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

NQJT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1060 (4 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1109
Re:NQJT
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:4 May 2022
Place:Sydney

The correct or preferable decision is to set aside the reviewable decision not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
..............................[sgd]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION - mandatory cancellation of visa under s 501(3A) – refusal to revoke cancellation – failure of character test due to substantial criminal record – is there another reason to revoke – protection of the Australian community – risk of reoffending – best interests of minor children – international non-refoulement obligations –impediments to removal - links to the Australian community – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
FRH18 and Minister for Home Affairs [2018] FCA 1769
FYBR v Minister for Home Affairs [2019] FCAFC 185
WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
4 May 2022
BACKGROUND

This is an application for the review of a decision of a delegate of the Respondent, dated 7 February 2022 (‘the reviewable decision’), which refused to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (‘the original decision’) (‘the visa’) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant’s visa was mandatorily cancelled on 17 September 2021 under s 501(3A) of the Act on the basis that she did not pass the character test in s 501(6)(a) due to a substantial criminal record as defined in s 501(7)(c).
On 15 October 2021, the applicant sought revocation of the cancellation. On 7 February 2022, a delegate of the Minister decided not to revoke the mandatory cancellation of the visa.
THE APPLICANT’S OFFENDING
The Applicant is a 29-year-old citizen of South Sudan, born in February 1993. She first arrived in Australia on 24 December 2006 and has resided in Australia since that time.
In September 2021, the Applicant was convicted of a count of assault occasioning actual bodily harm (DV)-T2, for which she was sentenced to 14 months’ imprisonment with a non-parole period of 5 months.
On 14 October 2021, the Applicant’s sentence for her offence of assault occasioning actual bodily harm (DV)-T2 was varied to an intensive correction order of 14 months’ duration.
THE LAW
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
THE ISSUE
The case proceeded on the basis that the Applicant does not pass the ‘character test’ as defined by s 501(6) of the Act. The decision before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
THE APPLICANT’S EVIDENCE
The Applicant gave evidence that she first arrived in Australia at the age of 13 with her family as a refugee. The family had travelled from what is now South Sudan to Egypt before coming to Australia. The family had arrived on Christmas Island on Christmas Eve 2006. The Applicant now sees Australia as her home, and she has not left since.
The Applicant is the mother of four children. The three eldest children are currently in the care of her mother, and the youngest child is currently in the care of her sister. These arrangements for the children were made in accordance with child protection decisions, as the Applicant was deemed unable to care for her children.
The Applicant said that she had been the victim of family violence from a young age, initially from her father and subsequently by other men with whom she had had a relationship. She said she had been the victim of sexual assault on a number of occasions but none of the offences were prosecuted, primarily because of her fear of retribution.
The Applicant admitted to a long history of alcoholism, drug use, theft, and assault. Most of her criminal offending had been dealt with by way of fine, but on 19 August 2021 she was sentenced to 20 months’ imprisonment, mainly because of her failure to comply with community corrections orders. Ultimately, her appeal against this sentence was upheld and she was instead subject to a 14-month intensive corrections orders. Most recently, the Applicant said that she had refrained from using drugs or alcohol and that she was determined to turn her life around.
The Applicant’s relationship with her family was said to be ‘good now’. In the past, the relationship had been strained because of the Applicant’s mental health issues, together with drug and alcohol abuse. The Applicant said that she had suffered from depression during the period that she was at school and that she had attempted suicide at age 15/16 as ‘she did not want to live anymore’.
The Applicant had been in a violent and controlling relationship with AE for around two years. She had called the police in relation to domestic violence issues, but despite AE being arrested and charged and an AVO issued, he had ‘bashed’ her again. Charges against AE did not progress because the Applicant failed to co-operate with police because she was afraid.
She said she did not have anything to do with AE any more, and that he had threatened to kill her and their child.
The Applicant had had a further relationship with DD. She said that she had been the victim of sexual assault, but once again did not co-operate with the police because she said she had ‘decided to let it go and forgive him’. She said she felt guilty at the prospect of putting someone in gaol, and that she was also afraid.
