided a statement dated 22 August 2022 (HB, 3e). He also provided a statement in the earlier proceeding.

14. Mr KM has known MJMG his whole life and has maintained contact while MJMG is in immigration detention, and they now speak each week ([7]). He states that the Applicant had an unstable early life and was led into ‘peer influenced teenage rebellion’ ([9]-[10]). Mr KM considers that MJMG has come to demonstrate greater insight into his offending and is also compliant with medication, making him more articulate ([11]-[13]).

15. Mr KM states that MJMG has a lot of practical support available in the community, and that he and the Applicant’s family are there to support them as well ([18]-[20]). He is willing to provide MJMG employment in the legal practice he owns while a more suitable trade role is secured ([23]-[24]).

16. Mr KM stated at the hearing that MJMG had come to Australia at a young age and had not had a father, or any ‘proper parenting’, despite the fact that his mother tried hard. He considered that the Applicant’s attitude had change noticeably since being in immigration detention. Mr KM understood that MJMG’s violent offending had occurred under the influence of substances, and the Applicant was now ashamed of his conduct.

17. When asked about a reference to the Centre for Multicultural Youth in his statement ([21]), Mr KM explained that he was familiar with this organisation, and it was well funded. He was also familiar with Ms Luka’s organisation, based in the South-Eastern suburbs, which is also well funded.

18. In cross-examination, Mr KM demonstrated a sound understanding of MJMG’s previous violent acts including in particular those involving family members. He stated that he did not believe there is an ongoing issue between MJMG and Ms FP. Mr KM understood that MJMG had used ice frequently in the past, and while aware of his current medication for a mental health condition, did not know the formal diagnosis.

    Clinical evidence

19. In his report (HB, 3b), Dr Chew makes a primary diagnosis of schizophrenia ([40]) with clear psychotic symptoms over time, despite the Applicant being substance free. He notes the Applicant’s symptoms remitted after an increase in daily antipsychotic medication earlier in 2022. Dr Chew observes that the condition tends to present in the teenage years to early 20s and ‘it is likely that [MJMG] was in at least the prodromal phase’ of schizophrenia during his first adult offending ([41]).

20. Dr Chew also diagnoses Substance Use Disorder with respect to alcohol, cannabis and methamphetamine ([40], [42]), and states that the Applicant’s offending ‘appears to be very linked to his mental health and substance use’ ([42]). He adds that the offending appears to have ‘generally been directly caused or significantly contributed to by’ the substance use disorder.

21. He states that MJMG expressed remorse and a willingness to engage in treatment and rehabilitation ([43]) and that the prognosis is good if this occurs and he abstains ([44]). Further, Dr Chew opines that ongoing detention would be negative and impede the Applicant’s changes of remaining in appropriate treatment ([45]). Dr Chew is of the opinion that return to South Sudan ‘would be very detrimental for [MJMG’s] psychiatric conditions’ ([47]).

22. Dr Chew conducted a formal risk assessment. Among the identified risk factors, Dr Chew notes that the psychotic disorder is well treated and stable, and that MJMG has been free of substance use for an extended period and is motivated to remain so ([49]).

23. Among identified protective factors, Dr Chew notes MJMG’s motivation for treatment, the desire for employment and positive relations with family, external control in the form of legal orders, a supportive family, and an offer of accommodation ([50]).

24. In evidence, Dr Chew stated that the prodromal phase was a recognised part of schizophrenia, arising prior to formal diagnosis, but varying in intensity and duration. He described schizophrenia, in this context, as now being understood as a ‘significant neurodevelopmental disorder’. ‘Soft’ signs and symptoms could emerge in teenage years and a cluster of signs, symptoms and behaviours are often identified in retrospect as the prodromal phase of the condition.

25. Dr Chew stated that medication and compliance were important aspects of treatment. In MJMG’s case, a history of noncompliance meant that receiving his medicine via periodic injection every four weeks would be helpful. The Applicant’s own motivation was also important and without this Dr Chew stated he would have some concerns.

26. In cross-examination, Dr Chew stated that he preferred his account of MJMG’s methamphetamine use (escalating to daily use ([21]), over the more limited instances of use identified by Ms Latif in her report. He also accepted that some of MJMG’s presentation in the past may have been formulated as transient drug-induced mental health episodes.

