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

[2022] AATA 3103

PMYR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3103 (25 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/4611

Re:PMYR

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:25 August 2022

Date of written reasons:        20 September 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

..................[Sgnd].....................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – mandatory cancellation of visa – applicant most recently commits serious physical assault – entrenched anti-social behaviour – applicant a national of South Sudan – impediments on removal – extreme impediments – decision under review set aside and substituted

Legislation

Migration Act, 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92

Secondary Materials

Direction No. 90 – 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

REASONS FOR DECISION

Senior Member Dr N A Manetta

20 September 2022

1. After delivery of my oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out with some amendments.

2. This is an application by PMYR, to whom I shall refer in these reasons as “the applicant” as there is a confidentiality order in place, seeking a review of the decision of the respondent’s delegate dated 2 June 2022. By this decision the delegate declined to revoke the cancellation of the applicant’s visa. The cancellation had earlier come about mandatorily under the Migration Act, 1958 (Cth) (“the Act”), following the applicant’s conviction of a very serious crime of violence.  The applicant made a timely representation requesting reconsideration of the decision to cancel his visa.  In the event, the delegate decided not to revoke the cancellation.

3. The delegate was required by the relevant statutory provisions in section 501CA(4)(b) of the Act to address two questions. The first question was whether the applicant passed the so-called “character test” (as defined in section 501(6) and (7)).  The second question arose if the applicant did not pass the test; namely, whether there was “another reason” for the visa cancellation to be revoked. 

4. The delegate found that the applicant did not pass the character test, and, on the evidence before me, that was clearly the case. The only controversial decision before me was whether there was “another reason” for the visa cancellation to be revoked. In addressing this question, the delegate was required to apply Direction 90 issued under section 499 of the Act.[1]

   [1] Direction No. 90 – 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.

5. In this sort of matter, the Tribunal proceeds de novo, to use the Latin expression.  It hears oral evidence and reviews documentary evidence afresh and draws its own conclusions of fact. This means that the Tribunal may affirm a decision under review if that is the correct or preferable decision to reach on the evidence before it, notwithstanding the presence of an error in the delegate’s reasons. Equally, the Tribunal may set aside a decision under review if that is the correct or preferable decision to reach on the evidence before it, notwithstanding the absence of any discernible error in the delegate’s reasons.  Like the delegate, in addressing the second of the two questions that I have said arise, I am bound to apply Direction 90.

6. At the hearing before me, Mr MacNicol appeared for the applicant; Mr Burgess, for the respondent.  I am indebted to them both for their careful and measured advocacy.

   STATEMENT  OF CONCLUSION

7. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.  I turn now to set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

8. The applicant is of Sudanese ethnicity and is now taken to be a national of South Sudan.  He was born in 1989, and was, therefore, 33 years of age at the time of the hearing before me.  He is of the Dinka ethnic group, which I understand is the predominant group in South Sudan.  It controls the capital, Juba. The applicant was the holder of a humanitarian visa issued to him in 2007, permitting him, together with his siblings and grandmother, to travel to Australia. The family had been living together in a refugee camp in Kenya, having earlier fled there following episodic violence that accompanied the ongoing civil war in Sudan. I accept the applicant’s evidence to me that he witnessed a great deal of violence in Sudan in his early years. He witnessed, for example, bombardments by aircraft, and saw a person dismembered.  He described his upbringing in Sudan as “very rough”, a term he also applied to life in the refugee camp in Kenya. I do not doubt the accuracy of that description. So far as the camp was concerned, the applicant witnessed significant sexual violence there, amongst other things.  He gave evidence, which I accept, that he witnessed the crime of rape, or attempted rape, perpetrated by older male students on children.  He gave up schooling in the camp for that reason.

9. The applicant lost his mother in 2004 or 2005, an event which he described as “having killed him”. His father, too, had died in Sudan.  After the death of the applicant’s parents, the grandmother assumed responsibility for her orphaned grandchildren. This comprised the applicant and a number of his siblings, including an older sister and younger brother, both of whom gave evidence before me.  The younger brother is many years younger; he was born in 2004.

