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

[2021] AATA 1033

NKHH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1033 (14 April 2021)

Division:GENERAL DIVISION

File Number:          2019/6407

Re:NKHH

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:14 April 2021

Place:Melbourne

The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 24 December 2018.

.........................[SGD]...............................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – risk of harm if returned – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Ali v Minister for Home Affairs (2020) 380 ALR 393
DFTD v Minister for Home Affairs [2020] FCAFC 207
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
MLNR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Department of Home Affairs, Standard Q&A Report dated 28 May 2019.

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
UN Human Rights Council, Report of the Commission on Human Rights in South Sudan (31 January 2020)

UN High Commissioner for Refugees, ‘UNHCR Position on returns to South Sudan - Update II’, (April 2019)

REASONS FOR DECISION

Deputy President Britten-Jones

14 April 2021

INTRODUCTION

1. This hearing arises from orders made by the Federal Court on 22 October 2020 which quashed the decision of the Tribunal made on 23 December 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).

   THE DECISION TO CANCEL THE VISA

2. On 24 December 2018, the applicant’s Global Special Humanitarian (subclass 202) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.

3. On 28 December 2018, the applicant made representations seeking revocation of the cancellation decision.

4. On 1 October 2019, the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.

   THE OFFENDING

5. The applicant has a criminal history that includes property and violence offences.  These offences were numerous and frequent over a period from 2011 to 2018.  His early offending of stealing and assault was dealt with in the Children’s Court but in 2013, when aged 17 years old, he was sentenced in the Parramatta Local Court to a term of imprisonment of three months in an adult prison. The applicant was abusing alcohol and had become trapped in a cycle of repeat offending that he struggled to break. In February 2016, the applicant committed the offence of assaulting a law enforcement officer whilst in prison by repeatedly punching a corrections officer who was left bleeding and bruised. On 10 May 2017, he received a term of 10 months imprisonment for this offence. In March 2017, the applicant committed the offence of robbery in company in the early hours of the morning at a convenience store. He was sentenced in the District Court on 29 March 2018 to a term of 18 months imprisonment with a non-parole period of 8 months.  On 20 July 2018, the applicant received a six-month term of imprisonment for a number of larceny offences involving stealing from bottle shops. This sentence was varied on appeal to a total effective sentence of 12 months imprisonment.

6. The sentencing Magistrate said on 20 July 2018 as follows:[1]

   The material that’s before me suggests number one, that you had a very difficult time when you were a small boy. And you have my sympathies for that. You’ve been in this country for about 10 years. And it seems to me, from your 23 page criminal history that you’ve spent a lot of time under supervision, in particular by the juvenile justice service. So a lot of attempts have been made, according to the criminal justice system to try and assist you. These offences are certainly … perhaps not the most serious that we will see in the criminal calendar. But the problem for me is that you committed them whilst you are at liberty on parole.

   You served a term of imprisonment last year, which finished towards the end of next year. And you immediately then entered into another sentence, which you’re currently under parole conditions. When somebody commits offences when they are released to parole, the only conclusion that I can see is that you do not care at all for your obligation to be a proper member of society. Now, whilst these offences, by themselves, are not the most serious, the fact of the matter is that you’re committing the same offence over and over again, in a fairly planned fashion. Now, whether you’re stealing this alcohol to sell it on to others, or whether you’re stealing it for your own consumption, does not matter. By committing these offences, you’re showing your contempt for the rules of society, which say number one, you will not steal. And, secondly, more showing contempt for those who have tried to give you the opportunity to rehabilitate yourself.

   [1] Exhibit 4, TB2, p 52.

   LEGISLATIVE FRAMEWORK

7. Under s 501(3A) of the Act, 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.

8. The character test referred to in s 501(3A) of the Act 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 subsection (7)). For the purposes of s 501(6)(a) of the Act, 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] s 501(7)(c) of the Act.

9. Where a visa has been cancelled under s 501(3A) of the Act, the Minister has a power 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.[3]

   [3] s 501CA(4) of the Act.

10. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

11. Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:

    197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198

    (1)       For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.

    (2)       An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.

    …

    198  Removal from Australia of unlawful non‑citizens

    (2B)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

    (a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and

    (b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and

    (c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

    (i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

    (ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

    Note:    The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

    ISSUES BEFORE THE TRIBUNAL

12. The applicant does not pass the character test prescribed under s 501(6)(a) of the Act 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) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.