27. When asked whether he had regard to Ms Latif’s diagnosis of Other Psychotic Disorder (G48, p 655) as opposed to schizophrenia, Dr Chew explained that his opinion was the result of a comprehensive differential diagnosis.

28. When asked to explain why treatment was less available in detention, Dr Chew stated that mental health conditions are managed in the community by a community health team under the management of a senior clinician. In his experience in NSW, he considered that health teams work hand-in-hand with community justice programs.

29. I have noted briefly Ms Latif’s mental health diagnosis. She also made a diagnosis of Alcohol Use Disorder, Severe, in partial remission (G48, p 655). Ms Latif notes in her report that MJMG had not had a formal diagnosis of a condition prior to her assessment ([6.1]). She notes the Applicant’s own report of auditory hallucinations and paranoid delusions, which MJMG considered he first experienced in 2018 ([7.3]).

30. Ms Latif states further that MJMG had experienced numerous hospitalisations for psychosis, recommending regular medication and treatment ([9.2], [9.4]). She states further that the ARC (Assessment and Referral Court) was an ideal option for the Applicant, given his successful participation in the CISP (Court Integrated Services Program). If imprisoned, Ms Latif recommended a mental health unit.

31. While not strictly forming a clinical record, I note that the Applicant’s Corrections Victoria Offender Profile (G13) records as a risk factor: ‘significant ongoing psychiatric condition requiring regular monitored psychiatric treatment’ (G13, pp 115-116).

    Other evidence

32. In her written statement dated 23 August 2022 (HB, 3g), Ms Luka states that she is the CEO/founder of Afri-Aus Care, a non-government organisation that provides support to African and other migrant youth ([3]). Ms Luka has qualifications as a mental health clinician ([4]) and provided a statement in the previous Tribunal proceeding ([5]).

33. Ms Luka explains: she has consulted with MJMG and explained the need for him to attend her centre roughly four days a week, and that he intends to do so ([8]); she considers the Applicant has good prospects for rehabilitation and success ([9]-[10]); MJMG intends to seek work and her organisation has a relevant job matching program ([13]-[16]); and, that the Applicant may also participate in sport and a crime prevention initiative ([17]-[20]).

34. In her evidence, Ms Luka stated that the organisation grew from the lived experience of herself and her daughters with mental health and family dysfunction as migrants. She elaborated on the employment pathways programs, explaining that the Applicant would be matched with a broker and mentor.

35. Ms Luka stated her organisation successfully placed 100 Sudanese youth in employment last year. She added that its work had been the subject of robust evaluations that were available online to review.

36. Ms Luka also stated that she is willing to work with MJMG’s sisters and has spoken to them about his rehabilitation. She stated that S1 was now more positive about assisting MJMG and providing him with accommodation.

    Submissions and consideration

37. On MJMG’s behalf it was submitted that significant weight be given to Dr Chew’s evidence given his experience and qualifications. It was also submitted that the two-year CCO would be a further protective factor. The support proposed by Ms Luka would also be complementary to these court orders. The evidence also pointed to a range of social supports including from family.

38. It was further submitted that Dr Chew’s evidence was to the effect that the risk of reoffending was reduced should MJMG maintain rehabilitation efforts and good mental health. This is described in the Applicant SFIC as a low risk of reoffending overall ([78]). It was submitted that this primary consideration weighs in favour of revocation. 

39. In contrast, it was submitted for the Respondent that this consideration weighs very heavily against revocation (SFIC [30]) and, indeed weighs ‘decisively’ against MJMG. Oral submissions identified the range and number of convictions as relevant to assessment of the cumulative impact of MJMG’s offending. The offending should be viewed as ‘serious’ and the first element of this consideration weighs heavily against the Applicant (SFIC [23]).

40. It was contended in oral and written submissions of the Respondent that the risk of reoffending should be considered ‘significant’ (SFIC [29]) and unacceptable. It was submitted that there is insufficient evidence that MJMG has rehabilitated and, further, that Dr Chew did not provide an assessment of the likelihood of the Applicant reoffending. The totality of reports overall were described as presenting a ‘somewhat muddled view’ of MJMG’s mental health condition and the likelihood of his reoffending.

