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

Nyieker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4320 (12 December 2022)
Division:GENERAL DIVISION
File Number: 2022/7735
Re:Amanniwal John Nyieker
APPLICANT

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

Decision
Tribunal:Senior Member D. J. Morris
Date:12 December 2022
Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant found to be South Sudan National and entitled to citizenship of South Sudan – applicant held Class WA Subclass 050 Bridging E visa – visa cancelled on basis of substantial criminal record – application made representations – delegate of minister declined to revoke cancellation – review by Tribunal – question of citizenship – ministerial Direction No. 90 – primary considerations – protection of the Australian community – applicant lately denies offending which triggered visa cancellation – other considerations – international non-refoulement obligations – links to Australia – extent of impediments if removed – prospect of delay in patriation – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, (Cth)
Migration Act 1958, (Cth)
Nationality Act 2011 (South Sudan)
Transitional Constitution of the Republic of South Sudan, 2011 (South Sudan)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417
Secondary Materials
Convention relating to the Status of Stateless Persons, done at New York on 28 September 1954; [1974] ATS 20
DFAT Country Information Report – South Sudan (5 October 2016) – Department of Foreign Affairs and Trade
Migration Act 1958 – direction under s 499 – Direction No. 84 – Consideration of protection visa applications (commenced 24 June 2019)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
12 December 2022
BACKGROUND

