QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 3677

QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3677 (21 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4120
Re:QFWW
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:21 October 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 30 June 2020, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Global Special Humanitarian (Class XB) (subclass 202) visa is revoked.
..................................[SGD]......................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – mandatory cancellation of applicant's visa – matter remitted from federal court – whether cancellation for same offence twice is valid – where subsequent offending exists – XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 – Tribunal satisfied of jurisdiction – applicant has substantial criminal record – whether there is 'another reason' to revoke mandatory cancellation decision – Ministerial Direction 90 – Nature and Seriousness of offending – best interests of minor children – expectations of the Australian community – whether international non-refoulement obligations exist – where information insufficient to establish international non-refoulement obligation – impediments to return – links to the Australian community – decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Nationality Act 2011 (South Sudan)
Sudanese Nationality Act 1994 (Sudan)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Secondary Materials
Amnesty International, ‘South Sudan 2020’, Amnesty International (undated) < Stiftung, BTI 2018 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2018.
Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976).
United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) <
United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021.
United States Department of State, South Sudan 2020 Crime and Safety Report, Overseas Security Advisory Council (OSAC), 29 April 2020.
World Food Programme, South Sudan Situation Report, 12 June 2020.
REASONS FOR DECISION
Senior Member Dr Linda Kirk
21 October 2022
INTRODUCTION

QFWW (‘the Applicant’) was born in Sudan in 1985.[1] The Applicant arrived in Australia as the holder of a Global Special Humanitarian (Class XB) (subclass 202) visa (‘the visa’) on 11 August 2003.[2]
[1] Exhibit R1, 111.
[2] Exhibit R1, 40.
The Applicant’s National Criminal History Check dated 22 April 2020 records that he was convicted of a number of offences in Australia between the period 2005 and 2020.[3]
[3] Ibid.
On 25 June 2015 the Department of Immigration and Border Protection issued the Applicant with a Notice of Visa Cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act[4] (‘the 2015 Cancellation Decision’). The delegate was satisfied the Applicant did not pass the character test in sub-section 501(6) of the Act as he was considered to have, pursuant to sub-section 501(7)(c), a ‘substantial criminal record’.[5] On 8 March 2013 the Applicant was convicted of Destroy or Damage Property> $2000 & < = $5000, Recklessly Cause Grievous Bodily Harm, Fail To Stop And Assist After Vehicle Impact Causing Grievous Bodily Harm and Take and Drive Conveyance Without Consent Of Owner (‘the 2013 convictions’) and sentenced to four years and seven months’ imprisonment. The delegate was also satisfied that, at the time of the decision, the Applicant was 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.
[4] Exhibit R1, 234-239.
[5] Under s501(7)(c) a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
On 31 August 2016, the Assistant Minister revoked the 2015 Cancellation Decision under subsection 501CA(4).[6]
[6] Exhibit R1, 225-226.
On 13 August 2019, the Department of Home Affairs (‘the Department’) issued the Applicant with a Notice of Visa Cancellation (‘the 2019 Cancellation Decision’) under subsection 501(3A) of the Act, on the basis that he did not satisfy the character test in subsection 501(6) of the Act.[7] The delegate was satisfied that the Applicant had a substantial criminal record based on the 2013 convictions. The delegate was also satisfied that, at the time of the decision, the Applicant was 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. On 4 June 2019 the Applicant was convicted of Possess housebreaking implements – T2, two counts of Possess prohibited drug and Goods suspected stolen in/on premises (not m/v) and sentenced to 15 months’ imprisonment.
[7] Exhibit R1, 234-239.
On 4 October 2019, the Applicant’s representative provided to the Department, by email, a request for revocation of the 2019 Cancellation Decision, representations to the Minister in support of his revocation request, a completed Personal Circumstances Form, and submissions, all dated 4 October 2019.[8]
[8] Exhibit R1, 30.
On 30 June 2020, a delegate of the Respondent decided not to revoke the 2019 Cancellation Decision under subsection 501CA(4) of the Act (the 2020 Non-revocation Decision’).[9]
[9] Exhibit R1, 23
On 9 July 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the 2020 Non-revocation Decision.[10]
[10] Exhibit R1, 7.
On 23 September 2020 the Tribunal made its decision, and provided its written reasons on 23 October 2020, finding that the representations made under subsection 501CA(4) had not been made in time, such that the Tribunal had no power to alter the decision under review.[11]
[11] Exhibit R1, 540.
On 27 October 2020, the Applicant appealed to the Federal Court of Australia.[12]
[12] Exhibit R1, 542.
On 27 September 2021 the Full Federal Court quashed the Tribunal’s decision dated 23 October 2020.[13] The Court found that the letter notifying the Applicant of the second Mandatory Visa Cancellation Decision was invalid.[14]
[13] Exhibit R1, 658.
[14] Exhibit R1, 679 at [43].
On 25 October 2021, the Minister applied to the High Court of Australia for Special Leave to Appeal,[15] and this was refused on 10 February 2022.[16]
[15] Exhibit R1, 688.
[16] Exhibit R1, 717.
The matter was remitted to the Tribunal and heard by it on 15 and 17 June 2022. The Applicant attended the hearing in person and was represented by counsel. He gave oral evidence and was cross-examined at the hearing.
The following persons attended the hearing via video conference and gave oral evidence and were cross-examined:
·Mr Tim Watson-Munro, Consultant psychologist
·The Applicant’s partner, SG
The material before the Tribunal consists of:
·Respondent’s Tender Bundle (Exhibit R1)
·Affidavit of Mohammad Ajmal Malik dated 20 April 2022 with Annexures A - H (Exhibit A1)
·Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 18 May 2022
·Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) dated 31 July 2020
The Tribunal has reviewed the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)    The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)     been found by a court to not be fit to plead, in relation to an offence; and
(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)    as a result, the person has been detained in a facility or institution.
Subsection 501CA(1) of the Act provides that section 501CA applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person (a ‘mandatory visa cancellation decision’).
Subsection 501CA(4) confers on the Minister the discretion to revoke a Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa (a ‘non-revocation decision’).
PRELIMINARY ISSUES
1. Jurisdiction
On the first day of the hearing, counsel for the Respondent raised a preliminary issue that potentially affected the jurisdiction of the Tribunal to hear the review application. Counsel drew the Tribunal’s attention to the Notice of the 2015 Cancellation Decision. This relevantly stated:
Notice of visa cancellation under s501(3A) of the Migration Act 1958
Purpose of this notice
You were granted a Class XB Subclass 202 Global Special Humanitarian Visa on 14 March 2003 (your visa). The purpose of this notice is to advise you that on 25 June 2015 your visa was cancelled under s501(3A) of the Migration Act 1958 (‘the Act’)
Section 501(3A) of the Act is a mandatory cancellation power, and provides that the Minister must cancel your visa if the Minister is satisfied that:
·you do not pass the character test because you have a substantial criminal records and the reason that you have a substantial criminal record is because of s501(7)(a), (b), or (c) of the Act; and
·you are serving a full-time sentence of imprisonment in a custodial institution because you have committed an offence or offences under Australian law.
Based on the evidence before the Department, the Minister is satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b), or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 8 March 2013 you were convicted of Destroy or Damage Property> $2000 & < = $5000, Recklessly Cause Grievous Bodily Harm, Fail To Stop And Assist After Vehicle Impact Causing Grievous Bodily Harm and Take and Drive Conveyance Without Consent Of Owner and sentenced to four years and seven months imprisonment.
The letter was addressed to the Applicant at South Coast Correctional Centre where he was serving a full-time term of imprisonment for the 2013 convictions.
The 2015 Cancellation Decision was revoked by the Assistant Minister on August 2016 under subsection 501CA(4).[17]
[17] Exhibit R1, 225-226.
On 13 August 2019, the Department issued the Applicant with a Notice of the 2019 Cancellation Decision’ under subsection 501(3A) of the Act, on the basis that he did not satisfy the character test in subsection 501(6) of the Act. The Notice relevantly stated:[18]
[18] Exhibit R1, 234.
Notice of visa cancellation under section 501(3A) of the Migration Act 1958
Purpose of this notice
You were granted a Class XB Subclass 202 Global Special Humanitarian visa on 14 March 2003 (your visa). The purpose of this notice is to advise you that on 13 August 2019 your visa was cancelled under s501(3A) of the Migration Act 1958 (the Act). Section 501(3A) of the Act is a mandatory cancellation power, and provides that the Minister must cancel your visa if:
·the Minister is satisfied that:
oyou do not pass the character test under s501(6)(a) because you have a ‘substantial criminal record’ according to s501(7)(a), (b), or (c) of the Act; or
o…
·you are serving a full-time sentence of imprisonment in a custodial institution because you have committed an offence or offences against Australian law.