The Applicant initially used marijuana in 2013 with friends, began using ice in 2017, and started drinking in 2019. She said she started drinking heavily after being a victim of domestic violence and that she progressed to using ice on a regular basis.
The Applicant said that she had last used drugs a year ago and that a recent drug test had showed her to be free of drugs. She said she felt much better not using drugs, and that she did not want to go back to her previous life. The Applicant had unsuccessfully sought counselling for her drug and alcohol issues and also sought assistance for her underlying mental health issues.
The Applicant accepted that she had a history of non-compliance and non-cooperation in relation to community corrections orders, and she also accepted that she had been guilty of a number of offences both in prison and in immigration detention.
The Applicant said that her early offending had involved stealing clothing, and later alcohol which she was unable to pay for. She said that the assault on her sister A, her ex-partner EA, and her friend ABA had occurred while she was under the influence of drugs and alcohol.
She said she took responsibility for her behaviour and apologised.
When questioned about her familiarity with South Sudan, the Applicant gave evidence that she had never been there, she did not speak Dinka which is the language of the area, and that she was deeply afraid of what would happen if she were returned to South Sudan.
The Applicant expressed deep remorse about the effect of her drinking and drug use on her children. She said her children miss and love her and that she now wants the best for them.
The Applicant said that the children had a very close relationship with her mother.
She said she understood why child protection had taken the children away for their safety, and that she had not been a good mother. Her most regular contact is with her youngest daughter, who she sees once a week, and she has regular visits (although infrequent) with her older children. She said she is contact with them every day by telephone. The Applicant said she hoped to get her children back so that she could ‘be there for them’. She said that none of the children knew their fathers, and that she was the only parent they knew. She said the children would be devastated if she was removed from Australia, and that she did not believe she would be able to have a relationship with if she were to be returned to South Sudan.
The Applicant was extensively cross-examined about her criminal history, and particularly her acts of violence against EA, her sister A, and her friend ABA.
The Applicant’s visa was cancelled on 17 September 2021.
THE APPLICANT’S MOTHER’S EVIDENCE
The Applicant’s mother affirmed her statement dated 5 April 2022 and was assisted by a Dinka interpreter in giving her evidence.
She said her relationship with her daughter had not been good in the past, but was now much better. She said the Applicant is now listening to her and taking her advice. They talk several times a day. If the Applicant were to be returned to South Sudan, her mother felt that she would struggle. She said the Applicant had not ever been in South Sudan, but had been born in Khartoum. She had no family in South Sudan and did not speak the language at all.
The Applicant’s mother also said that if the Applicant were returned to South Sudan, there would potentially be no one to deal with the children.
The Applicant’s mother gave evidence that she had looked after the children from a very young age. She said that the children were now very happy to see the Applicant and that both she and the children would suffer significantly were the Applicant not able to be part of their lives. The Applicant’s mother said that if the children were returned to the Applicant, she would get a house close to them so she could continue to assist the Applicant with the children.
The Applicant’s mother had said she had seen a marked change in the Applicant since she had left immigration detention, and that the Applicant was now happy to follow rules, and that she was confident that the Applicant would refrain from drugs and alcohol use in the future. She said she was confident that the Applicant was ‘coming to her senses’ and that she will support her so that she does not relapse.
The Applicant’s mother said that the Applicant now had a strong relationship with her siblings, including her sister A, although that had not always been the case.
THE APPLICNT’S BROTHER
The Applicant’s brother affirmed his statement of 7 April 2022. He confirmed he was born in January 1997 and was the Applicant’s younger brother. He said he was very close to the Applicant and spoke to her almost every day. He said he has seen real changes in the Applicant’s behaviour, and that she learned from her past mistakes. He believed that the Applicant would refrain from using drugs or alcohol, and that he would support her in every way.
He said that the Applicant would be able to live with him in his accommodation, which had two bedrooms and where he lived alone.