Mr Ammaniwal Nyieker was born in early 2002 in Khartoum, the capital of the Republic of Sudan. He arrived in Australia in 2008 as a six-year-old and has resided here ever since except for a period of just under a year, from February 2014 to February 2015, when he was temporarily in Egypt with his mother and a sister.
From 2018, Mr Nyieker held a Class WA (Subclass 050) Bridging E visa, until that visa was cancelled on 27 October 2020 under s 501(3A) of the Migration Act 1958 (‘the Act’). The visa was cancelled because the Applicant did not pass the character test under s 501(6)(a) of the Act because he had a ‘substantial criminal record’ under s 501(7)(c), on the basis that he had been sentenced to a term of imprisonment of 12 months or more.
In October 2020 the Applicant was before the Children’s Court at Sunshine, but as an adult (having turned 18 the previous March). He was convicted of Theft of a motor vehicle; Robbery (three counts); Intentionally causing injury; Dealing in property suspected to be the proceedings of crime; Commit indictable offence whilst on bail; and Possess methylamphetamine. For this group of offences, he received an aggregate sentence of two years’ imprisonment with a 12-month non-probation period.
Mr Nyieker appealed that sentence to the County Court. On 19 November 2020, the County Court of Victoria confirmed the sentence, although it struck out one offence by agreement. It was noted in submissions that the Applicant had been sentenced as an adult and the Judge made fresh orders but confirmed the same sentence as was imposed by the lower Court.
Having been notified of the cancellation of his visa, Mr Nyieker was invited to make representations as to whether he either passed the character test or, if not, there was ‘another reason’ why the mandatory cancellation should be revoked: s 501CA(4)(b) of the Act.
On 6 November 2020, Mr Nyieker made representations to the Minister’s Department. On 19 September 2022, a delegate of the Respondent refused to revoke the visa cancellation. On the following day, Mr Nyieker lodged an application for this decision to be reviewed by the Tribunal, as he is entitled to do: s 500(1)(ba) of the Act.
Owing to the effect of s 501(6L)(c) of the Act, the Tribunal must make a decision in relation to this review within 84 days from when the Applicant was notified that his representations to the Department had been rejected; or by operation of law the delegate’s decision is taken to have been affirmed. That period ends on 12 December 2022.
HEARING
A hearing was held on 28 and 29 November 2022 by video link under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Ms Alison Battisson, solicitor, from Human Rights For All. The Respondent was represented by Mr James Byrnes of counsel, instructed by Mr Jake Kyranis of Sparke Helmore Lawyers.
The Applicant gave oral evidence and was cross-examined. He also called the following witnesses who gave evidence by either video or telephone: his mother, Ms AS; his brother, Mr GN; his sisters, Ms LN and Ms RN; a friend, Ms PC; and Dr Karen Scally, forensic psychiatrist, who gave evidence as an expert witness. The Respondent did not call any witnesses. In relation to the evidence of Ms AS, the Tribunal appreciates the assistance of an interpreter in the Arabic language.
The Tribunal had regard to Statements of Facts, Issues and Contentions lodged by the Applicant (‘ASFIC’) and by the Respondent (‘RSFIC’). Other documents were admitted into evidence and are listed in the annexe to these reasons.
First question – does the Applicant pass the character test?
The ASFIC conceded that Mr Nyieker does not pass the character test by operation of s 501(7)(c) of the Act, i.e., a ‘substantial criminal record’; and the fact that at the time his visa was cancelled, he was serving a sentence of full-time imprisonment.
The Tribunal accepts this concession and formally finds that the Applicant did not pass the character test. He is, therefore, unable to rely on s 501CA(4)(b)(i) of the Act, which provides that the visa cancellation can be revoked if the Tribunal (standing in the shoes of the Minister) is satisfied that he passes the character test.
Second question – is there another reason why the visa cancellation should be revoked?
In considering whether the discretion in s 501CA(4) of the Act should be exercised to revoke the mandatory cancellation, the Tribunal must comply with any direction given by the Minister (s 499(2A) of the Act). The Minister made Direction No. 90 (‘the Direction’) on 8 March 2021, and the Direction commenced on 15 April 2021.
The Direction sets out Principles as a framework, within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. Paragraphs 8 and 9 of the Direction set out considerations that must be taken into account where they are relevant to the decision.
The considerations are divided into two groups. Paragraph 8 of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Paragraph 9 of the Direction provides that other considerations must also be taken into account, where they are relevant. Other considerations are not prescribed but are taken to be any consideration which comes to the notice of the Tribunal and is relevant to the purposes of the Act. A non-exhaustive list of other considerations is provided at paragraph 9(1):
(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; and
(ii)impact on Australian business interests.
QUESTION OF CITIZENSHIP
Before turning to the considerations in the Direction, a threshold question was raised by the Applicant regarding his citizenship. Ms Battisson submitted that Mr Nyieker was stateless.
Applicant’s submissions on citizenship
The ASFIC noted that the primary decision-maker referred to Sudan and South Sudan as potential countries of reference for the Applicant; but contended that neither is correct and that he is currently stateless. The ASFIC contended that the Applicant would have been a Sudanese citizen because of his place of birth (Khartoum), but that, owing to new citizenship laws which the Republic of Sudan passed in the wake of the partition of the old Sudan into the new Republic of Sudan and the Republic of South Sudan, ‘it is possible’ that his citizenship of Sudan may have been revoked.
The ASFIC noted that Mr Nyieker appears to satisfy several of the criteria that make him eligible for citizenship of South Sudan, as he belongs to Dinka and Shilluk ethnic groups, which are both ethnic indigenous groups of South Sudan. The ASFIC contended that, for the purposes of Sudanese nationality law, the Applicant is eligible for South Sudanese citizenship; and he may therefore be precluded from citizenship of the Republic of Sudan.
The ASFIC noted that South Sudanese nationality laws require that a person applying for citizenship must provide a birth certificate or an age assessment, or a witness from their tribe who can attest to their place of birth or origin. It was noted that Mr Nyieker has not lived in South Sudan as he left Sudan before partition, and that he instructs that he has no close familial or other contacts in South Sudan.
The ASFIC submitted that the Applicant ‘could not gain South Sudanese citizenship’ and that, while he may have a right to citizenship of the Republic of South Sudan, he currently lacks effective nationality and is ‘at least de facto stateless and likely to be de jure stateless’.
Respondent’s submissions on citizenship
The Respondent noted that Mr Nyieker was born on either January 2002 or March 2002, noting that the Applicant contends that the latter is the correct date. The RSFIC noted the statelessness claim but contended that the better view is that he is considered a South Sudanese citizen.
The RSFIC noted that the Applicant accepts that his mother, Ms AS, was born in a place that is now within the Republic of South Sudan; and that he belongs to one of the indigenous ethnic communities of South Sudan, which includes Dinka and Shilluk.
Consideration
The Tribunal notes that the Transitional Constitution of the Republic of South Sudan, 2011 provides, at Article 45(1):
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
The Nationality Act, 2011 (South Sudan) provides that a person born before or after the Act has entered into force shall be considered a South Sudanese National by birth if (a) the parents, grandparents, or great-grandparents of the person, in the male or female line, were born in South Sudan; or (b) the person belongs to one of the indigenous ethnic communities of South Sudan.
