PBDF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3204

PBDF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3204 (5 October 2022)

Division:GENERAL DIVISION

File Number:          2022/6096

Re:PBDF  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President Britten-Jones

Date:5 October 2022 

Place:Melbourne

The decision of the Tribunal is to set aside the non-revocation decision of 20 July 2022 and to substitute a decision that the cancellation decision dated 19 June 2018 is revoked.

....[sgd]....................................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is ‘another reason’ to revoke mandatory cancellation decision – applicant has strong links to the Australian community and would face significant impediments and serious risk of harm if removed to South Sudan – the primary considerations of the protection and expectations of the Australian community – the likely consequence of non-revocation is indefinite detention - the decision under review is set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

REASONS FOR DECISION

Deputy President Britten-Jones

5 October 2022

1. This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Refugee (Class BA) (Subclass 200) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

   The decision to cancel the APPLICANT’S visa AND SUBSEQUENT PROCEDURAL HISTORY

2. On 19 June 2018, the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

3. On 21 December 2021, the applicant sought revocation of the cancellation decision and made representations in support of revocation which included as follows:

   “1. I have undertaken important rehabilitation efforts;

   2. I have stopped using illicit drugs since April 2017 verified by the multiple drug tests;

   3. I have ceased my association with peers who were a negative influence on me;

   4. I have a sound prevention plan in place to ensure that I will not offend again;

   5. My entire immediate family live in Australia and are Australian citizens;

   6. It is in the best interests of my two minor aged nephews;

   7. I am not a citizen of Sudan or South Sudan. We had to flee Sudan as a result of my father’s involvement in politics back in Sudan. As his eldest son, I am at risk of being killed if I am returned there. I am therefore at risk of being kept in indefinite detention.”[2]

   [2] G2, attachment C, pages 44 – 47 of the G documents.

4. Lawyers for the applicant made representations on his behalf dated 18 May 2021.[3] The applicant completed a personal circumstances form dated 15 October 2020.[4]

   [3] G2, attachment E, pages 52 – 67 of the G documents.

   [4] G2, attachment H, pages 77 - 90 of the G documents.

5. On 20 July 2022, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 27 July 2022, the applicant applied to the Tribunal for review of the non-revocation decision.

   Legislative Framework

6. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

7. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[5]

   [5] Section 501(7)(c).

8. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)  For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

   (a)  would be the reason, or a part of the reason, for making the original decision; and

   (b)  is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)  give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)  a written notice that sets out the original decision; and

   (ii)  particulars of the relevant information; and

   (b)  invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)  The Minister may revoke the original decision if:

   (a)  the person makes representations in accordance with the invitation; and

   (b)  the Minister is satisfied:

   (i)  that the person passes the character test (as defined by section 501); or

   (ii)  that there is another reason why the original decision should be revoked.

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

   Issues before the Tribunal

10. The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

11. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[6] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[7]

    [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

    [7] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

12. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[8]

    [8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

    Direction 90

13. The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

14. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:

    “(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

15. In making a decision under s 501CA(4), the following are primary considerations:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.

16. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

17. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[9]

    [9] Direction 90 at 7.

    SOME BACKGROUND FACTS

18. The applicant was born in Khartoum, Sudan on 11 July 1987. He is 35 years old. When he was four years old he fled Sudan with his family and went to live in a refugee camp in Egypt. In 1998 the applicant came to Australia with his mother and father and six siblings. He was granted a refugee visa on the basis of his father’s refugee claims. Soon after arriving in Australia his parents began having problems and his father left his mother in 2000. Thereafter, the applicant had limited contact with his father.

19. The applicant attended primary and secondary school and obtained his VCE qualification in about 2004. He commenced an apprenticeship in wood machinery and cabinet making but just before completing it he suffered a horrific workplace injury in November 2006 where he lost his index finger and part of his middle finger. He was unable to work for a period and received workers compensation. He became depressed and turned to alcohol and then drugs. He felt he was a failure because he could not support his mother and his siblings. In 2009 the applicant was diagnosed with an adjustment disorder and mixed anxiety and depressed mood.[10] In 2017 he was diagnosed with a major depressive disorder and post-traumatic stress disorder.[11]

    [10] G2, attachment M, page 109 of the G documents.

    [11] G2, attachment J, page 102 of the G documents.

