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

MJMG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1486 (26 May 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1493
Re:MJMG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:26 May 2021
Place:Melbourne

The Tribunal decides under section 43(1)(a) of the Administrative Appeals Tribunal Act1975 to affirm the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant entitled to citizenship of South Sudan – where applicant’s visa cancelled owing to substantial criminal record – where applicant seeks revocation of visa cancellation by delegate of Minister – where delegate affirms cancellation decision – where applicant seeks review by Tribunal – where Tribunal obliged to consider ministerial Direction No. 90 – primary considerations – protection of the Australian community – conduct of applicant constitutes family violence – best interests of minor children in Australia where children exposed to family violence – expectations of the Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to the Australian community – conclusion that discretion available is not enlivened – decision under review is affirmed
Legislation
Administrative Appeals Act 1975, s 33A, 35, 43, 62
Migration Act 1958, ss 36, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Secondary Materials
A Study of Statelessness in South Sudan 2017; UNHCR (10 June 2018)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954 (entered into force 6 June 1960)
Declaration of International Conference on the Great Lakes Region (ICGLR) Member States on the Eradication of Statelessness, made at Brazzaville on 16 October 2017
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (made 6 September 2017/commenced 7 September 2017)
Migration Act 1958 – Direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
The Nationality Act 2011 (South Sudan), ss 8, 9
Transitional Constitution of the Republic of South Sudan, Chapter II
REASONS FOR DECISION
Senior Member D. J. Morris
26 May 2021
PRELIMINARY