41. It was further submitted that MJMG had a history of reoffending, and that his conduct in detention raised concerns about his conduct if released. It was contended that the evidence demonstrated ‘proven failures’ to engage with treatment, and that MJMG lacks insight into his condition. The evidence given as to substance abuse in the past should also be understood as demonstrating that MJMG’s own evidence about limited ice use was not reliable, indicating a lack of insight. Further, family supports had not been a preventive factor in the past.

42. The evidence demonstrates to my satisfaction that MJMG has been convicted of a number of offences that involve violence and are to be considered under the Direction as very serious, including, but not confined to, the offending the subject of the County Court appeal. In addition, I am satisfied on the evidence that MJMG has engaged in acts of family violence, and that this conduct should be considered very serious.

43. I also find that MJMG has a record of persistent criminal offending over a prolonged period of time and that its cumulative impact must be taken into account, however I do not consider the record to demonstrate a trend of increasing seriousness. I find that MJMG has a record of conduct issues in prison and detention settings.

44. I note that MJMG has received penalties across the range of sentencing options. I take particular note of the fact that, including in respect of his most recent and very serious offending, MJMG has received numerous non-custodial sentences. While it might be said that persistent offending in the face of this relative leniency should count against the Applicant, the most recent (and current) CCO was awarded in the context of a successful appeal against sentence. MJMG has however received numerous custodial sentences, and the current CCO is also objectively a substantial penalty.

45. I am satisfied on the basis of the written and oral evidence that MJMG’s offending must be understood against the background of his now diagnosed mental health condition. I do not accept the approach sought to be taken for the Respondent to somehow read down Dr Chew’s diagnosis. I consider the body of material overall to be quite consistent, and I further accept Dr Chew’s opinion about the likelihood that the Applicant’s offending occurred during the prodromal phase of schizophrenia.

46. The Respondent’s representative is correct to contend that Dr Chew offered no qualitative judgment of the likelihood of MJMG reoffending. Equally, I note that no effort was made during cross-examination to assist the Tribunal by eliciting such an evaluation. Notwithstanding, his evidence followed a familiar pattern in matters such as these in addressing risk factors and protective factors, noting the reduced risk where protective factors were in place.

47. Critically, among these factors, are the specific terms of the extant CCO. This order appears to have been influenced by the report of Ms Latif, albeit the link is not explicitly made in the relevant transcript. More importantly, I give particular emphasis to the judicial monitoring component of that CCO. This was not addressed directly on the Respondent’s behalf in this matter, and it does not appear to have been addressed by the Tribunal in the earlier proceeding. It was, however, featured in the submission of Refugee Legal on the Applicant’s behalf in that earlier proceeding (G16, [69]-[72], [116]).

48. I accept the contention that there is little or no evidence of formal rehabilitation efforts to date. However, I accept that there is strong evidence that MJMG would be surrounded by a supportive group of family and community representatives which will aid in his rehabilitation.

49. I note, further, that it is a condition of the CCO that MJMG reside with his sister upon release. Having considered the transcript of the County Court appeal in the context of the evidence, it would appear that this is a reference to residing with S1.

50. While I am unable to quantify the risk of MJMG reoffending, I find that there is a risk of this occurring. Given his record of offending and wider conduct, I am also satisfied that this risk, if realised, would be likely to result in harm to individuals or the community, including through violence.

51. Notwithstanding, I do not consider this risk to be unacceptable. I am satisfied that MJMG will be embraced by an unusually robust framework of formal and informal supports if released into the community. I am unable to accept the submission on the Applicant’s behalf that this primary consideration weighs in their favour. Equally, I do not support the contention on the Respondent’s behalf as to weight.

52. I find, on balance, this consideration weighs against revocation.

    Family violence committed by the non-citizen

53. The Direction states that the Government has ‘serious concerns’ about conferring the privilege of remaining in Australia on persons who engage in family violence, and that concern is proportionate to its seriousness (8.2(1)). This consideration arises in circumstances of conviction or where there is ‘information or evidence from independent or authoritative sources’ about the perpetration of family violence (8.2(2)).

54. With respect to seriousness, relevant factors identified including frequency, increasing seriousness, any rehabilitation achieved, and re-offending following formal warning (8.2(3)).

55. I consider it sufficient to refer to and rely upon here the evidence set out above with respect to MJMG’s conduct, primarily against his mother and sisters.

