MQGT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3228
•6 October 2022
MQGT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3228 (6 October 2022)
Division:GENERAL DIVISION
File Number: 2019/0961
Re:MQGT
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Britten-Jones
Date:6 October 2022
Place:Melbourne
The decision of the Tribunal is to affirm the decision made on 18 February 2019 to not revoke the cancellation decision of 8 June 2018.
...[sgd].....................................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is “another reason” to revoke mandatory cancellation decision – applicant has strong links to the Australian community and would face significant impediments and serious risk of harm if removed to South Sudan – the primary considerations of the protection and expectations of the Australian community outweigh the countervailing considerations - the decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
Nationality Act 2011 (South Sudan)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
6 October 2022
This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Humanitarian visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY
On 8 June 2018, the visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment amounting over 12 months.
On 14 June 2018, the applicant sought revocation of the cancellation decision and made representations in support of that request.
On 18 February 2019, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 21 February 2019, the applicant applied to the Tribunal for review of the non-revocation decision. A subsequent decision of the Tribunal was set aside by the Full Federal Court who remitted the application to the Tribunal for reconsideration.
Legislative Framework
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by ss (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision, to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 90 at 7.
SOME BACKGROUND FACTS
The applicant was born on 7 November 1997 in present day South Sudan. When he was one years old his family fled Sudan and spent eight years in a refugee camp in Uganda. He lost his father in the war when he was very young.The applicant experienced significant trauma before he came to Australia with his mother, brother and sister on 11 April 2007. He has another sister who came to Australia in 2008. They settled in Brisbane.
The applicant had behavioural problems at school and was expelled twice before he completed his education up to year 10. The applicant’s mother has been sick for many years and currently receives support through the National Disability Insurance Scheme. As the older male in the family, the applicant felt an obligation to support his mother and family. He tried unsuccessfully to get a job and then turned to drugs and crime.[7] The applicant stated that sometimes he stole because he and his family were hungry. Much of the offending was drug related.
CONSIDERATION
[7] Exhibit 1 at G2 p 62
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant committed a series of offences from 2015 to 2017 as set out in the applicant’s statement of facts, issues and contentions below:
(a)On 16 March 2015, the applicant committed the offence “unauthorised dealing with shop goods” involving stealing food as he was hungry. On 3 September 2015, the applicant received no further punishment for this offence.
(b)On 22 March 2015, the applicant committed the offence “enter premises and commit indictable offence” by entering an unlocked warehouse and smoking cannabis with his peers. On 3 September 2015, the applicant was sentenced to a term of imprisonment of 100 days with a probation period of nine months for this offence.
(c)On 8 April 2015, the applicant committed the offence “enter dwelling with intent by break”. On 3 September 2015, the applicant was sentenced to a term of imprisonment of six months’ imprisonment partially suspended after 100 days for 12 months for this offence.
(d)On 13 April 2015, the applicant committed the offences “receiving tainted property”, being an iPhone, and “possess tainted property” being mobile phones, money and jewellery. On 3 September 2015, the applicant was sentenced to a term of imprisonment of four months’ imprisonment suspended for 12 months for these offences.
(e)Between 26 May 2015 and 3 September 2015, the applicant was in custody due to the offences dealt with on 3 September 2015.
(f)On 14 November 2015, the applicant committed two offences of “possess utensils or pipes etc for use” being a straw and a pipe. On 2 August 2016, the applicant was sentenced to a term of imprisonment of four months with a parole release date of 20 August 2016 and probation for two years for these offences.
(g)On 23 January 2016, the applicant committed two offences of “receiving tainted property”. On 2 August 2016, the applicant was sentenced to a term of imprisonment of 12 months with a parole release date of 20 August 2016 for these offences.
(h)On 30 January 2016, the applicant committed the offence “possess dangerous drugs” and “possession of a knife in a public place or a school”. On 2 August 2016, the applicant was sentenced to terms of imprisonment of 12 months and four months respectively with a parole release date of 20 August 2016 for these offences.
(i)On 12 February 2016, the applicant committed the offence “common assault”. On 6 April 2018, the applicant was sentenced to two years’ probation for this offence.
(j)On 15 February 2016, the applicant committed the offence “failure to appear in accordance with undertaking”. On 18 February 2016, the applicant was fined $200 for this offence.
