MQGT and Minister for Home Affairs (Migration) - [2019] AATA 874

MQGT and Minister for Home Affairs (Migration) [2019] AATA 874 (14 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0961
Re:MQGT
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:14 May 2019
Place:Brisbane

The Decision under review is affirmed.
............................[SGD]............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of visa on character grounds – Class XB, Subclass 202 Global Special Humanitarian visa – where Applicant did not pass the character test – sentenced to 12 months’ imprisonment or more – whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – application of Primary and Other Considerations in Direction No 79 – whether there is a claim which may give rise to international non-refoulement obligations – consideration of Direction No 75 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311 at [85]
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Omar v Minister for Home Affairs [2019] FCA 279
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
14 May 2019
INTRODUCTION AND BACKGROUND

MGQT (“the Applicant”) is a 21 year old male born in Sudan. Movement records indicate that the Applicant was granted a Class XB, Subclass 202 Global Humanitarian visa (“the visa”) upon his arrival in Australia on 11 April 2007.[1] He has never departed Australia.
[1] Exhibit 5, s 501G-Documents, G2, page 72.
The Applicant has an almost three year criminal history in Australia. He initially found himself before lawful authority on 3 September 2015 for four offences. He was further dealt with for additional instances of offending, as follows:
·In February 2016 (for failure to appear in accordance with undertaking);
·In August 2016 (for three offences and six breaches of respective orders relating to bail and a suspended sentence);
·In April 2018 (for five offences, one breach of bail and one failure to appear charge – culminating in the imposition of a four year term of imprisonment to be suspended after service of 14 months).
While serving the term of imprisonment, a delegate of the Minister for Home Affairs (“the Respondent” or “the Minister”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) decided on 8 June 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[2]
[2] Ibid, G6, page 213 and 229.
On 14 June 2018, the Applicant wrote to the Minister’s department requesting a revocation of the decision to mandatorily cancel his visa.[3] The delegate of the Minister decided on 18 February 2019 not to revoke the cancellation of the subject visa.[4]
[3] Ibid, G2, pages 40-43.
[4] Ibid, G2, pages 7-21.
The Applicant lodged an application to this Tribunal on 21 February 2019 seeking a review of the immediately preceding decision (on 18 February 2019) not to revoke the cancellation of his visa.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, G1, page 1-6.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a) Whether the Applicant passes the character test; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
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”
In his oral evidence, the Applicant helpfully conceded that his criminal offending was both “very serious” and “violent”. Although perhaps more relevant for an assessment that will follow, the Applicant also conceded there is an increasing level of seriousness in his offending across its historical span. I do not recall any significant objection from the Applicant that he does not pass the character test. There is no getting around his criminal history and, in particular, no getting around the sentence imposed by the Southport District Court on 6 April 2018 of four years imprisonment for offending that essentially comprised:
·Entering a dwelling with intent by break at night in company, damage or threaten or attempt to damage property; and
·Robbery with actual violence, armed/in company/wounded/used personal violence.[9]
[9] Exhibit 5, s 501G-Documents, G2, pages 22-23.
It should be noted that although the head custodial term was four years and the custodial component of the sentence was ordered to be suspended after the Applicant had serviced 14 months, the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[10]
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416. Note: on the date of his sentencing (6 April 2018, the Applicant had already served 351 days in pre-sentence custody. The sentencing judge (Her Honour Judge McGuiness) stated that the relevant pre-sentence period comprising the 351 days ran from 20/4/2017 until 5/4/2018. Her Honour stated that this 351 day period be deemed as time already served under the sentence imposed on 6 April 2018.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application[11]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[12] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
Direction 65 [now Direction 79] 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.[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending history can be gleaned from his criminal history, which appears in the material.[15]
[15] Exhibit 5, s 501G-Documents, G2, pages 22-25.
The Nature and Seriousness of the Applicant’s Conduct to Date
As mentioned earlier, during his oral evidence, the Applicant seemed cognisant of the “very serious” nature of his offending. He agreed that his offending had been violent and that it demonstrated an increasing level of seriousness. To directly quote his evidence, the Applicant told the hearing that “…as the years go by, the offences are getting more serious.” There did not seem to be anything by way of a significant objection from the Applicant that his criminal offending to date had involved him participating in activity that had the potential to cause catastrophic harm to other members of the Australian community.
The Respondent contends that the Applicant’s conduct is “objectively very serious” and that having regard to its totality, it cannot be construed in any other way.[16]
[16] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) dated 10 April 2019, page 8, paragraph [34].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)...
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention...
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There are specific episodes in the offending history of the Applicant that are clearly demonstrative of the violent nature of the offences he has committed.
On 12 February 2016 at Logan Central, the Applicant unlawfully assaulted a female, namely, [name redacted]. This offending occurred at the Woodridge train station and involved the Applicant slapping the female. In cross-examination, the Applicant sought to deny the physically violent nature of this offence, suggesting it was not in his nature to assault women. He challenged the conviction on the basis that it had somehow not been adequately proven because the sentencing court had apparently not reviewed closed circuit television footage (available at the train station) demonstrating he assaulted that particular female, or, indeed, anyone else.
This common assault offence came before the Southport District Court on 6 April 2018 and was dealt with as part of a bundle of seven summary offences committed by the Applicant dealt with by the Court on that day. When asked about why this common assault conviction appeared in his criminal history, the Applicant tepidly responded with:
“I don’t think I assaulted anyone…there were cameras…I just took the charges…just pleaded guilty to get it over and done with…I pleaded guilty to get rid of it…I’m not sure if I had a lawyer representing me…”
For the purposes of a finding relevant to this sub-paragraph (a), it can be confidently said that (1) a conviction for common assault appears in his criminal history; (2) that it involved a female victim and (3) he was legally represented at the sentencing hearing when this common assault charge was dealt with (for sentencing purposes) by Her Honour Judge McGuiness at the Southport District Court on 6 April 2018.