The full text of s501 of the Act, including s501(3A) (mandatory cancellation power), s501(6) and s501(7) (character test), are included in Attachment 1.
Particulars of relevant information
Failure to pass the character test
Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act.
Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 08 March 2013 you were convicted of Destroy Or Damage Property > $2000 & < = $5000, Recklessly Cause Grievous Bodily Harm; Fail To Stop And Assist After Vehicle Impact Causing Grievous Bodily Harm and Take and Drive Conveyance Without Consent Of Owner and sentenced to an aggregate term of four years and seven months imprisonment.
The information based on which the decision maker was satisfied that you do not pass the character test is the Sentencing Remarks of the District Court of New South Wales on 08 March 2013.
Imprisonment on a full-time basis
Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were 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. On 04 June 2019 you were convicted of Possess housebreaking implements- T2, Possess prohibited drug (two counts) and Goods suspected stolen in/on premises (not m/v) and sentenced to 15 months imprisonment.
In particular, regard was had to the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 08 July 2019 and File note dated 13 August 2019.
…
Counsel for the Respondent drew the Tribunal’s decision to the decision of the Full Federal Court in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘XJLR’).[19] XJLR, the appellant, applied for judicial review of the decision of the Tribunal to affirm a decision of the delegate of the Minister not to revoke the mandatory cancellation of his visa under subsection 501(3A) of the Migration Act 1958 (Cth). In 2015 the appellant, a citizen of New Zealand, was convicted of offences and sentenced to 45 months imprisonment. In July 2016, under subsection 501(3A), a delegate cancelled the appellant’s subclass 444 visa (‘the 2016 cancellation’). In August 2016, the appellant was released on parole and placed in immigration detention. In September 2016, under subsection 501CA(4), another delegate revoked the cancellation (‘the 2016 revocation’) and the appellant was released from immigration detention. The appellant was arrested again on new charges in January 2018, was remanded in custody and had his parole revoked, requiring him to serve the balance of his sentence. In May 2018, the appellant was convicted on one of the new charges and sentenced to six months imprisonment and in June 2018 he was sentenced to three months imprisonment for the remaining new charges. In June 2018, a delegate made another subsection 501(3A) decision and cancelled the appellant’s visa again (‘the 2018 cancellation’) and in June 2019, another delegate decided not to revoke the 2018 cancellation under subsection 501CA(4) (‘the 2018 non-revocation’). The appellant applied for review of the 2018 non-revocation by the Tribunal, and in September 2019 the Tribunal affirmed the 2018 non-revocation.
[19] [2022] FCAFC 6.

On appeal to the Federal Court of Australia, Burley J, found that, once exercised, the power to cancel under subsection 501(3A) was only re-enlivened if subsequent events or further information satisfied the Minister that the person did not pass the character test in paragraph 501(3A)(a) on a relevantly different basis. His Honour held the 2018 cancellation was legally ineffective as it was based on the same term of 45 months’ imprisonment relied on in the 2016 cancellation. However, he held the meaning of “decision” in subsection 501CA(1), which states that ‘[t]his section applies if the Minister makes a decision … under subsection 501(3A) …’, should be construed in accordance with the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (‘Brian Lawlor’)[20] as meaning a decision in fact, so that the power to revoke a cancellation under subsection 501CA(4) could be exercised regardless of the legal efficacy of the subsection 501(3A) decision. Accordingly, the Tribunal had power to conduct the review of the 2018 cancellation decision.
[20] (1979) 24 ALR 307.
The appellant appealed the decision and contended that Burley J erred in construing subsection 501CA(1) as being capable of operating on a decision not to revoke a subsection 501(3A) decision that was legally ineffective, and that his Honour should have held that subsection 501CA(1) made the existence of a legally effective subsection 501(3A) decision an objective jurisdictional fact and an essential precondition to the exercise of the discretion in subsection 501CA(4). The Minister contended Burley J erred in failing to find that either, first, a section 501CA decision not to revoke a subsection 501(3A) decision becomes the operative decision once made, so that the subsection 501(3A) decision ceases to be of any consequence; or, secondly, the 2018 cancellation was valid because the fact of a new imprisonment enlivened the duty to cancel under subsection 501(3A) and subsection 33(1) of the Acts Interpretation Act 1901 (Cth) (‘AI Act’).
The Full Federal Court allowed the appeal, finding that the 2018 cancellation decision under subsection 501(3A) was legally ineffective as it was based on the delegate being satisfied that the appellant failed the same specific form of the character test prescribed in paragraph 501(3A)(a) as the 2016 cancellation decision, although he was serving a different sentence of imprisonment within the meaning of paragraph 501(3A)(b). Rares J; Yates J agreeing; Snaden J dissenting held that:
·subsection 501CA(1) depends on the existence of a legally effective decision under subsection 501(3A) as a precondition for the exercise of the power under section 501CA. The delegate and the Tribunal had to form a view as to whether the precondition in subsection 501CA(1) had been met, which was a jurisdictional fact. Once that jurisdictional fact exists, the power under subsection 501CA(4) is exercisable. Parliament intended that subsection 501CA(1) would operate upon a jurisdictional fact, being a legally effective subsection 501(3A) decision.[21]
·The primary judge erred in characterising the scheme of subsection 501(3A) and section 501CA as providing, in substance, merits review of a cancellation decision under subsection 501(3A). A section 501CA decision is based on different criteria and material to that on which the power to cancel the visa operates under subsection 501(3A). There is no merits review of the subsection 501(3A) decision available under the Act: rather, section 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of subsection 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the subsection 501(3A) decision to cancel the visa was of no legal effect because, in the words of subsection 501CA(1), it was not made under subsection 501(3A) then the delegate under subsection 501CA(4) and, later, the Tribunal under paragraph 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and subsection 501CA(1) could not be satisfied.[22]
·The primary judge erred in applying the principle in Brian Lawlor to a legally ineffective subsection 501(3A) decision that initiated a review of a section 501CA decision in the Tribunal under paragraph 500(1)(ba). There is no intelligible reason why subsection 501(3A) should be construed so as to allow it to operate as “a decision in fact” on which subsection 501CA(1) operates, if one or both of the objective facts that it prescribes does not exist at the time of its exercise.[23]
·The Act evinces a contrary intention, within the meaning of subsection 2(2) of the AI Act, to prevent subsection 33(1) of the AI Act applying to the power in subsection 501(3A) merely because of a new imprisonment of the visa holder. It follows that, first, the 2018 cancellation was legally ineffective and, therefore, could not cause section 501CA to apply and, secondly, the 2018 non-revocation was also legally ineffective because the Tribunal was not validly exercising a power to review it under paragraph 500(1)(ba).[24]
[21] At [58].
[22] At [59].
[23] At [66].
[24] At [78].
The jurisdictional issue in XJLR arose in circumstances where the 2018 cancellation decision under subsection 501(3A) was based on the delegate being satisfied that XJLR failed the same specific form of the character test prescribed in paragraph 501(3A)(a) as that applicable to the 2016 cancellation decision, although XJLR was serving a different sentence of imprisonment within the meaning of paragraph 501(3A)(b). The Full Federal Court’s decision applies the reasoning of the High Court in its decision in MIBP v Makasa,[25] which considered the cancellation power in subsection 501(2). XJLR confirms that a cancellation decision made under subsection 501(3A) is legally ineffective where it is based on the same failure to satisfy the character test that formed the basis of a previous cancellation decision that was subsequently revoked, even where the former visa holder has been imprisoned on a different occasion. It also confirms that a contrary intention arises in the Act to prevent subsection 33(1) of the AI Act from applying to subsection 501(3A).
[25] Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200.
In the Applicant’s circumstances, the 2015 Cancellation Decision was based on him failing to satisfy the character test by virtue of the 2013 convictions (paragraph 501(3A)(a)) and him serving a term of imprisonment within the meaning of paragraph 501(3A)(b), being the aggregate term of four years and seven months’ imprisonment. The 2019 Cancellation Decision was based on the Applicant failing to satisfy the character test by virtue of the 2013 convictions (s 501(3A)(a)) and the term of 15 months’ imprisonment imposed on him for the 2019 convictions of Possess housebreaking implements - T2, Possess prohibited drug (two counts) and Goods suspected stolen in/on premises (not m/v).