10. The applicant arrived in Australia with his grandmother and siblings in 2007, as I have said. The applicant said in his statutory declaration, which was before me,[2] that he found integration into Australian life difficult.[3]  I accept that.  The applicant’s grandmother died in Australia in 2019, while he was in gaol as I understand matters, and a relative described as an auntie also died while he was incarcerated.

    [2] Exhibit R1, p 196.

    [3] Ibid, at [1].

11. There is no formal psychological or psychiatric assessment before me concerning the applicant’s present mental health circumstances.  I did have the benefit, however, of Ms Berradi’s STTARS assessment dated 4 April 2022;[4] Mr/Ms Clark’s assessment as a senior clinician in the Rehabilitation Programs Branch of the Department for Correctional Services dated 12 April 2022;[5] and Ms Nathan’s report[6] dated 5 August 2022.[7]  Ms Berradi’s and Ms Nathan’s reports suggest that the applicant may well have suffered trauma as a result of his past experiences overseas. That would not surprise me.

    [4] Exhibit R1, p 250ff.

    [5] Exhibit R1, p 254ff.

    [6] Ms Nathan describes herself as a “Senior Practitioner Counsellor Advocate” with “Foundation House”, a Victorian organisation that assists survivors of trauma and torture.

    [7] Exhibit A2, p 9ff.

    Criminal offending

12. The applicant’s extensive criminal record was before me.[8]  The applicant’s offending began shortly after his arrival in Australia. There are a very large number of offences. I do not propose to discuss them all as it would make little sense to do so; but I have considered them carefully. It is clear that many of them comprised antisocial crimes of varying degrees of gravity, ranging from serious assaults and failing to cooperate with police to property damage and multiple driving offences. It is clear that the offences became progressively more serious over time, and included, from 2015, custodial sentences.  I note a description of the applicant’s past offending was given by the sentencing Court on 15 June 2018 as follows:

    The offender’s antecedent history shows a litany of offences since arrival in Australia.  These vary from public disorder type offending, resisting arrest, driving offences, countless breaches of bail and of relevance to this matter multiple weapons charges, fighting, aggravated assaults, including against police, and other assaults which have caused harm.[9]

    There is no doubt that the applicant’s offending is extensive and extremely anti-

    social.

    [8] Exhibit R1, pp 38ff.

    [9] Exhibit R1, at p 43.

13. The applicant was also described in the sentencing remarks as having an “entrenched alcohol abuse problem,”[10] which I also find to be the case. There is no doubt that alcohol has played a significant role in many of the offences the applicant has committed: the sentencing Court spoke of the applicant’s “apparent propensity for violent and alcohol-fuelled offending.”[11]

    [10] Ibid.

    [11] Ibid.

14. I turn now to describe the offending that resulted in the cancellation of the applicant’s visa, and which is the subject of the sentencing remarks to which I have just referred. The offending took place on 25 November 2016.  The applicant had attended a party and got very drunk.  The victim of the offending had asked one of the women at the party whom she “preferred”; namely the victim or the applicant. The woman responded that she preferred the victim. This prompted an angry reaction from the applicant.  The applicant approached his victim while the latter was outside smoking.  He  punched him, and he also smashed a bottle across his neck. The victim suffered a deep laceration which cut through muscle. The laceration was close to important blood vessels. If these have been severed, the life of the victim would have been threatened. A laceration of the left ear was also suffered. A further laceration of the forehead and fracturing of the forehead bone were other injuries inflicted in this violent episode. 

15. The offending took place while the applicant was on a good behaviour bond. He was required to serve the remaining six months’ imprisonment that had been earlier imposed but suspended. The sentencing remarks in relation to that offending were also before me.[12]

    [12] Exhibit R1, pp 45ff.