On 9 March 2017, the Applicant unlawfully entered the dwelling of another person and committed robbery with actual violence. This conduct is charged with two counts of “Robbery with actual violence armed/in company/wounded/used personal violence.” The circumstances of this offending, as summarised by Her Honour Judge McGuiness, are especially sobering and concerning:
“Your prior criminal history for somebody who is so young, is concerning. You have convictions for enter premises, receiving and possession of tainted property, breach of bail and drug offences. You have even previously been imprisoned and you have breached a suspended sentence...
Turning to the facts of this case, they are extremely serious. You and three others broke into the complainant [name redacted, a female, victim 1] home to steal money and drugs. You all entered her bedroom and searched it. When another complainant, [name redacted, a male, victim 2] who was renting a room through Airbnb, came out of his room to see what was happening, one of your co-offenders pointed a knife at him and two of the males forced him back into his room. The four of you then went into his room. You personally stole his laptop. There was another $1000 and other property taken from him.
Meanwhile, [name redacted, a female, victim 1] managed to call the police. However, you then went back into her room and tried to steal her wallet. Another co-offender held a knife to her throat and asked where her wallet was. Fortunately she managed to get you out of her room and locked the door. You all eventually left with an amount of stolen goods, including the television set, the two complainant’s mobile phones and an Xbox. Now, due to a link between [name redacted, a female, victim 1’s] daughter and a co-offender, you were eventually identified by a photoboard by the complainant [name redacted, a female, victim 1]. The summary offences include failing to appear and other bail offences, a public nuisance and a common assault. During the common assault, you slapped a female across the face.
The very refreshing and thorough report prepared by Ms Kelly, who is a social worker, has set out in great detail what she considers to be the reasons behind your offending which include your extensive drug use and anger-management and other antisocial problems.”[17]
[My underlining]
[17] Exhibit 5, s 501G-Documents, G2, page 37, lines 9-12 and 20-43.
There can be no question that the abovementioned examples of the Applicant’s offending are of a violent nature. It can only be categorised as “very serious”. During cross-examination, the Applicant agreed he was “…under the influence of alcohol or drugs when I committed those offences.” As noted by Her Honour Judge McGuiness when sentencing the Applicant on 6 April 2018:
“…It is clear from the material placed before me that you have descended into this criminal behaviour assisted by your abuse of cannabis and methylamphetamine. Apparently you commenced using cannabis at the age of 14 and you report that you were under the influence of methylamphetamine during the commission of those offences.”[18]
[18] Ibid, lines 3-7.
Strictly speaking, whether the Applicant’s offending is attributable to the abuse of alcohol or cannabis or “ice” is immaterial to my finding in relation to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction. I am of the view that the circumstances of the Applicant’s offending – not just for the offences for which he was sentenced on 6 April 2018, but for the totality of his offending history – must be categorised as very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. I have already outlined the circumstances of the common assault offence against the female victim at the Woodridge train station on 12 February 2016. That offending (1) involves violence and (2) was committed upon a woman. Likewise, I have earlier recounted the offending comprising “Robbery with actual violence”. Relevantly, the Indictment presented against the Applicant records the following three counts:
·Count 1 Burglary by breaking, in the night, in company;
·Count 2 and 3 Armed robbery in company, with personal violence [x2].[19]
[19] Exhibit 6, Summonsed Materials, SM13, page 212.
Also relevantly, Count 2 of the Indictment contains, inter alia, the following particulars about the first of the two “Armed robbery, in company, with personal violence” charges:
“…
And at the time of the robbery, [the Applicant] used other personal violence to [name redacted, the abovementioned victim 1, a female].”
In cross-examination, the Applicant offered tepid and, by now, irrelevant denials to (1) slapping the female victim of this offence in the face and (2) doing nothing to stop his co-accused from putting a knife to the throat of the male victim of this offending. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction has patent applicant to the Applicant’s violent offending against (1) the female victim of the common assault at the Woodridge train station on 12 February 2016 and (2) the female victim of the “robbery with actual violence” offence on 9 March 2017. Regardless of the sentence imposed, the Applicant’s violent offending against these two women renders his offending as very serious indeed.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s offending history demonstrates a duration of approximately three years running from September 2015 to April 2018. His offending during this period has been such as to attract custodial sentences on the following occasions:
·September 2015: a custodial term of six months for one charge of “enter dwelling with intent by break”;
·September 2015: a custodial term of four months for one charge of “possession of tainted property” and one charge of “receiving tainted property”;
·September 2015: a custodial term of 100 days for one count of “enter premises and commit indictable offence”;
·August 2016: a custodial term of four months for:
o“Possess utensils or pipes etc for use”;
o“Possess utensils or pipes etc for use”;
o“Possession of a knife in a public place or school”;
·August 2016: a custodial term of 12 months for:
o“Possessing dangerous drugs”;
o“Receiving tainted property”;
·August 2016: a custodial term of four months for:
o“Breach of bail condition”;
·August 2016: a custodial term of four months for:
o“Breach of bail condition” [x4]
·August 2016: a custodial term of 12 months for:
o“Receiving tainted property”; [x2]
·April 2018: a custodial term of four years for:
o“Enter dwelling with intent by break at night, in company, damage or threaten or attempt to damage property”;
o“Robbery with actual violence/armed/in company/wounded/used personal violence” [x2].
The immediately preceding regime of custodial terms is sufficient to attract the application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supportive of a finding that his offending to date is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Dealing firstly with the frequency of his offending, it should be noted that the Applicant is a relatively young man of just 21 years of age. The length of his offending history is commensurately short: under three years. Yet in that short period he has found himself before lawful authority on four occasions. Some 26 individual offences were dealt with by the sentencing courts on those four sentencing occasions. There can be no other finding than that despite his relatively short offending history, his offending has been of a frequent nature.
Turning to the question of whether there is a trend of increasing seriousness in the Applicant’s offending, one need look no further than two things, (1) the Applicant’s criminal history and (2) the Applicant’s own assessment of the evolution of his offending. From its inception, the Applicant’s offending is said to be serious. The first bundle of offences that came before the Brisbane Magistrate’s Court in September 2015 contained both a break and enter offence and respective offences for both possessing and receiving tainted property. August 2016 saw the Applicant before the sentencing courts for drug offences, property offences and for numerous breaches of his bail. That offending was punished by custodial terms ranging from four months to 12 months.
