RYZM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3995
•21 November 2022
RYZM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3995 (21 November 2022)
ReviewNumber: 2022/7270
Division:GENERAL DIVISION
File Number: 2022/7270
Re:RYZM
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date:21 November 2022
Place:Melbourne
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant found to be a citizen of South Sudan – applicant held Global Special Humanitarian (Class XB)(Subclass 202) visa – visa cancelled because applicant has substantial criminal record as defined in Act and was serving sentence of full-time imprisonment – is there another reason to revoke cancellation of visa – two procedural matters – late statement from potential witness lodged after ‘two-day rule’ – no statement from the Applicant – threshold question – the country of reference – Direction No. 90 – primary considerations – protection of the Australian community – family violence conduct – best interests of minor children in Australia affected by decision – expectations of Australian community – other considerations – international non-refoulement obligations – application found to be owed protection – application refused a protection visa – extent of impediments if removed – impact on victims – links to the Australian community – special considerations – prospect of prolonged detention – extent of impediments if removed to a third country – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, (Cth), s 33A
Migration Act 1958, (Cth), ss 36, 48A, 189, 195A,195AB, 197C, 499, 500, 501CA, 501E
The Nationality Act 2011, South SudanTransitional Constitution of the Republic of South Sudan, 2011
Cases
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
EPL20 v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Sillars vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055Uelese v Minster for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
21 November 2022
BACKGROUND
The Applicant was born in 1996 in Khartoum, Sudan. His parents are from the Upper Nile district in territory that is now, since partition in 2011, part of the territory of the Republic of South Sudan. He is of Nuer and Shilluk ethnicity.
When he was aged around eight, his family moved to Egypt. Two years later, his mother and siblings resettled with him in Australia. He came to Australia as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa. He held that visa until it was cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’) on 20 December 2018.
The Applicant was invited to make representations to the Department of Home Affairs (‘the Department’) as to whether there was ‘another reason’ under s 501CA(4) of the Act to revoke the cancellation of his visa.
The Full Court of the Federal Court of Australia, in the decisions EPL20 v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 173 and Sillars vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 174, which were heard concurrently, found that the pro forma letters sent to applicants inviting them to make representations after mandatory cancellation of visas were defective.
The Department issued a fresh notification to the Applicant on 15 December 2021 and invited him to make representations about revoking the mandatory cancellation of his visa. He did so on 12 January 2022. On 26 August 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘Minister’) refused to revoke the mandatory cancellation decision.
A decision under s 501CA(4) to refuse to revoke a mandatory cancellation is reviewable by the Tribunal under s 500(1)(ba) of the Act. On 6 September 2022, the Applicant lodged an application for review with the Tribunal.
HEARING
A hearing was held on 15 and 16 November 2022 by video link, under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Mr Maker Mayek of Mayek Legal, Barristers & Solicitors. The Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers. The Applicant gave evidence and was cross-examined. The Applicant also called the following witnesses, who gave evidence: his mother, Mrs AK, and the Revd. Deacon George Plech Meat, South Sudanese Catholic Chaplaincy, Archdiocese of Melbourne. The Respondent did not call any witnesses.
The Applicant submitted a Statement of Facts, Issues and Contentions (‘ASFIC’), and the Respondent submitted an identically named document (‘RSFIC’). The Tribunal had regard for these written submissions. In addition, the Tribunal admitted into evidence other documents, a list of which is annexed to these reasons.
On 11 November 2022, the Tribunal made an order under s 35 of the AAT Act prohibiting the publication of the name of the Applicant in these proceedings, or other information that might tend to identify him. This is because the parties both submit, and the Tribunal accepts, that protection findings have been made in relation to him and are consistent with the orders applied in previous proceedings he had before this Tribunal and the Federal Court of Australia. He will be referred to by the initials ‘RYZM’.
Questions before the Tribunal
The first question to determine is whether the Applicant fails the character test. If the Tribunal is satisfied that he does not, then the discretion to cancel the visa under s 501(2) was not enlivened, and the visa should be restored. If RYZM does fail the character test, the next question is whether the discretion should have been exercised to cancel his visa.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by s 501(7). The ASFIC submitted that on 16 August 2018, RYZM was convicted by the County Court of Victoria to an aggregate sentence of 15 months’ imprisonment for a number of offences. Mr Mayek, in his oral submissions to the Tribunal, conceded that the question of the Applicant failing the character test was not in dispute.
The Tribunal notes a nationally coordinated criminal history check by the Australian Criminal Intelligence Commission (‘ACIC report’) dated 10 December 2018 was in the papers before it. This document recorded that on 16 August 2018, RYZM was convicted of the following offences by the County Court of Victoria: Theft from a motor vehicle; Criminal damage (intent to damage/destroy); Obtain property by deception; Drive whilst authorisation suspended; Fail to answer bail (three counts); Unlawful assault; Unlicensed driving; Recklessly cause injury; Commit indictable offence whilst on bail (three counts); Intentionally damage property; State false name when required (two counts); Possess prohibited weapon without exemption or approval; Possess cannabis; Affray (common law); Resist police officer; Negligently deal with the proceeds of crimes; Dishonestly undertake in the retention of stolen goods; Fail to answer bail; Burglary; Theft of bicycle; Theft (three counts) and Possess controlled weapon without excuse. The check also records an aggregate sentence of imprisonment for this group of offences of 15 months, with 70 days already served to be taken into account.
Finding on the character test
The Tribunal finds that RYZM failed the character test because he has a substantial criminal record by virtue of the convictions in August 2018 referred to above. Accordingly, his visa was cancelled by a delegate of the Minister by operation of law.
The next question is whether there is another reason, under s 501CA(4)(b)(ii) of the Act, to revoke the cancellation of his visa.
Procedural matter – late statement from witness – the ‘two-day rule’
On 15 September 2022, following a telephone directions hearing, the Tribunal issued a direction to parties about the provision of documents. That direction stipulated that the ‘two-day rule’ date in this matter is 10 November 2022, given that the matter was listed to be heard on 15 and 16 November 2022. The ‘two-day rule’ is the shorthand way of referring to the requirements mandated by ss 500(6H) and 500(6J) of the Act. Section 500(6H) prevents the Tribunal from having regard to any information presented orally in support of the Applicant’s case unless the information was set out in a written statement given to the Minister at least two business days before the hearing. Section 500(6J) sets a similar prohibitory regime for any document submitted in support of an applicant.
A statement from Deacon Meat was provided to the Respondent and the Tribunal, dated 11 November 2022. It was, therefore, not in the hands of the Minister two business days before the hearing. It was not admitted into evidence as it could not be relied upon in support of RYZM. In the normal course, in the absence of any other statement from the deacon, he would not be able to be called as a witness.
On reviewing the documents prior to the hearing, the Tribunal noticed that Deacon Meat had previously provided letters in support of the Applicant, which are referred to in the decision record relating to RYZM’s application for a protection visa, but which were not otherwise in the papers provided to the Tribunal. Given that these letters were clearly in the knowledge of the Minister and may be relevant to the decision before the Tribunal, the Respondent was asked to provide them. Ms Tattersall, consistent with the approach of the Minister as a model litigant, provided two letters from the deacon, dated 4 December 2019 and 27 August 2020, and they were tendered into evidence as the Respondent’s exhibits. This removed the bar to the Applicant calling Deacon Meat as a witness.
Procedural matter – no statement from the Applicant
The Respondent raised the fact that RYZM has not lodged a statement with the Tribunal within the ‘two business day’ rule stipulated in s 500(6H) of the Act and that this would present difficulties with him giving evidence in chief. The Tribunal observed that there was some friction between the fact that the Parliament provides that a non-citizen may bring a decision to revoke a visa cancellation to the Tribunal for review under s 500(1)(ba) of the Act and the Minister’s contention that no regard may be had for information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least two business days before the hearing: s 500(6H).
Ms Tattersall referred the Tribunal to the Full Federal Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21 (‘DOM19’). The Tribunal said it takes a liberal approach in the rare circumstance where an applicant has not lodged a statement with the Minister and the Tribunal in relation to a hearing and where there is no apparent statement in the other documents lodged. I consider this is consistent with the view taken in DOM19, where the Full Court made clear that s 500(6L) can encompass information set out by other persons on behalf of an applicant, such as his or her lawyers or a migration agent. An example is where the Respondent objected to Mr Mayek asking the Applicant where he was born. The Tribunal did not uphold that objection because this information is set out in other statements made on his behalf (at GD, p 103).
As the High Court (French CJ, Kiefel, Bell and Keane JJ, Nettle J separately agreeing as to outcome) said in Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (‘Uelese’), at [73], the provisions in s 500(6L) of the Act are to prevent the Minister being taken by surprise. This is so that the Minister knows the complete scope of the case that a non-citizen is going to put to the Tribunal and can prepare appropriate responses. I do not consider that asking certain factual questions about where he was born, and his ethnicity, where that information is contained in the Applicant’s documents the Minister himself has furnished to the Tribunal under s 500(6G) of the Act, should be precluded because of the lack of a specific written statement from RYZM.
As was also said by the Full Court in DOM19, the Tribunal is a pragmatic jurisdiction. My task is to decide whether the decision brought for review is correct in law and, if a discretion has been exercised, that it is done so in a preferable manner.
The High Court went on to say in Uelese, at [53]-[54]:
Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the “proper consideration of the matters before [it]” required by s 33 of the AAT Act.
Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits.
Consistent with this expressed view, the Tribunal asked the Respondent’s representative to question RYZM first, and then the Applicant’s lawyer was permitted to ask his own questions, linked to the responses given.
Threshold question – the country of reference
The Applicant, in his opening submissions, said he was born in ‘South Sudan’. The ASFIC submitted that RYZM’s parents were from the southern part of what was then Sudan and what today is South Sudan. The ASFIC submitted that the Applicant was eligible for South Sudanese citizenship on account of the ancestral origins of his parents.
RYZM was born in Khartoum, but his parents were from the southern part of the Republic of Sudan, from an area which is now within the territory of the Republic of South Sudan. His father is Nuer by tribe, and his mother is Shilluk (GD, p 103).
The Tribunal notes that the Transitional Constitution of the Republic of South Sudan, 2011 provides, at Article 45(1):
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
The Nationality Act, 2011 (South Sudan) provides that a person born before or after the Act has entered into force shall be considered a South Sudanese National by birth if (a) the parents, grandparents, or great-grandparents of the person, in the male or female line, were born in South Sudan, or (b) the person belongs to one of the indigenous ethnic communities of South Sudan. It was not in contest that RYZM satisfies both of these stipulations: his parents both being born in territory that now forms part of the Republic of South Sudan, and he is a member of the Nuer and Shilluk indigenous ethnic communities.
The Tribunal, therefore, finds that RYZM is a citizen of the Republic of South Sudan, and that is the country of reference in terms of the destination, if his visa is not restored.
Should the discretion be exercised to revoke the mandatory cancellation?
To decide whether the discretion should be exercised, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 8 March 2021, the previous Minister made a direction, Direction No. 90 (‘the Direction’). The Direction commenced on 15 April 2021.
The Direction sets out, at paragraph 5.2, principles that should be taken into account, to the extent that they are relevant, in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. Part 2 of the Direction sets out considerations that must be taken into account in considering whether to exercise the discretion in s 501CA. The considerations are grouped as ‘primary’ considerations and ‘other’ considerations. Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. There is consistent Federal Court authority that any consideration in the Direction can be determinative.
It is also relevant to remember that the Tribunal is not confined only to the primary and other considerations. Any other articulated claim that may be relevant to the particular circumstances of a non-citizen, which is also relevant to the scope and purpose of the Act, should be taken into account.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (paragraph 8.1.1)
As mentioned above, RYZM received a 15-month aggregate sentence from the County Court in August 2018. This group of offending related to seven separate offending instances, which were set out in the sentencing remarks.
In early January 2016, RYZM broke into a number of parked motor vehicles, stealing items found in the cars. He wore gloves to avoid leaving fingerprints, which indicates some degree of premeditation. Six days later, the Applicant was identified driving a car at 107 km/h in a 60 km/h posted speed limit area. He did not have a driver’s licence at the time.
Two weeks later, RYZM was found to be in possession of a baton and three pocket-knives. In April 2016, the Applicant was involved in a brawl in a laneway in Melbourne early one morning. He was detained by police and found to be in possession of a sheath kitchen knife. He was also found to have five mobile phones, which the police inferred were stolen. He resisted arrest and tried to run away but was apprehended. This incident led to the conviction for affray.
In March 2017, RYZM was caught on video footage using a brick to smash a car window, and then subsequently taking items from the car. The same day, he punched his former girlfriend in her face, and he restrained her arms so that a third party could pull her hair.
In December 2017, RYZM punched his girlfriend in the face, causing her eye to swell to the extent that she could not open the eye and needed to attend a hospital. When police arrived on the scene, they had to deploy capsicum spray to disable the Applicant. He provided a false name to police.
The criminal history check shows (GD, p 35) that the first conviction recorded for the Applicant was by the Magistrates’ Court of Victoria in March 2016, when he was convicted of the offence of Fail to answer bail and discharged. In August 2016, he was convicted of the offence of Drunk in a public place, and again discharged.
However, in documents produced by VicRoads under summons, and in the Tender Bundle (‘TB’) admitted into evidence, earlier driving offences are recorded. In January 2015, RYZM received an infringement notice for the offence of Exceeding the prescribed concentration of alcohol between 0.050% and 0.069%, with an offence date of Boxing Day 2014. In September 2015, the same document recorded the Applicant as appearing before the Magistrates’ Court of Victoria where he was fined for the following offences, but no convictions were recorded: Unlicensed driving; Use vehicle will displaying a number plate or registration label other than issued for vehicle; Using an unregistered vehicle on a highway. The date of these three offences was June 2015.
The VicRoads document (TB, pp 93-94) also discloses RYZM was before the Magistrates’ Court in March 2016, where he was found guilty of Unlicensed driving in October 2015 and Using a hand held mobile phone whilst vehicle moving. He was fined for these offences.
The next record in the criminal history check is for Unlicensed driving in March 2017 (offence date July 2015), where RYZM was convicted, and the matter adjourned for one year. On the same day in March 2017, RYZM was convicted of:
(a)Commit indictable offence whilst on bail (two counts) (offence date of one count February 2016);
(b)Theft from shop (shop-steal) (offence date July 2015);
(c)Tamper with motor vehicle (offence date January 2016); and
(d)Fail to answer bail (offence date February 2016).
All of these matters were adjourned for one year.
Some pending charges were recorded in February 2018, but as there is no evidence that these matters have been determined by a Court, the Tribunal has no regard for them.
In August 2018, the Applicant was before the County Court on the group of charges referred to in more detail above.
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. There is no evidence of sexual violence or crimes against children, but there is evidence of violent crimes, crimes against women and acts of family violence.
The Direction states that the Tribunal must take account of the sentence imposed for a crime or crimes. I find that the Applicant has had two sentences of imprisonment, one for a short period of 17 days and the other for 15 months, both in adult confinement.
The Tribunal must also take account of the frequency (paragraph 8.1.1(1)(d)) of the non-citizen’s offending. I find that the Applicant has offended relatively frequently from the end of 2014 to June 2018. Overall, he has committed some 40 offences in around three years. I also find on the evidence of the national criminal history check and the VicRoads record that there has been a trend of increased seriousness. In terms of paragraph 8.1.1(1)(e), there is a cumulative effect of repeat offending.
The sentencing Magistrate, after saying that a Community Corrections Order (‘CCO’) would not be appropriate because RYZM had “passed that. You had a chance”, stated in August 2019 (GD, pp 71-72):
Doing the best I can in relation to the balance of these matters that are all gaolable, the basis that in my view it’s an ongoing course of conduct, albeit over a significant length of time, I am sentencing you to be imprisoned for 15 months and ordering that you spend eight months before being considered eligible for parole which gives you seven months on parole. If you can navigate the seven months then maybe things will be all right. I don’t think you will. I think you will go back to idiot mates and rob and you will have the parole pulled and somebody like me will give you even more, but I hope I’m wrong.
The Magistrate took into account that RYZM was a youthful offender under 25 at the time, and said that, but for the pleas of guilty, he would have sentenced him to two years in prison with a 15-month non-parole period. In his general remarks, the Magistrate said RYZM was ‘way out of control, you know, he’s lawless’. The Applicant’s counsel responded that was hard to argue against, given the regularity of the offending.
Mr Mayek submitted that much of the earlier offending before 2018 related to driving offences, which he acknowledged were nonetheless not to be trivialised. He acknowledged that the Applicant was on the pathway to more serious offending.
Paragraph 8.1.1(1)(f) of the Direction requires that the Tribunal must have regard to whether the Applicant has provided any false or misleading information to the Department; and whether he has offended since being warned or otherwise made aware of the possible consequences of further offending in terms of his migration status (paragraph 8.1.1(1)(g)). There is no evidence of this before the Tribunal.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction states that 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. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2 requires the Tribunal to have regard to the nature of the harm to individuals or to the Australian community if the Applicant engages in further criminal or other serious conduct, and the likelihood of him so engaging.
Summary of oral evidence
RYZM agreed that his first drink driving offence was in December 2014, when he was on red ‘P’ plates as a first-year provisional licence holder. He said he was drinking at the time of his first offence for unlicensed driving, and that was sometimes the case with his driving without a licence, but not always.
RYZM said he did a short group course arranged by VicRoads for persons convicted of drink driving but agreed that he went on to commit further traffic offences. Ms Tattersall asked him why he drove unlicensed so many times. He responded: “I needed to get to places. It was just stupid mistakes. I was young. I needed to pick up the missus, go to the shops.”
RYZM was asked about an offence in July 2015 when he was driving a car, and the passengers robbed a petrol station. He said the robbers were a mate and his girlfriend. He said he was unaware they had not paid, and he went to pay for his petrol. He said he was driving a cousin’s car at the time, and she knew he did not have a driver’s licence.
RYZM admitted to stealing items from cars, including coins. He agreed he spent a short period in custody in 2016; and he was aware that a longer prison term was likely if he continued to offend, but “I was young at the time.”
RYZM was asked about a February 2016 incident where he was found to have weapons and stolen items in his car. He said: “Yes, they were my mate’s but left in my car, so they charged me with it. When I took the car, I hadn’t checked. I was going home to clean the car and they pulled me over. It was too late; everything was in there.”
RYZM was then asked about the conviction for affray in April 2016, where there was a fight in an alleyway. He said: “My mates were fighting. I took a knife from one to throw it in the bin. The police came and found it on me. I don’t like knives”. He agreed he resisted arrest and kicked the door of the police vehicle, and that five mobile phones were found on him when he was searched.
Ms Tattersall then reminded RYZM that it was the second time he had been found in possession of a knife, when a number of pocket-knives were found in his possession.
RYZM was asked whether he remembered the conditions imposed upon him that he was not to consume alcohol (TB, p 48). The Applicant said he did not attend licensed premises, but he did continue drinking.
RYZM was asked about incidents where he stole from cars by using a brick and took a handbag from a car and used credit cards which were in the bag. He accepted that he had done that.
The Applicant was asked about an incident with a former girlfriend where he held back the victim’s arms while another person (his new girlfriend) hit her. He said: “They were fighting, so I tried to stop the fight”. RYZM said that an intervention order was in place, and the former girlfriend kept following him around, and he did not want her to.
The Applicant said he saw a social worker for a period, every week, “until the judge said I didn’t have to see him anymore”. He said he also did a Men’s Behaviour Change programme, which was also ordered by the Court.
RYZM agreed that he had been advised to attend Alcoholics Anonymous (‘AA’) meetings in prison and said, “Yes, I was going”. He said he attended weekly between January and May 2019 but stopped going when his parole was denied because he was depressed. He agreed that his prison case officer encouraged him to resume attending the meetings. He said he felt if his visa was cancelled, he would go to detention “even if I go to AA meetings”. When Ms Tattersall suggested that attending the meetings was good for him, RYZM responded, “Now I’m older, I understand more.”
The prison notes state (TB, p 114) that RYZM was attending AA meetings every Thursday and was ‘finding them very helpful’, but it is clear that he did stop once he was refused parole. While this would have been understandably deeply disappointing, it illustrates a lack of appreciation that the purpose of attending the AA meetings was not to ‘get a tick’ from the prison authorities, but to help him combat his previous alcohol abuse. The fact that RYZM proffered no plan to the Tribunal at this hearing that he wanted to resume attendance at AA if released into the community, nor seek out any other counselling, indicates a lack of ability to grapple with what, he himself acknowledged, was a major driver of his criminal conduct.
In response to Ms Tattersall noting that RYZM was released on an undertaking to be of good behaviour until March 2018 but that he did not comply, the Applicant said he accepted that. The Tribunal notes that there has been a pattern throughout RYZM’s offending of him breaching bail and other orders of the Court. Notably, he has freely and often knowingly driven when his licence was suspended or disqualified; and not for some emergency reason but instead, as he said in his evidence, simply to pick up his girlfriend or go shopping. It seems from this behaviour that he did not think the rules applied to him.
RYZM was taken to a second domestic violence incident in December 2017, where there was an altercation in a car, and he hit his girlfriend in the face, leaving her with a black eye. He responded: “I had too much to drink and got angry and didn’t know what happened until at the police station”. He said he had no recollection of the events: “They told me, but I don’t remember. I had drunk too much.”
He agreed that he had struck the victim in the face and that she had climbed out the car window because the doors were locked, and that he had started to chase her and had to be subdued with capsicum spray by the police. He said that he had been going out with the victim for about 18 months, but they did not live together; he continued to live at home with his mother and sisters.
RYZM was taken to an incident in June 2018 where he pushed a shopping trolley through the window of a hotel. He said he remembered the incident: “I got angry. I pushed a trolley, and it went through the window by accident. I was arguing with someone”. He agreed that, when arrested by police, he provided a false name because he was on bail, and that the fact of the false ID was found out when he was fingerprinted.
Ms Tattersall took RYZM to two incidents recorded against him since he has been in immigration detention. In October 2019, it was recorded that he pushed a fellow detainee. He said: “I just got out of prison and wasn’t coping with detention well. My mind wasn’t right. Since 2019 there have been no incidents.”
The Respondent then asked RYZM about a second incident where he destroyed property in the IT room at the detention centre. He responded: “I recall. The other detainee said he wanted the computer. I was watching a movie and wanted 10 more minutes. He threw down his jacket and then his headphones on the computer. I got angry. It was the wrong thing to do.”
The hearing then viewed the CCTV footage from the detention centre showing the incident in November 2019. The Tribunal notes that there was no audio, so conclusions cannot be drawn about what exchanges there were between RYZM and the other detainee. What the footage does show is the other detainee first placing a coffee cup down on the desk near the computer. He then returned and put his jacket on a table behind it. He had a conversation with RYZM and then left the room. The other detainee then returned and placed his headphones next to the keyboard and left the room. RYZM then picked up the computer and threw it across the room, smashing it on the floor. He then briefly left the room and returned and stomps on the broken equipment. Officers attended and tried to restrain RYZM, but he ran towards the detainee in question and agreed they had some contact, but he was pulled back. RYZM agreed that he had admitted to a separate Tribunal hearing that he was trying to assault the detainee.
The detention centre incident report (GD, p 220) said that the detainee had kept approaching RYZM and telling him to ‘hurry up’, and that this had provoked the Applicant. On the face of it, this does not look like particular provocation, but there were other computers in the room that the other detainee could have used, so it may have been that he was deliberately trying to bait RYZM. They may have had some history. In any event, RYZM’s violent and destructive reaction in smashing the computer keyboard and screens on the floor was completely disproportionate. It must nevertheless be acknowledged that this incident was three years ago, and there is no evidence of this sort of conduct repeating.
The Tribunal does not place any significant weight on the October 2019 incident, which is labelled as ‘assault – minor’ and, on the redacted summary, consisted of RYZM pushing the chest of another detainee and ‘giving him a stare’. The other detainee was offered a move to another compound, which he accepted. It may be that there had been previous bad blood between the Applicant and this person, but that is just speculative. On its face, this incident is not significant.
The Applicant told the Tribunal that alcohol had played a part in his offending. He said that he started drinking when he turned 18, and drank alcohol ‘every two days, sometimes every day’. He said he drank ‘a lot’, sometimes two or three bottles of wine a night. He said if he was with a group of mates, he would often consume a bottle by himself. The following exchange occurred:
Ms Tattersall: Were your family aware of how much you were drinking?
RYZM:No. I wasn’t speaking to anyone about it. The family didn’t know until I went to gaol.
Ms Tattersall: Did the family know you were getting into trouble?
RYZM: Not too much, until I did my 15 months.
Senior Member: Did your Mum or sisters attend Court with you sometimes?
RYZM:No. I was ashamed to tell them until I did by 15 months. Now I’ve told them everything.
Ms Tattersall: Have you spoken to your Mum about your drinking?
RYZM:When she visited me in prison, I told her everything.
Ms Tattersall: What about the family?
RYZM:Yes. They just tell me not to hang around with bad people.
Ms Tattersall: Are your family aware of your offences?
RYZM:Yes. They will be. Mum says I need to get a job and not hang around with those people.
However, when the Applicant’s mother, Mrs AK, gave evidence, the following exchange occurred:
Ms Tattersall: Has RYZM spoken to you about his crimes?
Mrs AK: No, but I know.
Ms Tattersall: So, he’s never talked about it?
Mrs AK:Yes, he has apologised and said, ‘sorry Mum’. Driving without a licence. Drink driving. Fighting in a house. I know there is a lot. He broke some lady’s nose. I know one day he was fighting in the city.
Ms Tattersall: Are you aware of anything else?
Mrs AK: No.
Ms Tattersall: Has he spoken to you about drinking alcohol?
Mrs AK: His big sister told me. He didn’t come home drunk, ever.
Ms Tattersall: Has RYZM spoken to you about his drinking?
Mrs AK: No.
Ms Tattersall: Do you know how much he had been drinking before he went to prison?
Mrs AK: No.
It was not contested evidence that the Applicant and his mother and sisters regularly attended the Catholic church each Sunday. Deacon Meat, who gave oral evidence, said that Mrs AK was in the choir, and he had baptised the Applicant’s younger sister. He said RYZM would regularly attend with his mother until he was about 18.
RYZM confirmed in his evidence that he stopped attending church when he was 18 or 19. Ms Tattersall asked him if he had spoken to Deacon Meat about his offending. RYZM said he had. The Respondent then asked the Applicant when he last spoke to the deacon. He responded: “Last week. I speak to him every week. He checks up on me”. He said there was a period where he did not have contact with the deacon because he was ‘disappointed’, but he resumed speaking to him when he got out of gaol. He said that the deacon was not aware of all the facts of the offending before, but is now.
When Deacon Meat gave evidence, he said he had not spoken to RYZM in either prison or detention, “No, not at all”. Deacon Meat said he was aware from the Applicant’s mother who, had told him of ‘some issue with a girlfriend’, but he was going to talk to RYZM when he got out of prison. He said he was not aware of the other crimes committed by the Applicant, ‘in detail’. Deacon Meat said he was not aware that RYZM drinks alcohol.
The Tribunal is significantly disturbed at the inconsistency of the Applicant’s evidence in these two respects: what he said he had told his mother about his offending and drinking, and what he said he had told Deacon Meat. The Tribunal accepts RYZM’s evidence that he had confided in his older sister; but prefers the evidence of Mrs AK that she did not know the full details of his offending, nor that he was drinking.
The Tribunal also prefers the evidence of Deacon Meat, that he has not spoken to RYZM directly about any of his offending, and that what the deacon knew had been gleaned from his discussions with Mrs AK. The Tribunal finds that RYZM’s evidence, that he regularly speaks to Deacon Meat, is fabricated.
In regard to the incident in the detention centre where RYZM smashed up the computer equipment, the Tribunal considers that, as Mr Mayek conceded, this shows a particular anger management problem. The Tribunal notes that it is now three years since this incident, and there has been no repetition. The Tribunal accepts that it might have been borne out of the frustration of living in close company in detention; and by the natural frustration RYZM might have felt at the time, having expected to be released from prison on parole, only to find his visa cancelled and him being transferred into detention. However, it is a concerning lack of proportion in response.
The Applicant did not articulate any coherent plan to tackle the causes of his offending in the past, and thereby lessen the chances of him re-offending. He said that he would live at home with his mother and sisters, but that he was ‘too old now’ and would look for a place of his own. He said he would get a job but did not expand on what he would like to do, noting he has a very meagre work history, with one semi-casual job working at a supermarket wrangling supermarket trolleys for some weeks.
It would appear on the evidence that one thing in favour of RYZM is that he does not have an illicit drug habit. The only mention was a small involvement in cannabis. What appears to have been a major driver of his offending has been the abuse of alcohol. The Applicant himself ruefully conceded that. But he also made clear that he was not drinking on each occasion when he offended. Anger, and an inability to control it, seems to the Tribunal to be a vein that has run through some of his offending and other misconduct, from the affray charge, resisting arrest, two incidents where he was involved in violence against women, and the incident in the detention centre IT room. There was no articulation from the Applicant that he has any plans to address this. His involvement with AA was good for a time, and then he ceased engagement, in spite of repeated encouragement from prison welfare officers.
There is no indication that RYZM suffers from a mental health condition. The Magistrate in 2019 explicitly rejected any such suggestion, in the absence of any evidence. The Applicant himself did not make such a claim. There is no psychiatric or psychological assessment before the Tribunal where risk of re-offending has been assessed. The Tribunal concludes that there is a moderate, perhaps moderate to high, risk of RYZM re-offending. The main reason for that is the lack of any real evidence of motivation to address his criminogenic needs. He spoke a number of times about not hanging around with ‘bad friends’, but that is simply not enough for the Tribunal to be satisfied that the risk assessment would be lower.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a) A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including (paragraph 8.2(3)(c)):
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before the Tribunal of formal warnings of this nature to RYZM by the Minister’s Department.
It was not in dispute between the parties that the Applicant has been convicted of two domestic violence offences. I am satisfied that the incident in the car, where RYZM struck his girlfriend in the face, and the events that followed (referred to earlier in these reasons), falls within this category. The fact that the Applicant does not remember the incident because he says he was too intoxicated does nothing to reduce the seriousness of the offending.
In regard to the March 2017 incident, where RYZM held back the arms of a former girlfriend to allow his current girlfriend to assault her, it is less clear whether this constitutes family violence, in terms of the Direction. The RSFIC referred to RYZM ‘punching a girlfriend in the face’ and drew the Tribunal’s attention to the Full Court decision in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, which said that the phrase ‘family member’ should not be narrowly construed. However, the Court went on to say, at [124], that the term “could extend (depending on the circumstances) to a person who was in an intimate relationship with the person.”
On the facts of the March 2017 offending, the Respondent is not correct. The victim in that case on the summonsed material was the former girlfriend of the Applicant. The Tribunal is not satisfied that the former girlfriend, in this case, fits the category of being a ‘family member’. She was no longer in an intimate relationship with RYZM and did not live with him. The Applicant had clearly moved on from that relationship to a new girlfriend. His evidence was that the former girlfriend, who was the victim, was “following them around”. It is not necessary for the Tribunal to interrogate that evidence further: RYZM’s involvement in that incident, to assist in someone being assaulted does him no credit; but this offending is not relevant to this primary consideration.
Having determined that the only relevant offending is the December 2017 offence, there is no frequency of this sort of offending nor a cumulative effect of repeated acts of family violence. There was no evidence of a formal warning by the Court about acts of family violence; the details of the Intervention Violence Order (‘IVO’) were not clear to the Tribunal.
This primary consideration weighs against RYZM, but the weight is not significant, given the isolated nature of the offending, disgraceful on the facts as it is.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children; the extent to which he is likely to play a positive role; the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The ASFIC states, at paragraph 38, that this primary consideration is not relevant in this case. The Respondent submitted, noting that the Applicant has a 12-year-old sister, that no evidence has been advanced, and so the Tribunal should find that this primary consideration weighs neutrally. The Tribunal rejects the submissions of both parties.
Plainly on the facts, the Applicant has a 12-year-old sister with whom he lived in the household with their mother and older sister, until he went to prison. There was no evidence before the Tribunal of any detrimental conduct by RYZM towards his minor sister; Mrs AK’s evidence was that her son was never affected by alcohol at home. It is a fact that Mrs AK plays the primary parental role in the life of her younger daughter, given the evidence that she separated from her husband in 2010 and that she says she has had no contact with him since that time.
The Tribunal finds that this primary consideration weighs slightly in favour of revoking the mandatory cancellation of the visa. The minor child’s views are not known, but it was clear from the evidence of Mrs AK that the family was close, regularly attending church together; and being well-regarded, on Deacon Meat’s evidence, in the community. The Tribunal is satisfied to conclude that RYZM’s younger sister would be – at least – disappointed if her brother is deported or if he remains in immigration detention.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences that are relevant to this case: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, among others, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The dictionary definition of the word ‘norm’ means a ‘standard’ or ‘pattern or type’.
A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including the Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued by the then Minister after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would take into account that RYZM came to Australia at the age of 10 on a humanitarian visa, after a disrupted childhood with his parents fleeing Sudan on account of the civil war there. He has therefore resided in Australia for almost two-thirds of his life, and all his adult life.
What would count against him in the eyes of the community is that he began offending soon after entering adulthood, and that there has been an escalation of offending, including street offences, many road offences, property offences and domestic violence. Amassing some 40 offences in a period of around four years is not an achievement of which to be proud.
The Tribunal finds that this primary consideration weighs in favour of cancelling his visa.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugee Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
The Respondent noted that RYZM lodged a protection visa application in November 2019, and although a delegate of the Minister refused the application under s 36(1C) of the Act, the same delegate found that the Applicant was a refugee within the meaning of s 5H of the Act for the purposes of s 36(2)(a) (GD, pp 166-214). The Minister accepts that RYZM has engaged non-refoulement obligations, and if the Tribunal decides to affirm the decision under review, the combined operation of ss 501E and 48A of the Act will prevent him from making any further substantive visa applications while he is onshore.
The Respondent further submitted that the delegate’s finding in August 2020 amounts to a ‘protection finding’ for the purposes of s 197C of the Act. and submitted that the Tribunal should find that RYZM will not be liable for removal to South Sudan because his removal is not ‘required or authorised’. The Minister submitted that this consideration weighs neutrally.
The Tribunal notes that the decision by the delegate to refuse RYZM a protection visa was reviewed by this Tribunal (differently constituted) in May 2021 (Re: SLGS and Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515). Senior Member Evans-Bonner affirmed the decision under review. The Tribunal’s decision was then taken for judicial review to the Federal Court of Australia. On 8 September 2022, Abraham J dismissed the application for review with costs (SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055). The Respondent noted that the Applicant has lodged a notice of appeal to the Full Federal Court, but that has not yet been heard.
The Tribunal notes that RYZM was born in Khartoum, the capital of Sudan, and has never lived in South Sudan. His parents live in Australia. He denied knowledge of any relatives still in Sudan, noting that his father had siblings in Australia. In her evidence, Mrs AK said she had siblings in other parts of Africa, some in refugee camps, but not residing in South Sudan. The Tribunal accepts that RYZM is not close to these relatives on the maternal side of his family. The Tribunal further accepts the Applicant’s evidence that he speaks a little Arabic but not the native languages of South Sudan; this was corroborated by his mother. The significant period he has been in Australia would mark him out, in the Tribunal’s view, as a ‘foreigner’, were he to be repatriated; as would his lack of familiarity with the native tongues, noting that English is technically the official language of the Republic of South Sudan.
The Tribunal is satisfied to rely on the submissions of the Minister that the Applicant is owed Australia’s protections under the international treaty obligations to which this country is a party. The Tribunal is also satisfied that it will not be a consequence of a decision to affirm the decision before this hearing that RYZM would be removed to South Sudan.
In these circumstances, the Tribunal finds that this consideration weighs, in principle, in favour of the Applicant. The door for the Applicant to receive a protection visa remains potentially open, because of the appeal that has been lodged to the Full Federal Court, but it would be arid for the Tribunal to speculate about any outcome.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language, or cultural barriers and social, medical, and/or economic support available to him if repatriated.
In response to direct questions from the Tribunal, RYZM said his physical health was good. He said he commenced taking medication in detention to help him sleep and with his digestion, but reported that otherwise, he had no health complaints. He said that he plays soccer at the detention centre when he can.
The Respondent submitted that s 197C of the Act effectively prevents RYZM from being removed to South Sudan, and therefore this consideration should weigh neutrally. The Tribunal agrees with that submission, because the Direction contains this particular consideration only to impediments a non-citizen would face if removed to ‘their home country’, which in the case of this Applicant is deemed to be South Sudan (even though he has never lived there).
The Tribunal will consider the extent of impediments if removed to another country later in these reasons.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. There is no such evidence before the Tribunal, so this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. RYZM arrived in Australia in 2006, aged 10, in the company of his mother and sister. His father was already here. His younger sister was born in Australia. His mother is an Australian citizen by conferral, and his younger sister is an Australian citizen by birth. Mrs AK said that her older daughter is in the process of applying for Australian citizenship. Mrs AK said she did not know whether her estranged husband had applied for citizenship because they were not in contact. However, she confirmed he is a permanent resident and lives in Melbourne.
The Applicant attended school in Australia and undertook a Certificate II in Construction at TAFE. As mentioned above, he worked briefly for a large supermarket chain. He agreed he has not had other employment. His evidence, which was not contested, was that he used to play club soccer during his teenage years. He was formerly a regular attendee at his local church, as confirmed by Mrs AK and by Deacon Meat.
The Tribunal assesses that he has made some positive contribution to Australia through his sporting and church engagement, and a very small contribution through his brief period of work. He described that job as ‘cash in hand’, so it was not clear whether he paid tax. In any event, unfortunately, his relatively lengthy criminal record largely eclipses any positive contribution he has made.
He told the Tribunal that he had a number of paternal uncles in Australia and “a large number” of cousins. Mainly because the bulk of RYZM’s life has been spent in Australia, this consideration weighs somewhat in favour of revoking the mandatory cancellation of his visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 would significantly compromise the delivery of a major project or important service in Australia.
As mentioned, RYZM worked for a period of weeks wrangling supermarket trolleys for a large chain. He reported no other paid employment. On this evidence, the Tribunal does not attach any weight to this sub-consideration.
Overall, this consideration weighs relatively strongly in favour of the Applicant, because all his close family is here.
SPECIAL CONSIDERATIONS
Prospect of prolonged detention
If the Tribunal affirms the decision under review, the facts are that RYZM would continue to be liable to be detained in accordance with s 189 of the Act as a non-citizen without a visa. This would continue to be the case until one of three things happened. The first is that the Minister exercises one of his non-compellable powers under ss 195A or 197AB. The second is that RYZM is settled in a safe third country. The third is that one of the elements of s 197C(3)(c) of the Act applies: the protection finding is quashed; the Minister decides that a protection finding would no longer be made, or RYZM requests voluntary removal to the Republic of South Sudan. It is futile for the Tribunal to speculate on the likelihood of any of these things happening, in the absence of any submissions giving any views from the Respondent. The only thing the Tribunal can relatively confidently say is that it is unlikely, on the submissions made on his behalf, and RYZM’s own evidence, that he would choose to be voluntarily patriated to South Sudan.
The stark reality is that RYZM faces the prospect of remaining in immigration detention, possibly as currently in an isolated island territory of Australia, effectively cut off from family visits, with any contact limited to electronic means.
RYZM would remain in administrative detention and not at liberty should the decision under review be affirmed. It is not desirable for any person, non-citizen or citizen alike, to face uncertainty and lack of a sure outcome to an administrative process. This special consideration, therefore, weighs relatively strongly in favour of the Applicant.
Impediments if removed to a third country
The Tribunal can only make a limited assessment about what impediments RYZM might face if removed to an unknown third country. Language or cultural barriers may be present, and the third country may not allow non-citizens access to whatever social welfare net it has. The Applicant would be separated from his family, and the Tribunal is satisfied, from the affecting evidence of Mrs AK, that she is a loving mother who wants to support her son to the best of her ability, but also that she would be limited by her own financial means and obligations to her minor daughter. RYZM is a fit, young man who has some prospects, if he does not return to abuse of alcohol and learns to manage his general temper.
The Tribunal finds, given the paucity of information, that this special consideration weighs slightly in favour of the Applicant’s visa being restored.
SUMMATION
Of the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation of the visa. The primary consideration relating to family violence conduct weighs slightly against the Applicant. The primary consideration relating to the best interests of minor children in Australia weighs very slightly in favour of RYZM. The primary consideration in relation to expectations of the Australian community weighs against him.
In terms of the other considerations, the one relating to international non-refoulement obligations in principle would weigh slightly in his favour, if removal to South Sudan was in prospect, as would the extent of impediments if removed to South Sudan. The consideration relating to impact on victims is of neutral weight. The consideration relating to links with the Australian community weighs strongly, as the Respondent acknowledges, in favour of the Applicant.
In respect of the special considerations, the prospect of prolonged detention weighs relatively heavily in favour of the Applicant. The extent of impediments if removed to a third country weighs slightly in favour of RYZM.
The Direction states, at paragraph 7(2), that primary considerations should generally be given greater weight than the other considerations. In this calculus, taking into account all the relevant considerations, including the special considerations the Tribunal has identified, the Tribunal is not satisfied that the discretion is enlivened that there is ‘another reason’ to revoke the mandatory cancellation of the visa under s 501CA(4)(b)(ii) of the Act. Accordingly, the reviewable decision is affirmed.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.
I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 21 November 2022
Dates of hearing:
15 and 16 November 2022
Advocate for the Applicant:
Mr Maker Mayek
Solicitors for the Applicant:
Mayek Legal, Barristers & Solicitors
Advocate for the Respondent:
Ms Elle Tattersall
Solicitors for the Respondent:
Sparke Helmore Lawyers
Annexe
Schedule of Exhibits
R1 G documents (‘GD’) lodged on 16 September 2022
R2 Tender bundle (‘TB’) lodged on 3 November 2022
R3 CCTV footage lodged on 3 November 2022
R4 Letter from Revd. Deacon George Plech Meat, dated 4 December 2019
R5 Letter from Revd. Deacon George Plech Meat, dated 27 August 2020
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