13. The issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79),[4] there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[5]

    [4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).

    [5] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38].

14. The applicant’s reasons for requesting revocation included a statement that he has not been back in South Sudan since he was three years old because of the war and because his father was a General in the first civil war. He said he has no knowledge of his country and cannot go back because his life would be in danger. The applicant referred to programs he had completed to better himself which he said he would continue if given the chance to do so. He referred to his mother and siblings and a partner who would suffer if he is returned to South Sudan.

    IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

15. When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[6]

    [6] Direction 79 at 6.1.

16. The guiding principles in Direction 79 that the Tribunal must apply in determining whether to revoke a visa cancellation include:

    ·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia; bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.

    ·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.

    ·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 have to forfeit the privilege of staying in Australia.

    ·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 for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    ·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.

17. Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:

    Primary considerations:

    (i)Protection of the Australian community

    (ii)The best interests of minor children in Australia

    (iii)Expectations of the Australian community

    Other considerations include (but are not limited to):

    (i)International non-refoulement obligations

    (ii)Strength, nature and duration of ties

    (iii)Impact on Australian business interests

    (iv)Impact on victims

    (v)Extent of impediments if removed

    Protection of the Australian community – 13.1 of Direction 79

18. 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. I give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the non-citizen’s conduct –13.1.1 of Direction 79

19. The offending is serious in that it involves unprovoked violence and repeated offending. He has assaulted or obstructed government officials in the course of their duty and he has been sentenced to multiple terms of imprisonment. He has breached bail, parole and a good behaviour bond. However, the nature of the offending was that it was often impulsive and not the subject of any planning or much forethought. It was often conducted when accompanied by others and when affected by alcohol.  Whilst taking full responsibility for his actions, the applicant did say that he offended so as to impress his friends often under the influence of alcohol.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79

20. In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:

    (a)The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

    (b)The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

    Nature of harm if further criminal conduct

21. In the July 2018 sentencing remarks, the Magistrate said with respect to his past offending that ‘these offences are certainly … perhaps not the most serious’ and with respect to the current offending, the Magistrate said ‘these offences, by themselves, are not the most serious’.  It was the repetitive nature of the offending, having been given previous chances, that was the concern. If the applicant were to engage in further similar offending, then the nature of the harm would be significant especially when considered cumulatively but ‘not the most serious’. 

    Likelihood of further criminal or other serious conduct

22. The applicant contends that there is no significant risk that he will reoffend because:

    (a)the expert opinion from a forensic psychologist is that he presents as a low to moderate risk of reoffending;

    (b)the applicant has abstained from alcohol since July 2018 and has engaged in rehabilitative programs dealing with his previous alcohol abuse;

    (c)the applicant has a willingness and readiness to engage in psychological counselling to deal with his history of trauma and disadvantage;

    (d)the applicant intends to reside in Brisbane with his sister so as to avoid contact with antisocial peers;

    (e)the applicant has expressed his determination to seek vocational and employment opportunities;

    (f)the applicant’s family can provide support; and

    (g)the applicant has expressed genuine remorse and acceptance of responsibility for his offending.

23. Ms Dombrowski is a forensic psychologist who prepared a report dated 3 February 2021. She interviewed the applicant and asked him to complete a self-appraisal questionnaire. She assessed his risk of committing further offences as being low to moderate. She said that his risk of violent and general recidivism can be minimised with appropriate psychosocial supports and treatments. She noted his completion of rehabilitative programs, in particular the EQUIPS Addiction and the Real Understanding of Self Help (RUSH) programs. She said that the applicant would benefit from accessing individual trauma and alcohol and other drug counselling should he be returned to the community. She said that psychosocial factors such as peers, social activities and employment will also need to be managed to support his rehabilitation.

24. The applicant has a history of trauma and disadvantage commencing at a young age. As Ms Dombrowski summarised in her report:

    [21] [The applicant] has a history of significant disadvantage. He has witnessed war and experienced home invasion that has led to his displacement and dislocation from his culture. He experienced racial discrimination, social marginalisation, disruption to his primary caregivers, neglect, and physical abuse over many years as he sought asylum.

25. I note that the applicant commenced offending soon after he was subjected to a violent physical and sexual assault in a park in Blacktown at the age of 14 years old, for which he was hospitalised. After this event, he began using alcohol heavily and regularly socialising with antisocial peers. He was charged with his first offence two months later and placed in juvenile detention 18 months later. He did not speak to any professionals about this event and was scared to talk to anyone about it. The applicant said that it was after this assault that he messed up his life.