His offending culminates in his very serious offences that came before the Southport District Court on 6 April 2018. That offending was, as I have mentioned, punished by a head custodial term of four years. As the Applicant himself noted in his evidence: “As the years go by, the offences are getting more serious.” Taken in totality, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the relative frequency of the Applicant’s offending and its severity from its inception (plus its increasing severity) is such as to render his offending in this country as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. On any reasonable view, the cumulative effect of this Applicant’s offending has been such as to not just place members of the community in harm’s way; it involved the occasioning of actual harm on those members of the community. That harm could well have been truly catastrophic involving loss of life. It is clear from his offending history that his propensity to commit very serious offences can be directly linked to his abuse of either or both alcohol or illegal substances.
Another cumulative effect of the Applicant’s offending involves a finding that he has failed to respect the lawful authority governing the community to which he now seeks to be returned. His offending history contains at least nine instances of a refusal or failure to respect the lawful authority governing his conduct, be it in the form of (1) a failure to answer or a breach of bail, (2) a failure to appear at a court return date in accordance with an undertaking he had previously given or (3) the breaching of a suspended sentence.
A further cumulative effect of the Applicant’s offending involves an additional finding that he has clearly failed to respect the personal and property rights of others. His offending history contains at least 11 instances of a refusal to respect the personal and property rights of others, be it in the form of (1) breaking and entering into other people’s dwellings; (2) robbing those people of their property; (3) receiving or being in possession of goods suspected of being stolen, and (4) the administration of physical force/violence in the commission in certain of these offences involving other people’s property.
The application of this sub-paragraph (f) to the present factual matrix involving as it does (1) placing members of the community directly in harm’s way; (2) actually harming those members of the community; (3) a failure to respect lawful authority and (4) a failure to respect the personal and property rights of others, clearly gives rise to a finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction concerns itself with whether the Applicant has committed any offences while he was in immigration detention, during an escape from immigration detention, or after escaping immigration detention but before being taken back into immigration detention.
While there is no evidence that the Applicant had escaped from immigration detention, there is evidence that the Applicant was been involved in certain incidents both while in criminal custody and immigration detention. I am not able to glean from the material whether incidents in which the Applicant has been involved while in immigration have resulted in him being formally dealt with. The material does disclose that while the Applicant was in criminal custody he:
“…has been involved in 8 incidents since his incarceration. [The Applicant] has been involved in four incidents in 2018 where he has become verbally non-compliant and abusive towards staff. On two of these occasions, he has made direct threats to harm staff. On one occasion, [the Applicant] attempted to bite an officer whilst he was being restrained. In 2017, [the Applicant] was involved in a prisoner on prisoner fight which is believed to have started over the use of laundry detergent. In 2016, [the Applicant] was non-compliant with directions to lockdown in his cell…[the Applicant] was also identified as a perpetrator in an incident where four prisoners attacked another prisoner due to the belief that he was a rapist. In 2015, [the Applicant] was involved in a prisoner on prisoner fight which is believed to have started over butter.”[20]
[20] Exhibit 5, section 501 G-Documents, G2, page 74.
During cross-examination, the Applicant was questioned about incidents that apparently occurred in or about 19 June 2018 at which time the Applicant was transitioning from criminal custody to immigration detention. He was specifically asked about, and did not take significant issue with, his conduct involving (1) abuse that had been directed at SERCO officers, (2) the biting of a SERCO officer’s hand, (3) spitting in the face of that officer, (4) the Applicant’s possession of contraband, and (5) other incidents involving an assault and abusive language.
The Applicant conceded that he had not been well behaved during his time in immigration detention. With regard to his conduct at Brisbane Immigration Transit Accommodation (BITA) he agreed that “yes, my behaviour was not good.” He said his behaviour at the Melbourne Immigration Transit Accommodation (MITA) had been “good”, while during his time at the Yongah Hill Immigration Detention Centre near Perth, the Applicant said his behaviour had been “Ok,… just the one incident with the chef”. Ultimately, the Applicant agreed that his behaviour in immigration detention demonstrates that he does have difficulty following lawful directions. He said “…certainly…regarding Brisbane.”
I am mindful that this sub-paragraph (i) of paragraph 13.1.1(1) of the Direction regarding the Applicant’s conduct while in immigration detention actually requires a finding of a crime committed. While his behaviour in both criminal custody and immigration detention has not been exemplary, I cannot find evidence that it has resulted in a crime committed. For the purposes of this decision, I make no finding in relation to this sub-paragraph (i) and, at its highest, I will regard it as conduct giving rise to a reasonably held presumption that the Applicant does have difficulty in following lawful directions.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as ‘very serious’.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(a)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any 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, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date. I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant clearly becomes incapable of distinguishing right from wrong when he is under the influence of alcohol or illicit substances. His offending is both intended and deliberate. His evidence at the hearing confirmed that virtually all of his offending had, as its overriding purpose, an end goal of finding either (1) drugs or (2) money for the purchase of those drugs. Of greater concern for an assessment of the nature of any harm were he to reoffend is that his offending has been committed while he has been under the influence of alcohol and/or illicit substances. The problematic aspect of offending while so affected by these substances is that the offending becomes spontaneous and oftentimes irrational. The end-result of this type of offending is that it can be extremely dangerous and, quite conceivably, catastrophic.
It is not by any means a stretch of the evidence to suggest that the violent break and enter offending that was punished on 6 April 2018 could have easily resulted in either a fatality or significantly worse consequences for either of the two victims or, indeed, the Applicant and his co-offenders. Most often, this type of offending is done with the perpetrator(s) ‘in control’ of the situation with the victim(s) adopting a submissive posture wishing for the episode to end. Where this type of offending can go catastrophically awry is where the victim(s) puts up physical resistance and the perpetrator(s) – usually because their judgement is adversely affected by alcohol and/or illicit substances – do not desist and decamp and, as a result, disastrous outcomes result from the ensuing melee. This is precisely the sort of scenario in which the Applicant’s offending could result in significantly worse and/or catastrophic consequences.