(k)On 17 February 2016, the applicant committed the offence
“receiving tainted property”. On 2 August 2016, the applicant was sentenced to a term of imprisonment of 12 months with a parole release date of 20 August 2016 for this offence.(l)On 22 February 2016, 26 February 2016, 2 March 2016, 11 March 2016 and 20 April 2016, the applicant committed five offences of “breach of bail condition”. On 2 August 2016, the applicant was sentenced to a term of imprisonment of four months with a parole release date of 20 August 2016 and probation for two years for these offences.
(m)Between 21 April 2016 and 20 August 2016, the applicant was in custody due to the offences dealt with on 2 August 2016.
(n)On 9 January 2017, the applicant committed the offence “possess utensils or pipes etc that had been used”. On 6 April 2018, the applicant received no further punishment for this offence.
(o)On 23 January 2017, 31 January 2017, 13 March 2017 and 15 March 2017, the applicant committed two offences of “failure to appear in accordance with undertaking” and two offences of “breach of bail condition”. On 6 April 2018, the applicant received no further punishment for this offence.
(p)On 9 March 2017, the applicant committed the offence “enter dwelling with intent by break at night in company, damage or threaten or attempt to damage property” and two offences of “robbery with actual violence armed/in company/wounded/used personal violence”. On 6 April 2018, the applicant was sentenced to a term of imprisonment of four years, partially suspended after serving 14 months for these offences.
(q)On 20 April 2017, the applicant committed the offence “commit public nuisance”. On 6 April 2018, the applicant received no further punishment for this offence.
In addition to the offences above, the applicant was convicted by the Sandgate Children’s Court of certain offences on 4 June 2013. The applicant was reprimanded but no conviction was recorded.
The sentencing Magistrate on 2 August 2016 noted there were 12 matters before the Court including breaches of suspended sentences from the previous year. He considered that the most serious offences were possessing dangerous drugs and receiving tainted property for which he was sentenced to 12 months imprisonment with a nine month parole period commencing on 20 August 2016.
The sentencing Judge on 6 April 2018 said with respect to his prior criminal history and the subject offending:
“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. On the 2nd of August 2016, you were sentenced to 12 months’ imprisonment and probation for two years. There was a parole release date set at the 20th of August 2016. You had served 104 days in pre-sentence custody. The full time of that sentence was the 20th of April 2017. Now, you breached your parole and the probation by the commission of these offences and you have been remanded in custody since the 20th of April last year. I intend to declare that period as time served under the sentence. Turning to the facts of this case, they are extremely serious. You and three others broke into the complainant [redaced] home to steal money and drugs. You all entered her bedroom and searched it. When another complainant, [redacted], 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 $1000 and other property taken from him. Meanwhile, [redacted] 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 the wallet was. Fortunately, she managed to get you out of her room and locked her door. You all eventually left with an amount of stolen goods, including the television set, the two complainants’ mobile phones and an Xbox. Now, due to a link between [redacted] daughter and a co-offender, you were eventually identified by a photoboard by the complainant [redacted]. 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.”[8]
[8] G2, page 37 of the G documents.
I give no weight to the juvenile offences when concluding, as is accepted by the applicant, this his offending is very serious. It is also of concern that there are numerous reports of incidents in prison. A report from the Queensland Corrective Services from June 2018 referred to eight incidents since his incarceration commenced on 28 April 2017. The applicant had been involved in four incidents in 2018 where he became verbally non-compliant and abusive towards staff. On two occasions he made direct threats to harm staff. On one occasion he attempted to bite an officer. In 2017 he was involved in a fight with another prisoner. During cross examination the applicant said that he took full responsibility for these incidents. Dr McCue, a clinical and forensic Psychologist referred to these incidents and said in his report dated 25 January 2022:
“During the current assessment, [the applicant] recognised that he has problems with people in positions of authority, and following the directions of people in authority. He said that he does not trust authority. He explained his position that he has “always being picked on by police”. … He acknowledged that these perceptions have also caused him to be oppositional during exchanges with people in authority. Despite his awareness, he appeared to lack insight into his need to address his thoughts and feelings therapeutically to reduce his anger.”
The applicant’s offending includes crimes of a violent nature against women which is viewed very seriously by the Australian Government and community.[9] The crimes from 2015 to 2017 were frequent and showed a trend of increasing seriousness, culminating in the two counts of armed robbery with personal violence, and the common assault when he slapped a female across the face. The cumulative effect of this repeated offending is very significant. The seriousness of the offending and his lack of respect for persons in authority are very significant factors in terms of whether I am satisfied that there is “another reason” to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
[9] Direction 90 at 8.1.1(1)(ii).
