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

NKHH and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Migration) [2019] AATA 5626 (23 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/6407
Re:NKHH
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth

Date:23 December 2019
Date of written reasons 3 January 2020
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 30 September 2019 to not revoke the cancellation of the Applicant’s visa.
...................[sgd]....................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s Class XB Subclass 202 Global Special Humanitarian visa – citizen of Sudan – Applicant has substantial criminal record – failure to pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations: non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
FLLB and Minister for Home Affairs [2018] AATA 3661
FYBR v Minister for Home Affairs [2019] FCAFC 185
GCXD and Minister for Home Affairs [2019] AATA 5162
Minister for HomeAffairs v Omar [2019] FCAFC 188
SECONDARY MATERIALS
Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report: South Sudan (5 October 2016)
Australian Government, Department of Home Affairs, Standard Q & A Report, South Sudan: 20190411092354 – Humanitarian Situation in South Sudan – Active belligerents and conduct of hostilities – Security in Juba and other cities- Returnees – Forced conscription and recruitment (28 May 2019)
Australian Government, Department of Home Affairs, Standard Q&A Report, South Sudan: SSD CI180507152306975 – Conditions for returnees with no family support (27 June 2018)
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
REASONS FOR DECISION
Senior Member B J Illingworth
3 January 2020

This matter relates to an application filed by the Applicant on 7 October 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) dated 30 September 2019 not to revoke the mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian visa (“visa”).
At the hearing before the Tribunal, the Applicant was unrepresented and appeared by video from immigration detention in Western Australia. The Respondent was represented by Mr Adam Ray of Clayton Utz.
BACKGROUND
The Applicant was born in Sudan in 1996. He is currently aged 23 years and is a citizen of South Sudan.
He is the sixth of seven children born to his father’s third wife. His father had 11 wives and the Applicant reportedly has approximately 24 half-brothers and 23 half-sisters.
The Applicant’s father was a senior army officer in the Sudanese government forces and was involved in the Civil War in Sudan that was raging at and around the time of the Applicant’s birth. The Applicant explained that his father was prosecuted during the Civil War and was killed during that war in about 1999. The Applicant does not know who killed his father or the reason for his death. He has no memory of his father.
When aged approximately 2 years the Applicant, together with his stepmother, two older brothers, and his sister escaped Sudan and fled to Egypt. They lived in Cairo.
The Applicant subsequently learnt that his natural mother had fled to Kenya. He had other step-brothers and step-sisters in Kenya, Uganda and other African countries. The Applicant’s mother moved to Australia and subsequently sponsored the Applicant and his sister to come to Australia. The Applicant and his sister arrived in Australia in 2008, when the Applicant was aged approximately 12 years.
The Applicant’s criminal offending commenced when he was a minor in 2011, committing crimes of dishonesty and violence. He was a recidivist offender which continued as an adult. The Applicant was dealt with in the adult courts regularly from 2013.
On 20 July 2018, the Applicant was sentenced to a term of imprisonment for various offences of larceny and on 13 September 2018 on appeal the sentence was varied such that he was ordered to serve concurrent sentences of imprisonment, with a consequent head sentence of 12 months imprisonment and a non-parole period of 6 months. On 24 December 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) under s 501(3A) of the Migration Act 1988 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.
On 21 January 2019, the Applicant made representations seeking revocation of the mandatory visa cancellation decision within the period and in the manner set out in the regulations.
On 30 September 2019 a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the original decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa.
On 7 October 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that 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:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); 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.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to death; or
(d)the person has been sentenced to imprisonment for life; or
(e)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not dispute that he does not pass the character test. The Applicant has been sentenced to a term of imprisonment of at least 12 months. The Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. 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.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
Before considering each of the Primary and Other Considerations, the Tribunal will detail the evidence before it. The Applicant gave oral evidence, as did his older sister, NKKB, by telephone.
The Applicant
The Applicant has no memory of his life in Sudan. His father was killed in the Civil War in about 1999 and he has no memory of his father. In about 2000, he fled to Egypt with his stepmother, two older brothers, and younger sister. Other family members also fled Sudan and the Applicant has relatives including step-brothers and step-sisters living in Uganda, Kenya and elsewhere in Africa.
The Applicant said that the Egyptians did not like the Sudanese people very much and, as a result, he and his siblings only went out with adults, but then returned to their homes. He went to school in Cairo and enjoyed school, however he had to drop out of school due to his family’s financial circumstances. The Applicant was aged about nine years when he dropped out of school, and thereafter he would sit at home.
The Applicant learnt that his mother was living in Kenya. She telephoned them while they were living in Egypt. His mother subsequently moved to Australia and sponsored both he and his sister to come to Australia. He and his sister arrived in Australia in 2008. The Applicant was then aged 12 years and his sister was aged about 16 years. They both lived with their mother, their eldest sister, and younger brother.
The Applicant went to school at an intensive English centre for about one year to learn the English language. In Egypt, the family spoke Dinka and some Egyptian, but no English. After completing his English studies, he then went to high school where he stayed until about year eight. The Applicant described difficulties at home and incidents when he started getting into trouble. He was drinking alcohol and using drugs, namely marijuana. He said this led him to doing things that he is not proud of.
The Applicant said that he would argue with his mother. They were living in Greater Western Sydney at this time. He would “take off” after having an argument with his mother. He did not live on the street but would “couch surf” at friends’ houses and eventually return home. He and his friends would get into trouble. He said his offending occurred when he was affected by alcohol and/or drugs.
The Applicant said his first offence as a juvenile was robbery committed on a train. He described the offending occurring when he and his friends had been drinking and they were causing issues to random people on the train and they “threatened a bloke.” Police sirens went off and they ran away, but he was spoken to by the police about two weeks later. The police let him go but about two weeks after that he was charged, appeared in the Children’s Court, and was given two years’ probation.
The Tribunal notes from the antecedent history[1] a different offender record, namely that the Applicant in fact first appeared in a Children’s Court on 24 February 2011 and was dealt with for offences of fail to appear in accordance with a bail undertaking and being in possession of goods suspected of being stolen for which he was placed on bonds of six months and eight months respectively.
[1] Exhibit A, G Documents, pages 25 – 30.
The Applicant thereafter appeared regularly before the Children’s Court until 1 May 2012 and was sentenced for repeated offences of behaving in an offensive manner, assault with intent to rob including in company, assault police, failure to comply with directions from police officers, dishonesty offences including shoplifting and possessing stolen goods, robbery whilst armed with an offensive weapon, and with at least three others, threaten violence causing fear. From February 2011 to May 2012, the Applicant had approximately 20 appearances before the Children’s Court and received numerous bonds, periods of supervised juvenile justice, and control orders.