Because the Applicant’s issues with alcohol and illicit substances remain unresolved, I am concerned that his future offending will most likely involve these unpredictable characteristics. I therefore think the potential consequences flowing from any future unjustified and unregulated conduct by him could be very serious. Were he to reoffend, I am of the view that its effect on the Australian community would be very serious indeed, and, conceivably catastrophic.

An assessment of the ‘nature of harm’ resulting from any reoffending by this Applicant are adequately informed by the circumstances of the offending that came before Her Honour Judge McGuiness at the Southport District Court on 6 April 2018. One ought review the circumstances of that offending and work backwards from there. I will not again recount the circumstances of that offending but, suffice it to say that, were the Applicant to recommit a like offence of lesser severity, the nature of the harm that would be occasioned upon a victim(s) is unarguably significant and serious. While not a seasoned offender, the impact of alcohol and illicit substances upon the Applicant has been such as to render his offending as very serious virtually from its inception. The Applicant’s relative youth compared to the serious nature of his offending history was not lost upon Her Honour Judge McGuiness who noted: “Your prior criminal history, for somebody who is so young, is concerning.” Further, Her Honour was respectfully correct to suggest that the circumstances of the offending that came before her for sentencing were “…extremely serious.”
Apart from the Applicant’s own evidence, there is no independent indication that the Applicant has developed a capacity to regulate his conduct such that the nature of any future harm resulting from his offending could be said to be of a lesser magnitude than that experienced by his victim(s) to date. I am thus of the view that any same or similar type of reoffending by the Applicant and its resulting harm would be very serious and could conceivably involve the occasioning of debilitating and even catastrophic physical or psychological harm. Any risk that it may be repeated on another person in the Australian community is simply unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no independent report or evidence informing the Tribunal about the Applicant’s risk of reoffending. It should also be noted that decisions of this type should not be delayed in order for rehabilitative courses to be undertaken an Applicant. Indeed, the expedited nature of this application militates against any such delay. The Applicant speaks of “I have done anger management class, every day i was attending to anger management class…”[21]. He also says he has completed courses in “Sports and Rec”, “first aid”, “Year 10 Certificate” and “Cert 2 Engineering”.[22]
[21] Exhibit 1, Applicant’s Statement, page 2.
[22] Ibid.
Be that as it may, there is nothing before the Tribunal from an independent expert to explain the extent to which his propensity to offend has been affected by his abuse of alcohol and/or illicit substances. The highest it can be put on behalf of the Applicant is to note his words: “…I am waiting to be on the CSCP to better my behaviour problems”.[23] In his oral evidence, he said “I’ve learnt to walk away from a situation. I’ve learnt that you don’t hold your anger in; need to speak about it with someone.” I am of the view that the Applicant’s own reporting of his apparent mastery of issues that have given rise to his propensity to reoffend cannot carry any significant or substantial weight for the purposes of this consideration. Such a position must be corroborated by independent and expert evidence.
[23] Exhibit 5, s 501G-Documents, G2, page 51.
The reason I reach this conclusion is that while the Applicant acknowledges he has committed very serious offences in the past, the causative factors behind that offending remain unidentified and unknown. They also remain unassessed and any prognosis about how those issues may condition any future propensity to offend is not known.
The Applicant has been in criminal custody and/or immigration detention since April 2017. He remains in immigration detention. Sufficient time has not elapsed where the Applicant has not been in an unsupervised environment within the community and the likelihood of his re-offending in such an open environment remains untested. His psychological/psychiatric issues predisposing him to offend remain unidentified, untreated and unresolved. There is nothing before the Tribunal to provide any measure of confidence that, were he to find himself in a similar position of peer group pressure and adverse external influence, he would not again resort to abusing alcohol and illicit drugs with the same, if not worse, outcomes than is contained in his criminal history thus far.
In his oral evidence, the Applicant spoke of his offending days being behind him and of an intention to return to his family with whom he says he is “close” and to develop his domestic relationship with a partner he recently met online. The difficulty with that contention is that he does not seem to have played any significant role in the lives of his other family members or as a father figure or financial contributor to either his asserted partner or her two infant children by another relationship.
I am mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[24]
[24] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol and other illicit substances.
Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 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 material discloses four minor children potentially affected by the cancellation decision. Those first two children comprise a male child aged 9 years and a female child aged 3 years, respectively. The children reside in Australia and are primarily cared for by their mother, who, apparently, is the Applicant’s current partner. Each of the two children were born and reside in Australia. The children are from a previous relationship of the Applicant’s partner.
The other two children are twin boys born to the Applicant’s younger sister in February 2019.
There is a concession (of sorts) from the Respondent about this Primary Consideration B. The Respondent contends that limited weight, if any, should be given to this Consideration.[25] I agree with this contention.
[25] Exhibit 4, Respondent’s SFIC, page 10, paragraph [45].
In his Personal Circumstances Form completed on 11 June 2018, the Applicant responded as follows to the question relating to “YOUR RELATIONSHIP STATUS: What is your relationship status now?” In answer to this question, the Applicant marked the box with the word “Single” next to it.[26] In response to the question “If you are currently in a relationship, please provide details of your partner below:” The Applicant did not complete any part of this form relating to any partner, past or present nor of any minor children arising from or otherwise connected to any such previous relationship.[27]
[26] Exhibit 5, s 501G-Documents, G2, page 46.
[27] Ibid, page 47.
In his undated statement that was filed in these proceedings on 14 March 2019, the Applicant makes no mention of any connection with the two infant children of his asserted partner, save and except for several references on the second page of that statement where talks about the occasions on which he has spoken to his asserted partner during his time in immigration detention.[28] He sought to augment this part of the evidence during the hearing by saying, with reference to his asserted partner, “…I talk to her kids everyday…I ask how their school is going…”.
[28] Exhibit 1, Applicant’s statement, second page.