In his oral evidence, the Applicant said that he identified as both Shilluk and Dinka. When asked directly by the Tribunal what he would say he was ‘tribally’, if asked by someone, Mr Nyieker responded, “Basically, I am Australian. I only know about my history, which is Shilluk and Dinka.”
In her oral evidence, Ms AS said that she was born in Sudan, in the town of Bentiu. The Tribunal notes that, since partition in July 2011, Bentiu is within the territory of the Republic of South Sudan. It is the capital of Unity State in the northern part of that country, relatively close to the border with Sudan.
The Tribunal does not accept that the Applicant can be considered to be stateless. The 1954 Convention relating to the Status of Stateless Persons, ratified by Australia in 1973, provides at Article 1:
For the purposes of this Convention, the term “stateless person” means a person who is not considered a national by any state under the operation of its law.
Noting that while the Republic of South Sudan is not a party to this Convention, the Tribunal considers that this definition is largely accepted in international law, and that the Applicant is not in the category of a ‘stateless person’ according to this definition.
The Tribunal is satisfied that the Applicant is entitled to citizenship of the Republic of South Sudan because at least his mother was born in what is now South Sudan, and he also belongs to one (or more) of the indigenous ethnic communities. There was no evidence as to where his late father was born. The Nationality Act 2011 (South Sudan) is declaratory in nature, in that it effectively confers the status of ‘South Sudanese National’ on an eligible person by operation of law. The Tribunal is satisfied on the evidence that Mr Nyieker is an eligible person, but also accepts the Applicant’s argument that there would have to be a process for him to obtain citizenship papers, because he appears not to be in possession of a birth certificate and does not, on submission, have a South Sudan passport. For completeness, the Tribunal notes that Sudanese law precludes a South Sudan citizen from holding citizenship of Sudan.
The Tribunal finds, therefore, that Mr Nyieker is a South Sudan National, entitled to citizenship of that country; and the Republic of South Sudan is the country of reference in terms of the destination if his visa is not restored.
Birthdate of Applicant
There was a minor controversy about the Applicant’s birthdate. In his application, it was listed as January 2001. In other documents, it was listed as January 2002. The Applicant himself said that he believed it to be March 2002 (for example, GD, p 73). The nationally coordinated police check has his birthdate as a specified day in ‘03/2002’ (GD, p 29). The Tribunal notes that the County Court accepted the last date (GD, p 48). So will the Tribunal.
THE MinistErial DIRECTION
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (paragraph 8.1.1)
As mentioned above, the Applicant was before the Children’s Court in October 2020 (GD, p 64) for sentence, but as an adult. The Magistrate noted that he had been determined not to be suitable for youth detention and had been remanded in adult custody.
A Victoria Police LEAP report (TB, p 16) was before the Tribunal, setting out the alleged circumstances of offending committed by the Applicant and others on 17 June 2020 (which was the offending that led to the sentence which in turn led to the visa cancellation):
At approx. 1350 on 17/06/2020 the victim was walking on the footpath next to Calloway Boulevard Reserve, Sunshine West. Victim was approached by 3 males, who said something to the victim before starting to assault him. All 3 males punched and kicked the victim One of the males produced a knife pointing it at the victim. Offenders dragged the victim from the footpath onto the grass. All 3 males continued to punch and kick the victim. Victim seen in footage to be non responsive and not fighting back. One of the offenders stomped on the victims head 4-5 times. Offenders stole [the] victims mobile phone, grey puffer jacket and wallet. Offenders decamped into Pelister Place into silver Mercedes sedan, took off west on Callaway Boulevard.
…
Victim sustained swelling and laceration to face, victim repeatedly vomiting and conveyed to RMH Trauma Centre re possible head trauma. Statements obtained from all witnesses. Footage of incident filmed by witness obtained.
The LEAP report records Mr Nyieker’s name as having charges added (TB, p 17).
In relation to this incident, the Applicant pleaded guilty at the Children’s Court to the offences of Robbery, Internationally Cause Injury and Commit indictable offence whilst on bail. In his oral evidence at the hearing, and under cross-examination, Mr Nyieker said that he denied the offending in June 2020. He agreed that he pleaded guilty but said he did not do the acts.
Mr Byrnes asked the Applicant why he was charged if he did not commit the offence. The Applicant replied: “I was already charged. The person just told me you might as well put your hand up. My lawyer asked me. I said I didn’t do the crime.”
Mr Byrnes referred the Applicant to Dr Scally’s report (paragraph 23), where she wrote:
He made full admissions to his offending and stated that he should be accountable for his actions. He agreed that the custodial sentence he received was just and fair stating “I’m the one that put myself there, I did something I shouldn’t have done…” “I should treat people how I want to be treated…I am happy for my karma, going to prison, doing my time…I feel thankful I didn’t get worse karma like dying or being injured”.
Mr Nyieker agreed that this accurately reflected what he told Dr Scally when she examined him, and that these sentiments were inconsistent with denying the offending. He said: “I was already charged. I wanted to keep my mate out of trouble.”
In response to a direct question from the Tribunal, the Applicant said: “I took blame for my friend. Could have said I didn’t do it, would put me in danger when I get out.”
In evidence was a news article headlined ‘Blind grandfather brutally bashed and robbed by teen gang members in Melbourne Park’ (GD, pp 163-173). A paragraph in the story stated:
[redacted], 20, was sentenced to eight months, while 18-year-old Amanniwal Nyieker – pictured in the video wearing a white hood and white trackpants – was jailed for two years.
Mr Byrnes read this paragraph to the Applicant. He responded that he was not one of the figures in the still image of the video.
When she gave evidence, Dr Scally adopted her report of 3 November 2022. When asked by Ms Battisson whether there was anything she wanted to clarify in the report, she said that she had checked her clinical notes and noted that she had written: “The Applicant said that he did not commit one of his assault charges but took the blame for it.”
The Tribunal asked Dr Scally whether the Applicant identified the particular offence to which he was referring. She responded: “No. I usually just talk about offending history. I know it was an offence against an old man, that’s all I’ve written down. He said it was his karma to go to prison.”
Ms Battisson asked Dr Scally whether this amendment to her report would change her assessment of the risk of re-offending. She responded: “No, not really”. The Tribunal then said to Dr Scally that it would possibly change her statement in paragraph 23 that Mr Nyieker made full admissions of his offending. She responded: “Yes, I would adjust that. His comments were so generic, the flavour of what he was saying, his general demeanour and peers. He accepted he was doing things that were not right, whether or not he agreed he was guilty of each instance.”
In cross-examination, this exchange occurred:
Mr Byrnes:If the Applicant was not accepting his own criminal conduct, is that not problematic for him recognising his wrongdoing?
Dr Scally:It is difficult to judge when offences are occurring in a group situation, group guilt. I think he is quite accepting of what they did as a group.
Mr Byrnes:How can he be remorseful for something he says he didn’t do?
Dr Scally:A kind of general sort of remorse. It is difficult to analyse the level of remorse for that particular offence. I couldn’t identify which offence.
Mr Byrnes:You didn’t go step by step through the offences?
Dr Scally:In this case, the assessment is broader.
Mr Byrnes:Is that a limitation to your report?
Dr Scally:The report addresses the questions I was asked to address. It is a limitation.