16. The applicant was found guilty of intentionally causing harm.  It was judged to be an aggravated offence.  The applicant was sentenced to five years for the offence, in addition to the six months for breach of the bond. A non-parole period was fixed at three years and eight months. The sentence was to run from December 2016.

17. The applicant’s class XP subclass 200 refugee visa was mandatorily cancelled on 1 July 2020. On 23 July 2020, the applicant made representations seeking revocation of the cancellation decision. A delegate made a decision on the matter on 2 June 2022, which I note with concern is some 22 months after the applicant had made his representations.[13] 

    [13] Exhibit R1, pp 10ff.

    DIRECTION 90

18. Like the delegate, I am bound to apply Direction 90 in my consideration of the application.  I now turn to Direction 90. 

19. I set out part of the background to the Direction in the matter of Re Rai and Minister

    for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff.  I customarily quote these paragraphs in my decisions, and I do so again here:

    “32 … It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7  directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

20. I turn now to consider the primary considerations under the Direction.  The first is the protection of the Australian community from criminal or other serious conduct.  I note the principle that appears at paragraph 8.1(1). This principle records that the Australian Government is committed to protecting the community from harm and that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law abiding and not cause harm to individuals or the Australian community.  I bear that consideration steadily in mind.  It is particularly pertinent in this case.

21. I must have regard to the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious misconduct.

22. I am required to consider the applicant’s most recent crime as very serious, since it was a violent crime, and I do so. There is a considerable array of offending, and to the extent that the offending has involved violence, those instances must also be regarded as very serious.  I will not traverse the criminal record, but there are, self-evidently, many instances where the applicant has acted in an extremely antisocial way.  I have read closely what appears at paragraph 26.1 to 26.6 of the respondent’s Statement of Facts Issues and Contentions. I agree with what is put in those paragraphs, without setting them out in these reasons. There is no doubt that the offending of which the applicant has been found guilty has been extremely serious.

23. I note further the sentences imposed by the Court, and the most recent one, in particular, has been very long, marking out the seriousness of the offending. I need not have regard to the sentences where the offending has involved violence against women: violent crimes against women are always taken very seriously.

24. There is no doubt that the offending has been very frequent, indeed, and stretches now over a very long period of time. The most recent offending marks a very serious escalation in the violence to which the applicant has shown himself willing to resort. There is a cumulative effect of repeated offending, and I am required to have regard to that.  I do so.

25. All in all, the applicant’s criminal record, considered as a whole, gives rise to the most serious concerns. There can be no doubt about that.  It is very extensive indeed. The most recent offending had the potential to lead to a loss of life. I bear that carefully in mind.  It was quite clear from the sentencing Court’s remarks that the victim could well have died had the bottle severed a major blood vessel.  That this result did not ensue was providential.  The potential threat is a very serious matter, self-evidently.

26. I must also have regard to the risk to the Australian community.  I note the principle that appears in paragraph 8.1.2(1).  I should have regard to the Government’s view that the community’s tolerance for any risk of future harm decreases as the seriousness of the potential harm increases.  Some conduct, and the resultant harm, may be so serious that any risk of repetition may be unacceptable.  I bear that in mind. 

27. I must have regard to two matters “cumulatively” under paragraph 8.1.2(2). The first is the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious misconduct; and the second is the likelihood of his doing so taking into account information and evidence concerning his risk of reoffending and evidence of rehabilitation achieved by the time of my decision.

28. The applicant has not recently been the subject of a formal psychological appraisal. My own assessment is that, at the present time, the applicant poses a real threat to the Australian community.