In the Applicant’s circumstances, the second exercise of the subsection 501(3A) cancellation power which gave rise to the subsection 501CA(1) decision (the 2019 Cancellation Decision) relied on the same underlying objective facts (the 2013 convictions) that were previously relied on for the exercise of the same power which gave rise to the earlier subsection 501CA(1) decision (the 2015 Cancellation Decision). Consistently with XJLR, the 2019 Cancellation Decision under subsection 501(3A) was legally ineffective as it was based on the delegate being satisfied that the Applicant failed the same specific form of the character test prescribed in paragraph 501(3A)(a) that formed the state of satisfaction reached by the delegate to make the 2015 Cancellation Decision. The delegate had no power to make the 2019 Cancellation Decision in that form under subsection 501(3A), because they relied on the same factual basis as the earlier 2015 Cancellation Decision under subsection 501(3A). As the delegate had no power to make the 2019 Cancellation Decision, it was legally ineffective and could not enliven the revocation power in subsection 501CA(4). Subsection 501CA(1) was not engaged as there was no legally effective decision, and accordingly the primary decision-maker who purportedly made the 2020 Non-revocation Decision did not have, nor would the Tribunal have, the power under subsection 501CA(4) to decide whether the legally ineffective cancellation decision should be revoked.
The Respondent contends that whereas the delegate’s 2019 Cancellation Decision was made in error, the error does not amount to a jurisdictional error rendering the decision invalid as it was not material: MZAPC v Minister for Immigration and Border Protection.[26] The delegate’s erroneous reliance on the 2013 convictions as a basis for reaching their state of satisfaction that the Applicant failed the character test was an impermissible exercise of the subsection 501(3A) power rendering the 2019 Cancellation Decision legally ineffective: XJLR. However, this legal error was not material for reason that the objective jurisdictional fact of a ‘substantial criminal record’ (paragraph 501(6)(a)) being a sentence to a term of imprisonment of 12 months or more (s 501(7)(c)) existed in fact at the date of the 2019 Cancellation Decision, being the 15 months’ imprisonment imposed on the Applicant for the 2019 convictions. By contrast, in XJLR at the date of the 2018 cancellation decision, the appellant had been convicted of new offences and sentenced to an aggregate term of nine months’ imprisonment. The 2018 cancellation decision was legally ineffective as it purported to rely on the same specific form of the character test being XJLR’s substantial criminal record arising from the convictions and sentence of 45 months’ imprisonment which led to the 2016 cancellation. Unlike in the Applicant’s circumstances, in XJLR there was no counterfactual or alternative basis for the satisfaction of the objective jurisdictional fact of a ‘substantial criminal record’ arising from a sentence of more than 12 months for subsequent offences, specifically the Applicant’s 15 months sentence for the 2019 offences. Where this alternative factual matrix exists, there is no discretion not to cancel the Applicant’s visa under subsection 501(3A) based on the subsequent offending giving rise to his failure to pass the character test.
[26] [2021] 390 ALR 590; Transcript, 62.
Accordingly, the Tribunal is satisfied that as the objective jurisdictional fact of a ‘substantial criminal record’ existed at the date of the 2019 Cancellation Decision it was legally effective and subsection 501CA(1) was engaged. It follows that the primary decision-maker who made the 2020 Non-revocation Decision had the power to do so under subsection 501CA(4), and this same power can be exercised by the Tribunal on review to revoke the 2019 Cancellation Decision.
It follows that the Tribunal is satisfied that it has jurisdiction to exercise the power in subsection 501CA(4) to determine whether the 2019 Cancellation Decision should be revoked.
2. Applicable Ministerial Direction
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[27]
[27] Direction [2]-[3].
The Applicant raised the issue of which Ministerial Direction should be applied by the Tribunal in considering whether to exercise its discretion to revoke the 2019 cancellation decision. He argued that the applicable Direction in his circumstances is Direction No. 79.
The Applicant contended that because the relevant decision was made at a time when Direction No. 79 was applicable in relation to revocation matters under s 501CA(4), the inference is that the Direction that is applicable at the time the decision is made is the Direction that relates to the question as to whether the decision should be revoked or not. He argued that the delay caused by the Minister should not vary the structure or regime of the considerations that the Tribunal has to take into account in determining whether the decision should be revoked.[28] The purpose of the power found in subsection 501CA(4) is to establish a ‘system of subsequent natural justice’ in relation to mandatory visa cancellation decisions. It would be ‘discordant, disharmonious and indeed unfair, to adopt [a] different basis for examining the question of the revocation of the original decision by reference to subsequent variations on a discretionary basis by the Minister … of the applicable direction at the time.’[29]
[28] Transcript, 39.
[29] Transcript, 39-40.
The Respondent disagreed with these contentions and argued that the applicable Ministerial Direction is Direction No. 90. Counsel pointed to the High Court decision in Shi v Migration Agents Registration Authority[30] in which the Court stated the well-established position that the Tribunal is to apply the law and the facts as they exist at the time of its decision. The cancellation decision is the point at which the revocation power becomes enlivened, and the Tribunal is empowered to make a decision about the revocation of the cancellation decision. Accordingly, the Tribunal must apply the Direction that is in effect at the date of its decision.
[30] (2008) ALR 390.
The Tribunal agrees with the Respondent, that it is obliged to apply the law as at the date of its decision, and accordingly the applicable Direction which guides the exercise of its discretion under subsection 501CA(4) is Ministerial Direction No. 90 (‘the Direction’).
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[31]
[31] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[32] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another: ‘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’.[33]
[32] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]; [28] (Colvin J).
[33] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[34] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4): [35]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...
[34] [2018] FCAFC 151.
[35] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years in Sudan and Egypt
The Applicant was born in Sudan in 1985 and is one of seven children. Due to the ongoing civil war, the Applicant’s family relocated within Sudan. The Applicant’s father was Islamic and his mother is Christian.[36] The Applicant’s father had two wives, and his first wife and five step-siblings were Muslim. His father tried to keep his second family’s Christianity a secret. However, his stepmother reported this to the authorities, following which people claiming to be government officials came to their house and took the Applicant’s father into custody. He was tortured for three days before he was returned home, and he subsequently died as a consequence of his injuries. The Applicant was about 14 years of age at the time and was devastated by the loss of his father.[37]
[36] Exhibit R1, 131.
[37] Exhibit R1, 309.
After the death of the Applicant's father, the authorities started looking for his eldest brother. The Applicant’s brother changed his name and fled to Egypt. The Applicant's mother was taken into custody by government officials and interrogated regarding the whereabouts of her eldest son, but she was released after three days. The officials then started looking for another brother of the Applicant, who also fled to Egypt.[38]
[38] Exhibit R1, 131.
The Applicant continued to reside with his mother and sisters in Sudan. He left school and got a part-time job washing cars so he could take care of his family.[39] The Applicant’s mother encouraged him to leave Sudan and join his brothers. In Egypt the Applicant worked as a kitchen hand and sent money back to his family in Sudan. The Applicant and his brothers arranged for his mother and his sisters to join them in Egypt.[40]
[39] Exhibit R1, 131.
[40] Exhibit R1, 132.
Grant of Humanitarian visa
After two years in Egypt, the Applicant and his family approached United Nations officers, who referred them to the Red Cross. The Red Cross referred the Applicant and his family to the Australian Embassy, and on 14 March 2003 the Department of Home Affairs granted the Applicant and his family Class XB Subclass 202 Global Humanitarian visas.[41]
[41] Exhibit R1, 131.
Relationships and employment in Australia
The Applicant arrived in Australia in August 2003 when he was 18 years old.[42] The Applicant had a relationship with his former partner, AD, from 2004 to 2012, and they had two sons.[43] The Applicant is currently in a de-facto relationship with SG, and prior to his arrest he was residing with her and his four step-children.[44]
[42] Exhibit R1, 230.
[43] Exhibit R1, 132.
[44] Exhibit R1, 133.
The Applicant’s evidence is that from 2006 until 2007 he worked as a process worker at Silverwater prison, in construction and as a factory hand in 2010,[45] as a delivery courier from 2012 to 2013, at a duck farm in 2015, and from 2016 to 2017 he worked on an unspecified farm.[46]
[45] Exhibit R1, 132.
[46] Exhibit R1, 127.
Mental and physical health
The Applicant was diagnosed with depression, anxiety and post-traumatic stress disorder (‘PTSD)’ while he was in custody in 2013. He first experienced symptoms of these conditions following the death of his father.[47] In mid-2020 the Applicant was diagnosed with diabetes and prescribed insulin.[48]
[47] Exhibit R1, 206.
