PKZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 768
•14 April 2022
PKZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 768 (14 April 2022)
Division:GENERAL DIVISION
File Number: 2020/6314
Re:PKZM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:14 April 2022
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 9 October 2020 not to revoke the cancellation of the Applicant’s Visa, is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
..............[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – Federal Court remittal – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – multiple convictions between 2007 and 2016 – Applicant has been in prison/ immigration detention since 2015 – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence committed by the Applicant – best interests of Applicant’s minor sibling, nephews and niece – expectations of the Australian community – Australia’s international non-refoulement obligations – whether the Applicant’s non-refoulement claims were generic or boilerplate in nature – prospect of indefinite detention – extent of impediments if removed to South Sudan – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 32-year-old man who came to Australia in 2005 as a dependant under his stepfather’s Class XB Subclass 200 Refugee visa – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 38AA(1)(b)
Migration Act 1958 (Cth) ss 36A, 197C, 198, 499, 499(1), 499(2A), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96
DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3228JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529
MJNN and Minister for Home Affairs [2019] AATA 3205
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845
Subasinghe and Minister for Home Affairs [2019] AATA 751
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, ‘Destinations – South Sudan’, Smart Traveller (28 October 2021) < of Foreign Affairs and Trade, DFAT Country Information Report South Sudan, 5 October 2016
John Tanza, ‘South Sudan Blocks UN Peacekeepers from Volatile Areas’, South Sudan in Focus (14 June 2021) < Lou K Mogga, ‘The mental health treatment gap in South Sudan’ (2019) 12(1) South Sudan Medical Journal, 28
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
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 (8 March 2021) paras 4(1), 4(1)(a), 4(1)(e), 5.1, 5.1(3), 5.2, 5.2(4), 5.2(5), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2)(a), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(d), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1(4), 9.1(5), 9.1(6), 9.1(7), 9.1(8), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
Nationality Act 2011 (South Sudan) Government of South Sudan, 7 July 2011, s 8(1)(a), 9
Sudanese Nationality Act 1994 (South Sudan) Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, art 10(b)
United Nations High Commissioner for Refugees Statute (adopted by the UN General Assembly on 14 December 1950)
United Nations Human Rights Council, Detailed findings of the Commission on Human Rights in South Sudan, 18 February 2021
United Nations Human Rights Council, Report of the Commission on Human Rights in South Sudan, 4 February 2021
United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
14 April 2022
BACKGROUND
The Applicant is a 32-year-old man who was born in Khartoum, the capital of Sudan. Because both his parents were born there, the Applicant’s country of citizenship is South Sudan, even though he has never been there.
The Second Sudanese Civil War was waged from 1983 until 2005. During this time, in approximately 1999 when the Applicant was 10 years of age, the Applicant’s father disappeared. The family do not know what happened to the Applicant’s father. He was never heard from again and is presumed dead.
In 2002, the Applicant, his mother, the Applicant’s stepfather, three younger brothers, and his half younger brother fled to Egypt, leaving his four sisters behind. One of his sisters died during the South Sudanese Civil War in 2013. Two of his sisters still live in Sudan. The other lives in Cairo.
The family lived in a displaced persons camp in Egypt where conditions were poor and where he and his family experienced hostility from the authorities and local people. The family primarily survived on United Nations High Commissioner for Refugees (UNHCR) rations and the Applicant and his siblings did not go to school.
The Applicant arrived in Australia on 14 December 2005 when he was 16 years old as a dependant under his stepfather’s Class XB Subclass 200 Refugee visa. He arrived with his mother and six younger siblings, including three half-siblings who are the children of his mother and stepfather.
The Applicant attended school when he arrived in Australia, but he did not speak English and had limited prior formal schooling, and so he dropped out after only a couple of weeks. He subsequently obtained factory work, which was short-lived.
From when he left school the Applicant became involved with a group of young men and started to drink alcohol.
Between November 2009 and March 2016, the Applicant was convicted of approximately 65 criminal and driving offences. These offences included an offence of “recklessly cause injury” for which the Applicant was sentenced to 15 months imprisonment on 22 September 2015. At that court appearance the Applicant was also sentenced to six months concurrent imprisonment for “refuse undergo breath test” and an aggregate term of six months concurrent imprisonment for “drive whilst disqualified unlicensed driving”.
HISTORY OF THE PROCEEDINGS
It was the 15-month prison sentence the Applicant received for the “recklessly cause injury” offence which resulted in the Applicant’s Class XB Subclass 200 Refugee (permanent) visa (Visa) being cancelled on 4 May 2016 under the mandatory cancellation power in s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
The Cancellation Decision started in motion a Court appeals process which is now entering its sixth year, and which I will now outline. A consequence of the appeals process has meant that the Applicant has been detained (in prison and then in immigration detention) for a prolonged period since February 2015, being approximately seven years.
The Applicant requested revocation of the Cancellation Decision on approximately 9 May 2016, and subsequently, through his legal representatives, made submissions and provided evidence in support of revocation of the Cancellation Decision including statements from his family members in Australia.
However, on 3 May 2017, the Assistant Minister for Immigration and Border Protection decided not to revoke the Cancellation Decision. The Applicant appealed this decision to the Federal Court. The Federal Court quashed the decision by consent on 4 December 2017 and ordered that the matter be remitted for reconsideration according to law. The notes to the consent order recorded that the Respondent conceded that the Cancellation Decision was affected by jurisdictional error, applying the majority judgment of the Full Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 (BCR16). I infer from this note and from the decision in BCR16 that the Assistant Minister failed to properly consider the Applicant’s protection claim on the basis that the Applicant could make a subsequent protection claim.
Subsequently, in a letter dated 23 February 2018, the Applicant was invited to make further submissions and provide further information. The Applicant did so in late February 2018 and March 2018. However, on 3 July 2018, a different Assistant Minister decided not to revoke the Cancellation Decision. The Applicant unsuccessfully appealed this decision to the Federal Court, with the primary Judge dismissing the application.
The Applicant then filed an appeal in the Full Federal Court. On 25 June 2020, the Full Federal Court quashed the Assistant Minister’s decision of 3 July 2018 and remitted the matter to the Minister for reconsideration. In a joint judgment, Bromberg and Mortimer JJ found that the Assistant Minister failed to properly consider representations about it not being safe for the Applicant to return to Sudan or South Sudan and representations that he was at risk of being detained indefinitely in immigration detention. Snaden J upheld the Applicant’s appeal solely on the indefinite detention ground.
On 9 October 2020, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act. It is this decision that is the subject of the current application and is the Reviewable Decision currently before me.
On 13 October 2020, the Applicant sought review of the Reviewable Decision in the Tribunal. The application was heard by a differently constituted Tribunal on 15 and 16 December 2020. On 23 December 2020, the Tribunal affirmed the Reviewable Decision.
The Applicant appealed the Tribunal’s decision to the Federal Court. On 27 July 2021, Anderson J issued a writ of certiorari to quash the Tribunal’s decision and a writ of mandamus requiring the Tribunal to determine the Applicant’s application for review according to law. In summary, Anderson J found that the Tribunal had failed to:
(a)properly consider representations by the Applicant concerning indefinite detention and failed to consider prolonged or indefinite detention as a legal consequence of the decision;
(b)properly consider representations made by the Applicant that there would be a negative impact on Australia’s international reputation if non-refoulement was found and the Applicant was refouled; and
(c)understand the Migration Act or its operation by conflating the process that is available to the Tribunal under s 501CA(4) with the process that occurs under s 36 of the Migration Act with respect to a protection visa application. That is, by taking the view that Australia’s non-refoulement obligations would only be properly considered at a future point in time under a s 36 protection visa application.
I heard the remittal application in the Perth Registry of the Tribunal on 7 and 8 December 2021.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
The hearing of this application was by Microsoft Teams because the parties were in Melbourne, and the Tribunal in Perth, with travel into Western Australia restricted due to the COVID-19 pandemic.
