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

SBMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1409 (19 May 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  2021/1193
GENERAL DIVISION  )
Re: SBMZ
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:   Member M Kennedy
DATE OF CORRIGENDUM:             7 June 2021
PLACE:           Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (the “Act”), to alter the text of the decision in this application as follows:
1. At paragraph 186, to alter the text as indicated:
186. I note that the Direction itself at 9.1(3) asserts that a conclusion that a non-refoulement obligation exists does not precludes the non-revocation of visa cancellation, and posits a series of possibilities other than indefinite detention.

2. At paragraph 129, to delete the blank paragraph and thereafter reduce each paragraph number by one.
………………[Sgnd]..……………
M KENNEDY
(Member)

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

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

DECISION
Tribunal:Member M Kennedy
Date:19 May 2021
Place:Adelaide

The decision under review is affirmed.
………………[Sgnd]…………………….
Member M Kennedy
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 – validity of Ministerial Direction 90 - non refoulement obligations found – protection obligations found – tests enunciated in the Act (Migration Act 1958) – protection of the Australian community – expectations of the community – whether general principle that primary considerations should outweigh other considerations inapplicable to instant case - Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 - Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Acts Interpretation Act 1901 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs [2019] FCAFC 185
MIAC v MZYYL [2012] FCAFC 147
MIMAC v SZRHU (2013) 215 FCR 35
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
Administrative Arrangements Order
REASONS FOR DECISION
Member M Kennedy
19 May 2021
INTRODUCTION AND BACKGROUND