56. For the Applicant, it was submitted that this consideration carries neutral weight. It was submitted that significant weight should be given to MJMG’s evidence as to remorse, shame and guilt, and his acknowledgment of the offending. It was also contended the evidence overall does not substantiate a view that the Applicant’s conduct toward his family was a result of an underlying attitudinal problem with gender. Further, MJMG’s family are willing to embrace him and are not concerned for their safety.

57. In addition, it is submitted in the Applicant’s Submission in Reply ([4]) that the evidence of family members should be taken into consideration as direct witnesses to family violence, consistent with paragraph 8.2(2) of the Direction.

1. It was submitted for the Respondent that the Applicant accepts the history of conduct relevant to this consideration, but the parties differ as to weight. It was contended that significant weight ought to be given to this consideration against revocation given the seriousness of the conduct and the lack of proper rehabilitation. In this respect, the Respondent SFIC adverts to the lack of evidence that MJMG has sufficiently addressed his alcohol abuse ([37]).

2. I am satisfied that MJMG has committed repeated acts of family violence against immediate family and that they should be considered to be serious examples of such conduct involving, as they do, physical attacks.

3. I do not accept the Applicant’s submission as to the evidence of family victims of MJMG’s conduct, given that these cannot be, by definition, ‘independent’ sources. In any event, the Applicant acknowledged his conduct.

4. As noted above, I understand the evidence to demonstrate that, as with his criminal offending, this conduct was influenced by either or both substance use, or abuse, and by MJMG’s diagnosed mental health condition. I have also addressed above the issue of rehabilitation.

5. I find that this consideration weighs against revocation.

   Best interests of minor children in Australia affected by the decision

6. This primary consideration requires me to determine whether a decision not to revoke the mandatory cancellation of MJMG’s visa is, or is not, in the best interests of a minor child affected (8.3(1)). The consideration affects children under 18 at the time of a decision and children should be considered individually where their interests may differ (8.3(2)-(3)).

7. Specific factors are identified for consideration including: the nature and duration of the relationship with the non-citizen; whether it is a parental relationship or role; the likely effect of separation on the child; and, and past or future exposure to harm (8.3(4)).

8. It is not disputed that MJMG has half-siblings that live with his mother, ranging in age from nearly 10 years old to approximately 17 years of age. It is also not disputed that there are a large number of nieces and nephews, being children of S1 and S2, who range in age from one year old to 11 years of age.

9. In addition to the evidence above with respect to children and household arrangements, which I rely upon here, I note that S1 also gave evidence that she and her husband work up to seven days a week. S2 also gave evidence that her eldest son had recently become more comfortable with MJMG, and that they had lived together in the same house after his birth. S2 works four days a week, her children attend after school care, and they spend time at her mother’s house which is nearby.

10. It was acknowledged in submissions for MJMG that greater weight would be afforded to biological children, and in this matter the children are either nieces and nephews, or half-siblings. It was contended that, given S1’s daily working life, her children would benefit from MJMG living with the family. It was contended that the children of S2 and Ms FP would benefit from his support and playing a role in their lives. Submissions also stressed the cultural role of MJMG as the eldest male member of the family. It was contended that this consideration weighs in favour of revocation.

11. It was submitted for the Respondent that this consideration weighs in favour of revocation, noting that MJMG is not in a parental relationship with any of the minor children in question. The Respondent further relied on its written submissions, which includes the contention that some of the minor children have been exposed to family violence perpetrated by the Applicant (SFIC, [41](b)).

12. I do not have before me in this matter a clear statement as to the periods of time that MJMG has spent in custody, other than the sentence of 10 months’ imprisonment, which has been followed by immigration detention. On this basis, the Applicant appears to have had no direct contact with any of the minor children in question since at least mid-2019, noting the young age of several of them.

13. Nonetheless, I accept from the evidence that there may exist a robust personal relationship with some or all of the older children, accepting also that MJMG has not, and is not likely to fulfil a parental role with any of the minor children.

14. The relatively general nature of the evidence prevents me from making any clear finding about the exposure of minor children to past acts of family violence.

15. The same factor also presents challenges to the task of making findings as to the way in which the interests of any of the children may differ. I note the relatively senior years of one of MJMG’s half-siblings, which significantly reduces the weight that can be attributed to their interests under this consideration.

16. I am, however, able to place some weight on the consistent evidence from several sources about the culturally ascribed importance of MJMG’s relatively new role as the senior male member of the family group. This factor, I find, adds weight to the best interests of the various other minor children.

