SBMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

SBMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2827 (29 August 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/1193

General Division )
Re: SBMZ
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member B J Illingworth
DATE OF CORRIGENDUM:            29 August 2022
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In the first page, the sentence ‘The decision under review is set aside.’ is replaced with ‘Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 February 2021 and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa granted on 04 December 2005.’

At paragraph 352, after ‘22 February 2021’, the words ‘and substitutes a decision’ is inserted.
...........................[Sgnd].....................................
B J ILLINGWORTH
(Senior Member)

Division:GENERAL DIVISION
File Number(s): 2021/1193
Re:SBMZ
APPLICANT

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

Decision
Tribunal:Senior Member B J Illingworth
Date:29 August 2022
Place:Adelaide

The decision under review is set aside.
...............[SGND]..................................
Senior Member B J Illingworth
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa – where Applicant does not pass the character test – serious criminal record - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – decision under review is set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs [2019] FCAFC 185
M1/2021 v Minister for Home Affairs [2022] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
29 August 2022
INTRODUCTION

On 10 December 2019, the Applicant’s Class XB Subclass 200 Refugee visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (the Act) (the original decision). The Applicant sought a review of that decision and on 22 February 2021, a delegate of the Respondent decided not to exercise the discretion under s 501CA(4) of the Act to revoke the original decision. The original decision was affirmed.
The Applicant sought review of the delegate’s decision to the Administrative Appeals Tribunal (the AAT) and on 7 June 2021 the AAT decided there was no other reason to revoke the mandatory visa cancellation and did not exercise the discretion under s501CA(4) of the Act. The Tribunal affirmed the decision of the delegate (the first hearing).
The decision of the AAT was the subject of an appeal to the Federal Court. On 3 November 2021, the appeal was granted by consent, and the decision of the AAT was set aside on the basis that the decision was affected by jurisdictional error for failure to consider the impact of the Applicant’s removal from Australia upon the Applicant’s mother.
The rehearing of the application for review of the decision of the delegate is now before me. There was significant further evidence received by me that was not before the Tribunal at the first hearing, to which I will refer in the course of this decision. That material included a psychological assessment of the Applicant’s mother (Ms RL) dated 21 March 2022 conducted by Ms Alison Mynard, Clinical Psychologist; together with further reports and statements in relation to the Applicant together with an updated Post Release Action Plan (PRAP)[1] signed by various stakeholders involved in the treatment of the Applicant and his significant mental health issues.
[1] Exhibit C, Tab 1.
At the hearing, the Applicant was represented by Mr Michael Jones of Migrant Law and the Respondent was represented by Mr Ingmar Duldig of Clayton Utz. The Tribunal received documentary evidence, including the transcript of the first hearing, that is listed in the exhibit list, held on the Tribunal file.
Background
The Applicant was born in Khartoum, Republic of Sudan, on 15 May 1993. His family is of Dinka ethnicity originating in what is now the Republic of South Sudan. The Applicant’s country of citizenship is South Sudan.
A helpful and detailed background of the Applicant’s life before arriving in Australia which is not in dispute is contained within the report of Ms Mynard dated 5 April 2021[2] which I will summarise:
[2] Exhibit B, tab 1.
·As a child, the Applicant recalls being homeless and in poverty, living in tents and abandoned houses. He was exposed to starvation;
·He has memories of the civil war, including violence and witnessing atrocities;
·The Applicant was about six years of age when his father passed away. His father was a soldier who went to fight in the civil war but never returned. He missed his father and the contribution he could have made to his life;
·He had to walk miles to get water;
·He had four older sisters (one now deceased), two older brothers and four younger brothers. His sisters were separated from the Applicant when he, his mother and other siblings fled South Sudan and went to Egypt to seek asylum; the Applicant was then 7 years old;
·The Applicant’s mother re-partnered and two of the Applicant’s younger brothers are half- brothers from his mother and stepfather;
·They were homeless in Egypt until his stepfather found employment. They rented a small two-bedroom house. The Applicant stayed at home and helped his mother who made alcohol to sell on the street;
·The Applicant felt very unsafe particularly on the street; he was called nigger; he saw other Sudanese boys being robbed, beaten and ‘cut up’. He was anxious and scared;
·The Applicant’s stepfather physically abused him and his brothers. He saw his stepfather being violent towards his mother. When in Australia, his older brothers left home because of the stepfather’s violence.
The Applicant and his family arrived in Australia on 14 December 2005 when he was 12 years old as a dependent under his stepfather’s Class XB Subclass 200 Refugee visa.[3] He arrived with his mother and six siblings including his half-siblings.
[3] Exhibit A, page 194, Movement History. In the Respondent’s Statement of Facts, Issues and Contentions, it indicates that the Applicant arrived in Australia on 15 December 2005.
The Applicant has seven aunties and seven uncles who live in Australia and who are Australian citizens. He also has numerous cousins who live in Australia.
In 2006, the Applicant attended a language school to learn English and in 2007, he attended high school and finished year 11.
The Applicant did not complete year 12 because he was abused by his stepfather and as a result, he left home in about 2009 - 2010 when he was 16 years old. Two of his brothers had left home before him. For approximately two years, he lived on the streets or moved from house to house staying with friends or cousins. He then resided with his brother and his family, and he also moved in with his cousins for a short period of time.
After he left home, the Applicant started using drugs and alcohol. He said this was to supress his emotions. He spent time with people who were a bad influence on him.
In January 2011 when he was 17 years old the Applicant committed his first offence. He was in the company of four adult men, two youths and a woman. They had been at a bar where they met the victim who invited them back to her home. They attended the victim’s home. The victim was detained and repeatedly raped while her children were asleep upstairs.
On 5 March 2012 in the Melbourne Children’s Court the Applicant was convicted of four counts of rape and one count of assault and injuriously imprison. He was sentenced to detention in a Youth Justice Centre for 36 months. An appeal was lodged and after serving three months in the Youth Justice Centre the Applicant was released on bail pending the outcome of the appeal.
On 12 July 2012, the Office of Public Prosecutions Victoria sent a letter[4] to the Applicant advising that his appeal had been listed for mention that day at 9:30am, that he failed to appear, and the matter had been relisted for mention on 16 July 2012. The letter said that if he failed to attend on the next occasion, the prosecution will seek a warrant for his arrest and that he will be placed in custody until the appeal is finalised. It is not clear whether or not the Applicant received that letter.
[4] Exhibit A, page 414.
The Applicant failed to appear. He said that immediately following his release on bail, he was back on the street and again taking drugs and alcohol and as a consequence he did not engage in the criminal justice system.
The Applicant said that despite his regular appearances in various criminal courts after being released on bail in 2012, he was never served with a warrant for his arrest for failure to attend court and he did not serve any further time in custody as a consequence of his 2012 rape conviction.
Between 2014 and 2019, the Applicant committed a number of offences including theft, alcohol-related offending, violence, possessing methamphetamine and cannabis, driving offences and robbery and affray. He received the benefit of community correction orders which he breached. On 5 July 2019, the Applicant was dealt with for a number of offences including robbery and affray, drive whilst disqualified and contravention of community correction orders. He was sentenced to serve eight months imprisonment.
In 2016, the Applicant heard that one of his sisters in Sudan passed away from what he believed was starvation. This was upsetting and the Applicant’s drinking escalated. He does not know the whereabouts of his other sisters.
On 10 December 2019, a delegate of the Respondent mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act on the basis that the Applicant did not pass the character test and was serving a full-time custodial sentence.