The Applicant was represented by Mr Thomas of counsel, instructed by Mr Hewaarachchi of Refugee Legal. I sincerely thank Mr Thomas for appearing pro-bono in this application.
The Respondent was represented by Mr Brown of counsel, instructed by Mr Sypott of The Australian Government Solicitor.
The proceedings were interpreted by a Sudanese Arabic interpreter.
I admitted the following documents into evidence at the hearing:
(a)A bundle of journal articles (Exhibit A1), including:
(i)The Royal Australian and New Zealand College of Psychiatrists, 'Position Statement 46: The provision of mental health services for asylum seekers and refugees' (September 2017);
(ii)BMC Psychiatry, 'The impact of immigration detention on mental health: a systematic review' (Research Article, 2018); and
(iii)Aamer Sultan and Kevin O'Sullivan, 'Psychological disturbances in asylum seekers held in long term detention: a participant-observer account' (December 2001) 175 Medical Journal of Australia 593-596.
(b)Australian Government, Department of Immigration and Border Protection, Minister's residence determination power and detention intervention power (21 October 2017) (Exhibit A2);
(c)United Nations High Commissioner for Refugees, Procedural Standards for Refugee Status Determination (RSD) under UNHCR's Mandate - Unit 5: Processing Claims Based on the Right to Family Unity (26 August 2020) (Exhibit A3);
(d)Consolidated G-Documents, G1 to G14, consisting of pages 1 to 441 (Exhibit R1);
(e)Supplementary G-Documents, G15 to G21, consisting of pages 442 to 596 (Exhibit R2);
(f)Respondent’s Further Documents extracted from the Refugee (Subclass 200) visa file for the Applicant’s stepfather, including the Applicant’s mother and their seven children as dependants, consisting of pages 1 to 85 (Exhibit R3); and
(g)Transcript of the Tribunal proceedings from Tuesday 15 December 2020 and Wednesday 16 December 2020 (Exhibit R4).
The following written submissions were filed by the parties prior to the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 28 October 2021 (SFIC);
(b)Respondent’s SFIC dated 30 November 2021; and
(c)Applicant’s SFIC in Reply dated 2 December 2021.
The Applicant was the only witness who gave evidence at the hearing. He explained why he did not call his family members again during examination in chief (transcript/40-41):
Yes, the proceedings have not only affected my mum, but they have severely affected me and the other members of my family, my brothers, my siblings, and also, my niece, my nephews. It has affected everyone, because now for seven years we have been going through all this procedures. We come to the court, we come to the hearing, and we were told that you will get a response after two weeks. And when the response comes, it always comes back rejected. That I should remain in detention. And I should not be given back my visa. So this cycle continues and the results always the same, and everybody who has hope that a positive result will be attained, of course, lost all the hope of getting relief by releasing me from detention and by giving me back. So yes, the procedures has made everybody frustrated and so depressed, and that is one of the reasons that nobody's interested to come to the hearing and witness anymore.
It was agreed that I should have regard to the evidence of the witnesses called at the last Tribunal hearing, being the Applicant’s mother, and his brother, SA, from the transcript of those proceedings and the statements from those witnesses in the Consolidated G-Documents.
However, in the afternoon of the first day of the hearing, the Applicant was sometimes reluctant to answer questions from his counsel, Mr Thomas. He expressed frustration and distress that he had been asked many of the questions before in previous proceedings but had received a negative result. The Applicant explained (transcript/54):
I appreciate the advice given to me by the delegate about what I should answer and answer honestly and clearly. But I must also say that all those questions that have been asked today and will be asked tomorrow are the same questions that have been repeating themselves, and during all those sessions, my hopes had been raised several times that maybe I will get a positive response, only to be dashed very shortly with a rebuff and that my visa is still cancelled and the decision of the Minister is not overturned. So this has given me a lot of frustration and hopelessness that maybe nothing really positive will come out of all these sessions in the future. This is the feeling and the frustration that I have now. So I’ve sort of given up on getting any positive response as a result of all these sessions, because it has been so long and so many sessions and the result’s always the same, negative, and the confirmation of the cancellation of my visa.
Similar issues arose on the second day of the hearing when the examination in chief by Mr Thomas continued. For example, the following exchange occurred when the Applicant expressed frustration at being asked by Mr Thomas to explain why he feared for his life if he were sent to South Sudan (transcript/62-63):
SENIOR MEMBER: PKZM, just to explain, I think Mr Thomas is trying to ask you these questions because they're all the things that I need to look at when I'm making the decision. So, that's why Mr Thomas is asking you about these things.
APPLICANT: I understand but - you know, these questions are not being asked of me for the first time, they are being asked before, maybe five or six times, I explain myself. And don't you think that asking these questions repeatedly, again, and again, could also affect me personally. I have been over this for a long time and for a long time the answer came back the same, a rebuttal of my request to give me back my visa. So, I'm being really effective to go and open the same questions back again, and again, and again.
SENIOR MEMBER: I absolutely understand, PKZM, and I think Mr Thomas is just trying to help you.
The following exchange also demonstrates, in my view, the Applicant’s sense of hopelessness at his situation (transcript/63):
MR THOMAS: PKZM, I understand your frustration, I'm going to stop asking you questions. If I can I'll just ask you a couple more and it's up to you whether you want to answer them or not, but they will be the last few questions that I ask you. The first is, if you're removed from Australia to South Sudan, what, if anything, would be the effect on you?
APPLICANT: I have already been affected even - you know, as I attend this session now, I'm already affected about the length of this issue, this case, it has really affected me. So, when I think of myself some times I come to a conclusion that maybe it's better for me - you know, to be deported to Sudan instead of being here, where I am now. Because what is the benefit of me being here, really, there is no benefit. Mistakes I have admitted, I did time for them, I paid my price, and yes I'm still being dragged every now and then to the court with no (indistinct words) to my benefit.
MR THOMAS: Perhaps I can ask as a last question then, if you were removed to South Sudan, what would the effect on your family be?
APPLICANT: Again, we go back to the same questions.
MR THOMAS: All right, then let me ask you an open question then, rather than me asking you the same questions. Is there anything else that you would like to tell the Senior Member?
APPLICANT: Honestly, I don't know what to say to Senior Member, except that honestly I'm very tired, I'm very tired, I'm exhausted about this case. Every now and then I'm dragged to the court, to the hearings, I'm so tired, I'm so exhausted. If they don't want me here to let them just - you know, help me arrange and send me back to South Sudan or wherever. I don't care anymore.
Following this exchange Mr Thomas concluded his examination in chief and I invited Mr Brown to commence his cross-examination. Mr Brown requested the opportunity to speak to me, and to Mr Thomas, without the interpreter and the Applicant. I agreed.
When the Applicant and interpreter were taking a short break, Mr Brown expressed the concern that the Applicant may not be “in a fit state” to proceed with cross-examination, observing that even “gentle and … fair probing” by his own counsel Mr Thomas during examination in chief “was causing or beginning to cause him significant distress”. He expressed the concern that there was the potential for the Applicant to experience “psychological damage” if required to proceed with what would normally be “a very lengthy and thorough cross examination”. Mr Brown proposed that there be no cross-examination and instead that I could rely on the transcript of the last Tribunal hearing (transcript/65). I indicated that I shared those concerns as to whether the Applicant would be able to cope during cross-examination.
After conferring with his instructor and obtaining instructions from the Applicant, Mr Thomas agreed that I could rely upon the Applicant’s evidence in the transcript of the previous Tribunal hearing and indicated that he was “grateful to Mr Brown for his fairness in making that suggestion” (transcript/67).
It was agreed that I should have regard to the evidence in full, being the transcript of the previous proceedings (tendered by the Respondent and put into evidence as Exhibit R4), as well as the Applicant’s evidence from the 7 and 8 December 2021 hearing.
After some discussion, I also made programming directions for the filing of written closing submissions. So that the parties had access to the same information in preparing their submissions notwithstanding the difference in resources, I also directed that the Tribunal would provide a copy of the transcript of the current proceedings to both parties.