17. Accordingly, I find that this consideration weighs in favour of revocation.

    Expectations of the Australian community

18. This consideration is expressed, on its face, in normative terms and in the context of a stated community expectation that non-citizens obey Australian law. As such, the Direction states that the Australian community expects the Government not to allow non-citizens who breach this expectation to remain in Australia (8.4(1)).

19. Further, non-revocation may be appropriate simply because of the nature of character concerns or offences (8.4(2)). Specifically, this further expectation may arise due to the occurrence of acts of family violence (8.4(2)(a)), and may apply regardless of whether there is a measurable risk of harm to the community (8.4(3)). No independent assessment of community expectations in a particular case is to be undertaken by a decision-maker (8.4(4)).

20. It is submitted in the Applicant SFIC that little weight should be given to this consideration against revocation, essentially on the grounds that the Australian community would expect a degree of tolerance to be shown to MJMG, given his particular circumstances ([83]).

21. It is submitted in the Respondent SFIC that this consideration should weigh heavily against revocation ([45]). This is on the basis of MJMG’s history of serious offending, and the potential harm that would be caused by any future offending. It is contended that this risk is sufficiently serious that any countervailing considerations (Principle 5.2(5)) should not be found to justify revocation.

22. I am unable to adopt the approach sought by the Applicant because of the normative nature of this consideration, and the fact that an independent assessment of community expectations is not permitted under the Direction. I accept that the weight to be given to this consideration is a matter for determination in the context of each particular decision. However, I consider the perpetration of acts of family violence by MJMG, which were admitted in evidence, to raise serious character concerns, in the terms of the Direction.

23. For this reason, I find that this consideration weighs against revocation.

    other considerations

    International non-refoulement obligations

24. The Direction provides an extensive commentary on factors to take into account under this consideration. It is based in the concept of the obligation not to forcibly return a person to a place where they fear a specific type of harm (9.1(1)). This harm is defined by reference to tests enunciated in the Act under the concept of ‘protection obligations’. Any non-refoulement obligations should be carefully weighed against the seriousness of a non-citizen’s criminal offending or other serious conduct (9.1(2)).

25. The Respondent SFIC addresses this consideration in the light of the decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. Summarised briefly, key outcomes from that decision are:

    (a)that I must give, engage with, and evaluate representations made that raise a potential breach of Australia’s non-refoulement obligations;

    (b)unenacted international obligations are not a mandatory relevant consideration; and

    (c)one outcome for a decision-maker is to defer assessment of whether non-refoulement obligations are owed on the basis that it may be open to an Applicant to apply for a Protection Visa.

26. The Respondent duly submitted that I should defer assessment on the basis that MJMG is a person who may apply for a Protection Visa but give consideration to claims made by MJMG that he fears harm.

27. It is contended in the Applicant SFIC that deferral of a decision as to non-refoulment obligations would lead to further detention of MJMG if he were required to lodge a Protection Visa application [141]. Written submissions are made by both parties about the prospect of indefinite detention.

28. The Applicant stated in evidence that he does not want to return to South Sudan because he is scared as his life would be in danger.

29. When asked in cross-examination who would harm him, MJMG replied ‘there are a lot of rebels’. He stated that he is Dinka, from the ‘Yuron tribe’ (transcribed as I heard the name), and that ‘people are more racist over there’. MJMG stated that he also feared harm for his Australian background and because he speaks English. The Applicant said that he would ‘definitely’ apply for a Protection Visa if he faced the prospect of return to South Sudan.

30. In his statement dated 23 August 2022 (HB, 3a) MJMG states that he fears being tortured or shot ([55]), that ‘people’ may force him to join conflict ([59]).

31. The Applicant SFIC elaborates upon the claimed fear of harm as being a well-founded fear of persecution ([119]) on the basis of: Dinka ethnicity; and membership of a social group, being persons with mental illness and/or schizophrenia. It is also contended there is a real risk MJMG would face significant harm in the form of cruel, inhuman or degrading treatment or punishment, and/or arbitrary deprivation of life.