29. I regard the most recent violence in which the applicant engaged as very serious indeed. The violence was associated with alcohol abuse, which the sentencing court referred to as an entrenched problem.  That is undoubtedly the case. I appreciate that the applicant has not consumed alcohol while in gaol; and, to the extent that there has been a physical addiction, I believe that addiction must be at an end. Nevertheless, the causes of alcohol addiction are more complex than simple physical dependence. The applicant has spent a very large period of his life engaged in antisocial conduct in Australia, and during much of that time he has resorted to alcohol. It was, in the past, an ingrained habit with him. If I accept that resorting to alcohol was at least partly due to unresolved trauma issues resulting from his experiences in Sudan and Kenya, I note that there has been no treatment for that trauma.

30. I do give the applicant some credit for commencing what will be a lengthy process to address the causes of his alcohol misuse. But it will be a very long journey. I also appreciate that there is much support around him.  His sister gave evidence that she would assist him with accommodation and help him financially and to obtain a job or training. She would also pay for psychologists.  A letter in evidence suggests that there may be a job offer available to him.[14]  Those are all important protective measures and opportunities for him. There are positives to be drawn from the report of Mr/Ms Clark, the senior clinician in the Department of Correctional Services.

    [14] Exhibit A1, p 27.

1. The applicant also has relevant skills as a welder, having also taught his skills to Aboriginal Australians, as I understand matters.  There have been, however, concerning events in gaol involving antisocial behaviour and the fashioning of weapons.

2. All in all, at the present time, I regard the risk of relapse as real.  I cannot estimate exactly the level of that risk, but it is certainly not low. When the risk factor is assessed “cumulatively” with the nature of harm and the range of behaviours of which the applicant has shown himself capable when intoxicated, I regard the risk to the Australian community as very serious indeed.

3. I must consider family violence committed by the applicant. I accept that I ought to rely on the respondent’s concession, made orally at the hearing, that there is currently insufficient evidence to categorise any of the assaults against women as instances of family violence (i.e., as instances of assaults against a partner who was a family member at the time).  But obviously enough, the assaults do count as instances of violence towards women, which is an offence specifically mentioned in the Direction, and they are to be taken very seriously for that reason. 

4. The best interests of minor children in Australia is a difficult consideration to evaluate in this case.  The applicant’s youngest brother is now an adult, and so he has no siblings who are still minor. I accept that the applicant has a large number of nephews and nieces as extended family members. I note, however, his absence from their lives since 2016, which is now some six years ago. Moreover, these are not parent-child relationships. Finally, the interests of these children will not be served by the applicant relapsing into antisocial drinking and violence. I am prepared to attach some weight to this factor, but it is not great weight.  My estimation of weight approximates that of the delegate (although perhaps for different reasons).

5. I must also have regard to the expectations of the Australian community. These are embedded in the Direction itself. I need not assess them for myself. I note that “as a norm”, the Australian community expects the Government to deport people like the applicant because he has engaged in serious conduct in breach of the expectations of the community.  The level of violence has been extreme.  He has also been guilty of serious violence against women, and this is a matter to which I am to have particular regard: see paragraph 8.4(2)(b).

6. I must take into account so-called “other” considerations in paragraph 9.  There is a non-exhaustive list of such considerations given in the paragraph.

7. So far as non-refoulement obligations are concerned, I am prepared to approach my assessment on the basis that the applicant is not owed any such obligation.  This is consistent with the approach the respondent has submitted I should take in the matter.[15]

   [15] See the Respondent’s Statement of Facts, Issues and Contentions, at [53]ff.

8. I am prepared to approach the assessment of the applicant’s case in the way in which the respondent has requested that I approach it.  The respondent pointed out that the applicant has made an unsuccessful claim for a protection visa.  I would note that the delegate who rejected the application did so, in part, because, insofar as the issue of generalised violence in Sudan was concerned, the security risks the applicant would face there were risks faced by an absolute majority of the population. Insofar as general living conditions are concerned, there was no denial by the delegate of a lack of medical services or of much poorer circumstances of living. These were held, however, not to give rise to non-refoulement obligations, in part at least because they reflected endemic conditions and were not inflicted deliberately upon the populace.

