PNCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 529
•17 March 2021
PNCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 529 (17 March 2021)
Division:GENERAL DIVISION
File Number: 2020/8594
Re:PNCV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:17 March 2021
Place:Melbourne
The Tribunal sets aside the decision of the delegate of the Respondent dated 23 December 2020. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Refugee (Subclass 200) visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
.......................[sgd].................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held Class XB Subclass 200 Refugee visa – applicant found to be South Sudanese National – substantial criminal record – visa mandatorily cancelled – applicant invited to make representations whether visa should be revoked – delegate decides not to revoke – Direction No. 79 – Part C primary considerations – protection of the Australian community – the nature and seriousness of the conduct – the risk to the community should the applicant re-offend – particular circumstances of the offence that caused the visa cancellation - best interests of minor children in Australia – expectations of Australian community – other considerations – non-refoulement obligations – applicant has significant physical disability – ties with Australia – extent of impediments if removed – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975, ss 33A, 35, 43
Migration Act 1958, ss 499, 500, 501, 501CACases
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction under section 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (commenced 7 September 2017)
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
The Nationality Act 2011 (South Sudan)The Sudanese Nationality Act (Amendment) 2011 (Sudan)
REASONS FOR DECISION
Senior Member D. J. Morris
17 March 2021
On 18 January 2021 the Tribunal made an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant in these proceedings, or information that may tend to reveal his identity or the identity of his family. He will be known by the anonym ‘PNCV’ and certain other personal details that do not affect the decision or the reasons for the decision will be anonymised.
PNCV was born in 1989 in Khartoum, Sudan. In September 2006 he was granted a Class XB Refugee (Subclass 200) visa and towards the end of October 2006, PNCV arrived in Australia as the holder of this visa.
In August 2018 PNCV was sentenced by a Court to a prison term of three years and four months. On 3 October 2018 his visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act) on the basis that he had a ‘substantial criminal record’. On 19 October 2018 PNCV requested that the cancellation of his visa be revoked, and later that month provided submissions in support of that request.
On 23 December 2020 a delegate of the Respondent Minister decided, under section 501CA(4) of the Act, not to revoke the cancellation of PNCV’s visa. On 24 December 2020 PNCV submitted an application to the Tribunal to review this decision.
Under section 500(6L) of the Act, the Tribunal must make a decision in relation to this application within 84 days after the day PNCV was notified of the decision. That date is 17 March 2021.
HEARING
The hearing was held on 4 and 5 March 2021, by video link, by leave of the Tribunal under section 33A of the AAT Act, owing to the current public health emergency. The Applicant was represented by Mr Andrew Healer of Counsel, instructed by Mr Rohan Thwaites of Refugee Legal. The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers. PNCV gave evidence and was cross-examined. Other witnesses who gave evidence were Mr Guy Coffey, clinical psychologist; Ms XS, sister of the Applicant; Mr XL, the Applicant’s brother-in-law; and Ms XP, the Applicant’s partner. The Tribunal appreciates the assistance of an interpreter in the Dinka language for two of the witnesses.
The Tribunal admitted the following documents into evidence:
Submitted by the Applicant –
·A collection of documents titled ‘Applicant’s Tender Bundle’ (‘ATB’), paginated 1 to 74 – Exhibit A1.
Submitted by the Respondent –
·Collation of ‘G’ documents paginated 1 to 191 (‘GD’) – Exhibit R1.
·Collation of supplementary ‘G’ documents paginated 1 to 406 (‘SGD’) – Exhibit R2.
·A short video of mobile telephone footage produced under summons from Victoria Police – Exhibit R3.
The Applicant lodged a Statement of Facts, Issues and Contentions (‘ASFIC’) dated 8 February 2021. The Respondent lodged a Statement of Facts, Issues and Contentions (‘RSFIC’) dated 23 February 2021. The Applicant lodged a document titled ‘Applicant’s contentions in Reply’, dated 1 March 2021. These documents were taken into account by the Tribunal.
Threshold question – the country of reference of the Applicant
The ASFIC stated that PNCV was born in Khartoum, Sudan, in 1989. He is of Dinka ethnicity and is a Christian by faith. Mr Healer contended that PNCV lacks effective nationality and is currently stateless but conceded that he was likely to be eligible for citizenship of the Republic of South Sudan based on the provisions of The Nationality Act 2011 of South Sudan (GD, p 91). The RSFIC contended that PNCV is a citizen of South Sudan (paragraph 2).
In the hearing the Tribunal asked the parties whether they agreed that the country of reference is South Sudan. Mr Orchard agreed. Mr Healer submitted that whilst his position is that PNCV is currently stateless, it would appear that he would be entitled to citizenship of South Sudan.
Consideration
Chapter III of the South Sudan Nationality Act relates to Nationality by Birth and section 8(1) of that Act states:
A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
Section 9 states:
Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Tribunal accepts the uncontested evidence that PNCV is of Dinka ethnicity. Although he was born in Khartoum, the capital of the Republic of Sudan (before partition in 2011 and currently of the new Republic of Sudan) his parents’ home city would appear to be Malakal, in what was then Southern Sudan and what is now in the Republic of South Sudan. His mother died when he was aged three and his father sent PNCV, together with his older brother and sister, to Malakal to live with his aunt and uncle.
Applying section 8 of the South Sudan Nationality Act, the Tribunal considers that PNCV fulfills the criteria that he “shall be considered” a South Sudanese National under the law of that country.
The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011. It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
Finding
I am satisfied that PNCV is entitled to citizenship of the Republic of South Sudan by force of law. I do not accept the Applicant’s submissions that he is ‘stateless’, but accept that he does not have documentation for his citizenship at present, but that he would be able to obtain this through a bureaucratic process, whether or not returned to South Sudan. Although it is strictly not relevant to this finding, I note that (given that PNCV was born in Khartoum) a South Sudanese National may not, by Sudanese law, also be a citizen of Sudan (see The Sudanese Nationality Act (Amendment) 2011).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or the Minister’s delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the character test, or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that PNCV does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38]).
Evidence in relation to the character test
A Criminal History Check produced by the Australian Criminal Intelligence Commission on 9 April 2020 (GD, p28-29). It records that on 7 August 2018 PNCV was convicted before the County Court of Victoria at Melbourne of the offence of Fail to render assistance after accident and was sentenced to 39 months’ imprisonment. On the same date he was convicted of the offence of Drive whilst disqualified, and sentenced to three months’ imprisonment, two months of which were to be served concurrently.
The Tribunal also had before it the transcript of the sentencing remarks of a Judge of the County Court in August 2018, in which Her Honour told PNCV that he would receive a total effective sentence of three years’ and four months’ imprisonment and would be eligible for parole after a period of 22 months had been served. The Judge also took into account 41 days’ pre-sentence custody as being time already served, and disqualified PNCV from obtaining a driver licence for six years from the date of the sentencing.
Finding in relation to character test
On the evidence before me, I find that PNCV does not pass the character test under section 501(3A)(a) of the Act , because I am satisfied that he has a ‘substantial criminal record’ (section 501(6)(a)), having been sentenced to a term of full-time imprisonment for a period of 12 months or more (section 501(7)(c)). I note that both parties conceded in written submissions, and reiterated at the hearing, that PNCV does not pass the character test set out in the Act.
The remaining task before the Tribunal is to decide whether there is ‘another reason’ why the mandatory cancellation of PNCV’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
THE APPLICANT’S OFFENDING HISTORY
The National Criminal History Check records that in 2011 PNCV was before the Magistrates’ Court in Melbourne charged with Theft of a Motor Vehicle, Affray (Common Law), and Handle/Receive/Retention Stolen Goods. These charges were adjourned without conviction.
In 2014 PNCV was before Heidelberg Magistrates’ Court and convicted of the offence of Deal Property Suspected Proceed of Crime and Fail to Answer Bail. No further penalty was imposed.
In 2016 PNCV was convicted before Ballarat Magistrates’ Court of the offence of Possess Cannabis and fined $300.
In March 2017 at Ballarat Magistrates’ Court, PNCV was convicted of two charges of Possess Cannabis and fined a total of $1,200. He was also charged with two counts of Criminal Damage (Intent to Damage/Destroy) and placed without conviction on a Community Correction Order for 12 months.
In December 2017 at the Melbourne Magistrates’ Court, PNCV was charged with breaching the Community Correction Order previously imposed, which was found proven and he was fined $500. A charge of Contravening Family Violence Final Intervention Order was recorded. On the same date PNCV was convicted of the offence of Possess Cannabis and fined $100.