[48] Exhibit R1, 286.
In 2012, the Applicant lost the vision in his right eye when he attempted to intervene in a dispute and one of his friend’s hit him with a bottle causing irreparable damage to his eye. The Applicant was traumatised by this, and he subsequently lost his job.[49]
[49] Exhibit R1, 131.
Drug and alcohol use
The Applicant used up to a quarter of an ounce of cannabis on a daily basis from the age of 18 to 22 years. He became increasingly paranoid while using this drug, and this prompted him to stop. The Applicant was introduced to methylamphetamine (ice) and formed a dependency on the drug from about the age of 30 years. At his peak, he was smoking up to half a gram per day.[50] He first consumed alcohol at the age of 19 years, shortly after he arrived in Australia. He consumed two or three bottles of beer per day, sometimes more when he was unemployed and had more time to drink. He has not consumed alcohol since he sustained his eye injury.[51]
[50] ExhibitR1, 308.
[51] Exhibit R1, 205.
Criminal history in Australia
The National Criminal History Check report dated 22 April 2020 records that the Applicant was convicted of 28 offences between 2005 and 2020.[52] His offences consist of driving, drug and fraud/dishonesty related offences and include violent offences. In her sentencing remarks dated 4 June 2019, Magistrate Seagrave noted that the Applicant’s criminal record was ‘not extensive’ but ‘contained some significant entries’.[53]
[52] Exhibit R1, 40-56.
[53] Exhibit R1, 58.
On 18 July 2005 in the Local Court of New South Wales at Burwood, the Applicant was convicted of Drive with middle range PCA, Fail to display "L" on car as required, Learner not accompanied by driver/police officer/tester, and he received fines and a two year licence disqualification. He lodged a severity appeal, and on 26 August 2005 his Drive with middle range PCA conviction was confirmed, however his licence disqualification was reduced to 12 months.[54]
[54] Exhibit R1, 56.
On 22 June 2007 in the District Court of New South Wales at Sydney, the Applicant was convicted of Maliciously wound in company, Affray and Common assault. He received a 12 month term of imprisonment which was suspended upon him entering a bond. No sentencing remarks are before the Tribunal. However, the circumstances of the offending were reported in the Daily Telegraph, which stated that the Applicant and his co-accused admitted to ‘attacking fellow refugees with a bottle and a hammer during a late-night home invasion’ in Tamworth.[55] It was reported that there was friction between the two groups because the ‘attackers had been dismissed from their positions at the Peel Valley Abattoir’. One of the victims was ‘struck in the head with a broken bottle and a hammer during the attack while another received stomach wounds’.[56]
[55] Exhibit R1, 215.
[56] Exhibit R1, 221.
On 8 March 2013 in the District Court of New South Wales at Sydney, the Applicant was convicted of Take and drive conveyance w/o consent of owner, Recklessly cause grievous bodily harm, Fail to stop and assist after vehicle impact causing gbh and Destroy or damage property >$2000 & <=$5000. He received a four year and seven-month term of imprisonment, with a non-parole period of two years and six months.[57]
[57] Exhibit R1, 55.
The circumstances of the above offending were that the Applicant had been 'drinking heavily' with a friend, BG, and other people at her unit. An argument occurred outside the unit between the Applicant and a young man, causing the man to flee.[58] The Applicant proceeded to hit the man's car with a metal pole and then drove it into some trees. BG contacted the police and the Applicant decided to leave. He got into his car and drove it backwards – hitting, running over, and seriously injuring BG. The Applicant then ‘sped off’. BG’s pelvis was broken in two parts, and she also sustained a spine and finger fracture, requiring surgery and extensive occupational therapy and physiotherapy.[59] Judge Cogswell SC ‘was satisfied beyond reasonable doubt [the Applicant] realised the possibility that reversing out in the car at speed could cause grievous bodily harm to [BG]. He did just that.’[60] The Applicant stated that he was not aware that his car had struck BG until the next day, and that he was so concerned by this that he arranged to go into a rehabilitation course.[61]
[58] Exhibit R1, 64.
[59] Exhibit R1, 65.
[60] Exhibit R1, 65.
[61] Exhibit R1, 133.
On 6 June 2018, the Applicant was convicted of Possess prohibited drug and Possession of equipment for administering prohibited drugs.[62]
[62] Exhibit R1, 55.
On 5 February 2019 the Applicant was convicted in the Local Court of New South Wales at Parramatta of Possess prohibited drug, Possession of equipment for administering prohibited drugs, Custody of knife in public place and three counts of Dishonestly obtain property by deception. He received a fine and a three-month concurrent term of imprisonment.[63]
[63] Exhibit R1, 55.
On 4 June 2019 the Applicant was convicted in the Local Court of New South Wales at Fairfield of three counts of Goods in personal custody suspected being stolen (not m/v), two counts of Custody of knife in public place, Possess forged prescription, Possess identity info to commit etc indictable offence, one count of Possess prohibited drug and one count Possess housebreaking implements.[64] He received a 15 month term of imprisonment with an 11 month non-parole period. This sentence was confirmed on appeal to the District Court.[65]
[64] Exhibit R1, 52-54.
[65] Exhibit R1, 47-51.
These offences were committed by the Applicant on three separate dates. On 15 April 2019 police were conducting general patrols of a unit block in Merrylands known to them for drug activity and anti-social behaviour.[66] The Applicant was observed to be sitting in the driver's seat of a vehicle outside the units playing loud music. Police smelt cannabis coming from the vehicle and conducted a search. The police located a Stanley knife and a further knife, a glass bong, stolen number plates, eight dresses (with tags on) and a large quantity of identification documents in other people's names including driver’s licences, Medicare and bank cards. At the time of this offence the Applicant was on bail to be of good behaviour and not enter the suburb of Merrylands.[67]
[66] Exhibit R1, 76.
[67] Exhibit R1, 55-56.
On 19 September 2018 police were patrolling a residential area suspected of drug distribution when they noticed a man walking out of a residence who then approached the Applicant’s vehicle. The police, having suspected a drug transaction had taken place, searched the Applicant and his vehicle. The police found a Medicare card and a prescription in another person's name, as well as an axe and chisel in the vehicle. The police conducted checks and determined that the script was forged, and the Medicare card was fake. The Applicant denied owning the axe and chisel and stated the Medicare card and prescription belonged to his girlfriend.[68]
[68] Exhibit R1, 81.
On 27 September 2018 police intercepted the Applicant’s vehicle in Merrylands having recognised it from previous interactions.[69] Police conducted a vehicle and bag search and found cannabis, heroin, stolen property and housebreaking implements.[70] Magistrate Seagrave noted that the Applicant’s recent offending was ‘significant’ and ‘represented planned criminal conduct’.[71]
[69] Exhibit R1, 84.
[70] Exhibit R1, 85.
[71] Exhibit R1, 60.
On 29 January 2020 the Applicant was convicted in the Local Court of New South Wales at Bankstown of Drive conveyance taken w/o consent of owner and received a nine months term of imprisonment. He lodged an appeal, and on the 7 April 2020 the term of imprisonment was reduced to seven months.[72] No sentencing remarks are before the Tribunal.
[72] Exhibit R1, 46-47.
Remorse and responsibility for offending
In his statement dated 11 October 2019, the Applicant stated:
I had some time now to reflect on my recent offending. I am very sorry about my actions. I wish I could change what occurred, but I understand and accept all responsibility for my actions that placed me before the court.[73]
[73] Exhibit R1, 134.
Risk of reoffending
In her sentencing remarks dated 4 June 2019, Magistrate Seagrave concluded that the Applicant was at a medium risk of reoffending. Her Honour found:[74]
‘ the defendant had been unemployed, it would seem, following his release from custody in 2017; his lifestyle was aimless; he had plainly involved himself with the criminal element. His prospects of rehabilitation were by no means certain. He was at risk of reoffending and I thought the risk was, at the present time, medium, at the very least.
…
the defendant needed to address his drug and alcohol problem, related mental health issues, and change his lifestyle if he wanted to avoid ongoing contact with the criminal justice system. Even if the defendant’s motivation behind his recent offending that I have outlined was drug related, it provided him with no good excuse or explanation to commit these offences. He would have been well aware, at the time he was in possession of identity information and in custody of the items the subject of the goods in custody offences, and in possession of the housebreaking implements, that these possession and custody offences can have the potential for serious consequences for innocent members of the community.
[74] Exhibit R1, 59-60.