The antecedent history records this first adult appearance in the Local Court on 19 March 2013 for offensive language, 16 April 2013 for assault officer in the execution of duty, and 30 April 2013 for enter enclosed land without lawful excuse, for which offences he received fines or bonds. On 30 September 2013, he appeared before the Local Court for offences of, use offensive language on a public passenger vehicle/train and assault officer in the execution of his/her duty for which he was sentenced to imprisonment for 10 months suspended upon entering into a bond and ten-month supervision by the New South Wales probation service. It appears this may be the offending on the train with respect to which the Applicant recalled in evidence as his first offence.
It is worth here noting that the Applicant was soon before the Local Court again on 5 December 2013 charged with assault occasioning actual bodily harm in the company of others for which he was imprisoned for three months. On 3 April 2014 in another Local Court, two prior offences of assault officer in execution of duty were called up to be dealt with for which he received sentences of imprisonment of 6 months and 10 months respectively, to be served concurrently commencing 2 November 2013. He was also sentenced that day for the offence of affray, for which he was sentenced to imprisonment for 12 months commencing on 2 March 2014 with a non-parole period of six months. Upon release, he was to then be subject to supervision and to obey reasonable directions for counselling, random management/violence counselling and drug and alcohol rehabilitation. There is no evidence before the Tribunal about that counselling.
Between 7 May 2015 and 10 May 2017, the Applicant appeared in a four different Local Courts for offences of offensive language, intoxication, enter enclosed land without lawful excuse, low range drink driving, and assault law enforcement officers.
In the Downing Centre District Court in March 2018, the Applicant was sentenced for robbery in company.[2] That offence occurred on 21 March 2017 in Eastern Sydney when he was in the company of another juvenile, MM. They entered a convenience store at 4 a.m. at which time the victim was behind the counter on his mobile phone. The Applicant and MM collected items from the store, placed the items on the front counter. The victim stood up, finished his phone call, put his mobile phone on a crate behind him, and started scanning the items. MM then walked to the back of the counter, approached the victim with his hands in front of them in what the victim believed was an aggressive manner and feared he was going to be assaulted. The victim ran from behind the counter and MM gave chase. The victim ran from the store and across the road and waited by a tree and watched the offenders. The Applicant was later observed on CCTV film taking the victim’s mobile phone from a bench behind the counter and taking cigarettes from a cupboard. Police were called and located the Applicant sitting in the front passenger seat of a motor vehicle. He was searched and the victim’s mobile phone and some chewing gum were located. The Learned Sentencing Judge outlined the Applicant’s offender history including periods of imprisonment to which the Tribunal has referred and said:
“What may be seen through that excursion of the offender’s prison history is that unfortunately many of the offences and certainly the major ones involve varying degrees of violence directed towards police officers and others and that, as I said in the course of argument with the offender’s solicitor, is a [cause] of some concern. The fact of the matter is that community protection, in my mind, becomes a matter of some considerable significance so far as the purposes of sentencing are concerned.
There is a prison history attached which as [the Applicant’s solicitor] noted unfortunately indicates that there has been a significant movement of this offender from one place to another, one institution to another.”
[2] Ibid, pages 35 – 52.

The Learned Sentencing Judge had before him a psychological report from a forensic psychologist dated 19 December 2017 which he referred to as disturbing reading insofar as the offender’s history was concerned. That report said that the Applicant was the sixth of seven children, his father had 11 wives, and his mother was the third wife, holding a relatively high position in the family. The Applicant reported having 24 half-brothers and 23 half-sisters. The report referred to the Applicant’s flight from Sudan to Egypt, and then Australia, consistent with the evidence of the Applicant. The report also referred to the difficulties for Sudanese people living in Egypt, with fighting and teenage gang warfare over small territories. The author reported the Applicant witnessing several acts of violence, people being injured with machetes, and thoughts of those events still intruding his thinking. It was reported the Applicant’s family needed to be relocated within different towns in Egypt.
The Learned Sentencing Judge also referred to supporting documents which indicated that, at age 14, the Applicant was the victim of a “brutal sexual assault by other African individuals” and was extremely distraught, namely:
He was observed by persons … who lived in the area, apparently extremely distraught and a number of adults were seen bending over him and sexually assaulting him and he was found with blood on his face and in a foetal position.
The Learned Sentencing Judge said this added a further layer of significant trauma and psychological imbalance to the Applicant. It was noted the Applicant’s mother and sister were prepared in due course to take care of the Applicant when released and that the Applicant needs all the help he can get. The clinical psychologist opined that the Applicant had symptoms consistent with post-traumatic stress disorder.
The Learned Sentencing Judge noted that MM was the “prime mover” in the offending but the victim was a shopkeeper at 4 a.m. and was a vulnerable person. The Applicant was sentenced to one year and six months imprisonment with a non-parole period of eight months backdated to 20 September 2017 when he was taken into custody.
The Applicant, following his release from custody in about May 2018, subsequently appeared before the Local Court for various offences of dishonesty which on appeal were dealt with on 13 September 2018. He was then imprisoned for 12 months commencing on 19 July 2018 with a non-parole period of six months. Hence, he had a period of a few weeks between May and July 2018 when he was not imprisoned.
The Applicant said that all of his offending occurred when intoxicated and when he was fitting in with friends at the time. He said his offending was not intentional or premeditated, but was spontaneous. The offences of assaulting police officers and offensive language, he repeated, all occurred when intoxicated. He said he had no good reason for committing those offences. He apologised for his offending.
The Applicant said in cross-examination that when in prison and in detention he did not consume alcohol or drugs. He said that before his release from custody in 2018 he had not undertaken any courses with respect to his drug and alcohol abuse but in his most recent period of incarceration he did undertake training. He provided four certificates of completion being the “High Intensity Program Unit”, “Real Understanding of Self Help”, “EQUIPS Foundation Program” and “EQUIPS Addiction Program” with completion dates between 7 November 2018 and 14 January 2019.[3]
[3] Ibid, pages 95 – 98.
However, the Applicant was cross-examined about an incident that occurred on 29 February 2016 when in custody. He assaulted a correctional officer. During a cell check for unauthorised property, the NSW Facts Sheet[4] reports the following:
“The victim told the accused to leave the cell and turned around to pick up the sandwich maker as the victim lent forward he felt a punch to the right side of his face. The impact of the punch has caused the victim to fall onto his hands and knees and lose his glasses. Then the victim felt a flurry of punches with closed fists hitting him all around his head and face this attack lasted for about 30 seconds … the victim had blood coming from his mouth and his dentures were dislodged.”
[4] Exhibit F, pages 12 – 14.
The Applicant was dealt with in the Local Court on 10 May 2017 where he was charged with assault law enforcement officer – inflict actual bodily harm. He pleaded guilty to that charge and was imprisoned for 10 months with a non-parole period of 6 months commencing on 26 March 2017.