On 23 March 2021, the Tribunal made an order under section 35 of the Administrative Appeals TribunalAct 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings. He will be known by the anonym ‘MJMG’. Other persons mentioned in these reasons, the disclosure of whose identity would tend to identify the Applicant, will be anonymised. Where a quoted document refers to the Applicant, the anonym will be substituted for his name.
MJMG arrived in Australia in January 2005 as the holder of a Global Special Humanitarian (Subclass 202) visa (‘the visa’). On 17 February 2020, an officer of the Department of Home Affairs (‘the Department’) wrote to MJMG to advise that his visa had been cancelled that day under section 501(3A) of the Migration Act 1958 (‘the Act’).
The basis of the visa cancellation was that MJMG was found by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’ or ‘the Respondent’ in these reasons) to have a ‘substantial criminal record’. In the letter advising him of the cancellation, MJMG was invited by the delegate to make representations seeking revocation of the cancellation of his visa. He made representations, including a submission prepared on his behalf by Refugee Legal, and provided statements from himself and family members. On 9 March 2021, a delegate of the Minister declined to exercise the discretion available under section 501CA(4) of the Act to revoke the cancellation of the visa.
On 12 March 2021, MJMG sought review of the delegate’s decision not to revoke the mandatory cancellation by this Tribunal.
HEARING
A hearing was held on 13 and 14 May 2021 by video link, as provided for under section 33A of the AAT Act and because of the current public health emergency. MJMG appeared from the Christmas Island Immigration Detention Centre (‘IDC’) and represented himself at the hearing. Mr Adam Cunynghame, a solicitor from Sparke Helmore Lawyers, represented the Minister. MJMG gave evidence and was cross-examined. He called three witnesses who also gave evidence: Mr ZK, a cousin; and Ms ZV and Ms ZS, sisters of the Applicant.
The Minister tendered two volumes of documents, which were admitted into evidence: a volume of G documents (‘GD’), as Exhibit R1 and a volume of supplementary G documents (‘SGD’), as Exhibit R2.
The Applicant submitted five documents which were admitted into evidence:
(a)       written statement of MJMG, dated 15 April 2021;
(b)       supplementary statement of MJMG, dated 7 May 2021;
(c)       written statement of Mr ZK, dated 6 May 2021;
(d)       written statement of Ms ZV, dated 6 May 2021; and
(e)       written statement of Ms ZS not dated but written May 2021.
Both the Applicant and the Respondent submitted written Statements of Facts, Issues and Contentions (‘ASFIC’ and ‘RSFIC’). The ASFIC was dated 16 April 2021 and the RSFIC was dated 28 April 2021.
QUESTIONS BEFORE THE TRIBUNAL
The Tribunal must consider two questions. The first question is: Does the Applicant fail the character test? If the answer to that question is ‘no’, then the matter ends there, and the Tribunal would decide accordingly, which would direct the Minister to restore the visa. If the answer to the question is ‘yes’, the next step for the Tribunal to address is whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa.
The authority for the Tribunal to consider the review brought by MJMG is found in section 500(1)(ba) of the Act. In considering this matter, the Tribunal must consider any directions made by the Minister under section 499 of the Act. If such a direction has been made, decision-makers, including the Tribunal, must under section 499(2) of the Act comply with it.
The delegate who refused to revoke the mandatory cancellation of MJMG’s visa consulted Direction No. 79, made under section 499. On 8 March 2021 the Minister made a fresh direction under section 499, Direction No. 90. Direction No. 90 (which will hereafter be referred to as ‘the Direction’) commenced on 15 April 2021 and (at clause 3 of Part 1) revokes Direction No. 79 from that date.
The question about which Direction to apply where a reviewable decision was made when one Direction was in force (or had been revoked), and then an applicant sought review by the Tribunal and the Tribunal made its decision after a new Direction had commenced, was considered by the Full Court of the Federal Court of Australia (Dowsett, Kenny and Mortimer JJ) in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48.
The Full Court essentially decided that the Direction in place when a decision is made by the Tribunal is the Direction to which the Tribunal should have regard. The Tribunal notes that it is always open to an Applicant to argue that a new Direction may be less favourable to them, in their particular circumstances from the one in force when a visa was refused or cancelled or a delegate declined to revoke a mandatory cancellation. Further, it is open to the Tribunal to consider such a submission on its merits (provided the submission is not directly at odds with the Direction in force), because the Tribunal is not confined only to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation.
The Tribunal therefore proceeds on the established principles that the Tribunal:
(a)is not constrained to consider only the material before the original decision-maker and may consider fresh material; and
(b)should apply the law and policy in place at the time it makes its decision. The Tribunal therefore considered, and will refer to, Direction No. 90 in these reasons.
Has MJMG failed the character test?
Submitted (at GD, pp 36-41) was a Nationally Coordinated Criminal History Check document produced by the Australian Criminal Intelligence Commission (‘ACIC report’) dated 23 June 2020. It set out recorded Court outcomes relating to the Applicant. Relevantly, it states that in May 2020, MJMG was convicted by the County Court of Victoria of the following offences; Recklessly Cause Injury; Aggravated Burglary – Person Present; Theft from Shop (Shopsteal); Criminal Damage (Intent to Damage/Destroy). He was sentenced to an aggregate term of imprisonment of ten months, with a two-years Community Corrections Order (‘CCO’) to commence upon completion of his prison or detention term. The CCO stipulates 300 hours of unpaid community work, and including that 100 hours of treatment and rehabilitation be counted as hours of unpaid community work for the purposes of the CCO.
In July 2017, MJMG was convicted of the offence of Intentionally Causing Injury, and sentenced to nine months’ imprisonment, and the additional offence of Theft from Shop (Shopsteal) and sentenced to seven days’ imprisonment, concurrent, a total aggregate sentenced of nine months’ imprisonment.
The Tribunal notes that the original decision to cancel MJMG’s visa was made on 17 February 2020 under section 501(3A) of the Act, on the basis that the delegate was satisfied that MJMG had a ‘substantial criminal record’ under section 501(7)(c) of the Act, in that he had been sentenced to a term of imprisonment of 12 months or more. That decision was based on a sentence by the Magistrates’ Court of Victoria on 2 December 2019. The Magistrates’ Court sentence was set aside on appeal by the County Court on 11 May 2020, and MJMG was re-sentenced to 10 months in prison. Therefore, the requirements of section 501(7)(c) were not met.
However, the delegate on considering MJMG’s request to revoke the mandatory cancellation of the visa noted the 2017 sentence of nine months and relied on section 501(7)(d) of the Act in deciding that MJMG failed the character test. Section 501(7)(d) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more. MJMG is such a person because of his 2017 and May 2020 sentences.
The ASFIC conceded, at paragraph 3, that MJMG failed the character test.
Finding in relation to the character test
On the facts before the Tribunal, I find that the Applicant fails the character test because of the combined effect of section 501(7)(d) and him having a ‘substantial criminal record’ under section 501(6)(a) of the Act.
Is there another reason to revoke the mandatory cancellation of the visa?
Applicant’s Migration and Personal History
