Monydeng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 363

Monydeng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 363 (12 January 2022)
Division:GENERAL DIVISION
File Number:2021/7923
Re:Botros Mathew Sero Monydeng
APPLICANT

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:12 January 2022
Place:Adelaide

The decision under review is affirmed.
...........................[Sgnd]................................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa under section 501CA(4) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – risk of harm to the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
12 January 2022
INTRODUCTION AND BACKGROUND

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (formerly the Minister for Home Affairs) (the Respondent) made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 21 October 2021, not to revoke the mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian visa (the Visa).
The hearing was held on 4 and 5 January 2022. The Applicant was represented by Maker Mayek of Mayek Legal, Barristers and Solicitors and the Respondent was represented by Cameron Retallick of Australian Government Solicitor.
The Applicant gave evidence from detention in Adelaide Immigration Transit Accommodation by Microsoft Teams. His evidence was confusing in many instances. He was often a poor historian. Some of his accounts of events and explanations were somewhat implausible. I will give examples in due course. In general terms, I agree with the observations of Dr Glowinski, expressed in his report of 22 December 2021:
“Mr Monydeng spoke superficially about problems arising from past alcohol use. This left me uncertain about the depth of insight into this issue.
Mr Monydeng was a generally vague historian. He was particularly poor with temporal sequencing. His account was often difficult to follow as he moved between time-frames fluidly and without explanation.”[1]
[1] Exhibit X, p 27.
The Applicant called his 27-year-old half-sister, (A), who gave evidence by Teams. She presented as a truthful witness who tried her best to assist the Tribunal. To the extent that her evidence and that of the Applicant diverged, I consider her evidence to be more reliable.
The Applicant also call Mr Richard Balfour, clinical psychologist. Mr Balfour met the Applicant first on 22 November 2019 for the purposes of a pre-sentence psychological evaluation. He spoke with him again for a follow up report on 23 November 2021. He produced two reports dated 27 January 2020 and 5 December 2021. He gave evidence by telephone on 5 January 2022.
The Applicant also submitted a psychiatric report from Dr Remy Glowinski, dated 22 December 2021. This was based on a telehealth examination conducted on 14 December 2021. He was unfortunately not available to give evidence to the Tribunal, but his report was admitted.[2]
[2] Exhibit 3.
The Applicant was born in Khartoum, Sudan. He is 32 years of age. The question of his current citizenship is not without controversy.
On 22 December 2021, the Tribunal requested the parties to file further submissions addressing:
(a)whether the Applicant is able to be returned to both South Sudan and Sudan, or whether the Applicant is able to be returned to one of the two, and if one, which one and why; and
(b)non-refoulement obligations based on the response to paragraph (a) above.
These submissions were forthcoming, extensive, and helpful.
When the Applicant was born, he was clearly a citizen of Sudan. When he came to Australia in January 2009 that remained the case. What had formerly been Sudan, was divided and a new state of South Sudan emerged on 9 July 2011.[3] Whether the Applicant is a citizen of either, both, or neither country, is relevant to the proper application of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Applicant has expressly raised the issue of refoulment. There is also the question of the proper consideration of the impediments to which the Applicant would be subjected if removed.
[3] Exhibit 6.
It was ultimately agreed by both counsel, that notwithstanding ongoing territorial disputes between the two countries, the Applicant would, by reason of his ancestry, be entitled to obtain South Sudanese citizenship.[4]
[4] Exhibit 13.
The Respondent provided the Tribunal with a copy of the Sudanese Nationality Act 1994 and its amendments of 2011 and 2018.[5]
[5] Exhibit 12.
This Act relevantly provides in a 2011 amendment:
“Revocation of nationality
10(1) The President of the Republic may decide to revoke Sudanese nationality from any Sudanese national by birth of complete capacity who has attained the age of majority, if it is proved that:-
(a) he made a declaration renouncing his Sudanese nationality provided that the President of the Republic may reject such declaration if it was made during any war which Sudan participated in, or;
(b) he joined the service of any foreign country or continued in such service contravening any express provision of any law incriminating such an act.
(2) Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
(3) Without prejudice to Section 15, Sudanese nationality shall be revoked where the Sudanese nationality of his responsible father is revoked in accordance to section 10(2) of this Act.”
It was submitted that by the Respondent and conceded by the Applicant, that by reason of the Applicant’s de facto or de jure South Sudanese citizenship, he was no longer a citizen of Sudan. I am satisfied that he is therefore a de facto or de jure citizen of South Sudan. He is not a citizen of Sudan.
The Applicant is part of the Dinka ethnic group and he is a Christian.
When the Applicant was 1 year old, his parents separated. He had 3 older sisters, but they all died very young. He knows little about them and never met them. His mother remarried and has had 4 daughters and 3 sons with his step-father. They are aged between 13 and 30 years of age. Two are minors. He has a half-sister aged 13 (Child C) and a half-brother aged 17 (Child D). The Applicant has a close relationship with his mother but is not so close to his step-father. He confirmed this in his oral evidence. He told an assessing psychologist, Richard Balfour in November 2019, that his step-father “did not treat him like a son. He only has contact with his step-father when he visits his mother “.[6] He made quite a different report to Mr Balfour on 23 November 2021 when he said that “he continues to enjoy a good relationship with his stepfather”.[7] He has a good relationship with his half-siblings. It seems that his mother and step-father are separated.[8]
[6] Exhibit 8, G12, p 80.
[7] Exhibit 2, p 5.
[8] Evidence of the Applicant.
The Applicant attended school in from the age of 5 in Sudan. It seems that he started working at the age of 11 and at the age of 14 volunteered as a child soldier. He said that by volunteering he avoided conscription and the dangers of being placed in a war zone. He did this without telling his family. His mother at least, was left thinking that he had been abducted by the Islamic Militia in January 2004. She was not aware of what had happened to him for some time. His explanation of this whole episode was difficult to follow. He basically said that his parents would not let him make decisions for himself, so he chose to take matters into his own hands. He remained in the Sudanese Army for three years. He did not see front line service. Contrary to the history in Mr Balfour’s 23 November 2021 report, he had only 8 years of formal schooling, not 12. He left school at the age of 12.[9]
[9] Exhibit 8, G12, p 79.
When he was aged 15, his family moved to Egypt.
On 21 December 2004, the Applicant went on 3 weeks leave from his military service. He travelled to the north of the country. He destroyed his military ID, as he feared being involved in armed conflict if he returned to the military. He went south for the first time with his grandmother, for 3 months. He returned to the north, lived with his grandmother and an uncle. He did various jobs and at some point, he obtained driving work with the Red Cross and the United Nations.
When the Applicant was 18, he got into trouble with local Muslim authorities for being intoxicated with alcohol. He was imprisoned for 3 days and was given 60 lashes. The Applicant has continued to have serious issues with alcohol, but he denies having used cannabis or other illicit drugs. Alcohol abuse is a common thread running through the Applicant’s history of offending. The Applicant states that he realised he had a serious alcohol problem and in 2017, stopped drinking. He did this by himself, without any professional help, although he did discuss this on an ongoing basis with his general practitioner. He has never sought or had professional treatment for his alcohol problem. A relapse in his abuse of alcohol occurred in mid-June 2019. This precipitated a period of about a month during which the Applicant committed the serious offences for which he was ultimately sentenced to imprisonment for a term of 3 years and 6 months. It was this sentence that caused the cancellation of his visa.
In 2005 the Applicant’s mother and her new family moved to Australia as part of a refugee programme. In 2006 the Applicant’s father died, but he does not know much about the circumstances. He had met him for the first and only time that he can recall a few weeks before this.
On 10 January 2009, when he was 19, the Applicant came to Australia. He was sponsored by his mother. He joined his mother, stepfather and step-siblings. When he arrived, he did not speak English. He took language classes for 3 months and otherwise picked up the language through use. He is fluent in Arabic and Dinka.