Consequently, after the hearing the following closing submissions were received:
(a)Applicant’s closing submissions, undated but filed on 20 December 2021;
(b)Respondent’s concluding submissions, filed and dated 22 December 2021; and
(c)Applicant’s closing submissions in reply, undated but filed on 24 December 2021.
I commend Mr Thomas, Mr Brown and their instructors for the ethical and sensitive way they approached the Applicant’s distress at having to give evidence to the Tribunal in these proceedings. I was most impressed with their compassion and integrity, and their willingness to work together to suggest a fair compromise with respect to the Applicant’s evidence.
THE COUNTRY OF REFERENCE
The Nationality Act 2011 (South Sudan) provides that a person shall be considered a South Sudanese national by birth if a parent, grandparent, or great-grandparent on the male or female line were born in South Sudan (s 8(1)(a)). Section 9 provides that a certificate of nationality shall be issued to an applicant who is a South Sudanese national by birth.
Further, the Sudanese Nationality Act 1994, (art 10(b)), provides that any individual who acquires the nationality of South Sudan automatically loses Sudanese nationality.
Thus, despite Sudan being the Applicant’s place of birth, the Applicant is a South Sudanese National by birth because he meets the eligibility requirement of having a parent born in South Sudan. Indeed, both his parents were. This is enough for him to be considered a South Sudanese national, even without a certificate of nationality. He correctly contends that he does not have the right to enter or reside in Sudan.
The Department of Foreign Affairs and Trade Country Information Report for South Sudan (DFAT Report) contains the following statement about identity cards which confirms they can be issued without supporting documentation, at [5.23]:
The Government has started to issue certificates of nationality which are often in the form of a national identity card. Certificates of nationality can be issued to an individual of any age and are issued on the basis of information provided, with no supporting documentation required at the time of application.
The Applicant faces being “returned” (or more precisely, removed) to Juba (R4/11), the capital city of South Sudan, despite not being born in South Sudan and never having been there. Consequently, South Sudan is the country of reference for the consideration of impediments if removed and for the consideration of non-refoulement obligations owed by Australia to the Applicant.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(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.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
When the Reviewable Decision was made on 9 October 2020, the delegate applied Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79), which was the applicable direction at that time.
However, on 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021 and revoked the previous Direction No 79. Consequently, I must have regard to Direction No 90 as the decision-maker in this application.
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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 measureable [sic] 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 [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant conceded that he does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 22 September 2015, the Applicant was sentenced to a 15-month concurrent term of imprisonment for the offence of “recklessly cause injury”. The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of “another reason” with reference to the Full Federal Court’s decision in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
That is, there must be “a reason that carries sufficient weight or significance” (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Before evaluating the nature and seriousness of the Applicant’s offending (para 8.1.1(1) of Direction No 90) I will outline his offending history in Australia.
Offending history
On 2 November 2007, less than two years after arriving in Australia, the Applicant appeared in the Dandenong Children’s Court on two charges of “unlicensed driving”, two charges of “use unregistered motor vehicle - highway”, “drive in a manner dangerous”, “state false name”, two charges for “number plates not affixed/displayed as required”, and “fail to answer bail granted”. No conviction was recorded, and he was released upon entering a good behaviour bond. A licence cancellation of 12 months was also imposed.
I note that there is a newspaper article dated 19 June 2008 in the G-Documents from the Herald Sun newspaper. The article records a court appearance for the Applicant which took place on 18 June 2008 when the Applicant was 19 years of age. It states the Applicant pled not guilty to “recklessly causing serious injury” and “assaulting police”, and that he was considering an appeal from his sentence, which did not include jail due to his young age. It was reported that a group of youths, of which the Applicant was included, were intoxicated after a funeral and that when a police officer had asked them to move on, the group attacked the police officer. The Magistrate was reported to have described the incident as “cowardly … unprovoked and particularly vicious”. The police officer was reported to have serious injuries including a fractured jaw, broken and chipped teeth, damaged right knee and had a split lip, cuts and bruises.
I do not have any reason to doubt the veracity of this reporting. However, how I should regard this evidence is somewhat problematic. This is firstly because there is no such court appearance date in the Applicant’s criminal history, no evidence of the charge or a statement of material facts, and no court transcript. There are no offences for “recklessly causing serious injury” in the Applicant’s criminal history until August 2011 and there is only one reference to “assault police”, in November 2015. I can only speculate as to the reasons why. Perhaps the conviction was spent, or perhaps the Applicant successfully appealed it. Additionally, this newspaper article, and/or the circumstances of this offending were not put to the Applicant at either hearing. I therefore find that the evidence of the newspaper article is not persuasive enough for me to be satisfied that the Applicant committed this conduct.
On 23 November 2009, the Applicant was convicted in the Dandenong Children’s Court on three charges of “criminal damage (intent damage/destroy)”, “theft of a motor vehicle”, “robbery”, two charges of “recklessly cause injury” and “assault with intent to rob”. He was released on a six-month youth supervision order. He was also convicted and discharged on two charges of “fail to answer bail granted”.
The same day, the Applicant was convicted and fined $750 in the Dandenong Magistrates Court and was ordered to pay $66.60 statutory costs for “fraudulently use licence authorised/ required by rsa [Road Safety Act 1986 (Vic)]”. He was also convicted and discharged on two charges of “drunk in a public place” and two charges of “fail to answer bail granted”.
On 24 May 2010, the Applicant was sentenced in the Dandenong Magistrates Court to a period of three months’ imprisonment, suspended for six months after he pled guilty to the offences of “assault with weapon”, “affray (common law)”, “recklessly cause injury”, “assault with instrument” and “possess controlled weapon without excuse”. He was also “convicted and adjourned to 23.11.2010” of “theft of a motor vehicle”, two charges of “attempted theft of a motor vehicle” and “theft from shop (shopsteal)”, although there is no court date for 23 November 2010 recorded in the Applicant’s National Police Certificate.
On 5 November 2010, the Applicant was convicted of three charges of “unlicensed driving” in the Dandenong Magistrates Court. He was sentenced to two months imprisonment, suspended for 24 months. He was also convicted of “state false name” and “fail to answer bail granted” for which he was fined $150 on each charge.
On 29 August 2011, the Applicant was convicted and sentenced to an effective total sentence of two years and six months imprisonment in the Heidelberg Magistrates Court of four charges of “recklessly cause injury”, “theft of a motor vehicle”, two charges of “drive whilst disqualified”, “refuse to accompany police for breath analysis”, “contravene family violence intervention order”, two charges of “unlawful assault”, three charges of “robbery”, “recklessly cause serious injury”, two charges of “resist police”, “refuse or fail to state name and address”, “state false name when requested”, “ theft”, “fail to answer bail granted” and three charges of “unlicensed driving”. The Applicant was found to have breached the suspended two-month sentence of 5 November 2010 and so the Magistrate restored that term of imprisonment.
On 29 October 2013, the Applicant was convicted in the Melbourne Magistrates Court of “exceeding the prescribed concentration of alcohol when breath tested within 3 hours of driving a motor vehicle”, “drive whilst disqualified”, “recklessly cause injury” and “state false name”. He was sentenced to an effective total sentence of imprisonment of six months, and his licence was cancelled and disqualified for 18 months.
The Applicant appeared in the Melbourne Magistrates Court on 22 September 2015. He was convicted of the offences of “refusal to undergo a breath test” and “drive whilst disqualified unlicensed driving” for which he was sentenced to six-month concurrent terms of imprisonment for each and a licence cancellation for five years. He was also convicted of “recklessly cause injury” for which he was sentenced to a concurrent term of 15 months imprisonment, of which 229 days had already been served because the Applicant had been on remand since 5 February 2015. The Applicant was also convicted of “retention of stolen goods”, for which the Magistrate imposed a $400 fine and ordered the Applicant to pay $107 statutory costs.
The “recklessly cause injury” offence was an assault against the Applicant’s former partner. The sentencing Magistrate observed that, “he had only known her for four months; living together for one month, and he starts belting the hell out of her” after which the Applicant’s lawyer clarified they had recently reunited after the Applicant had been in custody. In His Honour’s sentencing remarks, the sentencing Magistrate further described the offence as follows:
… this was a horrendous assault … you belted this poor woman in the backyard. You took her into the house and you belted her again. You’re not to treat women like chattels, like your own personal things. All right?