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable[10] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[10] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[11] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if the applicant engaged in further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
[11] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because the offending was repeated and involved drugs, violence, dishonesty and property damage.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low risk of re-offending because he has learnt from his past mistakes which he does not want to repeat. Whilst incarcerated the applicant completed some anger management courses and drug and alcohol courses. He attended the Men’s group course and worked in the kitchen and cleaning unit. He went into detention in June 2018 and he has had time to realise the gravity of his actions. He is now 25 years old and has matured and changed as a person.
The applicant relies upon a psychological assessment from Dr McCue. With respect to insight into his offending behaviour, Dr McCue said:
“During the current assessment, [the applicant] demonstrated insight into his offending behaviour. He openly recognised that his choice of peers has encouraged and reinforced his antisocial and offending behaviour and provided him with the necessary connections to obtain cannabis and methylamphetamine. He also acknowledged that his illicit drug use has also been reinforced by his peers who also engaged in, and normalised, illicit drug use.
[The applicant] was noted to minimise his involvement in the past violent behaviour perpetrated by his co-defendants. Whilst it is acknowledged that [the applicant] did not threaten or physically harm victims during the 2017 home invasion, he did not recognise that his presence during the offending meeting complicit, and therefore supportive, of the threats and violence perpetrated by his co-offenders. [The applicant] did acknowledge that the home invasion would have been “scary for the victims. I’d be afraid for my life. It would be terrifying… they might be depressed, anxious, scared to out”.”
I note that the applicant, during his oral evidence, attempted to minimise his responsibility for some of his offending. For example, when cross examined about the burglary and common assault, he said that the female complainant lied in some of her statements to the police. With respect to another offence involving a woman, he denied slapping her and said that he pleaded guilty because he did not have money and wanted to get it over with.
Dr McCue also gave oral evidence and said that he had a low risk of re-offending if his risk factors were removed. These risk factors were a relapse into use of illicit drugs and association with an antisocial peer group. Dr McCue concluded that:
“His risk of reoffending in the future is most likely to be elevated only if he returns to using illicit drugs and or reconnects with an antisocial peer network. If this situation were to occur, his offending would likely be motivated by obtaining money to support his drug use and would most likely involve property offences, such as theft or break and entry offences. Violence could be a feature of future offending, if the applicant were to relapse into drug using and antisocial lifestyle, however violence would likely be limited to situations in which he is attempting to obtain money or property, and he would most likely be complicit in violence perpetrated by co-offenders.”
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[12] The applicant has committed serious crimes and has attempted to minimise his responsibility for some of those crimes. If released, he would benefit from the undoubted support he would receive from his family, in particular his younger sister. Looking after his mother would give him some purpose. He expects to find employment through his brother. He has support from an Australian friend who came to visit him in detention. This would create a stable environment which would reduce his chances of re-offending. However, his periods in the community as an adult have been marred by drugs and crime. Since abstaining from drugs and being removed from his antisocial peers he has still behaved poorly whilst in prison and detention, but I take into account that his last violent incident was in about September 2018. I accept Dr McCue’s opinion that in the absence of his risk factors the likelihood of re-offending is low, but that likelihood will elevate to what I would consider to be a moderate and unacceptable level if those risk factors return. The applicant has not been tested in the community and there remains a risk that he will relapse and re-engage with his antisocial peers and offend again if he is released.
[12] Direction 90 at 8.1(1).
My conclusion as to the protection of the Australian community is that it is a factor that weighs heavily against revoking the cancellation decision.
Family Violence – 8.2 of Direction 90
The offending did not involve family violence. This consideration is neutral.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. 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;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’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 applicant would have on a child, taking into account the 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has no children of his own, but his younger sister has three children and is currently pregnant. His younger sister gave written and oral evidence to the Tribunal. She has twins aged three and another daughter who is one years old. The applicant has not met them in person, but his sister and her children speak to him regularly by video. She said it would benefit the children if the applicant could help her look after them. She and her husband both work two jobs and look after the children and the applicant’s mother. I accept that it would be in the best interests of these children if he were released because he would be able to help his sister look after them and their mother. I give less weight to this factor because the applicant has never met the children in person and has been absent all their lives. They are very young but would benefit from having an uncle in their lives.