He reported to Mr Balfour on 22 November 2019 that he lived with his family for a period of 6 months after he arrived and that he has lived away from his family since then.[10] This was contradicted by A. She said that he had lived with them for 5 years after his arrival in Australia. I accept her evidence. This also means that the Applicant was living with his family, or at least not with his former partner, for most, if not all of the duration of his relationship with her.
[10] Ibid.
The Applicant has had a number of jobs since arriving in Australia. He has generally been employed. He has worked in a meat processing plant, as a seasonal fruit picker, a labourer in construction work, a removalist, a fork-lift driver, a roof installer and as a process worker in a chicken factory. He has had periods between jobs on Centrelink payments. He had hopes of establishing a labour hire business employing Sudanese workers. Whether this actually occurred is the subject of conflicting statements in the two reports from Mr Balfour. Based on the Applicant’s oral evidence, this was still a work in progress before he was incarcerated. This is another example of the Applicant having given inaccurate information to Mr Balfour. This is relevant because Mr Balfour’s assessment of the Applicant’s mental health is largely based on the Applicant’s narrative.
The Applicant had a partner for about three years, between 2011 and 2014. It is unclear if they ever lived together, given A’s evidence. This relationship produced two children. The Applicant has a son who is now 9 years old (Child A) and a daughter who is now 6 years old (Child B).[11] His partner left him because of his alcoholism. The evidence from the Applicant regarding his relationship with his former partner and his children was vague, and in parts, self-serving.
[11] Ibid, G7, p 53.
OFFENDING HISTORY
According to South Australia Police Department Apprehension Reports and Detailed Occurrence Reports, (SAPOL Reports) the Applicant has an extensive criminal history, commencing shortly after he arrived in Australia.
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined below and at Annexure B.
The Applicant’s offending commenced on 26 December 2009, less than 12 months after his arrival in Australia.[12] His interactions with police continued with some regularity. The Applicant’s conduct in 2010 and 2011 involved repeated offences relating to misuse a motor vehicle, in particular drink driving offences. Offences of this type are not trivial and potentially expose innocent members of the community to serious risk of injury, or even death. The Applicant’s most serious offending occurred over a period in June and July of 2019. Exactly what precipitated this period of serious offending is somewhat mysterious and contributes to making the assessment of the future risk of offending difficult.
[12] Exhibit 9, G25, p 418.
On 26 December 2009, the Applicant was stopped by police and found to be driving with a PCA of 0.127. He was disqualified from holding a driver’s licence for 6 months.[13]
[13] Ibid, pp 223-226, p 418.
On 31 December 2009, the Applicant was convicted of driving under disqualification or suspension and giving a false or misleading personal detail to an officer.[14]
[14] Ibid, pp 228-231.
On 9 May 2010, the Applicant was apprehended by police for loitering and disorderly behaviour. He was abusive to police. He was intoxicated. He was fined and ordered to pay costs, but no conviction was recorded.[15]
[15] Ibid, pp 234-237.
On 5 August 2010, the Applicant ran a red light at an intersection. He was found to have a PCA of 0.165. He was driving unlicensed. He was convicted on all charges, fined and prohibited from holding a driver’s licence for 3 years commencing 11 pm on 5 August 2010.[16]
[16] Ibid, pp 240, 417.
On 8 December 2010, the Applicant collided with the rear end of a stationary vehicle at an intersection. He failed to stop and exchange particulars. He was subsequently found by police, stationary, behind the wheel of his car, at an intersection. Police observed that he was “grossly intoxicated and non-responsive to Police or Ambulance members. [The Applicant] was subsequently conveyed to the Lyall McEwin hospital for treatment, at which time he regained consciousness. [Police] formed the opinion that [the Applicant was so much under the influence of alcohol drugs that he was unable to exercise effective control of the vehicle”.[17] A blood sample was taken but, luckily from the Applicant’s perspective, it was subsequently found to have been “denatured and unsuitable for analysis”. He was convicted of driving without due care (basic offence), failing to stop and give particulars to a person at a crash scene, drive under the influence, and drive disqualified or suspended. He was sentenced to one month’s imprisonment commencing on 28 November 2011.[18]
[17] Ibid, p 247.
[18] Ibid, pp 244-248, 415.
On 15 September 2011, police at Murray Bridge observed the Applicant walking in the middle-of-the-road in the direction of traffic prior to entering adjoining park lands. Police spoke to the Applicant and requested that he provide his personal particulars. Despite being requested to do so on number of occasions, he did not cooperate and became verbally abusive towards police. He was arrested and given expiation notice for the offence of staying on a road longer than necessary when crossing.[19]
[19] Ibid, p 252.
On 8 November 2013, the Applicant was at a friend’s house with some other people. He threw a kettle through the front window and a bottle of Jim Beam liquor through lounge window, smashing both. He was interviewed by police at the scene, and he was reported for property damage.[20] The Applicant said in evidence that he did not recall this.
[20] Ibid, p 256.
On 10 January 2014, the Applicant was a passenger on a public transport bus. The driver of the bus asked him where he was wanting to go, and the Applicant said to Henley Beach. The driver advised him that the bus was only going as far as the Paradise Interchange. At this point:
“…the male became very abusive and aggressive, shouting and yelling out at him. [The driver] states the male began swearing at him, shouting “YOU WHITE CUNT” and then shouting “I SHOULD MURDER YOU!” at the same time as walking to the front of the bus.
…[The driver] states once the male got to the front of the bus, adjacent to the driver’s seat, the male then punched at [the driver]. At the time, the lights on the interior of the bus were turned off. The male punched, hitting a clear plastic security screen, which protects the driver from violent passages. [The driver] states the male did not appear to notice the screen prior to punching it, and after hitting it, appeared to get angrier, then punching the screen another two times, each time successively harder.
[The driver] states the male then used his hands to grab the side of the screen and tried to pull it off, but was not successful.
At this time, [the driver] had arrived at the Paradise Interchange, and suggested that another waiting bus would be the one the male wanted. The male got off, and as he did, kicked and punched the flood and door of the bus. [The driver] states he closed the door to the bus once the male was off, and saw the male again punch the front door of the bus.
[The driver] states he was extremely frightened, and feared the male was going to break through the safety screen. He felt an imminent danger of being seriously injured.
……
At about 11:50 p.m. Friday 10th January 2014 Police, …, responded to a request via the Adelaide Metro radio channel to an assault in progress at the Paradise Bus Interchange. On arrival, police located the Sudanese male sitting at the Interchange. Police spoke with the male, the accused in this matter, also making enquiries with the victim in relation to this matter.”[21]
[21] Ibid, pp 262-263.
The Applicant was arrested by police and taken to the Holden Hill Police Station. The report says that he was “grossly affected” by alcohol.
The Applicant said of the incident at the time:
“…stated he did not know how he got to the bus interchange. He stated he was waiting for a bus, and had not done anything wrong. He states he had not talked to anyone prior to police speaking to him. He stated he had walked to the interchange from his mate’s house, which he states is not far from interchange. He states he had not caught any bus prior to speaking with police. He stated he did not punch the driver of the bus. He states he caught a bus to HOLDEN HILL in the morning and has been there all day.”[22] ( p 260 -266)
[22] Ibid, p 263.
This was put to the Applicant. He could recall being dropped off at home after this incident but could recall nothing of it.
In 2014 the Applicant was the victim of a knife attack and shooting. The Applicant’s account of this event is that the perpetrator of the offence was a person unknown to him and that there was no obvious reason for the attack. According to his account, he was walking along minding his own business when a man came running from behind him and aggressively pushing him out of the way. He fell to the ground. The Applicant then exchanged some angry words with the man. The man then pulled out a knife and stabbed him on the left side of the head. The man then ran off. The Applicant then walked back to his house. When he arrived at his house the same man returned and shot at him with a sawn-off shot gun from a distance of about 1.5 metres. The Applicant was admitted to the Royal Adelaide Hospital for treatment for three weeks. Some of the shotgun pellets remain embedded in his face. He has otherwise made a complete recovery from physical injuries.