Post Release Action Plan (PRAP) and Mental Health Issues
The Tribunal received statements and heard evidence from some of those professionals who have been involved in the creation and implementation of the Applicant’s PRAP. The PRAP was designed to provide ongoing treatment and support to the Applicant who has been diagnosed with Post Traumatic Stress Disorder (PTSD) and Complex PTSD together with anxiety and depression which had been undiagnosed and untreated for most of his life including when he was offending.
The authors of the PRAP say they have pinpointed the areas “that need specific attention to mitigate the impact of his trauma, to break [the Applicant’s] cycle of mental distress and self-medicating behaviour, and to lower the likelihood of [the Applicant] engaging in criminal activity.”
The PRAP identified eight areas in need of specific attention and the appropriate mental health practitioner or organisation to deliver the service. Those areas of attention are (i) Treatment for PTSD, (ii) Treatment for Anxiety and Depression, (iii) Trauma Counselling, (iv) Alcoholics Anonymous, (v) AOD Counselling, (vi) Cognitive Assessment, (vii) Employment Support, (vii) Sport and Recreation.
The authors of the PRAP have also engaged with the Applicant’s family doctor who is a signatory to the PRAP, who has confirmed that immediately upon the Applicant’s release back to the community, he will prepare a Mental Health Care Plan for the Applicant, to ensure there is no delay in accessing the necessary services.
The Tribunal heard from a number of signatories to the PRAP which I will now detail.
Mrs CA
Mrs CA is the wife of the Applicant’s cousin who provided a statement dated 2 March 2021 and gave evidence before the Tribunal. Mrs CA is a remedial therapist.
In her statement, she detailed the difficult life that the Applicant and his family endured in Sudan and that the loss of the Applicant’s father still disturbs him deeply. She said that the Applicant struggles to verbalise feelings about this loss and his emotions become too overwhelming.
Mrs CA confirmed that the Applicant’s stepfather was an abusive man and that the Applicant, his mother and siblings had to live with mental, emotional and physical abuse in their home. Not long after the family arrived in Australia, the Applicant’s two older brothers became involved in drug and alcohol abuse, and criminal offending which, she opined, had a substantial impact on the Applicant and his life choices. His older brothers were the only men in the Applicant’s life, other than his stepfather, when he arrived in Australia.
Mrs CA said that in the Sudanese culture, the oldest brother is meant to care for the needs of the family unit, but the Applicant’s older brothers failed in that responsibility. Consequently, the Applicant became responsible for the well-being of his younger siblings. He could not cope.
Mrs CA referred to her experience over the past 14 years having been involved with the Sudanese community. She described youths who engage in self-destructive behaviour with underlying issues that are not addressed when they arrive in Australia. She said families are often used to this dysfunction and so the warning signs of mental and emotional health issues go unnoticed.
Mrs CA said that she and the Applicant’s family are in regular contact with community leaders to discuss and plan their support for the Applicant upon his release. She regrets they were not more aware of the Applicant’s struggles and severity of abuse in the family home, or his declining mental health and dependence on alcohol and drugs. The family supports the Applicant and will continue to do so if released back into the community.
In evidence, Mrs CA said she has known the Applicant since about 2012 when she commenced a relationship with the Applicant’s cousin.
She knew him during the period of time when he was committing offences. During that time, she would see him at family or social events either monthly or bimonthly, but she was not aware of the issues he was dealing with at the time nor of his criminal offending. She now knows all the details of his criminal history. She was contacted by the Applicant about 2 to 3 years ago asking for help. He explained that he was in detention and began to open up about his criminal offending and his past issues.
When the Applicant contacted Mrs CA, initially she did not know what to do. She wanted to help him. It was not easy coming to terms with his criminal history when compared to the kind-hearted person she had always known him to be. She became involved and worked on the development of the PRAP and the updated version dated 17 March 2022, now before the Tribunal.
They engaged Clinical Psychologist Ms Mynard and the Applicant had an assessment by her in relation to his mental health. Ms Mynard provided a lengthy report[5] dated 5 April 2021 which detailed the Applicant’s mental health and its impact upon his drug and alcohol abuse and criminal offending. The PRAP was created in an attempt to deal with those issues Ms Mynard discussed in her report. It was also created to demonstrate to the Tribunal Member at the first hearing what was being done to demonstrate that despite his antecedent history, the Applicant’s risk of reoffending was significantly reduced and was a low risk.
[5] Exhibit B, tab 1.
Mrs CA said that there had been a lot of work including community work that had gone into the PRAP and its purpose is to make sure that the Applicant has the best opportunity in the future and that the Australian community interest is considered.
Mrs CA coordinated the engagement with Ms Mynard and also Ms Sarah Williams, the co-founder of Footprints. They engaged Ms Christine Bakopanos of Foundation House which is an organisation that deals with survivors of torture. Ms Bakopanos has managed to obtain long-term funding to care for the Applicant including whilst he is in detention and thereafter if he is released back to the community. This support Mrs CA said was important to help deal with the Applicant’s intergenerational trauma.
Ms Sarah Williams was engaged early when Mrs CA first became involved with the Applicant. The Applicant knew Ms Williams when he was a young boy and first arrived in Australia. The Applicant gave her name to Mrs CA. She was a person who housed the Applicant’s family when they first arrived in Australia because they were homeless. Mrs CA contacted her as a point of support and she quickly became involved in assisting the Applicant and being part of the PRAP. She is actively involved with supporting South Sudanese youths and understands the trauma the youths have faced.
Mrs CA also engaged organisations such as Turning Point to support the Applicant with drug and alcohol issues particularly upon his release back into the community and to help him to avoid a relapse. They can only engage with the Applicant upon his release and not while he is in immigration detention and require a mental health care plan. As I have said, the Applicant’s general medical practitioner will immediately upon his release put a mental health care plan in place so that the Applicant can then engage with Turning Point and other appropriate organisations without delay. These are referred to under heading ‘AOD Counselling’ in the PRAP.
Another heading in the PRAP is ‘Employment Support’. This is a long-term plan to address employment to ensure he has a purpose and is not idle. The Applicant has a strong desire to support his mother and younger brothers financially because his mother has a number of health issues. Ms Williams will provide him with support in obtaining employment. There is a mentoring component which provides for the Applicant giving assistance to other youths who have had similar issues to him, and in so doing, he can give back to the community.
Ms Selba Luka who is the CEO and co-founder of Afri-Aus Care Inc and a co-signatory to the PRAP has employment programs to assist the Applicant. But the first issue will be to deal with the Applicant’s mental health and drug and alcohol issues. His employment is a longer term factor once he has addressed those other concerns.
The Applicant will be supported as he engages with the various stages of the PRAP including financially. The family has discussed the possibility of finding work for the Applicant in the regional area of the state and close to where Mrs CA and her family live. This will assist in avoiding those triggers, including engaging with old associates, that contributed to his drug and alcohol use and consequent offending.
The implementation of the PRAP has already commenced. The Applicant is receiving counselling now through Ms Mynard and Ms Bakopanos. Mrs CA said upon his release, she believes the Applicant will continue to engage with the PRAP. His criminal offending, drug and alcohol abuse and homelessness were features of his life, that he was dealing with alone. Others were not involved and aware of his issues. He has had trust issues in the past but has now engaged with this PRAP because of the support that he now has around him. Previously, through the court system, he was given a phone number to ring of someone he did not know, with no support, and the system failed. The Community Corrections Orders were well intended but at that time he was a homeless drug and alcohol addict, so his mind set was not on self-improvement. She said he was in damage control every day. Now he is sober with a full and active support network that he has never had before. Nor has his family had this support available.