The Applicant’s asserted partner has provided a statement in these proceedings. Her statement is dated 19 November 2019. She gave evidence at the hearing before me. Her evidence in chief comprised the abovementioned written statement. In this statement, she says these things:
“…
I am a 26 year old female, mother of two, [name redacted – child 1] (9) [name redacted – child 2] (3)…
I have been in a relationship with [the Applicant] for approximately 3.5 months and understand this letter may not hold any leverage…
[The Applicant] and I are in contact every day by videochat, social media or via phone network…
I believe the factor of being under the influence of drugs, age also being the wrong crowd has led his life to a stricken closure with the possibility of being deported back to Africa.
…
My children and I are looking forward to him being home. Safe, clean, out of trouble, focussing on life goal dreams, career and family.
...”[29]
[29] Exhibit 3, statement of Applicant’s asserted partner dated 19 November 2018.
Under cross-examination, the Applicant’s asserted partner said she was aware of the Applicant’s prior offending and that “…drugs were involved…” in that offending. She agreed she had not seen any court documents relating to that offending. She confirmed “yes, we’re in a relationship; he’s my partner.” She also confirmed that that they “met online through Facebook and the relationship developed from there.” She told the hearing that she was in regular contact with the Applicant via WhatsApp, telephone, Facebook, and Facetime. She said that they speak “every day.”
The Applicant’s asserted partner is based in Wollongong, New South Wales where she resides with her mother. She says the Applicant is in regular contact with her two infant children. She was asked whether the Applicant would come and live with her if his visa was restored to him and he was released from detention. She responded with “[the Applicant] will go to spend time with his family in Queensland. Then we will work out how we will live together.” She was also asked about what sort of support she could provide to the Applicant in a domestic setting and she responded with “emotional support, mental support.” She added that she would not tolerate any further offending behaviour from the Applicant and she would assist him by taking him to necessary appointments with counsellors and the like.
She confirmed that she has recently had health issues. In terms of the Applicant’s interaction with her children she said “[the Applicant] shows interest in my son’s swimming, he asks about my son’s homework.”
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)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);
(b)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;
(c)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;
(d)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;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. The Applicant’s role in the lives of the minor children of his asserted partner has been significantly limited as a result of his absence in immigration detention. He has never met those two children in person and, as I understood the evidence, has only directly spoken with the older of the two children. The other two children – his nephews being the children of his younger sister born in February this year – are obviously too young for him to even speak with them or to otherwise establish some kind of demonstrable rapport with them.
It is reasonable to find that the Applicant has been either totally or substantially absent from the lives of the four relevant children during the period of his physical absence in immigration detention. While he speaks of having a connection with the two infant children of the asserted partner, there is minimal evidence of any previously consistent parenting role he may have played in their lives for any significant duration. The Applicant has only been in a relationship with the asserted partner/mother of these two children for something in the order of eight or nine months and has never physically met either his asserted partner or the two infant children.
Having regard to the totality of the evidence, I am of the view that it is in the best interests of the four children that a slight level of weight be attributable to this sub-paragraph (a) in support of a finding that the Applicant’s migration status to remain in this country should be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
During the period of his removal from the community, be it in criminal custody or immigration detention, it is clearly the case that the Applicant has been prevented from playing any parental role for any of the four children. There is minimal and scant evidence of any real parental involvement between the Applicant and the two infant children of the asserted partner. There is no evidence of any parental involvement with his twin nephews born in February this year.
Be that as it may, there is nevertheless a significant cumulative period of time until the four children attain the age of 18 years. On that basis, and on the basis of whatever parental role (if any) the Applicant may have played in their lives thus far, a slight measure of weight can be attributed to this sub-paragraph (b) in favour of a finding it would be in the best interests of the four infant children in Australia that his visa to remain here be restored to him.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the four infant children in Australia. There is no evidence of any such impact to date on any of the four children. It would be dangerous to allocate any measure of weight to this sub-paragraph (c) in favour of any finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his two children.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the four infant Australian children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. The evidence confirms that there are two aspects to any discussion of this factor. First, the Applicant has never physically met the two infant children of his asserted partner or his two nephews. The Tribunal cannot find with any certainty whether any physical separation between the Applicant and the infant children, were he compelled to return to Sudan, would very significantly, or at all, have any adverse impact on them.
Second, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his two nephews and the two infant children of the asserted partner by SMS and/or social media platforms from South Sudan or elsewhere. Indeed, both the Applicant and his asserted partner have confirmed in their evidence that such electronic communication is already occurring. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant children via Skype and other digital platforms.
In these circumstances, this sub-paragraph (d) is of neutral weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the four minor children in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. The Applicant’s asserted partner appears to be the sole and primary caregiver of her two children. She lives with her mother, who, presumably, assists her with parental responsibilities for both of those children. There seems to be no contrary suggestion from the Applicant to this reality. The Applicant’s newly born twin nephews are obviously primarily parented by their mother, the Applicant’s younger sister.
Having regard to the factual circumstances of this case, this sub-paragraph (e) is, at its highest, only of slight weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of the four minor children in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. The infant children of the asserted partner have not known the Applicant for long enough or well enough to be able to reliably express any such views. The newborn twin nephews are way too young to express any such views. There is no independent and expert evidence reporting upon any such views held by any of the four children, in particular, the infant children of the asserted partner.