MS KZ
Ms KZ gave evidence that she was a caseworker for the Women’s Justice Network (‘WJN’) and affirmed her statement of 17 March 2022. The WJN is a grassroots organisation. It is a not-for-profit and its primary function is to provide mentoring and psychosocial support for women who had been involved in the justice system, and in particular women with children, to successfully reintegrate into the community.
The Applicant had been referred to MS KZ’s organisation through corrective services. Ms KZ said she had conducted a detailed assessment of the Applicant which had taken about one hour. The assessment looked at the children, alcohol and drug use, and supports that may be available.
Ms KZ said that the Applicant had engaged with the service enthusiastically and had been quite open about her drug and alcohol use. She described the Applicant as ‘forthright’ and ‘open’.
The Applicant was said to require holistic support to reduce the risk of further alcohol and drug abuse which could lead to further involvement in the criminal justice system.
Ms KZ referred to the fact that the Applicant did not receive much support while she was in prison, particularly during COVID-19, and that she had particularly limited access to service whilst in detention.
Ms KZ said that now that the Applicant was out in the community, she had more opportunity to access more services, and that the Applicant had a willingness to connect with services that could help her with drug and alcohol addiction and parenting. In her statement, Ms KZ noted that since moving into community detention, the Appl
Ms KZ felt that the Applicant was currently coping very well with her various stressors and was complying with drug-testing requirements. She felt the Applicant was committed to dealing with her addictions and improving her life.
Ms KZ said that the Applicant had tried to engage with a number of support services for drug use, but was unable to engage them as she had been drug-free for over a year.
Ms KZ was not aware of the Applicant having any involvement with the police since her release from detention, and said that she would be there to support the Applicant should the Applicant’s visa be restored.
She said she was proud of the Applicant, who had not relapsed despite the many stressors affecting her.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
The nature and serious of the Applicant’s offending
There are a number of factors which are important when looking at the nature and serious of the Applicant’s conduct.
The Applicant’s offending started in 2011, soon after she arrived in Australia, leading to an involvement with the juvenile justice system. Her early offences mainly involved shoplifting, and were dealt with by way of fines and good behaviour bonds.
Her offending ultimately became more serious, involving assault, including an assault on her former partner with a fire extinguisher and property damage. The Applicant also breached a number of apprehended violence order (AVO) relating to former partners.
On 8 March 2021, the Applicant was found guilty of common assault and contravening an AVO after assaulting her sister after a verbal altercation.
On 9 September 2021, the Applicant was convicted of assault occasioning actual bodily harm, as a result of the Applicant attacking a third party with a coffee mug, for which the Applicant was sentenced to a period of 14 months’ imprisonment with a non-parole period of five months, subsequently varied to allow the Applicant serve her sentence as a 14 month intensive corrections order.
The Applicant’s offending is compounded her failure to take advantage of the many opportunities offered to her by the criminal justice system to remain in the community, all of which she failed to take advantage of primarily because of ongoing drug and alcohol addiction.
The representative for the Respondent described some of these offences as being domestic violence offences, but as there is doubt as to whether the offences against her former partner, friend and sister fall within the definition of ‘Family Violence’ for the purposes of Direction 90, I deal with them now. Whether or not these offences fall within the definition of family violence, they were carried out against persons with whom the Applicant had a close relationship.

The fact that the Applicant breached a number of apprehended violence orders is also a factor to be taken into account when looking at this consideration.
The overall seriousness of the Applicant’s offending is reflected in her sentence, and it is also of concern that what was a history of larceny and property offences most recently turned into a series of violent offences.
Overall, I regard the Applicant’s offending history as very serious, because of the length of the offending, the escalating seriousness of the offending, and the Applicant’s failure to take advantage of the opportunities given to her in the justice system.
The risk of harm to the Australian community should the conduct be repeated
In considering this matter, I have regard to 8.1.2(2) of Direction 90.
In looking at this consideration, it is relevant that the Applicant’s offending became more serious over time and ultimately involved assault and violence. Clearly, if the Applicant were to resume stealing, there is a risk of financial harm to the community, but the risk of assault and violence resulting in actual harm is, in my view, more significant. I note, however, that all of the Applicant’s offending involving assault were against people known to her and were not acts of random violence against strangers. The Applicant was also suffering from mental health issues at the time, together with drug and alcohol abuse.