There was a further incident in 2014. When he became involved in an assault with Sudanese man who bit off the top half of his lower lip. He required reconstructive surgery. The Applicant states that he does not know why this man bit his lip off.[23]
[23] Exhibit 8, G12, p 90.
In his consideration of these incidents of violence perpetrated against the Applicant, psychiatrist, Dr Remy Glowinski, in his report of 22 December 2021 says:
“..I have concerns about Mr Monydeng’s repeated involvement in violent interactions. While he has come off second best in these altercations, I’m not sure I accept his account of repeatedly being an innocent and unprepared victim.”[24]
[24] Exhibit 3, p 37.
It was around this time in August or September 2014, that the Applicant’s relationship ended with his partner of three years. At that stage they had a son, and she was pregnant with their daughter. According to A, the former partner cut off the whole family entirely, even on social media. The relationship has never been restored.
Police records indicate a telephone conversation with his former de-facto partner on 10 February 2015 at 13:00 hours. It states as follows:
“[The victim] advised that while she hasn’t been recently assaulted by [the Applicant] she is constantly in fear that he’ll show up at her home and cause problems. When she receives messages/calls from [the Applicant] that she finds concerning she will leave with her son and go and stay with her parents. She advises that he is of Sudanese descent and is very tall and strong, she doesn’t believe she would be able to physically stand up to him. She broke up the relationship around August/September last year (about 5 to 6 mths ago), this was due to his erratic and unpredictable behaviour, he also drinks heavily. She is pregnant to [the Applicant] and is due on 8/4/15 however she is booked in for a caesarean on 25/3/15. At this stage [the Applicant] doesn’t want the unborn child to have his surname, indicating to [the victim] that he doesn’t want anything to do with the child. She is undecided about the unborn childs surname, although she is keen to give the child a family name suggested by his family out of respect for his culture. In relation to the child they have together,… [the Applicant] hasn’t seen him for about 3 months. The contact has been very intermittent and as a result the boy doesn’t recognise him, he is often scared of his father and she believes it is because of his appearance, he has very dark skin complexion… When their son was about three months ago he had thrown a plate of food across the room and has punched holes in walls. It doesn’t appear that at this time [the victim] would have grounds for an Intervention Order however at this time she is not seeking an Order.”[25]
[25] Ibid, p 295.
This was put to the Applicant in his evidence. He agreed with the truth of all but the passages in bold. It seems unlikely that the Applicant’s former partner would have bothered to report the un-bolded passages alone to the police. It is difficult to see what her motivation could have been to contact police with false complaints. If she was seeking to falsely cause real trouble for the Applicant, she could have accused him of assault. She did not do so. Her complaints have the ring of authenticity about them. They are not helpful to the Applicant.
On 19 April 2015, the Applicant was issued with an expiation notice in respect of making a turn at a red traffic arrow.[26]
[26] Exhibit 9, G25, p 414.
On 2 August 2015, the Applicant again came to the attention of police, this time in the early hours of the morning in Hindley Street Adelaide. The report says:
“At about 01:10 AM on Sunday 2nd August 2015 Police… were on uniform mobile patrol in ADELAIDE, when as a result of a radio tasking attended outside Kalabash Cocktail Bar and Club Lounge, 279A Heidi Street, in relation to the disturbance.
On arrival Police spoke with security of the club that stated that a male had tried to enter he was intoxicated and in possession of a bottle of liquor. When he was refused entry he began yelling at security.
Police spoke to the male, the accused, who was a short distance from the front door of the club and obtained his details.
Police located an open bottle of liquor in his possession in contravention of the dry zone in the ADELAIDE CBD.
The accused then began to swear at Police using the word fuck on several occasions. He was also waving his arms around and grabbing the arm to Police as they attempted to push away when he continued to encroach on their space.
The accused was arrested at about 1:18am and was placed into the rear of the awaiting Police caged vehicle and given his arrest rights.”[27]
[27] Ibid, p 268.
The Applicant is noted as having refused to answer any questions.[28]
[28] Ibid.
On 23 December 2016, there is a report of the Applicant verbally abusing his former de-facto partner at the Colonel Light Hotel in Currie Street Adelaide:
“Victim and suspect are ex partners. They were in a relationship for 3 years. Have two children together… Victim has not seen the suspect for approx 2 years since they had children. Victim was with a friend at the COLONEL LIGHT HOTEL on the balcony when the suspect approached her and started yelling, swearing and screaming. Other patrons at the hotel had to intervene and calm the suspect down until the victim could leave the hotel. Nil offences.”[29]
[29] Ibid, pp 297-302.
This was also put to the Applicant. He agreed that there was an unplanned meeting at the hotel on that day. According to him, his former partner had told him earlier in the day that it was not convenient for him to see the children that day. It was apparent that the Applicant was surprised to see her at the hotel. He did not expect to see her out. He denied the passages in bold ever happened. Again, if they did not occur, what was the point of her making the complaint?
On 6 January 2017, police records contain an entry regarding a telephone call from the Applicant’s former de-facto partner. This records as follows:
“She advised that [the Applicant] called her numerous times after this incident[30] about 20 or 30 times, but she didn’t answer his calls. [The Applicant] does not know her current address and is only in contact via phone once every 1 to 2 months. He has had no access with the children… and… advised she stayed with her parents when pregnant with [Child B] as she was scared of [the Applicant] whom she describes as an alcoholic who takes no responsibility for his actions. She advised [the Applicant] has never been physically violent towards her, but is threatening and harassing. [The former de-facto partner] said she had not physically seen [the Applicant] for nearly two years before this incident, and said she left him when it became obvious that he had chosen “alcohol over his family”. [The Applicant] pays $14 a fortnight in child support and refuses to sign [Child B’s] birth certificate. He has no contact with [the former de-facto partner) family or friends. [The former de-facto partner) moved to her current address 5 months ago and feels safe.”[31]
[30] Presumably 23 December 2016.
[31] Exhibit 9, G25, p 300.
This was also put to the Applicant, who in his evidence in chief had made the unsolicited comment that he had signed both the children’s birth certificates. It emerged later in his evidence that there was a dispute about naming his daughter and there had been some issue about signing a form. Whether or not it was a birth certificate form, remains unclear.
On 10 January 2017, the Applicant went to the front counter of a BP service station at Welland holding a screwdriver in his right hand. He asked for cigarettes. He stated that he had no money. Police attended shortly afterwards and saw him holding a screwdriver in his right hand. These events were confirmed by CCTV. The Applicant stated “that he left his house to go see a friend, he didn’t know why he went to the service station he was just acting on instinct. He picked up the screwdriver from a house behind WELLAND it was in a bin in the front yard. He saw a lion and ran away, he had the screw driver as he wanted to be safe he had no other reason for having the screwdriver. He went to the service station as there was people there and he wanted to be safe.”[32]
[32] Ibid, pp 272-273.
In his evidence, he gave a different account. He said that he found the screwdriver outside, picked it up and went in to see who it belonged to. He later conceded that he wanted cigarettes but denied having not been prepared to pay for them.
The Applicant was convicted of carrying an offensive weapon and placed on a good behaviour bond for six months. The records do not say if there was a plea.[33]
[33] Ibid, p 414.
In about mid-June 2019, the Applicant stated that his car had been impounded due to an accident. He had to pay over $800 to get it released. His course of study had been suspended, pending the 2019 Federal Election. He was feeling that he had suffered a setback. A friend came over to his house with a 4-litre wine cask and persuaded him to have a drink. After that he did not drink again, but he has no real independent recollection of his conduct and offending over the next month or so. On his account, this is much more serious that having lost memory after a night of heavy drinking. He stated that he had lost a month or more. It is difficult to know what to make of this episode. It is also inconsistent with his report of events to Mr Balfour.[34] Did he just go on drinking for a month, but he has forgotten? Did he suffer some other psychological/ psychotic episode? Is the inconsistency a product of being a poor historian? Whatever the answer may be, this underscores the potential seriousness of the consequences if the Applicant ever consumes alcohol. He accepts that his offending was captured on CCTV. He was legally represented and ultimately entered guilty pleas to several charges. The issue of mental competence was not raised. This also invites caution in accepting the diagnosis of mental illness by Mr Balfour based on a changing history.
[34] Exhibit 8, G12, p 88.
On 14 June 2019, the Applicant was a suspect in a case of dangerous driving. He did not respond to police enquiries and there was insufficient evidence to proceed with charges.[35]
[35] Exhibit 9, G25, pp 400-409.
On 16 June 2019 the Applicant was involved in illegal use of a motor vehicle and theft. The occurrence report dated 17 June 2019 states:
“BETWEEN 1700 HRS AND 2200 HRS ON 16/06/19 UNKNOWN PERSON/S HAVE BROKEN INTO VICTIMS VEHICLE BY SMASHING THE REARS DRIVERS SIDE WINDOW. OFFENDERS HAVE THEN BROKEN THE STEERING AND MOVED THE VEHICLE DOWN THE STREET. APPROX $1000 WORTH OF DAMAGE DONE. OFFENDERS HAVE STOLEN BOOKS AND VICTIMS INTERNATIONAL DRIVERS LICENCE VEHICLE IS A SILVER FORD SEDAN REGO NO….
……
At about 12.50am on Monday the 17th of June 2019, Police… were on mobile uniform patrol when tasked to attend Grange Road WEST HINDMARSH in relation to a reported stolen vehicle, a 2007 silver FORD Falcon XT sedan SA registration… that had been located by the victim.
On arrival the vehicle was observed parked out the front of… The victim was sitting inside the vehicle. Body Worn Video was activated and is available. Police spoke to the victim and obtained his version of events. Police observed extensive damage to the steering wheel and smashed rear window.
Whilst police were investigating the scene,… went to number 13 to question the resident as to whether they had seen anything. [The Applicant] answered the door and stated that he had taken the vehicle.
[The Applicant] allowed police into his premises where various items identified by him as being taken from the vehicle were located. These items included a mobile phone charger and an electronic switch.
Police subsequently arrested [the Applicant] for illegal use of a motor vehicle and theft. Given his arrest rights, interviewed on body worn video and conveyed to the Port Adelaide Police Station where he was charged.
The vehicle was towed for repairs as it was not drivable due to the damage caused to the steering wheel. The victim and tow trick driver contaminated vehicle.
The identity of [the Applicant] was confirmed via police systems,… and Photographic South Australian Drivers Licence number…”[36]
[36] Ibid, pp 303-304.
On 4 July 2019, the Applicant was at the Findon shopping centre where he was described as being “aggressive, swearing and yelling at people and armed with a pole”.[37]
[37] Ibid, pp 322-334.
On 8 July 2019, the Applicant again moved a vehicle and damaged it.
On 14 July 2019, the Applicant, wearing a hoodie, stole a portable refrigerator valued at $1500 from a front veranda. This was captured on CCTV.[38]
[38] Ibid, pp 335-348.
On 14 July 2019, the Applicant damaged a public phone box on Port Road, West Hindmarsh, by smashing the inside of the box with a large metal pole.[39]
[39] Ibid, pp 349-365.
On 16 July 2019, the Applicant entered a service station on Port Road carrying a plastic bag and a timber pole. The Detailed Occurrence report says:
“At about 0725 hrs on Tuesday 16th of July, an unknown male has entered OTR service station, WELLAND, holding a stick/bat. The male has approached the console operator/victim,…, and demanded cigarettes while holding the stick/bat, which the victim handed over the counter. The male has then taken a single packed of cigarettes ($20.90), a small bottle of coke ($4.99), a load of bread (2.29) and eggs (3.00) before decamping from the store on a bicycle.
Nil injuries, nil permission, CCTV obtained, statement obtained.
Items stolen $31.18.
…
At about 0723 hrs on 16/07/2019 the victim/witness in this matter,… was working as a store attendant at Caltex West Hindmarsh when an unknown male has entered the store and taken bars of chocolate. The male has then approached the front counter where the victim was standing behind and has taken more bars of chocolate. (4 x Cherri ripes and 1 x snickers bar)
The male has asked for 1 x packet of cigarettes, however the victim said that he will need to pay for it. The male has raised his stick in his left hand and held it to his side whilst looking at the victim and said “I don’t want this to go far”.
The victim felt threatened at this point but refused to hand over the cigarettes. The male has walked away with the chocolates and before leaving the store has taken a Red Bull Peak Hat from the stand.
In total the five chocolate bars and one peak hat had been stolen.
Nil permission.”[40]
[40] Ibid, pp 366-387.
On 11 August 2019, the Applicant was arrested for a breach of bail.[41]
[41] Ibid, pp 388-399.
There was a successful application for estreatment of bail on 16 September 2019.[42]
[42] Ibid, p 413.
On 19 September 2019, Yatala Labour prison records state:
“Prisoner became agitated and verbally abusive towards officers while he was being strip-searched yesterday. Prisoner was explained his behaviour will not be tolerated and if he wished to remain in F Division he needs to adjust his attitude. Prisoner did not acknowledge officers and returned to his unit.”[43]
[43] Ibid, G24, p 173.
On 5 October 2019, Yatala Labour Prison records state:
“…[the Applicant] was rude and very verbal when asked if he could move away from the viewing panel, when I was doing the count. I warned him that this sort of behaviour will end with him getting a charge to his regime he said “what ever”.[44]
[44] Ibid, p 172.
On 11 November 2019, Yatala Labour Prison records state:
“The prisoner was warned today about his attitude and behaviour to Officers. The prisoners laundry did not return today and blamed Officers for this. He was warned that his behaviour was not acceptable.”[45]
[45] Ibid, pp 170-171.
On 22 December 2019, Yatala Labour Prison records state:
“Prisoner has been warned on several occasions not to let his jeans ‘ride low’. Yesterday he was warned again and retorted, ‘I know I’m not in the Bronx!’ Today, when warned, due to the jeans riding almost below his buttocks, he became belligerent and aggressive. Prisoner has been told that another episode, and his jeans will be removed”.[46]
[46] Ibid, p 170.
On 9 April 2020, Yatala Labour Prison records state:
“…I approached prisoner… and asked why at the end of the day he was in the prisoner mess area, common practice is to wait by the rail until tools are called correct as per induction process. He stated he is not waiting as it is already 2.30, I reminded him of the process in place. He became verbally aggressive with me, I explained this will not be tolerated as per his induction. As a result prisoners pay was dropped to basic for the day and situation will be monitored.”[47]
[47] Ibid, p 168.
The Applicant was asked in evidence whether he had had altercations or arguments with prison officers, he denied that this had been the case.
On 27 July 2020 the Applicant was convicted and sentenced for multiple offences occurring between 16 June 2019 and 16 July 2019. These are set out below:
“Commit theft using force (aggravated offence) – 16/07/2019
Commit theft using force (aggravated offence) – 16/07/2019
Basic offence: dishonestly take property without consent – 13/07/2019
Carry visible offensive weapon in a school or public place – 04/07/2019
Disorderly behaviour – 04/07/2019
Damage building or motor vehicle (not graffiti or unknown) – 08/07/2019
Drive or use motor vehicle without consent – 08/07/2019
Drive or use motor vehicle without consent – 16/06/2019
Basic offence: dishonestly take property without consent – 16/06/2019
Damage property not building or M/V (not graffiti or fire) – 14/07/2019”[48]
[48] Ibid, G25, p 411.
In his report of 27 January 2020, Mr Balfour notes the following:
“With the assistance of a structured, supervised rehabilitation program, I believe that Mr Monydeng’s prognosis to cease offending is fair (i.e., on a prognosis rating scale or poor, fair, and good) for the following reasons:
1. He suffers from an unresolved Post-Traumatic Stress Disorder, and has never received optimal treatment. I believe that he would benefit from optimal psychological therapy for his trauma, and this would improve his ability to generally function and to make sound decisions.
2. He does not have an entrenched prior offending history, and he does not exhibit offender versatility. His general criminogenic profile is in the moderate range of risk. He is remorseful regarding his current offending behaviour.
3. I believe the types of psychosocial problems that have contributed to his offending behaviour are situationally specific and would respond to strict community supervision and assertive case management. I note that he has never had the opportunity to participate in community supervision before.
4. He does not suffer from any comorbid psychopathology that would complicate his rehabilitation, or predispose him to further offending behaviour (i.e., Antisocial Personality Disorder, et cetera).
5. He has demonstrated that he is capable of making positive changes in his life and overcoming problems. For example, he developed alcoholism. His alcoholism resulted in the demise of his marriage, and him losing his license and being imprisoned for five weeks for driving whilst disqualified. Consequently, without any professional assistance, he voluntarily ceased consuming alcohol altogether approximately three years ago.
6. He has demonstrated in the past that he is capable of leading on balance a lawful and productive lifestyle occupied by work commitments. He also enjoys the ongoing support of his biological mother and younger maternal half siblings. He has a realistic business proposal to establish a small labour hire company. He has already completed a three month long course to provide him with the basic management skills, and he has registered a business name called Abeyi Hire Company. He also possesses some personal strengths that can be used as protective factors in his rehabilitation to reduce the risk of him reoffending.
My recommendations regarding Mr Monydeng’s rehabilitation are that he participates in a supervised, structured rehabilitation programme that includes:
1. Referral to the Drug and Alcohol Services Council to learn relapse prevention strategies for his history of alcoholism.
2. Random drug urinalysis and alcohol testing to confirm that he does not have a clandestine illicit drug problem.
3. A casemanager who has weekly contact with him to provide him with support and guidance.
4. He would benefit from cognitive-behavioural therapy with a psychologist to assist him improve his repertoire of coping strategies and tolerance of stress, improve his social problem solving skills, and treat his mental health problems.
5. Referral to a psychiatrist to assess his suitability for pharmacotherapy.
6. Referral to an employment casemanager who can assess his training and employment needs, and assist him work towards starting his labour hire business.
7. Referral to support organizations for refugees who have been victims of trauma, and social and cultural dislocation (i.e., STARRS, etc).
8. Referral to a financial counsellor to assist him improve his budgeting and money management skills.”[49]
[49] Exhibit 8, G12, pp 95-96.