In her sentencing remarks in relation to the June 2020 incidents, the Magistrate said:
This is a matter which I found concerning. Mr Nyieker is still a young man, and as a young man with a problematic background, very tough time growing up as a refugee and coming from a situation of some trauma. He’d seen his father killed in the civil war, and came to Australia when he was very young, and then had further – his brother died….
I note that Mr Nyieker has had involvement with drugs, and he’s currently on a bridging visa. I accept the submissions put to me in relation to the weight that I should give to his uncertain future as far as whether he stays in Australia or not, however I also have to take into account the impact of offending on the victims, and there was a victim impact statement from Mr [redacted] which set out not only severe pain and suffering – physical pain, but also the impact that the offending has had on him, and similarly, although the other victim did not file an impact statement, it is clear to me that the impact of the offending on him would also have been severe, as it would to anybody in the community. I cannot think that there would be nobody who would be affected by such behaviour.
As such, I have to give some weight to general deterrence. In other words, imposing a sentence which will deter other people from behaving and committing offences like this, and showing the community will not put up with this sort of behaviour, and I balance that against Mr Nyieker, his young age, and the prospects for rehabilitation, and of course as a young man, I have to give great weight to that, but that does not override the other sentencing considerations. These were over a number of offences. It was put by the prosecution that I should impose a term of imprisonment with a non-parole period, and that’s the sentence I intend to impose. That wasn’t really argued that I shouldn’t by the defence. It was accepted that it was serious offending, as quite rightly it was.
The Magistrate’s sentence was appealed to the County Court. At the County Court, Her Honour the Judge dismissed the appeal, noting the seriousness of the offending and Mr Nyieker’s criminal history (GD, p 60). Her Honour referred to pre-sentence reports. One, by a counsellor from Foundation House, Ms Christine Buckapanos, said that the Applicant ‘is only just beginning to acknowledge the underlying factors to his problematic behaviour and serious offending’. Another, by Ms Gina Cidoni, psychologist, recorded that the Applicant tends to rely heavily on his peers in terms of risk behaviour. She also had concerns about his social consciousness and reported that ‘he has little concern about the impact of his behaviour on others’. Her Honour also recorded some positive observations by Ms Cidoni, that the Applicant had a growing sense of values and goals for his future.
Other offending
Before the Tribunal was the nationally coordinated police check recording Court outcomes relating to the Applicant. He first appeared before the Children’s Court in Melbourne in March 2017 on a range of charges, including theft, robbery, aggravated burglary (five counts), theft of a motor vehicle (13 counts) and shoplifting. No conviction was recorded, and he was released on a Youth Supervision Order (‘YSO’) for 12 months.
In August 2017, he was back before the Children’s Court for breaching the YSO, which was found proven. He was also, on that date, charged with six counts of committing indictable offences whilst on bail, six charges of theft, attempted robbery, possessing cannabis, and dealing in property suspected to be the proceeds of crime. No convictions were recorded, and a fresh YSO was issued. In October 2017, he was found to have breached the YSO.
In December 2017, the Applicant was before the County Court and convicted of Armed Robbery (two counts), for which he received 15 months in a Youth Justice Centre (‘YJC’) on each count, to be served concurrently. He was further convicted of Theft of motor vehicle, for which he was sentenced to six months in a YJC, to be served concurrently. He was also found to have breached the YSO earlier imposed, which was cancelled; and he was sentenced to one month in the YJC for the earlier offences of March 2017, to be served concurrently. Further, he was found to have breached the YSO imposed in August 2017 and sentenced to periods at the YJC for those offences, all to be concurrent.
In June 2018, he was before the Children’s Court charged with Unlawful assault. No conviction was recorded, and the matter was adjourned for five months with Mr Nyieker placed on a good behaviour bond.
In November 2019, at the Children’s Court, the Applicant was convicted of Attempt Theft, State false name when requested; Commit indictable offence whilst on bail; Dishonestly undertake in the retention of stolen goods; Fail to answer Bail; Possess methylamphetamine; Deal in property suspected to be the proceeds of crime; Go equipped to steal/cheat. For all these offences, he was placed on probation until June 2020.
In July 2020, the Applicant was charged with Possess prohibited weapon without exemption or approval. No conviction was recorded, and he was released on a YSO until April 2021. On the same occasion, he was charged with Fail to stop vehicle on police direction, Unlicensed driving, Theft of a motor vehicle, Robbery, Drive at a speed dangerous. For all these offences, he was not convicted, and a new YSO was imposed. He was banned from driving for six months.
In October 2020, he was found to have breached the probation order imposed in November 2019.
The Direction requires the Tribunal to consider whether a non-citizen has committed violent or sexual crimes. There is no evidence that the Applicant has committed any sexual crime, but some of his offending has been violent, especially the offending against the victim in the park. The Direction also (paragraph 8.1.1(b)(ii)) states that crimes committed against vulnerable members of the community, such as the elderly and disabled, are considered to be serious. The reports say that the victim of the park assault was an older man (described as a grandfather) and that he was ‘blind’. The Tribunal is satisfied that these attributes made that victim a vulnerable member of the community.
The Direction also requires the Tribunal to consider whether there is repeated offending, the frequency of offending and any trend of increasing seriousness. Taking into account that significantly less weight is given to offending before the Children’s Court and to any offending where a Court did not record a conviction, Mr Nyieker has amassed many appearances before the Courts in a relatively short period. There is a trend of increasing seriousness, where there have been offences against the person.
In his oral evidence, the Applicant was taken through some of his criminal record. He agreed to snatching mobile phones from members of the public, while a member of a group, and that some planning went into these crimes. He agreed to being involved in an aggravated burglary where a BMW car was stolen, and that this was planned with others. He agreed that he was involved in armed robbery with five others, and that planning was involved in that offence. When asked by Mr Byrnes whether he was involved in gangs, Mr Nyieker denied it.
The Applicant agreed that he has given false details to the police and that he has been willing to lie to police in the past. He agreed that on one occasion he was driving a motor vehicle at 160 km/h and refused a police request to pull over; and that in so doing he had put others in danger.
In regard to the assault in the park, the Applicant denied that he held the victim down. Mr Byrnes noted that police said he was later found with a mobile phone robbed from another victim. He responded, “I was given the iPhone and iPod. I didn’t know they were from a robbery”. Mr Byrnes asked Mr Nyieker whether he accepted he was found in possession of methylamphetamine. He responded: “It was rock salt, not ice”. He agreed that he was on drugs at the time.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2 requires the Tribunal to have regard to the nature of the harm to individuals or to the Australian community if the Applicant engages in further criminal or other serious conduct, and the likelihood of him so engaging.
Dr Scally, in her November 2022 report, applied the Level of Service/Risk, Need Responsivity (LS/RNR) tool to the Applicant. She concluded:
Mr Nyieker’s score of 14 places him in the medium risk/needs category. His identified general risk/need factors are in the areas of criminal history, education/employment, family/marital, leisure/recreation, companions, alcohol/drug problems, and antisocial pattern.
It should be noted that while Mr Nyieker has a serious and diverse juvenile criminal history and recent first convictions as an adult, on assessment he did not demonstrate a pro-criminal attitude, antisocial orientation, or poor attitude to supervision and treatment and was able to reflect thoughtfully on criminogenic factors relating to his offending in the past. He has not really had the opportunity to engage in employment in the community but has undertaken work during his time in [prison].
…
Currently, his risk of re-offending generally is placed in the medium risk/needs category. Should Mr Nyieker address the criminogenic risks/needs identified in his LS/RNR profile including desisting from association with former antisocial peers, completing his education, obtaining employment, and engaging in pro-social leisure activities (such as membership with a boxing gym) his risk of reoffending will reduce to the low risk/needs range. Of utmost importance for him will be to remain abstinent from substance use. Additionally, a responsivity barrier for this young man is his tendency to withdraw rather than seek help when he has problems. In the past he has not engaged well in counselling but may be more willing to accept help given the improved insight he is currently exhibiting.
In her oral evidence, Dr Scally confirmed that she had not made a diagnosis of Generalised Anxiety Disorder but that it warrants further diagnosis. She said that it was highly likely that the Applicant meets the diagnosis for Post-Trauma Stress Disorder (‘PTSD’), and she was prepared to make a provisional diagnosis, which would need further interview examination to clarify. Dr Scally said she was prepared to make a diagnosis that Mr Nyieker has Major Depressive Disorder, with an overlay of grief.
Dr Scally said that if the Applicant does not address the factors she had identified in the LS/RNR assessment, it is more likely that Mr Nyieker will continue in the same pattern of behaviour as before. She said: “He needs treatment to better understand why he offended. Drug and alcohol counselling is separate.”
In response to direct questions from the Tribunal, Dr Scally said she did not think his family was a contributing factor in the Applicant’s offending, but nor was it a protective factor. “His mum was often away ... it seems the family were not protective. He distances himself from his family. His family were loving, and siblings were prosocial and doing well at school. He felt different from them, so aligned himself with antisocial peers.”
In his oral evidence, the Applicant said he first started using cannabis aged 13, and said he was using seven grams of cannabis, two or three days a week. He estimated it cost around $50 or $100 a week, he was not sure.
The Applicant agreed that he told Dr Scally that by the age of 17, he was spending $1,500 a week on ‘ice’. He said he was, at the time, committing crimes “whenever, not regularly”. When asked how much money he was giving to his family, Mr Nyieker said, “Half of everything. $1,500 per week.”
He said that he was giving the money to his sister, Ms LN, and not to his mother direct, but the intention was that his mother would use the money for household costs such as food, rent and domestic bills.
When Ms LN gave evidence, she was asked by Mr Byrnes whether the Applicant ever gave her money. She responded: “No.”
The Tribunal later asked Ms LN whether she knew if the Applicant ever gave money to his other sister, Ms RN. She responded: “Yes, there have been times when he gave me money, and I gave money to Mum. $100, $50, when she was short.”
The Tribunal then said that the Applicant’s evidence had been that he gave $1,500 to his sister. Ms LN then said: “Yes, she was giving it to Mum for the bills.”
In her evidence, Ms AS said that sometimes her daughter Ms LN gave her money to help with rent. When she was asked if this was in the amount of $1,500 a week, Ms AS replied: “No, less. Sometimes, $500, sometimes, $1,000.”
The Applicant’s other sister, Ms RN, also gave evidence. Mr Byrnes asked whether she recalled the Applicant ever giving her money. She responded: “Yes, sometimes $50, $100. When he could, he would send it to me”. She then clarified that this was only in 2022 and that the Applicant was not giving her any money in 2018 or 2019.
When asked directly by the Tribunal whether she remembered the Applicant ever giving her cash, Ms RN said: “Yes. Notes like $50”. The Tribunal then asked whether she ever inquired where the money came from. She responded: “Not really. We’d buy groceries, fuel for Mum’s car, and pay bills.”
The Tribunal is concerned by some of the evidence of the Applicant and, to some extent, the inconsistency in his sisters’ evidence about whether Mr Nyieker had ever given them money. In respect of the offences in June 2020, which triggered the visa cancellation, the position that Mr Nyieker has taken to deny the offending, having accepted the charges, and pleaded guilty at Court, is very troubling.
It is well established that entering a plea of guilty means that the accused accepts all the elements of the offence (Maxwell v The Queen [1996] HCA 46; (1996) HCA 46, at [19]). This was not a case where an applicant might reasonably quibble about who did what in a case of a group assault. This is a case where the Applicant is now denying being present at all. He did not satisfactorily explain why he had pleaded guilty other than to say to Dr Scally that it was ‘karma’. He did say in his evidence, “There would have been threats towards me if I said who’d done the crime.”
Dr Scally, in the Tribunal’s view, rightly withdrew her conclusion in her report that the Applicant had made ‘full admissions’ about his offending, because of her re-checking of her clinical notes. However, she acknowledged there is a lack of detail in what the Applicant was actually saying to her when she examined him.
In respect of the money the Applicant told the Tribunal he gave his sister, Ms LN, to help with household expenses, which he said was $1,500 per week, that was flatly denied by Ms LN. It was also denied by his other sister Ms RN. The Applicant’s mother, Ms AS, did not say she had received payments anything like this quantum to help with home costs.
The Tribunal was concerned that the evidence of both Ms LN and Ms RN shifted from the answers they had already given in evidence to the Respondent’s counsel when I posed questions to them directly, prefacing my question with what the Applicant has asserted in his earlier evidence. I gained the impression that both his sisters were trying not to contradict their brother.
In any event, if the Tribunal cannot be satisfied that Mr Nyieker fully embraces his criminal history, and the drivers for his offending in the past, the denial of the main offence is unsatisfactory and contributes to some extent to the risk of the Applicant re-offending. The Tribunal accepts Dr Scally’s assessment that the Applicant currently poses a medium risk of re-offending, and that the risk could rise unless he addresses the factors she identifies in her report, and which are extracted above.
The Applicant did not seem to have a concrete plan for what he would do in the future. He said that he plans to move to Sydney if released into the community and stay, at least initially, with Ms RN. He said:
I would have to think about moving to Sydney with Ms RN to get my life back on track. In Melbourne for a month or two, then to Sydney to live with my sister. Already organised. I have to go to Melbourne first, arrange Centrelink and spend time with my family.
Mr Nyieker said he would live with Ms RN. He said Ms RN has a four-year-old child and a partner, but he was not sure if the partner lives with her. When asked what he would like to do, he responded: “Boxing to a high extent. I would like to become a professional boxer”. When the Tribunal pointed out that, while this is a good sporting ambition, he might have to do some other work first, the Applicant responded: “Tradie, or professional trainer. Mechanic or warehouse. I did training for a week as an auto mechanic.”
Ms Battisson made submissions that the Applicant had inquired about a residential rehabilitation placement at Cyrenian House in Western Australia. In response to a direct question from the Tribunal about what he thought about having a residential placement, the Applicant said: “I have spoken to Mum. Personally, I think I should do it as well. I didn’t think it was residential – I didn’t think I would sleep there. I thought, if I go to Melbourne, they would refer me.”
The Tribunal notes that Cyrenian House is a well-regarded not-for-profit organisation in and around Perth, Western Australia. It concludes that the plans for Cyrenian House were representative, and it accepts that inquiries were made there because of the general proximity to Christmas Island, where the Applicant is currently detained. The Tribunal is aware that similar residential rehabilitation is available in Victoria and New South Wales, operated by like organisations. However, it does not seem that the Applicant is fully engaged with the need to address his drug addiction, because, while he expressed the view that he needed residential rehabilitation, he also discussed briefly staying in Melbourne and then moving to Sydney for work. At best, these plans are not well-formed.
His mother, Ms AS, corroborated Mr Nyieker’s plan to move to Sydney. Ms AS said that the Applicant had told her part of the reason for him wanting to move to Sydney was to break from the group he used to co-offend with. His brother, Mr GN, in his evidence did not know of these plans and thought that the Applicant would stay with their mother in Melbourne if he were released. In her evidence, Ms RN said that she had discussed his plans with the Applicant and told the Tribunal, “He is going back to school. Working. He will live with me or my Mum.”
Overall, the Tribunal concludes that this primary consideration weighs relatively heavily against revoking the mandatory cancellation. The Applicant does not seem to fully appreciate the drivers of his offending. His acceptance of his wrongdoing is qualified because he now denies major offending. His evidence about the money he said he used to give the family household is not accepted, because it was effectively repudiated by his mother, two sisters and brother (who said he had never known the Applicant to give money to the family). The Tribunal concludes he is either willing to give misleading evidence or is reckless as to the accuracy. His comprehension of preventative steps he needs to take to avoid falling back into re-offending is incomplete. On the one hand he says he needs residential rehabilitation, on the other he has other plans.
Period without a visa 2015-2018

In 2014, the Applicant travelled with his mother and older sister to Egypt, where Ms AS was to provide evidence in relation to the murder of her younger brother. They were away for almost a year. On arrival back in Australia, Mr Nyieker was granted a one-month visa. It appears that Ms AS was informed that she should apply for resident return visas for the family. There was a misunderstanding, and Ms AS only applied for a visa for herself, thinking that it would also apply to her two dependent children. The consequence was that after returning to Australia, Mr Nyieker became an illegal non-citizen when his one-month visa expired.
The Tribunal accepts that the Applicant, being aged only around 12 at the time, was unaware of this. The ASFIC submits that it was not until some three years later, in 2018, when Mr Nyieker was engaged with Youth Justice, that it was discovered he was without a visa. He applied for a Return (Residence) (Class BB) visa.
In response, the Minister’s Department stated that it held information about the Applicant’s criminal history which indicated that he had a ‘substantial criminal record’ and did not pass the character test, so consideration was being given to refusing the visa under s 501 of the Act. Representations were made on behalf of Mr Nyieker by Refugee Legal, pointing out that much of his offending was as a juvenile and raising issues about the application of s 501 to children.
Amongst the material supportive of the Applicant being granted a visa at that time was a report by the eminent psychiatrist, Professor Patrick McGorry, AO. Professor McGorry assessed the Applicant, but unfortunately, his report is not dated. However, he does refer to Mr Nyieker being 16 at the time of the report, so the report was written around 2018. Professor McGorry wrote:
Should Manny be required to return to South Sudan and be separated from his family, the risk to his mental health status would be very substantial given his past history and the fact that [he] has no family support in that community. Similarly, should he be required to enter indefinite immigration detention with the threat of deportation, which would be a very substantial psychosocial stressor and would be likely to produce a recurrence of his clinical depression….Finally the notion of a vulnerable adolescent being returned to an environment with which he has no connection and where he lacks any form of social support would be likely to cause extraordinary difficulties and a substantial risk of exacerbation of his psychosocial vulnerability to depression.
Ms AS, Mr GN, Ms LN and Ms RN all provided statements of support for the Applicant at that time, which were sent to the Department.
Ms AS wrote:
Manny used the opportunity in [youth justice detention] to make positive changes in himself. I can see he is more mature. I know this because before he come out he told me that because of this situation “I lost my family and my school and I feel bad about what happened”. I know he is determined to do the right thing and stay out of trouble.
Manny has been out of [youth justice detention] for several months now. He has bene living back at home since his release and, particularly in the last couple of months, I can see that he has changed for the better. Manny is playing basketball again and is still loves it. He is also going back to school at [redacted]. When he comes back from school he talks about how he want to find a job when he finishes his studies.
Manny was just a young kid when he got involved in crime and he was easily influenced by others. Now he is older and I can see him making better decisions. He is turning 17 in March and I can see that he developing into the good person I know he can be…
His older sister Ms RN wrote in her statement that, although she no longer lived at home, she still saw the Applicant and knew there had been a lot of changes in him. She considered he had matured a lot and taken responsibility for his past actions and ‘seems committed’ to finishing school. She said, “I think Manny is back on track now…”.
His younger sister Ms LN wrote:
I think my brother has really changed. Since coming out of [redacted] he is attending classes and he is listening more to my mum’s advice… Manny is also staying connected with his social and professional supports services and I help to make sure he attends his appointments. In the past he would have just not shown up, but he is committed to improving his behaviour. I can see that Manny doesn’t have the same mindset that he before he went to [redacted]. He seems more mature and aware of the consequences of what he does. I don’t think he will be as easily influenced by others as when he was younger because I see him making his own decisions. Manny is committed to doing the rights things. I know that he doesn’t want to go back to prison and, since enrolling in school and getting appropriate support, he has shown to me how determined he is to stay out of trouble. I can see that Manny regrets his offences. I can see it in how his behaviour has changed over the last few months. All our family can see this.
In the event, the Department decided not to refuse the visa and instead granted the Applicant a Class WA (Subclass 050) Bridging E visa on 24 October 2018.
Unfortunately, while there was a hiatus in the Applicant’s offending around this time, he did revert to regular offending, and it became more serious, so the hopes expressed by his mother and his sisters that he would cease his criminal conduct were ultimately dashed. It would seem that his family’s support, which continued at this hearing and which the Tribunal considers is genuine and loving, has not been any protective influence in the past.
The Respondent submitted that the fact that notice of refusal was raised with the Applicant in 2018 is relevant to paragraph 8.1.1(g) of the Direction, where the Tribunal must have regard to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing of the consequences of further offending in terms of his migration status. The Tribunal accepts that submission.
This is a significant factor, because unlike some non-citizens, Mr Nyieker was on notice to mend his behaviour, or if he did not, he knew he could face immigration consequences.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
1 (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
2 (2) This consideration is relevant in circumstances where:
(a) A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
There is no evidence that family violence is relevant in this case. This consideration, therefore, carries neutral weight.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children; the extent to which he is likely to play a positive role; the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Applicant does not have any children of his own. He has two brothers who are under the age of 18, FN and PN. The Applicant also has a half-brother who is also a minor. He also has seven minor nieces and nephews. The ASFIC accepted that Mr Nyieker does not fulfil a parental role in relation to any of the cited minor children.
FN and PN
The Applicant said that he was close to his younger brothers because he often cared for them while their mother was at work. He said he has maintained regular contact with them, albeit by telephone and video, since being in prison and latterly in immigration detention.
Ms AS wrote in her statement (GD, p 154):
I have two younger sons, 10 and 15 [as they were at the time in July 2021]. Both live with me and go to school. Manny has a strong relationship with both of them. He used to play basketball with them all the time and sometimes slept with them in their bed. They ask me about Manny and worry that he will be sent back to Sudan. I do not know what to say to them.
My young boys will be very upset if their big brother is taken away, but they will also be affected by what Manny’s removal will mean to the whole family. I am worried that they may lose not only their big brother, but also the care and attention they deserve to receive from me as their mother and from their older siblings.
The Tribunal notes that Ms LN wrote in an earlier statement of support, in relation to FN and PN:
My younger brothers were really impacted by Manny being locked up for such a long time, but their relationship is getting better now that he is out and spending more time.
Notwithstanding that the Applicant does not play a parental role, there is no direct evidence that his criminal offending has had an impact on his younger brothers. The strong sense that the Tribunal received from the four family witnesses who gave evidence was that they were a loving and supportive family.
The Tribunal heard evidence of a half-brother, born in 2010, who is aged 12. Although there was not much information about the Applicant’s interaction with him, it would be reasonable to conclude that it would be mildly in his best interests for Mr Nyieker to be released into the community.
In respect of his minor brothers, the Tribunal makes a determination that it would be in their best interests for the visa cancellation to be revoked. In respect of FN, it is noted that he is aged 17 and will not be in the category of a minor child in one year.
Nieces and nephews
The Tribunal notes that the Applicant has minor nephews born in 2014, 2018, 2019, 2020 and twins born in 2022. The Applicant said he had not seen the youngest ones. Each of these children lives with their parents, who fulfil parental roles. Mr Nyieker says he has maintained contact with several of them through phone and video calls.
The Tribunal determines that it would be in their best interests for their uncle’s visa to be restored, but the weight of that determination because of their age and interaction is not heavy.
Overall, the Tribunal finds that this primary consideration weighs in favour of the Applicant, but the weight is not heavy.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences that are relevant to this case: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, among others, vulnerable members of the community such as the elderly or disabled; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The dictionary definition of the word ‘norm’ means a ‘standard’ or ‘pattern or type’.
A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including the Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued by the then Minister after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would take into account that Mr Nyieker came to Australia from a war-torn country aged only six. He had a disrupted childhood with the backdrop of his father’s violent death only a matter of months before he was born. The Applicant has been in Australia for three-quarters of his life.
What would go against him is that he has offended relatively steadily since 2017. He was treated leniently, and often no convictions were recorded. He received several YJOs, and then breached them. He has breached parole. His offending has worsened. There is some suggestion from Victoria Police (which he denies) that he has been involved in gang offending. The Tribunal cannot make a conclusion about that, but the Applicant himself conceded that he often offended in concert with others, and that has been a feature of much of his street and property offending. It was also a feature of the major violent offending against the partially-sighted man in the park.
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that 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. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugee 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, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
The Tribunal notes that applying for a protection visa is open to the Applicant. There is no indication that he has done so or will do so. The ASFIC accepts that he remains free so to do.
In such a case, the High Court has found (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417) that a decision-maker should read, identify, understand, and evaluate representations made in response to the invitation given to him to provide evidence of another reason to set said the mandatory cancellation of the visa, that raised a potential breach of Australia’s non-refoulement obligations.
The ASFIC contended that Mr Nyieker, if returned to South Sudan, might be targeted based on his ethnicity and imputed political affiliations. The Applicant’s maternal connexions are with Bentiu, in the north of the country, but it is presumed that if he was sent to South Sudan, he would be sent to the capital, Juba. The current South Sudan Government is dominated by Dinka and to the extent that this is an ethnicity with which Mr Nyieker identifies, the risk of harm in Juba would appear not to be acute.
The DFAT Country Information Report South Sudan (‘CIR’) is dated 5 October 2016, so some of its contents may no longer be current. The contents of CIRs carry some authority when a decision-maker is considering protection claims (see Direction No. 84 issued under s 499 of the Act). The CIR relevantly states (paragraph 3.7):
Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.
As well as relying on his Dinka origins, the Applicant also in the ASFIC relies on his Shilluk ethnicity. He agreed in evidence that he did not have facial scarification, which is an identifiable characteristic of Shilluk, which is not to say that the Tribunal doubts his and his mother’s evidence in regard to this antecedent. Mr Nyieker, in his oral evidence, said he was familiar with Shilluk facial scarring, and was asked why he considered himself Shilluk, when he also identifies as Dinka. He responded: “Yes, but I have no tribal scars. I don’t know if I could be identified. Most likely, get rejected.”
The CIR relevantly states (paragraphs 3.12 and 3.13):
Shilluk have been targeted on the basis of their ethnicity by both the Sudan People’s Liberation Movement (SPLM) and Sudan People’s Liberation Movement-in-Opposition (SPLM-IO), depending on who they were aligned with at the time…
Overall, DFAT assesses that Shilluk in areas under the control of the Government ,including Juba, face a high risk of official and societal discrimination and violence…
The ASFIC also claims that returnees and persons who are perceived as wealthy or foreign are targeted in South Sudan. The Tribunal accepts that, having grown up in Australia since the age of six and, particularly, speaking only Arabic and English and not one of the ethnic languages of South Sudan, the Applicant might attract unwarranted attention. He has never lived in what is now South Sudan and does not have family there. He would not know local customs or mores. It would be easy for others to identify him as an outsider.
The RSFIC suggested that it was not clear that Mr Nyieker would be perceived as wealthy, relying on the following handwritten addendum he sent to the Minister’s Department (GD, p 94):
If I got sent back it would impact my family and I majorly. I don’t know how my family would cope knowing there would be no one in Sudan that would support me. There are high chance that I would be a gang member to survive the struggle. I would have to steal, rob people…
(Minor spelling errors corrected)

The Tribunal does not consider this comment relevant to whether the Applicant would be ‘perceived as wealthy’ if deported. Such an assessment would be subjective and might include, for instance, an awareness that his accent was Australian, or that his clothing or some other attribute marked him out. Such perceptions need not necessarily be rational to nevertheless raise some prospect of risk of harm.
Overall, in the statutory time constraint imposed on the Tribunal by s 500(6L) of the Act, it would seem that a more detailed examination of the claims made by the Applicant, together with better information on the current civil situation in South Sudan, would better inform an assessment as to whether Mr Nyieker is owed Australia’s protection under the international treaty obligations to which this country is a party.
In these circumstances, the Tribunal finds that this consideration weighs, in principle, in favour of the Applicant, largely because of the CIR contents relating to Shilluk. As the Applicant’s representative conceded, it is open to Mr Nyieker to apply for a protection visa. However, it would not be appropriate to speculate here about the outcome once his claims have been rigorously assessed.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers, and social, medical, and/or economic support available to him if repatriated.
In response to direct questions from the Tribunal, the Applicant said he was in good physical health, though he does take medication to help him sleep every day. He agreed that he speaks Arabic fluently, and he speaks English. He said that his mother speaks a variety of indigenous languages, but he did not speak Shilluk, Dinka or Nuer languages. Mr Nyieker said he had no connexions with Juba, or South Sudan more generally. He said he did not know about the availability of medicines and healthcare in the Republic of South Sudan.
However, the Tribunal accepts the expert opinion of Dr Scally that the Applicant is at least diagnosed with Generalised Anxiety Disorder and may also, on further assessment, be found to have PTSD. Her opinion would seem consistent with Professor McGorry’s historical opinion of his mental health conditions.
In the CIR, it is recorded (paragraph 2.17) that South Sudan’s population has extremely poor access to health care:
Only 55 per cent of the population has access to improved sources of drinking water (i.e. a drinking-water source that is protected from outside contamination) and around 38 per cent of the population walk more than 30 minutes one way to collect drinking water. Eighty per cent of the population do not have access to toilet facilities. DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation.
In her 2021 statement (GD, p 155), Ms AS relevantly wrote:
My fear for Manny if he is removed from Australia
My biggest fear is for Manny himself if he is sent back to South Sudan, a country that did not even exist when he was born. He was born in Khartoum in Sudan but we left for Egypt when he was very young and he has no memory of Sudan and no knowledge of the culture and way of life there.
All our family members have been killed during the war or they have left the country. My last remaining brother in Sudan passed away in 2013. So, Manny will have no support there. Manny can only speak English and he will not be able to communicate to people in South Sudan or to secure any jobs.
There is war in South Sudan and there is no stability or security. People can get killed for no reason. The people who live there have no way out, otherwise no one would be living there. Manny would not be able to survive there.
Overall, the Tribunal is satisfied that the Applicant would face significant barriers if he was deported to South Sudan. There are cultural barriers to him, because of him never having lived in the country and his long inculcation with the Australian way of life. There is no apparent social welfare superstructure in South Sudan of which he could avail himself. The Respondent made something of the Applicant’s handwritten comment (referred to earlier) that he thought there would be a high chance he would have to be a ‘gang member’ and steal and rob to get by. I do not interpret these comments as necessarily indicating criminal intent. They are written more in a sense of expressing hopelessness about what he might do, if patriated.
The Tribunal finds that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. The County Court Judge referred to the victim impact statement of the man attacked in the park by the Applicant and others, and the ongoing effect on him. However, there is no evidence that this man knew of the migration status of Mr Nyieker. Therefore, this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. The Applicant moved to Australia in mid-2008 when he was aged six. He lived in housing flats in Melbourne, and the uncontested evidence is that he was exposed to violence and drugs. The Applicant himself says he experienced racism and poverty. In regard to the second of these, Ms AS’s evidence was that she was always able to provide for her family, and the universal evidence of the Applicant and his sisters and brother was that his mother worked hard to provide for the family. It is nonetheless accepted that, for Ms AS – a widowed mother with several children – there would have been significant financial challenges for the household.
I am not satisfied that Mr Nyieker gave “$1,500 a week” to his mother (from his criminal activities) to help with household expenses, as he told Dr Scally and the hearing. There was no corroboration whatsoever of this. While there was some evidence from Ms RN that he had recently sent her small cash amounts, overall, I am not convinced that the Applicant has had any significant role in providing financial support to any family member.
The Applicant said that he played basketball for a short period in his early teens for a Melbourne club. He said he has boxed in prison and in detention and taught some other detainees how to spar. The ASFIC said that the family, including the Applicant, have had involvement with the Roman Catholic Church in a Melbourne suburb. The Applicant said he had completed a construction ‘white card’ while in prison, and a course towards a qualification in personal training.
I am satisfied that Ms AS and his siblings would be greatly upset if Mr Nyieker was deported to South Sudan. Ms AS fled the country with her then children as a result of the war, after the violent death of her husband. She said (GD, p 54):
I cannot even imagine the possibility of Manny leaving Australia and returning to South Sudan. Or if he were to be locked up indefinitely. If he is separated from me and his siblings, it will be devastating to our family.…I have also developed sleeping issues since Manny has been incarcerated. I have difficulty sleeping and I rely on medication to help me get some sleep. If Manny is permanently removed from Australia, I am worried that I will not be able to cope mentally.
Ms PC, a friend of the family, gave evidence that she had first met Ms AS when helping her learn English, after she arrived in Australia, and this had developed into a friendship. Ms PC was very supportive of the family but admitted she did not have knowledge of the details of Mr Nyieker’s offending. I conclude that Ms PC would be affected if the Applicant was deported, but more particularly because of her friendship and support for Ms AS.
The Tribunal is satisfied that this consideration weighs in favour of revoking the mandatory cancellation of his visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
There is no evidence that Mr Nyieker has ever been in paid employment, apart from a passing reference in his evidence to spending a short time working for an auto mechanic. Ms Battisson, in her opening submissions, said that there would be no impact on Australia’s business interests, either way. The Tribunal does not attach any weight to this sub-consideration.
Overall, this consideration weighs relatively strongly in favour of the Applicant, because all his close family is here, and he has no family in South Sudan.
SPECIAL CONSIDERATION
Prospect of delay in patriation
As found earlier, the evidence supports the fact that the Applicant is a South Sudan National. However, obtaining a passport or other suitable travel documents may require a process for the conferral of citizenship. There is no evidence that Mr Nyieker has a birth certificate. There is no evidence that he would have ‘witnesses’ in South Sudan who can attest to his ethnicity or origins (such as, for instance, relatives in Bentiu). Ms AS said her last sibling died in 2013. Accordingly, it is reasonable for the Tribunal to conclude that there would be an administrative delay before the Applicant could be patriated. The Tribunal has no knowledge of how long this delay might be, which would depend on the South Sudan Government bureaucracy.
Because any person, citizen, or non-citizen alike, is entitled to the certainty of an outcome, and because such a delay in obtaining citizenship may lead to some further detention, not indefinitely but for an unknown extra period, this special consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.
SUMMATION
Of the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation of the visa. The primary consideration relating to family violence conduct is not relevant. The primary consideration relating to the best interests of minor children in Australia weighs very slightly in favour of Mr Nyieker. The primary consideration in relation to the expectations of the Australian community weighs heavily against him.
In terms of the other considerations, the one relating to international non-refoulement obligations in principle has been found to weigh strongly in his favour. The consideration relating to the extent of impediments if removed to South Sudan also weighs in his favour. The consideration relating to impact on victims is of neutral weight. The consideration relating to links with the Australian community weighs strongly in favour of the Applicant.
In respect of the special consideration, the prospect of a delay in patriation weighs slightly in favour of the Applicant. While the Tribunal is not confined only to the stipulated considerations and may consider any other matter relevant to the purposes of the Act which have been identified by parties or which it has identified itself, in relation to the circumstances of a non-citizen, no other matter has been separately identified.
What has been a feature of this matter has been the Applicant’s unwillingness to accept responsibility for the offence that triggered the visa cancellation, which indicates a lack of remorse but, more particularly, contributes to what has been professionally assessed as a moderate risk of re-offending. Mr Nyieker also does not seem to have a full appreciation about what he must do to mend his ways. This attains greater importance when there is evidence, as set out above, of commitments made not to re-offend when he was granted the visa in October 2018 to regularise his presence in Australia. He then reverted to re-offending, frequently with others. Another feature of this matter has been some evidence that the Applicant has given, which the Tribunal finds implausible.
The Direction states, at paragraph 7(2), that primary considerations should generally be given greater weight than the other considerations. Taking into account the findings about the weight to be given to all the relevant considerations, including the special consideration that the Tribunal has identified, the Tribunal is not satisfied that the discretion is enlivened that there is ‘another reason’ to revoke the mandatory cancellation of the visa under s 501CA(4)(b)(ii) of the Act. Accordingly, the reviewable decision is affirmed.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated:   12 December 2022

Dates of hearing:

28 and 29 November 2022

Advocate for the Applicant:

Ms Alison Battisson

Solicitors for the Applicant:

Human Rights For All

Counsel for the Respondent:

Mr James Byrnes

Solicitors for the Respondent:

Sparke Helmore Lawyers

Annexe – Schedule of Exhibits
R1      Volume of ‘GD’ documents lodged on 6 October 2022
R2      Respondent's ‘TB’ Tender Bundle lodged on 17 November 2022
R3      Respondent's ‘FTB’ Further Tender Bundle lodged 23 November 2022
A1       Applicant lodged Summons material from the County Court on 3 November 2022
A2       Applicant's offending history lodged on 3 November 2022
A3       Applicant's Submissions dated 14 January 2019
A4       Applicant’s Submissions dated 4 March 2019 lodged in four parts
A5       Parkville College report dated 15 November 2018
A6Letter of instructions to Dr Karen Scally dated 5 October 2022 and Psychological Report of Dr Karen Scally dated 3 November 2022

A7 Support Letter from Christine Bakopanos dated 18 November 2020
A8Email correspondence between Applicant's solicitor and Mark Wallace of Cyrenian Central

A9 Email correspondence from case manager of Department of Justice and Corrections
A10Email correspondence from between Applicant’s solicitor and Rebecca Zappavigna from Cyrenian House dated 23 November 2022

A11 Information package from Cyrenian House lodged on 23 November 2022
A12Residential Treatment programs from Cyrenian House lodged on 23 November 2022

A13     Cyrenian House 'About us' lodged on 23 November 2022
A14     Youth Justice Bail Service Report dated 20 September 2019
A15     Pre-Sentence Breach Report dated 1 August 2017
A16     Melbourne Children's Court Report dated 1 June 2017
A17     Youth Justice Bail Service Report dated 15 January 2020
A18Article by Gamer Clancey ‘Youth justice in Australia: Themes from recent inquiries’ dated October 2020

A19     Intensive Bail Progress Report dated 15 April 2020
A20     Intensive Bail Progress Report dated 8 July 2020
A21     Progress Report dated 28 November 2019
A22     Supervised Bail Progress Report dated 7 February 2020
A23     Supervised Bail Progress Report dated 14 February 2020
A24     Supervised Bail Program Progress Report dated 23 August 2016
A25     Statement of Reasons for Granting Bail dated 11 June 2019
A26     DFAT Country Report -South Sudan dated 5 October 2016
A27     Senate Standing Committee on TPVS and SHEV dated 22 March 2021
A28     FOI request with the Department of Home Affairs

[2022] AATA 4320

12 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Dates of hearing:	28 and 29 November 2022
Advocate for the Applicant:	Ms Alison Battisson
Solicitors for the Applicant:	Human Rights For All
Counsel for the Respondent:	Mr James Byrnes
Solicitors for the Respondent:	Sparke Helmore Lawyers