In her evidence, the Applicant said she had refrained from the use of drugs and alcohol for a year, and that she did not want to return to her old life. Her evidence was supported by evidence given by her mother, and by Ms KZ.
I found both the Applicant’s mother and Ms KZ to be credible and honest witnesses. In particular, I note that Ms KZ had considerable experience in dealing with women in a similar position to the Applicant, that she believed the Applicant was committed to turning her life around, and that she would be there to support her.
There is objective evidence which the Tribunal accepts that the Applicant has complied with the drug-testing regime required by child protection authorities, and that the Applicant has consistently tested negative.
The Respondent referred the Tribunal to a sentencing assessment report which was before his Honour Judge Hanley, which refers to the Applicant’s minimal engagement with community corrections, and assesses the Applicant to be at high-risk of reoffending.
However, that report must be balanced against the fact that the Applicant has been in the community since January 2022, there is no evidence of her having reoffended in that time and there is objective evidence of her not having used drugs or alcohol.
Further, the Applicant has complied with all of her current bail/community detention conditions.
The Applicant does, on the basis of the evidence which I accept, have strong ongoing support from her family and Ms KZ and I also accept that she is strongly motivated to have meaningful ongoing relationship with her children.
The Respondent asked the Tribunal to put weight on the fact that the Applicant was guilty of abusing Serco staff whilst she was being held in hotel detention. I accept however the evidence that the Applicant’s release from prison, followed quickly by her entry into immigration detention, caused her great distress and that her mental health issues were exacerbated by her being placed in a hotel room with no chance to exercise or engage with support services.
In my view, the Applicant is at moderate risk of reoffending. Whilst I do not believe she is at a high risk, I am also unable to conclude that she is in fact at low risk of reoffending. There have been many previous failures to comply with undertakings, and there must be at least some doubt as to whether the Applicant’s commitment to change her behaviours can be relied upon given the doubts raised as to her ongoing mental health and her failure to meet previous commitments.
Overall, I give this consideration heavy weight in favour of non-revocation of the original decision.
FAMILY VIOLENCE
As explained above, this consideration is not engaged, and I assign it neutral weight.
PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN
In this regard, I note paragraph 8.3 of Direction 90. The Applicant has four children who are minors – YG born January 2016, IL born July 2017, EL born June 2020, and AL born January 2022.
The Applicant also has a large number of nieces and nephews who are under 12 years of age. There is little evidence regarding the Applicant’s relationship with such children, and I accept that she is not likely to fulfil a parental role to any of these children.
The Applicant’s three eldest children live her mother, pursuant to an agreement with the Department of Family and Community Services (FACS). Currently it would appear that the Applicant is able to see these children four times a year, for around two hours. There is also evidence that there is regular contact via technology with these children. The youngest child, AL, is cared for by the Applicant’s sister, pursuant to an emergency arrangement made after the Applicant was voluntarily admitted to a mental health facility on 31 January 2022.
The evidence given by the Applicant and her mother indicates that the Applicant played a very limited role in the lives of the older children up until approximately last year. The Applicant’s mother gave evidence that essentially the Applicant not taken any responsibility for the children while she was in the grip of drug and alcohol abuse. She said that the Applicant was now much more engaged with the children, and that the children now wanted to see their mother.
I accept the Applicant’s evidence that none of the fathers of the children have or have ever had any role in their lives.
The Applicant sees her youngest daughter regularly, and is hopeful of resuming a fulltime parenting role for that very young child.
Despite the Applicant’s previous failings as a parent, it is clearly in the best interests of the children to know their mother, and to have a meaningful relationship with her. I accept that the Applicant now wants to have such a relationship with all of her children.