On 22 October 2020, Department of Correctional Services records contain the following notation:
“Notification of Cancellation of Visa under 501 (3A)of Migration Act 1958 given to Prisoner Monydeng today, he accepted the information with out any issues and stated that he was expected his Visa to be cancelled. He states that he will not submit a revocation as he was happy to return to Sudan as he still has family there.”[50]
[50] Exhibit 9, G24, p 164.
The Applicant was asked about this conversation. He said that he remembered being told about the visa cancellation, but denies that he said the words in bold, or any words to that effect. As in other instances set out above, it is difficult to see why the recorder of this note would have any motivation to fabricate such an entry.
On 27 October 2020, the Applicant completed a personal circumstances form which was sent to the Department of Home Affairs. On page 6 of that form, in the section dealing with minor children, the question is asked “will you live with the child on return to the community?” The Applicant has answered “yes” in respect of both children. This is, and at the time was, clearly untrue. He has no relationship with them or their mother.[51] He explained this in his evidence by saying that it was his intention, if released, to seek “50% custody” from the courts. They would then live with him for 50% of the time. This explanation is, in the circumstances, at best both optimistic and hypothetical. It does not explain his false statement.
[51] Exhibit 8, G7, p 53.
The Applicant also made contradictory statements to Mr Balfour on 23 November 2021 about his former partner:
“…he said that he last had contact with his children just prior to being imprisoned, and this was by telephone.
Mr Monydeng has subsequently only communicated with his children’s mother once, by telephone, whilst he was in immigration detention. His defacto partner is Australian. Mr Monydeng said that he enjoys a fair relationship with his children’s mother. He said that she will not prevent him from maintaining a relationship with their children.
Mr Monydeng said that his children’s mother is now in a new relationship, but she has not had any more children.”[52]
[52] Exhibit 2, pp 7-8.
The Applicant gave a different account to Dr Glowinski in December 2021.
“…he was together with his ex-partner from 2011 to 2015. He said that ‘things aren’t that good between us but it’s not that serious’. Whenever they talk they end up accusing each other of cheating and lying about the past. He said that he can talk to her but the past always comes up.
……
He last spoke to them [his children] two years ago. He has not had contact with them since about 6 months prior to being incarcerated. He used to see them now and again. He did not see them more often as he did not want to ruin his ex-partner’s new relationship.”[53]
[53] Exhibit 3, pp 28-29.
The Applicant’s evidence to the Tribunal, and A’s evidence, did not suggest any meaningful relationship with his former partner or his children since mid to late 2014. She suggested that there had been a total severance of contact for some time, possibly from late 2014. Any aspiration by him that this might be seriously disturbed by any legal action in the future, other than to provide for some limited access, must be regarded as a very remote possibility.
The Applicant’s offending history as recorded in an Australian Criminal Intelligence Commission report generated on 12 October 2020 is annexed hereto and marked “B”.
As can be seen from Annexure B, the Applicant’s offending commenced in early 2010. His most serious offending, and the offending which gives rise to the mandatory cancellation of his visa occurred on 16 July 2019.
The Applicant was sentenced by His Honour Judge Sulio in the District Court of South Australia on 27 July 2020. His Honour made following relevant remarks in passing judgement:
“Botros Mathew Monydeng, you have pleaded guilty to two counts of aggravated robbery. The maximum penalty for each count is imprisonment for life. The offending was committed on 16 July 2019. You entered a service station on Port Road. You were carrying a white plastic bag and a timber pole. You picked up a number of bars of chocolate and approached the front counter. You told the attendant that you needed cigarettes. She got cigarettes for you and asked you to pay. You refused, statin that the police would pay. You raised the timber pole into the air and said you did not want things to escalate. She, understandably, felt threatened and freighted. She again asked you to pay. You lowered the pole, put the chocolate bars into the plastic bag and then left the store on a bicycle.
The offending was captured on closed-circuit television which reveals the nature of your offending and the somewhat disorganised approach you had taken to the offending. I accept that the offending was, despite the fact you were carrying the pole, opportunistic, ill thought out and in some ways incomprehensible.
A few minutes later you entered another service station on Port Road, about one km away. You attempted to wheel your bicycle inside. The attendant told you that bicycles were not permitted. You took the bicycle outside and then re-entered the service station holding the pole. You asked for cigarettes in a loud manner. The attendant have you a packet of cigarettes and then you took a bottle of soft drink. You walked to the entrance area and yelled at the attendant that you were hungry. You approached the shelves and took bread and a carton of eggs. You then again left on your bicycle. That offending was also captured on closed-circuit television. The description of the offending reveals again the chaotic and unplanned nature of the offending.
Just after 8.00am that day police arrested you at your house. You were taken into custody, where you have since remained.
You pleaded guilty to a number of lower court matters for which I am also required to sentence you. On 16 June 2019, you committed the offences of using a motor vehicle without consent, and theft, the maximum penalties being imprisonment for two years and 10 years, respectively. That involved you breaking into you neighbour’s car and wheeling it to the front of your house. You took some items from the car, including books and an iPhone charger.
On 4 July you carried an offensive weapon, for which the maximum penalty is two years imprisonment, and disorderly behaviour, for which the maximum penalty is three months imprisonment. Fines are also an option but I do not consider that course to be appropriate. You had attended the Findon Shopping Centre carrying a pole and were being belligerent towards staff and members of the public.
On 8 July 2019, you committed an offence of property damage, for which the maximum penalty is 10 years imprisonment, and another offence of using a motor vehicle without consent. You again wheeled a vehicle which had been located near your house down the street. You damaged the vehicle.
On 13 July 2019, you committed an offence of theft by stealing a portable refrigerator from a veranda.
On 14 July 2019, you committed another offence of property damage when you damaged a public telephone box using a metal pole. You were apprehended by police at the scene.
You are entitled to a statutory sentencing discount of up to 30 per cent in respect of all charges, having regard to your early pleas of guilty.
I turn to your criminal history. You are now 31 years of age. You were dealt with on a number of driving offences dating back to 2010; and for loitering and disorderly behaviour, without conviction. In 2011 you were sentenced to two periods of imprisonment, one of five weeks and one of one month, on each occasion for driving disqualified and drink-driving. Thereafter there was no offending until 2017, when you were dealt with for carrying an offensive weapon and placed on a bond.
I turn to your personal circumstances. You were born in Khartoum, Sudan. You described Sudan at that time as an economically impoverished place and Khartoum as an impoverished city. There was an ongoing civil war prior to the establishment of South Sudan. You are a Dinka and a practising Christian from the south of Sudan and there has been conflict between the Muslim government of Sudan and Dinka Christians in the south.”[54]
[54] Exhibit 8, G4, pp 33-34.
“You were involved in one significant relationship which persisted for some three years, as a result of which you have a son now aged seven and a daughter now aged four. That relationship came to an end because of your abuse of alcohol. You have not seen your children for some three years. You intend to develop a relationship with your children once you are eventually released from custody.
Your general practitioner, Dr Lartey, had prepared reports relating to the assaults you had suffered. I received a report prepared in late 2017 which confirmed that you had been consulting him since 2015. He said you never sought counselling for the psychological stressors associated with the assaults, He considered that you presented as depressed and anxious. He spoke of the positive progress you had made including the course you had enrolled in, the fact that you have obtained employment, and the fact that you had reduced your alcohol consumption. He noted that your sleeping habits had improved and your anxiety was reduced. He recommended counselling and psychological support in view of the injuries sustained in the assaults to which I have referred, and also in relation to what was clearly a traumatic childhood experience.
A further report prepared in March 2018 concluded that you had managed to get your life back on track. However just over a year after that report you committed the current offending.
Mr Balfour, a forensic psychologist, assessed you for sentencing purposes. His report of 27 January 2020 described you as having a complex psychosocial history due to growing up during the civil war in Sudan. He said there had been a deterioration in your mental state and in your behaviour in the load-up to the current offending. He described you as a likeable, polite person. He said that you had a strong work ethic. He considered that you were a well-behaved model prisoner. He said that your risk of further offending was only in the moderate range.
Mr Balfour, however, did not consider that you had been completely frank about the reasons for your current offending. He said that you were able to appreciate the nature and quality of your actions and the wrongfulness of those actions. He expressed the view that your explanation for committing the offending originated from your difficult childhood where you were forced by circumstances to, in effect, become independent at the age of 11. He said that at the time of the offending you were experiencing social and financial hardship. He said that you did not turn to community organisations for assistance as that would result in shame within your culture, as that would have been an admission that you were unable to independently survive as a man in the community. Clearly, your thinking was, as I have earlier described, confused and erratic.
Mr Balfour said that with the assistance of a structured, supervised rehabilitation program you had a fair prognosis to cease offending. He said you suffer from an unresolved post-traumatic stress disorder and had never received treatment. You had demonstrated you are capable of making positive changes in your life. You have the ongoing support of your mother and your brothers and sisters. You had a not unrealistic proposal to establish a small labour hire company.
Against that background then I turn to the question of sentence. I bear in mind what fell from the Court of Criminal Appeal in R v Place in relation to aggravated robberies of vulnerable targets. People in the community have the right to feel safe. They have the right to have their property protected. Those working in environments such as service stations also have the right to feel safe. They are, as I have said, vulnerable targets. The victims of your offending must be protected from offending of this kind. Offences of violence cannot be tolerated.
I note that you have expressed remorse for your offending, although it appears that you may lack insight into the effect that that offending has had upon the victims of your offending.
In approaching the question of sentence I have regard to your traumatic childhood and what I accept is a complex psychological and psychosocial presentation. As I have said, I do not regard the offending as having been planned or calculated but was, rather, opportunistic albeit that you were carrying the pole to which I have referred.
Although you gave what was, in effect, differing accounts of your psychological state to your general practitioner and to Mr Balfour, and indeed differing accounts of your alcohol consumption leading up to the offending, I accept the submission of your counsel, based on your instructions, that you were indeed affected by alcohol at the time. That may go some way to explaining your erratic behaviour although it does not of course excuse your behaviour.
I consider that your offending, which occurred over a period of a month, was linked by your undiagnosed or at least untreated mental health issues, exacerbated by alcohol abuse. It is appropriate to utilise s 26 of the Sentencing Act. Had I imposed separate penalties for the offending I would have made the sentences partially concurrent.
Had it not been for your plea of guilty I would have sentenced you to imprisonment for five years. Having regard to that plea the sentence becomes one of imprisonment for three years and six months. I fix a non-parole period of one year and nine months.
You are entitled to credit for 16 days spent in custody following your arrest on 16 July 2019 until you were granted home detention bail. You were on home detention bail for a short period before that was breached by you attending a shopping centre without permission. I do not propose to allow any credit in respect of that short period on home detention bail.
That makes the sentence then three years, five months and 14 days and the non-parole period one year, eight months and 14 days.
The offending is too serious to consider suspension or an order that the sentence be served on home detention conditions.
Accordingly, the sentence and non-parole period will operate from 14 August 2019 when you were taken back into custody.
Although there is a claim for compensation by the owner of the refrigerator stolen from the verandah, given your circumstances and the fact that you will continue to be in custody for a period, I do not consider that the making of such an order is appropriate and therefore decline to do so.”[55]
[55] Ibid, pp 37-39.
The Applicant underwent a forensic psychological assessment prepared by Mr Balfour, psychologist. This assessment was based on a two and a half-hour clinical interview with the Applicant conducted on 22 November 2019 at Yatala Labour Prison and copies of various other relevant documentation including the sentencing remarks.[56]
[56] His report is reproduced at pages 75 through to 96 of Exhibit.
It is interesting that Mr Balfour reports having been told that the Applicant completed 12 years of formal education. This does not seem to fit within the timelines of the rest of his history. The Applicant confirmed in his evidence that it was 8 years.[57]
[57] Exhibit 8, G12, pp 82-83.
Relevant aspects of this report include the following:
“Mr Monydeng has never been married. He has had only one significant relationship with a woman. This was a de facto relationship that lasted for three years and produced a son, aged seven years; and a daughter, aged four years.
Mr Monydeng said that his de facto relationship ended because he suffered from alcoholism. He said that even when he curbed his alcoholism, she still left him. He said that he has not seen his children for three years. He has not pursued access to his children because there are always “dramas” with their mother. He still pays child support.”[58]
[58] Ibid, p 85.
“At the age of 18 years, Mr Monydeng commenced experimenting with alcohol. He said that when he immigrated to Australia, he commenced using alcohol on daily basis because he became enthralled in the partying lifestyle. Approximately three years ago, he developed severe alcohol-withdrawal symptoms. He had a friend that he regularly drink with, and they invited women to their house. The only time his alcohol consumption brought him into conflict was during 2011 for a DUI.
Mr Monydeng said that he ceased consuming alcohol three years ago before being remanded in custody for the current offences. He just decided to stop drinking altogether. He now does not even casually drink.”[59]
[59] Ibid, p 87.
“Mr M has never participated in drug and alcohol rehabilitation.”[60]
[60] Ibid, p 88.
“I could not find any clinical evidence to suggest that Mr Monydeng has a psychotic illness, intellectual disability, neurodevelopmental disorder, acquired brain injury, or serious personality disorder.
The psychological profile is that a Sudanese refugee man, aged 31 years, of average intelligence, and he is literate and numerate in English. He also speaks fluent Arabic, and Dinka. He has completed 12 years of formal education in Sudan. Within Australia, he has completed a TAFE Certificate in construction. He has a strong work ethic, and excellent employment history.
Despite originating from Sudan and all its traumatic events during his childhood, Mr Monydeng is not prone to depression or anxiety. He has never attempted suicide, and he does not have history of self-mutilating behaviour. He has normal self-esteem, and a normal body image. He has fair coping skills.
During 2009, Mr Monydeng immigrated to Australia as a refugee at the age of 21 years. He made a successful transition to residing in Australia. He has Australian citizenship.[61] He had steady employment, and started a family and has two children aged four and seven years.
During 2014 in two unprovoked attacks, Mr M was shot and stabbed and had his bottom lip partially bitten off. I believe that he developed a Post-Traumatic Stress Disorder; and this resulted in an escalation in his alcoholism.
Mr Monydeng’s current offending behaviour is clearly very serious. His offending behaviour appears to have been financially motivated because he was experiencing financial hardship.
……
I also suspect that Mr Monydeng has not been totally frank in his explanations for his current offending behaviour, and this has limited my ability to examine his offending behaviour. He said that he was not under the influence of drugs and alcohol the time of the current offences, and he did not have an addiction. He was arrested soon after committing the current offences. I note that both the police and the victim statements make no mention of him appearing intoxicated.”[62]
[61] Not accurate.
[62] Exhibit 8, G12, pp 91-92.
Mt Balfour diagnosed an “Unresolved Post-Traumatic Stress Disorder”.[63]
[63] Ibid, p 92.
In his later report of 5 December 2021, he diagnoses “Schizophreniform Disorder” at the time of his offending.
In his evidence, Mr Balfour agreed that his diagnosis was dependant on the accuracy of information provided to him by the Applicant. He agreed that he was given different accounts on each occasion that he spoke with him. I note that these accounts themselves each differ in material respects to accounts given to the Tribunal in sworn evidence.
Mr Balfour stated that the two diagnoses of Post-Traumatic Stress Disorder and Schizophreniform Disorder were not mutually exclusive, but that the latter was at this stage an isolated historic episode that may never evolve into a chronic condition. He also said that he would be “concerned” if the Applicant did not have a “lengthy” period of post release supervision involving alcohol treatment services, psychological counselling and monitoring of the Schizophreniform Disorder. He stated that the Applicant’s alcohol problem was a “dynamic” risk factor from the perspective of re-offending.