9. I must have regard to impediments the applicant would face on removal to South Sudan. I was provided with a significant amount of material by the applicant in this regard. I have reviewed that material. I accept that South Sudan is an extremely impoverished country. A “snapshot”[16] of the country indicates that four-fifths of the population was living under the international poverty line in 2016. In 2020, the year-on-year inflation rate was 40%. South Sudan has only one physician serving every 65,000 people in the country. Only 40% of people have access to safe water. Life expectancy in South Sudan ranks in the bottom 10 countries in the world.

   [16] See Exhibit A1, at p 54.

10. I have had regard to the “UNHCR Position on Returns to South Sudan (update III)”, dated October 2021.[17]  That document is revealing. It refers to South Sudan continuing to suffer from long-term political inter-ethnic and communal conflict, and a weak rule of law.[18] The country presents the largest refugee crisis in Africa.[19] In June 2021, the UN Secretary-General noted that “humanitarian needs remain high as a result of conflict, displacement, weather shocks, Covid 19, a weakened economy, and limited basic services.”[20] Shocking statistics are given at paragraph [14] of this update. In January 2021, it was estimated that 8.3 million people in South Sudan would be in need of humanitarian assistance, which represents more than 70% of the country’s population.  For the mid-2021 so-called “lean season”, it was estimated that 60% of the population would face high levels of acute food insecurity. In October 2021, the World Food Program was suspended for three months because of shortages in funding.[21] At paragraph [16] there is a reference to a deterioration of living standards. The World Bank had estimated that the economy would contract by 4.1% in the 2020-2021 year. In 2021, it was expected that 78.2% of persons would be living below the international poverty line of US$1.90 per day.

    [17] Exhibit R1, pp 28ff.

    [18] Ibid, at [3].

    [19] Ibid, at [4].

    [20] Ibid.

    [21] Ibid, at [15].

11. There is a reference at [18] to the conflict in South Sudan and an economic decline continuing “to erode the Government’s ability to provide consistent basic services to its people”. Access to healthcare is said to remain very limited: as I have said, there is only one physician for every 65,000 people approximately. Humanitarian aid access remains challenging for the reasons given at paragraph [20] of that report.

12. Importantly, I note that the UNHCR reaffirmed its call to states to refrain from forcibly returning South Sudanese nationals to any part of the country.[22]

    [22] Ibid, at [27].

13. In June 2022, the Director of the Operations and Advocacy Division in the UN’s Office for the Coordination of Humanitarian Affairs, addressed the UN Security Council.[23]  He noted that, since December 2021, most humanitarian indicators had in fact deteriorated. He refers to the very real spectre of famine. About 8.3 million people were likely to experience severe food insecurity during the lean season of May to July 2022. Some 2.9 million would most likely face emergency levels of hunger. Some 87,000 people would likely face catastrophic levels of food insecurity.

    [23] Exhibit A1, pp 39ff.

14. In my opinion, the applicant would face extreme difficulties were he to be removed to South Sudan. Under the Direction, I am required to consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan “in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens” of that country, and taking into account the matters that are referred to in subparagraphs (a), (b), and (c) of paragraph 9.2(1).

15. The respondent submitted that I must have regard to what is generally available to other citizens of South Sudan in making my assessment.  I accept that submission: it flows directly from the language of the Direction. I can well understand that I should not, generally speaking, use superior living conditions in Australia as a consideration favouring the revocation of a cancellation decision.

16. The inference that the respondent asked me to draw went further, however.  As I understood the submission, the drafting of the Direction should be understood to provide no “floor”, so to speak, to the levels of basic living standards. Accordingly, it would not matter how dire a situation becomes in a given country for the populace at large: I must always have regard to what is “generally available” to the populace in my review. Provided the applicant would not be worse off than the populace at large, his impoverished circumstances cannot be a reason weighing in favour of revocation of the cancellation decision. 

17. If that is the submission, I must say that I have difficulty accepting it.  South Sudan is a case in point. The vast majority of the population faces very severe food shortages in a context where there is still violence and catastrophic flooding as a result of climate change. The living conditions of a significant proportion of the populace fall beneath any acceptable basic human standard. For my own part, I doubt that the Direction was intended to require me to ignore the severity of the situation in South Sudan simply because it affects the population at large.

18. But I do not need to decide that question of interpretation. It is clear law that I am to have regard to the individual circumstances of the applicant and decide whether that applicant’s individual circumstances mark him or her out as potentially suffering even more grievously than the population at large. In this regard, I would refer to the Federal Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92. In my opinion, the applicant is at a significant disadvantage compared with other South Sudanese. He has a special need for rehabilitation in respect of what I suspect is trauma, and he will need assistance to overcome any propensity to revert to alcohol misuse. He will not have effective access to appropriate medical services in South Sudan. Importantly, I accept the applicant’s evidence that as he left South Sudan for Kenya a long time ago, and he has no ongoing familiarity with the country. He has no connections with the country, including no established family members or social contacts. Thus isolated in South Sudan, the applicant would be in a substantially worse position than an average South Sudanese in facing the dire circumstances there.

19. So, even if I adopt the respondent’s submission, I would find that this applicant faces special difficulties in achieving in South Sudan basic living standards in the context of what is generally available to other citizens of that country.  This is a matter that counts substantially in his favour, and in my opinion, very substantially so.

20. I must consider the applicant’s ties to the Australian community.  I accept that the applicant offended soon after arriving in Australia, and this is a matter I need to take into account. I do accept that his adult siblings, including his sister and younger brother, would be affected by his removal from Australia.  I must say, however, that the extended family appears to be both numerous and tightknit; and whilst the loss of the applicant would be keenly felt, I believe there would be compensations in other relationships. Accordingly, this is a matter to which I would attach some weight but not great weight. To the extent that the applicant would suffer, as I believe he would suffer, on separation from his family, I believe this is subsumed within the concept of impediments to removal that I have mentioned and I guard against double-counting.

21. I have no evidence in relation to the impact of my decision on victims and I believe that it should count as a neutral factor.

    WEIGHING THE CONSIDERATIONS

22. Weighing the considerations in this case is difficult. I bear in mind that primary considerations should generally prevail over other considerations.  The preponderance of the primary considerations certainly favours the applicant’s removal from Australia. There is no doubt also that the applicant, at the present time, poses a threat to the Australian community in terms of there being an elevated risk of his reoffending in a violent and antisocial way.  His history speaks for itself.  The community expectations consideration speaks strongly against his remaining in Australia.

23. Nevertheless, in an appropriate case, “other” considerations can overcome even strong primary considerations. The circumstances of South Sudan at the present time are extreme, and the special difficulties that this particular applicant would face there are clear.  I must weigh with care the impediments that the applicant would face on removal against the very real ongoing harm that he has caused almost from the moment of his arrival in Australia.  I am conscious of the fact that allowing the applicant to remain in Australia inevitably exposes the Australian community to the risk of harm. Reading between the lines of the sentencing remarks, the Court effectively said that the applicant might well have ended up killing his victim that night. That is a very serious risk for the Australian community to face.  But the impediments that the applicant would face on removal to South Sudan are extreme, as I say, and I believe he has a need for mental health treatment.

24. This is one of the very unusual cases where the impediments on removal are so great for an individual applicant that the correct or preferable decision favours, on balance, in my opinion, revocation of the cancellation decision.

25. Having reached that conclusion, I am satisfied that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act. 

    DECISION

26. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

    I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

    ………[Sgnd]……..……………

    Legal Associate

    Dated: 20 September 2022

Date of hearing:	16 and 17 August 2022
Advocate for the Applicant:	Mr Lochlan Reef MacNicol Work Visa Lawyers
Advocate for the Respondent:	Mr Ashley Burgess Sparke Helmore Lawyers