SBMZ (“the applicant”) arrived in Australia as the holder of a Class XB Subclass 200 (Refugee) visa (“visa”) on 15 December 2005. The applicant was 12 years old at that time. He was born in Khartoum, Sudan and is of Dinka ethnicity. For reasons explained later in this decision, I have found that the applicant is now a citizen of South Sudan.
When the applicant was 17, he committed rape, assault and injurious imprisonment in the company of other offenders against a single victim. He was sentenced to be detained in a youth justice centre by the Melbourne Children’s Court for 36 months. Through mechanisms unclear to me, the applicant served only 3 months of the sentence for that offence before being released.
On 17 November 2014, the then Department of Immigration and Border Protection issued a letter to the applicant advising him that it intended to consider cancelling his visa under sub-section 501(2) of the Migration Act 1958 (Cth) (“the Act”) and inviting his comment. The applicant did not respond, and it is possible he did not receive the letter. The Department took no further action in relation to this letter.
The applicant committed further offences between 2014 and 2019, including offences of theft, assault, robbery and affray. The applicant contravened community corrections orders. On 5 July 2019 as a result of convictions for robbery and affray and the contravention of community corrections orders the applicant was sentenced to serve an 8-month prison sentence.
A delegate of the Minister (“the respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act on 10 December 2019 on the basis that the applicant did not pass the character test and was serving a full-time custodial sentence.
The applicant made representations seeking the revocation of the mandatory visa cancellation on 11 December 2019.
A delegate of the Minister decided not to revoke the visa cancellation on 22 February 2021. The applicant applied to the Tribunal for review of the decision not to revoke the visa cancellation on 24 February 2021.
The hearing was conducted on 6 May 2021 and 7 May 2021. The applicant was represented by Mr Jones of Parish Patience Immigration Lawyers and respondent represented by Mr Duldig of Clayton Utz. The Tribunal received the documentary evidence that is listed in the exhibit list, held on the Tribunal file.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal: whether the applicant passes the character test; and whether there is another reason why the decision to cancel the applicant’s visa should be revoked.
It is conceded by the applicant (who has been represented throughout the proceedings by an experienced migration and legal practitioner) that he does not pass the character test. Having regard to the applicant’s conviction and sentence of 36 months of 5 March 2012 in the Melbourne Children’s Court for rape, assault and injurious imprisonment, I am not satisfied that the applicant passes the character test. The applicant has “a substantial criminal record” within the meaning of paragraph 501(7)(c), and therefore does not pass the character test on account of paragraph 501(6)(a) of the Act. There is nothing in the evidence before me to suggest that the fact of sentence and conviction might be disregarded on account of the applicant committing the offence as a juvenile (see subsection 501(10) 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.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by subsection 499(2A) of the Act to comply with any directions 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”) has application.[1]
Application of Direction 90 (8 March 2021)
[1] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Although not developed further in oral submissions, the applicant questions whether the Direction has been validly made. In this regard, it is submitted in the applicant’s statement of facts issues and contentions that the Direction was signed by the Hon Alex Hawke, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 8 March 2021. It is submitted by the applicant that at that time, the Administrative Arrangements Order then in effect (1 February 2020) stipulated that the Minister administering the Act is the ‘Minister for Home Affairs’. The respondent points out (correctly in my view, noting the text of the Administrative Arrangements Order) that the Administrative Arrangements Order provides for the Department of Home Affairs to deal with immigration and migration matters, and provides for a “Minister” (whose title is not specified, and who is not referred to as the ‘Minister for Home Affairs’) to oversee the Act. The respondent submits that the Acts Interpretation Act1901 at section 19 provides that where an Act refers to the “Minister” it includes any of the Ministers administering the provision on the relevant day. It is further submitted that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (appointed on 22 December 2020) is one of four Ministers with responsibility within the Home Affairs ‘portfolio’. The issue therefore appears to be whether the reference in the Administrative Arrangement Order to ‘the Minister’ is capable of authorising any one of the four Ministers to exercise powers under subsection 499(2A) of the Act. In my view, conscious that my view as an administrative decision maker cannot be determinative on the subject, and accepting that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is one of four Ministers with responsibility for the Home Affairs ‘portfolio’, the terms of Administrative Arrangements Order do authorise that Minister to administer the Act, and it follows that the Direction was validly made. As I accept the Direction as a Direction made under subsection 499(2A) of the Act, I am bound to comply with it.
Overview of the Direction
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction 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 applicants 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 sections 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 Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the ‘Other Considerations’ being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[2]
“…Direction 65 [a predecessor Direction expressed in similar terms to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[3]
[2] [2018] FCA 594.
[3] Ibid, [23].
In my view, for the reasons that follow, the observation and principal enunciated in Suleiman in that regard has particular and critical application to the circumstances of this matter and places the outcome finely in the balance.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind 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 this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this consideration, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
The applicant’s sexual offending
I turn to first consider the most serious offending of the applicant: the conviction for four counts of rape, assault and injurious imprisonment.
Despite Tribunal summonses being issued to the Department of Justice in Victoria, I do not have records in the nature of judicial sentencing remarks available to me. The applicant’s representative was concerned about the presence of media articles in the Tribunal papers (the G-Docs) regarding the offending. I agree that media articles ought not be the primary source of information about the nature of the offending, but the articles in question essentially recount proceedings in Court and are consistent with prosecution notes available to the Tribunal in SM1.[4] I am conscious the articles do not refer specifically to the applicant but about the incident generally. The prosecution notes are difficult to follow given heavy redactions applied. I have had to assume that some redacted identifying details are identifying the victim, and other redacted portions from context identify other offenders. The applicant did not contradict any aspects of the prosecutions assertions or materially add to my understanding of the circumstances of the offending in his oral evidence.
[4] Respondent’s Bundle of Summons Material (SM) 1.
From the prosecution material, the circumstances of the offending are that 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 two 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.
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.
The victim was raped in the laundry by the applicant. The applicant inserted his penis into her vagina and ejaculated. He inserted his fingers in her vagina. He inserted his fingers into the victim’s anus. A further count of rape appears to relate to the applicant holding the victim by the shoulder while she was raped by another offender. A media article reports that the court dealing with the adult offenders was told that the victim was raped 10 times in the laundry. The applicant was convicted of 4 counts of rape.
Someone eventually said, ‘that’s enough’ and the victim was able to leave the laundry. She hid in a cupboard and called the police.
I have mentioned above that despite the applicant’s conviction and sentence to 36 months in youth detention, the applicant has stated he served only three months. The circumstances as to how that came to pass are not known to me. I note however that The Age reported on 12 September 2012[5] that three teenagers who had been convicted and jailed for three years appealed against their convictions and sentences and were granted bail. One of the teenagers failed to turn up to the appeal hearing and a warrant was issued for his arrest. Court records available to me at SM3[6] and onwards indicate that this must have been the applicant. The records available to me and the assistance and enquiries of both parties in the proceedings cannot explain how it came to pass that the applicant was not apprehended to serve the remainder of his sentence. I have no records of any parole grant (there is no non-parole period or similar mentioned in the records of sentence), judicial variation to the sentence or administrative or other pardon or similar.
[5] G-Documents (G) 2, Attachment C2, p 76.
[6] P 153.