The ASFIC records that MJMG and his family were granted Global Special Humanitarian (Subclass 202) visas in August 2004. He came to Australia with his mother, sisters, and brother. Tragically, the Applicant’s older brother was murdered in Australia in early 2020 when he went to assist a woman in the street who was being assaulted by a man with a knife.
MJMG has three sisters, three maternal half-siblings, two paternal half-siblings, five nephews and nieces and several cousins, all of whom live in Australia.
MJMG was born in a refugee camp in Kenya. He is of Dinka ethnicity and understands from his mother that the family belong to the Ciec sub-tribe and that his parents are from the Yirol area in the Lakes State of central South Sudan (GD, p 162). His parents and his oldest brother had fled to Kenya during the Second Sudanese Civil War. One of his sisters was born ‘on the road’ between Sudan and Kenya and the other was born in the camp in Kenya. The Applicant’s father was a member of the Sudan People’s Liberation Movement (‘SPLM’) and fought on behalf of the SPLM. Around 2003, the ASFIC states that MJMG’s father returned to South Sudan to continue his work with the SPLM. He subsequently suffered a heart attack and died.
MJMG has not left Australia since his arrival in January 2005 (movement records at GD, p 271) and on the evidence has not lived in, or visited, South Sudan. The ASFIC states that the Applicant speaks ‘very little Dinka’.
Applicant’s Offending History
The ACIC Report lists Court outcomes in Australia for MJMG. His first appearance in the children’s Court was in 2013, and he has some twelve other appearances spanning the period between October 2013 and May 2020 and has been convicted of some 40 offences. In addition to the ACIC report, documents produced under summons provide further details on MJMG’s offending.
MJMG has received a range of penalties when he has appeared in Court. For the first three appearances, he was either: given probation without a conviction being recorded; convicted and discharged; placed on CCOs; or fined.
In early 2016 MJMG received his first prison sentence, of 83 days’ gaol for the offence of Handle/Receive/Dispose of Stolen Goods. Later the same year he was convicted of the offence of Intentionally Causing Injury and sentenced to 104 days’ in prison. In July 2017, as referred to above, MJMG was sentenced to nine months’ imprisonment for the offence of Intentionally Causing Injury.
In December 2018, at Melbourne Magistrates’ Court, MJMG was convicted of the offences of: Theft from Shop (Shopsteal) and the offences of Commit Indictable Offence Whilst on Bail and Contravening a Conduct Condition of Bail. He received an aggregate sentence of 39 days’ imprisonment.
In early 2019, MJMG was convicted of the offences of Intentionally Damage Property (3 counts); Theft; Unlicensed Driving; State False Name; Theft from Shop (Shopsteal) (2 counts); Commit an Indictable Offence Whilst on Bail (2 counts); Contravene a Conduct Condition of Bail (2 counts); Criminal Damage (Intent to Damage/Destroy); Carry Dangerous Article in Public Place; and Drunk in a Public Place. For these offences he was sentenced to an aggregate term of 123 days’ imprisonment and the CCO previously imposed, having been breached, was cancelled.
In December 2019, MJMG was convicted of the offences listed earlier in these reasons, which triggered the mandatory cancellation of his visa. The sentence then imposed was, as mentioned, reduced to 10 months’ imprisonment by the County Court of Victoria.
WRITTEN SUBMISSIONS OF THE APPLICANT
MJMG had legal representation before the hearing, and they prepared the ASFIC on his instructions. The ASFIC submitted that there is a combination of factors which support the revocation of the visa cancellation. They were listed as: a low likelihood of MJMG re-offending; the length of time he has lived in Australia; Australia’s non-refoulement obligations, specifically “the significant harm he would face if forced to return to South Sudan and the extreme impediments the Applicant would face on return to a country in the midst of civil war and imminent famine”, and the legal consequences of decision not to revoke the cancellation of the visa, which “could be either return to South Sudan (refoulement) or indefinite detention”.
ORAL EVIDENCE OF THE APPLICANT
MJMG adopted his two statements, Exhibits A1 and A2. At the beginning of the examination by the Respondent’s lawyer, the Tribunal reminded MJMG that he must answers questions directly and truthfully, but also that section 62(4) of the AAT Act meant he did not have to answer a question if the answer might tend to incriminate him.
The Applicant was referred to an incident at Ballan Prison (GD, p 127) where he was found in a cell with a bloodied face. MJMG said he had got into an argument with one of the prisoners who kept bullying him. He said they started fighting and the other prisoner tried to choke him. He said he got emotional because he had stopped breathing ‘for a second’.
When asked whether he had been aggressive to officers on that occasion, MJMG said: “I didn’t mean to be aggressive to the officers. I was angry with the other prisoner.”
Mr Cunynghame referred MJMG to another incident nine days later (GD, p 129) where he refused to leave his cell for exercise and was aggressive, swearing at an officer. MJMG responded: “Prison is a hard place. Sometimes I have my moments. I started developing my paranoia. Sometimes get angry with staff, but I know they are just doing their job”.
In September 2019, there was another incident at the Metropolitan Remand Centre Attwood (GD, p 142). MJMG was asked whether he remembered the incident. The report refers to a fight among prisoners including the Applicant. MJMG responded: “Someone was getting picked on. Me and my mate were told to stop it. More people jumped into the fight. I had nothing to fight about. Don’t know why I fought”.
In December 2019, there was an incident at Port Phillip Prison involving the Applicant. The report referred to an altercation between MJMG and another prisoner, and that MJMG had some swelling to the back of his head and was medically assessed. MJMG said he remembered the occasion: “It was in the kitchen. I asked the prisoner to get bread. He said, ‘I’m not your mother’. He punched me. I hit him back to defend myself. That was it”.
Mr Cunynghame referred the Applicant to an incident in immigration detention (GD, p 157) where MJMG was observed on closed-circuit cameras to be placing a package under a fence in the IDC compound. The package was found to contain a white powdery substance that tested positive to methamphetamine. The Applicant told officers he did not know what it was and said it was a piece of paper with a phone number on it. MJMG responded: “A friend called and asked me to pass it. I refused him a few times. Thought it was just a number. He told me I wouldn’t get into trouble. Never do it again. I don’t use drugs”.
MJMG said he did not know anyone and had only met this friend once before in prison and he did it because he wanted to be liked. He said that he found out this friend had asked two others to do it but “I was the dumb one who said ‘yes’”.
MJMG said that he had initially planned to live with his sister Ms ZV if released into the community but that was no longer possible because of her young children, so he now planned to live with his cousin, Mr ZK, who has more space.
The Applicant was referred to his personal circumstances form (GD, p 95) where he lists siblings and other relatives but did not say their location. MJMG said that all his family members are in Australia. He said he was unaware of any relatives overseas.
The Respondent’s lawyer referred MJMG to his personal circumstances form (GD, p 99) where in response to the question about any concerns or fears he had about returning to his ‘country of citizenship’. MJMG had written that he did not know anything about South Sudan and all he knew is here in Australia. When asked to expand to the Tribunal on his fears, MJMG responded: “I’ve heard a lot of bad stuff. Reckon I’d have a high risk of being hurt. A lot get killed or tortured. Wouldn’t survive more than a year. Wouldn’t have a job. Very difficult to go back. I might not last a year”.