32. In support of these contentions, reference is made to the security situation in South Sudan and the risk of harm on the basis of Dinka ethnicity, citing the DFAT Country Information Report South Sudan, 2016. Further reference is also made to more recent, credible United Nations sources as to the ongoing humanitarian situation, sub-national conflict, and systematic human rights abuses. These issues appear to have been embraced in oral submissions for the Applicant at the hearing, which I understood to urge the identification of a further consideration, being threat from generalised violence.

33. The Applicant’s written submissions also address MJMG’s mental health condition in the context of relevant country information and identify an overlap between this consideration and that of Extent of impediments if removed ([124]-[129]). Ultimately, it is contended that this consideration be given heavy weight in favour of revocation.

34. It was submitted for the Respondent at the hearing that the Applicant’s claims of harm are general in nature and cannot support a conclusive finding in respect of non-refoulment obligations. It was contended that MJMG was unable to articulate sources of harm beyond referring to rebels, and that country information holds that Dinka are a large ethnic group. Further, the Applicant’s fear of harm as a returnee was advanced with limited supporting evidence.

35. I note that it was accepted by the Tribunal when MJMG’s matter was decided earlier, that he and his family are from the Yirol area ([23]).

36. I consider that MJMG’s particular circumstances are relatively complex and require the more detailed evaluation that would take place in the course of a Protection Visa application. The features that go to this complexity include: understanding the implications, if any, of the specific geographic and ethnic origins of the family (which were poorly articulated by MJMG); the situation with respect to returnees from Western countries; the likely point of return and/or residence for MJMG given his lack of links to South Sudan; and, the impact, if any, of being a returnee with no evident local family or social connections.

37. I intend to address MJMG’s mental health condition in the context of the impediments consideration. I do not discount the possibility that his membership of a particular social group may carry some weight in respect of a non-refoulment assessment, however this factor also forms part of the overall complexity I have identified.

38. I accept that there is credible information before me as to the generally poor humanitarian and human rights situation in South Sudan. I will address this in respect to the impediments consideration, below. Given the overall outcome in this matter I do not intend to make findings with respect to the prospect of indefinite detention.

39. Accordingly, I find that it is appropriate to defer consideration of non-refoulment obligations.

    Extent of impediments if removed

40. This consideration requires assessment of impediments to a non-citizen establishing themselves and maintaining ‘basic living standards’ in their ‘home country’ (understood in the local context), and taking into account age and health, language or cultural barriers, and any social or economic support available to them (9.2(1)).

41. I do not understand the evidence and wider material in this matter to disclose any existing family ties to South Sudan, a state in which MJMG has never lived, and which – evidently enough – did not exist as such at the time of his birth.

42. I note the submission from Refugee Legal describes the Applicant’s ability in the Dinka language as ‘limited’ (G16, [233]). In his statement dated 23 August 2022, MJMG states that his Dinka ‘is not so good’; he can comprehend the language orally but not respond (HB, 3a, [56]).

43. In this same statement, MJMG expresses fears about his mental health situation deteriorating without treatment, his inability to buy medication, and the way he will be treated by others should he become paranoid and hear voices again (HB, 3a, [60]-[62]).

44. The Applicant SFIC address the state of mental health services in South Sudan under the preceding consideration. It is contended that MJMG’s condition would deteriorate given this context and he would lack the basic means to survive. The submission includes expanded references (SFIC, [125]-[128]) to material cited in the Applicant SFIC lodged at the time of the previous Tribunal hearing (G50, [104]), as well as to other sources.

45. The Respondent SFIC acknowledges that country information indicates the population of South Sudan has ‘poor access’ to healthcare ([61]). However, the contention is then made that there is doubt about the nature of MJMG’s mental health condition.

46. The source cited by the Respondent is the DFAT Country Information Report South Sudan, 5 October 2016 (G51, pp 801-826). This source in fact states that there is ‘extremely poor access to healthcare’ in the country ([2.17]); I consider the distinction to be important.

47. The primary source cited by the Applicant is the 2016 Amnesty International report ‘“Our Hearts Have Gone Dark”: The Mental Health Impact of South Sudan’s Conflict’. The report states (pp 37-38) that:

    (a)mental health services are ‘practically non-existent’;

    (b)there is a ‘dire shortage of trained mental health professionals’, with two psychiatrists only servicing the capital Juba;

    (c)there is no psychiatric ward in the main regional hospitals;

    (d)availability of psychotropic drugs is ‘inconsistent and limited’ and rarely affordable, particularly for long-term use; and

    (e)there is ‘routine’ use of prison to house individuals with mental health conditions, often arbitrarily detained as posing a danger to themselves or others.

48. It was submitted for the Applicant that there is significant evidence that he needs certain clinical support if released and its absence would threaten his ability to survive. It was contended that country information demonstrates that there is a complete lack of medical support in South Sudan, and also of social and economic support. MJMG himself has limited work history and so limited prospects. The Submissions in Reply also state that the evidence demonstrates that MJMG has no family connections or support to rely on if returned ([12]). The Applicant SFIC and oral submissions also address the general humanitarian and security situation in South Sudan.

49. In summary, it is contended that the impediments should be understood as extreme. It is submitted this consideration be given significant weight in favour of revocation.

50. For the Respondent it was submitted that, consistent with the decision of the original delegate, this consideration weighs in favour of revocation. MJMG faces hardship on the basis of his mental health condition and history of drug and alcohol abuse (in the words of the delegate, rendering him ‘particularly vulnerable’ (G2, [94]). It was contended that, otherwise, MJMG is a young man who speaks Dinka, meaning he faces no language barrier.

51. The submission as to fluency in Dinka is, at best, curious given the apparent reliance in the previous decision of the Tribunal upon evidence to the contrary ([183]), apart from also being contrary to the Applicant’s written statement about his level of fluency. I accept that the Tribunal previously found that English is an official language of South Sudan, which ameliorates some of the impact of MJMG’s limited capability in a local language.

52. The written submission that MJMG may not suffer from a psychotic condition is, with respect, somewhat perverse. It is also, given the nature of the consent orders, potentially unhelpful. As noted in setting out my findings with respect to the Applicant’s mental health condition, my reading of the material does not reveal any evident uncertainty about the existence of a psychiatric condition. Corrections Victoria evidently also proceeded on the basis that the MJMG had a mental health condition when was received into custody in 2019.

53. The sources cited by the Applicant with respect to mental health treatment in South Sudan were not challenged by the Respondent; they appear to be consistent with our own Government country information, which is the current version. I also take into account the reputable country information that depicts a hazardous and unsafe environment in South Sudan. I find that this compounds the risk arising from the Applicant’s already clearly vulnerable status were he returned.

54. On this basis, and in the context of my findings with respect to MJMG’s mental health condition, I am satisfied that the Applicant faces a substantial and almost insurmountable barrier to attaining a basic standard of living if returned to South Sudan.

55. Accordingly, I find that this consideration weighs heavily in favour of revocation.

    Impact on victims

56. It is submitted in the Applicant’s Submission in Reply that weight should be given under this consideration to the evidence of family member victims of MJMG’s acts of family violence ([6]).

57. The Respondent made no written submission on this issue, but it was submitted at the hearing that this consideration was not engaged in this matter. This was on the basis of the interpretation of the consideration as it was in the previous version of the Direction, reached in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842, at [20] (CGX20).

58. The Direction requires me to consider the impact of a revocation decision on ‘members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims…’ (9.3(1)). While expressed in slightly different terms to the previous version, the reasoning in CGX20 remains pertinent, in that the impact of a decision on family members of a non-citizen arises elsewhere in the Direction.

1. More pertinently, I do not understand any of MJMG’s acts of family violence to have given rise to criminal charges and so, accordingly, this consideration is not engaged. I find, therefore that this consideration weighs neutrally.

   Links to the Australian community

2. The first limb of this consideration is ‘The strength, nature and duration of ties to Australia’. I must consider the impact of my decision upon immediate family members who are citizens or have a right to permanently reside here indefinitely (9.4.1(1)). Consideration must also be given to a non-citizen’s links to the Australian community (9.4.1(2)). In this element, factors include their age on arrival (with more weight given to time spent contributing positively), and links to Australian citizens or other persons with a right to reside indefinitely.

3. The second limb, ‘Impact on Australian business interests’, is not engaged in this matter and accordingly weighs neutrally in this consideration.

4. S1 gave her evidence about the impact of removal of MJMG in an emotional manner. She stated that it would be like ‘losing another brother’, as she is healing from a big loss. I take this to be a reference to the death by murder of her other brother. If MJMG were to live with her, she may be in a position to return to education rather than work.

5. Similarly, S2 stated that if MJMG left, then both brothers would be ‘away’, and the family would lack a male figure. She stated in her evidence that she turned to alcohol again after the death of her brother. S2 stated in an emotional manner that her brother’s removal to South Sudan would ‘destroy me’ and would destroy her kids, who had not gotten over her brother’s death. She made particular mention of her son, the Applicant’s nephew, who does not have a father figure in his life at present.

6. In her statement dated 23 August 2022 (HB, 3f), Ms FP refers to the cultural importance of MJMG becoming the oldest male in the family, and his ability to be a positive role model, and also states that she cannot bear to lose another son ([16]-[18], [30]).

7. It was submitted for the Applicant that he has significant ties to Australia, his home for 17 years. His entire family reside in Australia, and they would be unable to maintain their connection due to the risk of harm if visiting South Sudan. It is contended in the Applicant SFIC that MJMG’s family have demonstrated their love and support for him, and the strong social, familial and cultural ties he has in this country should be given significant weight in favour of revocation ([149]-[150]).

8. The Respondent’s representative accepted that the Applicant has spent significant time in Australia and has close ties to siblings. The Respondent SFIC includes the submission that non-revocation would have an adverse effect on the Applicant’s immediate family, but they would not suffer insurmountable hardship if he was removed ([78]). It is contended the Applicant has made some positive contribution to the community and did not commence offending until eight years after his arrival ([79]). The Respondent submits this consideration might be found to weigh in favour of revocation ([80]).

9. I accept the Respondent’s submission that there is some, albeit limited, information indicating that MJMG has made a positive contribution to the Australian community. The overwhelming focus under this consideration arising in this matter is, however, the importance of links to the Applicant’s immediate family.

10. I accept on the evidence given that the removal of MJMG would have a very significant impact upon his immediate family. I also accept that this has not just a direct and practical aspect, but also a more indirect feature, being the cultural significance attached to MJMG fulfilling a role as senior male figure in the family. I note this factor was given due weight by the Tribunal when the matter was first heard ([192]).

11. That said, there is also some merit in the Respondent’s contention that such a loss is not likely to be insurmountable.

12. Accordingly, I find that this consideration weighs in favour of revocation.

    conclusion

13. In respect of the primary considerations, I have found that Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community weigh against revocation. I have found that Best interests of minor children weighs in favour of revocation.

14. In respect of other considerations, I have found that two weigh neutrally: International non-refoulement obligations, and Impact on victims. I have found that Extent of impediments if removed weighs strongly in favour of revocation, and Links to the Australian community weighs in favour of revocation.

15. The Direction provides that primary considerations should generally be given greater weight than other considerations (7(2)). This guidance appears to reflect the fact that exercising the discretion with regard to revocation is an evaluative exercise. The principles also guide this evaluation and include due emphasis on serious character concerns, even in the absence of a measurable risk of future harm to the Australian community. This expectation may withstand even strong countervailing considerations (5.2(5)).

16. The evaluative exercise of weighing the various considerations, both individually and collectively, has been recently considered by the Full Court of the Federal Court of Australia in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (FHHM). This decision elaborates briefly on the manner in which a decision-maker is to take considerations into account, which I have summarised immediately above. In the circumstances of a particular case, it may be that the ‘general circumstance’ in which primary considerations should be given greater weight ought not to pertain (FHHM, [34]).

17. In this matter, I consider that the consequences for MJMG of a return to South Sudan, which I have found to weigh strongly in favour of revocation, are sufficiently serious to afford this other consideration more substantial weight as against the primary considerations that I have found weigh against revocation. This is because: there is a near certainty that MJMG will suffer very serious consequence should he be returned; his history of offending must now be understood also in the light of his diagnosis; and, the risks that might flow from his release into the community in Australia are acceptable in the context of the unusually robust supports that will be provided, including judicial monitoring.

18. Accordingly, I am satisfied that there is another reason why the mandatory cancellation decision should be revoked.

    decision

19. For the reasons given above, the Tribunal sets aside the Minister’s non-revocation decision of the cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa made on 9 March 2021, and in substitution decides that there is another reason why the Applicant’s visa cancellation should be revoked.

174.    I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 31 October 2022

Date of hearing:

12 and 13 September 2022

Advocate for the Applicant:

Stephanie Blaker

Solicitors for the Applicant:

Advocate for the Respondent:

Legal Aid New South Wales

Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore Lawyers