On 11 September 2018, that is after the sentencing for the offence recorded above which triggered the cancellation of his visa (which I will call ‘the principal offence’ in these reasons), PNCV was before Ballarat Magistrates’ Court where the charge of Contravene Community Correction Order was found proven, and he was sentenced to imprisonment for one month, to be served concurrently with the sentence he was already serving, in relation to the offence of Contravening Family Violence Final Intervention Order.
However, the National Criminal History Check has been shown to be incomplete as the result of examination of summonsed material returned to the Tribunal for this hearing.
Other offences recorded against PNCV include (SGD, p 329), in March 2017 at Ballarat Magistrates’ Court, PNCV was charged with the offence of Unlicensed Driving. The offence was found proven without conviction. He was also charged with Failing to Give Name and Address of Registered Owner After an Accident. The offence was also found proven without conviction. On the same day, PNCV was found to have exceeded the prescribed concentration of alcohol within three hours after driving or being in charge of a motor vehicle. He was fined $1,200 and any driver licence or permit was cancelled for 17 months, and an order was made that he was not to be relicensed except by the order of a Magistrate. No conviction was recorded.
THE PRINCIPAL OFFENCE
The Country Court Judge summarised the offence which led to the imposition of the prison sentence on PNCV (GD, pp 31-65). PNCV pleaded guilty. At the time of the offence in July 2017, the Applicant was aged 27 and living with his then girlfriend, Ms CH. They drove in Ms CH’s motor car to visit a supermarket in a Melbourne suburb. The car was owned by Ms CH. She had purchased it some months before. When she transferred the vehicle into her name, Ms CH had received a letter from VicRoads advising that the vehicle was not registered, and it had not undergone a roadworthy test. At the time of the offence, the vehicle was unregistered.
At the time of offending, PNCV had been disqualified by a Magistrate from driving for 17 months, from March 2017. After visiting the supermarket, PNCV and Ms CH drove to another supermarket, with PNCV driving. They then went to a liquor outlet and purchased some alcohol. PNCV and Ms CH then decided to drive home. It was the early evening and, being July, night had fallen.
They drove down a service road onto a major highway. They stopped and looked for traffic. Ms CH saw in the distance a motorcyclist coming towards them which she told the police in a statement appeared ‘to be going quick’.
PNCV drove onto the highway slowly intending to get into the far-right lane in order to perform a U-turn and head towards his home. Ms CH said that he had the right-hand indicator operating to signal other drivers as to his intention.
As the vehicle moved towards the right lane, Ms CH said she heard a ‘boom’. The motorcyclist had collided with the rear of their vehicle. The impact caused the car to rotate 180 degrees. The vehicle caught fire. They got out of the car. PNCV opened a rear door and retrieved a dog they had travelling with them. The Judge recorded that witnesses saw PNCV get out of the burning vehicle and run around it a couple of times, with his hands on his head.
The motorcyclist was lying on the road, afire, and his bike was further down the road, also on fire. Other motorists stopped to provide assistance to the rider and fought to put the flames out. Ms CH spent a short time looking for the dog, as she did that, she said she heard a woman saying the motorcyclist was dead. PNCV then said to Ms CH “let’s just go home and we’ll sort out what we’re going to do when we get home”.
PNCV and Ms CH then crossed the highway. Two other motorists who had stopped, followed, and asked if they were alright. The Judge stated that CCTV footage she viewed showed PNCV at the scene for approximately a minute to 80 seconds before leaving.
PNCV and Ms CH then hailed a taxi and travelled to their residence. PNCV and Ms CH then discussed what had occurred and that the Applicant would hand himself in on Monday after a scheduled appointment he had with his Corrections officer (the collision having occurred on Friday early evening). Ms CH said that PNCV was vomiting, crying and shaking.
Police attended the collision scene. A police officer attached to the Collision Reconstruction Unit performed tests to determine the cause of the accident and the speed of the vehicles. After reviewing all the evidence, the officer determined the motorcycle was travelling at a minimum of 112 kilometres per hour prior to impact and that, just prior to colliding, the motorcycle had braked heavily.
On the following day, PNCV was interviewed by police. PNCV said he ‘just heard a bang from behind the car and the car twist’ and that he ‘freaked out and ran away’. PNCV said he had looked when entering the highway, but the road was clear. He said that he knew the car did not have registration.
PNCV told Mr Coffey, that he did see the rider. He did not know what to do and got scared because he saw the fire.
When he saw the police, PNCV said he had been intending to go to them ‘tomorrow’ (that is, on the Sunday) but the delay was ‘because there would be no one to look after the cats’. He told the police he had a learner driver permit.
The learned Judge noted that an aggravating feature of the offending was that PNCV was on a 12-month Community Correction Order imposed in March 2017 and the offence occurred around four months after being placed on that Order. He was also driving whilst disqualified. The Judge recorded that PNCV had been fined in March 2017 for driving while unlicensed and failing to exchange names and addresses after a collision.
The Judge stated:
Your offending, in my opinion is very serious. Your obligation was to render assistance at the scene of the collision, you did not. That obligation was not determined by your desire to discuss it with a Corrections officer three days later, nor you wanting to go home and think about what to do, nor the need to look after the cats. Nor was your obligation negated by, as was urged by [counsel for PNCV at the sentencing], you thinking there was nothing you could do to help the deceased.
…
Your failure to render assistance was inhumane, callous and cowardly. You left without offering assistance for no good reason other than, I merely suspect, concern about yourself having breached the Community Correction Order and driving whilst disqualified…
…
When assessing your remorse, I note that after you left the collision scene you made no attempt to contact police. You did not attend at the police station of your own volition on 8 July, despite on your instructions knowing [Ms CH] was going to advise police of your involvement in this offending. You stayed at home, police had to come to you.
(Names redacted)
OPENING SUBMISSIONS OF THE APPLICANT
Mr Healer told the Tribunal that PNCV had been shot in both legs and one arm by a militia attack on his village during the Sudanese Civil War, when the Applicant was six years of age. PNCV was living at that time with an uncle and aunt in Southern Sudan and in 2001 was sent by his father to Cairo because his father thought it would be safer. His father died in a pedestrian accident in 2004. In 2006, PNCV and his sister had migrated to Australia and PNCV has remained in Australia ever since.
Mr Healer acknowledged the principal offending and the sentence imposed for Failing to render assistance and noted that it was not found that PNCV caused the accident, and he was not charged with any such offence.
Mr Healer submitted that PNCV has shown deep remorse for his conduct after the accident and has had the opportunity whilst incarcerated to reflect on life and his past dependence on drugs and alcohol and had engaged in intensive individual counselling. Mr Healer said that PNCV wanted to rebuild his life with his family, including his own 11-year-old son, XC, and his eight nieces and nephews.
ORAL EVIDENCE OF THE APPLICANT
PNCV gave evidence that he was born in 1989 in Khartoum. He said that when he was three years old and while being breastfed by his mother, she died. He was too young to know what had happened and thought she was asleep. His father then arranged for him and his brother and sisters to live South Sudan. During the journey south, PNCV’s brother died from malaria.
They lived on a farm and life was not ‘too bad’ until the civil war started again. One night the militia came and started shooting. PNCV said he was sleeping and got up and was shot in his legs. His aunt who was holding a baby was also shot; she survived but the baby did not. PNCV said family members fled from the militia. He sat there for three days until some people came, who took the bullet out of his leg. He could not at that stage get treatment and it was suggested he go to Egypt, but he could not afford an operation there, and he was also too young for the necessary surgery.
PNCV said he went to Cairo with his two sisters and came to Australia with one sister, XS. His other sister settled in the United States of America.
PNCV said after some time in Australia, his doctors decided that his leg injuries were too significant, and his leg was amputated below the knee. He was initially on crutches but then was fitted with a prosthesis. PNCV said he undertook some classes in English as a second language, information technology and mathematics but did not attend school because of his leg disablement.
PNCV said that he started smoking cannabis, drinking and ‘hanging around people I wasn’t supposed to’. He said that he has not taken drugs or alcohol for the last three years.
PNCV said that he had been seeing a psychologist in prison regarding his drug and alcohol use and had undertaken a course, and was still seeing a counsellor, previously every week, now every two weeks.
PNCV said that he first met his partner, Ms XP, in Egypt, but then met her again in Australia and they had a child together (XC) in 2009. He said that Ms XP suffers from bipolar disorder and schizophrenia.