When pressed on where he had heard about the situation in South Sudan, MJMG said he had heard from friends in Australia. When asked why he thought he would be killed or tortured, MJMG said: “Because I’d be no use to them. I’ve never been to Sudan. It has lots of conflicts”.
Mr Cunynghame asked MJMG who he was referring to as ‘them’ in this answer. MJMG said: “Sudanese. I didn’t grow up there. I speak English. They might see that as a threat. They might kill me. To be honest I just hear a lot of bad stories. It’s a very dangerous place. People don’t survive there. People get killed”.
Mr Cunynghame referred the Applicant to an IHMS health summary (SGD, p 3) which stated that MJMG had declined to attend appointments for his six monthly mental health assessment, and that he had declined to see the mental health nurse, and was asked whether this was true and why. MJMG responded: “Yes. I was drinking a lot and I would miss appointments and go out with friends”. The Tribunal then reminded the Applicant that this document was referring to health appointments in detention, and he responded: “Most of the time I slept in, that’s why I missed appointments”.
When asked whether he didn’t think these appointments were important, MJMG said: “I’ve seen the psychiatrist twice here and he put me on medication and I’m taking that at the moment”.
MJMG was referred to a health assessment dated June 2020 (SGD, p 4) which stated:
Background: nil physical issues.
Dx [diagnosis] with mental health – paranoia issues but does not feel any need for treatment.
D/c on Zyprexa but has not been taking here.
Assessment: coping ok here – not paranoid.
Nka. [no known allergies]
Drinking outside.
Using ice in community – tended to make paranoid.
Settled complaint.
No current mental health issues.
Sleeping ok
Presents well and disinterested.
Recommendation: does not want any MH follow up – self referral as required.
MJMG responded: “Yes. I have got better. I was paranoid last time. Am feeling a lot better”.
The Applicant was referred to a hospital Emergency Department clinical sheet dated May 2018 which referred to a psychotic episode, where his sister called police because she was concerned about his actions. The document (SGD, p 15) records that the patient himself is aware that he is paranoid and recorded: “Daily ice use over the past 4 weeks”.
When asked if this was an accurate summary, MJMG said: “I agree with that”. He said when taking ice: “I felt I could do anything. Would do something crazy like commit crimes”.
MJMG said he was also using cannabis at times but the only effect on him was that it made him sleepy and that it: “Doesn’t make me do anything”.
Mr Cunynghame referred MJMG to a St Vincent’s Hospital Emergency Department document (SGD, p 19) which referred to him undertaking ‘odd behaviour’ in his cell at Melbourne Remand Centre. It would appear from the document that MJMG had a seizure when riding a bike and the clinician recorded “conscious collapse + seizure activity”. MJMG said he did not have a recollection of this incident. He said he had heard the stories and knew he was very unwell at the time.
The Respondent’s lawyer noted that MJMG had told a psychiatrist during a mental health consultation in detention in January 2021 that he “only used ice 3 times”, but in 2018 was using it daily. MJMG was asked what about his history of ice use. The Applicant responded: “Multiple times. I just don’t remember”.
When the questioning turned to some of the police reports produced under summons, Mr Cunynghame reminded MJMG of the fact that he was not obliged to answer a question that might tend to incriminate him. MJMG was taken to a 2015 police report (SGD, p 151) which referred to an incident which occurred at home. The report relevantly states:
The AFM is the RESPs mother. They live together with the RESPs younger siblings. On [date redacted] 2015 at approximately 0030hrs the RESP has come home intoxicated from a night out in the city. The AFM was in the shower when the RESP attempted to get in by kicking the door. The AFM has begun screaming unsure of what was going on, waking the other children in the house. The RESP was witnessed attempting to kick down the AFMs bathroom door, causing significant damage. The RESP has managed to gain entry to the bathroom and begun assaulting the AFM. The children present have attempted to intervene but the RESP has overpowered them. The RESP has gone into the kitchen and retrieved a metal spoon which he has used to hit the AFM repeatedly to the head, causing significant bleeding. The AFMs children have helped the AFM from the house and run to neighbours to call for help. When the police arrived the AFM was at another address and the RESP was at home with the other children. The RESP was resistive and uncooperative toward police. He denied all allegations claiming that he had been asleep the whole time. The RESP has a history of violent behaviour against the AFM as well as others. Police are seeking an intervention order based on the grounds the RESP was a complete disregard for the AFM and refuses to take responsibility for his actions. The RESP showed no remorse when presented with photos of his mother’s injuries and displays a distinct distaste for women in general. The AFM was forced to run from her home naked and bleeding. She needed stitches for her injuries and stayed overnight in hospital. Police believe both the AFM, her children and her property are at significant risk.
MJMG was asked whether this was a fair summary of what happened. He responded: “I accept it. I have apologised to my mother. My uncle had been bad. I hurt people when intoxicated. I had to learn how to behave. If I could take it back. I didn’t really know how much I hurt her. Saw the stitches when she came back from hospital. I have learned to control my anger, and don’t lash out”.
Mr Cunynghame asked MJMG about the police recording that he had a ‘distaste’ for women and what that might be based on. MJMG responded: “Maybe because of how I was behaving. I don’t remember. I was pretty intoxicated”.
MJMG said he did not remember his other siblings trying to intervene but did remember swinging the spoon and “knew later it was something serious”.
MJMG was taken to a 2011 police report (SGD, p 156) involving his sister Ms ZV. The report referred to a fight between the Applicant and his sister where he went to punch her, and she bit him. The report states that:
“the accused then pushed the victim to the ground, crouched over her and punched her numerous times to the face, causing her to lose consciousness. He has then thrown a portable heater at her and left the residence on foot”.
MJMG was asked if this was a fair summary of what occurred. The Applicant responded: “I don’t remember hitting her. I threw a heater. Ms ZS jumped in to help her. Police were called in. I went to the station with my cousin. It was really terrible what I did to Ms ZV. I didn’t mean to hurt her”.
The report states that MJMG made a full admission to the police, but MJMG said he did not remember that. The Tribunal notes that no charges eventuated from these events.
Mr Cunynghame asked MJMG if he remembered another incident (SGD, p 159) where police were called after a verbal argument between him and Ms ZV about using too much water at home. MJMG said he did not recall this incident.
The Applicant was asked about another incident (SGD, p 165) in 2018 where the report records that he smashed a car in the street with a pipe, and then picked up a rock and threw it through the windscreen. The police were called by security guards who witnessed the events. MJMG said he did not remember the incident “I was paranoid at the time. I don’t remember any of it”.
MJMG was taken to a police report of an incident in March 2017 where he became abusive towards his mother in the family home. His mother hid all the knives because, the report states, the Applicant had previously threatened her with them. MJMG said he did not remember this incident. He told the Tribunal: “My mum usually hides the knives because she thinks I’m going to use them…a few times mum has called police because I have misbehaved”.
Mr Cunynghame asked MJMG if he remembers seeing a psychologist, Ms Miriam Latif, for her to undertake an assessment to provide a report to the Court. Before the Tribunal was her report dated November 2019, which states she interviewed MJMG by video link. MJMG said he did not remember seeing Ms Latif.
The Applicant was read part of the report which stated:
Relationship History
MJMG denied any long-term relationships and stated that whilst he had some romantic relationships in the past he never “treated them fairly” because he would be easily influenced by his peers.
MJMG said: “I would drink too much and get into arguments. Wouldn’t get along”. In respect of the comment about being easily influenced by peers, the Applicant said: “I don’t know what I meant back then. I have a different mindset now. I’m easy-going”.
The Tribunal asked MJMG directly whether he had ever been violent towards his girlfriends. He responded: “I’ve never been violent to girls I’ve dated, only my family”.
MJMG said by the age of 18 or 19 he was “drinking a lot. Clubbing. Going out with the boys. Then I started becoming lonely and drinking at friends’ houses”.
The Applicant was taken to a statement he submitted dated November 2020 (GD, pp 227-236). He said it was prepared by his lawyer on his instructions and he told the lawyer what to include in it. The statement records the death of his uncle in South Sudan. MJMG said he received a telephone call from a cousin in Australia who told him about it.
In the written statement (GD, p 230), MJMG refers to his past problems with mental ill-health and stated, “I’m not unwell now – but I was before”. MJMG was asked to elaborate. He said: “I was unwell when I had the paranoia. I was a lost kid. I didn’t have a role model. Now I feel better and have been taking my medication. I lost my brother and couldn’t go to his funeral. We were very close. Now I feel stable”.
When asked who his role models are now, MJMG said: “Mr ZK and my sisters. They lecture me. They are trying to change me”.
Mr Cunynghame said that these people were in his life before. MJMG responded: “My older brother was busy studying. I didn’t have anyone to give me warnings. That’s what led me to prison. My sisters have their own lives and kids. We weren’t close. Now I am closer to them”.
MJMG said that his father’s work as a soldier in South Sudan might place him at risk. He said: “If I go back and say my name, I might be a threat. They would threaten me”.
When asked directly by the Tribunal why stating his name would lead to threats, MJMG responded: “They would think I have money, because I’ve been in Australia. They’d think I was rich”.
Mr Cunynghame asked MJMG why he had not mentioned incidents of family violence in earlier statements before his mention of them in his 7 May 2021 statement. MJMG responded: “I was waiting for it to be brought up because I thought I would be asked about it”. He agreed that he was aware of the statements and the Intervention Order (‘IVO’) when he wrote the earlier statements.