I do not accept the Respondent’s submission that it would be possible for the Applicant to have a meaningful relationship with her children via social media if she were returned to South Sudan. There is no evidence that regular communication would be possible; moreover, it would almost certainly be more limited, and it is likely that the stress of the Applicant being returned to South Sudan would affect to her capacity to relate to her children in Australia. Contact by social media can never be the same between regular physical contact between a child and a parent.
I also accept the evidence of the Applicant’s mother that she may not be able to care the children long-term, and that if the Applicant were to be removed from Australia, the children may need to be placed in foster care. In my view, this would not be in the best interests of the children. Overall, despite the evidence that the Applicant has not been a good parent in the past, and has played a limited role in the children’s lives, I find it is clearly in their best interests to have as close a relationship with their mother as possible in the hope that she will play a significant positive role in their lives. She certainly indicated a very strong desire to play such a role. I note also the ongoing support for her in this role from her family, particularly her mother, and Ms KZ.
I find this consideration has heavy weight in favour of revocation.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction 90 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In determining the weight to be applied to this consideration, I take into account that a number of the Applicant’s violent offences have been against other women, that she has a long history of offending, and that she has shown a significant lack of respect for both the police and the criminal justice system including failure to take advantage of opportunities given to her to remain in the community instead of serving a prison sentence. On the other hand, however, there was however strong evidence that the Applicant is committed to turning her life around, that she has remained drug and alcohol free for at least 12 months, and that she has complied with drug and alcohol testing and that her test results were negative. She will have strong ongoing support from Ms KZ and her family.
Overall, I give this consideration moderate to heavy weight in favour of non-revocation.
OTHER CONSIDERATIONS
International non-refoulment obligations
In this regard, I note paragraph 9.1 of Direction 90.
There was agreement between both parties that Australia’s non-refoulement obligations are engaged in relation to the Applicant.
There was clear evidence that the Applicant would be at very significant risk of harm if she were returned to South Sudan. The DFAT Country Information and various articles supplied by the Applicant’s representative make it clear that a single woman in South Sudan, especially one that has no family in that country and does not speak the language, would be at serious risk of rape, physical harm and human trafficking. It is quite clear from the evidence that the criminal justice system in South Sudan is weak and provides very little protection for women, even those with family.
It was put to the Tribunal that the Applicant could apply for a protection visa. Certainly, there is no barrier applying for such a visa, which would mean a careful examination of the Applicant’s refoulement claims.
There are, however, a number of barriers to the Applicant being granted such a visa.
It was accepted by both parties that the Applicant may apply for a protection visa. In this regard, the Tribunal must consider the effect on the Applicant of making such an application. In particular, the Applicant faces a potentially lengthy period of uncertainty whilst her application for a protection visa is considered, and that is likely to have an adverse impact of the Applicant’s mental health. It is unclear whether the Applicant would be able to remain in the community while her visa application was considered, or if she would be removed to immigration detention. However, in my view, the possibility that she may remain in the community while the visa is determined does not ultimately compensate for the adverse effects of uncertainty and possible detention.
There is a question as to the weight the Tribunal should give to the Applicant’s prospect of success in obtaining a protection visa. The criteria for the granting of a protection visa is quite separate to the issues before this Tribunal. However, the Tribunal must give proper consideration to the question, given all of the evidence before it, as to whether the Applicant has any reasonable prospect of being granted another visa.
In this regard, I have regard to Rares J’s reasons in FRH18 and Minister for Home Affairs [2018] FCA 1769, and referred to in the decision of Kenny and Mortimer JJ in WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 as follows:
…it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally or reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled, and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community…
I note that the decisions referenced above were made prior to the issue of Direction 90 but in my opinion they remain relevant.
In this regard it is relevant that the Applicant’s current visa was cancelled on character grounds. In such circumstances, it must be considered unlikely that she would satisfy the criteria for the grant of a protection visa, or that the Minister would be minded to grant her another visa given her criminal record.
On the basis of the above, it must be concluded that the Applicant is likely to face a long period of uncertainty and of possible detention for which there is no definite end date, and that her prospects of successfully applying for a protection visa are not high. For the same reasons, the likelihood of her being granted another visa by the Minister must also be seen as low.