Rehabilitation
The Applicant has completed the following courses and programs:
·Best Bet at the Cessnock Correction Centre in September 2012
·Enough is Enough at the Cessnock Correction Centre in June 2013
·Getting Smart at the Cessnock Correction Centre in November 2013
·Gas Metal Arc Wielding at TAFE Cessnock Campus in December 2013
·CALMMAA at Outer Metropolitan Multi-Purpose Correctional Centre in August 2014
·Cleaning course at TAFE Nirimba College, Quakers Hill in December 2014
·Real Understanding of Self Help (RUSH) in Health Mind, Healthy Body in June 2019
·Getting Out, Staying Out in June 2019
Children
The Applicant has two biological sons: SEH (born 2004, aged 18 years) and YEH1 (born 2010, aged 12 years) from his former relationship with AD. The Applicant states that he has a ‘close relationship’ with his sons. They reside with their mother, AD, and there are no parenting arrangements in place. AD threatens to report him when he tries to contact the boys. The Applicant last saw his sons at the Merrylands train station in March 2019 and they were ‘very happy’ to see him. The Applicant claims that the absence of contact with him has affected the children. The Applicant wishes to establish a parenting arrangement to reconcile with his sons.[75]
[75] Exhibit R1, 133.
The Applicant has three minor stepchildren: DYC (born 2003, aged 19 years), AMA (born 2007, aged 15) and JAA (born 2010, aged 12 years) with his current partner SG. The Applicant states he ‘shares a strong bond’ with and ‘loves’ his step-children. He states they look upon him as their ‘stepfather’ and he looks after them and takes them out. The three boys provided letters of support for the Applicant.[76]
[76] Exhibit R1, 169 (JAA); Exhibit R1, 165 (DYC); Exhibit R1, 160 (AMA).
Applicant’s partner, SG
The Applicant’s evidence is that he has been in a relationship with SG since 2015 and has been living with her. He states that he loves SG and speaks with her five times a day and she visits him ‘every weekend’.[77]
[77] Exhibit R1, 133.
SG provided statutory declarations and statements dated 4 October 2019,[78] 4 August 2020[79] and 4 April 2022,[80] and gave oral evidence at the hearing. In her statutory declaration dated 4 August 2020, SG stated that the Applicant has been in her children’s lives since 2015. Her two youngest children still spend time with their birth father, but they see the Applicant as ‘a father figure’.[81]
[78] Exhibit R1, 154-156.
[79] Exhibit R1, 283-286.
[80] Exhibit R1, 904.
[81] Exhibit R1, 284.
In her 4 October 2019 statutory declaration, SG described the effect on her and her children of the Applicant’s absence from their lives:[82]
My kids have been affected by my partner not being around. They are all so attached to him and now they are all heart broken because he is no longer with us. In saying my kids really miss him so much and want him to come back home. They miss spending time with him, playing games, telling them stories, going on outings and many more things. If you take him away for us, it would be like taking our life away from us.
[82] Exhibit R1, 156.
In her oral evidence, SG told the Tribunal that she had made inquiries about potential employment for the Applicant if he returns to the community. Her two oldest children work full-time, and their employer is always looking for workers. They are willing to talk to their manager and get him work there.[83]
[83] Transcript, 26.
Family members in Australia
The Applicant’s mother RPA, four brothers MPA, YEH2, SEH and BYEH, two sisters ZEH and GEH, and uncle MAT and niece VAR reside in Australia. He claims his family ties are strong and that none of his relatives in Australia have ‘turned their back on him’ despite his offending.[84] All of them supported and stood by him through his custodial sentence and regularly visited him in prison. His family members provided supporting statements for the Applicant.[85]
[84] Exhibit R1, 142.
[85] Exhibit R1, 171-172 (RPA); Exhibit R1, 177-178 (MPA); Exhibit R1, 181-182 (SEH); Exhibit R1, 185-185 (ZEH); Exhibit R1, 191-192 (GEH); Exhibit R1, 196 (VAR).
The Applicant’s evidence is that he also has an adult stepson, KM (born in 2001, aged 22 years), from his former relationship with AD.[86] There is no evidence that he remains in contact with KM.
[86] Exhibit R1, 121.
Psychological assessments
Mr Tim Watson-Munro, consultant psychologist, provided three reports in relation to the Applicant dated 31 August 2020, 18 March 2021 and 14 April 2022, and gave oral evidence at the hearing.
In his report dated 14 April 2022, Mr Watson-Munro noted that the Applicant has been substance free ‘for a considerable period of time.’[87] He reported that the Applicant has ‘matured’ and ‘has positive aspirations for the future.’[88] In his opinion there are a number of protective factors in place which include the support of his partner and family, a willingness for treatment in the community, his desire for employment and his Christian faith.[89] He assessed the risk of the Applicant re-offending in the future as ‘low’.[90]
[87] Exhibit R1, 933.
[88] Ibid.
[89] Exhibit R1, 933-934.
[90] Exhibit R1, 934.
At the hearing, Mr Watson-Munro was asked whether, based on his history, when faced with pressures the Applicant is likely to re-offend. He replied:
‘Well his history clearly demonstrates that but he has had time out and I think it is significant that he is not using drugs anymore. He’s matured and clearly this process has demonstrated to him the gravity of his past behaviour and what in all likelihood would happen to him if he reoffended in any way. In other words, he would be deported. So they are strong motivating factors, coupled with the fact that he is not using drugs; his cognition has improved. So his judgement has improved beyond maturation; he is not chemically imbalanced in the way that he was before.’[91]
[91] Transcript, 23-24.
Plans for the future
The Applicant told the Tribunal that if he is released back into the community, he wants to work so he can pay back the debt he owes to his mother for his legal fees and to look after his partner and children.[92]
[92] Transcript, 31, 38.
Impediments on return
In his statement dated 11 October 2019, the Applicant wrote:
I have no one back home in my country. Also, if I go back, I may get captured by the same people that took my father and tortured him, which were the government rebels. I could face death, torture and hunger since I have also converted to Christianity and I believe that I would face a death penalty because of the Islamic Sharia Law, since many know that Sudan is an Islamic populated country. When I was young I grew up without a father and I don't want the same to happen to my kids. I don't see Sudan as my home country anymore, I see Australia as my home country, and I feel that I belong here because all my family reside here in Australia.[93]
CONSIDERATION AND REASONS
[93] Exhibit R1, 133.
1) Does the Applicant pass the character test?

In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 22 April 2020 recording his criminal convictions and sentences.
Based on the evidence before it, the Tribunal finds that the Applicant has a “substantial criminal record”,[94] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[95] On 4 June 2019 the Applicant was convicted of Possess housebreaking implements – T2, two counts of Possess prohibited drug and Goods suspected stolen in/on premises (not m/v) and sentenced to 15 months’ imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of paragraph 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 13 August 2019 the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the state of New South Wales.
[94] Migration Act s 501(6)(a).
[95] Migration Act ss 501(7)(d), 501(7A).
It follows that the Applicant does not pass the character test, and the discretion to revoke the Mandatory Visa Cancellation Decision is enlivened.
2) Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
The issue for determination by the Tribunal is whether, for the purpose of s 501CA(4)(b)(ii) of the Act, there is ‘another reason’ why the original mandatory cancellation decision should be revoked.[96] The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.[97]
[96] Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [55].
[97] Ibid.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:[98]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[98] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
In considering whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal has had regard to the following Considerations as required by the Direction.
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   …
(ii) ...
(iii) …
(iv) …
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   …
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant's criminal history spans over 15 years, with his first offence recorded in 2005 and his most recent offence recorded in 2020. Despite being sentenced to a four year and seven months term of imprisonment in 2013, and his obligation to the court ending on 7 October 2017, the Applicant was convicted of two offences less than a year later in June 2018, and then was convicted of four offences in February 2019 and ten offences in June 2019.