The sentencing Magistrate rejected the Applicant’s interjection that he “didn’t touch her” and “I slap her once”. His Honour stated:
No. What were you doing in the back? You were belting her in the backyard. Everyone – next door neighbours heard, and they heard when you even took her into the house, they still heard you belting her. It’s not on.
The following details concerning the “recklessly cause injury” offence were described by Her Honour Judge Lawson when she was sentencing the Applicant for different offences on 9 March 2016:
I note in the past you were dealt with in respect to an assault that occurred on 3 January 2015 involving your former partner for which you were charged with recklessly causing injury on 22 September 2015 and on that date you were sentenced to 15 months’ gaol. That related to a very serious assault on her where she was struck by you and lost consciousness.
Her Honour also observed that, “you were drunk on the occasion that you assaulted your former partner on 3 January 2015”.
On 23 November 2015, the Applicant was convicted of “theft”, three charges of “resist police” and “assault police”. He was sentenced to four months imprisonment to be served concurrently with the 15-month term of imprisonment imposed on 22 September 2015.
Following the “recklessly cause injury” offence against his former partner on 3 January 2015, a Family Violence Intervention Order (FVIO) was made on 5 January 2015 in Frankston Magistrates Court. However, the Applicant contravened that order on 1 February 2015, less than a month later. At that time, the Applicant was on bail after being charged with the offences committed on 3 January 2015. When sentencing the Applicant on 9 March 2016 for the offences of “contravene family violence final intervention order”, “common law assault” and “criminal damage (intent damage/destroy)” Lawson J described the Applicant being on bail at the time as an “aggravating feature” of the offending. Her Honour described the circumstances of the offending as follows:
… the context of the offending was that in breach of a Family Violence Intervention Order you attended the home of your former partner on 1 February 2015, in the afternoon and demanded that she open the door. When she did not do so, you then began to yell and punched a hole in a pane of glass and gained access to the home (Criminal Damage) (Breach of Family Violence Intervention Order).
It is accepted that when you entered the property your intention was limited to retrieving some property that belonged to you. After you gained entry there was an argument between yourself and your former partner. You were swearing and abusing each other and during that argument you spat in her face approximately four times. (Common Assault).
Eventually, she was able to access Triple 0 at a neighbour’s house and police were requested to attend and they arrived a short time later. By that stage you had left and you were not located and arrested until some four days later on 5 February 2015.
Police interviewed you and you denied the offending and denied being present at the house on that day. This was clearly not the case and the prosecution were able to rely on the evidence of your former partner but in addition, you cut yourself when you smashed the pane of glass and you left droplets of blood at the scene and that was matched to your DNA profile.
Mr [Applicant], your offending is serious. Your actions on this occasion were in clear breach of the court order that had been earlier made in respect to the Family Violence Intervention Order and it involved further offending including an assault on a protected person.
…
You had no permission to be present. You were verbally abusive and spat at your former partner which would have been very humiliating and terrifying for her. Your behaviour was completely out of line and needs to be marked by appropriate punishment.
(Original emphasis.)
The Applicant was sentenced to 56 days imprisonment plus a community corrections order for two years for “contravening a family violence final intervention order”; 56 days concurrent imprisonment for “common law assault” and 14 days concurrent imprisonment for “criminal damage (intent damage/destroy)” and was ordered to pay $160 compensation. The sentences were to be served concurrently with the prison sentences imposed on 22 September 2015 and 23 November 2015.
Conduct in detention
The Applicant has been in immigration detention for a prolonged period since May 2016, being just under six years.
Immigration Detention records contain notes of the Applicant’s involvement in several incidents commencing with an assault on 14 December 2016 where the Applicant punched another detainee twice (R1/157). It was recorded that the victim did not want to press charges as the Applicant had apologised and they had shaken hands.
The Applicant was involved in a disagreement on 28 March 2017 with another detainee over the use of a computer, resulting in the Applicant grabbing the other detainee and pushing him off the computer, and the other detainee verbally abusing the Applicant (R1/156). There was another disagreement with another detainee on 22 July 2017 when the Applicant alleged that another detainee had deliberately walked in front of him, causing him to spill his food, but the other detainee alleged that the Applicant had assaulted him by striking him twice in the back of the head. The CCTV footage appeared to be unclear, and so both detainees were spoken to, told to stay away from each other and monitored (R1/151).
On 29 May 2017, the Applicant was noted as being “abusive and aggressive” towards an officer because he wanted the officer to get him some milk (R1/154). Another note records the Applicant was “verbally abusive” on 1 August 2017 when officers tried to remove a 5-litre plastic bucket from the Block’s fridge (R1/150).
On 10 June 2017, another detainee alleged the Applicant had assaulted him by punching him in the right eye. However, the notes record there was no evidence of the assault and that the alleged victim had lost a soft drink to the Applicant in a card game (R1/152-153).
The incidents that the Applicant was asked about at the 2020 hearing were:
(a)An assault where the Applicant punched another detainee on 20 November 2017 (R1/146). The assault was logged in the immigration detention notes as being “minor”, although the Applicant was non-compliant, abusive and “physically combative” and had to be mechanically restrained (R1/147). The Applicant admitted to the assault but said that he was provoked by ongoing racist taunts and derogatory comments from the victim over a 12-month period. The Applicant’s evidence was that despite witnessing some of this behaviour, and despite the Applicant and another detainee making complaints (R1/139-143; 159) they were not taken seriously or properly logged by detention officers (R1/140-141; R4/62). An earlier note dated 19 April 2017 supports the Applicant’s evidence because it recorded that the Applicant was targeted by two other detainees who were making “derogatory racist remarks” (R1/154).
(b)Another incident which recorded “intimidation and threatening behaviour” by the Applicant towards an officer several days after the 20 November 2017 incident. According to the incident record, the Applicant had questioned why he had been restrained during the previous assault incident, with the note recording that he challenged the officer to a fight (R1/145). The Applicant’s explanation at the 2020 hearing was that he was frustrated because he was the officer in charge and had not taken his complaints to senior management (R4/63-64).
Other incidents subsequently occurred:
(a)On 31 October 2018 where an officer witnessed a physical altercation between the Applicant and another detainee on the basketball court. Both refused to give a reason for the fight, refused medical assistance and refused to have photographs taken of their injuries (R1/213).
(b)On 23 March 2019, a search of the Applicant’s shared room revealed an unidentified pill and “7 X Aluminium strips Multiple improvised smoking implements”. It is unclear whether these are separate items. None of the detainees claimed ownership (R1/214). On 16 August 2019, officers found “contraband Smoking Paraphernalia, a glass pipe and syringe” in a compound occupied by the Applicant and two other detainees (R1/215). During another search on 26 November 2019, contraband items were found during another room search where the Applicant and other detainees reside. Four broken pens, four small pieces of foil, a blade removed from a razor, a small piece of metal wire and two homemade wicks were located (R1/216).
(c)The Applicant had to be mechanically restrained on 27 December 2019 when he refused to comply with room search procedures and became “aggressive and non-compliant” (R1/217).
(d)The most recent incident was recorded as occurring on 2 February 2020. The Applicant was observed to have received an item through a fence which was described as “a small amount of green leafy substance wrapped in red paper, along with a small amount of white powder wrapped in white plastic” (R1/218).
The Applicant was not asked about these specific incidents at the 2020 hearing. I find that it would be procedurally unfair for me to draw any adverse inference in circumstances where this adverse information was not put to him. I also note that, with respect to the items located in a shared room, no findings were made about ownership. I therefore cannot be reasonably satisfied about the Applicant’s involvement.
Assessing the nature and seriousness of the conduct
Some of the offences the Applicant has been convicted of fall within the types of crimes or conduct described in Direction No 90 as being “very serious” because they are “violent crimes” (para 8.1.1(1)(a)(i)) and/or “crimes of a violent nature against women” (para 8.1.1(1)(a)(ii)).