It is also relevant to note that if the Applicant is unsuccessful in being granted a protection visa, she is unable to apply again. This may mean that her chances of release from detention become even less likely. The Respondent conceded that the Applicant, at the very least, faces an indeterminate period of detention if her visa is cancelled and Australia’s non-refoulement obligations mean she cannot be returned to South Sudan. There was clear evidence that such a period of detention would have a seriously deleterious effect in the Applicant’s mental health.
It is relevant that the Minister has already determined that the Applicant is able to live in the community, and all of the evidence is that she is coping adequately. A return to detention, especially detention for an indeterminate period of time, is clearly likely to have a very adverse impact on her mental health and her positive rehabilitation.
Overall, I give this consideration heavy weight in favour of revocation.
Impediments to removal
In this regard I note paragraph 9.2.1 of Direction 90.
The Applicant arrived in Australia at the age of 13, and she is now 29.
She has no familiarity at all with South Sudan, does not speak the language, and is unlikely to receive proper treatment in that country either in relation to overcoming her alcohol and drug addiction or her mental health issues.
She has no family or any other support at all in South Sudan.
All of the Applicant’s supportive network is in Australia. The evidence, which I accept, is that she now has a good relationship with her family, she is receiving proper medical treatment, and most importantly she is supported by Ms KZ and her organisation WJN.
I give this consideration heavy weight in favour of revocation.
IMPACT ON VICTIMS
There is no evidence from any of the victims of the Applicant’s offending regarding the effect of revocation of the Applicant’s visa cancellation. Accordingly, I find this consideration has neutral weight in this matter.
LINKS TO THE AUSTRALIAN COMMUNITY
Strength, nature and duration of ties
As stated above, the Applicant has lived in Australia from the age of 13. She has a large family in Australia, including her mother and father, eight siblings, and a large number of uncles and aunts, nieces and nephews and cousins. The evidence before the Tribunal was that, at least in relation to her immediate family, there is strong connection and ongoing support for each other. In particular, the evidence indicated that the Applicant would receive a great deal of support from her mother and her brother, B.
The Applicant’s children are being cared for by her mother and her sister. The children are Australian citizens and would remain in Australia. One of the motivations for the Applicant to reform is her desire to play a greater and a positive role in the lives of her children.
The Applicant’s mother said that she would suffer if her daughter were to be removed from Australia because of the mother’s need for support as she is getting older, Further, the evidence was that the Applicant’s mother played an important role in giving her guidance and support which the applicant now accepts. and the children and other family members would suffer.
The Applicant’s brother B said that he would be devastated if the Applicant were to be removed from Australia. There would also be an adverse impact on other family members, including the Applicant’s sister who is currently caring for the Applicant’s youngest child.
In weighing the various factors in relation to this consideration, I take into account the Applicant’s offending and that outside her family she does not appear to have any strong social or other links to the Australian community.
Impacts on Australian business interests
There is nothing to indicate that this aspect of the consideration is of relevance to this matter.
Overall, I give this consideration moderate to heavy weight in favour of revocation.
CONCLUSION
Overall, taking into account those factors which weigh heavily against revocation of the delegate’s decision, I find the balance weighs in favour of revocation, particularly in light of the best interests of the Applicant’s children, her ties to the Australian community, the significant impediments to her removal, and Australia’s non-refoulement obligations.
DECISION
The correct or preferable decision is to set aside the reviewable decision not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa, and in substitution it is decided that the decision to cancel the Applicant’s visa is revoked.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

...............................[sgd].........................................
Associate
Dated: 4 May 2022

Date(s) of hearing: 12 & 13 April 2022

Solicitors for the Applicant: Mr G. Rohan, Immigration Rights and Advice Centre

Solicitors for the Respondent: Ms M. Donald, Sparke Helmore

[2022] AATA 1060

4 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	12 & 13 April 2022
Solicitors for the Applicant:	Mr G. Rohan, Immigration Rights and Advice Centre
Solicitors for the Respondent:	Ms M. Donald, Sparke Helmore