This is a factor that weighs moderately in favour of revocation of the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13]
[13] Direction 90 at 8.4(1).
In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be allowed to stay in Australia. Of particular relevance in this case, the Australian community expects that the Australian government should cancel a visa if there are serious character concerns through the commission of serious crimes against women including of a violent nature.[14]
[14] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. I note the particular circumstances of the applicant, including his traumatic childhood, that he arrived in Australia as a child and that his offending was related to drugs and antisocial peers. However, his most recent offending, as noted by the sentencing Judge, was extremely serious. In these circumstances, the expectation of the Australian community is to not allow the applicant to remain in Australia.[15]
[15] Direction 90 at 8.4(1).
The applicant has engaged in serious conduct of a violent nature in breach of the Australian community’s expectation that he would obey laws while in Australia. I consider the offending to be so serious that even a low to moderate risk of re-offending is unacceptable. The character concerns relating to the applicant and his past criminal behaviour mean that the expectations of the Australian community is a factor weighing in favour of non-revocation.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[16] I must consider and understand the representations received from the applicant.[17] I must also consider the consequences that would flow from not revoking the cancellation decision.[18]
[16] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[17] See above at [11].
[18] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
International non-refoulement obligations – 9.1 of Direction 90
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.[19]
[19] Direction 90 at 9.1(1).
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.
I will consider separately the risk of harm if removed to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.
The applicant submits that Direction 90 does not permit a decision maker to defer assessment of non-refoulement obligations. I disagree with that submission.
The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021)[20] addressed the issue of decision-makers’ approach to non-refoulement:
“[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.”
(footnotes removed)
[20] [2022] HCA 17.
It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[21] I intend to defer assessment because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[22] but “one available outcome” is the deferral of the substantive assessment of such a claim.[23]
[21] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
[22] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[23] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The comments in Plaintiff M1/2021 were made in the context of Direction 65 which has been revoked but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides at 9.1:
“(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.”
In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues.
Applicant’s representations including as to risk of harm
The applicant made representations concerning risk of harm in South Sudan. He said he was scared of being removed to South Sudan where he might get killed because of the war. He would be homeless and have no family or social support because he does not know anyone in South Sudan. As a returnee from the west with perceived wealth, the applicant claimed he would be a target.
The High Court has provided the following guidance for this situation:[24]
“[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason“ why the Cancellation Decision should be revoked.”
[24] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CKT20) makes clear that I am required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[25]
[25] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].
It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016 and a recent report from the United Nations High Commissioner for Refugees (UNHCR)[26] that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is of the ethnic group of Acholi. He may be targeted for his perceived wealth as a western returnee. He may be conscripted as a soldier.
[26] UNHCR Position on Returns to South Sudan – Update lll – October 2021 – exhibit 2
In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan. It is not in dispute that the applicant left South Sudan as a child with his family due to the war. The applicant would have no family support and other network if removed to South Sudan. This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Consequences of cancellation and non-revocation
The consequence of the cancellation[27] of the visa is that he is an “unlawful non‑citizen” as defined in s 14.
[27] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person under s 189(1). A person so detained must be kept in immigration detention until he or she is removed from Australia accordance with s 198, deported under s 200, or granted a visa under s 196.
If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
If a cancellation decision is revoked, it is taken not to have been made pursuant to s 501CA(5). In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
The applicant has no official documentation linking him to South Sudan but there is no doubt that he would be considered a South Sudanese national by operation of the Nationality Act 2011 (South Sudan). However, there may be some practical impediment to his removal under s 198(2B) which would result in further detention with an adverse consequence to the applicant.
The applicant contends that if the cancellation decision is not revoked that he will either be removed to South Sudan or detained indefinitely. In either event, the consequence for the applicant would be devastating. If a protection visa application were lodged, then it is asserted that the applicant will be trapped in detention in the intervening period.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[28]
“… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.”
[28] [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
In his personal circumstances form, the applicant said he had no diagnosed medical or psychological conditions. Dr McCue said:
“In my opinion, [the applicant] has experienced trauma at a young age. These being he and his family fleeing civil conflict, sudden loss of his father and brothers and the manner of their death, as well as being exposed to an environment of interpersonal violence perpetrated by his uncle. The nature of these events is likely impacted on [the applicant’s] attachment style, and his underlying feelings of anger and resentment, which may have an impact on his behaviour towards others. There was no evidence to suggest that [the applicant] currently meets the criteria for post-traumatic stress disorder as defined by the DSM-5.”