In cross-examination, Mrs CA was asked about the funding Ms Bakopanos was given now and into the future. She said it was in the nature of a grant and she has been able to get permission to see him whilst in detention and prioritise his care when released. It is also part of building a rapport with the Applicant at the moment which is vital.
Ms Mynard and Ms Bakopanos both have clinical psychology backgrounds, but Ms Bakopanos is from a trauma specific background and dealing with those from a refugee background. She will deal with the Applicant’s issues as a youth. Her role is different to Ms Mynard who is more general in her treatment and who is much closer with the Applicant at this point in time. Ms Mynard has had more consultations with the Applicant.
The PRAP is not a short-term plan. Drugs are readily available in immigration detention. At the moment, the Applicant has steered clear of drugs, alcohol or violence while he had been on Christmas Island. He does not seek pharmaceutical drug relief. His appointments with Ms Mynard have particularly assisted him in maintaining that abstinence. He has not missed an appointment with her, and he is very engaged, which speaks to his personality and character.
The sexual offending was isolated, and the Applicant has not expressed any propensity or desire to engage in similar offending. Ms Mynard has assessed him as a low risk of reoffending. Over the period of time since his sexual offence when he was affected by drugs and alcohol, there has been no suggestion of similar offending. The PRAP therefore does not target his sexual abuse but targets his mental health and drug and alcohol abuse which has been a major contributor to his offending.
As for propensity towards violence, Mrs CA said that the environment that he lived in was violent company and he was also a victim of violence. If he is getting the help that is targeted in the PRAP which includes cognitive behaviour and healthy thoughts, that will play into those impulses. He is not violent when sober. His offending is all to do with alcohol. While he has been in detention at Christmas Island, he has remained sober and has not been violent.
Addressing his violence is more to do with his alcohol abuse treatment. His drug and alcohol abuse if renewed would give rise to an elevation in the risk of reoffending, but his abstinence from drugs and alcohol while in Christmas Island is testimony to his determination not to engage in drugs or alcohol in the future.
As for employment in an industry involving, for example, the service of alcohol as one of his responsibilities, that would not trigger his return to alcohol use. However, being around other people consuming alcohol would be a trigger and Mrs CA said that she had discussed this with the Applicant.
Ms Williams
Ms Williams is the Co-Founder of Footprint Enterprises Inc. which she says was founded in 2008 “to create spaces to bring about social change through the creative arts.” She has undertaken a PhD in the school of humanities and social sciences with particular reference to young South Sudanese people and is in about to receive her doctorate. Ms Williams provided two letters to the Tribunal both dated 4 March 2022, namely (i) a joint letter with Dr William Abur directed to current issues in South Sudan[6], and (ii) a letter under Footprints letterhead also dealing with issues in South Sudan but also with regards the Applicant and his personal circumstances.[7] Ms Williams is a joint signatory to the PRAP.
[6] Exhibit C, tab 5.
[7] Exhibit C, tab 4.
Under PRAP heading “Employment Support”, she referred to the employment support the Applicant will receive including the assistance of those who deal with youths who have faced the criminal justice system.
The Applicant has undertaken some training which will assist him in obtaining employment and Ms Williams can assist in directing the Applicant to the relevant employment services including with an African organisation who will provide employment support. She confirmed the roles that other signatories will play consistent with the evidence of Mrs CA.
Ms Williams also detailed how she can support the Applicant to pursue a trade or apprenticeship. Each signatory has ensured that the relevant services for which he or she are responsible, will be available to the Applicant; for example, Ms Bakopanos has done this and has engaged with the Applicant on a number of occasions to ensure the provision of ongoing support.
Ms Williams, Ms Bakopanos and the Applicant’s aunt have met to discuss how to address the Applicant not being influenced by family members, and in particular his older brothers, who introduced him to drugs and alcohol at an early age. It is proposed that if he returns to the community, he will live away from the suburbs and avoid contact with his former peers with whom he offended.
The signatories to the PRAP are well aware of the various programs which are available to the Applicant which may include dealing with recidivist violent offending and will direct the Applicant to the appropriate course and support him in its completion. There are immediate aspects to the plan that have already been put in place and will continue, in addition to the longer-term aspects of the PRAP.
Ms Williams was also asked her opinion about the risk of re-offending. In her opinion when the Applicant arrived in Australia, he was a child and he faced family violence and very troubled years. He is now past the adolescent age and he is more mature. His family and members were not aware of his issues and turmoil. Those family members are now very aware as is the South Sudanese community. He is not alone now, he is no longer homeless and he has significant support.
Ms Alison Mynard
Ms Mynard is a Clinical Psychologist who agreed to provide an assessment and report in relation to the Applicant. She provided a report dated 5 April 2021.[8] Ms Mynard was also consulted by the Applicant’s mother and she provided a report dated 21 March 2022 to which I will refer later. Ms Mynard is a signatory to the PRAP.
[8] Exhibit B, tab 1, pages 1-17.
Report dated 5 April 2021
Ms Mynard is trained in Cognitive Behaviour Therapy, Scheme Therapy, Motivational Interviewing and Sensory-Motor Psychotherapy. She is also a qualified Drug and Alcohol Counsellor. She has a special interest working with people who have a history of complex trauma and also specialises in forensic and comorbid substance abuse issues.
In her report dated 5 April 2021, she received background information and a history of the Applicant that was consistent with the evidence before the Tribunal. She detailed his tragic life in South Sudan and Egypt and that after he came to Australia, the Applicant attended school for the first time. For the first year he attended English language school and thereafter attended year 7 high school. He had difficulty with schoolwork and received no assistance from home. He left school at the end of year 10 when he left home. He was sixteen years old. First, he moved to his brother’s house, but he subsequently became homeless.
Ms Mynard provided a detailed history of alcohol and drug abuse. When he used methylamphetamine, the Applicant could not remember what he had been doing such as fighting with people. She also reported the Applicant had been in a relationship in which his partner became pregnant, but they separated. Thereafter, she gave birth to a boy who the Applicant believes is his biological son. He has not had contact with his former partner or son and does not currently know their whereabouts. Ms Mynard confirmed the Applicant had since been in a relationship for four years. His partner lives in Melbourne and there is a child from the partner’s previous relationship.
Ms Mynard described the Applicant’s presentation. He engaged well but his mood was low and he became “quite dissociative when [Ms Mynard] asked questions about his trauma history.” She estimated his cognitive functioning was low average, which was influenced by little early educational experiences and learning difficulty due to severe exposure to early traumas. The Applicant reported drug induced psychosis but had no lingering symptoms since abstaining from drugs. His insight into his offending behaviour was at that time moderate, and he was not aware of treatment options available to him. As for his offending, his judgement was impaired, impacted primarily by his alcohol intoxication, his chronic and severe mental health issues, and drug use.
In conducting a Trauma Assessment, the Applicant reported exposure to war related trauma as a child, poverty and homelessness, traumatic loss of his father and physical and mental abuse by his stepfather for much of his late childhood and early to mid-adolescence.
Ms Mynard opined that the Applicant’s symptoms of PTSD had been lifelong and chronic. Psychosis and drug and alcohol abuse contributed to lack of trust in others. He satisfied the diagnostic criteria for PTSD and Complex – PTSD (CPTSD). The latter resulted from prolonged and repeated experience of interpersonal trauma with little chance of escape from his abusive stepfather. The Applicant had difficulty regulating affected impulses such as self-destructiveness and referred to a chronic sense of guilt and responsibility with difficulty trusting people, hopelessness or despair with difficulty learning and developing a sense of self.
Ms Mynard detailed at length the Applicant’s history, and risk assessment. The historical risk factors were primarily associated with childhood and adolescent factors which included violent offending, antisocial behaviour, substance abuse issues, mental health issues in a trauma history. At the time of the assessment and taking into account that the Applicant had for some time been in custody or detention, he was not now exhibiting many risk factors. His mood had improved as had his ability to participate in programs. His education had improved. She opined that the Applicant’s mental health issues had been undiagnosed and untreated, and his alcoholism and drug abuse were his own attempts at self-medication to address his symptoms.