26. The applicant did not take steps to address the trauma of the September 2010 sexual assault in Blacktown until he spoke to a psychologist in 2017. The applicant completed the RUSH program in 2018 which helped him to understand himself and why he was drinking and misbehaving. He accepts that he needs more psychological counselling.

27. The evidence given by the applicant suggests that he has matured and has gained a genuine understanding with respect to those matters that led to his offending. In particular, he recognises the bad effect that alcohol had on him and he wants to stay away from it in the future. He also recognises the negative impact of associating with the wrong people and for that reason he intends to reside in Brisbane (away from Sydney), with his sister who does not drink. This sister gave a statement and oral evidence that she would accommodate and support him which I accept.

1. The applicant was cross-examined extensively with respect to his past offending and some of the clearly false testimony that he gave at the first hearing before the Tribunal. He said that he lied in the previous hearing because he was scared and under pressure without representation. I was impressed with his demeanour in the witness box on this occasion – he accepted responsibility for his offending and was honest and calm when answering these difficult questions.

2. I consider that the impulsive nature of much of the offending means that he is more amenable to the process of rehabilitation which he has already begun.  He has abstained from alcohol for nearly three years; he has commenced the process of addressing his past trauma; and he has developed an understanding of the negative influence of antisocial peers. Further, he has expressed genuine remorse.  He has plans for the future including the study of warehouse logistics at TAFE.  Consequently, I consider that the applicant now only poses a low risk of re-offending.

   Risk to the Australian community

3. In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. 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.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

   [7] (2014) 225 FCR 424.

4. In this case, there is a low risk of re-offending which would not have the most serious consequences. I have reached the view that the nature of the offending and the harm that would be caused if it were to be repeated is not so serious that any risk of similar conduct in the future is unacceptable.[8]

   [8] Direction 79 at 6.3(4).

   Conclusion as to protection of the Australian community

5. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[9] However, the offending by the applicant is not of the most serious nature.  In these circumstances, the protection of the Australian community is a factor that weighs moderately in favour of not revoking the cancellation decision.

   [9] Direction 79 at 13.1(1).

   Best interests of minor children – 13.2 of Direction 79

6. In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.

7. The following factors that I 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 ability to maintain contact in other ways;

   (e)whether there are other persons who already fulfil a parental role in relation to the child; and

   (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

8. The applicant has no children of his own, but he has seven nieces and nephews.  There are three nieces who I consider would be significantly affected if the applicant were returned to South Sudan.

9. One of the applicant’s sisters has six children aged 11 years and under; the applicant has said he is closest to the older two daughters who are in year 5 and year 4 at school.  Those daughters used to live with him at his mother’s house and he was close to them.  They now live in Sydney.  They would be upset if he were returned to South Sudan and he could no longer play any real role in their lives. I consider it is in the best interests of these daughters if the cancellation decision is revoked.  However, I give this little weight because it is a non-parental relationship with limited meaningful contact in recent times.

10. The other sister who lives in Brisbane has two daughters aged 6 and 14 years; the applicant has said he is closest to the older of these two daughters, who lives in Canberra, noting that the younger one lives in Canada.  The applicant lived with this other sister in Sydney for a period in 2016 and developed a close relationship with her daughters.  He often speaks to the older daughter on the phone.  This sister gave a statement and oral evidence at the hearing that the applicant is a good uncle to her oldest daughter and that her daughters love him. It is likely that if he lives with his sister in Brisbane that he will have contact with her older daughter during visits.  I consider that she would be upset if her uncle was returned to South Sudan.  I do consider it is in the best interests of the older daughter if the cancellation decision is revoked.  However, I give this little weight because it is a non-parental relationship with limited meaningful contact.

11. This is a factor that weighs in favour of revocation but I give it limited weight.

    Expectations of the Australian community – 13.3 of Direction 79

12. In YNQY v Minister for Immigration and Border Protection,[10] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in paragraph 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[11]

    [10] [2017] FCA 1466.

    [11] (2019) 272 FCR 454.

13. In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:

    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.