MJMG was asked how he would cope with anger if faced with stressful situations in the future. He responded: “I will walk away. I will handle it like an adult. I will talk it out and won’t lash out”.
When asked what rehabilitation he would undertake, MJMG said: “On the outside there is rehab for drugs and alcohol. If I get influenced, I will take myself there if I need help”.
When asked directly whether he thought he needed rehabilitation now, MJMG replied: “No, but in the future”.
The Tribunal then asked MJMG if he had undertaken any rehabilitation course in prison or detention. MJMG said: “I did one in prison but didn’t complete it because I got into trouble. I am currently doing a drug and alcohol course in detention, once a week”.
When asked, if he was back in the community, what would cause him to go to rehabilitation, MJMG said: “I know myself. I will stay sober for a couple of months and I might start drinking again and if it gets worse, then I will go to rehab. I have never been before”.
MJMG agreed that peer pressure might be a risk factor for revering to drinking alcohol again. When asked what he would do if faced with this possibility, the Applicant replied: “I would just say no and go home. Would tell them drinking gets me into trouble. I wouldn’t put myself in that situation”.
MJMG was asked what employment he would try and obtain if released into the community. He said he would like to work in construction or carpentry but would take any job he could get including working in a warehouse or a meat factory if he cannot get other work.
MJMG said he had worked for about four months concreting and less than a month in a warehouse but agreed that he had not worked much.
ORAL EVIDENCE OF MR ZK
Mr ZK adopted his statement (Exhibit A3). He told the Tribunal he is a solicitor with his own legal practice.
Mr ZK said that MJMG started drinking between the ages of 16 and 18 and it became worse after he turned 19 and escalated out of control, and that the Applicant would sometimes drink 24 stubbies of beer in one session, and was at one time drinking through the week.
Mr ZK told the Tribunal a lot of the stress MJMG was under was owing to the intimate relationship the Applicant’s mother had formed with her nephew and that this had caused significant problems in the family, not only with MJMG and his mother, but also with Ms ZV and Ms ZS and their mother.
Mr ZK said he was aware MJMG had used ‘ice’ and ‘marijuana’, and estimated he was using ‘ice’ once or twice a week, but that he did not have first-hand knowledge of the amount of use.
Mr ZK said he and his wife have three young children and live in a four-bedroom house, and that he had a spare bedroom available for MJMG to occupy. He said that his wife and children are currently in Uganda because of a family bereavement, but MJMG could stay with him until they returned to Australia, and possibly longer. Mr ZK said that his elder brother is willing to accommodate MJMG, as well.
In response to a direct question from the Tribunal about whether Mr ZK was happy for MJMG to live in his household after the history of domestic violence incidents, Mr ZK said: “He has become more stable. I have told him I will call the cops and then his visa will be cancelled. He knows there are no third chances.”
Mr ZK said he was aware of the incident where MJMG had injured his mother, and another where the Applicant had thrown a heater and it hit Ms ZV on her head.
Mr ZK said he was willing to offer some employment to MJMG in his law firm, archiving files and undertaking general office duties, but knows he would prefer outside work.
Mr ZK said that the murder of MJMG’s brother has had a significant effect and has brought him closer to his sisters, “he knows he is now leader of the family”.
ORAL EVIDENCE OF MS ZV
Ms ZV, the sister of the Applicant, adopted her statement (Exhibit A4).
Ms ZV said she remembered the incident regarding the heater and told the Tribunal that MJMG punched her on that occasion and one of her sisters called the police. She said she also remembered the verbal dispute over water usage at the house.
Ms ZV was asked why she did not mention the heater incident or the attack of MJMG on his mother in her statements to the Minister’s delegate in 2020. Ms ZV said: “I was not there when he attacked our mother. I thought the heater incident was on record. I was not asked about it”.
Ms ZV confirmed she has withdrawn the offer of accommodation and felt MJMG would be better living with Mr ZK because he listens more to him and would “move forward with changes” better than if he lived with her.
Mr Cunynghame asked Ms ZV what she thought was the cause of her brother drinking. She said: he “got into drinking at a very young age, 14 or 15. There was a misunderstanding with our mother. She didn’t have a good relationship with her children and that gave him stress and depression and led to drinking”.
Ms ZV said: “As a family we have already lost someone precious in my brother. I couldn’t stand losing another brother. We have no one in South Sudan. Our father died some time ago. There is nobody to go to or place to stay”.
When asked directly about MJMG’s drug taking, Ms ZV said she was not ‘really aware’ of it but had seen him refer to it in his statement, but she was aware of his drinking problem in the past.
ORAL EVIDENCE OF MS ZS
Ms ZS, sister of the Applicant, adopted her statement (Exhibit A5).
Mr Cunynghame asked Ms ZS if she remembered an incident in mid-2018 where her mother had been chased out of the house by MJMG and there was discussion of getting an IVO. Ms ZS said she did remember, but she did not end up getting an IVO.
Ms ZS was referred to other incidents in the police reports where the police had been called to the house after arguments between her and MJMG. Ms ZS said that she would characterise these as sibling fights and arguments, “It wasn’t anything really serious”.
When asked whether she thought the incidents might have been driven by MJMG’s alcohol use, Ms ZS agreed, but said she was sometimes intoxicated herself at the time. Ms ZS said she did not have an understanding of MJMG’s drug use more generally.
Ms ZS told the Tribunal that she was born on the road between Sudan and Kenya, as the family were fleeing during the civil war. She said she had never been back to Sudan or South Sudan and was not aware of any relatives there.
Ms ZS agreed with the Tribunal’s suggestion that she had, in the past, often called police out of frustration with MJMG’s conduct.
CONSIDERATION OF THE DIRECTION
At paragraph 5.2, the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles are:
(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 engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:
(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.
It is important to note the wording in paragraph 9(1) of the Direction, which makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another articulated claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
Primary Consideration: Protection of the Australian community (paragraph 8.1)
The Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. The summonsed material indicates that some of MJMG’s offending fits into these broad categories with the qualification that there is no evidence before the Tribunal that MJMG has committed any sexual crimes.
The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention.
The ASFIC accepted that MJMG has committed more than one offence involving violence but noted that many of his offending such as driving offences, failing to answer bail and stating a false name, are offences for which punishment was deserved but which did not involve harm to a victim. The ASFIC noted that these other offences were dealt with by the Courts by way of sanctions other than custodial sentences.
In respect of MJMG’s two convictions of Recklessly Cause Injury as an adult offender, the ASFIC noted these offences carry a maximum prison sentenced of five years under the Crimes Act 1958 (Vic) and that in 2015 MJMG received a 12-month CCO and in 2020 an aggregate sentence of 10 months’ imprisonment.
In respect of the Applicant’s two convictions of Internationally Causing Injury, the ASFIC noted the maximum sentence is 10 years, and he received three months’ gaol in 2016 and nine-months’ gaol in July 2017.
In respect of the conviction for Aggravated Burglary – person present, the maximum term provided for in the legislation is 25 years and on appeal the aggregated sentence MJMG received for this and other offences was 10 months’ prison.
The ASFIC submitted that there is no trend of increasing frequency or escalating seriousness in MJMG’s offending, and submitted:
While it is accepted that the Applicant has committed more than one offence involving violence, it is evident that the driving factor behind these offences was the Applicant’s intoxication, a factor that is no longer in play in view of the Applicant’s rehabilitation and detoxification from drugs and alcohol.
The ASFIC noted that MJMG has not had any contact with the Department, prior to the advice about the cancellation of his visa, and no prior warnings about the consequences of offending in relation to his migration status.
The Tribunal notes that there has been a thread of violent offending that has run through MJMG’s offending history, a fact he himself acknowledged. This has continued not only in the community but during his time in various custodial institutions. While the Tribunal might make certain allowances for the nature of a prison environment and might accept that some of the incidents recorded about the Applicant’s conduct would fairly be described as driven by frustration or quarrels between prisoners, there are other incidents which are more serious.
In terms of the most recent offending, before the Tribunal was a transcript of the hearing before the Magistrates’ Court in December 2019, which dealt with three instances of offending by MJMG. The first incident occurred in January 2019 involving the Applicant and a fellow prisoner, when MJMG was on remand.
The transcript in summary states that the victim was eating his breakfast. He overheard MJMG arguing with prison staff about there being no jam. He told MJMG not to argue with the staff. MJMG kicked him to the left thigh, causing a laceration. The victim fell to the ground. MJMG then jumped on the victim’s back, pinning him to the back of the head before prison staff pulled him off. The victim received a laceration below the eye, with bruising and swelling, and swelling to the back of his head.
The second incident related to MJMG driving a motor vehicle in the suburb of Richmond. Police observed the car and that its registration had expired. They stopped the car. There were six occupants. MJMG said he did not have his licence with him and gave a false name and address. Police could not find that address on their database. MJMG then gave another false name. He eventually gave his correct name and address. The records showed he had been disqualified from driving for 18 months by a Court. Police conducted a preliminary breath test which indicated the presence of alcohol. MJMG was placed in a police car for a breath test. MJMG said he was prepared to wait while the machine warmed up, then ran off down the street. The vehicle he was driving was impounded.