Ms Mynard opined that the risk of sexual reoffending was very low, and the risk of violent offending will be moderate to high if he continued to consume alcohol at a problematic level. His risk of violence is reduced if, when returned to the community, he abstains from drug and alcohol use. Ms Mynard recommended various counselling and treatments which would reduce his risk of violent offending and if he engaged in such treatments and rehabilitation measures his risk of reoffending would reduce significantly.
Ms Mynard opined that the Applicant was very vulnerable given his circumstances in South Sudan and Egypt and although his environment was improved when he came to Australia, he did not feel safe, felt threatened and unable to protect himself with no adult figure to protect him. He ran away from home and this sent him back into surviving on his own, with housing instability, feelings of displacement and disconnection. He struggled with PTSD and CPTSD as well as addiction issues from his adolescence and throughout his adult life.
Ms Mynard detailed a number of recommendations including treatment options to assist the Applicant which form part of the PRAP.
Ms Mynard’s Evidence
Ms Mynard confirmed the Applicant’s expressed desire to continue with the treatment recommended under the PRAP. The treatment has already started and is ongoing. At the time of the hearing, they have had six sessions by telephone and video link. Ms Mynard said they have been working on the Applicant’s verbal skills and capacity to absorb information, on his cognitive behaviour which helps determine best practice for ongoing engagement, building trust and rapport, and building safety in both the environment and in the therapeutic relationship. If the Applicant is returned to the community then that is when trauma therapy will be developed in a face-to-face environment, that in turn will see changes in his mental health.
Ms Mynard confirmed there have been positive indicators so far and she has introduced other developmental processes such as his core beliefs, into the therapeutic consultations. He is engaging well in the process.
They have also discussed his alcohol and drug problems. Ms Mynard was previously a drug and alcohol counsellor, so she has been dealing with those issues as part of the therapeutic process which has meant that the Applicant does not need to see a separate clinician. She said his drug and alcohol use had been a method of self-medicating his trauma and psychological issues. Together they have been dealing with building other positive coping strategies and expressing emotions and management of his symptoms without reverting to drugs and alcohol. She said that there are temptations on Christmas Island, and he seems to have matured, and now has direction in his life which is a positive for him. Ms Mynard will also introduce Eye Movement Desensitisation and Reprocessing (EMDR) into the therapy which deals with reprocessing trauma events and long-term memory.
In response to the Tribunal, Ms Mynard said that alcohol is a depressant, and it would dull down the stress and anxiety that the Applicant was suffering, but when not affected by alcohol the stress and depression would elevate. The treatment replaces the function alcohol has played in dealing with stress and anxiety.
If the Applicant were to return to live with his mother, it will likely be a benefit for both of them. With support, it will enhance their mutual feeing of safety and will support each other in the pursuit of ongoing treatment.
Ms Mynard said that Mrs CA has brought the various signatories of the PRAP together, but Ms Mynard will be involved in the long term and see the Applicant through the ups and downs of life.
The Tribunal referred Ms Mynard to the Applicant’s demeanour in giving evidence and that on occasions he would remain unusually silent and not answer the question. This she said was possibly a manifestation of his mental health condition but also indicative of his cognitive deficits. With his mental health condition and CPTSD when anxious or feeling overwhelmed, the brain will shut down and fail to comprehend what is going on. Ms Mynard has also tested for cognitive deficits. The Applicant does have deficits in verbal comprehension, comprehending complex questions is difficult for him and receiving multiple pieces of information, processing it and then responding to it can also be difficult for the Applicant. The Applicant also struggles with working memory which is part of his PTSD. These issues are overcome with appropriate treatment having regard to what is best for him as a learning process.
In cross examination, Ms Mynard said she was not surprised that distressing questions needed to be repeated to elicit an answer. He needs time to process the question and provide a response. With PTSD memory will be an issue because the brain wants to avoid thinking about the topic and will delay in bringing the information to the forefront of the mind and then respond.
The Applicant does not have intellectual difficulty or impairment, but he struggles to focus on verbal information due to trauma and lack of educational experiences. As English is not his first language, this too may contribute to the delay in processing and providing any response.
It is not easy to identify how long the treatment will take. It depends on the individual. But if he is in a stable and safe environment when dealing with the therapy, within 6 months, Ms Mynard opined that she would expect to see some significant shifts in the processing of his trauma and improvement in his mental health.
The therapeutic relationship is important in developing trust and ensuring the improvement in CPTSD. Video consultation and telephone consultation is more difficult and in-person consultation is more effective. Christmas Island is not conducive to trust and safety and the therapeutic treatment will be more effective when conducted face-to-face. A sense of safety is important. But there are techniques which are able to be conducted whilst the Applicant is in detention.
Ms Mynard could not speak to the therapeutic services available in South Sudan.
Counsel referred to the first hearing and Ms Mynard’s opinion that the Applicant was of low risk with regard to sexual offending and moderate risk of violent reoffending if he consumes alcohol. Ms Mynard said that her opinion, with regards to sexual offending being a low risk, that has not changed. It is the lowest risk level she could think of. Over time he has matured with self-reflection and self-monitoring, and the reduction of risk is continuing as they go through therapy. As for the assessment of moderate risk for driving and dishonesty offending, he has undertaken steps with regard to his emotional and mental health issues, hence this has lowered his risk.
Ms Mynard said that he now has greater awareness in regard to the offending and those factors including substance abuse and peer pressure that impacted upon the offending. The fact that a person does not have insight into the offending including issues of consent in a sexual context, does not impact upon the question of risk. Part of the therapy is awareness and insight. If it became an issue during the PRAP then that would be included in the treatment regime and Ms Mynard would refer him to an appropriate program.
If he does not abuse alcohol or substances he would be in the lowest category, and if he is engaging in mental health therapy, it would be very very low.
Ms Bakopanos
Ms Bakopanos provided a report dated 17 March 2022[9], gave oral evidence at the hearing and is a co-signatory to the PRAP.
Ms Bakopanos’ Report
[9] Exhibit C, tab 3, pages 12-16.
Ms Bakopanos is a Senior Practitioner Counsellor with Foundation House and a registered psychologist with over 15 years experience in assessment and treatment of torture and trauma victims, asylum seekers and refugees including young people who have suffered trauma. Foundation House works very closely with other partner agencies including Youth Justice and Corrections supporting young people and young adults from refugee backgrounds who have experienced trauma impacting upon the person’s mental health.
Ms Bakopanos was first contacted in April 2021 to discuss the Applicant and provide support with regards his mental health and trauma. Foundation House received a formal referral in February 2022, which was followed by a video meeting in March 2022 with the Applicant and Ms Williams. The Applicant consented to counselling and support.
Ms Bakopanos under heading ‘Mental Health and Psychological Functioning’ said the referral to Foundation House indicated the following:
·intense/persistent emotional distress
·fears of going out or other fears
·severe social withdrawal or appears uncommunicative
·repeated expressions of hopelessness
·on alert for things going wrong
·alcohol or substance abuse
·persistent and severe sleep difficulties
·OCD patterns and behaviour
·night terrors
Under heading Treatment Approach and Goals, Ms Bakopanos explained the intended close working relationship with the Applicant’s support network to assess, monitor, and treat his mental health and trauma symptoms, and the provision of specialised trauma counselling on a fortnightly basis for at least 12 – 24 months. She has worked with complex trauma victims for up to four – six years. Counselling will develop in the Applicant, a deeper understanding of his childhood and adolescent trauma experiences prior to, and after his arrival in Australia, and the impact that has had on his mental health and related issues. This will provide assistance in gaining employment, healthy relationships and improve the Applicant’s well-being.