PNCV said because of Ms XP’s mental illness, she could not bring up their son, so XC was placed in the care of his uncle, Ms XP’s brother. PNCV said he would see XC at the uncle’s house and give him presents and take him to the playground. He said he wanted to make amends for his absence from XC’s life during his time in custody, if he is allowed to stay in Australia.
Asked what he feels about the collision, PNCV said: “It is like it happened yesterday. I feel ashamed for what happened. I feel bad especially for the family. I wanted to write an apology letter to the family.”
Under cross-examination by Mr Orchard, PNCV confirmed that he spoke fluent Dinka. He confirmed he had no fixed address before he went into custody. PNCV said that he had been in receipt of a disability support pension (DSP) before he went into custody and in direct responses to the Tribunal confirmed he had received advice that it had been cancelled owing to his incarceration. PNCV said he would re-apply for DSP on release, if allowed to stay in Australia.
PNCV confirmed he was driving an unregistered and unroadworthy car at the time of the collision and had been disqualified from driving. He confirmed he had gone to buy alcohol with Ms CH and was on a Community Correction Order.
PNCV said at the time he was undertaking a substance abuse control course relating to his abuse of alcohol.
In respect of the collision, PNCV said he was “shocked. Everything was going in slow motion”.
The Tribunal was played footage (Exhibit R3) taken by an observer of the collision from a mobile telephone. It clearly showed a vehicle and a motorcycle, spaced apart on the highway, on fire. In the middle was a person, also on fire, and other motorists had stopped to render assistance and were using clothes to douse the flames.
PNCV was asked whether, having had the opportunity to see the footage, there was no doubt that the correct thing to do was to stay and call the police. PNCV agreed. He said he was not thinking clearly and seeing the footage reminded him that what he had done in leaving the collision scene was ‘very bad’.
Mr Orchard asked the Applicant if he chose to leave because he did not want to be in breach of his Community Correction Order, to which PNCV agreed.
PNCV said he did not call the police because he did not have his mobile phone with him at the time. He agreed that the next morning Ms CH contacted the police and told them what had happened.
Mr Orchard asked PNCV whether his behaviour after leaving the scene of the collision indicated that he did not have remorse. PNCV responded “I was crying, I had remorse.” He agreed that those feelings had not been strong enough to motivate him to go to the police and in fact the police had to come to him.
PNCV agreed that he told Mr Coffey, (ATB, p 47) that he “thought he could now overcome any emotional reactions that made him want to avoid what was happening.”
Mr Orchard asked PNCV about an offence in January 2016 where he was fined for failing to give his name and address after running into the rear of the car of another motorist. He drove away instead. PNCV said he did not remember the offence but accepted that he knew that it was an offence to leave the scene of a motor vehicle accident.
PNCV was asked about his involvement in mid-2010 in an incident at a railway station which led to a charge of Affray. PNCV said he was with friends and a fight developed which he tried to stop. He said the police attended and he gave a statement, but he was not the one fighting. Mr Orchard noted that PNCV was not convicted on this occasion.
The Tribunal was taken to a police summary report (SG, p 29) which recorded an altercation between a female and PNCV where the female tried to take a telephone from him in a car, and he punched her to the face. There were no visible injuries. The female called police. The police summary report stated that PNCV ‘had an outstanding warrant and was involved in a collision earlier in the night where he left without exchanging details.’ A paramedic who attended the incident informed the police that the female said she had hit PNCV.
PNCV agreed with the Mr Orchard that he has been found to have contravened a Community Correction Order on two occasions and he contravened a Family Violence Intervention Order.
PNCV said he had engaged in counselling and alcohol abuse courses before going to prison. Mr Orchard noted that PNCV had been recorded as ‘engaging positively with the conditions of his order’ prior to his re-offending (SGD, p 88).
In respect of his son, PNCV agreed that he has never had full-time care of XC and that XC has always been looked after by Ms XP’s brother (XC’s uncle). PNCV said he had his leg amputation in 2009 and afterwards was in physical rehabilitation for about a year, which made it difficult to see XC.
PNCV said he would see his son through visits arranged by Child Protection, who had a role because Ms XP was not able to care for XC. He said he would see him and bring him gifts and that he had previously not had a good relationship with the uncle, but that had since improved.
PNCV said that if he is allowed to remain in Australia, he would like a shared custody arrangement. He has no current plan in place but would have a discussion when released.
Mr Orchard asked PNCV about his relationship with Ms XP. He drew the Applicant’s attention to a report by Mr Jeffrey Cummins, psychologist (SGD, p 83) in which he told Mr Cummins that before dating Ms CH he had ‘dated a woman for 12 months’ and as a result of that relationship he had a son, XC. PNCV said he had not broken up with Ms XP and still saw her and visited her before he went into custody.
He agreed that Ms XP’s illness had put pressure on their relationship but said that was in 2012 and that Ms XP is now on different medication and is much better. He said he wanted to restart the relationship but conceded that, at the time, he was still with Ms CH.
Asked directly which was his girlfriend at the time of the collision, Ms XP or Ms CH, PNCV said it was Ms XP.
In response to direct questions from the Tribunal, PNCV conceded he did not call the police after the accident, but said he knew Ms CH was going to. He said he sometimes stayed with Ms XP. Asked whether he had been visited by XC while he has been in gaol, PNCV said that his son had not visited but he had spoken to him on the telephone. He said XC stays with his mother on weekends, and with Ms XP’s uncle during the week.
PNCV confirmed to the Tribunal that he had a fall last year because his prosthetic leg was not fitting properly and fractured his leg as a result. He had an x-ray and the doctor told him he could either have an operation or give it time to heal. He had surgery and subsequent rehabilitation.
PNCV said he had been fitted with a new prosthesis but was having issues with the cast and had been back and forth to hospital in relation to this issue. He said he had continuing pain. Including ‘phantom’ pain, with the stump.
Asked what his thoughts were about possibly returning to South Sudan, PNCV said:
“The war is still going. I left when I was 11 years old. At the moment I’m not a citizen of anywhere. I have no one there. It would be hard for me because of my leg, and hard to get a job. I don’t have a good education. I don’t want to leave my son behind.”
PNCV said that apart from speaking Dinka he was also fluent in Sudanese Arabic.
PNCV said he had not had any relationship with Ms CH for around three years, and he did not know her current whereabouts. The Tribunal asked the Applicant who ‘Ms F’ was, who was mentioned by the Judge as being his partner when Her Honour delivered her sentencing remarks. PNCV said she had been his girlfriend but she ‘moved on’ when he was sentenced.
ORAL EVIDENCE
Evidence of Mr Guy Coffey, clinical psychologist
Mr Guy Coffey gave evidence as an expert witness. He confirmed that he had examined PNCV and had provided two reports, one dated 1 August 2018 and a supplementary report dated 28 February 2021 (GD, p 116 and ATB, p 41). Mr Coffey said he saw PNCV for eight hours in respect of the first assessment and for five hours in respect of the second.
Mr Coffey confirmed his view that PNCV was not suffering from any diagnosable mental illness but in the past had an alcohol and cannabis disorder and a developmental disorder. He said he did not think PNCV’s symptomatology meets the criteria for a diagnosis of Post-Traumatic Stress Disorder. He said that PNCV has in the past suffered from low mood – he has been dysphoric but not with clinical depression.
Mr Coffey said that he was aware that the Applicant had attended group programmes in prison and from May 2020 has received individual alcohol and substance abuse counselling from Caraniche Drug and Alcohol Services (ATB, p 29).
Mr Coffey said he was of the opinion that, on release, PNCV needs quite intense and regular counselling and further needs specialist treatment for the effects on him of his traumatic childhood. Mr Coffey told the Tribunal he considered that PNCV requires a neuropsychological assessment. Although PNCV has had limited education it was not his view that the Applicant has a cognitive deficit. He felt vocational training would be desirable and that National Disability Insurance Scheme (NDIS) funding might cater for this. He considered that range of supports would serve PNCV well, but it was essential they be in place.
Mr Healer asked Mr Coffey whether PNCV had the potential to offend against any person. Mr Coffey responded that the chances of the offending occurring again is ‘unlikely’, but his strong qualification was that PNCV needed appropriate treatment.
Mr Coffey noted that PNCV had committed himself to drug and alcohol counselling in prison. He considered that substance abuse had been central to the ‘family offending’ that had occurred in the past. He said that if alcohol and drug misuse are taken out of the equation, his professional opinion was that PNCV was unlikely to revert to offending behaviour.
Mr Coffey told the Tribunal that PNCV had thought deeply about his ‘civic, moral and legal duties’, and that was evident both times he examined him, and in reports from other counsellors he had read. He considers that PNCV regrets what he did and is trying to make amends. He considers that PNCV does not have a personality that inclines him to this kind of offending.