The Applicant in cross-examination denied committing the offence, said that another prisoner, SK, who was referred to in the NSW Facts Sheet was the offender and that he heard a noise, turned around, and saw the correctional officer on the ground. He said he did not see any assault. He said he had not been drinking or taken drugs on that occasion. He said he pleaded guilty to the offence because there was “too much evidence on me” and “I was the only one that got charged”. He received a 25% discount for his early plea. He also said that it was alleged by two correctional services officers that he had made admissions to them. The Applicant denied he was lying to the Tribunal. The Tribunal does not accept the Applicant’s evidence in denial of the offence.
The Applicant said he had a drinking problem which started when he dropped out of school. He had previously been the victim of an assault and was hospitalised, and after that he started to drink in order to escape reality. The Tribunal infers he was referring to the incident described by the Learned Sentencing Judge referred to above. At home, he would get lectures from his mother and, although he now appreciates she was trying to help him, he would “take off” and drink with friends which led to his offending.
The Applicant was also asked in cross-examination about circumstances giving rise to the offences of assaulting police officers. Again, he said he was drunk. He was asked what thought he had given to stop reacting this way in the future. The Applicant said he will not be drunk in the future. He said the offending happened if a police officer was being a “smart arse” and rude and he would react to that officer’s demeanour. He said if a police officer was a “smart arse” in the future “I’d just avoid it … I’d think before I’d react”.
The Applicant was also asked if he had given thought to other rehabilitation courses he might undertake. He referred to “Men’s Group” course which is not available to him at the moment. He had presently made enquiries with Welfare about undertaking that course.
In the Applicant’s Personal Circumstances Form, he said that he travelled to Australia with an older sister, AKB, born in 1992. He also referred to having a girlfriend, however in evidence he said that relationship had ended. He did not include any details of minor children in his life, including nieces and nephews, and there were other errors in the form.
The Applicant said in evidence that in respect of his sister AKB, she is now an Australian citizen, married, and living in Western Sydney with four children, namely two daughters aged approximately 7 and 5 years, and two sons aged approximately 2 and 1 years. His sister suffers from mental health issues, including bipolar disorder, and hence the two older children live with his mother while the two younger children continue to reside with his sister and her husband. He would see AKB and her younger children every weekend and, because he lived with his mother, he would see his two older nieces daily when not in custody.
In respect of those nieces, the Applicant said that arrangement was put in place to help support his sister, particularly given her current health difficulties. He said that he would often babysit those children. His mother had, for a number of years, been attending English classes and he would look after those children when she was at class. He said that he would often help them with homework, take them to and from school, play with them, take them to the park, and said that he had a loving relationship with them. He said that in relation to AKB’s youngest son, he has been in custody for the whole of his life. In relation to her other son, his main contact was on weekends and while he remained out of custody for a few weeks in 2018.
In respect of his oldest sister NKKB who now lives in Brisbane, she has two daughters, namely a 12-year-old currently living with her father in Canberra and a 4-year-old currently living with her father in Canada. He said that whilst NNKB was living in Canberra he would often stay with his sister and look after both nieces. Similarly, he would take them to or collect them from school, help them with their homework, and enjoyed a loving relationship with them. He also later said in submissions that the youngest daughter has only recently moved to Canada since he has been imprisoned. She is temporarily residing with her father whilst NKKB deals with issues with her former partner in Canberra and the future arrangements for his older niece. The Applicant believes his youngest niece will return to Australia in the future.
The Tribunal asked the Applicant about what would happen should he be required to return to Sudan. He said it would be scary because that is where they fled from. He said he believed his life would be in danger because the same people running the country are the same people that were in conflict with his father. The current President of Sudan worked with his father. He said his father was accused of things, put in jail, released, not charged, and about two years later in about 1999 he was killed. He was killed somewhere in Sudan but he does not know where. He said that if he were to return to Sudan he will be in trouble because of his family name. He said the authorities will come after his whole family. He described the government as corrupt. He said he has no family in Sudan, and that they are in refugee camps in Kenya and some are in Uganda. He does not know how to contact them. He does not know where he would live in Sudan and has no contact person there.
In cross-examination, the Applicant was asked about his Personal Circumstances Form[5] in which he also failed to refer to his other siblings. When asked if there are any still in Sudan, he said there were family members in Uganda and Kenya, but that he was not sure where others were residing.
[5] Exhibit A, G Documents, pages 70 – 87.
The Applicant was referred to a Human Services Juvenile Justice Background Report: Confidential dated October 2011[6] prepared for the Children’s Court in which the author said the Applicant’s mother reported “Three of the elder siblings remain in Sudan”. Further “In December 2010, Ms B reported that she returned to Sudan to support a family member who was gravely ill. During this time, Ms B reported that she had left the care of [the Applicant] to his older sister.”
[6] Exhibit B, pages 131 – 136.
The Applicant did not know who the three siblings living in Sudan were. He said that his mother had not spoken to his siblings for a while and that he had not personally tried to contact them. He repeated that his siblings were in Kenya and Uganda, and that he had a large number of siblings and was not aware if any were in Sudan. Insofar as his mother reported a return to Sudan, the Applicant said that would be to care for his older brother M, but he did not know his last name, nor did he know his whereabouts and his mother had not spoken to M recently.
The Applicant was asked in cross-examination whether the situation had changed in Sudan in the last 10 years. He said not much has changed except that there is now an independent North and South Sudan. He maintained that they would try and wipe out his family and insofar as his mother returned to Sudan, he said she has a different last name to his. He said that his father split up the family, hence he didn’t know M’s last name, but his father’s name was spelled differently. It was the surname of the Applicant that would place him at risk.
The Applicant was asked if he had used a number of aliases. He agreed that he had done so to deceive police and with a view to avoiding prosecution. The Tribunal notes that in the NSW Police Force Criminal History - Bail Report[7] there are listed 12 aliases, being different name or dates of birth or both. Further, there are other different dates of birth recorded in the G Documents.[8]
[7] Exhibit A, G Documents, page 161.
[8] Ibid, pages 60, 71 and 161.
The Applicant said that he has not seen any members of his family including his nieces or nephews since his most recent sentence of imprisonment and immigration detention. He last saw them in about July 2018 prior to going into custody. The Applicant said his younger brother is now 21 years of age and continues to live with his mother. He has maintained regular contact with his mother by telephone and he speaks with his sister in Brisbane every fortnight.
He said that if he is permitted to return to the community, he will not reoffend. He said that he had lost time with his family and he wants to renew the familial relationship, including with his nieces and nephews, but in particular with his mother. Upon release, he will live with his sister in Brisbane. He wants to complete year 12 and study at TAFE. He would like to do a certificate in bricklaying or warehousing and obtain employment and spend time with his family. He will then return to Sydney to obtain employment and help his mother.
The Applicant said for him it was hard to open up and easier to keep his feelings inside. He has now learned a lot of things since he has been in custody, and he now understands the need to ask for help. If he saw a mate and was asked for a drink he would refuse. He has not seen his former friends since July 2018 and he does not intend to renew contact with them.
NKKB
NKKB provided an unsigned an undated statement to the Tribunal and gave evidence by telephone.