20. On 4 June 2019 the applicant applied to the Tribunal for a Protection (Class XA) visa and was refused on 20 July 2022.[12]

    CONSIDERATION

    [12] Marked as Exhibit 6.

    Protection of the Australian community – 8.1 of Direction 90

21. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:

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

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

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90

22. The applicant first offended in 2005 when he drove unlicensed for which he received a fine.[13] He received further fines in 2007 and 2008 for the minor offences of hinder police and giving a false name and address. His more serious offending began in 2011 when he received a 12-month community based order for recklessly causing injury and affray together with other driving offences and failing to answer bail.

    [13] G2, attachment A of the G documents contains a record of the applicant’s offending.

23. On 16 July 2015, the applicant was convicted of robbery and traffic cannabis for which he received a term of imprisonment of an aggregate 77 days. There were numerous further convictions on that day including driving offences, failing to answer bail, possessing a prohibited weapon, possessing cannabis, theft of a motor vehicle, criminal damage and refusing to undergo a breath test for which he received a community corrections order which he breached in December 2017. He was imprisoned on remand from November 2016 to February 2017.

24. On 12 April 2018, the applicant was convicted of his most serious offending for intentionally causing injury for which he received a term of imprisonment of 21 months. He was also convicted of theft of a motor vehicle and mobile phone and contravening a conduct condition of bail, together with further driving offences. This resulted in a total effective term of two years imprisonment. The offence of intentionally cause injury was described by the sentencing judge as a cowardly assault. The applicant punched the victim in the face. The victim lost consciousness for a period of time and when he came to, the applicant had his arm around his neck, chocking him. It was only because of the intervention of another person that the assault stopped. The victim sustained serious injuries and was hospitalised for two days.

25. On 10 May 2018, the applicant received an aggregate 149 days imprisonment for possession of drugs and weapons, resist emergency worker on duty, theft of a motor vehicle and other dishonesty, driving and property offences.

26. The custodial sentences reflect how serious his offending has been. The violent offending is viewed particularly seriously by the Australian Government and community. The offence of resist emergency worker on duty suggests a crime against a government representative or official which is considered by the Australian Government and community to be serious. The more serious offending began in 2011 when the applicant was 24 years old and the offending became very frequent from 2015 to 2017. There is a significant cumulative effect of this repeated offending. This was recognised by the sentencing judge on 12 April 2018 who said:

    “I was told that you are to appear for sentence at the Sunshine Magistrates Court on 10 May 2018, in relation to offences that occurred in April 2015, May 2016 and August 2016. The offences in May 2016 breached the community corrections order. You have subsequently had periods on remand, followed by periods on bail. You failed to comply with bail orders. You were most recently bailed on 22 May 2017. Within days you committed the offences on the current indictment. You failed to comply with conditions of bail that required you not to drive a motor vehicle. In doing so, you also committed two offences of drive whilst disqualified. You also failed to comply with curfew conditions of bail. This pattern of treating court orders with disdain has been a feature of your behaviour over the past two years and it has happened, even though your mother and your siblings have offered you their support.”

27. In summary, the applicant’s offending is very serious and is a very significant factor in terms of whether I am satisfied that there is “another reason” to set aside the second non-revocation decision.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90

28. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[14] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non­ citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    [14] Direction 90 at 8.1.2(1).

1. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[15] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

   Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90

   [15] (2014) 225 FCR 424; [2014] FCA 673.

2. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the physical injuries inflicted on the man he punched and because of the cumulative effect of stealing motor vehicles, possessing drugs and weapons and driving offences.

   Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90

3. The applicant contends that there is a low risk of re-offending because he has rehabilitated himself, learnt from his mistakes and shown remorse. I accept that the applicant was an honest and impressive witness. He articulated his remorse in a way that indicated that he understood why he used to offend and how his offending impacted his victims. I find that his remorse is genuine and that he is ashamed of his past offending. He has proved his remorse by his conduct in generally behaving himself during his five years of incarceration first in prison and then in immigration detention. He has abstained from drugs and alcohol since at least 2017. In the applicant’s statutory declaration, he listed the education and rehabilitation courses that he participated in whilst in prison and it shows that he has taken every opportunity to improve himself for the purpose of successfully reintegrating into the community if released.[16] The applicant was particularly proud that after completing a Peer Listening Training program he was chosen as a Peer Listener who then had a job of helping other prisoners to find their right way in life. The applicant should be commended for this.