Mr Coffey said that according to the counsellor and the NDIS caseworker PNCV had been seeing in prison, the Applicant was ‘extremely motivated’. He noted that PNCV has embarked on the courses available to him and in spite of his leg difficulties seems to have occupied himself with courses including those on behavioural change. Mr Coffey noted that there had been positive comments about his work in the prison environment, which he had to give up when he had his fall, and noted that he had not ‘sat on his hands’ in prison and studied ESL courses as well.
The witness said that PNCV has significant pain from time to time in his residual amputated limb. Mr Healer asked what the effect on the Applicant of both detention for an indefinite period would be and, secondly, if he was returned to South Sudan. Mr Coffey said he would not put PNCV in the highest category of vulnerability because he would reserve that for persons with severe trauma or mental illness, but he noted that PNCV is currently on a course of antidepressant medication prescribed to him in prison. He noted that PNCV has stopped his substance abuse and has kept himself busy in prison.
Pressed on what effect return to South Sudan might have, Mr Coffey referred the Tribunal to what he said in his supplementary report (ATB, p 54):
I do not know what [PNCV’s] precise circumstances would be if he were to be repatriated to South Sudan. If his situation in that country caused him to feel unsafe or resulted in him receiving mental health and medical care that fell well short of what his psychological vulnerabilities and physical disability require, or led to him being bereft of social support, I believe his mental health would be likely to deteriorate, possibly precipitously.
Mr Coffey, having read the above extract to the Tribunal, added: “I emphasise that I don’t know what could happen to him. I could be concerned about his mental health and possibly his physical health, but I am not qualified on the second.”
Under cross-examination, Mr Coffey agreed that the Applicant had participated in counselling and behaviour management courses, and then re-offended, and had breached court orders.
Mr Orchard asked if this meant the risk of not complying with future treatment plans would therefore be heightened. Mr Coffey responded that he was mindful of that history and had taken it into account in reaching the conclusions in his report.
Mr Orchard suggested that PNCV knew he should have stayed at the scene of the collision and that he was not affected by drugs or alcohol at the time. Mr Coffey responded that PNCV was leading ‘a dissolute life’ but at the time was not misusing drugs or alcohol. His life was disorganised and directionless, and at times he was not law-abiding.
Mr Coffey agreed that if PNCV did not have stable accommodation it would increase the risk of re-offending. Asked if a lack of stable employment would increase risk, Mr Coffey responded that his potential for risk would increase if PNCV’s life was empty, but it was not essential that he had paid employment. He was of the view that PNCV was not yet ready for paid employment because of his physical disability needs and his vocational education needs.
Mr Orchard asked Mr Coffey whether his assessment of there being a low risk of PNCV re-offending would change if he did not have the supports previously outlined. Mr Coffey responded that he would be more concerned if PNCV did not have the structures of support. “He is very genuine and disappointed with his feckless life. A ten-year history takes a while to turn around.”
Mr Coffey said that, in considering what the counsellor had reported, he considered that PNCV had made a ‘pretty good start’ in trying to turn around a decade of substance abuse. Mr Coffey said he was aware PNCV had a previous offence of leaving the scene of an accident.
Evidence of Ms XS, sister of the Applicant
Ms XS gave evidence by telephone. She confirmed she was married to Mr XL and they had eight children together. She confirmed that she came to Australia in 2006 with PNCV.
Ms XS said that her children love PNCV ‘like their own father’. She said her children often chat with PNCV and do not hide anything from him. Ms XS said that PNCV was like her own child. She had brought him up and she would be devastated if he went back to Africa.
Ms XS said she did not know what would happen to PNCV if he returned to South Sudan. “He might live; he might die. I don’t know what would happen.”
Under cross-examination, Ms XS said although PNCV had not played any parental role in relation to her children, “sometimes he does look after them when my husband and I are busy. They’ve never been in his care.”
In response to direct questions from the Tribunal, Ms XS confirmed that her children range in age from 17 to six months. She said PNCV knew all of them except for the youngest, who has been born since he has been in prison. Asked whether she had taken the children to visit PNCV in prison, Ms XS said: “I wanted to visit because the kids really miss him, but the coronavirus restrictions stopped that.”
Evidence of Mr XL, brother-in-law of the Applicant
Mr XL gave evidence by video link. He said he is a motor mechanic by trade and first met PNCV when they all lived in Cairo. Mr XL said that PNCV had a very close relationship with his children because in South Sudanese culture the role of an uncle is very important in assisting children. He said the Applicant has brought them gifts for their birthdays, had taken them to play and to the cinema and helps out when he has time.
In respect of PNCV’s misuse of drugs and alcohol, Mr XL said that he knew PNCV could drink but he had hidden any particular problems from him; he did not know about the drug-taking. Mr XL said he was committed to help PNCV if he is released and allowed to stay in Australia and would take him to the police for reporting purposes or to drug and alcohol counselling. He said he had known PNCV for a long time and knew he could be a good person. Mr XL said that there were no relatives back in South Sudan. He had been back in 2015 but found there were no relatives there of his wife.
Under cross-examination, Mr XL said he knew about the collision and the failure to render assistance, but did not know of earlier offending. Mr XL said that PNCV regularly talks to his wife from prison and he knew from what she relayed that he was sorry for what happened when the motorcyclist lost his life.
Evidence of Ms XP, Applicant’s partner
Ms XP gave evidence by telephone. She said she had known PNCV for a long time because his sister is married to her uncle. She said she first met the Applicant in 2004 in Egypt and then met him again in 2009 when they commenced a romantic relationship and she had XC.
Ms XP said she spoke to PNCV by telephone from prison. She said he has a good relationship with their son. She confirmed that XC lives with her brother and that PNCV and her brother previously did not have a good relationship but “now get along because of the child”.
Ms XP said that XC comes to stay with her on Fridays and leaves to return to the care of her brother on Sunday evening. She said that XC had spoken to PNCV on two occasions by telephone since he has been in prison.
Ms XP said that XC will continue to live with his uncle because her illness meant she could not take him to school, but that if PNCV stayed in Australia ‘we would try and live together and build our relationship’.
Asked about what effect she thought returning to South Sudan would have on PNCV, Ms XP said: “He came here to get treatment. My life would be very bad. I won’t be able to look after [XC]. He has two sisters, one in the USA and one in Australia. His parents died; he has no one at the moment in South Sudan. He has to use an artificial leg; he would not survive there.”
Under cross-examination, Ms XP told the Tribunal that she was sick which was why XC was in the care of her brother. She then told the Tribunal that there is a Court order which has been in place since XC was a child, which placed him in the care of her brother.
Ms XP said that her romantic relationship with PNCV started early in 2009 and then she fell pregnant. She said the relationship lasted around 12 months but ended when she had the baby.
Ms XP admitted that the reason she did not have care of XC was not only, as she said in her written statement, because of “a personal arrangement” (ATB, p 7), but was also because of a Court order, which applies until XC turns 18 but which had been varied to allow her to have him to stay with her on weekends.
Pressed about the length of her relationship with PNCV, Ms XP said that she and the Applicant had ‘been together for 11 years’. She agreed that they have never lived together but said they had also never separated.
Mr Orchard asked Ms XP whether she knew Ms CH. She said she did, and knew her as a friend of PNCV. She then said: “I wasn’t aware about [Ms CH]. He used to say she was his social worker, or sometimes, friend. When he was locked up, she came to me and told me that she had been his girlfriend for three years, living together…”
Ms XP confirmed she had not previously known that PNCV was in a relationship with Ms CH, and that she knew they had broken up and Ms CH has now gone on to be in a new relationship. Ms XP was asked about ‘Ms F’ but said she did not know her and did not know PNCV was in a relationship with Ms F at the time of his sentencing.
In answer to direct questions from the Tribunal, Ms XP said she lived in a flat with one adult child (not a child of PNCV) and that “if he wants to stay with me, that’s ok. If he doesn’t want to, that’s also ok. I have three bedrooms”.
CLOSING SUBMISSIONS
The Applicant
Mr Healer submitted that any risk of PNCV re-offending is low. He said that the principal offence which led to the visa cancellation was itself non-violent, that PNCV had shown deep remorse and had confronted his challenges of substance addiction which affected his past behaviour.
Mr Healer submitted that three issues warrant revocation of the mandatory cancellation of the visa: Australia’s non-refoulement obligations; the Applicant’s deep family ties; and extensive impediments being an amputee with a prosthetic leg.