It is thus difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in favour of any finding the known views of any or all of the four children militate in favour of restoration of the visa to the Applicant.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child (or children) has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. There is no such evidence before the Tribunal. None of the Applicant’s offending was committed in the presence of any of the children. I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by any of the children as a result of the Applicant’s offending conduct (as opposed to his prolonged physical absence from their lives) – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of both the Applicant and his asserted partner that confirms their relationship is, at best, in its formative stages and that they are yet to “…work out how [they] will live together”;
(b)the relative absence of any convincing evidence about a substantive parental connection between the Applicant and the asserted partner’s two infant children;
(c)the absence of any convincing or substantive evidence about the parental role the Applicant has played and may continue to play in the lives of the four infant children were he to be returned to their lives (in a physical sense);
(d)the slight level of weight I have attributed to factors (a), (b) and (e) of paragraph 13.2(4) of the Direction;
(e)the Respondent’s concession that limited weight, if any, should be given to this Primary Consideration B,
- I am of the view that the best interests of the four minor children in Australia does weigh very slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by:
·concurring with the Respondent’s submission that limited weight, if any, should be given to this Primary Consideration B; and
·any weight attributable to this Primary Consideration B does not, in any way, outweigh the heavy weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[30] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[31] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[30] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[31] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
For the purposes of considering the instant application, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[32] notwithstanding the contributions of the Applicant (if any) to the Australian community and the impact of his removal upon his immediate family in Australia.[33] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[32] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[33] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in April 2007 as a nine year old and has not departed Australia since that time;
·His offending history runs from September 2015 until April 2018 – barely three years;
·His offending across that barely three year period saw him before lawful authority for sentencing on four occasions requiring judicial officers to sentence him for some 26 individual offences;
·During the barely three year history of his criminal offending, custodial sentences have been imposed on the following occasions:
oSeptember 2015: six months;
oSeptember 2015: four months;
oSeptember 2015: 100 days;
oAugust 2016: four months;
oAugust 2016: 12 months;
oAugust 2016: four months;
oAugust 2016: four months;
oAugust 2016: 12 months; and
oApril 2018: 4 years.
·The totality of his adult life in this country has undeniably involved a consistent and increasingly serious level of offending, culminating in the imposition of a quite significant custodial term in April 2018;
·While it can be accepted that he did not serve the abovementioned custodial terms on a cumulative basis, taking each individual custodial term on its own, the totality of custodial terms imposed between September 2015 and April 2018 amounts to approximately eight years.
·I have found that his offending in this country can only be described as very serious and I have also found that there is a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any convincing level of insight into his offending so that (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[34]
[34] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[35] The learned Deputy President thought this paragraph leads a decision maker to:
“102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.”
[my underlining]
[35] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[36]
“In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.”
[my underlining]
[36] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.”
[my underlining]
In Afu v Minister for Home Affairs,[37] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[37] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by the imposition of a very significant custodial term for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending involving, as it does, a lack of respect for lawful authority and the personal and property rights of others in the Australian community;
(iii)My finding that such lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
(iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
In his evidence, the Applicant speaks of being a “…changed man, i want to show the coomunity [sic] who im really am [sic], i want to represent my name, i don’t use drug no more i’ve been clean since the day I got locked up in 2017, i have changed let me have a fair go and show the community that i haved [sic] changed how can i show it when im not out there…” Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[38]
[38] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant has not been entirely dilatory during his time in this country. To quote from his statement tendered into evidence:
“…I got out of jail went to Loganlea Tafe i got my cert 2 in hospitality after I finished my course I got a job within a week, worked for 6 month [sic] for a company called ([name of company redacted]) it’s a pick-pack, forklift job. I was unpacking stuff from the truck container into the pallet, it was a travel job from suburb to suburb helping different warehouses, sometime i start working at 6am-3pm or 8am-3pm.” [39]
[39] Exhibit 1, statement of the Applicant, second page.
It can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because (1) he has been removed from that community on a continuous basis since April 2017 and (2) none of the psychological symptomatology predisposing him to offend has been addressed or dealt with by independent expertise.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
The Respondent contends that (1) this Other Consideration is not of relevance to the determination of this application and (2) the evidence that is currently available indicates that an assessment of this Other Consideration (a) is not necessary in the circumstances.[40] I have misgivings about the first contention of the Respondent, but have a greater level of sympathy for the second contention.
[40] Exhibit 4, Respondent’s SFIC, page 11, paragraph [54].
The Applicant has contended and appears to continue to contend that he fears the prospect of returning to South Sudan. In his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A), he said:
·I’m really scrad [sic] to go back to South Sudan. I have no chance of being alive from I go back to South Sudan;[41]
·I been [sic] thru a lot when I was a young boy. I didn’t have a father to tell me right and wrong;[42]
·In response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the Applicant responded, “Yes.” In response to the further question, “If yes, please describe your concerns and what you think will happen to you if you return.”, The Respondent replied with “I come to Australia because of the war, so I don’t know where I would be if I didn’t come here. I’m scard [sic] that I won’t be alive. That I would be killed and homeless if I go back to Africa and have no-one back in Africa.”[43]
·In response to the question “Are there any problems you would face if you have to return to your country of citizenship?”, the Respondent replied with, “I don’t have any family member back home. I grow up in refugee camp I would also have to face the war. Big chance of my getting killed.”[44]
[41] Exhibit 5, G Documents, G2, page 64.
[42] Ibid, page 51.
[43] Ibid, page 53.
[44] Ibid, page 54.
Witness “KR” is the brother of the Applicant. He has provided a written statement in these proceedings.[45] He also provided oral evidence at the hearing. As best as I understood the totality of the evidence attributable to witness “KR”, he did not mention anything about any fears of harm held by the Applicant that the Applicant may have expressed to him.
[45] Ibid, G2, page 58.
As alluded to above, the Applicant’s apparent partner provided both a written statement[46] and oral evidence at the hearing. Similarly, witness “KO” has provided a written statement[47] and also gave oral evidence at the hearing. As I understood the totality of her evidence, she did not mention anything about any fears of harm held by the Applicant were he compelled to return to South Sudan.
[46] Exhibit 3, Statement of apparent partner of the Applicant, dated 19 November 2018.
[47] Exhibit 5, s501 G Documents, G2, pages 56-57.
The Applicant’s sister – witness “SR” – provided a written statement[48] and gave oral evidence at the hearing. Her written statement says these things about fears of harm the Applicant may have were he compelled to return to South Sudan:
“Coming from Africa and having to witness some of the horrific scenes during the war that went on then, as a little boy, not only does this stick with you, but this traumatises and damages the way your mind works and this. As a boy, [the Applicant] witnessed people screaming in agony as they watched everything they loved get ridded [sic] away from them. Children’s mothers, fathers, animals were killed; tortured, molested or forced to kill another loved one. During that time, parents were left with no choice but to run and hide with their children in the forests. Sleeping in the cold and rain for days, weeks, and months; other members that also escaped would either get sick or die from hypothermia. When this happens, your [sic] left with no other choice but to carefully and sneakily migrate to another forest.