Ms Bakopanos also explained the counselling would assist the Applicant with strategies to maintain emotions and behaviour and to reduce use of alcohol and drugs and rebuild and reconnect with his family, community and faith.
The Applicant expressed interest in commencing trauma counselling whilst in detention and at the time of the report that would be put in place. It was intended that upon release into the community, there will be a continuity of care with fortnightly face-to-face counselling appointments at Foundation House.
Ms Bakopanos’ evidence
Ms Bakopanos said that she had known of the Applicant’s situation for approximately 12 months, and it was only in 2022 that she became engaged in his treatment. She affirmed the contents of the report and said that trauma focused counselling will contribute to the well-being of the Applicant’s including his self-awareness and self-understanding, emotional and psychological maturity and psychological functioning, and with other treatments may reduce his alcohol use and subsequent antisocial offending behaviour. She has observed in the Applicant a real willingness to engage with her which is encouraging.
In Ms Bakopanos’ experience, youths who are the victims of trauma and who engage in the process demonstrate improvement.
The Applicant has had the opportunity to be away from his former peer group and lifestyle. In custody and detention, he has had the time to think and reflect and has expressed a real willingness to help other young people who may have experienced similar problems resulting in dysfunction.
It is proposed that should the Applicant be returned to the community, he will undertake trauma counselling at Foundation House on a regular basis in conjunction with the other service providers who will be working closely with the Applicant.
Ms Bakopanos was referred to the ‘Paragraph B Treatment for Anxiety and Depression’ in the PRAP which will be undertaken by Ms Mynard and Ms Bakopanos, and ‘Paragraph C Trauma Counselling’ with Ms Bakopanos at Foundation House. Ms Bakopanos explained the treatment and how his trauma has impacted upon him and his behaviour. This will help him truly understand the trauma and its consequences and build a recovery framework which will give him a better sense of self, and deal with the shame and guilt he has expressed as a consequence of the offending.
Ms Bakopanos has already commenced the treatment having been given permission to commence trauma counselling with the Applicant such that if he is released back into the community, there can be a continuity of service with Ms Bakopanos into the future. She currently has contact with the Applicant fortnightly. She has witnessed the Applicant demonstrate a real interest in counselling and has expressed a benefit already in the treatment. His age and maturity have helped with his engagement, whereas with younger teenagers, engagement is often difficult.
Ms Bakopanos explained her treatment regime and its relationship to the other treatments. Ms Bakopanos and Ms Mynard will liaise closely to complement each other’s treatment. There is a Foundation House trauma framework that guides the work and Ms Bakopanos will draw on different therapeutic techniques such as cognitive behaviour therapy in working through the framework. Specific goals will be identified and will focus on identifying and reducing risk factors. There will be a focus on pro-social behaviour and pro-social identity.
Ms Bakopanos explained that she does not take a clinical approach but rather a trauma approach in dealing with trauma victims. This means the language used is a conversational style. She is not a clinician but is a facilitator with expertise and engages with other organisations including the Sudanese community which helps ensure the treatment approaches are suitable and appropriate for those who come from a non-Western background.
Ms Bakopanos said she will partner with elders and members of the community or the family. That will depend on the nature of those matters personal to the Applicant. The elders within the Sudanese community have been very welcoming and appreciative of the collaboration and working to support the children of their community.
To date, Ms Bakopanos has been engaging with Mrs CA but will also engage with his mother which will be an important aspect of his post-release. It is planned that there will be regular meetings with practitioners engaged in the Applicant’s care together with the Applicant and family members to assess his development and plan future progress and the roles of each in supporting the Applicant. It will be a team approach supporting the Applicant as he moves forward.
Ms Bakopanos confirmed that the PRAP is a treatment regime generally regarded as necessary to ensure the immediate, medium, and long term benefit to the Applicant and his future well-being. She has seen those released from imprisonment without a well-co-ordinated approach and without ongoing relationship or rapport, which impacts adversely upon the success of a plan. The Applicant’s PRAP has involved a lot of work and preparation and building a strong team of service providers who can and will work closely together in the immediate, and then ongoing post-release, if the Applicant is returned to the community.
Ms Bakopanos is not aware of the services available to the Applicant if he were returned to South Sudan. She said Ms Williams would be the person who could best inform the Tribunal about that.
In cross-examination, Ms Bakopanos confirmed she holds a master’s degree in counselling psychology. The Applicant’s treatment will deal with his trauma both before and after coming to Australia. He has a number of layers of trauma to deal with and they cannot be separated. Treatment will be directed to helping the Applicant understand all of those traumas and their respective impacts upon him. It will also include the impact of having been in custody and detention.
Ms Bakopanos said that some aspects of the PRAP may come to an end but there are many features of the plan that are very important in the longer term. For example, employment is an important factor, gaining a level of financial independence, moving into independent living. Building personal relationships means that the work will change, and some aspects of the work will finish but other aspects of the work and the relationship may go on for years. The work changes and evolves.
Ms Bakopanos confirmed the receipt of specific funding to treat the Applicant whilst in detention but if returned to the community funding his treatment will not be an issue and the work can continue as needed.
As for the risk of reoffending, this is based on Ms Bakopanos’ observation with the Applicant and his maturity. The work is at an early stage, but his demeanour and the way he reacts is encouraging.
ISSUE
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides that:
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.
The Tribunal is satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal namely (a) whether the Applicant passes the character test; and (b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
It is conceded by the Applicant that he does not pass the character test. I am satisfied that having regard to the sentence of 36 months detention imposed by the Melbourne Children’s Court on 5 March 2016 that the Applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of paragraph 501(7)(c) of the Act and therefore does not pass the character test on account of paragraph 501(6)(a) of the Act.
The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s501CA(4)(b)(ii) of the Act there is another reason why the original decision should be revoked.
When considering the exercise of the discretion in s 501CA(4) of the Act, the Tribunal is bound by subsection 499 (2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies[10].
[10] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
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.
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.
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 measurable risk of causing physical harm to the Australian community.
Australia has a low tolerance of any criminal or other serious conduct by visa Applicant’s or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, 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 sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five non-exhaustive Other Considerations which must be taken into account. These considerations include:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(iii)strength, nature and duration of ties to Australia; and
(iv)impact on Australian business interests.
I will now deal with each of those Primary and Other Considerations in turn.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the direction requires decision-makers give consideration 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.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.
The Applicant agreed that his antecedent history contained in the Criminal Intelligence Commission Check Results Report[11] were correct.
[11] Exhibit A, pages 43-45.
The Applicant’s first and most serious offence namely four counts of rape was committed in November 2011, when was still a youth aged 17 years. He was sentenced in March 2012 to 36 months detention in a Youth Justice Centre. The sentence is significant and was the maximum sentence available to the court, and I infer is indicative of the seriousness with which the sentencing court regarded the Applicant’s conduct.
The Applicant and those who were with him had been at a club and a bar drinking. The Applicant was affected by alcohol. The victim had also been drinking and was affected by alcohol. They all returned to the victim’s home. The offending occurred between 4:27am and 4:44am. This was established by video recordings contained on a telephone of one of the offenders.[12]
[12] Exhibit A, Material produced from Victoria Police – Allegation in Summary, pages 379-386.
Prior to the first hearing, the Tribunal summonsed the Department of Justice in Victoria for material however the sentencing remarks of the Melbourne Children’s Court were not produced. Unfortunately, that remains the case, and the Tribunal does not know the factual basis upon the Applicant was convicted for each offence.
The Tribunal is in possession of various media articles. They do not refer to or identify the Applicant but contain general comments about the offending and detail the Court proceedings. I do not rely on the media articles as a primary source of evidence about the circumstances of the offending. The Tribunal also received a bundle of documents from the Victorian Police as part of the Respondent’s summonsed material.[13] That material is heavily redacted but does give some indication about the circumstances of the offending and to a limited extent the Applicant’s conduct.
[13] Exhibit F.
The Applicant agreed the offending occurred with a group of other offenders. He said at the time he was drunk and that he did not know there were children in the house. His memory was that they were invited to a party and he did not know that children were going to be there. It was when he was interviewed by police that he learnt there were children in the house. He did not see any children. The Applicant agreed that one member of the group, videoed part of the events at the victim’s home.
The Applicant said he remembered some of the evening. He agreed his memory was patchy. Both he and the victim were drunk, but it was not an excuse to say he was intoxicated. He had difficulty answering questions and appeared distressed. He said he thought at the time that the intercourse was consensual. He accepted that he committed the offence and now accepts that the victim did not consent to the intercourse.
At the first hearing, the Member helpfully summarised the Victoria Police material. The contents of the material have not been challenged or contradicted by the evidence. I have read the material and agree with the Member’s summary which I will repeat:
“27. ….the Applicant was in a large group at a bar where they met the victim. The victim invited the group back to her home where her children were asleep. The males at the house were expecting a significant party, became restless and made sexual suggestions and advances to the victim. The behaviour escalated. Someone in the group filmed an indecent assault being perpetrated on the victim by a member of the group in the kitchen of the home. The victim contacted a friend to seek assistance in controlling the situation and expressed that she was scared. She appears to have asked her friend to call the police, but the friend did not do so suggesting the victim should do so herself.
28. The victim checked on her children and returned to the kitchen. At that point she was grabbed by a member of the group. She tried to push the person away. While she was pinned against the wall in the kitchen the victim was digitally raped by members of the group despite telling them to stop. The victim was dragged into the laundry, where the Applicant acted in such a way as to result in the charge and conviction for injurious false imprisonment.
29. The victim was raped in the laundry by the Applicant. The Applicant inserted his penis into vagina and ejaculated. He inserted his fingers into her vagina…”
The material also suggests that the Applicant attempted to insert his finger in the victim’s anus and that he held the victim by the shoulder while the victim was raped by another male. Subsequently the victim said, ‘that’s enough’ and was able to leave the laundry. She hid in a cupboard and called the police.
The Applicant explained that he served three months in detention and was released on bail following the lodging of an appeal. He returned to the streets and consumed drugs and alcohol. He did not abscond but did not engage any further with the courts. Despite his numerous arrests and attendances before courts thereafter, he was not served with a warrant for failing to attend upon his appeal. I accept the Applicant’s explanation.
In the first hearing, the Member described the Applicant’s offending as abhorrent and disgusting and that it degraded, humiliated and no doubt terrified the victim. I agree with that description. It was a very serious offence of its type and I infer that the learned sentencing judge must have regarded it as so, when sentencing the Applicant to 36 months in a Youth Justice Centre.