She is the Applicant’s older sister, is now aged 31 years, and has been in Australia for approximately 15 years. She has been living in Brisbane for two years. NKKB is employed as a support worker working with young people, and in particular young people with disabilities. She was formerly married and has two daughters, one aged 4-year-old who has been living in Canada for approximately one year, and one aged 12-year-old living in Canberra.
In respect of her elder daughter, NKKB corroborated the Applicant’s evidence in relation to his persistence in caring for his niece. When NKKB was running late from work and he was living with her, he would pick up his niece after school. He would help her with homework and had a good relationship with her daughter. She has a lot of photographs of the Applicant with his nieces. She described him as a good uncle who was always quiet. She confirmed the Applicant also had a good relationship with her younger sister’s four children.
NKKB said that the Applicant spent a lot of time in jail. He should have gone to counselling. She said at home he would stay with her mother and what really “shook us” was when he was put into immigration detention. That made it feel as though they were losing him and this has been tough for the family. They hope he has learnt from this experience.
NKKB saw the Applicant once in custody because she was moving to, and has lived in, Brisbane for two years. She confirmed her mother visited him regularly which she finds difficult. She said her mother was depressed.
NKKB described her life in Sudan. The family came from a Dinka background. She said her family became separated. The father was involved in politics but was killed in Sudan. She said she had a lot of stepmothers and that those responsible for killing her father were “looking to kill us”, which the Tribunal infers her to mean kill her family members. The people are still in government and have taken over power. She has never gone back home.
NKKB said that the Applicant left Sudan with her stepmother when the Applicant was very young. He was three years old when she last saw him. When living in Australia, she and her mother believed that the Applicant was dead, but in about 2005 they heard he was living in Egypt. Her mother then worked hard to help the Applicant and his sister come to Australia which occurred in 2009. When they came to Australia, they lived with their mother and younger brother. There was also a cousin that the mother adopted also living with them. She said that they have heard they have family living in Uganda, America, Norway and Algeria, but they have no family in Sudan.
NKKB said she had older brothers and sisters. She was a child when her older siblings were lost when her mother was running from Sudan. The family got separated quickly when they were children.
In cross-examination when asked about her mother’s trip to Sudan and why she would return there, NKKB said that her mother travelled to Kenya to see a lady that was allegedly her mother’s cousin. But it turned out to be untrue. She did not go to look after M. M was not their brother. Her mother had previously believed that he was one of the siblings and wanted to bring him to Australia but, following a DNA test, it was determined he was not related to them. She said the fact her mother wasted time sending money to him was a big disappointment. He was living in Sudan. When asked how he could reside in Sudan under the belief that he was a relative, she explained that the misunderstanding was due to M’s surname.
NKKB said if the Applicant was to return to Sudan he would “not make it there” because he did not have anyone and would have nowhere to go. She said they would make an example of him and he would be isolated and be mocked, killed or imprisoned. She said the country was still at war. She said they would know he was related to her father. In Egypt, there were a lot of Africans living there and the Applicant is on Facebook and his father’s photograph is on his Facebook page. NKKB could not really remember her father who would come and go from her home in Sudan.
In cross-examination, NKKB confirmed that the Applicant would pick up her two daughters from school in around 2016 – 2017. He stayed for about five months in about 2016 at a time when he was in and out of prison. She confirmed that she would work late and he would pick up the children from school and day-care. She said they were living in Western Sydney area and the Applicant was having a lot of issues. She tried to speak to him to go to counselling but he would not say much and he had no one to talk about his issues. He had a lot of drinking issues and was always coming home late. Nonetheless, she trusted him with her children. He knew not to drink when he was picking up the children and while he was looking after them. It was on the weekends that he would go out and drink alcohol.
NKKB corroborated the Applicant’s evidence about his contribution to the care of his nieces, including in Canberra. She last saw him in the period of his release from prison in 2018. She confirmed that she is prepared for the Applicant to stay with her if he is given another chance. From her discussions with him, he sounds like a different person. She explained his intention to engage in counselling, engage in youth groups that were not only African youth, engage in sports, and encourage him to get his driving licence as she has a second car that she will make available to him. She said he has missed out on a lot and that she knows she can help him. She confirmed the Applicant’s intention to enrol in TAFE. She also said he draws very well and is good with computers and he is “very smart”.
The Tribunal gave the Applicant the opportunity to speak with his mother to see if she was prepared to provide a statement and give evidence. The Applicant advised that he spoke with his mother overnight but she was too emotional to give evidence or to provide a written statement. He said that nonetheless he remains close to his mother. The Tribunal accepts that evidence.

The Tribunal will now address the Primary and Other Considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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 Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
Youth Offending
The Applicant first arrived in Australia in 2008, aged 12 years. He was first dealt with by the children’s courts in 2011 and regularly appeared before the Children’s Court until 2012. His approximate 20 appearances before the Children’s Court included numerous offences of dishonesty and violence, including assaulting police officers in the execution of their duty. He demonstrated contempt for the laws of Australia and a disregard for those police officers entrusted with upholding those laws and ensuring the safety and protection of the Australian community.
His use of alcohol and drugs whilst a teenager further exemplified that disregard for the law and provides no mitigation for his appalling offending as a youth.
The Applicant’s offending continued as an adult in a similar manner, including offences of dishonesty and assaulting officers in the execution of their duty. The offence of assault law enforcement officer, to which the Tribunal referred to at paragraphs 45-47 above, is of serious concern. It was a serious deliberate unprovoked act of violence when sober and not influenced by others. The Tribunal does not accept the Applicant’s denial that he committed the offence. That denial demonstrated a lack of maturity and a preparedness to accept the responsibility for his appalling conduct.
That lack of maturity and acceptance of responsibility is further demonstrated when, in evidence, he explained his numerous offences of assaulting police officers which he said occurred when a police officer was a “smart arse” and rude. The Tribunal does not accept his evidence that his violence was the reaction to the inappropriate demeanour by police officers. This recidivist type of offending demonstrates a person who had no regard for police.
The Respondent submits the Applicant’s conduct has been very serious given the nature of harm and sentences imposed, and frequency of the offending. The Respondent submits that this factor should weigh heavily in favour of non-revocation.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In considering the risk of reoffending, it is important to note that the Applicant has completed the following rehabilitative courses namely:
·         High Intensity Program Unit (HIPU) Program to address his reoffending and alcohol use;
·         Real Understanding of Self Help (RUSH);
·         EQUIPS Foundation Program; and
·         EQUIPS Addiction Program.
The Applicant says that he understands alcohol and drug abuse has been a major cause of his offending and, with the help of those courses, he is now equipped to ask people for help rather than bottle up his emotions. He also has plans for the future, including engaging in further counselling, moving to Brisbane to reside with his sister, completing his education, and returning to Sydney to work and support his mother. Those intentions are all very admirable, but have never been tested in the community. The Tribunal notes that the Applicant was last in the Australian community a few weeks in 2018 between periods of imprisonment.