The report of Dr Glowinski dated 22 December 2021 states amongst other things:
“Mr Monydeng presented as having a reactive and euthymic affect.
There was little to suggest that Mr Monydeng was experiencing acute psychosis.
……
Mr Monydeng spoke superficially about problems arising from past alcohol use. This left me uncertain about the depth of insight into this issue.
Mr Monydeng was a generally vague historian. He was particularly poor with temporal sequencing. His account was often difficult to follow as he moved between time-frames fluidly and without explanation.
Mr Monydeng tended to speak about events occurring around him rather than talking about his own behaviour. Some descriptions were frankly implausible and led me to consider whether I could rely on the history he provided.
……
Mr Monydeng confirmed that he had minimal forensic history prior to a series of offending behaviours in 2019.
Mr Monydeng said that in the months prior to the offending he had been thinking about starting a labour-hire business as he was known as a point of contact between employers and the Sudanese community. He therefore left stable employment so as to commence a business course. He said that the course was paused just before the 2019 election. He said that this was because funding for the course was dependant on the outcome of the election. He had no job so he stayed at home.
Mr Monydeng said that he was helping out at night at a friend’s restaurant. He was driving home and had a car accident. A car stopped suddenly in front of him and he swerved and hit another car. Police attended and Mr Monydeng’s car was towed. Mr Monydeng said that he called the towing company the following day and was told that he would need to pay $870 to retrieve his car. He did not have the money.
Mr Monydeng said that he soon after had a few drinks with a friend. He had not had any alcohol for two years.
Mr Monydeng said that he doesn’t recall anything about what happened next. ‘I lost my mind’ and ‘before I knew it I was arrested for robbery and property damage’.
When asked for further details about the lead up to the offending, Mr Monydeng said that all his past difficulties were on his mind. He was thinking about the shooting, his lip and when his house burnt down. He said that things kept happening to him.
When asked for further details about his mind-state at that time, Mr Monydeng said that all of the memories were there before he drank prior to the offending. He said the memories of these events were on his mind and he wondered what he could do with his life. He was asking himself how he could move on with his life when he keeps getting dragged down.
Mr Monydeng said that memories about past events were very intense before the index offending as he was idle. The course he’d been doing was on pause. He had lost his car and he had to pay money. He did not have any money. It was too much for him to bear.
Mr Monydeng said that he drank a lot. His friend came over with a 4L wine cask which they shared between them. He can only recall that his friend left after they drank together and that is when the offending happened. Mr Monydeng said that he does not remember anything about the offending.[64]
[64] This version is broadly similar to the version given in evidence to the Tribunal.
Mr Monydeng provides a confusing narrative of his time in Australia. His repeated victimisation is hard to explain as sheer coincidence. There is however reasonable evidence of periods of sustained employment and productivity.
What is clear is that Mr Monydeng has a significant alcohol abuse disorder. There is evidence of medical complications secondary to alcohol consumption. There also appears compelling evidence of social harm arising from alcohol misuse, in that it appears that alcohol played a significant role in the breakdown of the relationship with the mother of his children (and by extension the estrangement from his children). There have also been past alcohol related driving offences.
That Mr Monydeng has suffered seizures in the context of alcohol withdrawal is strongly suggestive of an alcohol dependence disorder. His relative youth at the time of the seizures indicates either a predisposition to seizure activity and/or the involvement of a very significant quantity of alcohol.
……
Whether Mr Monydeng has a diagnosable post-traumatic stress disorder (PTSD) is another matter. PTSD typically presents with nightmares, flashbacks (not just recollections and ruminations), avoidance behaviours, depressive and hyperarousal symptoms. Despite repeated questioning, I was unable to elicit a history of these symptoms and behaviours. There is mention of such symptoms in reports written by the GP when Mr Monydeng was in the process of seeking compensation for being a victim of crime. Overall, I am left unconvinced that Mr Monydeng has a true PTSD, whether related to his childhood or to events as an adult.
I also considered whether Mr Monydeng has complex PTSD. This condition can arise in a situation of repeated childhood trauma and typically manifests with difficulties with trust, interpersonal relations and identity formation as compared with the classic PTSD presentation just described. Dissociative episodes (which could potentially explain the offending behaviour) are also a relatively common feature. I didn’t elicit substantial symptoms of this nature and therefore concluded that on the balance of the evidence Mr Monydeng likely doesn’t have complex PTSD.
I also considered that the available evidence doesn’t support a diagnosis of a primary mood or major psychiatric illness. It does appear however that Mr Monydeng is vulnerable to experiencing depressive and anxiety symptoms at times of heightened stress and psychosocial difficulties (often called ‘reactive depression’ and known as ‘adjustment disorder’ in psychiatric diagnostic systems such as DSM5). These episodes have likely been compounded by Mr Monydeng’s use of alcohol.
……
The erratic and ‘incomprehensible’ nature of his offending strongly suggests that Mr Monydeng was intoxicated at the time of the offending. On the balance of the available evidence there is little to suggest that the offending might relate to a primary psychiatric condition, including PTSD. If Mr Monydeng was suffering from symptoms of PTSD one would usually expect the avoidance of conflict rather than the initiation of offending. As mentioned earlier, while dissociation (related to a complex PTSD) is a possible explanation for the offending, I have concluded that intoxication is a more plausible hypothesis.
……
Mr Monydeng’s account to me implies a single episode of drinking initiated by his friend. This story doesn’t match with a series of offences committed over several days. This account is however consistent with Mr Monydeng’s tendency to minimise the harm he (and others) has suffered as a result of his alcohol consumption.
……
In terms of future risk assessment, Mr Monydeng’s childhood experiences, while unfortunate, are of interest, as is his history of alcohol misuse and relationship difficulties, including estrangement from his children. On a positive note there appears little to indicate that Mr Monydeng holds pervasive violent or criminal beliefs or that he has a major mental illness or personality disorder.
One important risk factor is whether Mr Monydeng has previously been violent. While there were no criminal convictions related to violence before 2019, I have concerns about Mr Monydeng’s repeated involvement in violent interactions. While he has come off second best in these altercations, I’m not sure I accept his account of repeatedly being a completely innocent and unprepared victim.
……
Mr Monydeng’s risk of future reoffending greatly depends on his capacity to avoid drinking alcohol. There are myriad factors that might contribute to this risk, including his social and financial circumstances and whether he is employed. There is reason to be optimistic about his prospects of stable employment. The future stability of his interpersonal relationships is less clear and I have concerns about how continued estrangement from his children might impact his mental state and therefore contribute to heightened risk.
Another factor to consider is the likelihood of whether Mr Monydeng will meaningfully engage with services to assist him in remaining abstinent from alcohol. There is a notable absence of previous engagement with such services despite repeated medical and social harms from alcohol consumption. Whether there will now be a more dedicated approach to abstinence is unclear. There is some comfort given past periods of sustained abstinence and he appears genuinely chastened by his time in prison. In the event of a favourable Tribunal decision, his motivation to remain abstinent will likely be reinforced given the threat of extradition in the event of further criminal convictions.[65]
[65] Exhibit 3.
Dr Glowinski was not called due to unavailability. Mr Balfour accepted his qualifications as a relevant medical expert. On balance, to the extent of any inconsistency, I consider the opinion of Dr Glowinski to be more persuasive. The history given to him, is more in keeping with the Applicant’s evidence to the Tribunal.
On 22 October 2020, the Applicant’s Visa was cancelled under section 501(3A) of the Act.
At the Applicant’s request, this decision was reviewed by the Respondent who on 20 October 2021 determined not to revoke the cancellation of the Applicant’s Visa.
It is this decision that the Applicant seeks to have reviewed in these proceedings before the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 27 July 2020, the Applicant was sentenced by Judge Sulio of the District Court of South Australia to a term of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 9 months. The Applicant’s sentence will be completed on 27 January 2023. This means if he were to be released into the community, he would be subject to the supervision of Community Corrections for just over 1 year. After that, he would be unsupervised.
It is quite properly not contested by the Applicant, that he fails to pass the character test. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[66]
[66] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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 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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(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.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
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.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[67]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[68]
[67] [2018] FCA 594.
[68] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)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 Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
By any measure, the Applicant’s offending on 16 July 2019, although “chaotic and unplanned”[69], was very serious.
[69] Exhibit 8, G4, p 33.
The Applicant’s offending must be regarded as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