Events as such are critically dangerous because if not handled correctly, it can damage and destroy a child. I whole heartily [sic] miss and truly fear for my brother’s life if he was to ever relief [sic] what happened back in Africa…”[49]
[48] Exhibit 2, Statement of Applicant’s sister, undated.
[49] Ibid, fifth paragraph first page, and first paragraph, second page.
There are, respectively, two transcripts from two separate sentencing episodes to be found in the material. The first of those sentencing episodes occurred on 2 August 2016 at the Beenleigh Magistrates Court. The Applicant was legally represented at that hearing. Nowhere in that transcript – in either submissions made on behalf of the Applicant or by way of notation by the sentencing judicial officer (Mr Roney SM) - is there any reference to the Applicant experiencing any hardship in South Sudan at any stage before his arrival in Australia.
The second of the two sentencing episodes for which there is a transcript in the material occurred on 6 April 2018 before Her Honour Judge McGuiness at the Queensland District Court held at Southport. The Applicant was legally represented at that hearing. The only reference to the Applicant’s past in South Sudan made by Her Honour Judge McGuiness, reads as follows:
“…You were born in South Sudan. You migrated to Australia with your mother and siblings. Two of your siblings and your father are deceased. Prior to coming out here, you were required to live in a refugee camp for some six years.”[50]
[50] Exhibit 5, s501 G Documents, G2, page 36, lines 41-44.

In making an assessment of any mental or psychological factors predisposing the Applicant to offend, Her Honour Judge McGuiness made a very brief reference to the Applicant’s “…bad or difficult childhood…”, but little else. Her Honour said this:
“You have some things in your favour. You do not seem to suffer from any mental health issues. You are somebody that is in a much better position than many other people who come before this Court. Ms Kelly [a social worker] identifies that you would clearly benefit from drug and alcohol counselling and an anger management program and further counselling by a qualified practitioner in relation to your bad or difficult childhood. In these circumstances, I must weigh a number of those factors and other important factors that have been placed before the Court…”[51]
[51] Ibid, G2, page 38, lines 6-12.
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WK) visa…
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[52] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[52][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[53] In Greene v Assistant Minister for Home Affairs,[54] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
“The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.”[55]
[53] [2018] FCA 650.
[54] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[55] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Class XB, Subclass 202 Global Humanitarian visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[56] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[56] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
The critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
“The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).”[57]
[57] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [33].
As things stand, the Applicant has given predominantly written evidence of a fear of harm were he to be returned to South Sudan. Notably, apart from himself, only one of his group of four witnesses speaks of him saying anything about an apparent fear of harm. As best as I recall his oral evidence, the Applicant did not propound this fear to any notable extent, if at all, in the hearing before me. In short, I regard as unconvincing both the Applicant’s written and oral evidence about any fear of harm were he to be returned to South Sudan.
There are two aspects of his evidence relating to an apparent fear of harm that, to my mind, are important. First, only one of his four witnesses gave any evidence about any such fear of harm. His brother (witness “KR”) said nothing about it, nor did his apparent partner with whom he has been communicating since November last year, nor did witness “KO”, a close family friend who says she has spent much time with the Applicant trying to assist him to cure the errant ways of his past. Only his sister, witness “SR’, has said anything about the asserted fear of harm. Second, one would have expected to find some evidence about a submission regarding the traumatic effects of the Applicant’s childhood in the respective sentencing transcripts dating from 2016 and 2018. As outlined earlier, there is scant reference to any previous or ongoing psychological impact from any difficult childhood and/or any apprehended fear upon a return to South Sudan.
I am mindful of the recent decision of Omar v Minister for Home Affairs[58]. In that case, Her Honour Judge Mortimer found that the Assistant Minister had failed to carry out the statutory task under s501CA(4) of the Act by failing to consider the Applicant’s representations going to “another reason” why the cancelation of the visa should be revoked and, in particular, failing to consider the Applicant’s representations to be owed non-refoulement obligations. I am of the view that Omar is distinguishable from the present matter in circumstances where the evidence demonstrates that the Applicant has failed to set out “a serious and substantive basis in fact and in law for that representation”.
[58] [2019] FCA 279.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
There is a readily made concession by the Minister (which I note and accept) that whilst this Other Consideration (b) may weigh in favour of revocation, it should be given limited weight only and is significantly outweighed by the factors weighing against revocation, particularly Primary Considerations A and C.[59]
[59] Exhibit 4, Respondent’s SFIC, page 12, paragraph [59].
The starting point of any assessment of weight attributable to this Other Consideration (b) is to ascertain the Applicant’s own position about factors connecting him to Australia. He said these things in a written statement in June, 2018:
“No one is there to look after my mother. There is but if my little sister my oldest brother and sister don’t live near us. At the moment it only [sic] my mother and my little sister, she can’t look after my mother because she’s young and she also work. I was the only man of the house and I want be there support her and my little sister. My brother and sister live in North – side they also studies in uni. My mother and my little sister are in south side…”[60]
[60] Exhibit 5, s501 G Documents, G2, page 65.
Further, in his statement filed for the purposes of these proceedings, the Applicant said these things:
“…My little sister was also pregnant was due on the 20/2/2019, breakdown for me because I knew I wasn’t going to be there for the day my nephew’s (twin boys) came out and also for the rest of my family, then i got transfer to Perth immigration.”
…
“I want to get out and go my culture community and stand up and talk to all the young youth to not do crime, respect all other different coomuinty [sic] focus on your goal and life, stay out of troble [sic] look after your kids in your future when yous [sic] all have kids, look aftere [sic] your mother, or any familys [sic] you got…i got family that i want to be with, I want to look after my two newphews [sic], my little sister and my mother shes sick i was the man of the house, my oldest sister and brother dont live with my mother, they lived together down northside, theres two woman [sic] and kids i left at home, i want to be there for my family.”[61]
[61] Exhibit 1, Applicant’s Statement, undated.