In this regard, I refer to the Applicant’s numerous violent convictions stated above including for “recklessly cause injury”; “assault with intent to rob”; “assault with weapon”; “affray (common law)”; “assault with instrument”; “recklessly cause serious injury” and “unlawful assault”.
The Applicant’s serious offending is also interspersed with some less serious offences such as “theft”, “robbery” and offences involving providing false details to police.
I also note the Applicant’s offending against his former partner, namely the “recklessly cause injury” offence committed on 3 January 2015 where the Applicant “belted” his former partner in the backyard and in the house. Her Honour Lawson J described it as “a very serious assault … where she was struck by [the Applicant] and lost consciousness”. I agree that offending of this nature should be regarded as being very serious. So too, are the subsequent offences whereby the Applicant contravened a FVIO, less than a month after it was made and whilst he was on bail for the “recklessly cause injury” offence, by smashing a window to obtain entry to his former partner’s home (criminal damage) and spitting in his former partner’s face approximately four times (common assault). I regard this humiliating and degrading offending behaviour against a woman protected by a FVIO to be very serious. In reaching this conclusion, I am also guided by Her Honour Lawson J’s comment that:
Breaches of intervention orders are serious. Family violence is a very serious problem in Australia and intervention orders can only protect victims of threatened violence if they are effectively enforced by the courts and any breaches must be appropriately punished.
Further, paragraph 8.1.1(1)(b)(ii) of Direction No 90 provides that crimes against government representatives or officials due to the performance of their duties are “serious”. The Applicant’s offence of “assault police”, which was one of the offences he was convicted of on 23 November 2015 is therefore serious.
Paragraph 8.1.1(1)(b)(iv) of Direction No 90 provides that a crime committed by the non-citizen in immigration detention is another type of conduct that is to be regarded as “serious”. Although I have outlined various incidents involving the Applicant in immigration detention they do not, in my view, fall within the category of a “crime” committed in immigration detention.
Paragraph 8.1.1 of Direction No 90 is not limited to “offending” (that is, offences an applicant has been convicted of). It also refers to “other conduct”. As I noted above, I have not drawn any negative inferences from the Applicant’s conduct in immigration detention which was not put to him at the hearing because it would be procedurally unfair for me to do so. Regarding the conduct that the Applicant was asked about, specifically, the incident where the Applicant punched another detainee on 20 November 2017 and resisted officers who tried to restrain him, is nevertheless serious because the Applicant reacted with physical violence, despite the mitigating circumstances and the conduct being ranked by immigration detention officials in the notes as “minor”.
The crimes and conduct described in the sub-paragraphs in 8.1.1(1)(a) and (b) are not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as “very serious” or “serious”. The Tribunal has often regarded traffic/driving-related offences to be of a very serious nature because road traffic laws are in place to protect the community, including innocent road users, from harm. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [15]–[16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]; and Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]).
The Applicant’s driving offences are numerous and include “unlicensed driving”, “driving whilst disqualified”, “driving in a manner dangerous”, “exceeding the prescribed concentration of alcohol within three hours of driving”, and “refusing to undergo a breath test”. The seriousness of the Applicant’s driving offences were exacerbated by his having a significant alcohol problem, with his alcohol misuse being a key factor in his offending. I regard that conduct as being serious because licensing laws are in place to ensure only those capable and safe to drive can do so, and because impaired driving under the influence of alcohol is a danger to other innocent road users. I also note the Applicant has continued to commit driving offences despite numerous licence cancellations and disqualifications which suggests a disregard for lawful authority. Additionally, for the offence of “drive whilst disqualified unlicensed driving” he was convicted of on 22 September 2015, he received a sentence of six months concurrent imprisonment, and another concurrent term of imprisonment for “refuse undergo breath test” on the same court date, as well as his licence being cancelled and a five-year driving disqualification. These sentences are a further indication of the serious nature of this type of offending.
As I outlined above in the section on the Applicant’s offending history, the Applicant has been sentenced to numerous terms of imprisonment (para 8.1.1(1)(c) of Direction No 90). When sentencing the Applicant on 9 March 2016, Her Honour Judge Lawson stated that:
The charges are serious and that is reflected in the maximum penalty that I could impose and that is ten years’ imprisonment with respect to criminal damage, five years’ imprisonment for common assault and two years’ imprisonment for breach of Family Violence Intervention Order.
Although the Applicant received sentences that were significantly less than these maximum penalties, Her Honour’s comments nevertheless reflect the seriousness of the offending. However, as this offending constitutes crimes of a violent nature against a woman, I can, and do, regard them as being serious, regardless of the sentence imposed. The same can be said for the “recklessly cause injury” offence for which the Applicant was sentenced to 15 months imprisonment on 22 September 2015 because it was a violent assault committed against the Applicant’s former partner. That is, it is serious regardless of the sentence imposed.
The Applicant was first sentenced to suspended terms of imprisonment when he was 21 years of age on 24 May 2010 and 5 November 2010. However, a custodial sentence was restored on 29 August 2011, when the Applicant was 22 years of age, because he breached the suspended term of imprisonment by committing three unlicensed driving offences. From that time, when the Applicant was aged 22 to 26 years of age, the courts began to impose terms of imprisonment at each court appearance. Sentencing is often used as a last resort, particularly for a young person such as the Applicant. In the Applicant’s circumstances, I find that it is indicative that the courts regarded his offending as sufficient to warrant custodial sentences of imprisonment. This includes the four-month concurrent terms of imprisonment for offences including three charges of “resist police” and “assault police”. Although for a relatively short term of four months, I find that the imposition of a sentence of imprisonment is indicative of the seriousness of this type of offending.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant offended frequently over a period of approximately nine years. During this time, he committed multiple driving and criminal offences, including numerous violent offences interspersed throughout his criminal history, and family violence offences. I also find that overall, the Applicant’s offences have slightly increased in seriousness, because they culminated in serious family violence-related offending, including the “recklessly cause injury” offence on 3 January 2015 offence for which the Applicant received his longest sentence of imprisonment.
I also consider that there is a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and sentences of imprisonment, including breaches of suspended sentences and several breaches of bail. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
There is no evidence before me to suggest that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending, such as on incoming passenger cards (para 8.1.1(1)(f) of Direction No 90).
However, the Applicant has re-offended after being formally warned (para 8.1.1(1)(g) of Direction No 90). On 5 December 2013, when the Applicant was 24 years of age, he was issued with a notice of intention to consider cancellation of his Visa on character grounds under s 501(2) of the Migration Act due to his criminal offending. A delegate of the Minister decided not to cancel the Applicant’s Visa, and in a letter dated 12 February 2014, gave him the following warning bold text:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
The problem, however, with this written warning, is that although the Applicant signed his name on an acknowledgment of receipt dated 19 February 2014, he cannot read and write. The Applicant’s evidence was that he received the letter while he was in prison and he did not understand what the document meant. It was not explained or translated to him (transcript/59-60). His evidence at the 2020 hearing concerning this warning was slightly unclear because the Applicant appears to state he did not receive a warning, and then appears to say that the warning was explained to him by border force officials. The evidence was (R4/28-29):
MR THOMAS: Okay. And you were given a formal warning on 11 February 2015. Do you remember receiving that?
APPLICANT: 11 February 20 and?
MR THOMAS: 15.
SENIOR MEMBER: 2014 I think it was.
APPLICANT: 2014, okay. I remember the date, but I was not given a warning, I was just picked up from the prison and I was taken away, that's why I know. I have not been given any warning.
MR THOMAS: Are you able to read documents in English?
APPLICANT: Now I don't, I don't (indistinct) responsibility of the prison. If I need something I will go and ask them they will be the one to explain it to me.
MR THOMAS: Do you remember them explaining that to you?
APPLICANT: Yes, they told me, I think they were from the (indistinct) border forces. They were in uniform. Yes.