The Respondent referred to the extensive history of offending, including repeated offences against law enforcement officers. Further, as was observed by the Learned Sentencing Judge, the Applicant’s offence of robbery in company for which he was sentenced on 29 March 2018 was an offence that occurred at 4 a.m. against a vulnerable member of the public who, the Respondent submits, was simply going about his duties. His offending, it was submitted, was against the Australian community.
Further, the Respondent submitted that although the Applicant said his offending occurred whilst affected by alcohol and drugs that was not the case in respect of the assault on the prison correctional officer. The Respondent submitted that the Applicant was not truthful in giving evidence about that offending. Hence, the Respondent submits the Applicant is a greater risk of reoffending where he refuses to acknowledge his behaviour and has not taken any substantial steps to rehabilitate himself.
The Respondent submitted that the Applicant has a history of lashing out at people in authority. Counsel referred to pages 18 and 19 of Exhibit B, being New South Wales Police Facts Sheet. This offending was not put to the Applicant in cross-examination but referred to an offence when the Applicant was aged 17. The Applicant and another were in an entrance to a park when they approached, stopped and assaulted a man on bicycle. After the victim announced he was a police officer, the Applicant left, removed a mattock from the rear tray of a motor vehicle, returned to the victim, and raised the mattock as if to strike him with it. Witnesses in the vicinity were calling to the Applicant to drop the mattock. Counsel for the Respondent also referred to other charges of assault police officer.[9]
[9] Exhibit B, page 363; Exhibit A, G Documents, pages 28-29.
The Respondent submitted that the Applicant’s pattern of behaviour should lead the Tribunal to the conclusion that the Applicant has issues with people in authority.
Further, it was submitted that the Applicant’s offending was often committed in company, against vulnerable members of the community and that, given the cumulative effect of his ongoing offending, there is a high likelihood that he will, upon release, reoffend.
The Respondent submits that the nature of the harm were the Applicant to reoffend is very serious (it could cause significant physical or financial loss). There is a high likelihood of reoffending given the frequency of past offending. His rehabilitation has not been tested in the community.
The Applicant submitted that his offending was “out of the blue” and that his first offence of robbery did not cause or give rise to damage or threat to others which made it less serious. He submitted he does not have an issue with authority. He referred to an offence of assault police when he was in the police station. He said he tried to kick a door but accidentally kicked the police officer. On that occasion, he had been arrested for being drunk and disorderly.
The Applicant said that he does not have an issue with the police force and his offending has only occurred when intoxicated. The offence, which happens in the moment, is not demonstrative of a hatred of police. Nonetheless, the Applicant accepted responsibility for his prior offending, and that it was inexcusable.
Conclusion: Primary Consideration A
The Tribunal is not persuaded that the Applicant has issues with those in authority insofar as he may have a psychological disposition to do so. The Tribunal does find, however, that the Applicant has in the past and is a real risk in the future of demonstrating a lack of respect for police, and is not deterred from reacting violently when confronted by a police officer in the performance of his or her lawful duties. Albeit the Applicant said in evidence that he will no longer react when confronted by police, on the available evidence the Tribunal does not accept that assurance.
The Applicant has an appalling offender history. It is true that individually some of those offences may not have been the most serious of their type. The Learned Sentencing Judge made that observation and, in respect of the offence of robbery in company, described MM as the “prime mover in this offence”. Nonetheless, Applicant had a part in the offending which His Honour said caused fear to the victim when confronted by both offenders at 4 a.m. The Learned Sentencing Judge rightly described the victim as a vulnerable person.
The Applicant regularly appeared before various courts from 2011. His offending appears to have been interrupted by periods of imprisonment; save for the offence when in custody of assaulting a law enforcement officer and inflicting actual bodily harm for which he was sentenced on 10 May 2017.
The Applicant has engaged in counselling whilst most recently in prison, has expressed a clear intention to change his lifestyle, accept the support of his sister and move to Brisbane, and engage in further education before returning to Sydney to work and help support his mother. However, the Applicant has for a number of years not been deterred from his serious offending. He has demonstrated contempt for the laws of Australia. He lied to the Tribunal in denying his violent assault on a correctional services officer. He has lied to police by giving false personal details in an attempt to avoid being prosecuted.
Having regard to all the evidence, the Tribunal finds that the Applicant presents a real risk of reoffending. Such reoffending is likely to cause harm to individual members of the public and law enforcement officers should he reoffend in a like manner, which risk is unacceptable.
Accordingly, Primary Consideration A weighs heavily against the revocation of the Applicant’s visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
No evidence was advanced in the Applicant’s Personal Circumstances Form that the revocation of the Original Decision would have a negative impact on the best interests of any minor children in Australia.
However, in evidence the Applicant identified a number of nieces and nephews that enliven the consideration of this Primary Consideration.
The Applicant has two nieces born to his sister NKKB. In respect of the younger niece aged 4 years, she is now living in Canada. The Respondent argues that she is not a minor child in Australia and therefore this child’s interests do not fall within the scope of this Primary Consideration. The Tribunal agrees with that submission, however, if wrong, her interests would be the same as that of her older sister aged 12 years who is now living with her father in Canberra.
The Applicant and NKKB gave consistent evidence that he would from time to time assist in the care of the children. Both said in evidence that he would collect them from school, help them with homework, play with them, and that he was a loving uncle.
NKKB said that the Applicant lived with her in about 2016 – 2017 for a period of five months when the Applicant was not in custody. The Applicant expressed the intention to continue to be supportive of his nieces and nephews generally in a similar way should he be released back into the community. However, it must be noted that it is his immediate intention to travel to Brisbane and live with NKKB whilst undertaking counselling and studies before returning to live in Sydney, and therefore it is unlikely that he will play any parental or supporting role in the immediate future.
The Applicant’s sister AKB has two daughters and two sons. The Applicant’s two nieces reside with the Applicant’s mother and the Applicant has babysat his nieces, particularly when his mother went to her English classes. He also helped with their homework, played with them, and had a loving relationship with them.
As for his two nephews aged 1 and 2 years, the Applicant said that he saw them on weekends and enjoyed a similar loving relationship with them as their uncle. However, in answering the Tribunal’s questions, the Applicant acknowledged that the youngest nephew was born whilst he has most recently been in custody and therefore he has not engaged with his youngest nephew.
The Respondent submits there are five children in relation to whom this Primary Consideration applies and, albeit their interests are to be considered separately, there is no material difference with respect to each child.
As for NKKB’s older daughter, it was accepted that she had some relationship with the Applicant. It was not disputed that he would pick her up from school, and return to the home of his mother and brother where he would help with homework, take her to the park, and play games. Nor was there any dispute that, when living in Canberra, the Applicant resided with NKKB and his nieces.
The Respondent reminded the Tribunal that the Applicant had a broken history of residing at his mother’s house. Following arguments with his mother, he would leave the home and couch surf at friends’ residences. He had periods of incarceration and on weekends he would drink heavily. NKKB gave evidence that the Applicant would not spend time with her eldest daughter when drinking. Accordingly, the Respondent submits that the extent to which the Applicant has played a parental role to his elder niece must be limited.
