PKZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 5190
•23 December 2020
PKZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5190 (23 December 2020)
Division:GENERAL DIVISION
File Number: 2020/6314
Re:PKZM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:23 December 2020
Place:Melbourne
The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held refugee visa - visa – visa cancelled under s 501 of Migration Act as applicant sentenced to period of at least 12 months’ imprisonment - applicant concedes unable to pass character test – what is country of reference of applicant – finding that he is South Sudanese National – consideration of whether another reason under Act to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No. 79 – Part C – primary considerations – other considerations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss, 33, 33A, 35
Migration Act 1958, ss 499, 501, 501CA
The Nationality Act 2011 (South Sudan)
The Sudanese Nationality Act 1984 (Sudan)
The Sudanese Nationality Act (Amendment) 2011 (Sudan)
Transitional Constitution of the Republic of South Sudan 2011 (South Sudan)Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338Secondary Materials
DFAT Country Information Report South Sudan – 5 October 2016Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
23 December 2020
The Applicant was born in Khartoum in the Republic of Sudan in April 1989 of parents who were both born in what, since 2011, has been the Republic of South Sudan. At the end of 2005 he arrived in Australia on a Global Special Humanitarian (Class XB) (Subclass 200) Refugee (Permanent) visa, accompanied by his mother and six younger siblings. He was then aged 16.
On 4 May 2016 the Applicant’s visa was cancelled by reason of him having been sentenced by a Court to imprisonment for a period of 12 months or more under section 501(3A) of the Migration Act 1958 (the Act) and him being incarcerated on a full-time basis at that time. The Applicant made representations to the Respondent seeking revocation of the visa cancellation decision.
On 3 May 2017 the then Assistant Minister responsible for the Act decided not to revoke the visa cancellation decision. That decision was set aside by the Federal Court of Australia (the Federal Court) by consent on 4 December 2017. Further representations were made by the Applicant and on 3 July 2018 and the then Assistant Minister again decided not to revoke the visa cancellation decision. The Applicant took that decision to the Federal Court where it was dismissed by a single judge.
On 25 June 2020 the Full Court of the Federal Court of Australia (the Full Court) set aside the Assistant Minister’s cancellation decision and remitted it for fresh determination. The majority of the Full Court held that the Assistant Minister had failed to give meaningful consideration to representations made by the Applicant that it was not safe for him to return to South Sudan and in relation to indefinite detention.
On 9 October 2020 a delegate of the Minister decided not to revoke the visa cancellation decision, and the Applicant was advised of this decision on 12 October 2020. This is the decision which is now before the Tribunal for review.
Submissions were made by the Respondent that the Tribunal should make an order under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant. Such an order was made on 12 November 2020. In these reasons he will be described by the anonym ‘PKZM’ and certain other details which might tend to identify the Applicant, or members of his family, will be anonymised.
The Tribunal held a hearing on 15 and 16 December 2020 by video conference under section 33A of the AAT Act, owing to the current public health emergency. PKZM was represented by Mr Simon Thomas of counsel, instructed by Mr Virajith Hewaarachchi of Refugee Legal. The Respondent was represented by Mr David Brown of The Australian Government Solicitor. PKZM gave evidence and was cross-examined. The Applicant’s half-brother, AB, and his mother, AM, also gave evidence. The Tribunal appreciates the assistant provided by interpreters in both Sudanese Arabic and the Dinka languages.
The Tribunal admitted into evidence a statement by PKZM dated 27 November 2020 (Exhibit A1); a further statement of the PKZM dated 10 December 2020 (Exhibit A2); a statement of AM dated 9 December 2020 (Exhibit A3); a statement of AB dated 9 December 2020 (Exhibit A4) and two certificates of completion of courses by PKZM dated 26 June 2017 and 10 July 2017 (Exhibit A5).
The Respondent tendered a volume of ‘GD’ documents (Exhibit R1) and a volume of supplementary ‘GD’ (SGD) documents (Exhibit R2).
Both parties submitted Statements of Facts, Issues and Contentions (SFIC). The Applicant’s SFIC had an annexure titled ‘Submissions and country information in relation to Australia’s non-refoulement obligations and impediments upon return to South Sudan’. At the conclusion of the hearing, the Tribunal gave leave for written closing submissions from both parties. All these documents were considered by the Tribunal.
Threshold question – what is the citizenship of PKZM?
Mr Thomas submitted that the Applicant is “at present a stateless person”. In the Applicant’s SFIC it was submitted:
The applicant was born in Sudan (Khartoum) but identifies as South Sudanese. He satisfies the criteria for South Sudanese citizenship by birth. Further, he is considered a South Sudanese citizen by default, as a result of an amendment to the Sudan Nationality Act 1994 that was adopted in August 2011, according to which any individual who, “de jure or de facto,” acquires the nationality of South Sudan automatically loses Sudanese nationality.
In the Respondent’s SFIC Mr Brown concurred with this analysis and also cited the South Sudanese Nationality Act 2011 which provides that anyone, whether living in South Sudan or not, with a parent or grandparent who had been born in South Sudan automatically acquired South Sudanese citizenship by birth.
In the hearing, Mr Thomas explained that the reference to PKZM being ‘stateless’ is because while both parties agreed that he was entitled to South Sudanese citizenship, there may be administrative processes to undertake to acquire that citizenship which PKZM, having left Sudan as a young child and gone to live in a refugee camp in Egypt with his mother and siblings and then moving to Australia, had not undertaken.
Consideration of country of reference of PKZM
In her oral evidence, the Applicant’s mother, AM, told the Tribunal that she was born in Malakal. Malakal is the second-largest city in what is now the Republic of South Sudan, second only to the capital, Juba. She said that her late husband, the father of PKZM, was also born in Malakal. AM said that her late husband moved to the north of Sudan when he was three years of age, as an adult subsequently joined the military and was killed in the civil war in that country. AM said she and her family moved from Malakal to Khartoum when she was aged 10. She met her first husband in Khartoum, was married there, and all their children were born in Khartoum. After the death of her first husband, AM had three more children with her second husband, the first (AB) when she was still in Khartoum and two more sons (AY and AZ) when she was living in Cairo in the refugee camp. AM said that she and her first husband were both Dinka.
On 9 July 2011, Sudan was geographically split when the new independent state of the Republic of South Sudan came into being. The Sudanese Nationality Act 1994 (Sudan) as amended by The Sudanese Nationality Act (Amendment) 2011 (Sudan) states, at section 10(2):
Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
The Tribunal, exercising the power under section 33(1)(c) of the AAT Act, obtained a copy of an English translation of The Nationality Act, 2011 (South Sudan), (South Sudan Nationality Act) printed and published by the Ministry of Justice at Juba and dated 7 July 2011. Section 5 of the South Sudan Nationality Act is the Interpretation clause, and provides that:
“South Sudanese National” means a person who satisfies the eligibility criteria provided under Chapters III and IV of this Act.
Chapter III of the South Sudan Nationality Act relates to Nationality by Birth and section 8(1) of that Act states:
A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
Section 9 states:
Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Tribunal accepts the evidence of AM that she and her first husband were born in what is now South Sudan, of parents who were Dinka. That being the case, applying section 8 of the South Sudan Nationality Act, PKZM “shall be considered” a South Sudanese National under the law of that country.
The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011. It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
The Tribunal does not accept Mr Thomas’s submissions that PKZM is ‘stateless’. The South Sudanese Act is declarative – it confers South Sudanese citizenship on persons with a parent, grandparent or great-grandparent who were born in South Sudan, and persons fulfilling these criteria are not required on the face of the Act to take any further administrative action. The Tribunal’s conclusion in this regard is reinforced by section 9 of the South Sudanese Nationality Act which requires the relevant South Sudan Government Minister to issue a Certificate of Nationality to a person who is a South Sudanese National by birth by force of section 8.
The Minister does not have discretion in providing such documentation in a case where a person fulfils the requirements of being a South Sudanese National by birth and a certificate is not a precursor to South Sudanese citizenship, it is simply proof of it for an individual within one of the legislated categories. There were no submissions from the Applicant, or any other evidence, that PKZM had renounced or sought to renounce South Sudanese citizenship, on the contrary his own submissions were that he identified as South Sudanese, albeit he has never resided there.
Considering the provisions of both the Transitional Constitution provisions and the South Sudanese Nationality Act set out above, the Tribunal is comfortably satisfied that PKZM is a South Sudanese national and was a South Sudanese national at the time the delegate made the decision that is the subject of this review.
For completeness, it would appear from the 2011 amendment to the nationality laws of Sudan that persons who may have had Sudanese citizenship who then are, or become South Sudanese Nationals, lose their Sudanese citizenship.
Finding on country of reference:
The Tribunal finds that PKZM is a citizen of the Republic of South Sudan and has been so since 2011.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (the ‘Act’) is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act 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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that PKZM does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, per North ACJ at [38]).
Evidence in relation to the character test
At GD p 34 was a National Police Certificate dated 7 April 2016. It stated that in late 2015 PKZM was convicted by the Magistrates’ Court of Victoria of the offence of Recklessly cause injury, for which he received a sentence of 15 months’ imprisonment. On the same date PKZM was convicted of the offence of Refuse [to] undergo breath test, for which he received a prison sentence of 6 months, to be served concurrently, his driver licence was cancelled, and he was disqualified from driving for five years. He was also convicted of the offence of Drive whilst disqualified – unlicensed driving, for which he received a sentence of 6 months’ imprisonment, to be served concurrently, and convicted of the offence of Retention of stolen goods and fined $400.
Finding in relation to character test
On the evidence the Tribunal finds that PKZM does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections 501(6)(a) and (7)(c), because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. I note that both parties conceded that the Applicant did not pass the character test set out in the Act.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of PKZM’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
CRIMINAL HISTORY
Apart from the convictions in September 2015 referred to above, PKZM has a regrettably substantial criminal history in Australia. His first appearance before the Courts was in June 2007, before the Children’s Court in Victoria, on a relatively minor matter. He was back before the Children’s Court in November 2007 on nine driving offences which were adjourned without conviction and he was placed on a good behaviour bond and his driver licence cancelled.
In June 2008 PKZM was before the Magistrates’ Court in Victoria on a charge of Assault in company, which was adjourned without conviction. In November the following year he appeared before the Children’s Court on criminal damage, Motor vehicle theft and robbery charges, and two charges of Recklessly cause injury and a charge of Assault with intent to rob. On this occasion the Court convicted PKZM but released him on a Youth Supervision Order. He was also convicted of two charges of Failing to answer bail granted. On the same date he was before the Magistrates’ Court and convicted of Fraudulently using a driver licence, two charges of being Drunk in a public place and two charges of Failing to answer bail granted.
In May 2010, PKZM was convicted of the offence of: Assault with weapon, Affray, Recklessly cause injury, Assault with instrument, Possess controlled weapon without excuse, two charges of Motor vehicle theft and a charge of Theft from a shop. PKZM received his first prison sentence of 3 months’ imprisonment for these convictions but it was suspended for six months.
In November 2010 at the Magistrates’ Court PKZM was convicted of three charges of Unlicensed driving and received an aggregate of 2 months’ imprisonment, wholly suspended for 24 months. He was also convicted of Stating a false name and Failing to answer bail granted, for which he was fined $150.
In August 2011, PKZM was again before the Magistrates’ Court and was convicted of two charges of Recklessly causing injury, for which he was sentenced to 6 months’ imprisonment, 3 months to be served concurrently; Motor vehicle theft, two charges of Driving whilst disqualified, one charge of Refusing to accompany police for breath analysis, one charge of Contravening a Family Violence Intervention Order; for each of these offences he received one month imprisonment cumulative.
He was also charged with another count of Recklessly causing injury and sentenced to a base sentence of 6 months in prison; two charges of Robbery (3 months’ imprisonment, 2 months of which part concurrent), another count of Recklessly cause serious injury (12 months’ imprisonment, 6 months of which part concurrent), one charge of Unlawful assault, another charge of Recklessly causing injury, with a base sentence 6 months’ imprisonment, another count of Recklessly causing injury (6 months’ imprisonment, 4 months part-concurrent), Unlawful assault (1 month imprisonment, concurrent); Robbery (2 months’ imprisonment, cumulative), two charges of Resist police, Refusing to state his name and address, Stating a false name when requested, Theft and Failing to answer bail granted, for which he was convicted and discharged. Three convictions for Unlicensed driving were also called up and the suspended sentence wholly restored, 2 months’ imprisonment to be served. This was the first occasion when PKZM went to prison.
In 2013 PKZM appeared in Court and was convicted of a Drink driving offence (2 months’ imprisonment, concurrent), Driving whilst disqualified (2 months’ imprisonment, concurrent), Recklessly causing injury (6 months’ imprisonment), and Stating a false name (convicted and discharged). As mentioned, the September 2015 convictions are referred to earlier.
In November 2015 the Applicant was convicted before the Magistrates’ Court of the offences of Theft, three charges of Resist police and one charge of Assault police. He received an aggregate of four months’ imprisonment, to be served concurrently with the sentence he was already serving.
In March 2016 PKZM pleaded guilty before the County Court of Victoria (the County Court) for the offences of Contravene Family Violence Final Intervention Order, for which he was sentenced to 56 days’ imprisonment plus placed on a Community Corrections Order for 2 years. PKZM was also convicted of Common law assault, for which he received a 56-day prison term, concurrent, and the offence of Criminal damage, with the intent to damage or destroy. He received a sentence of 14 day’s prison, to be served concurrently, and to pay $160 in compensation in relation to this last offence.
Evidence of PKZM
PKZM gave evidence in Sudanese Arabic through an interpreter. PKZM was first asked about his contact with his mother, AM. He said he speaks to her regularly, sometimes three times a day to make sure everything is ok at home. He explained that AM lives in Melbourne with his three half-brothers AB, AY and AZ. PKZM said that his mother has certain health challenges – problems with her back and a regular issue with her legs, and while she moves about unaided, swelling in her legs means that sometimes she cannot take the three children to school.
PKZM said he lived with AM, AB, AY and AZ before he was taken into custody and from time to time took them to their schools, picked them up and went grocery shopping. He said on occasions when AM’s health issues affected her, he would clean and do laundry ‘when she was unable to carry out daily chores’.
He said he was the ‘elder man’ in the house and would talk to his younger brothers about the importance of pursuing education and encouraged them to take up opportunities he did not have. He said he spoke to AB, AY and AZ and would sometimes discuss with them how to behave when AM raised things with him.
PKZM said that he had two nephews and a niece, the children of another brother. He said he had a good relationship with the two older of these children but had not met the youngest, who had been born since he has been in detention. PKZM said that he had a sister in Egypt but no contact with her.
PKZM said that before he came to Australia, he had no formal education. He briefly attended school in Australia but then left school to start work.
PKZM said he had only lived in Khartoum, had never been to South Sudan and did not know anyone there. In terms of language, PKZM said that he knows there are ethnic languages in South Sudan, but he does not speak any of them, he only speaks Sudanese Arabic and a little English that he had picked up. He said he could not read or write Arabic. The Applicant said he had met some people from South Sudan in Australia who were from Equatoria and found they could not understand each other, so the only language that they were able to communicate in was English. He said he knew some words in the Arabic they spoke but could not hold a conversation with them.
Mr Thomas asked PKZM whether he thought, if he was in South Sudan and working, say, on a construction site, could he understand others speaking South Sudanese Arabic. PKZM said he could not say, because he had not been in that situation.
PKZM said that his mother spoke Dinka to others from South Sudan, but not with him or his siblings. He said he and his brothers could understand a few words of Dinka in a sentence but could not speak the Dinka language.
In answer to a direct question from the Tribunal, PKZM said he identified as Dinka in a tribal sense because both of his parents are Dinka.
PKZM said he could not deny that a large part of his criminal record is linked to his consumption of alcohol. He said he started drinking in 2006 or 2007 when he first started to get jobs and would drink after work with workmates. He said most of his offences were committed when he was under the influence of alcohol. He said sometimes he would find himself in a police cell and would be told he had done certain things, but he would not remember having done them. He said he was drinking to excess.
PKZM said he had not consumed alcohol since 2014 or 2015 when he was taken into custody. He said he had not tested positive for alcohol since then. The Applicant was asked what the longest period was he had gone without alcohol from when he started drinking. He responded that he went into rehabilitation for a complete year and did not drink during that year. When asked why he resumed drinking, PKZM said he was feeling physically and emotionally under pressure and was overwhelmed by the responsibility of working and caring for his siblings and supporting his extended family.
PKZM said that now he realised what a toll drinking has taken on his life, he was confident to say he would not go back to drinking. When asked, if faced with stressful situations in the future, how he would respond, PKZM said ‘I have promised myself and my Mum I would not go back to drinking again. My planning is how to get a better future, to get married and settle down and be a productive person’.
Mr Thomas asked PKZM who would support him in staying sober. PKZM said ‘it would depend on my resolve to keep me out of gaol. I reflected on how it has affected my mother, siblings and sister overseas. I am more mature now and feel very sorry.’ He said that he had discussed the link between his drinking and his offending ‘in 2013-14’ and made promises to AM that he would not go back to drinking. He said he had also spoken to his brother, AB, about what plans he had if released.
PKZM said: ‘What I would say is that I understand the fears of the Tribunal and the community about me because of my offences. I promise I will never go back to that. I’ve served two terms of gaol and the period behind bars (makes me think) drinking and committing crimes is not worth it.’
Mr Thomas asked PKZM what he would do if he was sent to Juba when he arrived there. The Applicant said ‘I don’t know what I can do. I do not know anybody there.’ When asked whether there is anyone at all he could call on to help him, PKZM said ‘No, my sisters are in a refugee camp in Sudan; these are the only people I know.’
Mr Thomas asked PKZM whether he remembered being given a notice in December 2013 by the Department responsible for Immigration of an intention to cancel his visa. PKZM said he remembered that. He was asked whether he remembered a formal warning from the Department in February 2014. He said he remembered the date but did not remember a warning. He said he did remember in June 2014 a uniformed Australian Border Force (ABF) officer explaining to him the warning about his visa.
Under cross-examination, PKZM said he did not remember his father’s disappearance except that he was aged between eight and 10 then. He said he remembered going from Sudan to Egypt in 2002, by which time his mother had a new partner, AH. He agreed that AH is the father of AB, AY and AZ. PKZM said that AH’s ethnicity was Nubian, from the Nuba Mountains. He said AH was a father figure to him at that time.
PKZM said he lived for three years in a refugee camp in Cairo. He said life was difficult because the local hosting community were hostile to the presence of the camp. He said he did not go to school at that time and instead looked for casual work to support the family. He said he was exposed to physical assault and on one occasion had to be taken to hospital because of injuries after he was attacked with a knife, when he was aged around 13 or 14.
PKZM said that AH was living with them at the time but was also working to support the family and some attacks happened during the day when AH was away working. PKZM said that he obtained some casual work in the camp cafeteria cleaning and washing dishes. He also worked as a manservant in an Egyptian household, doing household errands and collecting the children of his employer from school. With the money he made, he said he gave part to AM and used some to buy clothes for him and his siblings.
PKZM said he came to Australia with AM and AH in 2005 and settled in an outer suburb of Melbourne. He said he did not stay at school for long because he said to his mother the allowances the family had were not enough to live on and support his sisters in Egypt and Sudan. PKZM said that AH left the household between 2010 and 2013 because the situation at home had become difficult and the relationship deteriorated, and AH decided to move out. He then said he could not be sure what year AH left.
PKZM told the Tribunal about his history of employment. He said his first job was working in a meat factory between 2007 and 2008. He said he did a variety of jobs, sometimes cleaning, sometimes handling meat. He said he left the job because it was in rural Victoria and AM said he needed to be closer to home to help her with his siblings. He said that in 2010 he started work in a wood factory making picket fence components and worked there for four or five months but left because he witnessed several workplace injuries and found, being tall, the work was hard.
He said that in 2012 he worked for another meat factory, this time in a Melbourne suburb, working with animal hides. After that he prepared a resume and applied for several jobs and was interviewed but had not found employment.
In respect of his other siblings, PKZM said he had three full brothers, all of whom live in Australia. The next oldest to the Applicant, AD, lives in Melbourne, but he did not know which suburb. AD had moved out of the family house before PKZM went to prison. AD has three children. His wife sadly died after a car accident. AD now has a new partner, the mother of his youngest child.
The next brother in terms of age, AE, ‘comes and goes’ according to PKZM. AE has had his visa cancelled and is current in immigration detention. The next brother in age, AF, has had problems with the law and is currently in prison, PKZM said he was unsure how long AF has been imprisoned ‘maybe a year, or a year and a half’.
PKZM said that his oldest half-brother, AB, is now aged 18 and is at home with the younger boys and AM. PKZM said that AB did help around the house but was diabetic and sometimes was not able to do the chores he otherwise would because of this condition.
AB in his statement said that PKZM had good maintenance skills. PKZM said that he had picked them up through observing tradesmen in Egypt and he had been able to hone them when he had access to prison workshops and a prison wood factory. He said he obtained certificates in prison in relation to steelwork, traffic management and how to use wood to manufacture things.
Mr Brown asked PKZM about his drinking and offending. He reiterated that he started drinking in social settings and it began to be a problem, ‘maybe because I was young’. He agreed with the suggestion that there had been violence in his criminal history, ‘some perpetrated by me and some not; the police happened to find me in the place where the incidents happened’.
PKZM was asked about his court appearance in 2011, charged with Recklessly cause serious injury. He replied: ‘Someone got injured. How it happened, I can’t remember. The Court said I inflicted the injury.’ PKZM said he could not remember the particular instance.
In terms of the conviction for Contravening a Family Violence Intervention Order, PKZM said that involved a young woman he was living with at the time. He said that she started complaining about his friends visiting. They had an argument and she called the police. The police came and PKZM said he was asked to leave. He said that the house was his but when the FVO was entered he did not attend the Court and was not aware of it, which led to him breaching it.
PKZM was taken to a document dated 19 February 2014 bearing his signature (GD, p 110) which acknowledged he had received a warning from the Department about his visa. The Applicant said he remembered it but did not know he was going to be put into detention on release from prison. He agreed that he was told that the letter stated the Department had decided not to cancel his visa but warned him not to commit further offences. PKZM said he remembered the warning.
Mr Brown asked PKZM about a violent incident early in January 2015 involving his ex-partner. PKZM said: ‘I can remember exactly what happened. She became very drunk at a friend’s house. She threw herself down. I went to pick her up. Because she was drunk, she called the police and said I struck her. I was trying to stop her hurting herself.’
Mr Brown asked if PKZM remembered that incident being dealt with in Court in September 2015 and on that date, he received 15 months’ imprisonment for the offence of Recklessly causing injury. PKZM said: ‘Yes, I remember clearly. You know women. She was very unhappy. She said I had to come and get things from home. When I came, I couldn’t get in. I went through the back door, took my things and left. This became [an allegation that] I broke in. I didn’t touch her or anything.’
Mr Brown asked PKZM if he remembered that the Magistrate was dealing with a violent offence against his partner that he pleaded guilty for. PKZM said: ‘I admitted I did touch her, but I didn’t assault her. I explained that I broke the door. I just wanted to get over this and turn my life around. I did admit it, it wasn’t assault.’
The Tribunal asked PKZM if he remembered that the Magistrate said he hit his then partner in the garden of the house and then took her inside and hit her more, given that his evidence now is that he did not hit her but he pleaded guilty to recklessly causing injury, and whether he wanted to say anything more about what happened. PKZM said: ‘I don’t know why I hit her. It was at my Mum’s house. My brothers were there. The system believes what women tell them. I got tired of going to Court. I’ve never hit her. The FVO kept me away from my Mum’s house. I don’t know why they put that I hit her once.’
PKZM said that the FVO said he was not to go to a house but the address on the order was AM’s house, not the house where the woman lived. He said that his ex-partner had used his mother’s address rather than where they had been living before and when he went to AM’s house, ‘they called them’ and he breached the order.
PKZM was taken to a County Court appearance in March 2016 where he was convicted of the offences of Contravening a Family Violence Final Intervention Order, Common assault and Criminal damage. The Judge in passing sentence stated that PKZM had spat in the face of his partner on four occasions, and PKZM pleaded guilty. The Applicant said ‘yes, she was very violent towards me and I spat at her.’
PKZM was asked about incidents that had taken place since he has been in immigration detention. He was asked about an incident where a fellow detainee was hit in 2017 (GD, p 146). PKZM said that the detainee had been bullying and taunting him about being black and he had made complaints, but no action was taken, and admitted that he had struck him.
PKZM was taken to an incident where it was alleged that he threatened an officer at the Immigration Detention Centre (GD, p 145). PKZM said that one of the officers had come and head locked him, and he said he told the officer he could not breathe. Weeks later he saw the officer and referred to the incident and said he should not have done that, but he did not threaten anyone. He said he did not challenge the officer to a fight but said there was no point coming to the Unit he was in if the officer would not take complaints to higher management.
PKZM said he had done a programme on anger management and conflict resolution while in detention. He said the course told participants how to respond to stressful situations through peaceful alternatives such as walking away. He said he had tried to focus on sport and other activities to avoid stress.
Mr Brown asked PKZM why he says he would be killed if he is returned to South Sudan. The Applicant said: ‘I don’t know anything about South Sudan. I was born in the North. On top of that, Sudan is at war. I don’t have any hope because I don’t know anyone in South Sudan. Survival itself would be a problem. According to the news there are a lot of displaced people, a lot of refugees. I don’t know anyone to turn to. I don’t know anyone, and I may die because I don’t know anyone there.’
In answer to direct questions from the Tribunal, PKZM agreed that the incidents in detention occurred in November 2017, which was not many months after he had completed the anger management course in June 2017. PKZM replied: ‘You are right. This guy just got into my face. It didn’t go any further. After that the last two to three years there have been no incidents.’
PKZM told the Tribunal that he had a new partner, AP, with whom he had commenced a relationship about a year ago. He said he had however known AP for a long time, having first met her in Egypt. He said that AP had three children by a previous partner, two who live with her and one who lived with her former mother-in-law. PKZM said he was unsure of the ages of the children but thought the two older ones were aged about eight and seven or six; he did not know the age of the youngest one.
PKZM said he keeps in contact with AP by telephone or video call and social media, speaking to her most evenings.
The Tribunal asked PKZM whether his main concern about being sent to Juba is that he does not know anyone there and would not know where to start. PKZM replied: ‘Yes, that’s right. I wasn’t born there. There is insecurity. It is a place I don’t know. South Sudan has problems. I’ve never been there. South Sudan is at war.’
The Tribunal asked PKZM, if he could remain in Australia, what he would do in terms of his previous problem with alcohol and did he have any plans to go to someone for help. PKZM responded: ‘Well, I’ve wasted most of my time. I have a programme in mind, community or youth services. I want to tell young people not to get involved.’
When pressed about what he might do to ensure he did not fall back into excessive alcohol use, PKZM said: ‘I am eager to get work and focus on that. Alcohol ruined my life. Seven years is a long time. I want to be a role model to my younger brothers. I want a better life than in detention.’
Evidence of AB
The Applicant’s oldest half-brother, AB, gave evidence in English by telephone. He said he contacted PKZM once a week. AB said they discussed how each was going. AB said he had lost his job owing to the coronavirus and PKZM was encouraging him to look for another job.
AB said he was an Australian citizen, as was his mother AM. AB said that he speaks Sudanese Arabic and English, having learned the first of these languages at home. AB said that when AH left PKZM became a father figure, helping around the house and encouraging his younger siblings.
AB said PKZM had said he regrets the mistakes he has made and told his brothers not to hand around with the wrong crowd and avoid getting into trouble. AB said he did help with household duties but sometimes has trouble with his blood sugar levels which causes him fatigue and to faint. He said he had been admitted to hospital recently to regulate his diabetes. In answer to a direct question from the Tribunal, AB confirmed he has type 1, or insulin dependent diabetes, and self-administers daily insulin injections.
Under cross-examination AB agreed that as PKZM has been away for some six years, some of the burden of household support had fallen onto his shoulders. He said that his half-brother AD lives some suburbs away but does visit. AB said that his younger brothers, AY and AZ were aged 17 and 15 respectively. AB said he planned to go to TAFE and hoped perhaps to study bricklaying. In terms of AM’s health, AB said his mother cannot drive long distances and cannot stand for long periods. He said AY and AZ walk to school, which was close to their house.
Evidence of AM
The Applicant’s mother, AM, gave evidence through an interpreter in the Dinka language. She said she used to talk often to PKZM when he was detained in Sydney, but it took two months after he was transferred to Christmas Island before she could communicate with him.
In answer to a direct question about how often she spoke to PKZM, AM said she had spoken to him once, two weeks ago. AM said she was born in Malakal and married in Khartoum where all but the youngest two of her children were born. She said none of the children had been to South Sudan since the country was split in two except for one daughter who decided to go to Juba, but she died there.
AM said that PKZM never had a particularly good relationship with his stepfather AH, because he was not supportive of the family. She said AH left the household in 2016 and since then she had brought up the children on her own.
AM said she speaks Sudanese Arabic at home but had spoken Dinka with her late husband. She said the Arabic dialect spoken in Khartoum was quite different to that which is spoken in Juba. She said Juba Arabic is a mix of African traditional languages and Arabic, so it is difficult for people from outside South Sudan to understand; the locals write in the local dialect and not in Arabic script.
AM said that PKZM would not listen to her and would go drinking and do things with his ‘mates’ that he regrets now. AM said PKZM never drank alcohol in her house or her presence ‘because it is taboo’. She said he was difficult to discipline and even now does not drink in her presence.
When he lived with them, AM said PKZM helped with cooking, took his younger siblings to sport and encouraged them to study. AM said that PKZM would be able to live with her if he is released into the community. She says he knows what he has missed by being in prison and then detention.
AM said that in her opinion PKZM is ‘going to die’ if he goes to South Sudan. She said that her daughter who went to Juba became ill and died of hunger, and she thought that is what would happen to PKZM. She said the situation in South Sudan security-wise is concerning; people are dying there, PKZM had never been there and could not speak the language. AM said that there is no one to help in South Sudan. Her own father, as well as her first husband, had died in the civil war. AM said that if there were people that they could call on to help, her daughter would not have died there.
In respect of her grandchildren, AM said that one of her daughters in Khartoum had children. She said she also had three grandchildren in Australia, the children of AD. She said these children would be affected badly if PKZM was sent to South Sudan and they had disguised where PKZM was at present, so as not to upset the children.
CONSIDERATION OF THE DIRECTION
Primary consideration: Protection of the Australian community (paragraph 13.1)
The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. Mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain factors. (Paragraph 13.1.1 (a)) The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously: There was no evidence that PKZM has been convicted of any sexual crime. The offences contained in the National Police Certificate range across driving offences, many property offences, crimes against the person, particularly assault and recklessly causing injury, and a significant number of offences where the Applicant had not complied with orders made by the Courts, including bail conditions and Family Violence Intervention Orders. The Certificate contains some thirteen offences involving violence of which PKZM has been convicted.
(Paragraph 13.1.1 (b)) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed: The list of offences includes breaches of court-imposed orders designed to protect, in this case, PKZM’s then domestic partner.
In September 2015, a Magistrate when discussing PKZM’s offending with counsel before him (GD, p 49) stated:
He had only known her for four months; living together for one month, and he starts belting the hell out of her.
His Honour then said to PKZM:
Now, [name redacted], this was a horrendous assault, you know. You belted this poor woman in the backyard. You took her into the house and you belted her again, you know. You’re not to treat women like chattels, like your own personal things. All right?
Accused: Your Honour, I wasn’t touch her. Is [sic] I slap her once.
His Honour: 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.
Accused: I didn’t touch her at all.
His Honour: Didn’t touch her.
Accused: No, I didn’t touch ---
His Honour: Well, you pleaded guilty to it.
Accused: Yes.
It is a matter of significant concern to the Tribunal that in the hearing, PKZM sought to deny assaulting his ex-partner in this incident, then admitted to slapping her. This is in the face of the remarks by the sentencing Magistrate which the Tribunal concludes were based on a brief of evidence before him and where PKZM had pleaded guilty.
(Paragraph 13.1.1 (c)) The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious: - There are several offences recorded against PKZM relating to resisting arrest and one for assaulting police.
The Applicant’s assault offences are in the category of offending which the Direction calls on decision-makers to regard as serious.
While it is accepted that intoxication played a significant part in PKZM’s offending, and did on this occasion (as referred to in separate sentencing remarks by the Judge in the County Court, GD p 41, which refers to PKZM’s former partner losing consciousness after being struck by him), this is no excuse. In addition, intoxication is not an apparent factor in all his offending. This was admitted by PKZM himself in his oral evidence.
(Paragraph 13.1.1 (d)) The sentence imposed by the courts for a crime or crimes. (Paragraph 13.1.1 (e)): - The frequency of the Applicant’s offending and whether there is any trend of increased seriousness (Paragraph 13.1.1 (f)); The cumulative effect of repeated offending: As set out in the summary of PKZM’s offending, it has been consistent and depressingly regular. He was initially given several opportunities by the Courts to mend his behaviour through good behaviour bonds, being bound over, suspended sentences and fines. It was only after he persisted in offending that the Courts imposed prison time which was not suspended. There has been frequent offending and it has increased in seriousness, especially in respect of crimes against the person.
(Paragraph 13.1.1 (g)) Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending: - There was no evidence before the Tribunal that PKZM had done this.
(Paragraph 13.1.1 (h)) Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour):- PKZM admitted re-offending after he had been formally warned, and after the Department had considered cancelling his visa, had decided against doing so, but had given him a written warning that future offending would jeopardise his immigration status. PKZM gave evidence that he remembered on one occasion uniformed ABF officer explaining to him what one letter said, and on another occasion having a fellow prisoner explain the contents of a letter of warning to him. It is clear to me that he was on notice, and knew he was on notice, in respect to his visa and the potential that it might be cancelled if he continued to offend.
(Paragraph 13.1.1 (i)) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including 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 is serious, as is an offence against section 197A of the Act:- There are references in documents to incidents in detention but the Tribunal does not conclude, on the information before me which are simply reports which in some respects are not corroborated, that they rise to the level of a ‘crime’. The Tribunal also notes that while two incidents were more serious, there is no evidence of misconduct in the last three or so years and PKZM’s stated strategy of concentrating on sport and positive activities seems to have worked in terms of improving his conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Tribunal considers that there is a real risk that PKZM would re-offend if he remains in Australia. While PKZM asserts that (most of) his criminal conduct was driven by his drinking problem he says that the two drivers that would militate against him returning to excessive alcoholic consumption are that he has wasted too many years of his adult life, and that he had made a promise to his mother, AM.
AM’s evidence was that he had never drunk alcohol around her because she disapproved of it. She said she last spoke to him about his drinking in 2013 or 2014. It may be that he has made a promise but the fact that he knew she strongly disapproved has not proven to be a protective factor in the past. When pressed by the Tribunal about what plans he had to arm himself against returning to drinking, PKZM said, first, that he would talk to other young people about avoiding this path. That is a laudable plan. However, it disturbed the Tribunal that he was unable to articulate what other supports he would call on, for instance such as Alcoholics Anonymous or counselling.
This is more concerning when his own evidence was that he has been in rehabilitation before and abstained for about a year thereafter, before relapsing, so he knew from personal experience he was vulnerable to this. He did not adequately explain why he had relapsed, other than to say he felt stressed by family expectations that he be a ‘father figure’, and what that entailed. It is quite possible such stresses would surface again, because, accepting that there are some cultural expectations on PKZM as the oldest male child in terms of being a ‘father figure’ to his younger siblings, it is precisely this role that he says caused him to return to drinking after a period of abstinence.
It is also concerning to the Tribunal that PKZM cavilled over details of some of his offending, in particular his violent treatment of his former partner, even when he had pleaded guilty, and offered the view that ‘they’ (presumably the police or the Courts) always believe the woman’s side. The Tribunal is unconvinced that there is not a real risk of PKZM offending again, and possibly offending by committing crimes against the person.
Considering the cumulative history of offending and the serious nature of the main offences of recklessly causing injury and recklessly causing serious injury, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child.
There are several minor children in Australia affected by the decision, the two half-brothers of PKZM, AY and AZ, the three children of his brother, AD and the three children of his partner, AP.
In respect of the Applicant’s two half-brothers, it is accepted that PKZM played a role in their earlier lives when he lived with them and AM in the same household. Her evidence, and that of AB, corroborated that he cooked for the family, took the younger ones to school and picked them up and, more recently, had regularly discussed with them their attention to their school studies and advised them strongly not to follow the path into offending he followed.
The Direction requires the Tribunal to consider whether there are others who play a parental role, and AM is in this category. It is also relevant that AY is aged 17 and so will only be a minor for a short period before he attains his majority, and AZ is 15. PKZM has not been physically present in their lives for some six years, which is a relatively long period of absence.
The Tribunal determines, in relation to the two half-brothers of the Applicant, that it is in their best interests that the mandatory cancellation of PKZM’s visa be revoked.
Regarding the three children of AD, the Applicant’s brother, the Tribunal accepts that the two older ones miss their uncle and have kept in some contact with him during his incarceration and subsequent detention. However, they are aged eight and around seven and so were very young when they last had physical contact with PKZM, and their father and his new partner play parental roles in their lives. The Applicant himself said he had not met the youngest of AD’s children, the child he has had with his new partner. The Tribunal finds that it is in the best interests of these three children that the mandatory cancellation of the visa be revoked, but the weight in respect of these three children is lessened because they have never lived with PKZM and others play parental roles in their lives.
In regard to the three children of AP, PKZM’s new partner, AP and her former partner play parental roles in their lives – PKZM confirmed that their father still shares care of them. PKZM said he had been in a relationship with AP for around a year and he has been in detention all that time. His contact with these three children has been minimal, limited to electronic contact. With the paucity of information on these children, the Tribunal accepts their interests may be affected if the disposition of the Applicant affected his nascent relationship with their mother, but because of this lack of information, the weight attaching to this determination is light.
Overall, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court considered this part of a superseded version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185, however the wording in that and the current Direction is essentially the same. Charlesworth and Stewart JJ held, in separate judgements, that this part of the Direction expresses a ‘norm.’
The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other assessment process.
Charlesworth J set out Her Honour’s reasoning at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.
Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(1)non-citizens will obey Australian laws when in Australia;
(2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(iii)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances.
On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
PKZM first was in front of the Courts in June 2007 and has had convictions against his name since 2009. He has subsequently appeared in Court on ten further occasions. He has been to Court almost every year since 2009 until he was incarcerated. The Tribunal’s view is that, with the knowledge of this criminal record, the Australian community, in the context of that term in this part of the Direction, would not expect him to hold a visa to remain in Australia. Even considering that intoxication drove some of his offending and that certain of the earlier offences were at the lower end of the spectrum, there has been a persistence in the offending, it has risen in seriousness, and it has involved reckless assaults, including a serious reckless assault. Despite the Courts deploying tools to help PKZM change his behaviour, his offending did not subside, on the contrary, it grew.
The Tribunal finds that PKZM fails to meet the expectation that he obeys the laws of Australia, an expectation that applies to all visa holders and, indeed, all other members of the community. The Tribunal finds that this consideration weighs heavily against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
Mr Thomas submitted that the fact that non-refoulement obligations exist in PKZM’s case are clear from the facts of the case. The Applicant’s lawyers submitted Australia has an obligation not to return persons to places where they may be harmed and that the risk of harm is ‘real and not remote or fanciful’ in his case. Mr Thomas said that the situation in South Sudan has not improved to a level where the risk to the Applicant would be ‘properly characterised’ as far-fetched or fanciful. He submitted that any peace in South Sudan, in the light of the history of Sudan and South Sudan since partition would be reasonably expected to be ‘short lived, if at all’ and that PKZM is unskilled and has no networks.
The Respondent submitted that the Applicant, in his SFIC, had nominated generic bases on which PKZM has said to be owed non-refoulement obligations. They included being targeted as a civilian by reason of his Dinka ethnicity or race and imputed support of the Dinka-led government in South Sudan; being targeted by reason of being a person suffering from mental health; being forcibly recruited into one of the militias operating in South Sudan; being targeted as a person perceived of being wealthy; being targeted by a person who is perceived as foreign; being targeted as a returnee from Australia.
None of these were nominated by PKZM when asked questions by his own lawyer, by Mr Brown or the Tribunal itself. The Applicant consistently said that he feared being sent to Juba because he did not know anyone there. He added that he could not speak the local language, Dinka, or the Juba form of Arabic. He did express concerns about returning from a western country and how that might attract unwelcome attention in his written statement submitted before the hearing but did not repeat that when pressed by the Tribunal several times on what his concerns were about going to Juba.
It is concerning to the Tribunal that some contentions were made on behalf of the Applicant, for instance that he is a person suffering from mental ill health, which have no evidentiary support. PKZM said he was healthy and there was no evidence before the Tribunal to contradict this. He did not express any view about being concerned about being recruited into a militia nor about his Dinka ethnicity being an impediment. He did say that he feared ‘being killed’ if he was sent to South Sudan, but essentially this was because he did not know anyone, he did not articulate another concern which founded this statement.
The Tribunal may accept, nonetheless, that PKZM’s lack of knowledge of the local languages may mark him out for attention, including by persons who may want to do him some harm, and may lead to some conclusion that, having come from a Western country, he may have wealth. But to a certain extent this is also speculation on the Tribunal’s part.
The DFAT Country Information Report South Sudan dated 5 October 2016 (which the Tribunal obtained under section 33(1)(c) of the AAT Act) states, in respect of the security situation then (at paragraph 2.31):
While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly).
PKZM is Dinka, and relevantly in the DFAT Country Information Report states (at paragraph 3.7):
Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba. [Emphasis added]
In his 16 September 2020 report to the UN Security Council (SGD, p 507-509), the Special Representative of the UN Secretary-General, Mr David Shearer, MBE, reports:
From January to July, UNMISS documented 575 incidents of subnational violence – an increase of 300 percent compared to the same period last year. In Jonglei state alone, 600 people were killed in six months, women and children were kidnapped, thousands fled their homes as they were looted and torches. The three communities – Nuer, Murle and Dinka – were all victims. But all three are also guilty of carrying out crimes against others. The situation has now calmed, tensions remain high and every effort must be made to stop a resurgence.
…
The political violence of the past has largely subsided despite delays to the peace agreement, as I outlined earlier. The ceasefire holds and the unified transitional government is up and running. UNMISS is looking at this evolving situation and examining how it can better support peace and protect civilians. One area of change that springs from last year’s report to the Council on the future of Protection of Civilians sites – or POCs as they are known. As the report noted, external threats that led to the establishment of POC sites no longer exist today. For example, the Juba POC site – just a few metres from where I am sitting now – has become more of an outer suburb of the town. Residents move back and forth daily to attend school and university, to shop and go to work.
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The spike in subnational violence is occurring in remote areas, not near our POC sites. Therefore, we have to deploy our forces to provide protection where there is greatest need. For example, freeing up troops from Wau and Bor POCs has allowed us to redeploy our forces to hotspots like Tonj and Jonglei where people are in immediate danger. Following the gradual withdrawal of our peacekeepers, the POC sites will then be re-designated and sovereign control of them will be with the South Sudanese government, not the UN.
(Emphasis added.)
The Tribunal accepts this authoritative evidence that the situation in South Sudan appears, on the most recent objective information provided by the UN Special Representative, to be improving, especially in terms of the capital, Juba. However, there is also clear evidence of sporadic conflicts across the country and in the more remote parts, and a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community.
The sad death of the Applicant’s sister in Juba was discussed by his mother in her evidence. However, AM made clear that her daughter died owing to lack of nutrition, not as the result of malicious harm visited upon her.
The Tribunal accepts that PKZM may be faced with challenges if sent to South Sudan, and they may be significant challenges in terms of his lack of language and knowing people there, but these factors are properly taken into account in the part of the Direction where impediments if removed are dealt with.
The Respondent noted that PKZM has had opportunities to apply for a protection visa, which he has not taken up. He still has such an opportunity and, by consistent submissions on government policy, that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered. The proper consideration of such an application would allow expansion of any claims that PKZM might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered.