14. The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.

15. The applicant has caused or threatened harm to numerous persons and there is a risk, albeit low, of that occurring again in the future. The applicant was not deterred from further offending in the past when community corrections orders were imposed. The Australian community would not expect a person who has repeatedly committed such violent and harmful offences to hold a visa.  However, the Australian community would have a higher level of tolerance with respect to his offending because he has lived in Australia from the young age of 12 years old and because his offending was precipitated by a violent, group sexual assault of the applicant when he was only 14 years old.

16. Taking into account the nature of the offending and low risk of reoffending, I find that the expectations of the Australian community weigh moderately in favour of non-revocation of the cancellation decision.

    Other considerations

17. In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79, but these are not exhaustive.[12]

    [12] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 [86].

18. The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. I am required to give separate and meaningful consideration to each of these representations.  I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refoulement obligations on the basis that ‘a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then.’[13]

    [13] Ali v Minister for Home Affairs (2020) 169 ALD 222, [101] and FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124, [45].

19. I will consider separately the risk of harm if returned to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.

    Risk of Harm

20. The applicant has made numerous representations concerning risk of harm in South Sudan.

21. The applicant’s family had to leave South Sudan because of the civil war and because of problems that his father, who was a General in the military, had with the government.

22. The applicant believes he would be killed if he is returned to South Sudan.  The applicant’s mother says that her husband, despite dying in 1999, has many enemies and she believes that her children are still in danger because her husband was so well-known and played such a significant role in the civil war. One of her husband’s children (to another wife) was shot recently. She has fears for her two sons who remain in South Sudan and who have recently had to leave Juba due to safety concerns. The applicant has the same surname as his father and would be identified with him.

23. Despite a peace deal, the report of the UNHCR on the position on returnees to South Sudan dated April 2019[14] says that conflict remains, egregious human rights violations continue to be perpetrated and sustainable conditions are not in place for the safe and dignified return of refugees in South Sudan.

    [14] UNHCR, ‘UNHCR Position on returns to South Sudan - Update II’, (April 2019) [2].

24. The overall security, rule of law and human rights situation remains highly volatile. It stands in the way of safe and dignified return for any person originating from South Sudan.  I find that the applicant would face the prospect of serious harm given his particular profile as the son of a well-known military figure and a person of Dinka ethnicity and a western returnee. I consider that there is a general risk of harm and violence associated with the civil war and the instability in the country.  The risk of harm would be exacerbated because the applicant is a person with a background of trauma and mental health needs.

25. I note that the respondent concedes that the applicant may face a risk of harm if returned to South Sudan and that that risk ought to weigh heavily in favour of revoking the cancellation decision.

    International non-refoulement obligations

26. 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.[15]

    [15] Direction 79 at 14.1(1).

27. In Ali v Minister for Home Affairs,[16] the Full Court said with respect to Australia’s non-refoulement obligations:

    [16] (2020) 380 ALR 393.

    [23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:

    non-refoulement obligations includes, but is not limited to:

    (a)non-refoulement obligations that may arise because Australia is a party to:

    i.the Refugees Convention; or

    ii.the Covenant [being the International Covenant on Civil and Political Rights]; or

    iii.the Convention Against Torture; and

    (b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

    [24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:

    (a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:

    Article 33

    PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

    1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

    (b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.

28. As stated above, the applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.

29. The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[17]  It is essential to ascertain the nature and scope of the grounds advanced in the representations to the delegate of the Minister in response to the invitation given under s 501CA(3)(b)[18] and to the Tribunal on this review.  I am required to properly consider those grounds and the claims being made and the factual material being relied upon by the applicant.[19]

    [17] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [28].

    [18] Ali v Minister for Home Affairs (2020) 380 ALR 393, [86].

    [19] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27].

30. The applicant submits he is a person in respect of whom Australia owes non-refoulement obligations under various international instruments and customary international law. Those various international law instruments, including the Convention Relating to the Status of Refugees (Refugee Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) give rise to non-refoulement obligations.

31. The applicant relies upon country information and his representations with respect to the following:

    ·     the security and humanitarian situation in South Sudan generally;

    ·     the targeting of civilians based on ethnicity and imputed political affiliations;

    ·     targeting of returnees;

    ·     forced military recruitment of men in South Sudan;

    ·     persons with mental health issues or backgrounds of trauma;

    ·     harm perpetrated by the South Sudanese government and inability of the South Sudanese authorities to prevent harm.