MR THOMAS: So, you remember someone in uniform explaining to you that you were receiving a warning about the cancellation of your visa? Have I understood you?
APPLICANT: That was in June, I was prepared myself to go and collect my items from the counter for that, because I was released, and that was in June. Then I went and found them outside, and they picked me up from there.
My interpretation of this evidence is that the Applicant clearly stated that, “I was not given a warning, I was just picked up from the prison and I was taken away, that's why I know”. His subsequent acknowledgment of border force officials giving him an explanation most likely occurred when he was collected by border force and taken into immigration detention at the end of his prison sentence. There is a similar unclear exchange regarding this warning during cross-examination (R4/53-54). During re-examination at the 2020 hearing, the Applicant said he asked one of the other inmates to explain the letter to him in English, but that he could not understand the explanation. The Applicant further referred to another inmate explaining it to him in Arabic, but the transcript indicates the audio was unclear, and so I cannot ascertain whether the Applicant understood that explanation, and if he did, to what extent (R4/73). Consequently, I accept the Applicant’s evidence, and accordingly, I do not regard him as having been effectively warned. I therefore do not draw any adverse inference from the Applicant reoffending after receiving a warning that he could not read or understand.
In summary, I find the Applicant’s offending, particularly his numerous offences involving violence and family violence to be very serious. I also regard his driving offences as being serious. He has committed some less serious offences, such as offences involving dishonesty, but overall, I find that his offending is serious. This finding is based on the nature of the offending (which, as I have stated, included violence and family violence), the frequency of the offending and its cumulative effect, the remarks of the sentencing Judge and Magistrate about the seriousness of the offences they sentenced the Applicant for, and the numerous sentences of imprisonment imposed despite the Applicant’s young age.
Accordingly, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen 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).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Applicant has convictions for violent offences including “common law assault”, “unlawful assault”, “assault police”, “assault with weapon”, “assault with instrument”, “recklessly cause injury” and “recklessly cause serious injury”. The harms that could result to members of the Australian community if the Applicant was to re-offend in a violent manner, including domestic violence offences, could include psychological harm, serious physical injury, impairment or even loss of life.
The Applicant also has two convictions for contravening a FVIO in 2011 and 2016. Restraining orders are in place to protect the safety of those protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach. Indeed, when the Applicant breached the FVIO in 2016, he assaulted his former partner who was the person protected.
Should the Applicant commit further driving offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possibly psychological harm.
The Applicant has also committed offences of a general nature including dishonesty and property offences, such as “criminal damage”, “theft of a motor vehicle”, “retention of stolen goods” and “robbery”. Broadly speaking, offences against property are less serious than offences against persons, but such offences can also result in psychological and financial harms to victims, as well as contributing to increased costs for businesses including insurance premiums which are ultimately passed on to consumers.
The Applicant has numerous offences which involve failing to cooperate with police including “refusing to undergo breath test”, “resist police”, “state false name” and “refuse to accompany police for breath analysis”. He also has several charges for “fail to answer bail granted”. Whilst these offences are of a minor nature, they make it more difficult for police to perform their functions, including community policing, and waste the time and resources of police and the courts which can detract from their service to the Australian community.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
Unfortunately, there is no formal psychological risk assessment before me, such as from a psychologist, regarding the likelihood of the Applicant re-offending.
The Applicant has an extensive criminal history. He has committed multiple offences over a period of approximately nine years. He has committed many of the same offences again, and has not been deterred by penalties, including suspended sentences, prison sentences and licence cancellations and disqualifications being imposed on him. He has also offended whilst being on bail, which included an assault on his former partner and a contravention of a FVIO. His history of offending, and his offending whilst subject to bail conditions and a FVIO is of concern and suggests some likelihood of his reoffending in the future.
The Applicant could not recall the details of much of his offending but claimed that he did not commit some of the offences he was convicted of. At the 2020 hearing he stated (R4/50):
MR BROWN: … there are a number of violent offences in your criminal history. Can you explain to the tribunal why you have offended in a violent way on so many occasions?
APPLICANT: … yes, in my criminal history, yes, there has been some violence, yes. Some of those violence of course were committed by me but some were not by me. The police just happened to come and find me in the area where incidences happened.
The Applicant also minimised aspects of his domestic violence offending, and placed blame on the victim. When asked about the breach of FVIO in 2011, the Applicant stated (R4/52-53):
MR BROWN: All right. Now, one other question about the matters that were dealt with in Heidelberg Magistrates Court on 29 August 2011 and that relates to a charge of contravening a family violence order. Do you remember the family violence order in 2011?
APPLICANT: Yes, Member, I remember that because that involved the young woman that I was living with and that was actually my house and then she went on to create all those things that I have violated the restraining order.
MR BROWN: So what happened to cause a family violence restraining order to be imposed in the first place?
APPLICANT: Yes, what started it all was that I did have some friends that come home and she start complaining because she doesn't like my friends coming around and that's what caused an argument. And when I object to her demand that my friends cannot come because they were making noise, that's what trigger her calling the police. And when the police came I was asked to leave and that's what occurred then.
MR BROWN: What was involved that resulted in a breach of the family violence intervention order?
APPLICANT: … as I mentioned earlier the house was mine and when the intervention order was put in I was to go and object that because the house was mine and because I haven't objected and I didn't appeal, so it was imposed because I did not come to the court to object that. And when it was imposed for my non-attendance so it came into the system that I should not - maybe I've accepted that. I don't know how to explain. And I wasn't actually aware of it, so when this woman later on called the police because you know the women with all the jealousy and all that, so the police later on said that I have breached the thing but the reason that I breached it was that was my house and she was still coming and call the police, and then I end up being the one that breached the order.
The UNHCR Report refers to the targeting of civilians based on ethnicity, by government forces and armed militias. It states, at [185]:
For the second successive year, across several regions in the country, the Commission recorded a sustained intensification in attacks against the civilian population by armed groups and militias organised and mobilised along ethnic lines, often with the support of armed state and opposition forces. Between February 2020 and January 2021, the Commission reported intense and protracted armed fighting between ethnic groups in Jonglei State, Warrap State, and Greater Pibor Administrative Area. These incidents of violence generated a context where gross human rights violations and abuses were committed with a total disregard for human life. Armed attacks against civilians were lethal and highly destructive, resulting in massive killings, including of eight humanitarian workers in Jonglei and GPAA. Other violations and abuses included torture; sexual violence, forced displacement, arson, and the unnecessary destruction of civilian property including homes, boreholes, water treatment installations, crops, food storage warehouses, and properties of international and non-governmental organisations, looting, abductions, and enforced disappearances.
With respect to security threats from militia and vigilante groups, and the lack of effectiveness of law enforcement for protection, the UNHCR Report states, at [190]-[191]:
The on-going violence has resulted in dire insecurity and a humanitarian crisis in most parts of the country, creating an environment where there is an ongoing risk of the commission of gross human rights violations and atrocity crimes. Of greatest concern is the further proliferation of arms in the hands of the militia and vigilante groups that have become a law unto themselves.
The prevailing situation is undoubtedly compounded by the lack of a functioning governance system or state authority and effective law enforcement mechanisms at the sub-national level to guarantee the protection of civilians from gross human rights violations and atrocity crimes. This is primarily due to the Government’s failure to implement state and local level governance, and the incapability of intervening to prevent and address the violence. The Transitional Security arrangements envisaged under the R-ARCSS have not been implemented, and consequently there is no clear structure for security sector governance. Security forces come under the purview of multiple government departments with unclear, or absent, civilian oversight. In the absence of state and local government authority, communities feel justified in taking up arms to defend themselves through militia and vigilante groups, or in collaboration with armed state and opposition forces.
The United States Department of State 2020 Country Reports on Human Rights Practices: South Sudan (USDOS Report) referred to security force abuses including forced recruitment into combat roles:
Security force abuses occurred throughout the country. Despite isolated examples of prosecution for these crimes, impunity was widespread and remained a major problem.