As for the offence of robbery and affray, the Applicant was referred to Material Produced from Victoria Police.[14] On page 2 of the material, there was reference to an offence of robbery at 1:20am on 21 April 2019. The alleged facts were read to the Applicant, namely the offenders were two African males and two African females. There were two victims of the offence. One victim was punched and fell to the ground unconscious. An African female then kicked the victim. An African male then took from the unconscious victim $75 and his mobile phone. The other victim had $800 and his phone was taken.
[14] Exhibit F, page 2.
The Applicant explained that on that night, he was trying to catch a taxi to a party. He was conveniently picked up by some African males that he knew. While driving to the party, they stopped the car, and the others got out and went to speak to some people. The incident occurred. The Applicant then got out of the car and checked if the person on the ground was alright. He told the others he was alright, and they left and went to the party. He said he did not hit either victim or take their money and did not know that the robbery had occurred.
The Applicant said that he was taken into custody. He pleaded not guilty to the alleged offence and remained in custody pending trial. He was subsequently advised by the court that if he entered a plea of guilty, he would receive a sentence of eight months imprisonment. Otherwise, he would remain in custody pending trial which could take a long time to be reached. He had already served 5 ½ months and entered a plea of convenience expecting he will be released in 2 ½ months. He did not know and had never been warned that his visa was at risk of cancellation.
The Tribunal received the transcript of proceedings of the Frankston Magistrates Court dated 5 July 2019. The Applicant was legally represented. The Sentencing Remarks insofar as they indicate the factual basis of the Applicant’s offending read as follows: “This is a very very significant robbery. It’s one in which of course people were hurt, assaulted. You were in company of three other people, to all varying degrees you did certain things, however in terms of sentencing you your sentenced as though you all were responsible for what not only you did, but for what the others did.”[15]
[15] Exhibit A, pages 46-55 at 54.
I have also had regard to the evidence of the first hearing. The Applicant was asked what happened. He said that it was no excuse “But at the time, I wasn’t aware of what I was doing. I was living on a – I was on drugs, alcohol and I wasn’t aware, I wasn’t aware of myself through all of this crimes and yes, I do regret it”[16]. He later said when pressed by the Member that the offence occurred in the area of the Dandenong library, that he did not know the victims, he thought the victims were Indian, and that he thought a phone was stolen. But he could not otherwise remember what happened.
[16] Transcript, page 26, lines 40-45.
The Member also referred to a passage in the Court Integrated Service Program which reads, “He reported they saw a young woman walking and the boys began to talk to her. He initially stated that he remained in the car for the entire incident. However, when asked further, he stated he had been charged because he probably would have been out of the car.” When asked if this assisted the Applicant with his memory of the incident, he said no.
The evidence before me does not assist in understanding the Applicant’s role in the offence. The Applicant’s explanation before me has not been challenged, but his evidence at the original hearing is also inconsistent with his evidence before me. The passage referred to in the Court Integrated Service Program is similar to the Applicant’s evidence before me, but the sentencing remarks do not reflect the Applicant’s evidence that he was a bystander whilst others committed the offence.
It is not the function of the Tribunal to relitigate the criminal proceedings nor go behind the factual basis upon which an accused is sentenced. The Tribunal at the first hearing, expressed concern about the absence of satisfactory evidence to understand the factual circumstances of the offending and the role of the Applicant in the offending. This Tribunal is similarly uninformed. In making the best I can of the unsatisfactory evidence before me, I rely on the sentencing remarks of the learned magistrate that the offending was serious and to varying degrees each did certain things, and each were responsible for the acts of the others. I can put the conduct of the Applicant no higher. I also note that the Applicant was sentenced to eight months imprisonment and taking into account time in custody, the Applicant had another 5 ½ months to serve pending release.
The Applicant was referred to an offence committed on 10 January 2016 when he provided a false name to the police.[17] He was asked to empty his pockets. He produced a set of Volvo Keys, and a snap seal plastic bag containing gold and silver coins. He was arrested and a ‘pat down’ search occurred, and other items were found in a ‘bum bag’ located under his jacket. The Applicant was dealt with for these offences in September 2017. He explained that at the time he was homeless and suffering with mental health issues. He said there was no excuse for the offences, but he was scared and afraid. Now he has the support of his family that he did not have at the time of the offending.
[17] Exhibit F, page 5.
The Applicant was referred to an incident on 29 August 2015 when he and another went to a boarding house.[18] They wanted to stay and argued with the victim who knew both men. I infer the victim worked in the boarding house. The victim was struck in the head but other than suffering pain there was no injury. The next night both men returned to the boarding house demanding to stay. The Applicant produced a knife and threatened to stab the victim if he tried to throw them out. The Applicant recalled the incident. It was at night. He was affected by alcohol. He was homeless. It was late and he did not know where to go to sleep. He accepted the allegations as read, occurred.
[18] Exhibit F, page 8.
The Applicant was referred to an incident when the Applicant was in prison on 8 June 2019.[19] The incident report reads that the Applicant presented aggressively towards a corrections officer and threatened to smash him. The Applicant explained that he was angry because the officer told other prisoners the offence for which he was in jail which put his life at risk. I note the record indicates that multiple prisoners referred to the Applicant as ‘the rapist’ which was the offence for which he was found guilty in 2012. This record tends to corroborate the Applicant’s evidence as to the reason he was upset. I accept his explanation, but it is no excuse for threatening the corrections officer. I also note from the first hearing evidence that the Applicant’s conduct may have been motivated to remove him to a different area of the prison.
[19] Exhibit A, page 524.
The Applicant was referred to an incident in detention on 25 December 2020[20] which is described as a minor assault. A detainee requested a second serve of the meal which was refused until all other detainees received their first meal. The Applicant had an argument with that detainee and head-butted him in the face. The Applicant recalled the incident. The other detainee was being told by kitchen staff to step away. He had tried to push in. The Applicant said the detainee was his friend, a fellow Muslim and they pray together. There was some pushing, and the detainee thought the Applicant was mucking around. The contact to the head was accidental. The Applicant apologised to the other detainee; they shook hands. They remain friends and remain in contact with each other. I accept the Applicant’s explanation.
[20] Exhibit A, page 183.
The Applicant was referred to an incident on 21 December 2020[21] in which the incident record describes the Applicant being abusive and aggressive towards kitchen staff. He allegedly said give me pork and “next time I’ll slap the dish on your face.” The Applicant said that he had an issue with the member of the kitchen staff and the way he was treating detainees. The Applicant said he subsequently sent a letter of apology to the kitchen staff member. Counsel for the Respondent referred to a natural justice letter dated 11 February 2021 in which the Applicant apologised for his conduct.
[21] Exhibit A, page 184.
I also note from the first hearing that the Applicant was dealt with for having contraband in his cell which he shared with another. It was a bong which the Applicant described as a bong shared between detainees. The Applicant admitted that on one occasion he used marijuana in detention but only on one occasion, some time in 2021 but not since.
The Applicant was asked to comment on his view about the risk of him re-offending. The Applicant said that whilst in custody and in detention, he has had the opportunity to think and reflect on his conduct in the past. He said that with the help of Ms Mynard and Ms Bakopanos and his family support, his risk is significantly reduced. Alcohol played a part in his offending. He realises alcohol has led to his offending and having previously said he would drink only on special occasions,[22] he now intends in the future to continue to abstain from consuming alcohol.
[22] Exhibit A, Personal Circumstances form, page 103-116, at 113.
Counsel for the Respondent referred the Applicant to The Department of Justice assessment dated 4 July 2019[23] which reported the Applicant was assessed as a high risk of reoffending with no insight into his offending, and he was evasive when answering questions. The Applicant was invited to comment but he could not recall that particular interview with a community corrections officer.
[23] Exhibit A, page 140.
The Applicant said at that time he was in prison having previously been homeless with no support, he felt low. Friends led him to drink, and he was a teenager. He explained that previously his family were not always there for him and he had problems with his stepfather. He moved out of home. He was homeless which led to drinking alcohol and sleeping in the street or at train stations. Now he has support of his family, he is older, nearly 29 years of age, and he has a future for himself and his family that he previously did not have.
Counsel for the Respondent referred the Applicant to his PRAP. He did not have the opportunity at the time of his first offence to engage with similar support services. He was a teenager and homeless. He was ashamed of his offending,
The Applicant agreed he has been in prison or detention since 2019 and he has not had the opportunity to test the Post Release Action Plan in the community. He last consumed alcohol before he was arrested in 2019.
The Applicant was asked about the impact his removal might have on his mother. He said they speak by telephone all the time. She has a disability and illness through the events that happened back home, and to see the possibility of her children being returned to the place that she ran away from, has an impact on her.
The Applicant said that he wants to be there for his mother and his brothers. If released, he will live with his mother until he settles down and gets back on track. He then intends to buy a house close to his mother where he and his partner can live and support his mother. His mother lives in Frankston and not around Dandenong which is the area where he predominantly committed his offending. He no longer sees or talks to those who he knew in Dandenong.
He reiterated that his first priority was his mental health. After he feels confident and has settled down, he will get a job and continue with his study. Those who provide him with support will assist in finding employment.
If he were to return to South Sudan, he said he does not know much the country. He hears about the war which is ongoing and the experience his family had and ran away from. The thought of returning is frightening. He does not speak the language very well. The war, crimes and gang conflict are frightening. He has no known relatives there and is not in contact with anyone and is not aware of any family there.
In terms of the treatment of his mental health, the Applicant does not know much about what is available in South Sudan and he will suffer harm. The Applicant is not aware of any Government officer in South Sudan who knows of or has an interest in the Applicant’s return. The Applicant did not know what a protection visa is. He has not applied for a protection visa.
The Applicant said to his Counsel in re-examination, that he was born in Khartoum which is in the north of what was then Sudan and at a time when the country was united. The Applicant has never been to South Sudan. He has no documents linking him to South Sudan. The Applicant said his father was a soldier who died during the war.
As to the Post Release Action Plan, the Applicant has already commenced counselling and started the plan.
The Applicant accepted responsibility for the offences he committed and agreed his offending was very serious.
The Applicant acknowledged the seriousness of his criminal offending and apologised for his behaviour. He had difficulty expressing himself at times and did not answer questions asked of him and appeared distressed.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that 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) provides that in assessing the risk that may be posed by the non-citizen 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;
(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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The most serious offence committed by the Applicant was his first offence namely four counts of rape when he was 17 years of age. There was no further offence of a sexual nature. His subsequent offending might best be described as predominantly street offending and violence.
When first asked by his counsel why he says the Tribunal should be satisfied that he will not reoffend in the future, he did not answer the question and appeared distressed. He subsequently said that he has been involved with counselling which he enjoys. In particular, he has engaged with Ms Alison Mynard on a number of occasions and also Ms Christine Bakopanos, Senior Practitioner, Foundation House. He looks forward to their continued engagement and their help with his mental health issues and will continue to engage with them.
I note that Ms Mynard and Ms Bakopanos are joint signatories to the Post Release Action Plan.
The Applicant said he started seeing Ms Mynard and Ms Bakopanos weekly and then fortnightly which is ongoing. He went to Christmas Island about a year ago. He started seeing Ms Mynard after that and prior to the last Tribunal hearing. He continues to see and speak to her fortnightly via computer link. She helps him with his anxiety disorder and mental health. She helped him open up and talk about his past including those things about which he is embarrassed. He intends to continue to see her if released back into the community. Albeit the success of the plan has not been tested in the community, they have started to implement some of the actions that are contained in the plan, has remained drug and alcohol free, and has not been violent while in immigration detention.
The absence of drugs and alcohol has been a benefit to him. When he now feels low, he goes to gym and does activities and engages with others in detention with whom he has a good relationship.
In respect of Ms Christine Bakopanos, he said she was more like a counsellor. He has seen her 4 or 5 times. He sees her on computer and by telephone. She helps him with his mental health and his past experiences.
The Applicant said if released, he will have the support of his family. They now know about his offender history and use of drugs and alcohol. His first priority is to engage with Ms Mynard and Ms Bakopanos to get better.
The Applicant is also receiving support from other people such as Ms Williams who is a co-founder of Footprint Enterprises Inc.[24]He also referred to his friend Malesh who is there for him.
[24] Exhibit C, Ms Williams letter dated 4 March 2022 and Exhibit B, tab 7, letter dated 11 March 2021.
If released, he wants to stay with his family namely his mother and three younger brothers. He hopes to reunite with a former partner albeit he has not been in touch with her for some time. It will be dependent upon her accepting him back. His partner has a child MW aged 6 years. He last spoke to MW and his partner the day before this hearing. She knows of his hope to renew the relationship
The Applicant said that for the past three years, he has been sober and drug free. In his statement dated 20 April 2020 the Applicant under heading “Changing my behaviour” referred to the realisation of the impact that drugs and alcohol had upon him. It made him forget about the violence and bad experiences in his life, but the consequences were much worse.
He referred to a number of courses undertaken which include traffic management, traffic control, IT, certificate in CPR, first aid in being a kitchen hand. He has also undertaken some engineering studies. He detailed his hope upon release to undertake further study. He referred to the effect his removal from Australia will have upon his mother and his fears should he return to South Sudan. The Applicant said the contents of the statement remain current.
Conclusion
The most serious offences committed by the Applicant were the rape offences committed in 2011 when he was 17 years of age. The offending was appalling and plainly serious and the fact that he was under the influence of alcohol does not mitigate his conduct. His continued offending when having regard to both the nature and frequency of his offending, must also be regarded as serious.
The Tribunal notes that in the passage of over 10 years since the Applicant committed the rape offences, he has not committed any offence of a sexual nature and his offending has been in the nature of drug offences, violence, and dishonesty at the time when he was homeless, without support from his family and when he was abusing both drugs and alcohol. Once again, it must be said that the Applicant’s drug and alcohol abuse does not mitigate his recidivist offending.