32. The most recent annual report of the UN Commission on Human Rights in South Sudan documents an intensification of conflict with the number of civilian casualties in 2019 increasing by nearly 200% over 2018.[20] The report refers to civilians being deliberately starved, systematically surveilled and silenced, arbitrarily arrested and detained and denied meaningful access to justice. It referred to the dire situation of human rights throughout South Sudan characterised by the deliberate starvation of civilians, the largest refugee and internal displacement crises in Africa and sexual and gender-based violence. It says that government forces were responsible for most of the attacks against civilians. There have been gross human rights violations and abuses and serious violations of international humanitarian law in the context of localised conflict often with the participation of armed militias.

    [20] UN Human Rights Council, Report of the Commission on Human Rights in South Sudan (31 January 2020).

33. The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his Dinka ethnicity, his relationship with his father and his status as a returnee from a western country in the context of the deteriorating security situation and ongoing civil war. 

34. I will not repeat the matters considered separately under risk of harm, but they are relevant to non-refoulement and I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan.

    Legal consequences of a non-revocation decision

35. I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa[21] bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. 

    [21] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 [61].

36. I find that, pursuant to s 198 of the Act, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur. I take into account that if the cancellation decision were not revoked, it would be likely that the applicant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy.[22] I take into account that the applicant may apply for a protection visa and that he would remain in detention whilst that application was considered.  However, there is no evidence that the applicant is considering such an application or that the Minister is considering exercising his personal discretion in favour of the applicant. Further, whilst I am not obliged to speculate on what might happen next,[23] where the Minister opposes the revocation of the cancellation of the visa on character grounds, it would seem incongruous for the Minister to effectively reverse his position and grant him a protection visa or exercise a discretion in favour of the applicant.[24]

    [22] See DFTD v Minister for Home Affairs [2020] FCAFC 207, [23].

    [23] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [150].

    [24] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [56].

37. I do not consider that the applicant faces indefinite detention.  Any detention would not be indefinite[25] because of the obligation to remove him as soon as reasonably practicable. The consequence of not revoking the cancellation decision is that the applicant will be removed to South Sudan as soon as it is reasonably practicable, subject to any successful protection visa application. There was no suggestion that it is not reasonably practicable for him to be removed.

    [25] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [86] – [98].

1. Given that the legal consequence is that the applicant would be returned to South Sudan, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked.  The consideration of non-refoulement obligations and risk of harm weigh heavily in favour of revoking the cancellation.

2. The consequence of non-compliance with Australia’s treaty obligations does not only impact the applicant but it also impacts negatively upon Australia’s reputation and standing in the global community.[26] I consider that this adds further weight in favour of revoking the cancellation.

   [26] See Ali v Minister for Home Affairs (2020) 169 ALD 222, 252, [91].

3. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support in the event that he were to return to South Sudan.

   Strength, nature and duration of ties

4. In making my decision, Direction 79 requires that I consider the following factors:

   ·     how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and

   ·     the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

5. The applicant arrived in Australia in 2008 at the age of 12 years old.  He has lived more than half of his life in Australia and regards it as his home.

6. The applicant’s immediate family in Australia are his mother, two sisters, one brother and seven nieces and nephews.  He has a strong relationship with these family members.  They love and support him and would be deeply distressed if he were to be returned to South Sudan.

7. Upon arrival in Australia the applicant studied intensive English and attended High School until he was 14 years old. He commenced his offending approximately two and a half years after his arrival, which reflects a significant period of non-offending after his arrival  I reject the contention of the respondent that the applicant began offending soon after arriving in Australia.  I note also that he did not commit any offences until after he was sexually assaulted.

8. This is a factor that weighs significantly in favour of revocation because of the strong family ties, his arrival at a young age and the fact that he has lived most of his life in Australia.

   Impact on Australian business interests and on victims

9. No evidence or argument was advanced with respect to any impact on Australian business interests or victims.

   Extent of impediments if removed to home country

10. Direction 79 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:

    ·     the applicant’s age and health;

    ·     whether there are substantial language or cultural barriers; and

    ·     any social, medical and/or economic support available to them in that country.

11. The applicant is physically healthy but does suffer from a background of trauma and has abused alcohol in the past.    He requires ongoing counselling and mental health treatment.  That treatment is unlikely to be available in South Sudan where there is extremely limited access to health care generally and almost non-existent mental health services.  He is worried about his mental health if returned and does not think he could cope.