The potential for the Applicant to play a role in the future if released into the community will be determined by whether he remains offence free. Further, his eldest niece moved to Canberra shortly prior to the Applicant’s most recent period of imprisonment in July 2018, and he had then only been in the community for a few weeks when released from custody and therefore again his engagement with his niece was limited.
Given the Applicant’s future intention of living and studying in Brisbane prior to returning to Sydney, there is no evidence that he will have a significant role in his niece’s life in the future.
As for AKB’s two daughters, the Respondent submits that the Applicant has played a limited supportive role with respect to his two nieces who currently live at his mother’s home, and again the Applicant has been and subject to periods of incarceration or couch surfing, which it is submitted must have limited his parenting or supervising role of the children. Otherwise, the Respondent accepts the Applicant has provided support for his two nieces as described by the Applicant in his evidence. The Respondent also reminds the Tribunal that the Applicant’s younger brother, now aged 21 years, continues to live at the his mother’s home and can provide support if necessary.
As for AKB’s two younger sons aged 1 and 2 years, the Applicant has been in custody for the whole of his youngest nephew’s life and in respect of his older nephew he has been in custody for most of his life and had little involvement in his care. The extent of his involvement was when that nephew came to see him over a weekend when the Applicant was not in custody for a few weeks in 2018 before he returned to prison. Hence, the Applicant has had little opportunity to engage with that nephew.
Conclusion: Primary Consideration B
The Tribunal agrees with the Respondent’s submission that NKKB’s youngest daughter is not a minor child residing in Australia and a person to whom Primary Consideration B applies.
The Tribunal accepts that in relation to NKKB’s older daughter currently living in Canberra, the Applicant has cared for her from time to time when NKKB and her children resided in Sydney, and then particularly when he resided at his sister’s in about 2016 – 2017. The Applicant has babysat his niece from time to time, helped with homework, played with her, and has played a loving role as her uncle.
However, the Applicant’s assistance in caring for his niece has been substantially interrupted by periods of incarceration. He only had a few weeks in 2018 between periods of incarceration in which he could perform that role. When not incarcerated, there were periods when he was not living at his mother’s house, when he was not seeing his niece, and nor would he see her on the weekends, particularly when affected by alcohol. Further, given that his niece now resides in Canberra and, if released, the Applicant proposes to live in Brisbane, it is unlikely that he will have much involvement in the future care of his niece and play a positive parental role while she is a minor.
The Tribunal accepts that his niece will be disappointed and miss the Applicant should he return to South Sudan and that there may be difficulty in maintaining contact in the future, but there are others who now and will in the future continue to play the parental role to the exclusion of the Applicant. Accordingly, the Tribunal gives neutral weight to this Primary Consideration as it relates to this niece.

As for AKB’s two daughters, their interests are the same and need not be distinguished from each other. They live in the Applicant’s mother’s home in her care. Also residing in that home is the Applicant’s 21-year-old brother. As referred to above, the Applicant has been away from that home whilst incarcerated, or when he has left the home and couch surfed following arguments with his mother. Nonetheless, the Tribunal accepts that he has babysat both nieces, assisted with their homework, played with them and been a loving uncle.
For the reasons mentioned above, the Applicant is unlikely to play a positive parental role in future until such time that he returns to live in Sydney, which is not known.
The Tribunal accepts that the Applicant has been a loving uncle and should he return to South Sudan it would likely to be distressing to both nieces. The Tribunal notes however that neither niece has seen the Applicant since he was imprisoned in July 2018 and his most recent contact with them was for a few weeks in 2018 between the periods of imprisonment. Accordingly, in respect of these two nieces, the Tribunal finds that this Primary Consideration weighs slightly in favour of the revocation of the Applicant’s visa cancellation.
As for AKB’s two young children, apart for those few weeks when released from custody in 2018, the Applicant has had no role in relation to his elder nephew and he has been in custody for the whole of the life of his younger nephew. There is no evidence before the Tribunal from which it can be accepted that he has played any parenting role in relation to either nephew and accordingly the Tribunal attributes neutral weight in respect of those nephews.
Having regard to the whole of the evidence, Primary Consideration C weighs slightly in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
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 only 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.
In FYBR v Minister for Home Affairs[10] Charlesworth J held that the Australian Government has deemed what is the community expectation in relation to this Primary Consideration. To that extent, the first sentence in paragraph 13.3(1) “should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa”[11] revoked.
[10] [2019] FCAFC 185.
[11] Ibid at [75].
As the Tribunal has observed in GCXD and Minister for Home Affairs[12] at [189] it is the expectation of the Australian community that an Applicant obey Australian laws and that expectation has not been met when an Applicant, by his or her offending and sentence of imprisonment, cannot pass the character test pursuant to s 501(6)(a) of the Act. Hence, the expectation of the Australian community is that the Applicant’s visa be revoked. It is then for the Tribunal to consider what weight is to be given to this expectation in the operation of the Tribunal’s discretion having regard the balance of paragraph 13.3(1) and to the Principles referred to, in particular, in paragraphs 6.3(5) and 6.3(7).
[12] [2019] AATA 5162.
The Applicant has spent a significant period of his life in Australia. He came to Australia aged 12 years and is now a young man aged 23 years. However, he started committing offences within a relatively short period of time following his arrival in Australia, namely within three years. He has not made any real contribution to the Australian community such that a higher degree of tolerance may be afforded to him. He has been imprisoned on a number of occasions and more recently from July 2018 until he went into immigration detention.
In considering the weight to be given to this Primary Consideration, the Respondent reminds the Tribunal that one factor to be considered that may weigh in the Applicant’s favour is the circumstance in which he was assaulted when aged 14 and prior to embarking upon his criminal offending.
Nonetheless, the Respondent submits that Australian community would expect the Applicant’s visa to be revoked given his frequent and violent offending. Whilst the Applicant’s personal circumstances may invoke some sympathy, the protection of the Australian community is paramount.
Conclusion: Primary Consideration C
The Applicant has had a difficult life. The circumstances in which he fled Sudan with his step-mother and sister and being separated from the rest of his family including his mother and siblings invokes much sympathy.
The Applicant, having reconnected with his mother, older sister and younger brother and then coming to Australia, provided him with the opportunity for a much improved future.
The Tribunal accepts the observations of the forensic psychologist as contained in a report before the Learned Sentencing Judge that the Applicant experienced difficulties, including in Egypt where there was much fighting and teenage gang warfare over small territories. The Tribunal also accepts that the Applicant observed several acts of violence including people injured by machetes. The Tribunal also accepts that the Applicant had symptoms consistent with post-traumatic stress disorder.