The applicant is of Acholi ethnicity and can manage a general conversation in the Acholi dialect albeit with some difficulty. He left his home country aged one years old and he would therefore face significant language and cultural barriers if returned. However, English is the official language of South Sudan and he has no problems with that language.
The applicant has Hepatitis B which does not currently impact his health, but it would be unlikely that he is able to access the necessary medication if returned to South Sudan.
The applicant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant left South Sudan when a young child and has no network of family or friends to support him there. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the applicant because of his unfamiliarity with the country and his lack of family or other support. There would be substantial cultural and language barriers which would create significant impediments on the applicant establishing himself and maintaining a basic living standard in South Sudan.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Links to the Australian community – 9.4 of Direction 90
The applicant has significant links to the Australian community. He has been in Australia since 2007 when he was nine years old. He stayed at school until year 10 and completed TAFE courses in hospitality and personal training. He then worked in a warehouse for about six months. He carried out some volunteer work, played basketball and attended church on Sundays. This represents a period of positive contribution to the Australian community. However, I will give it less weight because he was expelled twice during his secondary education and his adulthood has been marred by drugs and alcohol and periods of imprisonment.
His family, consisting of his mother, two sisters and a brother, will be devastated if he is not released from detention. In particular, his mother will be adversely impacted because the applicant will not be there to look after her. She has very poor mental health and is currently supported by the National Disability Insurance Scheme. The applicant’s younger sister would be devastated for the applicant and for her children who will miss having an uncle in their lives. The older sister also wrote a letter of support confirming the mother’s illness and the applicant’s desire to help with his mother. She also confirmed the horrific scenes that the family witnessed before coming to Australia. His family is very concerned for his safety if returned to South Sudan.
The applicant formed a relationship with a woman whilst in prison in 2018. She wrote a letter of support for the applicant dated 19 November 2018. The applicant gave oral evidence that this relationship had finished. The applicant also has an uncle in Australia with whom he does not talk.
There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.
In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs moderately in favour of revocation of the cancellation decision.
Conclusion as to whether to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is “another reason” to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision and I consider that they outweigh any countervailing considerations. Those countervailing factors are the best interests of minor children, risk of harm if returned, the prospect of indefinite detention, the extent of impediments if removed and links to the Australian community.
The applicant has shown a complete disregard for authority for much of his adult life in the community and when in prison. Despite receiving a suspended sentence for numerous serious offences in September 2015, the applicant continued to offend resulting in another series of convictions in August 2016 followed by convictions for the most serious offences in April 2018. This suggests that the applicant does not learn from his mistakes even when given an opportunity. There remains an unacceptable risk of further offending of the same nature and the Australian community would expect him to have his visa cancelled. The applicant is in relatively good mental and physical health and he is not married and has no children of his own. I have taken into account the interests of his sister’s children and that his mother, two sisters and brother will all be adversely impacted by his removal. These unfortunate consequences arise from the applicant’s own conduct.
The applicant has significant familial links to the Australian community but his contribution to the Australian community is limited because he was expelled twice during his education and his adulthood was marred by drugs, criminal behaviour and periods of imprisonment.
I accept the applicant’s contention that indefinite detention is the most likely consequence of a non-revocation decision noting that the applicant still has an opportunity to apply for a protection visa. Indefinite detention is a very serious consequence which I have weighed very carefully in my deliberation. Ultimately, it is the protection and expectations of the Australian community which prevail in that deliberation.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed serious crimes involving violence, drug possession and armed robbery. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. The applicant has not been law-abiding; he has shown disregard for Australia’s law enforcement network by breaching numerous suspended sentences and he has caused harm in the wider community, including violence towards women. The applicant, as a non-citizen who has committed serious crimes of that nature, should generally expect to forfeit the privilege of staying in Australia. The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.
It follows from the application of these principles that I am not satisfied that there is “another reason” why the cancellation decision should be revoked.
Decision
The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
..[sgd].............................................................
Associate
Dated: 6 October 2022
Dates of hearing:
24 & 25 February 2022
Advocate for the applicant:
Solicitors for the applicant:
H W Glenister
William Gerard Legal Pty Ltd
Advocate for the respondent:
R Donaldson
Solicitors for the respondent:
Clayton Utz
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