12. In addition to this mental harm, the applicant would be at risk of physical harm due to the ongoing conflict and being a returnee of Dinka ethnicity.  It is most unlikely in all of these circumstances that he would find or be able to work.  The applicant has two brothers in South Sudan but their whereabouts is unknown because they recently left Juba due to safety concerns.  All his other family has left South Sudan.  There would be no family support available to him in South Sudan.

13. The applicant left South Sudan at a very young age and knows very little about his country of birth.  He has never been to Juba, having been born in Pibor.  He does not speak Dinka very well.  He cannot read in Arabic or Dinka.  Consequently, there would be substantial language and cultural barriers if he were returned.

14. The security and humanitarian situation in South Sudan is dire and presents a most significant impediment to the applicant if he is returned.  The report from the Department of Home Affairs[27] says that security in Juba is unpredictable and often contingent on the broader dynamic influencing the ongoing civil war which is affecting the whole of South Sudan.

    [27] Department of Home Affairs, Standard Q&A Report dated 28 May 2019.

15. I conclude that the extent of the impediments facing the applicant if returned to South Sudan are extreme and unacceptable.  The consequences for the applicant would be devastating.  This consideration weighs most heavily in favour of revocation.

    Conclusion as to whether there is another reason to revoke the original decision

16. I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision.  I am now required to weigh up those considerations.

17. The primary considerations relating to the protection of the Australian community and the expectations of the Australian community favour non-revocation of the cancellation decision.  Whilst the Australian community expects non-citizens to obey the law and their visas to be cancelled if they commit serious crimes, I consider it appropriate that the cancellation decision is revoked because of the presence of significant countervailing factors.  Those factors include the international non-refoulement obligations, the strength, nature and duration of ties that the applicant has with Australia, the extent of impediments and risk of harm if the applicant is removed to South Sudan and the best interests of minor children. 

18. Primary considerations should generally be given greater weight than the other considerations, but the use of the word ‘generally’ in paragraph 8(4) of Direction 79 means that that is not always the case. Further, whilst community expectations may weigh against revocation, the community expects that it will be necessary in every case to assess the circumstances particular to the applicant in question in order to reach an evaluative assessment of whether it is appropriate to not revoke the cancellation decision.  Direction 79 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.[28]

    [28] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [97] per Stewart J; see also [73] per Charlesworth J.

19. I have reached the conclusion that the other considerations of risk of harm, non-refoulement obligations, extent of impediments and ties to Australia outweigh the primary considerations of the protection and expectations of the Australian community. Less weight can be given to the protection and expectations of the Australian community because of my finding that there is a low risk of reoffending.  The Australian community would have a higher level of tolerance with respect to the applicant’s offending because he has lived in Australia from the young age of 12 years old and because his offending was precipitated by a violent, group sexual assault of the applicant when he was only 14 years old.

20. Clause 6.3(4) of Direction 79 refers to a circumstance where the offending is so serious that even other strong countervailing considerations may be insufficient to justify not cancelling the visa.  This is not such a circumstance.  The applicant’s offending is not so serious as to be decisive when all of the circumstances are considered. The applicant committed multiple offences the majority of which would not be considered serious on their own.  The applicant has commenced the process of rehabilitation by addressing his issues relating to alcohol and past trauma.

21. In weighing the considerations for and against revocation of the cancellation decision, I give great weight to the real and significant risk of harm that the applicant would face if returned to South Sudan.  This harm arises on two fronts.  First, because the applicant would be at risk of being persecuted and physically harmed due to his father’s military history, because he is of Dinka ethnicity and a returnee from a western country and because of general risk of harm associated with the civil war and the general instability in the country.  Second, because If returned to South Sudan, he would have no family or other support and his background of trauma would likely lead to a deterioration of his mental health in circumstances where little treatment would be available.

22. I also give significant weight to the strength, nature and duration of ties that the applicant has with Australia because he arrived as a child and has family here.

23. It follows that I am satisfied that there is another reason why the cancellation decision should be revoked.

    Decision of the Tribunal

24. The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 24 December 2018.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..............................[SGD]..........................................

Associate

Dated: 14 April 2021

Dates of hearing:	29, 30 & 31 March 2021
Counsel for the Applicant:	K. Heath
Solicitors for the Applicant:	Legal Aid NSW
Advocate for the Respondent:	O. Morris
Solicitors for the Respondent:	Clayton Utz