Having regard to paragraph 8.1.1(1)(a) of the Direction, the Applicant has committed a series of violent offences for which he has received custodial sentences. These include the common assault, affray and maliciously wound in company offences in 2007, and the grievous bodily harm offences in 2013. The 2013 offences must be viewed very seriously because they are crimes of violence directed towards a woman. The Applicant has been convicted of numerous offences involving the possession of weapons in public places, demonstrating a preparedness to harm others. The Applicant’s non-violent offences are also serious, particularly those for which he was convicted on 4 June 2019. As Magistrate Seagrave observed, the possession of housebreaking implements and stolen or unlawfully obtained property, indicated ‘sinister purposes’ on the Applicant’s part.[99]
[99] Exhibit R1, 59.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. In addition to the four year and seven months term of imprisonment he received in 2013, the Applicant was sentenced to two terms of imprisonment in 2019, comprising of a three month and 15 months sentences respectively, and a seven months term of imprisonment in 2020. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[100]
[100] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant was not deterred from further offending despite being convicted of a number of offences. In 2007 he was convicted of three offences, and despite being given a suspended sentence upon him entering a bond, he re-offended in 2013 resulting in convictions for four offences and being sentenced to a four year and seven months term of imprisonment. This lengthy term of imprisonment also did not deter the Applicant who re-offended in June 2018 following his release from gaol and he was convicted of four offences in February 2019 and ten offences in June 2019. The cumulative and repeated nature of the Applicant’s offending is a further indicator of its seriousness.
Relevant to paragraph 8.1.1(1)(g) of the Direction, the Applicant continued to reoffend after being warned by the Department after the 2015 Cancellation Decision was revoked, and he was warned of the consequences of his actions on 31 August 2016. This indicates the Applicant’s disregard for the law and the seriousness of the consequences of his actions.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against revoking the 2019 Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that such offending may result in significant physical or psychological harm to persons, as well as the loss of property. In particular, serious physical or psychological harm may be caused to vulnerable members of the community, including women, should the Applicant reoffend. In addition to the potential harm to individuals, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. For these reasons, the Tribunal finds that the harm to individuals and the community should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the information and evidence before it on the risk of the Applicant re-offending and finds for the reasons that follow that the Applicant is a low risk of re-offending.
The Tribunal notes that in her sentencing remarks in June 2019, Magistrate Seagrave found that the Applicant’s ‘prospects of rehabilitation were by no means certain’ and at that time his risk of reoffending was ‘medium, at the very least’.[101] Her Honour emphasised that the Applicant ‘needed to address his drug and alcohol problem, related mental health issues, and change his lifestyle if he wanted to avoid ongoing contact with the criminal justice system.’[102]
[101] Exhibit R1, 60.
[102] Ibid.
The Applicant has sought to address the matters which have contributed to his past offending behaviour, including completing various offender behaviour change courses and vocational courses, as detailed in [76] above, to ensure that he does not re-offend and to assist with obtaining employment following his release into the Australian community. However, the Tribunal notes that majority of these programs were completed by the Applicant during 2012-2014, and they did not prevent him from committing offences in 2018 and 2019.
The Applicant has expressed remorse for his offending, which indicates that he accepts responsibility for his actions and reduces the likelihood of him reoffending. He recognises that it is his responsibility to ensure he stays away from negative peer groups and abstain from drug abuse. The Applicant claims to have detoxified while he was in gaol. He was placed on a Buprenorphine program by way of depot injections on a monthly basis.[103] He has abstained from alcohol for almost a decade. In June 2019 he expressed his intention to remain abstinent from drugs,[104] however in July 2019 he was found in possession of a drug, and in 12 December 2019 he failed a prescribed drug test.[105]
[103] Exhibit R1, 312.
[104] Exhibit R1, 204.
[105] Exhibit R1, 331, 332-333, 345, 346.
In his most recent report, Mr Watson-Munro reported the Applicant has been substance free ‘for a considerable period of time.’ He told the Tribunal that given the length of time that the Applicant has been drug-free, ‘he can be more or less considered to be in full remission according to international guidelines’, the threshold for which is generally considered a period of two years.[106] In addition, he noted there are a number of protective factors in place which reduced the likelihood of the Applicant re-offending, including the support of his partner and family, a willingness for treatment in the community, his desire for employment and his Christian faith.[107] He assessed the risk of the Applicant re-offending in the future as ‘low’.[108]
[106] Transcript, 20.
[107] Exhibit R1, 933-934.
[108] Exhibit R1, 934.
The Applicant has expressed his commitment to obtain assistance for his PTSD and substance abuse disorder and to address the underlying causes of his offending. He told the Tribunal that if he were to be released into the community, and Mr Tim Watson-Munro or a person referred by him was available to assist him with ongoing psychotherapy, he would commit to undertaking this treatment.[109]
[109] Transcript, 37.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, the Tribunal finds that Primary Consideration 1 weighs against the revocation of the 2019 Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is not relevant in the Applicant’s circumstances as he has not been convicted of offences that involve family violence.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h)    …
The relevant minor children are one of his biological sons with his former partner, YEH1 (aged 12 years), and two of SG’s children, AAM (aged 14 years) and JAA (aged 12 years). The Applicant’s other biological son, SEH (aged 18 years), and SG’s other child, DYC (19 years), have both recently reached majority while the Applicant has been in detention. As they are no longer minors, they will be considered as part of the Applicant’s links to the Australian community below.
YEH1
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has extremely limited contact with his biological children. There is no parenting arrangement in place in respect of the children, and he is not likely to live with them if he is released into the community. The Applicant has been absent from YEH1’s life for a long and continuous period of time, and he has had limited meaningful contact with him from a young age.
Relevant to the factors in paragraph 8.3(4)(b), the Applicant’s evidence is that he intends to take steps to gain custody of his children.[110] However, the evidence is that the children’s mother, AD, does not wish for her children to be in contact with the Applicant, and therefore it would be unlikely that he would be granted custody or access to the children without a court order. Accordingly, the prospects of the Applicant seeing YEH1 in the immediate future are remote.
[110] Exhibit R1, 133.
In relation to the factors in paragraphs 8.3(4)(e) and 8.3(4)(f) of the Direction, the evidence is that the Applicant’s children live with their mother who fulfils the primary parental role. There is no evidence before the Tribunal of YEH1’s views about the Applicant or whether he wishes to re-establish contact with him.

The High Court in Plaintiff M1/2021, by majority, found that:
a)the delegate was required to read, identify, understand, and evaluate the applicant’s representations that raised a potential breach of Australia’s international non-refoulement obligations;[126]
b)Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration;[127] and
c)to the extent Australia's international non-refoulement obligations are given effect in the Act, one available outcome for the delegate was to defer assessment of whether the applicant was owed the non-refoulement obligations on the basis that it was open to the applicant to apply for a protection visa.[128]
[126] At [24] per Kiefel CJ, Keane, Gordon and Steward JJ.
[127] At [20], [29].
[128] At [30].
The majority held that the delegate’s reasons recorded that they had read, identified, understood, and evaluated the applicant’s representations. Their Honours held that, having proceeded on the basis that non-refoulement obligations could be assessed in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications, it was reasonable and rational for the delegate to not give weight to potential non-refoulement obligations as ‘another reason’ for revoking the cancellation decision.
The majority found:
For the reasons explained above, the delegate was not required to determine whether the plaintiff was owed non‑refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
… The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non‑refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non‑refoulement obligations as "another reason" for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.[129]
[129] At [37]-[38].
In Plaintiff M1/2021, the majority made clear that even where a decision-maker may permissibly defer consideration of non-refoulement obligations, ‘it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of their being “another reason” why the Cancellation Decision should be revoked’.[130] In the present case, the Applicant relies upon the facts underpinning his non-refoulement claims as providing ‘another reason’ why the 2019 Cancellation Decision should be revoked.
[130] at [39] per Kiefel CJ, Keane, Gordon and Steward JJ.
Both parties made submissions in relation to whether the Applicant is owed non-refoulement obligations and, if so, the relevance of such a finding for the exercise of the discretion to revoke the 2019 Cancellation Decision. The Respondent submitted that the appropriate course is for the Tribunal to defer assessment of whether the Applicant’s claims engage non-refoulement obligations under the Act. He argued that this is the most appropriate course given the complexity of the Applicant’s claims.[131]
[131] RSFIC [55].
Whilst it is not obliged to do so, the Tribunal has considered the Applicant’s claims that he is owed non-refoulement obligations which may provide ‘another reason’ why the 2019 Cancellation Decision should be revoked.
Country of reference
Based on the Applicant’s claims, it is unclear whether Sudan or South Sudan would be considered the Applicant’s country of reference.[132] The Applicant claims to face fear of persecution or serious harm in both Sudan and South Sudan.[133] For the reasons that follow, the Tribunal finds that South Sudan is the relevant country of reference in relation to the Applicant.
[132] RSFIC [59]; ASFIC [6].
[133] Transcript, 85-87.
The Nationality Act 2011 (South Sudan) is the relevant law for South Sudanese citizenship. Section 8 provides:[134]
8. Eligibility Requirements
(1) 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.
[134] Nationality Act 2011 (South Sudan) s 8.