In his Personal Circumstances Form, the Applicant mentions a number of immediate family members in Australia. In terms of immediate family, the Applicant’s mother, two sisters and brother all reside in Australia. In response to the question “Please state how many other relatives you have in Australia or overseas”, the Applicant has not nominated any person.[62]
[62] Exhibit 5, s501 G Documents, G2, page 50.
I am mindful of the statement and/or character references filed in support of the Applicant. His brother (Witness “KR”) says these things:
“[The Applicant] is one of the most hardworking and dedicated people I know. His work ethic and commitment to his family and friends are his strongest attributes…
That is one thing I admire about my brother, once he understands his mistakes he’ll do everything to make up for it. Australia has done a lot for my family (including [the Applicant]) and I believe deep in his heart; though he may not show it or express it; he’s appreciative of the opportunity and second chance it has given him.”[63]
[63] Ibid, page 58.
I approach the evidence of the Applicant’s apparent partner with caution. As mentioned earlier, their relationship to date has been purely conducted via electronic means. Her evidence is that, were he to be returned to the community, they would prioritise his re-connecting with his family in Queensland before he and she made any firm arrangements regarding his relocation from Queensland to Wollongong, New South Wales to live with her and her two infant children. I have misgivings about the extent to which the Applicant’s connection with the apparent partner can be said to be a factor significantly tying him to this country.
The Applicant sister, Witness “SR” said these things:
“During some of our conversations, he talks about wanting to come home to further his education, get a job and be there for his family. The past two years has been the hardest for our family with [the Applicant] going away; mum constantly being admitted to hospitals due to depression, flashbacks, stress, and health conditions. My brother is a very family orientated individual and there’s nothing he loves more than his family.
…Another reason he looks forward to coming home is so that he can look after mum and help release some of her stress and depressions. I love my family very much, and as much as I would love to be there for them, this is rather a little challenging at time as I work full-time and has just been transferred to [location redacted] for work.
…
Since my younger sister, …gave birth to two beautiful twin boys, [the Applicant] did not get an opportunity to meet or be there for her.
The community, his friends and families, who all want and wish to have him back home in Brisbane all love [the Applicant] dearly.
…”[64]
[64] Exhibit 2, Statement of witness “SR” (the Applicant’s older sister), undated.
It is clear that the strength, nature and duration of the Applicant’s ties to Australia are somewhat significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), favours the Applicant.
That finding must be tempered by the factors appearing at 14.2(1)(a) of the Direction. Although the Applicant arrived here as a nine year old, and did not begin offending until his mid-late teens, his offending conduct spans the entirety of his adult life in this country. It culminates in April 2018, with him being sentenced to a custodial term of four years imprisonment for the commission of very serious offences. That term in criminal custody, upon its expiry, led to his placement in immigration detention. Thus, he has consistently offended (and very seriously so) for virtually the entirety of his adult life. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to paragraph 14.2(1)(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.
While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by the Primary and Other Considerations which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me to indicate the Applicant’s involvement in the delivery of any major project or important service in Australia is contingent upon his remaining here. The necessary employment link in Paragraph 14.3(1) of the Direction is not made out. This consideration is therefore not relevant to the determination of this application.
(d) Impact on victims
I note the comments of Her Honour Judge McGuiness made at the sentencing hearing on 6 April 2018:
“As was submitted by the Prosecutor, even though no victim impact statements have been supplied, this could not have been otherwise, than a traumatic experience for the people in the house.”[65]
[65] Exhibit 5, s501 G Documents, G2, page 38, lines 25-27.
The Respondent in these proceedings has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction reads as follows:
“To 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 substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.”
With reference to the factor appearing at Paragraph 14.5(1)(a) of the Direction, it can be noted that the Applicant does not suffer from any diagnosed medical or psychological condition. His Personal Circumstances Form discloses that, in response to the question “Do you have any diagnosed medical or other psychological conditions?”, the Applicant replied “No.”[66] Further, Her Honour Judge McGuiness noted (when sentencing the Applicant in April 2018): “You have some things in your favour. You do not seem to suffer from any mental health issues. You are somebody that is in a much better position than many other people who come before this Court.”[67]
[66] Ibid, G2, page 53.
[67] Ibid, G2, page 38, lines 6-8.
The Applicant spent the first nine years of his life in then Sudan, now South Sudan. It is difficult to accept that he would face insurmountable language and cultural barriers were he to be returned there. While I accept he would face difficulties in re-establishing himself in South Sudan, I regard it as, to an extent, implausible that there is no one at all in South Sudan who could vouch for him upon his return there.
I am mindful of the difference between the level of any social, medical and/or economic support available to citizens in South Sudan compared to Australia. As against that, regard must be had to the ambit of paragraph 14.5(1) of the Direction. It relevantly stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before me to suggest that the Applicant would not be able to access those facilities in the same manner as they are available to all of the other citizens of South Sudan.

The Respondent acknowledges[68] that the Applicant fled Sudan/South Sudan as a refugee and that he does not appear to have significant social and familial support networks in that country. The Respondent further concedes that the Applicant would have difficulty accessing comparable social, practical, medical and financial opportunities as he would in Australia. On this basis, the Respondent concedes that this Other Consideration (e) weighs in favour of the Applicant. I agree.
[68] Exhibit 4, Respondent’s SFIC, page 13, paragraph [66].
Summary of Other Considerations
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength nature and duration of ties: weighs in favour the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: of no weight; and
(e)Extent of impediments if removed: weighs in favour of the Applicant.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercising of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs very slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or Primary Consideration B, outweigh the very significant combined weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 156 (one hundred and fifty- six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................ [SGD]............................................
Associate
Dated: 14 May 2019

Date(s) of hearing: 3 May 2019

Applicant: In person (via video-link)

Advocate for the Respondent: Mr William Staples (Solicitor)

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	3 May 2019
Applicant:	In person (via video-link)
Advocate for the Respondent:	Mr William Staples (Solicitor)
Solicitors for the Respondent:	Clayton Utz