When Ms Williams went to the Juba airport, she had international protection, but an Australian Sudanese such as the Applicant would be sent to another line of international arrivals and be expected to pay bribes to be released. Ms Williams was herself detained and only with the assistance of someone linked to the country, was she able to pay a bribe and be released.
The Juba airport is some distance from the city. She explained the extreme difficulty the Applicant will face, navigating himself to the city and finding a place to eat and sleep.
More recently, Ms Williams has been advised of increase in violence, with victims being robbed or being killed with no investigation occurring. Jobs are difficult to obtain. There is a lot of corruption. There is no health service and medications are expensive. In respect of the Applicant’s mental health, treatment is non-existent. He will be unlikely be admitted to a United Nations compound and regain a refugee status which would improve his living conditions.
The Applicant’s change of religion to Muslim raises an issue because it was her friend’s religious belief which contributed to her being detained. Pursuing the practice of one’s beliefs outwardly, without harm, would require moving to a specific city where Muslim practice is accepted. Some members of Government are practicing Muslims.
Ms Williams said that the Applicant would not be a person known to the South Sudanese authorities and therefore he would not be a target upon his return, but for the reasons already detailed, he will be at risk of harm.
As for his mental health, and separate to the non-existent treatment, it is likely that the Applicant will demonstrate disassociation as part of the manifestation of his symptoms, in which he will not be able to speak or engage, particularly with someone he does not know or who understands his condition. He would not have the interpersonal skills that would be necessary to engage with others, and this adds to the various issues he will face that will place him at risk.
Ms Williams opined that the Applicant’s life expectancy will not be long should he be returned to South Sudan. He does not speak the language, and with his mental health issues, no knowledge of the country and with no ties, he will not survive.
Corroboration for Ms Williams evidence can be found in the country information produced by the Applicant. I will mention some of the reports by way of example.
In the Human Rights Watch World Report 2021, there is reference to intercommunal fighting, cattle raiding, revenge attacks between armed youth group across areas in South Sudan resulting in hundreds of deaths and displacing hundreds of thousands or people which led to the suspension of humanitarian services in some areas. In April and May 2021, armed forces killed, tortured, abducted and sexually abused civilians. Four civilians were killed in June 2021. In August 2021, 127 people including 82 civilians were killed and thousands more displaced in clashes between soldiers and armed civilians.[36]
[36] Exhibit D, tab 2, pages 3 and 4.
The Amnesty International Report 2020/2021 at page 9 reported similar conflict namely fighting including cattle raiding between ethnic groups clans and sub clans across the country. The UN Secretary-General said clashes resulted in killings of at least 600 people, 450 injured and hundreds of thousands displaced without access to adequate shelter, food, water or healthcare. Soldiers committed serious violations and abuses including war crimes killing civilians, committing sexual violence, looted civilians’ belongings, burning villages and destroyed property. At page 11 – 12, it is reported that the right to health remains under serious threat and that 56% of the population did not have access to primary health care. Public health sector was underfunded, PTSD was widespread but access to mental health and psychological support services remain extremely limited. As a result, people with mental health conditions are routinely housed in prisons.
The South Sudan 2020 Human Rights Report similarly reported significant human rights issues including ethnically based targeted killings of civilians, forced disappearances, torture in cases of cruel, inhumane, and degrading treatment or punishment; harsh and life-threatening prison conditions; arbitrary detention; motivated reprisal; arbitrary or unlawful interference with privacy; internal conflict including torture and physical abuse or punishment; unlawful recruitment or use of child soldiers; massed forced displacement along with many other human rights infringements. Although the constitution prohibits arbitrary arrest and detention without charge, the government has arrested and detained individuals arbitrarily.
The Helpdesk Report dated 16 March 2018 within the report under heading ‘Psychological disabilities/mental health’ says that conditions in South Sudan contribute to critical levels of mental health issues. In referencing research by Amnesty International, it is reported that it found armed conflict in South Sudan and torture, arbitrary detention, sexual violence, killing, and forced displacement was experienced and as a result, it has had a serious and significant mental health impact. People with mental health problems experienced social stigma. People with mental health conditions are routinely arbitrarily incarcerated in prisons even if they had not committed a crime. Mental health services are only limited, and in 2016, there were only two practising psychiatrists in the country.
Conclusion
The Applicant was born in Khartoum and has never lived in what is now South Sudan. Nonetheless, he is a citizen of South Sudan. He has no connection or family in South Sudan. He has very little language skills. He is fluent in Egyptian, having spent a number of his early childhood years living there after his family fled the Sudanese Civil War.
Having regard to the country information and the evidence of Ms Williams, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution by reason of any social group, political or military affiliation, his religion or Dinka ethnicity. As Ms Williams observed there is no impediment to the Applicant practising his religion in private or moving to a city within South Sudan where the relevant religious belief is tolerated and practiced.
The Applicant has not provided evidence which supports a claim that because of his father’s military service he has a well-founded fear of persecution.
Having considered the Applicant’s Country Information, and the evidence of Ms Williams whose evidence the Tribunal Accepts, the Tribunal is satisfied that the Applicant has a well-founded fear of persecution given he will likely face the prospect of immediate harm including detention or imprisonment immediately upon his arrival in South Sudan. Further, he will likely be exposed to violence, including risk of arbitrary detention or killing, forceable recruitment into the armed forces, being caught up in civil unrest, crime, terrorism, random kidnapping and armed conflict.
Ms Williams provided an up-to-date account of ongoing violence and corruption in South Sudan. Her evidence detailing what the Applicant will face upon his arrival in the Juba airport was compelling and there is a real risk that he will be expected to engage in bribing officials to leave the airport or face the possibility of immediate detention or imprisonment. Corruption is endemic, and intercommunal fighting in South Sudan remains a significant human rights crisis with the murder and displacement of civilians and with significant poverty. These are all aspects of Sudanese life to which the Applicant will likely be exposed and form part of his well-founded fear.
The treatment of those with mental health issues is inhumane and the Applicant will struggle to access any or appropriate medical treatment and he will be exposed to imprisonment by virtue of his PTSD, CPTSD, anxiety and depression.
Accordingly, the Tribunal is satisfied that the Applicant is owed non-refoulement obligations and this Other Consideration weighs heavily in favour of the Applicant and the revocation of his visa cancellation.
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is currently 29 years old. He has very significant health issues which I have already discussed. The country information and the evidence of Ms Williams satisfies me that the Applicant will not receive the necessary treatment from mental health practitioner to address his illness. The evidence strongly suggests that it is unlikely that he will receive any treatment at all.
The Applicant fled Sudan to Egypt when he was 6 years old and thereafter his language was Arabic. It has not been disputed that his native Sudanese language skill is poor and given the difficulties he will face should he relocate to South Sudan he will have great difficulty in engaging with the community and acquiring the necessary skill to enable him to converse in the Sudanese language.
The people of South Sudan predominantly follow a Christian belief. The Applicant has converted to Islam and as explained by Ms Williams, the Applicant may have to practice his belief in private or find and appropriate city where he can engage in the practice of Islam in the company of others. This may not be easy for the Applicant because he is unfamiliar with South Sudan and knows no one in that country. The political climate in South Sudan as previously discussed, and the fact that the Applicant will likely be perceived as a western foreigner will likely cause a cultural barrier to his successful integration into the community.
The Applicant has no social, medical and economic support in South Sudan. He did not complete his apprenticeship as a brick layer, and although he has trained in and obtained a number of certificate qualifications, it is very unlikely he will successfully find employment.
The living standards in South Sudan are not high and a large percentage of the population live in poverty. I am satisfied that the Applicant would have considerable difficulty in establishing himself and maintain even the basic standards of living of the South Sudanese community and he will likely suffer poverty as a consequence. The Tribunal is reminded that his sister died in about 2016 as a result of poverty and starvation.
The outlook for the Applicant should he return to South Sudan is bleak. The Respondent accepts that this Other Consideration may weigh in favour of the Applicant given he fled to South Sudan as a child, does not have any significant social and familial support networks in the country and it is unlikely he would have access to comparable social, practical, medical and financial opportunities that he would have in Australia. The Tribunal agrees with that concession.
The Tribunal is satisfied that this Other Consideration weighs heavily in favour of the Applicant and the revocation of his visa cancellation.
Other Consideration (c) – Impact on Victims
This Other Consideration (c) requires that decision-makers must consider the impact of the s 501 or s 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 is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
No evidence or argument was advanced in relation to impact on the victim such that it is of relevance in determining the application. This Other Consideration is to be given neutral weight.
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
No evidence or argument was advanced enlivening consideration of paragraph 9.4.2(b) and the impact on Australian business interests, in determining the weight to be given to this Other Consideration. Paragraph 9.4.2(a) is relevant which the Tribunal will now consider.
The strength, nature and duration of ties to Australia
The Applicant lost contact with his sisters when he fled the Sudanese Civil War and he has not maintained contact with them. One sister died in about 2016 and he does not know the whereabouts of his other sisters including in which country they now reside.
The whole of the Applicant’s immediate and extended family otherwise resides in Australia. In addition to his mother and siblings, and of those children to whom I have referred, he has a large number of aunts, uncles and cousins in Australia.
The Applicant has provided numerous statements and character references in support of this application. In addition to those, Mrs CA and Ms Williams, Ms Bakopanos and his younger brother BB, to which I have referred, he has also provided a statement from his mother dated 16 March 2022. The Tribunal has also received a psychological report in relation to the Applicant’s mother which I will refer to in a separate Other Consideration.
I will briefly outline those other statements.
Mr AA is the husband of Mrs CA and the Applicant’s cousin. He provided a statement dated 2 April 2021[37] and 20 March 2022.[38]He confirms he and his family’s full support for the Applicant and the revocation of his visa cancellation. He describes his family as being very distressed about the current situation. He detailed at length the extraordinary difficult life experience by the Applicant including in Australia, and his mental health and alcohol and substance abuse.
[37] Exhibit B, tab 6.
[38] Exhibit C, tab 7.
Mr AA referred to the “unimaginable suffering” to the Applicant, his mother, his siblings and Mr AA’s family should the visa cancellation not be revoked, and the Applicant be relocated whether that be to South Sudan or elsewhere. Mr AA also confirmed the contribution the Applicant will give to his younger brothers and niece and nephew should he be returned to the community.
Mr MJE who is a Youth Worker, Education Support Worker and a South Sudanese community youth leader and advocate, provided a letter dated 16 March 2022 in support of the Applicant.[39] He is one of the signatories to the PRAP. He has known the Applicant for over 12 years and opined that the Applicant’s antecedents were precipitated by history of domestic abuse, negative peer pressure and poor decision-making. He describes the Applicant as a person of good moral character, respectful of his elders, and very much loved by friends.
[39] Exhibit C, tab 8.
Mr MJE referred to the Applicant’s contribution to members of the community and youth leaders including sport and employment programs for young people suffering difficulties. The Applicant volunteered at the South Sudanese Australian Youth United annual cultural music festival. He remains in contact with the Applicant and referred to the Applicant’s expression of remorse. If released back into the community he will continue to provide the Applicant with his ongoing support.
Ms SGL is a counsellor from Afri -Aus Care Inc. who provided a letter dated 20 April 2020.[40] She is one of the signatories to the PRAP. The Applicant contacted her whilst in detention and Ms SGL has provided counselling support to the Applicant by telephone.
[40] Exhibit A, pages 161-162.
Ms SGL referred to the employment assistance that will be given to the Applicant should he return to the community and is also his engagement in sporting activities. The Applicant has also expressed the wish to take part in various programs undertaken by the organisation.
Ms SGL will undertake Culturally Specific Mental Health Assessment support and counselling and engage with the Applicant’s general practitioner in relation to mental health assessment and a Mental Health Care Plan. She has put in place psychological support and work with others to ensure the Applicant is received at home and in the community. Her organisation offers the Applicant a large range of programs which will provide him with a pathway for the future.
Mr RA provided a letter dated 6 April 2021.[41] He is a community liaison coordinator and member of the South Sudanese Community in Victoria. He has never met the Applicant but has spoken to him by telephone. He knows the Applicant’s mother. He outlined the various issues and challenges facing the South Sudanese community. He offers his support and assistance to the Applicant should he be permitted to return to the community.
[41] Exhibit B, tab 8.
The Tribunal is satisfied that the Applicant has significant ties to Australia and its community including the South Sudanese community. He also enjoys very strong ties to his immediate family and extended family members. He has spent the majority of his life in Australia, having arrived when he was 12 years old. He has no ties to South Sudan or Egypt where he resided for approximately six years as a child.
This Other Consideration weighs in favour of the Applicant and the Tribunal gives significant weight in favour of the revocation of the Applicant’s visa cancellation.
Other Consideration (e) – Impact on the Applicant’s mother
The Tribunal has received evidence about the impact the Applicant’s relocation to South Sudan would have on his mother Mrs RL. The Applicant’s mother Mrs RL provided an undated and unsigned statement[42] a statement dated 16 March 2022[43] and gave oral evidence.
[42] Exhibit A, page 169.
[43] Exhibit C, tab 9.
She was born in what is now South Sudan and as a child she moved to Khartoum. The Applicant was born in Khartoum. The Applicant’s father died during the war. She subsequently took the family to Cairo. She met and married her second husband, the Applicant’s stepfather in Cairo. They lived there for 4 to 5 years. Life was not good. They lived in a refugee camp and had no work. She was ill and had an operation.
She and her family came to Australia when the Applicant was about 9 or 10 years old. The Applicant did not know the English language. He went to school but had difficulties understanding schoolwork and he left school.
The Applicant did not enjoy a good relationship with his stepfather. She said the stepfather was not a good father to her children. He caused a lot of quarrels and was abusive towards the children including the Applicant. He did not provide for them. Mrs RL and the stepfather separated a long time ago.
In 2013, Mrs RL had a back injury which made life difficult. She was hospitalised for 18 days during which time one of her daughters passed away.[44] This news was difficult for her and her family. She continues to have back problems which limits here ability to work around the house.
[44] I have taken into account that elsewhere in the evidence, the death of the sister is said to have occurred in 2016. I do not regard the date inconsistency as detracting from the fact of her death and the impact upon the Applicant, his mother, and his family.
She has spent time in a wheelchair and cannot stand or walk for extended periods of time. She also has other skeletal problems. Mrs RL says it is difficult to do housework and care for her children and grandchildren.

Mrs RL does not have any daughters in Australia. She has three daughters but one passed away while she was in hospital in 2013. Mrs RL has been in hospital on three occasions for physical pain and stress namely 2013, 2018/19 and 2020. At the time the Applicant went into Immigration Detention, her pain became unbearable.
Mrs RL could not remember the occasion of Applicant’s first offence but when she was in hospital, she remembers the Applicant was arrested. She suffered emotionally when that occurred. When he went to Christmas Island, she was very stressed. She was concerned he would be sent back to South Sudan. When he left Sudan, he was very young, and he does not know anyone there. This possibility causes Mrs RL much stress and distress.
Counsel for the Applicant referred Mrs RL to her statement dated 16 March 2022 which reads, “Since knowing that [the Applicant] is on Christmas Island and may not come home to me, I feel like the stress got worse and worse.” She was concerned that he would pass away like her daughter. They have no one in South Sudan.
Counsel for the Applicant also referred Ms RL to the following passage, “I feel like a lot has changed in my mind and body. I am very sad and cry a lot. I feel helpless and hopeless and I am scared about the future. Over the past 18 months my pain has become a lot worse. I can’t sleep properly. I have problems with my memory, forgetting what I am doing or where I put things.” Mrs RL said that she was stressed a lot thinking about the Applicant and because she was concerned that he would not return home.
She was fearful of him being kept in detention forever, and fearful that he might be returned to South Sudan. Her stress and pain would get worse if he returned to South Sudan and it would remind her of her life there, and the reason she ran away from Sudan. Those memories she said would make her health condition worse.
Mrs RL believed the Applicant would not reoffend. He has learnt a lot and it is time for him to reform. She talks to him on Christmas Island. When she is unwell his youngest brother will ring him. She confirmed the Applicant is receiving counselling so he can change.
Mrs RL said his younger brothers need him. The Applicant brought up his youngest brother and she needs him to be with her to continue to support his brother who misses the Applicant. She needs the Applicant home. He is a good boy, he helps her.
Mrs CA was asked in evidence about the impact the continued visa cancellation would have the Applicant’s mother whether that be his return to South Sudan or was kept in indefinite detention. Mrs CA said she is not a well person. The Applicant is not the only member of his family involved with the law. It is a taboo in the South Sudanese community for mothers seeking support for fear of judgement. She was a single mother with seven sons. She had a number of issues. She opined that the effect on the Applicant’s mother is that she is struggling with the thought that he will not return. She is emotional talking about it.
The fact that the Applicant’s mother is physically separated from him is distressing to her. Further, the thought of him returning to a country that she had to flee, causes trauma symptoms and reignite her previous traumas.
The legal process has been hard for her. She completed a session with Ms Mynard. The question of support from NDIS has been raised because of her physical mobility and mental health issues.
In cross-examination, Ms RL had some understanding of the first offence, and that it involved an allegation of rape. She was aware of a drinking issue, but he never drank in front of her.
In respect her back pain she said the Applicant would assist her. Before he was imprisoned, he would do cooking, housework, washing clothes, mopping the floor cutting lawns. Since he has been imprisoned, they now employ someone to cut the grass. Neighbours helped but during the COVID pandemic it has been hard to get assistance. She said the Applicant would again help with those tasks if he returned to the community. He would also return to work. He previously worked in a factory as a labourer.
Psychological Report by Ms Alison Mynard dated 21 March 2022
The Tribunal received a psychological assessment report from Clinical Psychologist Alison Mynard dated 21 March 2022. This report was not before the Tribunal at the first hearing.
Under heading “background information” Mrs RL described a happy childhood in South Sudan. She did not have the opportunity to go to school. Her job was to help her mother with cooking and cleaning. She and her family subsequently moved to Khartoum however her father visited occasionally because he was in the military.
Mrs RL was married when she was 18. The Civil War in South Sudan worsened. She witnessed and heard of atrocities which were frightening. Her husband was in the military and she constantly worried about him. Mrs RL’s mother passes away. She feared for her own safety and in 1999 she and her husband separated when she fled South Sudan with her children. Mrs RL’s husband and father both died in the civil war.
When Mrs RL and her family first arrived in Egypt, they slept on the street in a refugee camp. They were referred to a church near the refugee camp and were able to stay at a place close to the church. Life was difficult. Children would be attacked by local people. One son was cut on the hand with a razor blade. She described a very frightening and difficult life living in Egypt.
Mrs RL lost her brother who passed away after being attacked with a machete. Her sister died in January 2020 as did her brother-in-law at about the same time. They lived in Khartoum and died from sickness as a result of living in poverty and a lack of medical care. They left four orphaned children. She has one brother still alive in Egypt and speaks to him regularly.
Mrs RL met her second husband in a refugee camp, and they had two children. She confirmed he was abusive, and they separated sometime after their arrival in Australia. One of her daughters passed away in 2013.
Ms Mynard reported an extensive psychological history and opined that she met the diagnostic criteria of Post Traumatic Stress Disorder (PTSD). She also diagnosed Generalised Anxiety Disorder and Major Depressive Disorder.
Ms Mynard opined that Mrs RL has been “adversely affected by [the Applicant’s] detention on Christmas Island and his potential deportation to South Sudan”. Her mental health has deteriorated significantly since the Applicant has been in immigration detention and she will deteriorate further if he is in immigration detention indefinitely or deported to Sudan. She reports that Mrs RL believes the Applicant would not survive in South Sudan on his own with no family support.
Ms Mynard opined that the Applicant’s current situation impacts significantly upon Mrs RL’s mental health. If the Applicant is released back into the community it would result in Mrs RL’s mental health stabilising and she will be more able to meaningfully participate in the community. She would also be better able to participate meaningfully in her own mental health treatment. The Applicant’s release back into the community will make a significant difference in her ability to control her chronic pain and improve the quality of life. She confirmed Mrs RL will assist the Applicant in accessing such supports that he requires to achieve a positive and healthy lifestyle in the future.
Ms Mynard’s evidence
Mr Mynard saw the Applicant’s mother in March 2022 for the purpose of the report. She described her presentation which was indicative of mental health issues. She confirmed Mrs RL reached the diagnostic criteria for PTSD according to the DSM V.
Ms Mynard explained the difference between PTSD and Complex PTSD (CPTSD) which was diagnosed in the Applicant. The latter involved further layers of trauma and in particular attachment trauma which can include a care giver imparting trauma on a child, in which the child develops additional trauma issues such as emotional regulation, problems self-soothing, interpersonal problems, issues of identity and self-worth. It is an extra level of a more complicating disorder. The usual symptoms of PTSD remain but there is an extra layer of chronic issues.
Ms Mynard confirmed that a person suffering PTSD will re-experience traumatic events that caused the symptoms. It is started usually by triggers such as seeing something on television. The triggers may also be unknown to a person and part of the role of the physician is to develop in the patient, awareness of those triggers and manage symptoms.
So, for example, with respect to Mrs RL, the Applicant being returned to South Sudan where her daughter passed away some years ago from starvation or extreme poverty will be a massive trigger for her as an ongoing chronic trigger and will be very debilitating for her and it will be difficult to manage the symptoms. Mrs RL has a reference point from when she was in South Sudan and Egypt and all of the trauma she experienced and lived, and she will re-experience her own trauma in addition to worrying about the Applicant and his survival. Extreme poverty and starvation or being tormented in her workplace and not knowing if she would be able to return to her children are examples of the type of trauma that she will relive. There are likely to be many traumas that Mrs RL experienced and these need to be addressed in a therapeutic setting.
The return of the Applicant to the Australian community would benefit Mrs RL because it would help her establish a feeling of safety both for herself and her son. It enables her to feel like the trauma events have occurred in the past and they have a final “date stamp” on them, so the incident is not being relived. The trauma is finished which would assist in her recovery.
Conclusion Other Consideration – Impact on the Applicant’s Mother
The Tribunal found the Applicant’s mother to be a credible and reliable witness who corroborated the Applicant’s evidence about a horrific and frightening period in their lives during the Sudanese Civil War, which included the witnessing of atrocities, the loss of her husband and close family members, and their escape to Egypt. Once in the refugee camp, she and her family continued to be the subject of abuse and lived in fear. She met and married her second husband when she was living in the refugee camp, but she and her children suffered abuse which continued when they arrived in Australia until the marriage ended.
The Report of Ms Mynard was very thorough and detailed, and I accept the diagnosis of Post-Traumatic Stress Disorder (PTSD), Generalised Anxiety Disorder and Major Depressive Disorder.
The Tribunal accepts Ms Mynard’s opinion that the Applicant’s continued presence in immigration detention and more importantly the Applicant’s return to South Sudan would have a significant and detrimental impact upon Ms RL which will likely be long term.
Accordingly, it is in the best interest of the Applicant and Mrs RL that the Applicant’s visa cancellation be revoked and I give significant weight to this Other Consideration in favour of the Applicant.
Other Consideration (f) – Indefinite Detention
The consideration of the Applicant’s prospect of indefinite immigration detention is a separate consideration to Australia’s non-refoulement obligation. The weight to be given to indefinite detention does not involve the weighing of the seriousness of the offence which is a necessary consideration when having regard to the non-refoulement consideration.[45]
[45] See VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921.
Pursuant to the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), s 197C of the Act was amended such that it is no longer a requirement that the Applicant be removed from Australia, to South Sudan, under s 198 of the Act irrespective of the existence of non-refoulement obligations.
The Applicant may apply for a protection visa which he will likely do should he be unsuccessful in this application, and he would not be removed until his Protection Visa application is finally determined.[46] Further the Respondent is compelled to assess non-refoulement claims in accordance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). Direction 75 requires that when considering an application for Protection Visa, an assessment must first be made about whether refugee and complimentary protection criteria are met before considering the ineligibility criteria.
[46] Section 198(5) of the Act: DOB18 v Minister for Home Affairs [2018] FCA 1523, [35] (Griffiths J).
Should the Applicant receive an adverse decision in this application, removal from Australia is not currently an immediate legal requirement, because as I have said, he would be entitled to have his Protection Visa application determined. Detention would also continue during the exercise of any appeal rights, third-country return options being explored, or the exercise of non-compellable Ministerial discretion considered. These options enliven uncertainty about the prospect of the Applicant remaining in immigration detention and with no identifiable end point, which is properly categorised as prolonged or indefinite detention.
Prolonged or indefinite detention will likely have a significant impact on the Applicant’s mental health and prevent the face-face therapy that is an important feature in addressing the Applicant’s mental health as described by Ms Mynard. This Other Consideration therefore weighs in favour of the Applicant and the Tribunal affords this Other Consideration significant weight in favour of the revocation of the Applicant’s visa cancellation.
There are no Other Considerations that are enlivened on the evidence before the Tribunal.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.
The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in violent offences and offences against women as reflected in Direction 90, in addition to his failure to pass the “character test”. The Tribunal is also very conscious of the Direction that the Primary Considerations will generally weigh heavier than Other Considerations. Nonetheless in the circumstances of this matter, there are a number of matters personal to this Applicant that have had a significant impact on the weight given to the various considerations and in particular the Other Considerations.
It is also relevant that the Applicant’s first and most serious offence occurred over 10 years ago, when he was 17 years of age, and was suffering from significant undiagnosed mental health conditions and self-medicating with drugs and alcohol. It is only since being in immigration detention, with the assistance of Mrs CA and others, that his mental health condition has been diagnosed, and a coordinated plan implemented to address treatment and ongoing support for his future. The PRAP and the commencement of treatment together with the role of the signatories has, and will play in the future, has been of significant importance in determining the weighing of the Primary and Other Considerations.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – is given significant weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration 2 – Family violence – is of neutral weight;
(c)Primary Consideration 3 – Best interests of minor children – weighs moderately in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(d)Primary Consideration 4 – Expectations of the Australian community – is given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(e)Other Consideration (a) – International non-refoulement obligations – weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(f)Other Consideration (b) – Extent of impediments if removed – weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(g)Other Consideration (c) – Impact on victims – is of neutral weight;
(h)Other Consideration (d) – Links to the Australian community – is given significant weight in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(i)Other Consideration (e) – Impact on the Applicant’s mother – is given significant weight in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(j)Other Consideration (f) – Indefinite detention - is given significant weight in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
The combined weight of Primary Consideration 3, Other Consideration a, b, d, and the impact on the Applicant’s mother (Other Consideration (e) and indefinite detention (Other Consideration (f) is such that they outweigh Primary Considerations 1 and 4.
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 February 2021 revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa granted on 04 December 2005.

I certify that the preceding three hundred and fifty-two (352) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

....................[SGND].........................
Associate
Dated: 29 August 2022

Dates of hearing:
  26 and 27 April 2022

      Advocate for the Applicant: Michael Jones, Migrant Law

      Advocate for the Respondent:   Ingmar Duldig, Clayton Utz

[2022] AATA 2827

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/1193
General Division	)

Dates of hearing:	26 and 27 April 2022
Advocate for the Applicant:	Michael Jones, Migrant Law
Advocate for the Respondent:	Ingmar Duldig, Clayton Utz