Nongovernment armed groups, including the forces of peace agreement signatories and other opposition armed groups alike, also perpetrated serious human rights abuses, which, according to the United Nations, included unlawful killings, abduction, rape, sexual slavery, and forced recruitment of children and adults into combat and noncombat roles.
The USDOS Report also documented the targeting of civilians based on their ethnic identities. It states:
Since the conflict between the government and opposition forces began in 2013, security forces, opposition forces, armed militias affiliated with the government and the opposition, and civilians committed conflict-related abuses around the country. While both government and opposition forces committed abuses, the United Nations and international NGOs reported government forces were responsible for a significant range of conflict-related abuses against civilians. Government soldiers reportedly engaged in acts of collective punishment and revenge killings against civilians assumed to be opposition supporters, and often based on their ethnicity, particularly in greater Equatoria.
In February the UN Commission on Human Rights in South Sudan reported on a pattern of deliberately targeting civilians based on their ethnic identity, including obstruction of humanitarian aid, and concluded government forces were responsible for acts that may constitute war crimes and crimes against humanity.
The USDOS Report details the prevalence of interethnic clashes:
Interethnic fighting and violence by government, opposition forces, and armed militias affiliated with the government and the opposition targeting specific ethnic groups resulted in human rights abuses … The country has at least 60 ethnic groups and a long history of interethnic conflict. Ethnic groups were broadly categorized into the Nilotic (Dinka, Nuer, and Shilluk ethnic groups), Nilo-Hamitic, and Southwestern Sudanic groups. For some ethnic groups, cattle represented wealth and status. Competition for resources to maintain large cattle herds often resulted in conflict. Long-standing grievances regarding perceived or actual inequitable treatment and distribution of resources and political exclusion contributed to conflict.
Interethnic clashes occurred throughout the year. Insecurity, inflammatory rhetoric--including hate speech--and discriminatory government policies led to a heightened sense of tribal identity, exacerbating interethnic differences.
There is minimal country information with respect to the targeting of foreigners. The Applicant’s legal representatives cited an online news article by John Tanza, titled ‘South Sudan Blocks UN Peacekeepers from Volatile Areas’ (14 June 2021), which states that UN Peacekeepers are being blocked from some areas, and which refers to a “recent spike in road ambushes”. However, it is not an authority for the targeting of foreigners. They also refer to the DFAT travel advice which currently advises “Do not travel to South Sudan, including Juba, due to instability and ongoing conflict”. It refers to “reports of violent threats against UN personnel on social media and an increase in anti-foreigner sentiment” due to COVID-19 and warns:
Fighting and instability continues across the country. The situation is volatile and can worsen without warning. Border areas are especially dangerous. If you're in South Sudan, leave as soon as possible.
…
Kidnapping, murder, shootings, home invasions, armed robbery, carjacking and sexual assault are common throughout South Sudan, including in Juba. Get professional security advice. Petty crime, such as theft and fraudulent currency exchange, is common. Safeguard your belongings.
Based on the available country information, including that which I have outlined above, I am satisfied that it is likely that Australia’s international non-refoulement obligations are engaged with respect to the Applicant. I note that the Applicant’s specific claims would be considered more fully in a protection application, and that a decision-maker in a protection application may reach a different conclusion.
Based on the information before me, it appears likely that if the Applicant returns to South Sudan there may be a real risk that he will face significant harm or persecution such as harassment, assault, arbitrary detention, forced recruitment into a militia, torture or death. This is likely to be because the Applicant lacks any tribal affiliations to provide him with protection or support. He does not know the customs, cannot speak Dinka and therefore cannot identify himself as Dinka, despite Dinka being the dominant ethnicity in Juba. Alternately, he may be perceived as someone of Nuer ethnicity in Juba, or as a foreigner. I accept that if he is perceived as a foreigner, he is likely to be alienated in all parts of the country where clan affiliations play an integral role in society. His lack of language skills, lack of connections, and lack of knowledge of local custom, are likely to make it difficult, if not impossible, to find employment, and to subsist. The harm that the Applicant would face may be inflicted by the authorities, members of society, and possibly militia or political groups.
As it is likely that Australia owes the Applicant non-refoulement obligations, this consideration weighs in favour of the revocation of the Cancellation Decision.
I have also, as directed by paragraph 9.1(2) of Direction No 90, weighed Australia’s non-refoulement obligations against the seriousness of the Applicant’s offending. This was evaluated in detail above under the “nature and seriousness of the conduct” part of the first primary consideration, which weighed strongly against revocation of the Cancellation Decision. The Applicant has many violent offences (including domestic violence offences) that can be regarded as serious, and also very serious. However, on balance, given the serious nature of the harm that the Applicant may face if returned to South Sudan, I find that this consideration weighs very strongly in favour of revocation of the Cancellation Decision.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 32 years of age. At the 2020 hearing his evidence was that he was in good health, was fit, plays sport and was not on any medication (R4/68-69).
Although there is no formal evidence of any mental health diagnosis before me, I am concerned about the Applicant’s state of mental health. This is due to the Applicant’s apparent hopelessness at the 2021 hearing, and his frustration and distress, even when asked questions by his own counsel. Put colloquially, it appeared to me that the Applicant had “given up the fight”, as demonstrated by his inability to participate in his own hearing. I have no doubt that the Applicant’s prolonged detention and previous unsuccessful appeals have taken their toll on him. Additionally, as I have noted above, the Applicant had a traumatic upbringing including experiencing harsh conditions and physical abuse in the refugee camp in Egypt, and this trauma does not appear to have been treated.
The Applicant fears that he will face harm, including that he will be killed, if he is returned to South Sudan. He also fears being separated from his family, including his mother, who relies on him. These fears are likely contributing to his distressed mental state.
The DFAT Report states, at 2.17, that:
South Sudan’s population has extremely poor access to health care. Accurate data prepared by the Government on health indicators is often non-existent or outdated. According to data collected prior to the outbreak of conflict in December 2013, South Sudan ranked 169th out of a total of 187 countries on the UN Development Programme’s 2015 Human Development Index.
The Applicant referred me to the following article, Joseph Lou K Mogga, ‘The mental health treatment gap in South Sudan’, South Sudan Medical Journal (February 2019), concerning mental health treatment in South Sudan (Annexure A to Applicant’s SFIC, para [57]):
South Sudan has one of the largest mental health gaps in the world. The World Health Organization (WHO) estimates that during humanitarian emergencies, rates of mental health disorders can increase up to 4% for severe conditions and up to 20% for mild to moderate disorders requiring care and support. South Sudan Health Cluster projections estimated that 5.1 million people are affected by the ongoing humanitarian emergency in the country. This amounts to an estimated 204,000 people with severe and 1,020,000 people with mild to moderate mental health conditions in South Sudan. This could be imputed to conditions resulting from the humanitarian situation. In contrast, current humanitarian efforts by various partners are reaching less than 10,000 persons per year (1%). Therefore, the estimated mental health treatment gap among the population of humanitarian concern is a staggering 99%.
(Footnotes omitted.)
Taking this information into consideration, as well as his past addiction issues, I am concerned about the Applicant’s mental health which I am reasonably satisfied would further deteriorate if he were to be removed to South Sudan.
South Sudan is an unfamiliar country for the Applicant. He was not born there and has never been there. He was born in Khartoum which is in Sudan. He satisfies the criteria for South Sudanese citizenship by birth because his parents were born there. The Applicant does not know anyone in South Sudan. He has two sisters in Sudan. He does not know exactly where his two sisters are, and his evidence was that he had not spoken to them since before he went to prison in 2015 (R1/335). I therefore find that they are unlikely to be able to provide him with assistance and support if he was sent there and that he has no other family or other social contacts there.
I also find that there would be substantial cultural and language difficulties for the Applicant if he were removed to South Sudan. He has lived in Australia for half of his life since he was a 16-year-old teenager. He would be returning to a country with significant social and political issues, including generalised violence. I note that the information about South Sudan that is before me indicates that despite some improvement in the political situation, tensions remain high, continued efforts to stop a resurgence are required and there continues to be conflict and sub-national violence (R2/561-562; 582-585). For a person such as the Applicant who has lived in Australia for half of his life, this would be a very difficult environment to adjust to.