The third incident occurred in July 2019 where MJMG and a co-accused entered a convenience store early one morning. They waited for other customers to leave and then MJMG ran at the cashier, climbed onto the counter and through the cabling that separated the cashier from customers. The victim feared for his safety and secured himself in a room. MJMG “violently ripped out the cash drawer causing damage to the drawer and the associated cabling”. MJMG then passed the drawer through the counter area to his co-accused in the main part of the shop. They took some 40 packets of cigarettes from cabinets in the shop. The police subsequently apprehended MJMG and the co-accused with the assistance of closed-circuit television footage and the police air wing. The cigarettes were found in their possession.
The Magistrate said the attack on the other prisoner was a serious example of recklessly causing injury and, had he not been on remand and instead serving a sentence when he undertook the attack, the Court would have imposed a cumulative sentence. The Magistrate also found that the convenience store incident was a serious example of an aggravated burglary. MJMG was fined $1,000 in relation to the driving charges.
As mentioned above, the 12-month sentence imposed by the Magistrates’ Court was set aside on appeal by the County Court and a new sentence of 10 months was imposed. That does not affect, in my view, the description of the prison and convenience store incidents as representing serious offending, because they still attracted on appeal, a custodial sentence. I do not accept the submission in the ASFIC that there has not been a trend of increasing seriousness in MJMG’s offending. There clearly has been, and his accumulation of some 40 offences over a relatively short period in his adulthood has been significant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should MJMG engage in further criminal or other serious conduct and the likelihood of him so engaging.
Should MJMG continue along the offending path he has embarked upon, it is reasonably foreseeable there would be a risk to the community of further crimes against the person. In particular, the fact that some of his violence has been directly to his own mother and sisters, and another instance to a prisoner, provides little comfort that, presented with a stressful situation, MJMG would not initiate other violent conduct. His behaviour in damaging a parked car in the street, which he said was owned by a relative, gives some indication of his inability to control his aggression.
There is little before the Tribunal regarding positive evidence about rehabilitation, apart from MJMG’s own assertions. His own evidence is that he did not complete a rehabilitation course in prison because ‘I got into trouble’ and that he is currently undertaking a drug and alcohol course in detention. I do not accept the impression conveyed in the ASFIC that MJMG has been completely rehabilitated.
What is before the Tribunal is Ms Latif’s psychological report prepared for the Court (SGD, p 325). Ms Latif was of the view that should MJMG abstain from alcohol and drug use and disconnect from his current antisocial peer group and engage with professional supports, it would ‘significantly reduce’ the likelihood of him re-offending.
Ms Latif set out a comprehensive suite of treatment for MJMG, including regular psychological treatment, anger management, regular appointments with a psychiatrist, engagement with a suitable drug and alcohol treatment program, an alcohol monitoring device for at least 12-months, and heavy case management and support.
Except perhaps for the unspecific evidence that he is undertaking a drug and alcohol course in detention, there was no evidence before me that any of the other treatments suggested by Ms Latif was in contemplation by MJMG. On the contrary, the IHMS records indicate he had been, at best, uninterested in attending appointments in detention, including those designed to assess and support his mental health. Concerningly to the Tribunal, MJMG himself told the Tribunal that he might well revert to drinking after ‘a couple of months’ but his only real plan was to go home, if faced with the temptation of drinking (or, perhaps, drug taking) and that he would take up rehabilitation ‘if needed’. This ‘self-referral’ approach also reflects what he told clinicians in detention, and which is set out in the clinical record referred to earlier in these reasons.
In his oral evidence, MJMG remarked that he knew himself and that he anticipated he might stay sober for about ‘two months’ and then start drinking again. He said, if this happened, he would ‘take himself’ to rehabilitation courses. I think this is frank evidence that he doubted his own ability not to become intoxicated again, but the Tribunal has significant doubts that, in such an environment and with his history and lack of motivation to attend medical treatment either outside or inside custody, that he would have the presence of mind, and the motivation, to seek appropriate treatment. It is also significant that alcohol did not play any part in MJMG’s violent attack on a fellow prisoner, causing injuries to that person, which indicates a major challenge the Applicant has in controlling his anger and rational responses.
With this backdrop, I am unconvinced that MJMG has more than good intentions, and even those are somewhat vague. He does not seem to grasp his vulnerability to lapse into circumstances where he might re-offend. While it may be true that his paranoia is no longer present, it would seem to me that he has not squarely accepted what he needs to do to avoid falling back into stress and an environment where offending is likely. I accept the honourable intentions of his cousin, Mr ZK, and that he would be a good influence on MJMG. I also accept Ms ZV’s view that MJMG listens to Mr ZK. However, Mr ZK has his own young family obligations and his busy legal practice and, while he can provide accommodation (at least for a period) and good advice, which would be protective factors, I do not see that these match any of the comprehensive list of treatment measures Ms Latif recommended two years ago. There is no evidence that any of this list of measures is in contemplation. It is also clear to me from their evidence that Ms ZV and Ms ZS had no knowledge of their brother’s illicit drug history, and Mr ZK only some knowledge. This leads me to the conclusion that MJMG may not have disclosed much of this trigger to his conduct to his immediate family.
On the evidence before me, I consider there remains a significant risk that MJMG would re-offend, either in a domestic situation, in the wider community, or both. This primary consideration therefore weighs against revoking the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d) consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence.
The ASFIC submitted, at (paragraph 67), that it “should be noted that the violent conduct of the Applicant has also never been in the nature of family violence, or violence directed towards women, children or other vulnerable members of the community”.
Similarly, the RSFIC submitted that this consideration did not arise in this case. However, in his opening submissions, Mr Cunynghame withdrew that submission in the light of material produced to the Tribunal under summons, and said the Respondent would now contend that this submission is relevant because there is evidence of MJMG committing offences of family violence against his mother and sister.
It is significantly disturbing to me that MJMG had quite clearly not disclosed this offending history to his previous legal representatives who prepared the ASFIC on his instructions, otherwise they would not have made the submission at (paragraph 67) of that document. It is also concerning that it was when the summonsed material was returned to the Tribunal and made available to the parties that witnesses included references acknowledging MJMG’s former family violence offending towards them and their mother. There was no mention of this offending in earlier written statements from either the Applicant or certain other witnesses.
The Tribunal has reproduced extracts from relevant police reports about incidents between MJMG and his mother and his sisters above. It is not necessary for me to rely on any of those police reports which did not lead to any further action by the police or charges and while they do demonstrate a certain pattern, the Tribunal does not give them any significant weight in this consideration.
MJMG himself in evidence did not dispute the report relating to him hitting his mother around her face when she had been in the shower, to the extent she had to flee the house, ‘naked’, seek refuge with neighbours and then hospital treatment. I am satisfied that he also attacked Ms ZV with a heater, based on her evidence at the hearing, even though no charges resulted.
MJMG gave a somewhat enigmatic answer to Mr Cunynghame’s query about whether he had a ‘distaste’ for women, as the police report recorded. I do note that one of the police reports recorded him asserting that his mother’s house was “his house”, which concerns me about his attitude to the others who live there, not just his mother but his younger half-siblings, who have sometimes been present in the house during some of the events the police have been called to attend.
I am satisfied, on the evidence of his past criminal conduct, that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The ASFIC made no submissions on behalf of MJMG in relation to this primary consideration. The Respondent submitted that minor children would be ‘negatively impacted’ if MJMG’s visa cancellation is not revoked. The Respondent identified three half-siblings, born in 2005, 2011 and 2013; and five nieces and nephews.
In his written statement, MJMG spoke of his love for his half-siblings and that he cared for them when he has been living at home to help his mother. Mr ZK also gave evidence about his own three children, all of whom are minors, who MJMG would live with, at least for a period, if he was allowed to remain in Australia.
The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ. There was no such evidence before me, so I will make one determination relating to all the identified minor children, noting that the relationship between MJMG and his minor half-siblings is closer than his relationship with his nieces and nephews.
I note that paragraph 8.3(4)(a) of the Direction states that less weight should be given where the relationship between the non-citizen and the minor child is non-parental. I am also obliged to take into account the impact of the person’s prior conduct and whether that has had a negative effect on the child, or whether any likely future conduct would be likely to have a negative effect. Importantly, the Direction requires decision-makers to consider (paragraph 8.3(4)(g)) evidence that a child has been or is at risk of being subject to or exposed to family violence.