This consideration is enlivened in my view by all of the Applicant’s offending between 2009 and 2019.[70] I note that 8 1.1.(1) (b) of the Direction provides that “without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious…..” Although the Applicant’s conduct does not fall within sub-placita (i), (ii) and (iv), it is nevertheless serious and may in any event be captured by (iii).
[70] Annexure B & paragraph 71 above.
This consideration weighs against the Applicant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been convicted of very serious offences and sentenced to 3 ½ years imprisonment. By any measure this indicates offending of a very serious nature. This weighs heavily against the Applicant.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been a serial offender, with a serious escalation of his offending in recent times. This also weighs heavily against the Applicant.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant has been a serial offender almost from the time that he arrived in Australia. He has been a burden on the criminal justice system and the community. It is perhaps only good fortune that has prevented his drink driving from having serious or even catastrophic consequences for others. The escalation in his offending has been very serious. This weighs heavily against the Applicant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant made a false and misleading statement to the Department in his personal circumstances form dated 27 October 2020 (see paragraph 76 above).
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence of any such warning, so this consideration is neutral.
I do not consider factor (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant’s history of offending has, as mentioned already, been repeated and escalating. The risk to the community, should it continue, is very serious. It is perhaps only luck that has prevented the Applicant from already having caused serious harm to others, for example, by drink driving.
Likelihood of engaging in further criminal or other serious conduct
This is very complex to assess. There is no explanation offered by the Applicant for his conduct. He is an alcoholic, whose offending seems to be primarily alcohol related. He has been receiving no treatment for his addiction. He has no concrete plans to do so. His most recent abstinence has largely corresponded with his incarceration in a controlled environment. His capacity to function in the community without alcohol is, based on his history, problematic. He denies any mental health issues. His psychological evaluation suggests that he may have mental health issues as discussed above. He seems to have limited insight into his behaviour and issues. He has not received treatment for mental health issues and has concrete no plans to do so. He has, however, expressed a willingness to get help for both his mental health and alcohol issues. He has expressed regret for his offending, although this may have more to do with its consequences to him than an insight into its impact on others.
The most succinct and compelling summary of the Applicant’s position is provided by Dr Glowinski in his report of 22 December 2021.
“Mr Monydeng’s risk of future reoffending greatly depends on his capacity to avoid drinking alcohol. There are myriad factors that might contribute to this risk, including his social and financial circumstances and whether he is employed. There is reason to be optimistic about his prospects of stable employment. The future stability of his interpersonal relationships is less clear and I have concerns about how continued estrangement from his children might impact his mental state and therefore contribute to heightened risk.”[71]
[71] Exhibit 3, p 38.
The Applicant’s basic issue is alcohol. This Tribunal cannot grant a conditional visa or impose parole-like conditions on his release. He has no settled plans to engage with any relevant treatment services. If he were to be released to the community, he would be subject to supervision by a community corrections officer until early 2023. This is a matter of some comfort, but it still does not guarantee that necessary conditions will be either imposed, enforced, or complied with. It is also for a finite period, this is not bounded by his progress with treatment, but by the remaining duration of his sentence.
His family have indicated that he could live with them if he was released. He believes that he can obtain work. These are both positive factors.
In these circumstances, I assess the Applicant as being at least a medium risk of re-offending. If it were not for his ongoing issues with alcohol, I would assess his risk as low.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(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 (see paragraph (3) below).
(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.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being 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 non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the Direction as follows:
“family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.”
There are references to past “family violence” in the material before the Tribunal.[72] These are discussed above. The Applicant has no convictions for “family violence”, but that is not required by the Direction. The police reports, though not tested in court, do constitute evidence of acts of “family violence”, as defined. The Applicant’s explanations given in evidence, are unconvincing. The reported behaviour is at the lower end of the possible range of offending of this kind.
[72] Exhibit 9, G25, pp 295-302.
Conclusion: Primary Consideration 2
This Primary Consideration 2 weighs very slightly against revocation.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are as follows.
Child A is the Applicant’s son. He is 9 years of age. The Applicant has had very little to do with Child A at least for the last 6 years. The Applicant has no relationship with the child’s mother, (despite his suggestions to the contrary) and it would seem that is how she wants things to remain. She has a new partner and has moved on in her life. The Applicant has made some modest child support contributions from time to time, but hardly enough to make any significant difference. If he returned to employment, his contributions would assist. Even if the Applicant were in the community, it seems highly improbable that he would be permitted to have any role in Child A’s life, in the absence of a court order. Whether such an order could be obtained in the Applicant’s case is a matter of conjecture. The child’s mother did not give evidence in support of the Applicant. The evidence before the Tribunal in the form of police records suggests that she finds the Applicant abusive and intimidating.[73] A gave evidence to the effect that there had been a total termination of any contact with the Applicant and his family for some years.
[73] Ibid.
Child B was born after the Applicant and her mother separated. She is 6 years of age. She has had no meaningful contact with him. It seems from the police records that the Applicant wanted nothing to do with her.[74] Otherwise, her situation is much like her brother’s.
[74] Ibid, p 295.
There is some possibility that if the Applicant were to be returned to the community, he may make some positive contribution to the children. If he obtained work, he may make some contribution by way of child support. This is mere speculation at present. Any access to the children would be dependent on their mother being prepared to let him be involved with them. It seems that this is most unlikely to occur, absent a court order. In the unlikely event that it did occur, it would also depend on him being a positive influence. This is also unlikely, given the history of the Applicant’s offending and his past lack of interest. I assess this possibility as being slight at best, for the reasons set out above. If he returned to offending, his contribution, to the extent that there might be any, would be negative.
The Applicant has two half siblings. A girl age 13 years, “Child C” and a boy aged 17 years “Child D”. The evidence is that the Applicant has a good relationship with his half-siblings. He has never performed a parental role and there is no evidence of him having supported them financially or in any other specific way. They would benefit from ongoing contact with him, provided that he did not reoffend.
Conclusion: Primary Consideration 3
Having regard to all of the above, Primary Consideration 3 weighs slightly in favour of revocation of the Visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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 or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[75]
[75] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, I have had regard to all of the history and background set out above. In particular I have had regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B, and his history generally;
(b)the Applicant’s persistent and escalating pattern of offending;
(c)the Applicant’s alcoholism and propensity to offend when intoxicated; and
(d)the Applicant’s absence of any settled plan to receive treatment for his mental health and / or alcohol issues.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily against revoking the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant held a Class XB Subclass 202 Global Special Humanitarian visa. The issue of this Visa did not involve any assessment that he was owed non-refoulment obligations.
I am satisfied, having regard to Exhibits 10 and 11[76] that the Applicant was never assessed on the basis that he was facing persecution. He was assessed under a “form 681 application”.[77]
[76] Visa application 6 November 2006 & Extracts from the Migration Regulations 1994 (as at 31 July 2008)
[77] See regulation 202.21, Exhibit 10.
He has never held a Protection Visa. He has never applied for one. He has never been determined to be a refugee under Article 1A of the Refugee Convention. He has never been assessed for an International Treaty Obligations Assessment.
Even if I am wrong about this, and I do not think that is the case, any assessment prior to 2011 (which this would have been), would have been made in respect of Sudan, not South Sudan. It would therefore be now irrelevant.
The Applicant in these proceedings raised the issue of non-refoulment in his Statement of Facts, Issues and Contentions, this is set out in summary at paras 88 and 89 as follows:
“There is a possibility of the Applicant suffering harm in Sudan, which might include persecution or discrimination on the basis of his Dinka ethnicity and/ or Christian religion… The Applicant’s removal to Sudan may potentially breach Australia’s non-refoulment obligations and there is no known prospect of removing the Applicant to any other country.”[78]
[78] Exhibit 5, p 22, paragraphs 88-89.
After some discussion in closing submissions, the Applicant’s representative, quite properly in my view, said that there was “nothing known” to him that gave rise to a submission that the Applicant would suffer any persecution in South Sudan as a Dinka person, or otherwise. There was certainly no evidence led from the Applicant on this topic. In other words, consistent with his Statement of Facts, Issues and Contentions, the Applicant’s refoulment argument was formulated on the basis that the receiving country would be Sudan, not South Sudan.
On the following day, (6 January 2022) the Tribunal received further, unsolicited submissions on this topic from the Applicant’s counsel, resiling totally from his position as outlined above.
The Applicant’s counsel referred to various cases.[79] I have considered these cases. I note that the Applicant led no evidence in support of any assertion that he, by reason of any particular personal characteristic, would suffer any particular persecution or disadvantage, by reason of being returned to South Sudan. Indeed, his representative submitted during the hearing that he could not name one.
[79] XDJD v Minister for Immigration and Border Protection (Migration) [2021] AATA 2882, KMXK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3815, SBMZ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1409
Each question of refoulment must be determined based on evidence relevant to each individual Applicant. Asserting that other individuals, in their own unique circumstances were owed non-refoulment obligations, does nothing to demonstrate that these obligations are also owed, ipso facto to the Applicant. The question here is about the individual concerned. It is not a generic question.
I note that the most recent Department of Foreign Affairs and Trade Country Information Report on South Sudan available to the Tribunal (dated 5 October 2016) states inter alia:
“The Dinka are the largest ethnic group in South Sudan at around 35.8% of the population, and have traditionally dominated South Sudanese society.”[80]
They may face some incidents of violence in “conflict -affected areas…”[81]
“In Juba, [the Capital of South Sudan] Dinkas face a low risk of being targeted on the basis of their ethnicity…”[82]
[80] Exhibit 6, p 10.
[81] Ibid.
[82] Ibid.
Based on this material, it appears that the Applicant could choose to live for example in Juba and be relatively safe. There is no evidence to suggest that he would be obliged to do otherwise.
This is a separate and different consideration to Other Consideration (b), which directs attention to the extent of impediments in “establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).”[83]
[83] Direction 90, paragraph 9.2.
Having regard to all of the above, I am of the view that on the evidence as it stands, this Other Consideration (a) does not arise in this case and so this consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is apparently in good physical health. There is a real question about his mental health and particularly his alcohol problem. If he were returned to South Sudan there would be little support to assist him with these issues.
There would be few language or cultural issues suffered by the Applicant that were not common to other South Sudanese citizens. He lived in what was then Sudan until he was 21. He is fluent in Arabic, Dinka and now also English. The complex mix of people in the country mean that the Applicant may be more comfortable in one place, rather than another, but he is a part of the major, and dominant ethnic group.[84]
[84] See above.
I have, as previously mentioned, have had regard to the “DFAT Country Information report South Sudan”[85] This publication, which may not fully reflect the current circumstances (it is an October 2016 publication), paints a dismal picture of poverty, a lack of infrastructure and issues with personal safety. These problems would be shared by all citizens, not just the Applicant.
[85] Exhibit 6.
South Sudan is a war-torn country with few of the social services or supports that exist in Australia. Compared to Australia, it is poor and underdeveloped. There is no doubt that the Applicant would suffer serious hardship in the process of re-establishing himself and obtaining employment.
The Applicant’s closest relatives are in Australia. It would be very difficult for him to be removed from them. There is no evidence of him having known family connections in South Sudan. Even electronic communications with South Sudan may be problematic according to A. There is little prospect of the Applicant’s family traveling there to visit him.
This Other Consideration (b) weighs heavily in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA 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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence about this and so this Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant’s closest family all reside in Australia. They are citizens or permanent residents. He is close to his mother and his half-siblings. They are not and have not been dependant upon him for support. A gave evidence on behalf of his mother and one other of his half-sisters. There is no doubt that his removal would be distressing to them and other family members. They seem to be a close family.
He has no present ties of any significance to his children.
He has contributed to the community through periods of employment and paying taxes. On the other hand, he has been a serial offender for most of the time that he has been here. and has consumed state resources through his criminal behaviour.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs in favour of revocation of the cancellation of his Visa
Impact on Australian business interests
This Other Consideration (d), paragraph 9.4.2 of the Direction, is not relevant and is thus neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: weighs heavily in favour of revocation;
(c)impact on victims: neutral;
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the Primary and Other considerations.
Primary Consideration 1 weighs heavily against revocation.
Primary Consideration 2 weighs very slightly against revocation.
Primary Consideration 3 weighs slightly in favour of revocation.
Primary Consideration 4 weighs heavily against revocation.
Other Considerations (a), (c) and (d), paragraph 9.4.2 of the Direction, are neutral.
Other Considerations (b) and (d), paragraph 9.4.1 of the Direction, weigh in favour of revocation.
As previously mentioned, the Tribunal has no power to grant a conditional visa or impose parole-like conditions. The period until January 2023, at which time the Applicant’s parole will finish, may or may not be therapeutically adequate to stabilise his risk of re-offending as low. Although this period of community supervision adds a level of comfort, it does not in my view adequately address the ongoing question of risk, as it relates to alcohol. It is not framed by reference to successful treatment, but by reference to a date fixed for entirely different purposes.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do not find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