Additionally, and significantly, the Applicant cannot speak any of the local languages including Juba (Equatorial) Arabic, Dinka, Nuer or other tribal languages. He only speaks English and Sudanese Arabic. He cannot read or write in any language. The Respondent made submissions about the Applicant’s Dinka ethnicity being an advantage to him in adapting to life in Juba where the Dinka-majority government is based (see Respondent’s Concluding Submissions, para [105]). I reject this submission because the Applicant’s Dinka ethnicity would be of little assistance to him in circumstances where he cannot speak the language. Consequently, I agree with the following submission from the Applicant (Annexure A to Applicant’s SFIC, para [42]):
While Dinkas constitute a majority in Juba and within central government and military, the applicant’s inability to speak Dinka language means the applicant will have no way to identify himself as Dinka in order for him to receive that protection. As a result, he will not benefit in any way from the any possible [sic] advantage of living in Juba with a Dinka-majority government and population. Recent country information (extracted below) recounts how important tribal languages are to establishing connections and identifying one’s self in military contexts. As a result the Applicant will be unable to integrate himself with the Dinka portion of the population in Juba if he cannot communicate with them nor identify himself as their kin.
The Respondent has also submitted that there has been an improvement in the economic situation in South Sudan which may give rise to opportunities for the Applicant to secure employment. Other information before me suggests that the economic recovery was “derailed in 2020 by locust invasions, floods and the COVID-19 pandemic” (R2/571), and that there is “widening poverty and food insecurity at a household level” (R2/575, 584). Again, even if I were to accept that there had been economic improvement in South Sudan, the Applicant has limited work experience, a limited education, cannot read or write, and cannot speak any of the local languages. In my view, these factors, together with the language barriers the Applicant would face, would make it extremely difficult, and perhaps prohibitive, for the Applicant to be able to obtain employment and to support himself. I also note that “South Sudan does not have a formalized welfare system of any meaningful sort” (Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020 cited by Senior Member Kirk in DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3228 at [177]). Further, the primary means of support for people of working age who are inactive in the labor force is support from their families (World Bank Group Jobs, Jobs Working Paper Issue No. 50, Job Outcomes in the Towns of South Sudan: Jobs, Recovery, and Peacebuilding in Urban South Sudan – Technical Report 1 at R2/520). However, the Applicant has no family support or social connections he would be able to seek support from (R2/520).
Overall, I find that are likely to be substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing himself in South Sudan and maintaining basic living standards. Therefore, I find that this consideration weighs very strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers 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 a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Except for a sister in Egypt and two sisters in Sudan all the Applicant’s immediate family reside in Australia on a permanent basis. These family members include his mother, five adult brothers and their families. They also include his 16-year-old half-brother B, and his nephews and niece YA, YB and AT. However, I have already separately considered their interests in the best interests of children primary consideration above.
The Applicant’s adult younger brother, SA, gave evidence at the 2020 hearing that he would be detrimentally affected if the Applicant was removed from Australia. His evidence was that the Applicant’s relationship with his family members is a very close one. He described the Applicant as being a kind of father figure whom he relied upon for advice and emotional support, and that a lot of the burden of assisting to support his mother, both financially and emotionally, and helping with his younger siblings has fallen on him (R4/86 and 88). SA stated in his written statement dated 9 December 2020, that he tried his best to care for his mother and to assist her, but he is suffering from insulin dependent diabetes and that his health “isn’t always the best”. In this regard, I note that at the time of the 2020 hearing SA described being hospitalised for a week due to difficulties regulating his insulin levels (transcript/88). I accept that SA has been struggling without the help of the Applicant and I accept that he will suffer emotional, and possibly financial detriment, if the Applicant is removed from Australia.
The Applicant’s mother also gave evidence at the 2020 hearing about the supportive role that the Applicant played in the family. She suffers from health issues including issues with her spine, knees and shoulder. She described being admitted to hospital “multiple times” including for 18 days in 2013. While she was in hospital, the Applicant cared for his siblings. The Applicant’s mother stated that, even when she was at home, she relied on him heavily to undertake tasks such as cooking, cleaning, preparing school lunches for his younger siblings, washing, ironing, taking his younger siblings to school and to sporting activities due to the limitations of her health conditions. Her evidence was that SA was not able to help her very much due to his own health issues and that she sometimes seeks help from relatives or neighbours. The Applicant’s mother described life as being “really, really difficult” since he has been gone. She also referred to the Applicant being like a father figure to his younger siblings and described him assisting with their upbringing and encouraging them (R4/96, 100-102). She is relying on the Applicant coming back to live in the family home so that he can continue to provide her with support and assistance, including emotional and financial support. The Applicant’s mother fears for his safety if he is returned to South Sudan and said she would be “heartbroken” if he were removed from Australia, and that she would not know how to cope if he were removed from Australia. Accordingly, I find that the Applicant’s mother will suffer significant emotional and financial detriment if he is removed from Australia.
The Applicant has resided in Australia for a period of approximately 16 years, being half his life, having arrived in Australia in December 2005 as a teenager when he was 16 years old. His first offences were committed approximately two years after his arrival. Therefore, it can be concluded that the Applicant began offending soon after arriving in Australia.
The Applicant has also spent minimal time positively contributing to the community. He has numerous criminal convictions and approximately half his time in Australia has been spent in prison or immigration detention. He was employed at a meat factory between 2007 and 2008, worked in a wood factory for approximately five months in 2010, a plastic factory, and another meat factory from 2010 to 2012. I therefore find that he has made some, albeit minimal, positive contributions to the community through his employment.
In summary, I find that the removal of the Applicant from Australia would have a significant detrimental impact on his family members in Australia, particularly his mother, and his brother SA. Further, I find that the Applicant’s ties to Australia are very strong and that he does not have ties to any other country, including South Sudan, a country he has never been to.
I give less weight to the Applicant’s ties to the Australian community because he began offending soon after arrival and has made minimal positive contributions. However, even after doing so, I nevertheless find that his ties are strong.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the following relevant primary considerations in Direction No 90:
(a)the protection of the Australian community primary consideration weighed strongly against the revocation of the Cancellation Decision;
(b)the family violence primary consideration weighed strongly against the revocation of the Cancellation Decision;
(c)the best interests of the Applicant’s 16-year-old half-brother B weighed strongly in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s nephews, 11-year-old YA and eight-year-old YB, weighed moderately in favour of the revocation of the Cancellation Decision. The best interests of his two-year-old niece, AT, weighed slightly in favour of the revocation of the Cancellation Decision; and
(d)the expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant:
(a)it is likely that Australia owes non-refoulement obligations to the Applicant, which weighed very strongly in favour of the revocation of the Cancellation Decision;
(b)the extent of impediments if removed also weighed very strongly in favour of the revocation of the Cancellation Decision; and
(c)the Applicant’s links to the Australian community weighed strongly in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Thus, despite three of the primary considerations (the protection of the Australian community, family violence committed by the non-citizen and the expectations of the Australian community) weighing strongly against the revocation of the Cancellation Decision, I find that they are outweighed by the other considerations that weigh very strongly, and strongly, in favour of revocation of the Cancellation Decision. These are Australia’s international non-refoulement obligations, the extent of impediments if removed, and links to the Australian community, and the best interests of the Applicant’s 16-year-old brother. The best interests of the other minor children further add to the weighing exercise being in the Applicant’s favour.
I find that the primary and other considerations that weigh in the Applicant’s favour (particularly the considerations of non-refoulement, the extent of impediments if removed and his ties to the Australian community) are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane). In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 9 October 2020 not to revoke the cancellation of the Applicant’s Visa, is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 311 (three hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
............[Sgd].........................................................
Associate
Dated: 14 April 2022
Date of hearing: 7 and 8 December 2021 Representative for the Applicant: Mr S Thomas instructed by Mr Hewaarachchi, Refugee Legal Representative for the Respondent:
Mr D Brown, The Australian Government Solicitor
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