Before the Tribunal (SGD, p 181) dated November 2017, was a police report about MJMG. In this report, MJMG is referred to as ‘RESP’ and his mother is referred to as ‘AFM’. The report relevantly states:
AFM and RESP are mother and son. They live together at the family address with the one brother and three sisters. There have been three reported family violence incident[s] in the past. The most recent incident was in July 2015 (verbal only) there is one previous safety notice and full intervention order from 2015, with full conditions. This order expired in [date redacted] 2015. The AFM states that the RESP becomes aggressive and violent when he is drinking and in 2016 the RESP has assaulted the AFM and taken her vehicle only to crash it. The RESP was intoxicated at the time. The AFM states that there are up to ten unreported family violence instances in the past. The AFM is the sole care giver to her younger children as her husband passed away 11 years ago. During this incident children were present but were asleep.
On the [date redacted] March 2017, the RESP had been drinking heavily during the evening. The RESP has become aggressive and abusive towards the AFM, stating he wanted to fight her. The RESP called the AFM a bitch and saying he wanted to bash her. The AFM hid all the knives in the house as the RESP has previously threatened her with them. The AFM was so in fear that she woke her children and left the address calling police from a street around the corner from the address. The RESP smelt heavily of alcohol on police arrival. Police arrested REP in relation to outstanding warrant. The AFM has not made a statement in relation to the matter. Police believe that if the RESP is allowed to return to the address there will be further family violence. There have not been any assaults, threats or property damage from this current altercation.
(Emphasis added).
It is important to note that, apart from the reference to MJMG being arrested in relation to an outstanding warrant, no other charges emanated from this incident. However, the Tribunal takes due notice of this police report as being from an authoritative source and the references to young children being present in the house during the conduct referred to, is significantly concerning.
It is particularly disturbing to me, in respect of MJMG’s conduct, that he has committed acts of family violence in the family home while his minor half-siblings have been present. It is not clear to me from the reports whether they were physically present during the perpetration of the acts of violence, but I am satisfied on the basis of the police reports produced under summons that they were in the household at some of the times. The exposure to young children to this sort of conduct can leave deep and enduring scars on their memories and, significantly, has the capacity to imbue into young minds that this sort of conduct is acceptable, or even a ‘norm’.
Except for the fact that this family violence was not constant conduct and his sisters’ evidence was that MJMG could be well behaved when not affected by drugs and alcohol, I would weigh this consideration neutrally. While I have decided that this primary consideration weighs in favour of revoking the cancellation of the visa, the weight given is significantly diluted.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction then goes on to list specific sorts of conduct, two of which the Tribunal considers may explicitly apply to MJMG’s offending: paragraph 8.4(2)(a) refers to acts of family violence and paragraph 8.4(2)(c) relates to commission of serious crimes against women, children or other identified vulnerable members of the community, and states that ‘serious crimes’ include, relevantly, crimes of a violent nature.
As the Direction says, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR.
Therefore, while the expectations of the community are ‘deemed’ to weigh against an Applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
I consider that the evidence before the Tribunal of MJMG’s period of mental ill-health would be a factor that might slightly ameliorate the weight attributable to this consideration, because that may have been an element in at least some of his offending. However, going in the other direction, would be the persistent breaches of Court orders, the violent nature of several of MJMG’s offences including one when on remand, and the examples of family violence (including an instance where he injured his mother) in the offences of which he has been convicted.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has obligations under the 1951 Convention relating to the Status of Refugees and other treaties, namely the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.
The Direction states, at paragraph 9.1(7) that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be ‘conclusively assessed’ before consideration is given to any character or security concerns associated with the non-citizen. That obligation applying to delegates of the Respondent is also stipulated in Direction No. 75, made under section 499 of the Act. MJMG is able to apply for a protection visa in the event his visa is not restored to him, and the Tribunal is satisfied that the long-held practice of the Department not to take action to remove a detainee in these circumstances until he or she has availed themselves of that opportunity would be no different in MJMG’s case.
Direction No. 75 relevantly provides, in Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below:
1.The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. …
Nevertheless, notwithstanding that, the Tribunal has an obligation to properly consider any properly articulated claims made at this stage. The Applicant asserts that he would face personal risk if deported to South Sudan because of the long period he has spent in Australia and that he might be perceived to be ‘rich’. He also said that he does not know anyone in South Sudan, has no relatives there (that he knows of), and is not familiar with the local language.
The ASFIC also states, at paragraph 78:
If forced to return to South Sudan, there is a real risk that the Applicant will suffer significant harm on account of his ethnicity, his imputed political opinion due to his father’s past political activities or membership of a particular social group including young men at risk of forcible recruitment by armed groups in South Sudan, returnees from Australia/Western countries who are perceived to be wealthy, returnees/young people with mental health issues, which both individually and collectively gives rise to Australia’s non-refoulement obligations pursuant to the Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights, or the Convention Against Torture.
I am prepared to accept that MJMG has no relatives left in South Sudan; that was not only his evidence but also the evidence of Ms ZV and Ms ZS. I am also prepared to accept that he may be more conspicuous because he has spent more than half of his life and all his adult life in Australia, and perhaps because of his lack of fluency in the Dinka language.
The RSFIC submitted that Dinkas are the largest ethnic group in South Sudan and face only a low risk of being targeted based on their ethnicity because the Dinka-dominated government has unencumbered control over Juba. However, the DFAT Country Information Report – South Sudan (CIR), also states, at paragraph 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.
While the authoritative country information may therefore indicate the capital, Juba, is relatively safe for Dinkas, MJMG’s family is not from there but are from the central part of the country and, should he return to South Sudan and not to Juba, it would seem to me that the current situation remains volatile and could place him at some risk of discrimination and violence.
In respect of considering MJMG’s father’s historical service in the SPLM, the CIR states, at paragraph 3.25:
Individuals associated with the SPLM are unlikely to be targeted on the basis of their political opinion in areas controlled by the Government, given the Government is dominated by the SPLM. However, the SPLM is extremely fractious internally, and individuals associated with the SPLM who express alternate political opinions may be targeted. DFAT assesses that within areas controlled by the Sudan People’s Liberation Movement-in-Opposition, individuals associated with or perceived to be associated with the SPLM, face a high risk of discrimination and violence.
(Emphasis added).
It would depend on MJMG’s conduct on return whether he highlighted his late father’s active membership of the SPLM, and it would also appear to depend on precisely where he was in the country, which might lead to some risk personal to MJMG. However, section 36(2B)(a) of the Act provides that there is taken not to be a real risk of significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk of harm (for instance, Juba).
The other general claims in the ASFIC about the volatile situation in South Sudan and the famine would not invoke non-refoulement obligations because they are in the nature of general factors affecting the South Sudanese populace as a whole and not MJMG personally (see section 36(2B)(c) of the Act).
I note that previous submissions made on behalf of the Applicant (GD, p 187) submitted that MJMG is eligible for citizenship of the Republic of South Sudan but contended that he ‘currently lacks effective nationality and is therefore currently stateless’. The 1954 Convention relating to the status of Stateless Persons defines the term ‘stateless’ in Article 1.1:
For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.
Australia is a signatory to this Convention and while the Republic of South Sudan is not, the United Nations High Commission for Refugees states, in its report A Study of Statelessness in South Sudan 2017:
However, South Sudan is a signatory of the recent Declaration on the Eradication of Statelessness adopted during the International Conference of the Great Lakes Region (ICGLR) Summit in Brazzaville in October 2017, highlighting its commitment to accede to the Conventions and work towards ending statelessness in the country.
It would seem to the Tribunal, given MJMG’s declared Dinka ethnicity and his statement that his parents are from Yirol, a city in the Lakes State of what is now South Sudan, he would be entitled to citizenship of the Republic of South Sudan. Chapter III of The Nationality Act 2011 (South Sudan) relates to Nationality by Birth and section 8(1) of that Act states:
A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
Section 9 of the South Sudan Act states:
Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Tribunal accepts the uncontested evidence that MJMG is of Dinka ethnicity. Although he was born in Kenya, his submission is that his parents’ home was in, or in the vicinity of, Yirol in what is now the central part of the Republic of South Sudan. Applying section 8 of the South Sudan Nationality Act, the Tribunal considers that MJMG fulfills the criteria that he “shall be considered” a South Sudanese National under the law of that country.
The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011. It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
I therefore do not accept the submission that MJMG is currently ‘stateless’ within the internationally accepted meaning of that term, though I accept that he may need to undertake administrative procedures to secure proof of the South Sudanese citizenship to which he is legally entitled.
Many of MJMG’s concerns about returning to South Sudan seemed to be broad-based and not particularised. While the Tribunal might accept he would be concerned about not knowing anyone, what employment prospects he might have and his lack of fluency in the Dinka language, these particular expressed views do not in my mind rise to the level that would invoke Australia’s non-refoulement obligations.
The Tribunal concludes that, taking all the evidence into account, this consideration weighs very slightly in favour of revoking the mandatory cancellation of the visa, because of MJMG’s late father’s active military service, which might be known and which might lead to a perception of an imputed political opinion on the Applicant. That could amount to a personal risk of harm.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments MJMG may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
The Tribunal accepts that MJMG may be generally familiar with the culture of South Sudan because he has grown up in a South Sudanese family in Australia and has many South Sudanese expatriate extended family members here. He would seem to me to face a language barrier because of his lack of fluency in Dinka, noting he is fluent in English which is the official language of the Republic of South Sudan.
His health would seem, on his evidence, and on the medical records before the Tribunal to be good, noting that he is on a prescribed dosage of Olanzapine, which the Tribunal understands is an antipsychotic medication. There is no material before me on whether that drug would be readily available to MJMG in South Sudan. The CIR records, at paragraph 2.17, that “South Sudan’s population has extremely poor access to health care” and records that the Department of Foreign Affairs and Trade understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation. Noting that this was written in 2016, I am satisfied that this medication may not be accessible to the Applicant, which would have a direct and deleterious effect on his mental health.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of MJMG’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker. In this respect, the evidence of the Applicant’s sisters, Ms ZV and Ms ZS is relevant.
I take into account the expressions by both Ms ZV and Ms ZS that they want their brother to remain in Australia, and particularly what I consider was the heartfelt remark of Ms ZV in her evidence that they had already lost one brother and deportation of MJMG would effectively see them ‘losing’ another. I consider that these remarks are appropriately considered under the following consideration in the Direction, relating to the links with the Australian community. Given that there is a primary consideration directed at considering instances where a non-citizen has committed acts of family violence, and given that MJMG has on the facts committed such acts against his sisters who have given evidence, it would seem to me perverse to give weight in favour of the Applicant under this consideration in this case.
Consequently, this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
The strength, nature and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider the impact of the decision on MJMG’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long MJMG has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.