Subsection 10(2) of the Sudanese Nationality Act 1994 (Sudan) provides:
(2) Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
The Respondent contends that by operation of Sudanese and South Sudanese citizenship laws, the Applicant is currently a citizen of South Sudan and had ceased to be a citizen of Sudan in 2011. This is because the Applicant was born before the Nationality Act 2011 (South Sudan) came into force, and his parents were born in South Sudan. Therefore, the Respondent contends that the country of reference is South Sudan.
The evidence before the Tribunal is that the Applicant’s mother was born in a city which is now in South Sudan.[135] Based on this evidence, the Tribunal is satisfied that by operation of Article 8(1)(a) of the Nationality Act 2011, the Applicant is able to claim nationality of South Sudan, as his mother was born in a region which is part of South Sudan. It further finds that by operation of subsection 10(2) of the Sudanese Nationality Act 1994 that the Applicant ceased to be a citizen of Sudan in 2011. Accordingly, the country of reference for the consideration of non-refoulement obligations owed by Australia to the Applicant is South Sudan.
[135] Exhibit R1, 176.
Non-refoulement claims in relation to South Sudan
The most recent DFAT Country Information Report for South Sudan (‘DFAT report’) was last revised on 5 October 2016.[136] It relevantly states the following in relation to ethnicity and religious affiliation:
3.1 … Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual’s risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan
…
3.5 The Dinka are a large group of several closely related sub-ethnic groups. Dinka are a branch of Nilotic people, who are indigenous to the Nile Valley and speak Nilotic languages. Nilotics are the majority of the population in South Sudan and are also present in northern Uganda and western Kenya. Dinka are the largest ethnic group in South Sudan accounting for an estimated 35.8 per cent of the population, and have traditionally dominated South Sudanese society. Dinka are predominantly pastoralists located in the central and northern areas of South Sudan.
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.
…
3.15 Christianity is the dominant religion in South Sudan and there are a number of different Christian churches (see 2.10). Under the former colonial administration, different Christian churches were allowed to establish themselves in different areas of South Sudan. The prominence of particular Christian Churches in particular areas, coupled with societal discrimination as result of an individual’s ethnicity, has led to some individuals being unwelcome at Christian churches associated with opposing ethnic groups. DFAT assesses that this is more likely due to someone’s ethnicity, rather than their religious affiliation.
…
3.18 Overall, based on in-depth discussions with in-country contacts, DFAT assesses that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone. DFAT acknowledges that there are some limited examples of Muslims experiencing official or societal discrimination ...
[136] DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
With respect to arbitrary deprivation of life, the DFAT Report assesses that, “While it is difficult to obtain accurate data to quantify extra-judicial killings in South Sudan, DFAT assesses that such killings continue to occur, particularly in conflict-affected areas” and “that local militias have participated in extra-judicial killings”.[137]
[137] at [4.1].
The DFAT Report also refers to Human Rights Watch having “documented a number of examples of enforced or involuntary disappearances in South Sudan” and that, “DFAT assesses as credible reports that the Government continues to abduct individuals perceived to threaten its authority”.[138]
[138] at [4.2].
With respect to torture, the DFAT Report states:[139]
DFAT assesses that individuals who are perceived to threaten the authority of or be associated with the Sudan People’s Liberation Movement or SPLM-IO are at risk of torture. DFAT is unable to prescribe a particular risk to an individual’s potential to experience torture or comment on the general incidence of torture, but agrees with the views of in-country contacts that it remains widespread.
[139] at [4.8].
The DFAT Report also suggests that arbitrary arrest and detention is a possibility:[140]
DFAT assesses as credible reports that individuals have been arbitrarily arrested and detained. The December 2015 State of Human Rights in the Protracted Conflict in South Sudan report by UN Mission in South Sudan and the UN Office of the High Commissioner for Human Rights confirmed that both the Sudan People’s Liberation Army (SPLA) and NSS [National Security Service] continue to arbitrarily arrest and detain individuals, often for long periods of time, and without judicial oversight. This includes the NSS’s August 2014 arrest of an UN Mission in South Sudan radio staff member and a UN security guard in Western Bahr el Ghazal after they were accused of supporting the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO). Both remained in NSS detention as of December 2015 (DFAT is unaware whether they have now been released). Following an April 2015 mission to South Sudan, Human Rights Watch documented numerous examples of civilians being arbitrarily arrested and detained, including the detention of 16 individuals by the SPLA and 20 individuals by the NSS. Detainees reported being held without charge for up to 10 months, being kept in poor conditions and, in some cases, brutally beaten and tortured. DFAT understands that the cases documented by Human Rights Watch, the UN Mission in South Sudan and the UN Office for the High Commissioner for Human Rights likely represent a small proportion of the total number of individuals who have been arbitrarily arrested and detained in South Sudan. DFAT further assesses as credible reports that the SPLM-IO and associated forces have been responsible for arbitrarily arresting and detaining individuals who are or are perceived to be associated with the Sudan People’s Liberation Movement.
[140] at [4.10].
With respect to state protection, the DFAT Report provides:[141]
DFAT also understands that the Government’s ability to maintain effective control and provide adequate state protection is weak. The Government’s control over the Sudan People’s Liberation Army, National Police Service and National Security Service is limited with these groups often acting with impunity and without adequate oversight.
[141] at [5.2].
With respect to the ability to internally relocate the DFAT Report provides:[142]
Given the majority of displaced people within South Sudan has been caused by the continuing conflict that started in December 2013, it is difficult to objectively comment on the ability of individuals to safely relocate internally. Anecdotally, DFAT understands that an individual would likely face difficulty in internally relocating given the significant ethnic dimensions of the current conflict, the omnipresence of illegal armed checkpoints on the roads (where roads exist) and the impact of the dry and wet seasons. Should an individual be able to internally relocate, it would likely be to an area in which their ethnic or subethnic group predominates in order to ensure their safety.
[142] at [5.15].
The following excerpt from the DFAT Report highlights that the conditions for returnees differ, depending on the individual’s ethnic linkages:[143]
Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. In-country contacts suggest that an ordinary Nuer or Shilluk who had not threatened the authority of the Government, such as by being perceived to support of the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO), would potentially be able to return to Juba without facing discrimination or violence. However, other in-country contacts suggest it would be difficult to guarantee the safety of any Nuer or Shilluk individuals in Juba given the current situation. The continued presence of substantial Protection of Civilian camps in Juba demonstrate the real risk that still exists within South Sudan, particularly for individuals who are or are perceived to be associated with the SPLM-IO (or the linked Nuer and Shilluk ethnic groups).
[143] at [5.20].
DFAT travel advice currently advises “Do not travel to South Sudan, including Juba, due to instability and ongoing conflict”. It refers to “reports of violent threats against UN personnel on social media and an increase in anti-foreigner sentiment” due to COVID-19 and warns:
Fighting and instability continues across the country. The situation is volatile and can worsen without warning. Border areas are especially dangerous. If you're in South Sudan, leave as soon as possible.
…
Kidnapping, murder, shootings, home invasions, armed robbery, carjacking and sexual assault are common throughout South Sudan, including in Juba. Get professional security advice. Petty crime, such as theft and fraudulent currency exchange, is common. Safeguard your belongings.
Is the Applicant owed non-refoulement obligations?
In accordance with paragraph 9.1 of the Direction, the Tribunal has considered whether the Applicant’s circumstances engage Australia’s international non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (‘Refugee Convention),[144] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’),[145] and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘ICCPR’).[146]
[144] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
[145] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[146] International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976).
a)Article 33(1) Refugee Convention
The Tribunal has considered whether the Applicant’s life or freedom would be threatened on account of his Christianity, or for reason of his ethnicity as a Dinka, on return to South Sudan in accordance with Article 33(1) of the Refugee Convention.
The DFAT report referred to in paragraphs [154]-[161] above indicates that at the date of the report, Dinkas living in conflict-affected areas faced a high risk of societal discrimination and violence, given the significant ethnic dimensions of the conflict, as well as their geographic proximity to the conflict. In Juba, Dinkas faced a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government had almost unencumbered control over the area. The Tribunal notes that the Applicant’s family has previously resided in a city which is now in South Sudan. Based on the evidence before it, the Tribunal finds that the Applicant may be at risk of discrimination and violence based on his Dinka ethnicity if he were to return to South Sudan, specifically to where his family previously resided. An assessment of whether the Applicant’s life or freedom would be threatened on account of his ethnicity requires an analysis of more up-to-date country information, which was not provided to the Tribunal.