   [16] G2, attachment I, pages 94 - 95 of the G documents

4. With respect to the risk of re-offending and the evidence of rehabilitation, I take into account the oral and written evidence from Ms Debi Bodden who is a qualified counsellor with ten years’ experience working at Overseas Services to Survivors of Torture and Trauma (OSSTT). In her report dated 27 April 2022 she referred to the traumatic circumstances of the applicant’s upbringing in Sudan and Egypt followed by resettlement in Australia.[17] She also referred to the trauma associated with his parents’ violent relationship leading to separation in 2000 and his serious workplace accident when he lost his right index finger and part of his middle finger which prevented him from completing his apprenticeship. She expressed her opinion that the applicant was a low risk of re-offending because of his genuine remorse, insight into his past offending and the steps taken towards rehabilitation. In this regard she said:

   “Throughout [the applicant’s] incarceration and detainment in immigration detention, he has consistently demonstrated his desire to overcome the personal challenges that led to his incarceration. While in prison, he was involved in the white ribbon family violence awareness day and also became a “peer listener” as part of the prisoner peer listener program. His natural leadership qualities led to his participation in the African visitation and mentoring program (AVMP) and he worked closely with the AVMP and prison staff to develop and facilitate traditional community healing workshops. Currently, in the Christmas Island detention centre, he has been approved as the unit representative and is also an “education helper”.

   [The applicant] has described a deep sense of remorse when reflecting on the incident that took him to prison and he has taken many steps to acknowledge and move forward from this in a positive way… While in prison he completed the four month “moderate intensity violence intervention program”, which included writing a letter of apology to the victim. He further stated, “I would like to start my life once again so I can support my family and community.” In addition to OSSTT support, the applicant remains in contact with the Jesuit social service, justice and crime prevention program and will shortly be commencing drug and alcohol counselling support.”[18]

   [17] This report can be found at G2, attachment F, pages 68 – 72 of the G documents.

   [18] G2, attachment F, page 70 of the G documents.

5. I was impressed with the evidence from Ms Bodden who has had weekly and then fortnightly meetings of about 45 minutes each with the applicant since October 2021. She explained that the applicant’s offending should be seen in the context of his workplace injury and lost apprenticeship in November 2006, which was very difficult for the applicant because, as the oldest male in the house, he felt a responsibility to support his family which he was not able to do. He turned to alcohol and drugs and began associating with persons who had a negative influence on him. These circumstances were exacerbated by his childhood trauma and unstable household which led to his father leaving his mother in 2000. Ms Bodden was confident about the applicant’s future because he has abstained from drugs and alcohol for at least five years and he has taken steps to address the trauma of his childhood. Having addressed these elements that caused his criminal behaviour, Ms Bodden was confident that the applicant will continue to engage with the support services he needs to avoid reoffending and that he will successfully reintegrate into the community if he is released from detention.

6. Dr Aaron Cunningham, a Forensic Psychologist, conducted a psychological assessment of the applicant on 7 November 2017.[19] He recognized that the applicant’s drug abuse and association with anti-social peers were both contributors to his criminal behaviour. Further, he expressed the opinion that his depression and trauma explain his self-destructive behaviour with regard to that drug abuse and continued negative peer associations. I am satisfied that the applicant has taken steps to adequately address his drug abuse and trauma and that he will not form associations with negative peers in the future.

   [19] This report can be found at G2. attachment J, pages 99 – 104.

7. The applicant’s sister gave impressive evidence to the Tribunal. She stated that she will accommodate the applicant and help him to resettle into society if released from detention. The applicant wants to help his sister in particular with her two children with whom the applicant has already forged a strong relationship. He wants to develop that relationship and become a role model for them which is particularly important because their father has left them. The environment being offered by the applicant’s sister will provide stability and a sense of purpose to the applicant. The applicant noted that his sister lives far away from those negative peer influences so association with them is less likely.

   Conclusion as to protection of the Australian community – 8.1 of Direction 90

8. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[20] The applicant has committed serious crimes but he has engaged in significant rehabilitation by addressing his trauma, drug addiction and behavioural issues. He is only a low risk of re-offending. There remains a slight risk of re-offending and therefore, the protection of the Australian community is a factor that weighs against the applicant, but I would not give it significant weight.

   [20] Direction 90 at 8.1(1).

   Family Violence – 8.2 of Direction 90

9. The applicant was cross examined about three Victoria Police reports of alleged incidents on 15 May 2004, 4 June 2014 and 22 July 2014 which were described as family violence reports. The applicant denied that any convictions arose from these incidents and he explained that one of them did not relate to him and that the others involved him verbally arguing with his younger brother with no violence or physical fighting. The applicant accepted that he kicked his brother’s car but only once, not three times as alleged. The respondent relies upon the definition of family violence which includes property damage and would extend to behaviour between brothers, but I am not satisfied on the evidence that the applicant’s behaviour caused fear to his brother or that there was any violent, threatening or other behaviour that coerced or controlled the brother. Even if the applicant’s conduct of kicking his brother’s car technically fell within the definition of family violence, the circumstances were such that I would not give it any measurable weight. I conclude that this factor weighs neither in favour nor against revocation of the cancellation decision. This consideration is neutral.

   Best interests of minor children – 8.3 of Direction 90

10. I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:

    (a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

    (b)the extent to which the applicant is likely to play a positive parental role in the future;

    (c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;

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

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

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

11. The applicant has no children of his own, but he has two nephews who are the children of his sister who gave written and oral evidence to the Tribunal. The applicant’s nephews are 8 and 10 years old. The applicant’s sister explained that the applicant lived with her and her children for about three months and that the applicant has developed a close relationship with her children. This relationship became particularly important when the father of the children left the family in 2016. The applicant explained how he spent time with his nephews before being incarcerated in 2017 and that he wants to develop his relationship as a male role model for them in the absence of their father. He described that he knows what it is like to not have a father present during adolescence, and he fears for his nephews if he is not able to provide that support. I consider that the applicant, if released, is likely to play a very positive parental role in the future and it will be important for the children to have a male role model in the absence of their father.

12. This is a factor that weighs in favour of revocation of the cancellation decision. The weight to be given to this factor is slightly diminished because the relationship with the minor children in non-parental and the applicant’s sister is fulfilling a parental role and because the applicant has been absent from the community for five years which represents a significant part of the children’s lives. Nevertheless, it is in the best interests of the nephews for the cancellation decision to be revoked and this is a factor to which I give significant weight.

    Expectations of the Australian community – 8.4 of Direction 90

13. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[21] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious but, for the reasons set out under the heading of the protection of the Australian community, I do not consider that there is an unacceptable risk of further re-offending. This factor weighs against the applicant and I give it moderate weight.

    [21] Direction 90 at 8.4(1).

    Other Considerations

14. In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the “other considerations” listed in Direction 90, but these are not exhaustive.[22] I must consider and understand the representations received from the applicant.[23] I must also consider the consequences that would flow from not revoking the cancellation decision.[24]

    [22] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

    [23] See above at [11].

    [24] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.

    International non-refoulement obligations – 9.1 of Direction 90

15. 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.[25]

    [25] Direction 90 at 9.1(1).

16. The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.

17. I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.

18. It is accepted by the respondent that the applicant has been found to be owed non-refoulement obligations as part of the process arising from the applicant’s application for a protection visa. That process involved a detailed assessment by the Department of the applicant’s protection claims which resulted in findings in the Protection Visa Decision Record dated 17 April 2020 that Australia has protection obligations in respect of the applicant because he is a refugee and that there is a real risk that he will suffer significant harm if removed to South Sudan.

19. Having regard to the assessment made on 17 April 2020, a delegate of the respondent decided on 20 July 2022 that the applicant is a person in respect of whom Australia has non-refoulement obligations.

20. I have considered the very detailed analysis in the Protection Visa Decision Record dated 17 April 2020 and the reasons for the decision dated 20 July 2022 together with the further material provided to the Tribunal as part of this application. I conclude that I am satisfied that the applicant is owed non-refoulement obligations. I am also satisfied that the applicant will face a risk of real harm if removed to South Sudan. I accept and adopt the findings in the Protection Visa Decision Record that the applicant:

    (a)is a citizen of South Sudan and is not a citizen of any other country;

    (b)is identifiable as an outsider in South Sudan due to his lack of knowledge of local customs and conventions;

    (c)is an ethnic Dinka and is identifiable as such in South Sudan;

    (d)has no family, community or clan support in South Sudan;

    (e)is a potential target of forcible recruitment into a tribal militia; and

    (f)is a potential target of forcible recruitment by criminal gain.