MJMG was aged 10 when he came to Australia. He has therefore spent more than half his life in this country, and all his adult life. He has made some contribution to Australia through periods of employment and has played sport here and attended church with his family. He did not begin offending until he had been in Australia for some eight years, but notably his offending began on the cusp of adulthood, and has continued relatively consistently since then, apart from periods in custody.
It was clear from the evidence of Mr ZK, Ms ZV and Ms ZS that they would be affected if MJMG was deported, and that the effect on the family is amplified because of the awful circumstances of the murder of the Applicant’s brother early last year, which leaves him (because of the death of his father some years before), as the oldest male in the immediate family. I accept this carries with it a cultural role and certain familial expectations. MJMG’s brother’s murder occurred while he has been in custody and he was unable to attend the funeral, which I accept was particularly heart-breaking for him, and added to the general devastation the family must have felt.
Given this situation, and the apparent lack of any relatives in South Sudan, this sub-consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
There was scant evidence before me relating to MJMG’s employment history. He said that he commenced an apprenticeship in carpentry but abandoned it ‘after about six months’ after absences and ‘getting into trouble’. Whilst I do not interpret the wording of paragraph 9.4.2 to preclude an assessment of the effect on business of a non-citizen departing Australia where that does not compromise a major project or important service, this would seem to me to be the general prism through which decision-makers should see this sub-consideration. On the evidence before me, I find that this sub- consideration is not relevant.
However, I conclude that this consideration overall weighs in favour of revoking the mandatory cancellation of the visa because of the general effect MJMG’s removal would have on his immediate family.
CONCLUSION
The Tribunal has found that the primary considerations relating to protection of the Australian community, conduct constituting family violence, and the expectations of the Australian community all weigh against revoking the mandatory cancellation of MJMG’s visa. The remaining primary consideration, the best interests of minor children in Australia, weighs slightly in his favour but, for the reasons outlined above, not significantly so.
In respect of the other considerations in the Direction, the Tribunal has found that international non-refoulement obligations weigh very slightly in favour of the Applicant, the consideration relating to the extent of impediments if MJMG is removed weighs in his favour, the consideration relating to impact on victims weighs neutrally, and the consideration concerning links to the Australian community weighs in his favour.
The Tribunal is not confined only to consider those considerations stipulated in the Direction and can consider any other claims which it considers are properly relevant to the principles of the Act, however, it has not identified any in this particular case. The Tribunal is also required, in performing its task, to weigh all the considerations cumulatively and to keep in mind that any consideration may carry enough weight to enliven the discretion provided for in the Act.
In this matter, the Tribunal finds that the weight of those considerations which do not support revocation of the mandatory cancellation of MJMG’s visa are determinative, and finds that the discretion in section 501CA(4)(b)(ii) of the Act is not enlivened. The correct and preferable decision is therefore to affirm the decision under review.
DECISION
The Tribunal decides under section 43(1)(a) of the AAT Act to affirm the decision under review.

202. I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

.........[sgd]...............................................................
Associate
Dated: 26 May 2021

Date(s) of hearing:

13 and 14 May 2021

Applicant:

Self-Represented Applicant

Advocate for the Respondent:

Mr Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2021] AATA 1486

26 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	13 and 14 May 2021
Applicant:	Self-Represented Applicant
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers