PLCP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 198

PLCP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 198 (1 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8417
Re:PLCP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:1 February 2024
Date of written reasons: 14 February 2024
Place:Melbourne

The Tribunal affirms the respondent’s delegate’s decision of 1 November 2023 not to revoke the visa cancellation decision.
.................[SGD]..................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – Migration Act 1958 (Cth) s 501CA(4) – South Sudan – Applicant does not pass the character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 99 – primary and other considerations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Nationality Act 2011 (South Sudan)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BJI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1632
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esber v Commonwealth of Australia (1992) 174 CLR 430
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194
LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180
NHTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 35
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 195
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
SGTX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 27
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
1910307 (Refugee) [2019] AATA 4673
Secondary Materials
Australian Government Department of Foreign Affairs and Trade, ‘South Sudan’ (Web Page) < Government Department of Foreign Affairs and Trade, ‘South Sudan – Latest update’ (Web Page, 5 October 2023) < and Immigration Ombudsman, Suicide and Self Harm in the Immigration and Detention Network (Report, May 2013)
Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Department of Foreign Affairs and Trade, Country Information Report: South Sudan, 2016
Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
Senior Member C. J. Furnell
14 February 2024

In this proceeding, the issue is whether a January 2021 decision to cancel the applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the “visa cancellation decision”)[1] ought to be revoked.
[1] G5, 63-69. In this regard, references to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act.
The cancellation of the applicant’s visa was mandatory because, under s 501(3A) of the Migration Act 1958 (Cth) (the “Act”):
(a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because she had a substantial criminal record.[2]
(b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[3]
[2] As defined in the Act, s 501(7). See in particular Act, s 501(7)(c).
[3] See G5, 70, being a January 2021 confirmation by a corrective services officer that a notice of visa cancellation under s501(3A) of the Act was handed to the applicant. See also G5, 37-40, identifying that the applicant had in November 2020 been sentenced to imprisonment for a term which was reduced to five years and three months on appeal.
In February 2021, the applicant made representations about revocation of the visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[4]
[4] Act, s 501CA(3)(b). See G5, 71-74.
As a result, the respondent was required to[5] revoke that decision if satisfied that the applicant passed the Act’s character test or that there was another reason why the decision should be revoked.[6]
[5] Although the relevant provision states that the decision-maker may revoke the cancellation if there is another reason to do so, this does not involve a separate exercise of a discretion but rather is part of a single balancing exercise. See QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 195 at [46]; BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 at [16]; Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 at [13]; Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [56] per Derrington J, cf O’Sullivan J at [82] and [91]-[96]; Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27]; Minister for Home Affairs v Buadromo [2018] FCAFC 151 (Besanko, Barker and Bromwich JJ, 14 September 2018), at [21], referring to Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 (North ACJ, 28 September, 2016) and Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548, but contrasting the emphasis Gageler and Gordon JJ placed on the word ‘may’ in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [74]. See also the outline of cases relevant to the question of whether there is a residual discretion in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 at [71].
[6] Act, s 501CA(4).
A delegate of the respondent was not, however, satisfied of either of those things. In November 2023, the delegate decided not to revoke the visa cancellation decision.[7]
[7] G3, 8; G4, 9-34.
The applicant has asked the Tribunal to review the delegate’s decision.[8]
[8] G1, 1-4.
The role of the Tribunal in conducting such a review requires that it stand in the decision-maker’s shoes to “do over again” that which was done by the decision-maker.[9] In doing so, it performs the same function, exercises the same power,[10] is subject to the same constraints and addresses the same question or questions[11] as the decision-maker.
[9] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[11] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
As such, as they were for the respondent’s delegate, the questions ultimately in issue in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
In answer to those questions and for the reasons which follow, I am not satisfied that the applicant passes the character test, and nor am I satisfied that there is another reason why the visa cancellation decision should be revoked.
MATERIAL CONSIDERED
In undertaking its review of the November 2023 decision to refuse to revoke the visa cancellation decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[12]
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant and certain members of her family, being her mother, a sister (Ms RN) and a brother (Mr JM).
As for documentary material lodged with the Tribunal, it comprised:
Each party lodged submissions about that documentary material prior to the hearing.[14]
[14] Applicant statement of facts issues and contentions of 10 January 2024 (“A SFIC”). Respondent’s statement of facts, issues and contentions of 15 January 2024 (“R SFIC”). Applicant’s reply submission of 17 January 2024 (“Reply”).
ASPECTS OF FACTUAL CONTEXT
The applicant was born in what is now South Sudan[15] in February 1996.[16]
[15] G5, 83.
[16] G5, 110; G5, 145.
In terms of ethnicity the applicant is half Nuer (on her mother’s side) and half Dinka (on her father’s side). Her biological father died shortly before her birth.[17]
[17] Ibid.
Both her parents were born in what is now South Sudan. Her country of citizenship was said by her in February 2021 to be South Sudan.[18]
[18] G5, 71.
Aged around three months, the applicant, in the company of her mother, fled to a Kenyan refugee camp where the applicant says she “grew up”.[19]
[19] G5, 110, I note that in certain of the material before the Tribunal it is suggested that the applicant did not travel to Kenya until she was around 7 years old. At the hearing, the applicant’s mother’s evidence, which I accept, was that, in fact, she carried her three-month-old daughter to Kenya.
The applicant’s experiences in Africa were traumatic.[20] As a child she suffered from physical and sexual abuse.[21]
[20] Exhibit A2 [56-58].
[21] G5, 110-111; A2 [59].
In July 2005 the applicant, aged 9, migrated to Australia in the company of her mother, her mother’s new partner, two of her siblings, an uncle and a cousin. [22]
[22] G5, 190.
All of the applicant’s known family members (including her mother and six siblings) now reside in Australia.
The applicant’s mother’s former partner physically abused the applicant, her brother and her mother.[23] Indeed, the mother was hospitalised after one such incident of domestic violence[24] (which resulted in the mother ending that relationship).
[23] G5, 146.
[24] G5, 112.
In the 2015 to 2016 period the applicant was also the victim of domestic violence perpetrated by her own partners. Indeed, she received treatment during this period for several head, ear and neck injuries sustained in assaults.[25] The applicant says one of her partners broke her jaw, choked her while pregnant and caused multiple miscarriages.[26]
[25] G5, 53.
[26] Exhibit A1, Supplementary report of Mr Mackinnon, July 2020, 3.
After being expelled from school in year 12, it is said that the applicant completed a child care course at a tertiary institution, characterised as a Certificate 3 in Childcare.
The applicant worked for a time in the child care sector (a matter discussed in more detail later). Subject to that, she does not appear to have engaged in any employment while free in the community.[27]
[27] SG285.
The applicant has two children to different fathers, a son aged 9 born in December 2015 (‘Son’) and a daughter aged 7 born in July 2017 (‘Daughter’).[28] Both are in the care of the applicant’s mother and have been since birth.
[28] A SFIC [13].
The applicant suffers from chronic hepatitis B.
On her behalf it is submitted that she also suffers from mental health conditions. It is said she has a history of anxiety and depression.[29] I was not, however, taken to and did not locate in the material before me any evidence of her having been diagnosed with depression.[30]
[29] A SFIC [14].
[30] Exhibit A1, letter of February 2020 from Ian Mackinnon, psychologist, in which it was noted that the applicant denied any history of ongoing psychiatric or psychological treatment. While the applicant was prescribed psychotropic medication (antipsychotics and antidepressants) for a period of months after entering into remand in July 2019 this was, apparently, to address drug induced psychosis and the effects of illicit drug withdrawal.
It is also suggested that the applicant suffers from PTSD. That diagnosis was made by a psychologist, Ian Mackinnon, in 2020. For reasons outlined later, it is not one that I accept. Despite this, I do accept that the applicant has suffered traumatic early life experiences, in both Africa and Australia.
The applicant does suffer from substance abuse disorders.[31]
[31] G5, 57 where reference is made to diagnoses made by a psychiatrist, Dr Best, in 2020 of Cannabis Use Disorder (DSM-5), Amphetamine Use Disorder (DSM-5) and Alcohol Use Disorder (DSM-5).
The applicant is said to have started taking illicit drugs when aged 17;[32] inferentially, in around 2013.
[32] A SFIC [17], elsewhere it is suggested that she started to take illicit drugs in 2015 (when, I infer, aged around 19), see G5, 113. On the material before the Tribunal, however, it is clear that her illicit drug use commenced before 2015, see G5, 140.
In February 2015 her substance abuse was said to entail daily cannabis, alcohol and ice (methylamphetamine in its crystallised form) use and to have “…led to homelessness, conflict and disconnection from family and community.”[33]
[33] G5, 140, Youth Support and Advocacy Service letter of April 2021.
At the time of her most serious offending in 2019 (outlined later), she was typically smoking around 1.7 grams of ice every one to two days.[34]
[34] G5, 52.
The applicant has been in prison since July 2019.[35] Since July 2023 she has been placed in the prison’s management unit. The applicant characterises this as solitary confinement and suggests that, as a result, her mental health has been adversely affected.[36]
[35] G5, 103; G5, 172.
[36] Reply [6]-[8].
DOES APPLICANT PASS THE CHARACTER TEST?
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[37] The applicant has such a record. As outlined later, she has been sentenced to a term of imprisonment of 12 months or more.
[37] Act, s 501(6)(a).

Accordingly, I am not satisfied that the applicant passes the character test.
Given the failure to pass that test (something accepted on behalf of the applicant[38]), the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.
[38] G5, 83; A SFIC [29].
IS THERE ANOTHER REASON WHY THE VISA CANCELLATION DECISION SHOULD BE REVOKED?
As is clear from my decision in this proceeding, I am not satisfied that there is such a reason.
That state of non-satisfaction was arrived at in the performance of a function or the exercise of a power of the Tribunal under the Act. As such, the Tribunal was required to comply with any direction given under s 499 of the Act about the performance of such functions or the exercise of such powers.[39]
[39] Act, s 499(2A).
A number of directions have been given under s 499. The direction that applied at the time of the decision the subject of review is Direction 99[40] and it is the direction with which the Tribunal is bound to comply in this proceeding.
[40] Direction 99 being an instrument made on 23 January 2023. It commenced on 3 March 2023 and is entitled “Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Compliance with Direction 99 requires that the Tribunal consider whether there is another reason to revoke the visa cancellation decision “given the specific circumstances of the case”.[41] The direction is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[42]
[41] Direction 99, cl 5.1(3).
[42] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
The Tribunal’s consideration is to be undertaken informed by,[43] and in the context of a framework comprised of certain principles.[44]
[43] Direction 99, cl 6.
[44] Direction 99, cl 5.2.
Those principles are set out in cl 5.2 of Direction 99. They are as follows:
“5.2 Principles
(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 risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”
I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 99 to take into account in deciding whether to revoke the visa cancellation decision.[45]
[45] Direction 99, cl 6.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 99. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and expectations of the Australian community.[46]
[46] Direction 99, cl 8.
The other considerations include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[47]
[47] Direction 99, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[48] and one or more primary considerations may outweigh other primary considerations.[49]
[48] Direction 99, cl 7(2).
[49] Direction 99, cl 7(3).
While primary considerations should generally be afforded greater weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[50]
[50] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
In this regard, the applicant has submitted that certain of the other considerations should be treated as primary considerations and given greater weight “in the particular circumstances of this case.”[51]
[51] A SFIC [88]-[89], a submission made with respect to international non-refoulement obligations and risks of other harms, the extent of impediments if removed and the prospect of indefinite detention.
I reject that submission. I have not identified, and I was not taken to[52], any particular circumstances of this case which would warrant a departure from the regime which is intended generally to apply.
[52] In this regard it is noted that for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations.” See FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[53]
PROTECTION OF THE AUSTRALIAN COMMUNITY[54]
[53] Direction 99, cl 7(1).
[54] Direction 99, cl 8.1.
I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct. This consideration is one that requires that the Tribunal keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[55]
[55] Direction 99, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should she commit further offences or engage in other serious conduct.[56]

[56] Direction 99, cl 8.1(2).
[57] Direction 99, cl 8.1.1.
Nature and seriousness of conduct[57]
As for the nature of the applicant’s conduct to date, the applicant was right to concede that she has a lengthy criminal history.[58] It has involved a number of motor vehicle, property and drug related offences, along with offences involving violence.[59]
[58] A SFIC [38].
[59] G5, 41-44, Australian Criminal Intelligence Commission check results report of July 2023.
In June 2015, the applicant was convicted of two minor theft offences and sentenced to a good behaviour order.
In March 2017, the applicant was convicted of negligently dealing with the proceeds of crime, contravening a conduct condition of bail and committing an indictable offence while on bail.
At the hearing the applicant could not recall details of this offending but noted that at the relevant time she was in a relationship with a man who was violent toward her and had introduced her to the use of illicit substances. She then acknowledged, however, that she had been using illicit drugs since before February 2015 on a social, albeit frequent, basis. With her partner, however, she said she was using ice, cannabis and alcohol daily.
In January 2018, the applicant was convicted of theft of a motor vehicle, possessing methylamphetamine, committing an indictable offence while on bail, negligently dealing with the proceeds of crime and several traffic offences, and sentenced to a community correction order.
Again, at the hearing the applicant could not recall details of this offending albeit that she said she was in 2018 still using ice, cannabis and alcohol daily.
In February 2018, the applicant was convicted of failing to answer bail (six charges), theft from a shop, attempting to obtain property by deception, robbery, criminal damage, contravening a family violence interim intervention order, unlawful assault (two charges) and intentionally causing injury, and sentenced to a community correction order.
Again, at the hearing the applicant could not recall details of this offending other than with respect to contravention of the interim intervention order. The order was granted in July 2016 and prohibited the applicant from committing family violence against her mother or being within 200 metres of where she lives.[60] The circumstances that gave rise to the order are outlined later. As for the contravention of the order, both the applicant’s and her mother’s evidence at the hearing and material before the Tribunal suggest that it simply entailed the applicant being present at her mother’s home on the day before the order expired, at the mother’s invitation.[61]
[60] G5, 62.
[61] G5, 120.
In September 2018, the applicant was convicted of contravening the February 2018 community correction order, contravening the January 2018 community correction order, committing an indictable offence while on bail, robbery, theft (six charges), theft from shop, obtaining property by deception, theft of a motor vehicle, failing to stop vehicle when requested, stating a false name when requested and common law assault, and sentenced to a term of imprisonment for 161 days and to a community correction order.
According to the applicant she contravened the community correction orders because she was heavily under the influence of illicit drugs.
In January 2019, the applicant was convicted of contravening a community correction order (two charges), stating a false name when requested, committing an indictable offence while on bail, failing to answer bail, theft from shop (four charges), theft and unlawful assault, and sentenced to a two-month term of imprisonment.
After her release from prison for this offending and up until she was placed on remand in July 2019, the applicant says she was using ice daily and that there was not a time when she was sober.
In November 2020, the applicant was convicted of theft (three charges), obtaining property by deception, handling/receiving/disposing of stolen goods, robbery (two charges), carjacking (using force to steal a vehicle) and intentionally causing injury. On appeal in May 2022, the total effective term of the various sentences of imprisonment imposed with respect to these offences was reduced from six years to five years and three months.
The November 2020 convictions relate to several incidents that took place over a two-week period in July 2019.
In the first incident, her Honour Judge Marich found that the applicant was involved in the planning of a theft which resulted in the victim being threatened by the applicant’s co-accused with a knife held to the victim’s throat. I reject the applicant’s evidence at the hearing to the effect that she did not know that her co-accused intended to commit a robbery.
A second incident saw the applicant, in company, physically attacking a female victim before stealing the victim’s mobile phone and some credit cards.
In a third incident, a stolen vehicle in which the applicant was a passenger was involved in an accident and subsequently crashed. The applicant and another then attacked a person who had intended to render assistance, punching and kicking him and stomping on his head. The victim lost consciousness and sustained a fractured eye socket, requiring hospitalisation. The applicant and her co-offender took the victim’s car, leaving the scene at high speed. This third incident was described by her Honour Judge Marich as an “appalling attack” involving “dreadful behaviour.”[62] It was, according to her Honour, a serious example of the offence of intentionally causing injury.
[62] G5, 59.
In a fourth incident the applicant assaulted and then stole the car of a man who had agreed to give her and a co-offender a lift home.
As for the seriousness of the applicant’s conduct, the applicant is said to acknowledge that it has been serious, at least in relation to “her conviction for robbery and intentionally causing injury.”[63] A broader acknowledgment of seriousness is made in the A SFIC. There it is expressed to apply to her “index offences” (being the July 2019 offending), which were accepted as being “at the higher end of the range of seriousness”.[64]
[63] G5, 84. Another, even broader, acknowledgement was made on the applicant’s behalf, stating that “…the nature of her past offending is serious” at G5, 87.
[64] A SFIC [41].
When regard is had to the factors to which I am required by Direction 99 to have regard, the applicant’s offending has not only been serious; some of it has been very serious.
I turn now to a consideration of those factors.
Without limiting the range of conduct that may be considered very serious, viewed very seriously by the Australian Government and the Australian community are violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence[65]
[65] Direction 99, cl 8.1.1(1)(a). At A SFIC [41] the acknowledgement is broader, being in respect of the applicant’s “index offences”.
A finding that at least some of the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 99 to have. As is apparent from the description earlier of that offending, it involved crimes of violence, such as assault and intentionally causing injury, as well as a crime of a violent nature against a woman.
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against government representatives or officials in the performance of their duties[66]
[66] Direction 99, cl 8.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[67]
[67] Direction 99, cl 8.1.1(1)(c).
The applicant has received several sentences of imprisonment. On the material before me it suggests that she has been imprisoned three times (albeit that at the hearing the applicant says four times).
While the sentences imposed were less than the maximum penalty for the relevant offences, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[68] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[69]
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[70]
[68] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[69] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[70] Direction 99, cl 8.1.1(1)(d).
As is apparent from the description of her offending, in the roughly four-year period prior to her incarceration in July 2019 the applicant frequently offended.
Moreover, as I see it, in that period, her offending became increasingly serious, culminating in the July 2019 incidents described earlier which, as noted by her Honour Judge Marich,[71] represented an escalation in the applicant’s offending.
The cumulative effect of repeated offending[72]
[71] G5, 59.
[72] Direction 99, cl 8.1.1(1)(e).
The effect of the applicant’s offending in terms of harm it has caused is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct.
Moreover, the applicant’s ongoing offending and the lifestyle that caused or at least accompanied it, has had a severe negative effect on the applicant’s capacity or willingness to contribute positively as a mother to her two children, to her broader family and to the community in general.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[73]
[73] Direction 99, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
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)[74]
[74] Direction 99, cl 8.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia[75]
[75] Direction 99, cl 8.1.1(1)(h).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should she commit further offences or engage in other serious conduct

I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.[76]
[76] Direction 99, cl 8.1.2.
In assessing risk, I am required by Direction 99 to have regard, cumulatively, to:
I am also required to “…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…”. Indeed, the harm from some conduct may be so serious that any risk of its repetition is unacceptable.[78]
[78] Direction 99, cl 8.1.2(1).
As to the nature of harm to individual members of the Australian community should the applicant engage in further criminal or other serious conduct, informed by her history of offending, I find that it would likely involve financial harm through property offences involving theft and deception and physical harm (potentially very serious physical harm) from acts of violence, with the latter type of harm giving rise to the real prospect of psychological harm.
As to the nature of harm to the Australian community were the applicant to engage in further criminal or other serious conduct, again informed by her history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.
As for the likelihood of the applicant engaging in further criminal or other serious conduct, I am not satisfied that it is likely. In particular, I have had regard to what I consider to be the applicant’s genuine efforts to try to turn her life around by engaging while in prison in numerous courses and programs having a potential pro-social effect (details of which are outlined later). Nevertheless, while the applicant engaging in further criminal or other serious conduct might not be likely, I find that there is a high risk of her doing so.
Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a significant risk of her doing so again.[79]
[79] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[80] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[81] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[82] Included within that “more” are facts about the relevant person’s circumstances, or about the nature and circumstances of the person’s past conduct, that rationally support the assessment of the person’s risk of engaging in the relevant conduct.[83]
[80] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[81] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.
[82] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
[83] In Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 at 574, it was said that the “…extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” In Splendido at [78], it was said that the “…nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.” In Hughes v R [2017] HCA 20 at [174], Nettle J (albeit in dissent) stated that “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
As I see it, facts concerning the applicant’s circumstances and the nature and circumstances of her past conduct are supportive of an assessment of her risk of recidivism as being high.[84]
[84] The task of assessing risk involves the consideration of future possibilities which “proceeds by drawing inferences from known facts” and is based on “reasonable conjecture within the parameters set by the historical facts”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [38]-[39].
We are not here dealing with a singular offence or conduct so aberrant that there ought to be no expectation of its repetition. In this regard, in a different but analogous context, the plurality in DMQ20 noted that criminal “…behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender—for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.”[85]
[85] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 at [141].
Here, in the four-year period leading up to her incarceration in July 2019, the applicant frequently offended. Her offending not only increased in seriousness but also reflected an apparent willingness to engage in violence in the course of committing property offences. Moreover, the applicant’s history of non-compliance with judicial orders, contravention of bail conditions and community correction orders and offending while on bail suggests a lack of respect for Australia’s law enforcement framework.
As I see it, the foregoing is indicative of some attitude or character trait or condition that renders the applicant prone to disregard lawful requirements and engage in conduct of the type she has engaged in.
I arrive at this view despite a psychologist (Mr Ian Mackinnon) having opined in February 2020 that the applicant was a “…genuinely troubled individual who does not possess an inherently antisocial or criminal character”.[86]
[86] Exhibit A1, Mackinnon, February 2020 report, 8.
Mr Mackinnon’s opinion in this respect reflected others he had expressed but which her Honour Judge Marich decided in November 2020 not to adopt.
Mr Mackinnon had opined that the applicant “…is not likely to behave in an especially aggressive or violent manner, nor is she likely to instigate offending of any kind,” and that she had good prospects of rehabilitation (despite also opining, somewhat presciently, that she was unlikely to make further significant rehabilitative improvement within the prison environment).[87] Judge Marich clearly did not agree, stating in relation to the applicant that, “…given your previous criminal histories, your entrenched drug addictions, and the escalation in offending that this spree of offending represents, I am guarded about your prospects for rehabilitation”.[88]
[87] G5, 56.
[88] G5, 59.
Mr Mackinnon also opined that, at the time of her July 2019 offending, the applicant was suffering with symptoms that met the clinical criteria for Post-Traumatic Stress Disorder, of moderate intensity, and considered that her substance abuse may be considered to be one such symptom. Again, her Honour Judge Marich declined to adopt that opinion.[89]
[89] G5, 57.
Her Honour clearly had concerns about the quality of Mr Mackinnon’s evidence and preferred the opinion of a consultant psychiatrist, Dr Fiona Best. Dr Best disagreed with Mr Mackinnon’s diagnosis of Post-Traumatic Stress Disorder. “I will here interpolate that I accept Dr Best’s evidence generally as to the shortcomings of Mr McKinnon’s diagnostic methods which rested substantially upon clinical observation during the assessment meetings. I considered that his evidence was general and not specific, and I am unable to find his opinion to have the quality and reliability necessary for me to accept the diagnosis that he made. I will turn to the evidence of Dr Best… On her assessment of you, she said that there was no evidence of any major mental illness and as such that you were not in need of any psychiatric treatment. From your long history of substance abuse, Dr Best diagnosed you with a Cannabis Use Disorder (DSM-5), Amphetamine Use Disorder (DSM-5) and Alcohol Use Disorder (DSM-5).”[90]
[90] Ibid.
In any event, I note that Mr Mackinnon’s opinion that the applicant is not likely to instigate offending of any kind and that she had good prospects of rehabilitation was qualified. It was expressed to apply if the applicant was in “sober and stable circumstances.” The difficulty here is that the Mr Mackinnon appeared to consider that there was a significant risk of the applicant finding herself in circumstances that were not stable and sober. Her condition was, he considered, one that “demands ongoing psychological therapy and if she is not treated appropriately, the likelihood of her relapsing into substance abuse, becoming involved in another abusive relationship and reoffending, will remain significant.” This is in a context where the applicant was not then,[91] and is not now,[92] receiving any psychological or psychopharmacological therapy or treatment.
[91] When initially placed in prison the applicant was treated with antipsychotic, antidepressant and anti-spasm medication. This treatment was, however, temporary, to address the applicant’s substance-induced psychosis.
[92] SG290.
Reinforcing my view that the applicant has attitudinal or character traits or issues that render her prone to offend are the results of a “Level of Service/Risk, Need, Responsivity” assessment undertaken by Corrections Victoria in November 2023. The applicant’s “procriminal attitude/orientation” was ranked as “very high”,[93] she was assessed as having clear problems with compliance, problem-solving/self-management skill deficits and anger management deficits and was said to be intimidating/controlling.[94]
[93] SG354.
[94] SG355.
The applicant’s history of offending is not the only thing indicative of some attitude or character trait or condition that renders her prone to disregard lawful requirements and engage in criminal conduct. In this regard, a favourable view as to the applicant’s risk of recidivism is difficult to reconcile with her conduct in prison.
While a person’s conduct when free in the community may well differ from that displayed by the person in prison, what can be said about much of the applicant’s conduct in prison is that it has not been consistent with that of a person whose use of illicit drugs is in total remission or whose risk of recidivism is not significant. While, as the applicant submitted, she has not been convicted of (let alone charged with) offences due to her conduct in custody,[95] there are, as she conceded “…entries on her prison record which do not reflect well on her”.[96]
[95] Reply [4].
[96] A SFIC [53].
An email of October 2023 contained what was described as a “summary of incidents whilst incarcerated” involving the applicant.[97] In it she is said (with my emphasis) to have “…a total of 26 recorded incidents, of these incidents recorded 2 pertain to medical/accidental injury. The remaining 24 pertain to behaviours that were not of good order for the prison, inclusive of other drug related incidents, positive drug screens, threats of assault and actual assaults on other prisoners. …[The applicant] has spent time in the management unit on 6 separate occasions because of the abovementioned incidents (namely assaults). On two separate occasions, …[the applicant] was classified as a long-term management prisoner. …[The applicant] is currently being housed in our management unit following a more recent allegation of assault on prisoner/s in July 2023…”.[98]
[97] G5, 172.
[98] I note that the applicant equates being placed in a management unit with being placed in solitary confinement, A SFIC [49].
As for the non-medical incidents involving violence referred to in the email, the applicant accepted that, while in prison, she had been involved in “physical and verbal altercations” for which she says she takes full responsibility.[99] Indeed, in November 2023, on a spectrum concerning violence during institutionalisation, the applicant’s prison case worker ranked the applicant at the most frequent or serious end of the spectrum.[100] The applicant suggested that her conduct in prison at least initially was due to her having to adjust to being separated from her children.[101] As outlined later, however, she has been physically absent from her children for most of their lives.[102] The majority of the altercations in which the applicant has been involved while in prison are said by her to have “occurred in the defence of self due to negative environment & the people around.” She suggested that she has been subjected to bullying on account of her race “on countless occasions”[103] and that she has been taunted because she could “be deported and my children will be left alone in Australia without me.”[104]
[99] Exhibit A2 [12].
[100] SG344.
[101] G5, 103.
[102] SG320.
[103] Exhibit A2 [10].
[104] Ibid.
As for the July 2023 incident referred to in the email, it is said in an August 2023 report of Mr Simpson of Corrections Victoria’s Forensic Intervention Services that the applicant “…and a co-offender…were responsible for the assaults of at least six prisoners on 27/07/2023 whilst under the influence of illicit substances…There is evidence that both …[the applicant] and her co-accused were under the influence of methamphetamine. lnformation received also highlights that …[the applicant] was encouraging and directing her co-accused on who to assault.”[105]
[105] SG325.
The applicant describes the incident somewhat differently. She states that she had not been found to be the aggressor and that the police have charged another prisoner in relation to the incident.[106] The police are said to have no plans to charge the applicant over the incident due to insufficient evidence.[107] The applicant contends that she was simply misidentified as the perpetrator of the assaults.[108]
[106] G5, 104.
[107] SG289.
[108] Reply [5].
In addressing her prison conduct it was said on the applicant’s behalf that her progress in a prison environment was not necessarily “a useful proxy for how she would perform in the community”[109]. Reference was made to the Mr Mackinnon’s 2020 opinion that “the dangers and threats inherent in the prison environment may destabilize …[the applicant’s] mental health and make it difficult for her to make further rehabilitative progress.”[110]
[109] A SFIC [53].
[110] A SFIC [54].
Insofar as it is intended by these comments to contend that the applicant’s poor conduct in prison is attributable to the prison environment, I reject it. The conduct of concern (involving violence and the consumption of illicit drugs) was conduct of a type engaged in by the applicant when free in the community.
As for the “drug testings” listed in the incidents mentioned in the email referred to earlier, while the applicant said she took “full responsibility” she nevertheless went on to note that a failure to produce a urine sample can be classified as a positive analysis[111] (albeit she did not state that this was the case in relation to the incidents involving her “positive drug screens”).
[111] G5, 105.
As for the comment in the August 2023 Forensic Intervention Services report about the applicant being under the influence of methamphetamine at the time of the July 2023 incident, the applicant now denies this. I note, however, that in the A SFIC her use of methamphetamine at the time appears to have been accepted.[112] Indeed, in her January 2024 statement (Exhibit A2), the applicant states that she “takes full responsibility for the fact that I used methamphetamines in July 2023”.[113] I also note that the applicant failed to provide a urine sample at the time;[114] a failure which, at the hearing, she said was due to her being unable to produce urine on the day in question.
[112] A SFIC [48] where it is said that “she is presently in solitary confinement due to an incident that occurred on 27 July 2023 where she consumed methamphetamine and then allegedly assaulted six prisoners”.
[113] Exhibit A2 [19].
[114] SG284, where the failure to provide a sample is characterised as a refusal to do so.
The applicant did not, however, deny all substance abuse while in prison. While asserting that she had abstained from substance abuse for the majority of her time in prison,[115] she accepted that she had used illicit drugs in prison four or five times. For example, she accepted that she had used cannabis in March 2023 (having tested positive for cannabinoids)[116], that she had used methamphetamine in December 2022 (again, having tested positive[117]) and that she had last used methamphetamine in March 2023.[118] The applicant also acknowledged drinking a bottle of ethanol in May 2023 (which she says was because she was feeling suicidal).[119]
[115] Exhibit A2 [21].
[116] SG284.
[117] SG265.
[118] See SG284, listing Governor hearings in relation to substance related incidents.
[119] Exhibit A2 [14].
In terms of an assessment of the applicant’s risk of recidivism, these relapses are very troubling. There is an acknowledged causal nexus between her substance abuse and her offending. In this regard, in sentencing the applicant with respect to her July 2019 offending, her Honour Judge Marich appeared to accept Dr Best’s opinion that there was “…a link between your illicit drug use and the alleged offending…” such that it was “…highly likely that your illicit drug use affected your ability to exercise appropriate judgement and make calm decisions and think clearly at the time of offending.”[120]
[120] G5, 57.
The linkage between the applicant’s use of illicit drugs, particularly ice, and her offending is, at least in part, explicable in a context where it is said that people “…intoxicated with methamphetamine are approximately five times more likely to be hostile and express aggression than people who are not.”[121]
[121] SG326.

The applicant’s relapses into illicit drug use are also troubling because they appear to have occurred after a significant period of abstinence. In this regard, in May 2021, the applicant stated that she sincerely regretted her drug use and that in prison she had been able to get clean. She reported on her pride in being on her way to two years in recovery from substance abuse.[122]
[122] G5, 115-116.
Lastly, the applicant’s relapses concerning illicit drug use are also troubling because they occurred despite her engagement in a variety of programs, some designed specifically to prevent relapse.
In terms of drug specific programs, the applicant completed a 12 hour relapse prevention program when initially incarcerated in 2019. This was followed in 2021 by a six session drug and alcohol program with Caraniche “to understand the meaning of relapse prevention and the different between lapses and relapse.”[123] These programs in prison are on top of a program made available to the applicant and one in which she participated “off and on” in the period from February 2015 to September 2017, when free in the community. This program was run by the Youth Support + Advocacy Service. The applicant initially sought support from the Service “related to her substance use and disclosed daily cannabis, alcohol and ice use.”[124] That use had apparently “led to homelessness, conflict and disconnection from family and community.” The applicant’s engagement with the Service involved “…a combination of interventions including AOD specific youth outreach, counselling and reflection sessions as well as casework and care planning related to treatment goals identified.”[125]
[123] G5,115; SG310.
[124] G5, 140, the service is there described as one which aims to provide services to young people aged between 12 and 25 years with complex drug related issues.
[125] G5, 141.
In her January 2024 statement the applicant suggests that, as a result of her having completed these various programs, she now had “a solid understanding of the dangers and damaging complications which drugs of dependence can cause. Before undergoing rehabilitation, I was unaware of many negative effects of drug use.”[126] She then went on to outline what she had learned about the negative effects of drug use.[127]
[126] Exhibit A2 [36].
[127] Exhibit A2 [37].
That she has had relapses into drug use after and despite her participation in these programs, despite the knowledge about the adverse effects of drug use she had acquired from that participation and despite being in the heavily supervised environment of a prison suggests an entrenched addiction. This does not bode well for the prospects of the applicant remaining drug free when in the relatively unconstrained environment of the community.
The foregoing is not intended to suggest that there are no protective factors tending to ameliorate the risk of the applicant re-offending. As was the case when considering in November 2023 the applicant’s suitability for parole, however, it is difficult to identify many protective factors of significance.[128]
[128] SG292.
In terms of her employability, she is unable to work in the sector in which she trained (child care) due to her criminal record. Moreover, I find that she gained little, if any, experience in other work while in the community.[129] Set against this, however, is that, while in prison, she has engaged enthusiastically in work[130] and completed a variety of vocational courses and programs. In this regard, I note that the applicant completed:[131]
[129] SG285.
[130] G5, 130-131.
[131] See Exhibit A6.
(a)In July 2020 a Specialised Cleaning Short Course.
(b)In November 2020 a unit of study in Certificate III in Cleaning Operations.
(c)In February 2021 various units of study in Certificate I in Business.
(d)In February 2021 various units of study in Certificate II in Business.
(e)In February 2021 a unit of study in Certificate II in Cleaning Operations.
(f)In February 2021 Certificate III in Retail.
(g)In February 2021 Certificate II in Retail Services.
(h)In February 2021 various units of study in Certificate I in Access to Vocational Pathways.
(i)In February 2021 various units of study in Certificate 1 in Construction.
(j)In February 2021 a Provide First Aid unit of study.
(k)In January 2022 Certificate II in Supply Chain Operations.
(l)In February 2023 Certificate III in Entrepreneurship and New Business.
The applicant submits that she has completed various other vocational programs, such as Certificate I in Digital Media Information and Technology, Certificate II in Warehousing Operations.[132]
[132] G5, 73; G5, 105.
Moreover, the applicant has engaged with an organisation that assists women to prepare for employment upon release and plans to work in civil construction.[133]
[133] Exhibit A2 [50].
In addition to vocational programs, the applicant has completed a variety of behavioural change programs, such as:[134]
(a)Programs entitled ‘Atlas Mapping the Way Forward’ (an Adapt Program),‘Take Stock A and B’, ‘Health Living’, ‘Jobs and Careers’, ‘Family and Community’ and ‘Living Free from Violence’.[135]
(b)An RMIT ‘Inside Out Prison Exchange Program of Comparative Criminal Justice Systems.
(c)Parenting programs entitled Tweedle Parenting Course’, ‘Getting to know your Teens’, ‘Strengthening Connections’, ‘Tuning into Respectful Relationships’, and ‘Positive Parenting Program.’
(d)A Salvation Army Positive Lifestyle Program for Individuals.[136]
(e)A Forensic Intervention Services Sea Change for Women program involving intensive therapy three times a week, a program completed in December 2023.[137]
[134] G5, 132-134.
[135] G5, 86; G5, 116; G5, 137.
[136] Exhibit A6.
[137] Exhibit A2 [29].
I find that the applicant’s participation in these various programs reflects a genuine desire to rehabilitate and to participate positively when in the community.
Nevertheless, I note that the applicant’s participation in programs when free in the community (such as the Youth Support + Advocacy Service program and programs she would have been required to participate in pursuant to her multiple community correction orders) did not prevent her from then offending. Nor did her participation in programs while in prison prevent her from being involved in a number of incidents of concern and occasionally relapsing into illicit drug use.
I accept that the applicant is remorseful for her conduct and that she is sincere in her deep regret, particularly for her offending in July 2019.[138] I note that:
(a)when sentencing the applicant in November 2020, her Honour Judge Marich considered the applicant to be remorseful for her actions.[139]
(b)when assessing the applicant in 2020, the psychologist, Ian Mackinnon, stated that she presented as being genuinely distressed and remorseful over her offending.[140]
(c)in a Forensic Intervention Services Corrections Victoria report of April 2021, the applicant was said to have expressed remorse for her offending and to have insight into victim impacts.
[138] Exhibit A2 [27].
[139] G5, 50.
[140] G5, 115.
It is clear, however, that the applicant’s remorse for her conduct when free in the community did not prevent her from engaging in further problematic conduct while in prison. Moreover, while remorseful for it, the applicant would appear to minimise her role in her offending.[141]
[141] SG282; 319.
Nevertheless, it is because of the applicant’s remorse and her genuine desire to rehabilitate and to participate positively when in the community that I am not satisfied that it is likely that she will engage in further criminal or other serious conduct.
The applicant’s remorse and desire to rehabilitate are not the only pro-social factors said on her behalf to apply in the circumstances.
In this regard, it is clear that she would have the support of family members were she to be released into the community, as reflected in the evidence of the applicant’s mother, her sister (Ms RN) and her brother (Mr JM). I do not, however, attribute significant weight to that support in terms of its being a factor protective against the risk of recidivism.
First, the applicant will not be living with her family on release into the community given the attitude of the Victorian Department of Families, Fairness and Housing to her living with her children (outlined later). Instead, she intends to live with her cousin.[142] Secondly, it is clear that the support of the family has not, in the past, acted as a protective factor of significance. After expiry of an interim intervention order in mid-2017 (discussed in more detail later) and prior to her being placed on remand in July 2019, the applicant spent some time living with her family.[143] It was in that period that the applicant committed her most serious offending. When released from a stint in prison in early 2019 the applicant returned to the family home for a short period of time but then became isolated from her family,[144] falling back into a pattern of drug use. Indeed, according to the applicant, there was not a time then when she was sober. Even when she was living at the family home in that period she was using ice daily.
[142] Exhibit A2 [41].
[143] G5, 120.
[144] SG282.
Other support would be available to the applicant if free in the community. A deacon of a presbyterian church has offered to support the applicant[145] and support from Jesuit Social Services through the African Visitation and Mentoring program is said to be available to assist with the applicant’s reintegration into the community.[146] On behalf of the applicant, however, it is not submitted that this support was unavailable to the applicant prior to her offending in July 2019 or, assuming it was then available, why it would be any more successful now in preventing the applicant from re-offending than it has been in the past.
[145] G5, 157.
[146] Exhibit A2 [41].
My assessment of the applicant’s risk of re-offending as being high is supported by, or at least consistent with, other assessments made in relation to the applicant. I note that:
(a)In a 2021 assessment undertaken by Corrections Victoria’s Forensic Intervention Services the applicant was said to fall in the high risk category for violence.[147]
(b)In a November 2023 assessment undertaken by Corrections Victoria the applicant was said to fall in the high risk category for general offending.[148]
(c)As mentioned earlier, in sentencing the applicant in November 2020, her Honour Judge Marich stated that she was guarded about the applicant’s prospects of rehabilitation given her criminal history, her entrenched drug addiction, and the escalation in offending reflected in her conduct in July 2019.[149]
(d)In an October 2023 letter from Victoria’s Department of Families, Fairness and Housing it was said that the “…pattern of …[the applicant’s] criminal offending and substance use over an extended period suggests a high likelihood of recurrence.”[150]
[147] SG311-323.
[148] SG354-356.
[149] G5, 59.
[150] G5, 174.
Protection of the Australian community: Conclusion
The applicant has engaged in very serious offending. If she were to re-offend, the resultant harm could be very significant. I find there to be a high risk that she will do so.
In these circumstances, the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, and it does so to a significant extent.
FAMILY VIOLENCE[151]
[151] Direction 99, cl 8.2.
The second of the primary considerations concerns family violence.
Despite the respondent’s submissions to the contrary, I find this consideration not to be of relevance in this proceeding.
I note that in July 2016 an interim intervention order was granted prohibiting the applicant from committing family violence against her mother or being within 200 metres of where her mother lives.[152]
[152] G5, 62. Despite a suggestion to the contrary at SG293, the parties proceeded on the basis that this was the only intervention order of relevance.
As mentioned earlier, in February 2018 the applicant was convicted of contravening the order.
On the material before me, I am not satisfied that the applicant’s conduct that resulted in the grant of the intervention order or in its contravention amounted to “family violence” for the purposes of Direction 99.
Under the Direction, “family violence” is defined to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”
In terms of the grant of the intervention order, evidence at the hearing from both the applicant and the applicant’s mother was to the effect that it was the result of an argument they had about custody of the applicant’s son. The argument involved some yelling and abusive language. It also involved the applicant throwing small stones at the door of the family home, causing no damage. While the applicant said she thought that she had caused her mother to be scared by her conduct, in fact, her mother’s evidence was that she was not scared. As such, in terms of the “family violence” definition, the applicant did not cause her mother to be fearful.
In terms of the contravention of the intervention order, the preliminary brief concerning the resultant charge stated “Nil incident or Family Violence occurred”.[153]
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA[154]
[153] SG62.
[154] Direction 99, cl 8.3.
As to the consideration concerning the strength, nature and duration of the applicant’s ties to Australia, in the circumstances, it requires that consideration be given to:
(a)Any impact of a decision to revoke or not revoke the visa cancellation decision[155] on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely,[156] giving more weight to the applicant’s ties to her children (noting that they are all Australian citizens).[157]
(b)The strength, duration and nature of any family or social links generally of the applicant with Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[158]
(c)The strength, duration and nature of any other ties that the applicant has to the Australian community, having regard to the length of time she has resided in the Australian community noting that:
i.If the applicant had been ordinarily resident in Australia during and since her formative years, considerable weight would need to be given to that fact;
ii.More weight should be given to the time the applicant has resided in Australia where she has contributed positively to the Australian community during that time;
iii.Less weight would need to be given to the length of time spent by the applicant in the Australian community if she had not been ordinarily resident in Australia during her formative years and she had begun offending soon after her arrival in Australia.[159]
[155] In cl 8.3 of Direction 99, reference is made to the impact of “the decision”.Section 501CA only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 8.4 of Direction 99 where the reference is to “non-revocation” under s 501CA but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in a predecessor direction was construed in a way that directed consideration only of a decision to revoke a visa cancellation decision.
[156] Direction 99, cl 8.3(1).
[157] Direction 99, cl 8.3(2).
[158] Direction 99, cl 8.3(3).
[159] Direction 99, cl 8.3(4).
Immediate family
The applicant states that her “major ties” to the Australian community consist of her immediate family, her son and her daughter.[160]
[160] Exhibit A2 [44].
I consider the impact of a decision not to revoke the visa cancellation decision on each of the applicant’s children in the context of the best interests of minor children in Australia consideration. I refer to and repeat the comments I make in that context in relation to those children. In essence, I find that the impact of a non-revocation decision on each of them to be adverse, and moderately so.
I accept that the applicant has maintained a significant relationship with her children while she has been incarcerated through daily telephone contact, weekly audio-visual contact and occasional prison visits.[161] A decision not to revoke the visa cancellation decision will likely make it harder to maintain that relationship, especially as the children grow older. It will also mean that any opportunity to enhance that relationship will be lost or, at least, significantly impaired.
[161] G5, 108, 118; Exhibit A2 [66].
As outlined later, however, the relationship the applicant has with her children is not such as might exist had she assumed the responsibilities associated with raising them. While biologically she is their parent, parental responsibilities in relation to them have to date largely been borne by others, in particular, the applicant’s mother, aided by the applicant’s siblings.
Apart from her children, other immediate family members of the applicant in Australia comprise her mother, who is an Australian citizen and six siblings (of whom the applicant is the oldest). I accept the applicant’s submission to the effect that they would be adversely affected by a decision not to revoke the visa cancellation decision.[162]
[162] A SFIC [61].
The applicant says she has a close relationship with her mother.[163] In an April 2021 statement the mother said she and the applicant speak every day. The mother says she is terrified of the applicant being removed from Australia.[164]
[163] G5, 145.
[164] G5, 148.
The applicant suggests that she has been of great assistance to her mother and has provided support to her in raising the applicant’s siblings and children.[165] She says that her mother “relies on me to help around the house and to ensure that my younger siblings are cared for.”[166] She says she supports her mother emotionally, financially and in her parenting,[167] has worked to support her family[168] and “… was helping to support my mum, pay our bills, and care for the youngest before I came to prison.”[169] The mother corroborates this. According to her, prior to being in custody, the applicant “took care of our family and her family; she helped with the various payments through her work and she helped around the house.”[170] In April 2021, the mother said that without the applicant she would not be “able to continue with the mortgage.”[171]
[165] Exhibit A2 [73].
[166] G5, 117.
[167] G5, 121.
[168] G5, 110.
[169] G5, 118.
[170] G5, 145.
[171] G5, 148.
On the material before me, I find that these statements exaggerate the level of support in fact provided by the applicant to her mother. The applicant’s relationship with her mother, and family in general, has fluctuated. In February 2015 the applicant was said to be using ice daily, disconnected from her family due to her substance abuse and to have experienced homelessness.[172] After the applicant’s son was born (December 2015) the applicant says she “was feeling really upset… so I went back into that scene because that was all I knew.”[173] As mentioned earlier, in July 2016, a 12 month intervention order was made prohibiting the applicant from being within 200 metres of where her mother lives. The applicant’s evidence was, in effect, that in 2017, 2018 and 2019 she was in the depths of her addiction, using ice daily. Prior to the birth of the Daughter (July 2017) the applicant was not living at the family home.[174] After the Daughter was born the applicant says she followed her friends and did terrible things and made terrible choices.[175] She went to prison in 2018. When leaving prison in 2019 the applicant was said to have returned to live with her family for only a small amount of time. Leading up to her offending in July 2019 the applicant was only occasionally staying at the family home.[176] At the time of that offending she was said to be isolated from her family.[177] As for the applicant assisting with the children, I note the mother’s evidence at the hearing that she has been entirely responsible for the applicant’s children since their birth. As for the applicant assisting financially “through her work”, it is difficult to see how this could have been of any significance given the applicant’s employment history (a matter discussed later).
[172] G5, 140. See also G5, 114.
[173] G5, 114.
[174] G5, 120.
[175] G5, 115.
[176] Exhibit A1, February 2020 Mackinnon report.
[177] SG282.

It is in the context of the risk of removal of the applicant from Australia that the issue of non-refoulement obligations arises.
Such obligations are a subset of ones owed by Australia under international law. As was said in Ali,[247] “[t]he term ‘non-refoulement’ is derived from” Article 33 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 Art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)” (Refugees Convention).
[247] Ali v Minister for Home Affairs [2020] FCAFC 109 at [24].
Article 33 of the Refugees Convention provides that:
“[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
While the concept of non-refoulement might be derived from a provision of the Refugees Convention, it is not the sole source of Australia’s international non-refoulement obligations. Other sources were identified by the Full Federal Court in CKT20.[248] There it was said that:
“[50] Australia owes obligations under international law as a signatory to the following instruments:
….
the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) (ICCPR); and
the 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) (CAT).
…
[52] The ICCPR relevantly prohibits a person being “arbitrarily deprived of his life” or sentenced to death in certain circumstances (Art 6); being subjected to “torture or to cruel, inhuman or degrading treatment or punishment” (Art 7); being subjected to servitude or slavery (Art 8); or being subjected to arbitrary detention or arrest (Art 9).
[53] The CAT prohibits a state from refouling or extraditing a person to another State “where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Art 3).”
[248] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124.
Direction 99 contains a description of a non-refoulement obligation and identifies various sources of such obligations. In cl 9.1(2) of the Direction, it is said that:
“A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).”
Applicant’s statelessness?
Refoulement of the applicant would involve her removal to another country. On her behalf it is submitted that she is stateless. [249] If that were so, her removal from Australia might well be rendered impracticable and her prolonged detention likely. I, however, reject that submission.
[249] A SFIC [101].
Under the Nationality Act 2011 of South Sudan:[250]

(a)A “South Sudanese National” is defined to be a person who satisfies the eligibility criteria provided under Chapters III and IV of the Act (s 5).
(b)While Chapter IV of the Act deals with nationality by naturalisation, Chapter III deals with nationality by birth.
(c)Under a provision of Chapter III (s 8) a person “shall be considered a South Sudanese National by birth” if, amongst other things, any of the person’s parents was born in South Sudan or the person belongs to one of the indigenous ethnic communities of South Sudan.
(d)The Minister of the Interior is obliged to issue a certificate of nationality to an applicant who is a South Sudanese National by birth (s 9).
[250] SG493-501.
As I construe that Act, under its nationality by birth provisions, a person need not apply for citizenship to be a citizen. If the person satisfies the relevant eligibility criteria, the person is declared to be a citizen. The person “shall be considered a South Sudanese National” and the executive has an obligation (not discretion) to issue a certificate of nationality if applied for. I note that this construction is consistent with that adopted by Member Hawkins in a 2019 Tribunal decision.[251]
[251] 1910307 (Refugee) [2019] AATA 467344]-[45].
The applicant satisfies the relevant eligibility criteria. Her mother appears to have been born in what is now South Sudan,[252] as was her father. In this regard, as defined in the Act, “South Sudan” would appear to constitute certain territory rather than the nation state (noting that South Sudan only acquired nationhood in 2011).[253]
[252] G5, 145.
[253] Nationality Act 2011 (South Sudan), at s5 defines “South Sudan” to mean “the territory, including airspace and territorial waters, of the South Sudan…”.
As the applicant satisfies those eligibility criteria, she is a South Sudanese national under the law of South Sudan and, hence, she is not stateless.
The applicant says that she has no passport or identity card establishing her South Sudanese nationality and no one in South Sudan able to attest to her place of birth.[254] Given this, it is submitted that “…even if the Applicant is entitled to South Sudanese citizenship, she may be rendered stateless by the practical impossibility of proving it.”[255] I accept that submission insofar as it suggests that there may well be practical difficulties in establishing her citizenship of South Sudan. Those difficulties may adversely affect the practicability of her removal to South Sudan and thereby prolong her period in detention.
[254] A SFIC [101]; Reply [19].
[255] Reply [20].
Applicant non-refoulement representations
While the applicant states that she does not know whether she has a right to South Sudanese citizenship[256] and on her behalf it is contended that she is stateless, she nevertheless speaks of South Sudan as “my country”[257] and her submissions concerning non-refoulement focus on the prospect of her removal to South Sudan.[258] In particular, she submits that Australia would be in breach of non-refoulement obligations it owes under each of the Refugees Convention, the ICCPR and the CAT were she to be removed to South Sudan.[259]
[256] G5, 111.
[257] G5, 117.
[258] See for example A SFIC [91], [100].
[259] G5, 94-98; A SFIC [100].
Given the description outlined earlier of Australia’s non-refoulement obligations and without seeking to be exhaustive, the applicant’s forcible removal to South Sudan would result in a breach of those obligations if it would:
(a)threaten the applicant’s life or freedom on account of her race, religion, nationality, membership of a particular social group or political opinion; or
(b)give rise to a necessary and foreseeable risk of irreparable harm (such as harm to the inherent right to life and harm by way of torture or by way of cruel, inhuman or degrading treatment or punishment).
It is submitted that, on removal to South Sudan, the applicant’s life or freedom would be threatened, and that there is a real risk that she will suffer serious harm. That threat and risk is said to be attributable to “… her gender as a woman, her dual ethnicity as a Dinka-Nuer person and her membership of a particular social group, namely returnees from the West.”[260] While reference was made to the applicant being at risk as a returnee “from the West,” the focus of submissions made in support of the reality of the threat she faced was on her gender and ethnicity.[261] The applicant contended that, were she to be removed to South Sudan, she would be at risk of harm “on account of her Nuer and her Dinka ethnicities and as single woman.”[262] She said she was terrified that she would “face the threat of forced marriage, rape or sexual assault, persecution, harm and death because of my gender and my ethnicity as a Dinka-Nuer woman.”[263]
[260] Reply [2].
[261] A SFIC [103].
[262] G5, 94.
[263] Exhibit A2 [80].
In terms of the risk of harm on account of her ethnicity, the applicant states that her “…biggest fear is that because I am half Dinka, half Nuer that everyone will see me as an enemy. They still kill people for who they are. My birth name is Dinka - ‘Akech' means 'born without a dad'. That identifies me as Dinka but I speak Nuer and it will be obvious from the way I speak that I'm a half caste child.”[264] According to the applicant’s mother, because of the applicant’s dual ethnicity “…she doesn't fit in anywhere. Everyone will think she is an enemy. I am afraid she would be killed.”[265] In corroboration of the applicant’s safety concerns based on ethnicity, on her behalf reference was made to various reports speaking to the prevalence in South Sudan of violence between predominantly Dinka and predominantly Nuer factions[266].
[264] G5, 117.
[265] G5,148.
[266] G5, 95, where reference is made to Overseas Security Advisory Council, Bureau of Diplomatic Security, U.S. Department of State, South Sudan 2020 Crime & Safety Report and a news bulletin from the Office of the UN High Commissioner for Human Rights in May 2020. The applicant also referred more generally to a Department of Foreign Affairs and Trade, Country Information Report: South Sudan, 2016 (DFAT report) and to a United States Department of State’s South Sudan 2022 Human Rights Report (US 2022 report).
In terms of the risk of harm on account of the applicant’s gender, the applicant states that she is “scared to be raped, forced to marry, or be stolen and made to be a piece of someone else's life.”[267] Again, in corroboration of the applicant’s concerns in this regard, reference was made to various reports speaking to the prevalence in South Sudan of physical and sexual violence directed to women and girls.[268] Reference was also made to a finding in the Department of Foreign Affairs and Trade, Country Information Report: South Sudan, 2016 at [3.44] where it is said that “…women in South Sudan face a high risk of official and societal discrimination and violence…often exacerbated by other factors such as a woman’s ethnicity or perceived political affiliation.”[269]
[267] G5, 117.
[268] G5, 96-97; A SFIC [104].
[269] Reply [24].
Response to non-refoulement representations
Given that the applicant remains free to apply for a protection visa, I am not obliged to make a finding in response to the applicant’s submissions concerning non-refoulement, and I do not do so.[270] As the applicant is able to apply for a protection visa, it is open to the Tribunal “to defer consideration of representations concerning” the effect of Australia’s non-refoulement obligations.[271] Indeed, that course of action is specifically permitted by Direction 99.[272]
[270] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [34].
[271] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [142].
[272] Direction 99, cl 9.1.2(2).
In particular, I make no finding as to whether non-refoulement obligations are owed by Australia with respect to the applicant, whether removing the applicant to South Sudan would be in breach of those obligations or as to the consequences for the applicant or Australia of breaching such obligations.
The applicant submitted that that the Tribunal ought not defer consideration of the applicant’s representations concerning non-refoulement in “light of the ease with which enacted nonrefoulement obligations can be considered”[273] and, seemingly, because the delegate in the decision the subject of review did so.[274]
[273] Reply [23].
[274] Reply [24-25].
As I see it, however, it is not inappropriate to seek to have issues concerning non-refoulement addressed in the context of the Act’s protection visa provisions. It is those provisions which reflect the “the domestic implementation of” Australia’s non-refoulement obligations[275] and contain the “specific mechanism chosen by Parliament for responding to protection claims”,[276] with the scope of the non-refoulement obligations to which Australia is committed to implementing being reflected in the Act’s concept of “protection obligations.”[277] Deferral will simply result in the applicant’s claims with respect to non-refoulement being assessed in the context of those provisions of Australia’s domestic law intended to express Australia’s non-refoulement obligations.[278]
[275] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [37].
[276] Ibid [38].
[277] Direction 99, cl 9.1(2).
[278] Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 [43].
Insofar as Australia’s non-refoulement obligations are not encompassed within the Act’s protection visa provisions, they are not something which I must consider.[279] International obligations unenacted in Australian law are not mandatory relevant considerations. Indeed, in this regard, as mentioned earlier, the legal consequences of a decision “…are to be understood to be the consequences visited by Australian law on the persons whom the decision affects.”[280]
[279] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [29]; AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 at [51]; HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133 at [60].
[280] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [150].
It was submitted that the that “there is no realistic possibility that …[the applicant] will ever be granted a protection visa.”[281]
[281] A SFIC [94].
If it is thought to be unlikely that the applicant would succeed in being granted a protection visa, that might be because it is thought that Australia’s non-refoulement obligations (to the extent reflected in domestic law) are not engaged in her case. In any event, even if unsuccessful in obtaining a protection visa, proceedings for the grant of such a visa might in any event be considered a “success” if a “protection finding” was made in relation to her with respect to South Sudan[282] (as the applicant implicitly accepts is likely[283]) in the course of the proceedings. In this regard, removal of the applicant to South Sudan would then be neither required nor authorised.
[282] Act, s 197C(3). In this regard, under s36A of the Act, findings in relation to protection claims are required to be made in considering a protection visa application.
[283] A SFIC [99].
I note that there is authority for the proposition that the Tribunal need not consider the prospects of a successful protection visa application, being a matter of speculation: “Future exercises of discretion and statutory power are to be resolved when they arise.”[284] The Tribunal is “not required to speculate about future possibilities about future visa applications…”.[285] In CRRN,[286] however, Stewart J concluded that the Tribunal was in error in failing to consider the prospects of success of a potential protection visa application where it had been submitted that the application had no realistic possibility of success. That conclusion was, however, directed to matters that ought to have been considered by the Tribunal in response to a submission concerning indefinite detention, not, as here, one directed to a consideration of non-refoulement obligations.
[284] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 [19].
[285] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 [32].
[286] CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 [61].
In any event, as I see it, the appropriateness or otherwise of the Tribunal’s decision to defer consideration of the applicant’s representations concerning non-refoulement is not affected by an assessment of the prospects of success of a potential protection visa application by the applicant. As Stewart J found, those prospects might, however, have an effect when considering another legal consequence of a decision not to revoke the visa cancellation decision, detention.[287]
[287] Ibid.
Prolonged Detention
As stated earlier, in the event of a non-revocation decision, the applicant would need to be detained pending her removal from Australia. In this regard, I note that she would not be liable to be removed from Australia if she applied for a protection visa, pending processing and determination of the application.[288]
[288] Act, s 198(5A).
I consider this issue because, as I construe them, the applicant’s representations include a claim that she faced “the prospect of indefinite detention” if the visa cancellation decision was not revoked.[289]
[289] A SFIC [99].
The issue of detention might also require consideration as its effect on the fundamental common law right of personal liberty is a legal consequence of a non-revocation decision[290] recognising, however, authority for the proposition that prolonged, perhaps, indefinite, detention (as opposed to detention, per se) is not a legal consequence of a non-revocation decision.[291]
[290] LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662 [68] where Feutrill J stated that “the legal consequences that the …[Tribunal is] required to take into account … included the substantive curtailment of the applicant’s fundamental common law right of personal liberty”.
[291] BJI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1632 [70] where McEvoy J described an obligation to have regard to legal consequences as one directed to “…the inevitable and direct legal consequences of the exercise of the relevant statutory power. Indefinite or prolonged detention cannot be said to be the inevitable and direct legal consequence of…” the relevant decision.
In these circumstances and subject to a constitutional limitation and the possibility of the applicant being issued a bridging (removal pending) visa discussed later, if the applicant makes an application for a protection visa, she will remain in detention until the application is processed and determined. Assuming the application is unsuccessful, she will continue thereafter to be detained until:
(a)absent a “protection finding” being made in the course of her protection visa application with respect to South Sudan, removal of the applicant to South Sudan is or becomes reasonably practicable;
(b)another country is found that is willing to receive her;
(c)a court finally determines her detention to be unlawful;[292]
(d)the respondent grants her another visa in exercise of a personal power;[293]
(e)the respondent makes a residence determination[294] in exercise of a personal power;[295]
(f)she is invited to apply for a Bridging R (Class WR) visa; or
(g)the applicant asks to be removed.[296]
[292] Act, s 196.
[293] Act, s 195A.
[294] Act, s 197AB.
[295] Act, s 197AF.
[296] Act, s 197C(3)(c)(iii).
In light of submissions made as to the circumstances applicable in South Sudan (elaborated upon later) and the practical difficulty in establishing the applicant’s South Sudanese citizenship (mentioned earlier), it might be thought that removal of anyone to that country is unlikely to be currently reasonably practicable (and noting, in any event, the potential for protection findings to be made in the context of any protection visa application). As for the other reasons for ending the applicant’s detention, none of them currently apply. Moreover, on the material before me and absent the applicant asking for removal, I am not satisfied that any of these other reasons are likely to come to apply soon, within any particular period or at any particular time.[297]
[297] See a similar conclusion arrived at in LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 [149]. See A SFIC [95] where it is contended that “it can be argued that there is not a realistic possibility that …[the applicant] would be released from detention under the Minister’s discretionary powers. Consequently, there is no realistic possibility that the Applicant would be released from immigration detention on the basis of a future visa grant.”

Accordingly, if the visa cancellation decision is not revoked and the applicant makes a protection visa application and the application is unsuccessful, the applicant would face the prospect of a prolonged period in detention. That detention is not, however, something that could continue without end. This is because, constitutionally, the lawfulness of her detention would come to an end if and when it came to pass that there is no real prospect of her removal from Australia becoming practicable in the reasonably foreseeable future.[298]
[298] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 [55]; LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662 at [20]-[66].
The authorities are unclear as to whether detention in these circumstances constitutes indefinite detention. Her Honour Justice Hespe recently found that the “…effect of the High Court’s decision in NZYQ is that there is no lawful possibility of the Applicant being detained under the Migration Act indefinitely.”[299] In LVFG,[300] however, Feutrill J, consistently with submissions made to him, approached “… the consideration of the Tribunal’s reasons from the perspective that the Tribunal made no error of law when considering that a legal consequence of a decision to refuse to grant the applicant a visa was that he may remain in immigration detention indefinitely.”
[299] SGTX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 27 at [77].
[300] LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662 [67].
Clearly, the meaning attributed to “indefinite” affects the proper characterisation of detention of the nature faced by the applicant should she make, unsuccessfully, a protection visa application. It might, however, well be characterised as indefinite if that term encompasses:
(a)removal from Australia being “… likely to occur on an uncertain date beyond the foreseeable future (for reasons other than the pursuit of that person’s rights in respect of a visa application).”[301]
(b)detention which has “… no fixed end point by reference either to a specific event or time,”[302] being detention “…for an indefinite period, that is an uncertain period with no fixed chronological end point.”[303]
[301] Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [39].
[302] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [84] but cf Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [37] where detention in pursuit of a visa application is said not to constitute indefinite detention.
[303] LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662 at [64].
Whatever its characterisation, detention entails denial of freedom of movement. While detained, the applicant’s capacity to liaise with third parties such as her children would be constrained, as would her capacity to implement plans she might have had for her future. She would not be at liberty. As such, she would be denied “one of the most basic human rights and fundamental freedoms known to the common law”;[304] personal liberty being “…the most fundamental, elementary and important of all common law rights.”[305]
[304] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
at [123].
[305] LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662 at [65]
Hence, the applicant making an application for a protection visa will result in “…the curtailment of the fundamental common law right of personal liberty for the limited period necessary for the applicant to make and have considered…” her application. Should that application be unsuccessful, “… a limited curtailment of a fundamental common law right would become or may become a substantial curtailment of that right.”[306]
[306] Ibid at [68].
Detention not only curtails personal liberty. In this regard, I accept the applicant’s submission to the effect that prolonged detention would expose the applicant to risks to her mental health. In this regard, on behalf of the applicant, it was submitted that research “…consistently finds that indefinite detention has a profound detrimental impact on the mental health of a detainee and can result in “high risk of experiencing chronic depression, incidents of self-harm or attempted suicide”.[307] Reference was made to a 2013 report of the Commonwealth Ombudsman.[308] In it, the Ombudsman had this to say about detention for lengthy periods:
(a)“The international and Australian evidence demonstrates that immigration detention in a closed environment for longer than six months has a significant, negative impact on mental health”; and
(b)the evidence “…shows that length of time in detention is directly associated, not only with poor mental health, but also with the incidence of self-harm.”[309]
[307] G5, 98.
[308] G5, 98.(Commonwealth Ombudsman, Suicide and Self Harm in the Immigration and Detention Network, May 2013. Report by the Commonwealth and Immigration Ombudsman).
[309] Commonwealth and Immigration Ombudsman, Suicide and Self Harm in the Immigration and Detention Network (Report No 02/1013, May 2013).
Moreover, should it come to pass that the applicant’s removal from Australia is not reasonably practicable, the result might well be the applicant’s release into the community on a bridging (removal pending) visa. In this regard, I gratefully adopt Dr Fenwick SM’s analysis concerning visas of this type found in his decision in NHTK.[310] There such a visa was described as one typically granted to a person in immigration detention when the person’s removal from Australia is not reasonably practicable. Conditions concerning things such as a curfew and monitoring apply except insofar as they are considered not to be reasonably necessary for the protection of any part of the Australian community.
[310] NHTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 35 at [9]-[16].
As submitted on her behalf, were the applicant released into the community on such a visa her status in Australia would remain insecure.[311] This is because such a visa ceases to be in effect if, for example, removal of the visa holder becomes reasonably practicable or a notice is given stating that the visa holder has breached a condition of the visa.
[311] A SFIC [106].
It is suggested that this insecurity would affect the applicant’s mental health adversely and that she would be deprived of rights she formerly held as a permanent resident.[312] The adverse mental health effect of being insecure in the community is simply asserted, without corroboration, in a context where there might well have been a positive impact on the applicant’s mental health resulting from her release from detention. Similarly, the rights of which the applicant will have been deprived are not identified, noting that the standard conditions of any relevant visa are open to change. As I see it, however, relative to detention, the applicant’s rights when subject to such a visa in the community would, overall, be enhanced.
Other consequences
[312] Ibid.
I note that, consequent upon a decision not to revoke the visa cancellation decision, the applicant will continue to be precluded from applying for any other visa, other than a protection visa and a Bridging R (Class WR) visa.[313]
[313] Act, s 501E, and Migration Regulations 1994, reg 2.12AA.
Legal consequences - Conclusion
Absent any relevant finding in response to the applicant’s representations with respect to non-refoulement obligations, I attribute no weight to the consideration insofar as it has potential application to issues concerning refoulement.
Nevertheless, overall, I find that the legal consequences consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision. I attribute moderate weight to this consideration.
A legal consequence of not revoking that decision would be the curtailment of the applicant’s common law right of personal liberty inherent in her detention.
The period of the curtailment is uncertain. If it were lengthy, it may impact adversely on the applicant’s mental health. Whether it is lengthy may depend on a range of factors, including the practicability from time to time of her removal from Australia. If it were to be impracticable, the applicant might find herself released into the community on a bridging (removal pending) visa.
EXTENT OF IMPEDIMENTS IF REMOVED[314]
[314] Direction 90, cl. 9.2.
If relevant, Direction 99 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to South Sudan, in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of South Sudan), taking into account her age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to her in South Sudan.
I find that the applicant is likely to face significant difficulties in establishing herself and maintaining basic living standards were she to be removed to South Sudan.
This is so despite neither her age nor, subject to my comments later concerning her substance abuse disorders and hepatitis, her health being a material contributor to those difficulties. She is 28 years old and, as such, young enough to be able to continue to work in the areas in which she has found work in the past (child-care) or work of a nature for which she has had some training while in prison.
In terms of language barriers, the applicant says (and I accept) that she would not “…even be able to string a full sentence together in either Dinka or Nuer.”[315]
[315] Exhibit A2 [79].
In terms of cultural barriers, the applicant suggests that there would be such a barrier,[316] noting that the evidence before the Tribunal is that she left South Sudan as a three month old infant and has spent most of her life in Australia. I accept the applicant’s suggestion in this regard, despite her statement that she has been teaching her children and younger siblings “about our Sudanese cultural background”[317] and her mother’s statement that the applicant “has always been an active part of keeping our culture”.[318]
[316] Ibid.
[317] G5, 118.
[318] G5, 148.
As submitted on her behalf, the applicant has no one in South Sudan to support her in establishing herself and maintaining basic living standards.[319] She would be bereft of economic or other social support, noting that she has no familial or social connections in South Sudan. She says, and I accept, that she “has no family left alive there and no contacts.”[320]
[319] G5, 99, 148.
[320] Exhibit A2 [77].
The applicant’s capacity to establish herself and maintain basic living standards is likely to be materially impaired by emotional distress which I infer would be a likely result from a combination of that lack of local support and what may be her permanent separation from her children and family.
In terms of health issues, the applicant is unlikely to find in South Sudan any support or treatment of significance for her substance abuse disorders. More particularly, however, and as mentioned earlier, the applicant suffers from chronic hepatitis B. According to a hepatology clinical nurse consultant to St Vincent’s Hospital, this condition represents a significant risk to the applicant’s health should she return to sub-Saharan Africa (“SSA”), as she requires ongoing monitoring and is at risk hepatocellular carcinoma (“HCC”). While treatment and facilities for early detection of these conditions is available in Australia “…access to medical care and the cost of screening, diagnosis and treatment of viral hepatitis and HCC are major limiting factors in hepatitis and liver cancer management in SSA. Routine HBV screening and surveillance programs for the general population are virtually non-existent in SSA and most nations lack the laboratory and medical infrastructure to implement such screening.”[321]
[321] G5, 138-139.
The applicant’s capacity to establish herself and maintain basic living standards is also likely to be materially impaired given the factual matters that underpinned the applicant’s representations concerning non-refoulement. In light of the material to which reference was made in support of her associated submissions, I accept that she would be at serious risk of harm of the nature identified in those submissions should she be removed to South Sudan.
Even disregarding any difficulties that the applicant may face because of matters such as her gender and ethnicity, she likely will have difficulty in establishing herself and maintaining basic living standards given what is generally available to other citizens of South Sudan and the circumstances generally applicable in South Sudan.
The latest country report with respect to South Sudan from Australia’s Department of Foreign Affairs and Trade states that the “… humanitarian situation in South Sudan is dire. There are over four million people internally displaced or seeking refuge in neighbouring countries (Kenya, Ethiopia, Sudan and Uganda). The UN estimates that around 75 per cent of the population is facing food insecurity and in need of humanitarian assistance.”[322]
[322] Australian Government Department of Foreign Affairs and Trade, ‘South Sudan’ (Web Page) <
The latest Australian government travel advisory with respect to South Sudan states that “…We've reviewed our advice for South Sudan and continue to advise do not travel. The political and security situation is volatile and can worsen without warning. Our ability to provide consular services in South Sudan is extremely limited. If you're in South Sudan, and it's safe to do so, leave as soon as possible.”[323]
[323] Australian Government Department of Foreign Affairs and Trade, ‘South Sudan – Latest update’ (Web Page, 5 October 2023) <
It is clear from these comments and those made in the material to which reference was made in the context of the applicant’s non-refoulement submissions that a large part of the South Sudanese population struggles to survive, with high levels of food insecurity and rampant ethnic discrimination and violence.
Overall, I accept the applicant’s submission that she “…would face the most severe conceivable impediments if she were returned to South Sudan.”[324]
[324] A SFIC [111].
Conclusion
This consideration concerning impediments to be faced by the applicant on removal to South Sudan weighs in favour of there being another reason to revoke the visa cancellation decision. It does so to a significant extent.
IMPACT ON VICTIMS[325]
[325] Direction 99, cl 9.3.
If relevant in the circumstances, Direction 99 requires that consideration be given to the impact of the s 501 decision on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
Neither party has submitted that this consideration is of relevance in this proceeding.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
If relevant in the circumstances, Direction 99 requires that consideration be given to any impact on Australian business interests if the applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 of the Act would significantly compromise the delivery of a major project or important service in Australia.[326]
[326] Direction 99, cl 9.4(1).
Neither party has submitted that this consideration is of relevance in this proceeding.
CONCLUSION AS TO OTHER REASONS FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 99 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or to weigh neutrally:
(a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are two of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct (to a significant extent), and expectations of the Australian community (also to a significant extent).
(b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary considerations concerning the strength nature and duration of the applicant’s ties to Australia (to a moderate extent) and the best interests of minor children in Australia (also to a moderate extent), and other considerations concerning legal consequences (to a moderate extent) and the extent of impediments if removed from Australia (to a significant extent).
It is clear from what has just been said that the decision in this proceeding is finely balanced. Overall, however, I am satisfied that there is not another reason to revoke the visa cancellation decision. While the applicant has been in Australia for most of her life and has two young Australian children, she has engaged in some very serious offending, there is a high risk of her re-offending, she has made little by way of positive contributions to the community, her children have from birth been primarily in the care of another and there is little likelihood of her being removed from Australia, at least in the short term, given her capacity to apply for a protection visa and the potential for a protection finding to be made in the course of considering such an application.
DECISION
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
I am not satisfied that the applicant passes the character test.
I am also not satisfied that that there is another reason why the visa cancellation decision should be revoked.
Hence, the Tribunal affirms the respondent’s delegate’s decision of 1 November 2023 not to revoke the visa cancellation decision.

I certify that the preceding 319 (three hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

...............[SGD]..............
Associate
Dated: 14 February 2024

Date(s) of hearing: 22 & 23 January 2024

Date final submissions received: 18 January 2024

Counsel for the Applicant: Nikolas Barron

Solicitors for the Applicant: Asylum Seeker Resource Centre

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	22 & 23 January 2024
Date final submissions received:	18 January 2024
Counsel for the Applicant:	Nikolas Barron
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Solicitors for the Respondent:	Australian Government Solicitor