In relation to the Applicant’s claim to fear harm due to his Christianity, the DFAT report states that, as at the date of the report, Christianity was the dominant religion in South Sudan, and the assessment at the time was that individuals were unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone.[147] The Tribunal notes that the religious-based violence to which the Applicant’s father was subjected occurred in Sudan and preceded the creation of the separate country of South Sudan in 2011. Based on the evidence before it, the Tribunal finds that it is unlikely that the Applicant’s life or freedom would be threatened on account of his religion or that he would face religious discrimination or violence if he were returned to South Sudan. A more accurate assessment of whether the Applicant’s life or freedom would be threatened on account of his ethnicity upon return to South Sudan requires an analysis of more up-to-date country information, which was not provided to the Tribunal.
[147] Exhibit R1, 389-390.
b) Article 3 CAT and c) Articles 6 and 7 ICCPR
The country information before the Tribunal above indicates that currently the peace process in South Sudan remains fragile after seven years of war. Inter-ethnic conflicts continue in many parts of the country. However, based on the country information before it, specifically the DFAT report, the Tribunal cannot be satisfied that there are substantial grounds for believing that the Applicant would be in danger of being subjected to torture: CAT, Article 3, or that there is a real risk of irreparable harm to the Applicant such as him being arbitrarily deprived of his life or being subjected to torture or other cruel, inhuman or degrading treatment or punishment if he were returned to South Sudan: ICCPR, Articles 6 and 7.
On the basis of the evidence before it and for the reasons stated above, the Tribunal is unable to make a finding as to whether the Applicant engages Australia’s international non-refoulement obligations, and accordingly it gives this other consideration neutral weight.
Extent of impediments if removed from Australia
The Direction states at paragraph 9.2:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
a)    The non-citizen’s age and health;
b)    Whether there are substantial language or cultural barriers; and
c)     Any social, medical and/or economic support available to them in that country.

Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is aged 37 and he has been diagnosed with PTSD and substance use disorder, he has lost vision in his right eye, and suffers from diabetes. He has no family members in South Sudan. Sources indicate that South Sudan has one of the largest mental health gaps in the world, with an estimated 99 per cent of individuals who require treatment being unable to receive it.[148] A January 2019 Al Jazeera article notes that there are a limited number of mental health professionals in South Sudan, namely three practicing psychiatrists and 29 psychologists, all of whom are located in Juba.[149] The Juba Teaching Hospital is the only public medical facility providing psychiatric care and has only 12 beds.[150] Moreover, individuals with mental illness may be taken to and detained at Juba's Central Prison if, for example, there are no available beds at the hospital, they pose a danger to themselves or they are directly taken to prison by family members who are unable to care for them.[151] Accordingly, if the Applicant’s mental health were to worsen upon return to South Sudan, it is extremely unlikely he would be able to access appropriate mental health treatment and he may be in danger of being detained in prison. Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face significant language and cultural barriers on his return to South Sudan. He has no familiarity with the country, having left there as a young boy. The Applicant’s lack of language skills together with his limited knowledge of his tribal or cultural heritage, will set him apart from the community he will join on return to South Sudan. There is a risk that without familial assistance he will not be accepted or fully assimilated into the Dinka or wider South Sudanese community, and he will not be afforded any community protection.
[148] Joseph Lou K. Mogga, "The mental health treatment gap in South Sudan," South Sudan Medical Journal, (February 2019) available at: 2019/the-mental-health-treatment-gap-in-south-sudan.html.
[149] Ibid.
[150] Amnesty International, "Our Hearts Have Gone Dark" The Mental Health Impact of South Sudan's Conflict (2016) available at: mental health report.pdf, p 37.
[151] Ibid; Amnesty International "Our Hearts Have Gone Dark" The Mental Health Impact of South Sudan's Conflict," (2016) available at: mental health report.pdf p 38.
As a citizen of South Sudan, the Applicant would have the same access to any social, medical and economic support as other citizens. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. In June 2021 the Red Cross reported that only about 40% of South Sudan’s already-rudimentary healthcare system remains operational and health treatment is severely under-resourced. The country does not have a formalised welfare system. Social structures are the primary tool for the provision of safety nets for those in need with relatives providing assistance.[152] Without access to health care, welfare support and the support of family members, the Applicant will be in a very precarious situation and potentially will become homeless and destitute. In addition to the hardships the Applicant will face in accessing appropriate health care and support services, the Applicant’s separation from his partner, mother, children and siblings who will remain in Australia will cause him considerable emotional hardship.
[152] Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020
Having regard to paragraph 9.2(1)(c) of the Direction, the evidence before the Tribunal is that the Applicant has no relatives or other support in South Sudan, and he has not lived there since his family moved to the northern part of Sudan when he was young.[153] He would therefore likely be without a place to live, have no work, and have no family and community support. It is likely that the Applicant would face extreme difficulties given the social and economic situation in South Sudan.
[153] Exhibit R1, 131.
The country information indicates that there are several reports of a deteriorating humanitarian situation with flooding, extreme poverty and the COVID-19 pandemic.[154] The World Food Program reports that in early 2022 ‘[f]ood insecurity in South Sudan has reached the most extreme levels since independence in 2011’ and ‘8.3 million people - 75 percent of the population are facing severe food insecurity.’[155]
[154] United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) < World Food Program, "South Sudan Emergency", emergency.
Whereas the Applicant has some transferable work skills, the opportunities for him to find paid employment are likely to be very limited. In a policy brief written for the Sudd Institute - an independent research organisation that conducts and facilitates research and training to inform public policy and practice regarding South Sudan, the authors describe how COVID-19 has had a devastating effect on an already, depressed economy, effecting virtually every field of employment, with the informal sector being the hardest hit in terms of job losses.[156] The economic downturn in the country will further exacerbate the difficulties the Applicant will face in finding employment and becoming financially stable.
[156] Augustino T. Mayai, Abraham A. Awolich and Nhial Tiitmamer, 'Policy Brief: The Economic Effects of the COVID-19 Pandemic in South Sudan' The SUDD Institute (10 May 2020)
On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs very heavily in favour of the revocation of the 2019 Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the views of the Applicant’s victims and the impact on them of a decision to revoke the 2019 Cancellation Decision. The Tribunal has given this other consideration neutral weight.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(1) and paragraph 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that the Applicant has a large number of family members in Australia, including his partner, two biological children, four step-children, his mother, four brothers, two sisters, and an uncle and a niece. Based on their statements and oral evidence, the Tribunal finds that the Applicant’s family members, will experience considerable emotional hardship and distress if he is removed from Australia.
In relation to his other ties, the Applicant has resided in Australia for 19 years. However, as required by paragraph 9.4.1(2)(a)(i) of the Direction the Tribunal has attached less weight to the Applicant’s period of residence in circumstances where he began offending in 2005, less than two years after his arrival. In relation to the factors in paragraph 9.4.1(2)(a)(ii) there is evidence that the Applicant has made a limited contribution to the Australian community through his work as a process worker, delivery courier and farm worker.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to South Sudan. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the strength of his ties to family members and the length of time the Applicant has resided in Australia, the Tribunal finds that this consideration weighs very heavily in favour of revocation of the 2019 Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 weighs against revocation of the 2019 Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it has included offences involving violence. The low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the 2019 Cancellation Decision.
Primary Consideration 3 weighs very strongly in favour of the exercise of the discretion to revoke the 2019 Cancellation Decision as it is in the best interests of the Applicant’s one minor age biological child and his two minor aged step-children for him to be permitted to remain in Australia.
Primary Consideration 4 weighs against revocation of the 2019 Cancellation Decision as the expectations of the Australian community are that the Applicant’s offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the considerable impediments he will face on return to South Sudan, his two decades of residence in Australia, and the devastating impact of his removal on his family members, particularly his partner, children, step-children, mother, brothers, and sisters weigh very heavily in favour of revocation of the 2019 Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the 2019 Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 30 June 2020, to refuse to revoke the 2019 Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Global Special Humanitarian (Class XB) (subclass 202) visa is revoked.

I certify that the preceding 189 (one hundred and eighty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................
Associate
Dated: 21 October 2022

Date(s) of hearing: 15 & 16 June 2022

Counsel for the Applicant: Mr P King

Solicitors for the Applicant: Malik Lawyers

Counsel for the Respondent: Mr J Kay Hoyle

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	15 & 16 June 2022
Counsel for the Applicant:	Mr P King
Solicitors for the Applicant:	Malik Lawyers
Counsel for the Respondent:	Mr J Kay Hoyle
Solicitors for the Respondent:	Australian Government Solicitor