On the evidence before the Tribunal, the Applicant’s mental health has not been adequately treated to date. The Tribunal agrees with the Learned Sentencing Judge’s remarks in which he said, in reference to the Applicant having been the victim of a sexual assault, that “apart from his earlier history that undoubtedly added a further layer of significant trauma and psychological imbalance … on this offender”.
The Applicant’s recidivist offending, including offences of violence and violence directed at police and a correctional services officer, is very serious. Were his offending isolated, those personal matters to which the Tribunal has referred above might operate to reduce the weight to be given to this Primary Consideration in favour of the Applicant’s visa cancellation. However, the cumulative effect of his recidivist offending substantially reduces the reduction in weight that may otherwise be given to the Applicant.
Accordingly, those personal circumstances, to a limited extent, operate in reducing the weight to be given, such that rather than weighing heavily against the Applicant the Tribunal finds that this Primary Consideration should be given significant weight in favour of the Applicant’s visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Paragraph 14.1(1) of the Direction, referred to above, articulates Australia’s non-refoulement obligations as they accord with international human rights treaties and in particular the “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”.
The Applicant has given evidence about his fear of returning to Sudan which was the country from which he and his family fled during the Civil War when he was aged approximately three years. He referred to his father’s death during the war and that his large family subsequently dispersed across a number of African countries including Kenya and Uganda. He gave evidence that he, or members of his family, will be persecuted killed or imprisoned should they return to Sudan. The Applicant’s sister NKKB gave similar evidence. Both said that their surname would enliven a response from the government should they return to Sudan. NKKB also gave evidence that the Applicant’s Facebook profile also demonstrates a link to their late father and contribute to the Applicant’s persecution should he return to Sudan.
The Respondent referred the Applicant and NKKB to the recorded statement of their mother in the Human Services Juvenile Justice Background Report referred to above that she returned to Sudan in about 2010 to tend to a sick relative. The mother also reported that three sons continued to reside in Sudan. This evidence is in conflict to that given by the Applicant and NKKB. The Tribunal notes NKKB said that her mother did not enter Sudan when she returned to Africa.
The Applicant in evidence said that he had not made an application for protection visa and did not know or understand the nature of such application.
The Respondent in submissions said it was not necessary for the Tribunal to consider whether Australia owed non-refoulement obligations to the Applicant in circumstances where he is able to make an application for protection visa in which that question can be resolved in accordance with Direction No. 75.
The Respondent further submitted that the Tribunal was nonetheless to engage in relation to the claims of risk of harm and consider whether the Applicant will be killed or arbitrarily detained should he be returned to Sudan. The Respondent did not dispute the circumstances surrounding the death of the Applicant’s father during the Civil War.
The Respondent referred to the conflicting evidence with respect to Sudan and the Applicant and NKKB’s evidence that because they share the last name with their late father this places the Applicant at risk because forces in South Sudan would stop at nothing until members of the family were killed. This must be contrasted with the NKHH’s mother’s reported comments in the Human Services Juvenile Justice Background Report that there were still brothers in Sudan and that she travelled to Sudan in 2010. Further, was submitted that a purported brother M continued to reside in Sudan, albeit with a different surname which is arguably inconsistent with the belief of the Applicant and NKKB that the family will be exterminated because of the connection with their late father.
The Respondent submitted that the Applicant’s fear and belief about life in Sudan is based on events occurring in Sudan during the Civil War and the impact that war had upon his family. It was submitted that there was no evidence before the Tribunal from which a finding could be made that the non-refoulement obligations were currently owed to the Applicant.
Conclusion: Other Consideration 1
As referred to above, the Tribunal allowed the Applicant the opportunity to enquire if his mother would like to provide a statement to the Tribunal and give evidence. She declined. Her evidence may have assisted the Tribunal in resolving the inconsistencies between her statement in the Human Services Juvenile Justice Background Report that she visited Sudan to tend to a sick relative and that three sons still reside in Sudan when compared with the evidence of the Applicant and NKKB about the risks faced by family members and in particular the Applicant should he return to Sudan. It must be noted the Applicant has no memory of his life in Sudan and NKKB was a young child when she left.
Having regard to the competing evidence before the Tribunal in relation to the risks facing the Applicant should he be returned to Sudan, the Tribunal does not accept the evidence of the Applicant and his sister such that this Other Consideration has been enlivened.
The Tribunal has had regard to the decision in Ali v Minister for Immigration and Border Protection[13] in which Flick J said:
To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No. 75.
[13] [2018] FCA 650 at [30].
This does not mean that the matters raised by the Applicant and NKKB are to be ignored. Consistent with Minister for Home Affairs v Omar[14] those claims raised by the Applicant must be considered and determined in the context of such other reason for revoking the visa cancellation. The Tribunal will deal with those claims when considering the Other Consideration – Extent of impediments if removed.
[14] [2019] FCAFC 188.
Hence, having regard to the evidence, the Applicant has not set out any specific claim of non-refoulement, and the Tribunal does not accept that this Other Consideration is enlivened on the evidence. It remains open however for the Applicant to apply for a Protection visa, and that any potential evidence or submissions by the Applicant in relation to non-refoulement should be addressed in accordance with Direction No. 75 if or when the Applicant applies for a protection visa.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i) Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The evidence in relation to this Other Consideration is detailed above and the Tribunal will not repeat it here.
The Respondent submitted that this Other Consideration weighs in favour of the Applicant. He has spent approximately half of his life in Australia. However, less weight should be given where he commenced offending within three years after his arrival. He has spent much of his time in prison and immigration detention.
The Respondent further submitted that, albeit he has family in Australia, his mother declined to give evidence. In the absence of his mother’s evidence, her relationship with the Applicant now and in the future is unclear.
The Respondent referred to NKKB’s evidence and the support she has offered to the Applicant. She has a meaningful relationship with him albeit it is strained by his offending.
It was submitted that no evidence was provided about supports for the Applicant other than emotional and familial support. The Respondent submitted that the Applicant’s brother could provide support for the minor children living with the Applicant’s mother.
Conclusion: Other Consideration 2
The Applicant’s large family separated during the Sudanese Civil War. He and AKB remained together, including when they travelled to Australia to join his mother, eldest sister and younger brother. They, together with his nieces and nephews, have been his family since arriving in Australia. The Applicant said that he has no contact with other family members. The Tribunal accepts that evidence.
The Applicant spent only three years of his life in Sudan. He has no memory of that country, and knows no-one currently living there. His life in Egypt was difficult. He has spent nearly half of his 23 years living in Australia. He regards Australia as his home and his return to Sudan will have a significant impact on him. The Tribunal accepts it will also be distressing for his mother, two sisters and brother should he be returned to Sudan. This will also be distressing to varying degrees with respect to his nieces and nephews to whom the Tribunal has referred above.

The Applicant has the continued devotion of NKKB who is also a support worker working with the youth and intellectually disabled, and has relevant skills in providing support, guidance and direction to the Applicant. She will provide him with a home in Brisbane and help guide him with his immediate future. The Tribunal accepts her evidence. Of course it will be dependent upon the Applicant as to whether or not he would embrace his sister’s support should he remain in the Australian community.