The decision under review is affirmed.
............................[Sgnd]..................................
Legal Administrative Assistant
Dated: 12 January 2022

Date of hearing: 4 & 5 January 2022

Advocate for the Applicant:

Maker Mayek

Mayek Legal, Barristers and Solicitors

Advocate for the Respondent:
Cameron Retallick

Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Support Letter from Family

2

Applicant

Psychological Report – Mr Richard Balfour (Psychologist) – 5 December 2021

3

Applicant

Psychiatric Report – Dr Remy Glowinski (Psychiatrist) – 22 December 2021

4

Respondent

Statement of Facts, Issues and Contentions

5

Applicant

Statement of Facts, Issues and Contentions

6

Applicant

DFAT Country information Report South Sudan

7

Applicant

DFAT Country information Report Sudan

8

Respondent

G-Documents

9

Respondent

Supplementary G-Documents

10

Respondent

Extracts from the Applicant’s humanitarian visa file CLD2021/37585712

11

Respondent

Extracts from the Migration Regulations 1994 (as at 31 July 2008)

12

Respondent

The Sudanese Nationality Act 1994

13

Respondent

South Sudan – The Nationality Act 2011

14

Respondent

Transitional Constitution of the Republic of South Sudan 2011

15

Applicant

Bundle of Applicant’s further submissions

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Holden Hill Magistrates Court

25.02.2010

Drive with excess blood alcohol

Fine - $500

Drivers licence disqualified – 122 days

Holden Hill Magistrates Court

23.07.2021

Give false or misleading personal detail to officer

Fine – $100

Drive under disqualification or suspension

Imprisonment – 14 days

Suspended sentence bond $300

Adelaide Magistrates Court

06.08.2010

Loitering, Disorderly Behaviour

No conviction

Fine – $150

Adelaide Magistrates Court

08.10.2010

Duty to hold licence of learner’s permit

Fine – $100

Drive with excess blood alcohol

Fine – $1200

Drivers licence disqualified – 3 years

Enter an intersection or marked foot crossing (red light)

Fine – $200

Adelaide Magistrates Court

13.04.2011

Refuse name and address

Convicted – discharged without penalty

Drive with excess blood alcohol

Drivers licence disqualified – 12 months

1. Drive under disqualification or suspension

2. Breach of BOND re 23/7/10

1. Imprisonment – 3 weeks

2. Imprisonment – 14 days

Murray Bridge Magistrates Court

15.11.2011

Refuse name and address

Convicted – discharged without penalty

Murray Bridge Magistrates Court

28.11.2011

Drive under the influence

Drive under disqualification or suspension

Imprisonment – 1 month

Drivers licence disqualified – 3 years

Due care – basic offence

Being a driver involved in a crash, fail to comply with 287 fail to give particulars to specified persons at crash scene

Convicted – discharged without penalty

Port Adelaide Magistrates Court

22.02.2017

Carry an offensive weapon

Good behaviour bond – $500, 6 months

Port Adelaide Magistrates Court

17.09.2019

Estreatment of bail

Application granted

District Court of South Australia

27.07.2020

Commit theft using force (aggravated offence)

Damage property not building or m/v (not graffiti or fire)

Basic offence: dishonestly take property without consent

Drive or use motor vehicle without consent

Damage building or motor vehicle (not graffiti or unknown)

Carry visible offensive weapon in a school or public place

Disorderly behaviour

Imprisonment – 3 years, 5 months, 14 days

Non parole period – 1 year, 8 months, 14 days

Drivers licence disqualified – 12 months

Exhibit no.	Lodged by	Document
1	Applicant	Support Letter from Family
2	Applicant	Psychological Report – Mr Richard Balfour (Psychologist) – 5 December 2021
3	Applicant	Psychiatric Report – Dr Remy Glowinski (Psychiatrist) – 22 December 2021
4	Respondent	Statement of Facts, Issues and Contentions
5	Applicant	Statement of Facts, Issues and Contentions
6	Applicant	DFAT Country information Report South Sudan
7	Applicant	DFAT Country information Report Sudan
8	Respondent	G-Documents
9	Respondent	Supplementary G-Documents
10	Respondent	Extracts from the Applicant’s humanitarian visa file CLD2021/37585712
11	Respondent	Extracts from the Migration Regulations 1994 (as at 31 July 2008)
12	Respondent	The Sudanese Nationality Act 1994
13	Respondent	South Sudan – The Nationality Act 2011
14	Respondent	Transitional Constitution of the Republic of South Sudan 2011
15	Applicant	Bundle of Applicant’s further submissions

Court	Court Date	Offence	Court Result
Holden Hill Magistrates Court	25.02.2010	Drive with excess blood alcohol	Fine - $500 Drivers licence disqualified – 122 days
Holden Hill Magistrates Court	23.07.2021	Give false or misleading personal detail to officer	Fine – $100
Holden Hill Magistrates Court	23.07.2021	Drive under disqualification or suspension	Imprisonment – 14 days Suspended sentence bond $300
Adelaide Magistrates Court	06.08.2010	Loitering, Disorderly Behaviour	No conviction Fine – $150
Adelaide Magistrates Court	08.10.2010	Duty to hold licence of learner’s permit	Fine – $100
		Drive with excess blood alcohol	Fine – $1200 Drivers licence disqualified – 3 years
		Enter an intersection or marked foot crossing (red light)	Fine – $200
Adelaide Magistrates Court	13.04.2011	Refuse name and address	Convicted – discharged without penalty
		Drive with excess blood alcohol	Drivers licence disqualified – 12 months
		1. Drive under disqualification or suspension 2. Breach of BOND re 23/7/10	1. Imprisonment – 3 weeks 2. Imprisonment – 14 days
Murray Bridge Magistrates Court	15.11.2011	Refuse name and address	Convicted – discharged without penalty
Murray Bridge Magistrates Court	28.11.2011	Drive under the influence Drive under disqualification or suspension	Imprisonment – 1 month Drivers licence disqualified – 3 years
Murray Bridge Magistrates Court	28.11.2011	Due care – basic offence Being a driver involved in a crash, fail to comply with 287 fail to give particulars to specified persons at crash scene	Convicted – discharged without penalty
Port Adelaide Magistrates Court	22.02.2017	Carry an offensive weapon	Good behaviour bond – $500, 6 months
Port Adelaide Magistrates Court	17.09.2019	Estreatment of bail	Application granted
District Court of South Australia	27.07.2020	Commit theft using force (aggravated offence) Damage property not building or m/v (not graffiti or fire) Basic offence: dishonestly take property without consent Drive or use motor vehicle without consent Damage building or motor vehicle (not graffiti or unknown) Carry visible offensive weapon in a school or public place Disorderly behaviour	Imprisonment – 3 years, 5 months, 14 days Non parole period – 1 year, 8 months, 14 days Drivers licence disqualified – 12 months