However, the lack of a network and language difficulties do not, by themselves, in the Tribunal’s consideration rise to the level that complementary protection considerations may be relevant in terms of their being ‘another reason’ to revoke the mandatory cancellation of the visa. What is, in the Tribunal’s estimation, relevant is whether PKZM would be exposed to treaty-related harm were he to go outside Juba, at least in the current (albeit improving) national situation. The Tribunal concludes that the Applicant could be exposed to such harm, and the risk is not fanciful or far-fetched, given the current volatility of the security situation outside Juba.
The Tribunal finds that this consideration weighs, on balance, in favour of the Applicant.
Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction exhorts decision-makers to have regard to how long a person has resided in Australia, noting that less weight should be given when the non-citizen began offending soon after arrival in Australia and, on the other hand, more weight should be given to time the person has spent contributing positively to the community. The Tribunal must also consider the nature of any family or social links with Australian citizens or permanent residents, including the effect of non-revocation on them.
PKZM was before the Children’s Court two years after arriving in Australia. He gave evidence of having several jobs in Australia which are to his credit, as is his evidence about learning trade skills in prison and trying to improve on what appears to be a natural aptitude for manual work. The Tribunal finds that he has made some contribution to Australia, even with the backdrop of his significant criminal record.
PKZM has regular contact with his mother and AB and his partner AP. It was notable that although he said he has regular contact, he got the ages of his half-brothers wrong and gave evidence that AB was still at school, rather than being a 20-year-old who has left school and already had one job. The error over the ages may be explained by the long period PKZM has been in immigration detention, but it is surprising, if he indeed has regular contact with him, that he did not know about AB’s job, his being laid off owing to the coronavirus and that he was now looking for work, and thought AB still at school.
The Applicant also stated in evidence that he spoke to his mother ‘regularly, sometimes three times a day’. This was at odds with AM’s own evidence that she spoke to him two weeks before the hearing and, before that, had not spoken to him for two months. The Tribunal also concludes that PKZM’s evidence about being a ‘father figure’ at home before he went to prison could be considered painting the lily, somewhat of an exaggeration. On AM’s evidence her second husband, AH, was a member of the household until 2016, that is after PKZM went into custody, and did fulfil, if perhaps inadequately, a father figure role as the father of AM’s three youngest sons.
However, the Tribunal accepts AM’s and AB’s evidence that PKZM is an important person in their lives. On the evidence, while AH was neglectful in his parental and spousal obligations and in financially supporting the family, PKZM’s own evidence is that his stepfather was a father figure.
The Tribunal finds, based especially on the evidence of AM, that this consideration weighs in favour of revoking the mandatory cancellation of PKZM’s visa. The weight is relatively strong given that two others of AM’s children are currently either in prison or detention and one, AB, has a chronic condition that somewhat affects his ability to contribute to the household.
Impact on Australian business interests (paragraph 14.3)
The Direction provides that the Tribunal should consider any impact on Australian business interests if a non-citizen’s visa is not revoked, noting that an employment link would generally only be given weight where not restoring the person’s visa would significantly compromise the delivery of a major project or important service in Australia.
Although PKZM told the Tribunal of his employment history (as set out above), the Tribunal does not consider this rises to the level that would require consideration under this part of the Direction.
The Tribunal finds that this consideration is not relevant and weighs it neutrally in this assessment.
Impact on victims (paragraph 14.4)
The Direction provides for the Tribunal to take into account any information available where a victim of a person’s offending may be aware of the immigration status of the person. As there is no such information in the papers before the Tribunal, this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
PKZM told the Tribunal in answer to a direct question that he is ‘100 per cent fit’. He is not on medication, except for the occasional headache medicament.
In terms of language or cultural barriers, it would seem on the evidence of both the Applicant and AM that PKZM does not speak the form of Arabic spoken in South Sudan, nor does he speak Dinka, except for a few common words, or any of the other ethnic languages of South Sudan. PKZM’s knowledge of English appeared to the Tribunal to be minimal, even though he gave evidence that he and other South Sudanese he had met in Australia conversed in English as a lingua franca. AM gave evidence that she would not have the financial resources to help PKZM because she herself relies on social security benefits and had only been able once to provide a small payment to her daughters in Khartoum.
The Tribunal considers that PKZM has some trade skills and although he has not had sustained employment, the evidence was that he left one factory because of the distance from home, and the other largely because the work was difficult with his height. He has, it appears, a natural talent with manual work and has done some courses in prison. These would be of assistance to him in terms of future employment.
In terms of the extent any impediments as specified in the Direction, the Tribunal finds that the language barriers PKZM would face are significant, and there would be some economic difficulties for him, at least in the short term. The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
CONCLUSION
The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, one heavily and one relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs in favour of the Applicant but that weight is not heavy given the age of his two half-brothers on the one hand, and the fact that, in relation to the other minor children identified, PKZM does not exercise a parental role and others do.
In respect of the other considerations, three considerations weigh in favour of the Applicant: non-refoulement obligations, the strength, nature and duration of his ties to Australia and the extent of impediments if removed. Of the remaining other considerations, they weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) of the Act to revoke the mandatory cancellation of the visa, but the Tribunal has not identified any other factor it should take into account which would affect the outcome of this review in respect of the exercise of the statutory discretion under the Act.
There are considerations which the Tribunal has found weigh in favour of the Applicant, including consideration of non-refoulement obligations and the extent of impediments PKZM would face if removed from Australia. While they weigh in favour of revoking the mandatory cancellation of PKZM’s visa, that cumulative weight is not in the Tribunal’s conclusion determinative.
The Applicant has persistently offended, including against a domestic partner, in a manner that was particularly unsatisfactory and which he tried to minimise at the hearing, in the face of a plea of guilt and sentencing remarks of two judicial officers. Although PKZM has been in Australia since 2005, he began offending some two years after arriving and his offending has been relatively persistent. The Applicant’s conduct has apparently not been improved by more lenient corrective tools first deployed by the Courts, or by the more serious sanctions, and his crimes have risen in seriousness The Tribunal concludes that the decision not to revoke the mandatory cancellation of PKZM’s visa was the correct decision and should be affirmed.
DECISION
The Tribunal decides affirms the decision under review.
I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 23 December 2020
Dates of hearing: 15 & 16 December 2020 Date final submissions received: 18 December 2020 Counsel for the Applicant: Mr Simon Thomas Solicitors for the Applicant: Refugee Legal Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: The Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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