NKKB described the Applicant as an intelligent person. The Tribunal’s observation of him in the way he conducted the proceedings, including referencing the G documents and exhibits, demonstrated that he is an intelligent young man.
The ability for the Applicant to communicate with family members living in Australia from Sudan will likely be difficult. It is unlikely that Sudan has the same telephone and internet communication facilities as Australia.
Given the strength and nature of the Applicant’s ties to Australia, the Tribunal accepts that this Other Consideration weighs in favour of the Applicant; but taking into account the fact that the Applicant started his recidivist offending only three years after his arrival in Australia, some reduction must be made to the weight to be given. Further, he has not made any significant contribution to Australian community in the 12 years of residence.
Having regard to the whole of the evidence, the Tribunal gives moderate weight to this Other Consideration in favour of the Applicant’s visa revocation.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the original decision would have a negative impact upon any victims.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is currently aged 23 years old. He has not resided in South Sudan since he was 2 years old. There is no evidence before the Tribunal that the Applicant has any health problems.
The Applicant’s submissions in relation to his capacity to reside in South Sudan have been summarised in Other Consideration 1: Australia’s non-refoulement obligations and do not need to be repeated in detail here. The Applicant’s submissions include his fear of harm as a result of his father’s involvement in the Civil War. The Applicant has also submitted that, if returned, he will not know where to live, how he will communicate generally with his family in Australia, what he will do with himself, and has stated that everyone, including his siblings, is dead or hiding in neighbouring countries.
At the hearing, the Tribunal asked the Respondent to provide the Tribunal with up to date Country Information for South Sudan. On 17 December 2019, the Respondent provided the requested information to the Tribunal.
Accordingly, the Tribunal has obtained a “Country Information Report on South Sudan” prepared by the Department of Foreign Affairs and Trade (DFAT) on 5 October 2016 (“DFAT Report”), Standard Q&A Report – South Sudan: 20190411092354 – Humanitarian Situation in South Sudan – Active belligerents and conduct of hostilities – Security in Juba and other cities – Returnees – Forced conscription and recruitment dated 28 May 2019, and Standard Q&A Report – South Sudan: SCD CI80507152306975 – Conditions for returnees with no family support dated 27 June 2018. The Tribunal has also considered the reference to country information for South Sudan in the matter of FLLB and Minister for Home Affairs (“FLLB”).[15]
[15] [2018] AATA 3661.
Tribunal notes that the DFAT Report states at paragraph 1.5 that “Up-to-date data and open-source reports of the situation in South Sudan are hard to obtain, given the current security situation.”
The DFAT Report describes the creation of the new Republic of South Sudan in 2011 following protracted conflicts between northern and southern regions of Sudan, including the Second Civil War between 1983 and 2005. The Tribunal notes that the Applicant’s father was killed during that war in 1999 and the Applicant fled to Egypt the next year. Conflict has broken out since the end of the Second Civil War and “The humanitarian situation in South Sudan is dire and has been aggravated by the recent escalation in conflict. As of August 2016, 1.6 million people were internally displaced … and a further 818,950 South Sudanese people seeking refuge in surrounding countries…”[16] This appears consistent with the Applicant’s evidence that his relatives back in Sudan are residing in neighbouring countries. Since 2016, South Sudan has experienced a rise in crime which can be ‘directly attributed to continued political instability, poor infrastructure, widespread corruption and a growing economic crisis. Years of civil war, tribal conflict, and political unrest have provided the population with ready access to weapons and the knowledge of how to use them. Gunfire, especially at night, is not uncommon’. In 2017, the civil war continued to spread with similar devastating impact.[17]
[16] DFAT Report at paragraph 2.6.
[17] Standard Q&A Report- South Sudan: SCD CI80507152306975- Conditions for returnees with no family support at page 2.
Relevant to this Other Consideration is information about the economy, healthcare and employment. That information in the DFAT Report can be summarised as follows:
2.12 South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave that operates with something resembling a formal economy …
2.14 Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015, contributing to increasing levels of crime.
2.17 South Sudan’s population has extremely poor access to healthcare. Accurate data prepared by the Government on health indicators is often non-existent or outdated …
2.19 Data collected prior to the outbreak of conflict in December 2013 found that 76 per cent of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12 per cent of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However, as at 2016, DFAT assesses that as the security and economic situation deteriorated, employment opportunities (both in the formal and informal sectors) have also worsened.
In relation to returnees, “Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government.”[18] In addition to the matter referred to in paragraph 179 above, the 2018 report also confirms the employment situation and sparse access to healthcare in South Sudan; social welfare supports are extremely limited or unavailable.
[18] DFAT Report at paragraph 5.20.
In FLLB, Member Dr Bygrave noted at paragraph 76 that “News reports refer to the most recent peace agreement agreed on 12 September 2018, seeking to end five years of civil conflict. The various reports conclude that, despite this peace agreement, the situation in South Sudan remains unpredictable.”
Conclusion: Other Consideration 5
The Tribunal accepts that the Applicant has a genuine fear for his safety if he is returned to South Sudan, particularly because of his father’s involvement in the Civil War and death in 1999, which fear is also confirmed by NKKB. That fear is, however, not based on acceptable evidence before the Tribunal. That fear can be understood given the circumstances in which the Applicant and his family fled Sudan. That does not mean that such an environment of persecution directed to members of his family is continuing, albeit the Tribunal is conscious of the conditions for returnees referred to in paragraph 181 above.
Nonetheless, the Tribunal accepts that the Applicant will be subject to extreme difficulties should he be returned to South Sudan for the reasons outlined in the Country information referred to above. Further, the Tribunal accepts that given he has no memory of Sudan and knows of no-one living there who might provide accommodation, support and assist in his reintegration into society, his prospects upon his return are bleak.
Accordingly, the Tribunal finds that this Other Consideration weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
There are no more Other Considerations that arise on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of non-revocation of the Original Decision;
(b)Primary Consideration B weighs slightly in favour of revocation of the Original Decision;
(c)Primary Consideration C weighs significantly in favour of non-revocation Original Decision; and
(d)The combined weight of Primary Consideration B and the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to Primary Considerations A and C.
In balancing the weights attributed to each of the relevant Primary and Other Considerations to determine whether there is another reason why the Original Decision should be revoked, the Tribunal in particular notes paragraph 8(4) of the Direction which states that Primary Considerations should generally be given greater weight than the Other Considerations. The Tribunal therefore finds that, taking into account all of the relevant considerations in the Direction, they weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....................[sgd]...................................................
Associate
Dated: 3 January 2020

Date(s) of hearing: 2 and 3 December 2019

Applicant: In person

Solicitors for the Respondent: Mr A Ray - Clayton Utz

[2019] AATA 5626

23 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date(s) of hearing:	2 and 3 December 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Ray - Clayton Utz