Mr Healer submitted that PNCV has been sober for three years. He conceded that this sobriety has occurred in the protective environment of prison, but nevertheless submitted it was an achievement. He drew the Tribunal’s attention to Mr Coffey’s assessment that there was a low risk of recidivism, provided relevant supports were in place.
In respect of XC, Mr Healer said that PNCV had an ongoing role in his son’s life, and was in a position to play a greater role in the future, and that he had a significant role, supported by the evidence of their parents, in the lives of his eight nieces and nephews. Repatriation would mean that XC would lose the opportunity to have a relationship with his father, and PNCV’s nieces and nephews with their uncle.
In terms of the expectations of the Australian community, Mr Healer said it was fully accepted that non-citizens should obey the law, but that an evaluative assessment is nonetheless required, because of the judgment in FYBRv Minister for Home Affairs [2019] FCAFC 185 (FYBR). He noted that PNCV had significant trauma before coming to Australia, had lived in Australia for the bulk of his life, and all his adult life, accepts responsibility for his offending, has ties with this country, and is a person with a disability. Mr Healer submitted that all of these would mean the expectations of the community would be that the visa cancellation should be reversed.
In respect of non-refoulement obligations, Mr Healer submitted that PNCV is a person to whom Australia owes protection obligations and that he satisfies the criterion for complementary protection, having a well-founded fear of persecution because he is Dinka, would be regarded as a ‘foreigner’ if returned to South Sudan, and is a person with a disability. Mr Healer noted that PNCV’s original injuries occurred during the looting of Malakal, which is the second-largest centre in South Sudan.
Mr Healer said that PNCV has a genuine fear of persecution if returned to South Sudan as a person with a disability and referred the Tribunal to written representations made on behalf of PNCV about the treatment of persons with disabilities in South Sudan (GD, pp 96-97).
In respect of PNCV’s ties with Australia, counsel submitted that the Applicant’s only close family resides here, and that he knows no one in South Sudan.
In respect of impediments if removed, Mr Healer noted that PNCV’s leg could only be amputated once he came to Australia and drew the Tribunal’s attention to the report on PNCV by the Senior Prosthetist, Ms Emily Duke, at St Vincent’s Hospital (ATB, pp 27-28). Mr Healer said that PNCV would not have access to what services the ordinary South Sudanese citizen could avail themselves of, by reason of his disability.
The Respondent
Mr Orchard summarised the fatal collision and noted that witnesses said that PNCV appeared ‘calm and together’ but nonetheless fled the scene. He said that it was his partner, Ms CH, who called the police, not PNCV. Mr Orchard said that PNCV’s evidence varied on this point but that he did admit in the hearing that he knew it was an offence to leave an accident, and that the failure to render assistance was based on self-interest.
Mr Orchard drew the Tribunal’s attention to the previous offence of failing to exchange name and address after a collision (SGD, p 329), and submitted there was a clear escalation of offending of this sort.
The Respondent submitted that the traffic offences of PNCV illustrated a frequent propensity to offend and noted there was also crimes of violence such as Criminal Damage and Affray, and domestic offending.
Mr Orchard noted the RSFIC recorded other conduct against PNCV which did not necessarily lead to convictions and there was no reason to doubt the veracity of the relevant police reports, noting that paragraph 6.3.4 of the Direction provided that other conduct by a non-citizen may be taken into account.
The Respondent submitted that the reference in the ASFIC to PNCV not being at fault in the collision is not on point, because the conviction for failing to render assistance diminishes the community. Mr Orchard submitted that PNCV was hesitant to admit that he did leave the scene of the collision because of self-interest.
Mr Orchard submitted that Mr Coffey confirmed that PNCV suffers from no mental illness such as PTSD and that the Courts had been lenient in respect of his earlier offending, but he had re-offended, even after positively engaging with courses designed to curb his conduct.
The Respondent submitted that the Tribunal should have a low level of confidence that PNCV will meet the expectations of improving his conduct, and that Mr Coffey’s prediction of risk was at best speculative, noting that (SGD, p 88) an earlier assessment had rated PNCV as being a ‘high risk’ of re-offending according to the Level of Service/Risk, Need, Responsivity tool.
Mr Orchard submitted that PNCV has no current employment prospects, had lied to Ms XP about his relationship with Ms CH and that his support network had not prevented him offending in the past.
In respect of the best interests of XC, the Respondent submitted that there had been limited contact and that PNCV was unlikely to play a positive role in XC’s life. Mr Orchard noted that PNCV admitted in evidence that he had never had full-time care of XC and that XC was subject to a Court order.
Mr Orchard said the Respondent accepts that the Applicant has some relationship with his nieces and nephews, but noted that others play a parental role in their lives.
In respect of non-refoulement obligations, the Respondent said there was no evidence that PNCV would be targeted because of his disability, and noted that it was the Minister’s submission that the Tribunal can place less weight on this consideration where Australia will not remove a person to a place where that person will face harm. He noted that it is relevant that PNCV can apply for a protection visa.
In respect of ties with Australia, the Respondent accepted PNCV’s family connexions. Mr Orchard submitted that PNCV’s relationship with Ms XP was, at best, ill-defined and, at worst, based on deception. Mr Orchard noted that PNCV dated other women while lying to Ms XP about who they were.
In terms of impediments if PNCV is removed from Australia, the Respondent submitted that the Minister accepts living standards in South Sudan are poor but that an assessment must be made in the context of what is available to other citizens. Mr Orchard said that PNCV was young and healthy, except for his leg, and noted that he gave evidence that he speaks both Dinka and Sudanese Arabic.
APPLYING THE DIRECTION
As discussed above, decision-makers, including the Tribunal, must take guidance from the Direction because of the provisions of section 499 of the Act.
Primary consideration: Protection of the Australian community (paragraph 13.1)
The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain listed factors, as relevant to the particular circumstances.
The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously (paragraph 13.1.1(a))
The principal offence of which PNCV was convicted was a serious crime, but it was not a violent or a sexual crime. It is clear from the sentence imposed, especially for a person who had not previously been given a custodial sentence, that the Judge viewed PNCV’s conduct in the immediate aftermath of the fatal collision as reprehensible. Mr Orchard was right, in the Tribunal’s view, to characterise this offending as conduct that diminishes society, and Mr Coffey’s description of rendering assistance in such circumstances as a ‘civic, moral, and legal duty’ is an apt description.
It is possibly the tragic truth that there may have been nothing PNCV could do to save the motorcyclist, but that is not the point. He had an obligation in law to render assistance, and this particular law actually reflects a civic obligation that binds our society. The fact that other motorists stopped to render assistance, including dousing the flames and administering CPR, illustrates their commendable conduct, but also starkly underlines that PNCV, himself involved in the accident, fled.
The Tribunal is careful in its consideration to make very clear that there is no evidence before it that PNCV was responsible for the collision. The police accident investigation analysis was of the view that the collision was the result of the excessive speed of the motorcycle rider. There was no evidence that PNCV was driving unsafely or carelessly. However, he should not have been driving at all. He had only a learner permit (SGD, p 72) and has never been issued with an Australian driver licence. He has been disqualified from driving on more than one occasion. Added to that, the car he was driving was unregistered and did not have a roadworthiness certificate. Compounding the offending, PNCV was on a Community Correction Order, imposed only four months earlier.
It may be true that PNCV panicked after the accident. The witness statements from others at the scene offer somewhat conflicting evidence. One states that he was ‘calm’, going to retrieve Ms CH’s dog, and another recorded him as briefly walking around with his head in his hands. In any event, his conduct afterward in leaving the scene, hailing a cab and returning to Ms CH’s residence may have been the result of panic, but then he did not contact the police. In fact, he left that to Ms CH. He gave evidence that he knew she was doing that, but even if that is the case, all he did was wait at home while she presented herself at the police station and made a statement and told the police where he was. This was, as Her Honour said, cowardly conduct.
The sentence that the Court imposed was a heavy one, but as the learned Judge said, the aggravating factors contributed to that tariff.
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(b))
PNCV has been convicted of some domestic-violence related infractions, relating to his former partner Ms CH. There are some police reports of attendances at Ms CH’s residence (for example, SGD, p 44, 45, 47, 51) where there had been verbal arguments, some physicality such as hair-pulling and slapping, and threats made, during their relationship. A conclusion from the reports is that these were fuelled by PNCV’s drinking. A family violence order was issued in relation to PNCV. Mr Coffey noted that his and Ms CH’s relationship continued afterwards, clearly sometimes turbulently. One of the reports remarked that police attending the incident were unsure whether the Applicant or Ms CH was the instigator, and a paramedic told police she was the one who had hit PNCV.