    Consequences of cancellation and non-revocation

21. The consequence of the cancellation[26] of the applicant’s visa is that he is an “unlawful non‑citizen” as defined in s 14. However, if the cancellation decision is not revoked, the applicant will not be removed to South Sudan because of the operation of s 197C(3) unless he asked to be removed. The applicant gave evidence that it is not an option for him to return to South Sudan because he has never been there before and he would fear for his life. Consequently, the likely consequence for the applicant if his application is unsuccessful is that he will remain in detention. There is no evidence that the respondent is considering the exercise of any available discretion to grant the applicant another visa or to resettle him in a third country. In these circumstances, as acknowledged by the respondent, the likely outcome is indefinite detention. This is a factor that weighs heavily in favour of revocation of the cancellation decision.

    [26] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].

    Extent of impediments if removed – 9.2 of Direction 90

22. Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the applicant’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to him in that country.

23. The applicant is 35 years old and suffers from some mental health issues. The applicant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant has never been to South Sudan and has no network of family or friends to support him there. These difficulties would be exacerbated by his mental health issues for which he is unlikely to receive appropriate treatment in South Sudan. The matters referred to above in relation to non-refoulement obligations are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant and particular impact on the applicant because of his lack of family or other support and his mental health issues and because he has never lived there.

24. This is factor that weighs in favour of revocation of the cancellation decision but given that the applicant is unlikely to be returned to South Sudan I give it less weight.

    Impact on victims – 9.3 of Direction 90

25. There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.

    Links to the Australian community – 9.4 of Direction 90

26. The applicant has significant links to the Australian community. He has been in Australia since he was 11 years old. The applicant’s immediate family lives in Australia, including his mother, seven adult siblings and two nephews. The applicant has lodged letters of support from two of his sisters and his father as well as a family friend.

27. If the applicant is removed to South Sudan then it will impact negatively on his family members in Australia. They would miss him and the important role he would play if released. They would also fear for his safety if he is removed to South Sudan. The applicant’s sister who gave oral evidence to the Tribunal would be greatly assisted by the applicant if he were released and she would be devastated if he remains in detention. She wants him to be there for her children whose father has left them.

1. I give weight to the period of positive contribution made by the applicant during the years of his primary and secondary education and his apprenticeship. He was a good student and participated in sporting activities including soccer and taekwondo outside of school. He finished year 12 and attained his VCE qualification before going on to an apprenticeship which was tragically cut short by his workplace injury. He was unable to work for a period of time and received workers compensation payments.

2. There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.

3. In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs very heavily in favour of revocation of the cancellation decision.

   Conclusion as to whether to revoke the cancellation of the applicant’s visa

4. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is “another reason” to revoke the cancellation decision.

5. The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision, but I do not give them significant weight because the applicant has taken positive steps towards rehabilitation and because of the low risk of re-offending. The countervailing factors are the best interests of children (a primary consideration) and the other considerations of international non-refoulement, extent of impediments if removed and links to the Australian community. In addition, there are the risks of harm if removed and the consequence of indefinite detention if the cancellation decision is not revoked.

6. My view is that the cancellation decision should be revoked because the countervailing considerations outweigh the protection and expectations of the Australian community. The applicant’s offending should be seen in the context of his childhood trauma growing up in a refugee camp and his workplace injury which cut short his apprenticeship and created an environment in which the applicant lost focus and turned to drugs and then crime. The applicant has addressed the underlying contributors to his criminal behaviour by voluntarily committing to engagement with rehabilitative services whilst in prison and detention over the last five years. He has the support of his sister and family in the community and the real motivation to not re-offend because he wants to be with his nephews and wider family. He also has the support of organisations such as OSSTT and I am confident that he will continue to engage with the available rehabilitative services to successfully reintegrate into society.

7. The prospect of indefinite detention is a factor that weighs very heavily in favour of the applicant. Currently the applicant lives in hope of being released from detention, but I have grave fears for the applicant’s mental health if that hope is taken away and he remains in detention indefinitely.

   Decision

8. I am satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to set aside the decision under review and substitute a decision that the cancellation decision is revoked.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

....[sgd]...........................................................

Associate

Dated: 5 October 2022

Dates of hearing:

28 & 29 September 2022

Advocate for the applicant:

Solicitors for the applicant:

J Samuta

Samuta McComber Lawyers

Advocate for the respondent:

R Donaldson

Solicitors for the respondent:

Clayton Utz