Regardless of the circumstances of these incidents, there is never an excuse for domestic violence, or for breaching orders duly made by the Courts to protect persons in a domestic setting.
The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious (paragraph 13.1.1(c))
There is no evidence before the Tribunal that this subparagraph of this part of the Direction is relevant.
Subject to subparagraph 13.1.1(b), the sentence imposed by the courts for a crime or crimes (paragraph 13.1.1(d))
The sentencing Judge took into account that PNCV’s plea of guilt was made quickly and was indicative of remorse and saved the public expenditure of a trial and the trauma that might have presented for other witnesses and for the family of the deceased. However, the Judge also took into account that the offending occurred while PNCV was subject to a Community Correction Order, designed by another Court to regulate his behaviour, and that he had been involved in previous, albeit relatively minor, offending. The sentence imposed was a significant custodial sentence.
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; The cumulative effect of repeated offending (paragraphs 13.1.1(e) and (f))
PNCV has been a sporadic offender. His Court appearances were in 2011, 2014, a minor offence in 2016, and 2017, and one further appearance in 2018 after being imprisoned in relation to his earlier breach of a Community Correction Order. As the summary of his offending set out above in the reasons indicates, he has been treated leniently on many occasions by the Court but has nevertheless defied the authority of the Courts by breaching orders and bail.
The Respondent urged on the Tribunal that the offence in January 2016 of failing to exchange names and addresses after a minor collision is relevant. The Judge found that, and the Tribunal considers that to be so, because PNCV did know that he had a legal obligation not to leave the scene of a collision where a person had been hurt. Who was actually at fault in the collision is not relevant to this obligation.
Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(g))
The Tribunal has no evidence that the Applicant had provided false or misleading information to the Department.
Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)(paragraph 13.1.1(h))
There was no evidence before me that PNCV had been formally warned by the Department.
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act (paragraph 13.1.1(i))
PNCV has not been in immigration detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
In considering the risk to the Australian community, the Tribunal must have regard, cumulatively, to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further criminal conduct, taking into account available information and evidence on the risk of re-offending.
Mr Guy Coffey, as mentioned above, undertook two long examinations of PNCV. In his first report in August 2018, in respect of recidivism, he wrote (GD, p 131):
In consideration of the likelihood of repetition of the kind of offences he has committed in the past, much will depend on him receiving adequate treatment and support. If he receives insufficient treatment and rehabilitation, driving and possession offences and possibly other offences related to substance abuse are a real possibility. However if an appropriate program of assistance is provided I think the probability of recidivism is reasonably low. This conclusion is based on my view that his propensity to offend arises primarily from his substance abuse, dysphoric psychological state and unstructured and aimless daily life rather than any strong anti-social traits.
Mr Coffey reiterated his conclusions in regard to risk in his supplementary report of February 2021 (ATB, p 41-54) and in his oral evidence at the hearing.
It would seem to the Tribunal that PNCV has engaged positively while in prison on courses that are designed to help him not to return to the behaviour that led to his offending, as well as courses relating to his physical disability. It is also a positive feature of his time in prison that he has undertaken work (until his fall in mid-2020 affected that) and has engaged with individual counselling and liaison with his NDIS case worker. Ms Gayle Talbot, representative of Caraniche Drug and Alcohol Services, wrote on 26 October 2020 (GD, p 137):
[PNCV] self referred to Caraniche AOD services and commenced individual counselling on 13th of May 2020, he has attended 16 x 1 hour sessions to date and remains in treatment with Caraniche AOD services at this time.
[PNCV] has been able to successfully identify and address significant areas of concern relating directly to his substance use. These include experiences of severe childhood and adult trauma, significant grief and loss and emotional dysregulation. [PNCV] remains committed and motivated within his engagement and has requested that his therapy is ongoing.
PNCV says he has not taken alcohol or illicit drugs for over three years and his urinalysis results have been consistently negative (ATB, pp 37-39). His prison work supervisors record that he was a ‘valued member of the team’ and courteous to staff (SGD, p 354).
Given the signal nature of the principal offence, I consider it unlikely that such special circumstances would arise again, so there is a very low risk of PNCV re-offending in that way. However, I consider, given his past behaviour including altercations with Ms CH and his apparent willingness to drive motor vehicles unlicensed and when disqualified from driving, that there is some risk of repetition of this type of offending. It will hinge on whether he continues to abstain from substance abuse and from driving, and whether he takes up the further opportunities for counselling which he has commenced, and which he agreed with Mr Coffey he needs. He has greater supports in that area than many others in the community because he has been accepted as an NDIS client, and has been allocated targeted NDIS funds (ATB, pp 19-24).
I find that this primary consideration weighs against the Applicant. It is unlikely that the circumstances which led to the principal offence will be repeated, which affects the weight that attaches to this finding. However, the Tribunal must look at all the offending and other serious conduct of a non-citizen, and while some of it has been minor, there has been a concerning propensity of PNCV to drive when he is not legally authorised so to do, and he has committed a number of road offences. There is also evidence of breaches of Court orders which is completely unacceptable. Balancing that, to some extent, is the objective evidence of his positive engagement with supports.
Overall, I find that this primary consideration weighs moderately against the revocation of the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether revocation is in the best interests of any relevant minor child.
The son of PNCV and Ms XP, XC, is a relevant minor child. In addition, the eight children of the Applicant’s sister, Ms XS and Mr XL, who range in age from 17 to six months (ATB, p 10) are also relevant minor children. The Direction states that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. It would seem to the Tribunal that, given that there is no evidence of any special circumstances that would single out one or more of PNCV’s nieces and nephews, the Tribunal should make determinations in two respects, one for XC and one for all the nieces and nephews.
The evidence of PNCV was that he has never been a full-time carer for XC. The evidence would draw the Tribunal to go further than that, it would appear that he has never been the carer for XC. In spite of varying evidence on this point, the Tribunal prefers the evidence PNCV gave to Mr Cummins in November 2017 (SGD, p 83), that he had a relationship of around 12 months with Ms XP as authentic. The Tribunal is not persuaded that she is his ‘current partner’. It would appear that PNCV adopts the view that who he views as his partner is somewhat fungible. That is not to dispute that PNCV has had other contact with XC nor Ms XP’s evidence that he has spoken to his son on two occasions when XC has been in the company of his mother and PNCV has telephoned.
As the evidence unfolded at the hearing, XC’s mother admitted that a Court has made orders in relation to the care of XC, from a young age, and they are orders that, until varied, apply until he reaches 18. He is in the care of Ms XP’s uncle, and stays with his mother on weekends. I am not necessarily persuaded by the Respondent’s submission that PNCV would have a negative influence on XC if he is allowed to remain in Australia. There is no evidence of him doing anything detrimental in relation to his son, nor to Ms XP. However, the plain fact is that he has not been a significant figure in XC’s life. The Tribunal may accept that part of the reason for PNCV’s absence has been owing to his surgery and subsequent physical rehabilitation, and more recently his gaol sentence. However, it is relevant that PNCV moved to another city and lived there with Ms CH, without Ms XP knowing, and that this action also acted to limit his potential contact with XC.
I am prepared to make a determination that it is in the best interests of XC that PNCV’s visa is restored, but the weight that would ordinarily attach to this conclusion in a case where there is no evidence of domestic violence in that household is significantly diluted by the Applicant’s lack of previous involvement in XC’s life and the fact that the Court has made orders (unrelated to any conduct by PNCV) relating to his care. While those orders appear to be founded on Ms XP’s health challenges, PNCV did not present to the Tribunal any firm plan to have them rescinded if he is allowed to stay in the community.
I note that PNCV said (ATB, p 6) that he intended, if released, to live independently of Ms XP but near her and his sister and her family. He stated that as Ms XP has her three older children living with her, ‘it would be crowded at her house’. However, in her own evidence to the Tribunal, Ms XP said that only one of her older children still lives with her. This suggests to me that PNCV may not have frequent contact with Ms XP. Later in his statement, PNCV said he wanted to be a ‘proper father’ to XC and live with him. My conclusion is that any such plans are at best embryonic.
In relation to PNCV’s eight nieces and nephews, all of them are minors. The youngest has never met PNCV, and the second youngest was a very young child when he went into custody. However, the evidence of their parents is that the Applicant has played an important avuncular role in their lives, bringing them gifts, taking them on outings and generally being a popular family member – Ms XS remarked in her evidence that her children had pictures of PNCV on their walls.
The Direction requires me to take into account whether other persons already fulfil a parental role in relation to the minor children. That is the case for these eight nieces and nephews. Their parents fulfil the conventional role. However, given the evidence about the relationship (see also ATB, p 12), which was accepted by both parties, the Tribunal determines it would be in the best interests of PNCV’s minor nieces and nephews for his visa to be restored.
The Tribunal finds, on balance, that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa, but the weight is affected by the circumstances applying to his son, as set out above, and in the case of his nieces and nephews, that others perform a parental role in their lives.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
A superseded version of the Direction contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR, as mentioned by Counsel for the Applicant and in the RSFIC. The plurality of the Court (Charlesworth and Stewart JJ) found that this part of the Direction expresses a ‘norm’.
The Court decided that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not evaluations that a decision-maker may derive by some other process.
Her Honour Justice Charlesworth said, at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further, it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.
Writing separately, Stewart J said, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”…
The learned Judge went on to say (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances. On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
The Tribunal’s considered view is that the principal offence of which PNCV was convicted would lead to an expectation that his visa remain cancelled, because the action of leaving the scene of a fatal collision without rendering assistance, when you were involved in the accident, would be found to be shameful. The weight a properly informed member of the community would place on this expectation would however be affected by the knowledge that PNCV did not contribute to the cause of the accident.
The Tribunal also considers that some of the other conduct, which was before the Tribunal, even accepting Mr Healer’s submissions that some of the police reports were not corroborated and the writers were not available to be questioned, is recorded by credible sources. Convictions are not necessary for other serious conduct by a non-citizen to be taken into account under the Direction.
The Tribunal finds that this primary consideration, on balance, weighs moderately against revoking the mandatory cancellation of the visa, but not as strongly as it would if PNCV had any culpability in regard to the fatal collision.
OTHER CONSIDERATION: International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
The Applicant’s Counsel asserted that PNCV is a person with respect of whom Australia owes non-refoulement obligations. The Respondent acknowledged that PNCV has raised concerns or fears in relation to returning to South Sudan in his submissions both to the delegate and to the Tribunal but contended that some of the submissions were generic in nature (see RSFIC).
The Respondent also noted that PNCV is not precluded from applying for a protection visa at any time and that ‘the immediate legal and factual consequences of the cancellation of the applicant’s visa do not necessarily include removal from Australia or prolonged detention’, citing AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, at [70].
The Tribunal notes that the Minister has made a separate Direction under section 499 of the Act (Direction No. 75) which relevantly states, at Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1.The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns….
(Emphasis added.)
The Applicant has made submissions that he would face a real risk of harm if returned to South Sudan, and submitted that Australia owes him obligations under the Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GD, p 88).
The Applicant submitted that his risk of harm is real because of his Dinka ethnicity, him being a person with a physical disability, that he would be a person perceived to be wealthy, that he would be a person perceived to be foreign, and that he would be a returnee from Australia.
In respect of the first claim, the Tribunal notes that the current Government of South Sudan is constituted principally by Dinkas, and that Dinkas are the dominant ethnic group in the capital, Juba. The DFAT Country Information Report on South Sudan of October 2016, at paragraph 2.31, remarks:
While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and more broadly).
And, at paragraph 3.7:
Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba. [Emphasis added].
However, PNCV is from Malakal, a city which has been the centre of conflict during the Sudanese Civil War, frequently changing hands, was razed, and was occupied for a period during the war as the garrison for the armed forces from the North. It may be that, should PNCV return to what would logically be regarded as his home city, he could be placed in some peril.
PNCV came to Australia just before adulthood, aged 17. He told the Tribunal he can speak both Dinka and Sudanese Arabic, and his English during the hearing was articulate (noting that English is the official language of the Republic of South Sudan). He would lack some local knowledge, having only lived in South Sudan as a child before he went to Egypt, which might mark him out for unwanted attention.
The UN Special Rapporteur on South Sudan has recently reported sporadic conflicts across the country and in the more remote parts, and a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community.
The consistent evidence is that PNCV has no close relatives in South Sudan, nor indeed in Sudan. His mother died when he was an infant, and his father not many years later in a road accident. One sister resides in Australia, and the other in the USA. His other sibling died many years ago. Mr XL gave evidence that when he returned to South Sudan in 2015, he could not locate any close relatives on his wife’s side of the family.
What is, in the Tribunal’s view, particularly relevant in terms of the potential return of PNCV to South Sudan are the representations relating to the treatment of persons with disabilities. The Applicant quoted (GD, p 97) a 2019 Human Rights Watch report, titled ‘South Sudan: People with Disabilities, Older People Face Danger’:
The 2019 Security Council resolution renewing the mandate of the UN peacekeeping mission in South Sudan (UNMISS) expressed for the first time ‘ serious concern about the dire situation of persons with disabilities in South Sudan’.
Mr Healer also submitted an article Disability in South Sudan from the (UK) Institute of Development Studies (March 2018). The author relevantly stated (ATB, p 57):
Livelihoods: most people [in South Sudan] with disabilities are unemployed and there are almost no social safety nets and food security schemes for persons with disabilities.
…
Conflict: People with disabilities face greater risks of being caught in fighting and have been left behind when communities have fled attacks. Numerous abuses against them have been documented. Conflict also increased the severity of disability by preventing people with disabilities accessing services and medicines they need.
The article also records the assessment by the International Committee of the Red Cross that more than 70 per cent of amputations performed by them are because of conflict-related wounds (ATB, p 59).
PNCV has direct personal experience of the harm that war can do. Although he was very young, the experience he had of being shot in both legs and the shoulder, and then abandoned by adults (including his family, fleeing from militia) for several days, confirms to me that his fear of harm because of his disability can be founded both objectively and subjectively.
The Tribunal must couple this evidence with the 19 February 2021 letter from Ms Duke (ATB p 27-28). Ms Duke recorded that she has known PNCV since his amputation surgery in 2009 and she made his first prosthesis. She wrote:
As an amputee, [PNCV’s] health care needs are permanent. He is unable to ambulate without a prosthesis and the use of a prosthesis is something that requires ongoing management. A prosthesis needs regular review from a prosthetist to ensure that the componentry is in good working order, to service various components and importantly to review the fit and function. It is very common for an amputee’s residual limb to change in shape. How frequently this occurs is entirely dependent on the individual. Sometimes change in shape is predictable such as when body weight changes dramatically and at other times there appears no obvious reason. Regardless, every amputee who uses a prosthesis needs to be within easy access of a specialist prosthetic service in order to maintain function and prevent serious complications such as wounds, infection and injury.
[PNCV] himself experienced one such complication just over 12 months ago. Whilst waiting for funding approval to replace his ill-fitting prosthetic leg, he suffered a fall which resulted in a fractured femur. This was a direct consequence of not being able to immediately have his prosthesis replaced when it needed to be and resulted in surgery, prolonged hospitalisation, extended time unable to use a prosthesis and several prosthetic replacements in order to return function.
As you can appreciate, not only does [PNCV] need to have timely access to specialist healthcare (such as what can uniquely be provided in Australia) in order to maintain his independence but further it is of utmost importance and if this was jeopardised in any way it has potential to be catastrophic.
The Tribunal notes that the Institute of Development Studies report further states (ATB, p 56):
Legislation and policies: There is no specific legislation relating to the rights of persons with disabilities and South Sudan has not ratified the UN Convention on the Rights of Persons with Disabilities. The draft 2011 constitution refers to people with disabilities and special needs and National Disability and Inclusion Policy and the Inclusive Education Policy have been developed but lack of political will and government funding mean the policies have not been implemented.
Attitudes: Disability is often stigmatised in South Sudan and as a result children and adults with disabilities are hidden and isolated. Such negative attitudes contribute to discrimination against people with disabilities in South Sudan. Community based rehabilitation is reported to have helped to change attitudes towards disability in some communities.
Abuse: Adults and children with disabilities in South Sudan have been subject to various forms of verbal, physical and sexual abuse by their families and the wider community.
The Tribunal is satisfied that PNCV would be exposed to a significantly heightened risk of personal harm and possible persecution, because of his amputation, if returned to South Sudan, and that this would be exacerbated because of the paucity of available health services in that country. His recent injury was a direct result of an unsuited prosthetic leg and has caused significant health setbacks for him, including ongoing pain requiring analgesia, in spite of occurring in a country with well-equipped and available specialist medical support. I am satisfied that PNCV has articulated to the Tribunal a well-founded fear of potential discrimination against him, and significant adverse personal consequences, because of his disability. I am further satisfied that objective sources corroborate the stigmatisation and poor treatment of persons in South Sudan with the disability PNCV has, and that his fears in relation to that are not fanciful or far-fetched.
The overall conclusion of the Tribunal is that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
OTHER CONSIDERATION: Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether he or she arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community. Regard must also be had for the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents or people with an indefinite right to remain in Australia, including the effect on the non-citizen’s immediate family of non-revocation.
The Respondent conceded that PNCV has family ties to Australia but argued that he has not been meaningfully employed in Australia. This is a somewhat curious submission to make when a different arm of Government, also on the evidence of the Respondent, found that PNCV was eligible for a DSP because his physical impairment gave him an inability to work. It would appear that the reason the DSP was suspended and then cancelled was because PNCV was in prison, not for another reason relating to his eligibility.
The RSFIC further argued ‘that by his criminal offending and other unacceptable behaviour he has demonstrated both a disconnection from and a cost to the Australian community, rendering any positive contribution negligible at best’. The Tribunal accepts this submission only as far as it goes, because while PNCV has amassed a disappointing number of minor offences, and one principal offence, he did not start offending soon after his arrival in Australia in 2006. His first minor offending was in 2011 and there were significant periods of no offending at all. However, it is certainly true that PNCV has nothing to be proud of in reflecting on his offence history.
PNCV states (ATB, p 4) that, while studying soon after arriving in Australia, he worked as a volunteer at Lort Smith Animal Shelter, walking dogs and helping with their training, and also doorknocked for the Salvation Army. Whilst there was no corroboration, the Tribunal has no reason not to accept this.
PNCV is an orphan and has strong family ties with his sister Ms XS and brother in law, Mr XL and their children, as outlined above. He also has some sort of relationship with Ms XP, even if the Tribunal is not convinced that she can accurately be labelled his ‘partner’, and a good if distant relationship with his son, on which he wants to build.
Overall, the Tribunal finds that this consideration weighs moderately in favour of revoking the mandatory cancellation of the visa.
OTHER CONSIDERATION: Impact on Australian business interests (paragraph 14.3)
The Direction requires the Tribunal to take into account the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.
This consideration is not relevant to PNCV. He had been granted a DSP on the basis that it was accepted by the Government that he had an enduring inability to work. He has not worked in Australia other than in the prison. The Tribunal finds that this consideration, not being relevant in the circumstances, weighs neutrally.
OTHER CONSIDERATION: Impact on victims (paragraph 14.4)
The Tribunal is required to take into account the impact of a decision not to revoke on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal interprets this as meaning that information must be before it that a victim of the Applicant’s offending must (a) know of the Applicant’s immigration status and (b) must have expressed a view on whether the Applicant should retain a visa. There were a number of heart-rending victim impact statements in the papers before the Tribunal from family and friends of the motorcyclist who died in the collision. There is no doubt they make affecting reading, but they were written in a different context, not in relation to PNCV’s immigration status. The Tribunal finds that this consideration weighs neutrally.
OTHER CONSIDERATION: Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that PNCV may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health; any substantial language or cultural barriers; and any social, medical and/or economic support available to him in the Republic of South Sudan.
The RSFIC, correctly, submitted that this part of the Direction requires an analysis of the extent of impediments PNCV would face through the lens of what is generally available to other citizens. The yardstick is not to compare what is available in a country of reference with Australia. Mr Healer argued that, because of PNCV’s amputation, he would not have the capacity to avail himself of what is ‘generally available to other citizens’.
In respect of language or cultural barriers, PNCV is fluent in English, Dinka and Sudanese Arabic and is Christian. It would be reasonable to infer, from his evidence of being involved in the local Sudanese community in Melbourne, and through his family, that he would be familiar with many of the cultural norms of society in South Sudan. The Respondent submitted that he was in ‘good health apart from his leg’. That would appear to be true, noting Mr Coffey’s comment that he is on prescribed mild antidepressants, but it is also obvious to the Tribunal on the medical evidence that the amputation and prosthesis has a very significant impact on PNCV’s daily life, in Australia. He has been on a DSP, has NDIS funding and had to cease working in the prison environment because of injury to his residual leg following a fall. The notes of prison officers produced under summons refer several times to PNCV reporting pain in his leg and requiring medication.
The Tribunal considers that, given these special circumstances that apply to the Applicant, it cannot ignore the fact, as outlined in the report from the Institute of Development Studies (ATB, p 55), that there are very meagre supports available for disabled persons in South Sudan. The report states:
Capacity to meet needs: South Sudanese authorities have had limited capacity to respond to the needs of people with disabilities and the support provided by national and international organisations is not enough to meet the immediate and long term needs of people with disabilities.
…
Healthcare: People with disabilities struggle to access and afford healthcare, including assistive devices, and are among those most vulnerable to malnutrition.
There was a National Disability Assessment conducted in 2011 in South Sudan. It indicated that ‘89.3% of respondents with disabilities were unemployed…’ (ATB, p 68).
The Tribunal accepts the submission from counsel for PNCV that, as someone who left South Sudan when a child, he may not even be in a position to gain access to such social and economic support as is available to other South Sudanese persons with the same disability, which challenges would be compounded if he had further difficulties with his cast, or prosthesis (as the evidence is he has had in Australia). The Direction requires decision-makers to consider not only impediments faced by a non-citizen in establishing him or herself, but also maintaining basic living standards. The Tribunal concludes that both of these, but particularly the second, would present significant impediments to PNCV. The fact that he has been found eligible for DSP because of an inability to work in this country (and thereby make a living) underlines that.
The Tribunal finds that this other consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
CONCLUSION
The Tribunal has considered all the relevant considerations in Part C of the Direction. In terms of the primary considerations, the primary consideration relating to the protection of the Australian community from criminal or other serious conduct weighs moderately against revocation, but not strongly because of the relatively low risk of re-offending. The primary consideration relating to the best interests of minor children in Australia weighs in favour of the Applicant, but not as strongly as it would if he had more regular contact with his son (before incarceration), and because others fulfil parental needs in relation to the other relevant minor children whose interests have been found to be relevant.
The primary consideration relating to the expectations of the Australian community weighs moderately against revocation, but this weight is lessened in the sense of this ‘deemed expectation’, given that PNCV’s offence was, in essence, a failure to fulfil a legal duty (as well as a civic and moral one), rather than a premeditated action of criminal conduct or violence. In respect of the other considerations in the Direction, those relating to impact on Australian business interests and impact on victims have been found not to be relevant to PNCV. The other considerations relating to Australia’s international non-refoulement obligations and the extent of impediments if removed have been found to weigh strongly in favour of revocation of the visa cancellation, especially because of the special impact of PNCV’s significant and medically unstable physical disability. The other consideration relating to the strength, nature and duration of ties has also been found to weigh moderately in favour of revocation.
In this task, the Tribunal does not engage in a mathematical exercise but must consider all the considerations cumulatively, and the weight that has been ascribed. Paragraph 8(4) of the Direction states that primary considerations should generally be given greater weight than other considerations. However, in considering whether there is ‘another reason’ under section 501CA(4)(b) of the Act to revoke the mandatory cancellation of a non-citizen’s visa, the Tribunal is necessarily required to take into account the totality of the Direction, and any other relevant factor consistent with purposes of the Act. The Full Court said in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at 473 [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 to not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
It has been held by the Full Court (Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35]) that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration. The decision of the Tribunal is that the discretion provided in section 501CA(4)(b)(ii) of the Act is enlivened in this case because of the weight that is given to three of the other considerations, and there is another reason to revoke the mandatory cancellation of the visa.
The Tribunal is particularly mindful that the pathway for PNCV’s future conduct is explicitly paved with him taking up the significant support services available to him through the NDIS and other sources. If he is true to his word and embraces this assistance available to him and maintains his abstinence from drugs and dependence on alcohol, he can be guided to vocational training and begin to make a good contribution to Australian society. His sister spoke in her statement of his good and generous qualities ‘when he is sober’. His future is squarely in his hands. Should he re-offend in the future, he now knows very clearly that the Minister has the legislative power to cancel his visa.
DECISION
The Tribunal sets aside the decision of the delegate of the Respondent dated 23 December 2020. In its place, under section 43(1) of the Administrative AppealsTribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
I certify that the preceding 233 (two hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 17 March 2021
Dates of hearing: 4 & 5 March 2021 Counsel for the Applicant: Mr Andrew Healer Solicitors for the Applicant: Refugee Legal Advocate for the Respondent: Mr Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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