The Age article states that the maximum sentence for rape in the Children’s Court is two years for defendants aged between 15 and 20, except when there are multiple counts when the maximum is three years. It appears the applicant was sentenced by the court to the maximum penalty. I do not know how it came to pass that the applicant only served three months of that penalty.
The applicant’s offending was abhorrent and disgusting. It degraded, humiliated and no doubt terrified the victim. It was apparent from the prosecution records that the victim was very scared throughout the attack. I view the offending as particularly and gravely serious. Nothing more can be said about the circumstances of that offending. It is clearly unsatisfactory that I do not know what the sentencing judge made of the circumstances when pronouncing the sentence, but given the maximum sentence available appears to have been passed by the sentencing judge, I am comfortable to infer that the sentencing judge also viewed the crime as gravely serious.
Subsequent violent offending
I turn to consider the other instances of offending engaged in by the applicant. I have minimal information beyond the fact of the convictions. The convictions include violent offences such as assault, assault in company, assault with instrument, unlawfully beat another person (dealt with on 20 September 2017), robbery and affray (dealt with on 5 July 2019), and other offences such as multiple instances of theft, wilful damaging of property and possession of methylamphetamine.
I am conscious of the status of the documentary information available to me and recognise that allegations in a prosecution brief, particularly recounting the circumstances in which outstanding warrants have been issued, are a poor source of information about the circumstances of offending. A Victoria Police Preliminary brief[7] recounts various incidents. I infer that information from the document was presented to the court and as a result some of the convictions evident on the criminal antecedent report have been subsequently entered.
[7] SM2, p 94.
An incident on 21 May 2017 is mentioned where Police attended a large brawl at a bar in Dandenong. A witness told police that the applicant (unknown to the witness) had kicked a Police vehicle’s side mirror. When the applicant was approached, he ran from Police but was apprehended.
The Preliminary brief records that upon his apprehension a number of outstanding warrants were identified, and details of circumstances giving rise to those warrants are mentioned. The document details the applicant failing to attend on bail in 2015 in relation to circumstances where a vehicle was stolen from a garage at a retirement home, and the applicant had entered the victim’s home. Another warrant pertained to ‘intentionally causing injury, recklessly causing injury, unlawful assault and failing to answer bail’. The circumstances recount the applicant (in 2015) staring at female bar staff in a threatening manner and refusing requests to leave the venue before assaulting a security officer. A third warrant pertains to an assault in company, unlawful assault, assault with instrument in relation to August 2015. The circumstances recount the applicant entering the victim’s home punching the victim’s television, then the victim, and then threatening the victim with a knife. In July 2019, the document recounts the applicant being searched by Police and being found with banking cards in the names of other people. Details of a warrant recount that in January 2016 the applicant was breaking into vehicles and stealing items from the vehicles. The applicant was searched by Police and found to be in possession of the stolen items.
On 5 July 2019, the applicant appeared in the Frankston Magistrates’ Court. The extract available to me appears to commence with recognition or prediction that the applicant would be spending a lengthy period in prison because the Office of Corrections had concluded he was not suitable for a community corrections order. The proceedings are difficult to follow from the transcript, but the applicant’s counsel in the proceedings recounts the applicant’s offending history, and then the Magistrate notes the more serious offences of robbery and affray, describing those offences as more serious indictable offences.
From the proceedings, glimpses into the circumstances of the robbery and affray offending can be seen, but that is all. After sentencing the applicant for breaching community corrections orders and convicting, but discharging, the applicant for driving an unregistered motor vehicle, the Magistrate turned to those offences. The offending took place at night at the Dandenong library. The applicant had pleaded guilty to those charges. The Magistrate observed that the applicant’s offending since 2012 had generally been marked with driving or property offences, but the instant offence was a ‘very, very significant robbery’. The Magistrate observed ‘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’re sentenced as though you all were responsible for what not only you did, but for what others did’.[8]
[8] G2, Attachment B, p 47.
What those things actually were are not recounted by the court. I asked the applicant if he could explain what actually happened in the offending that resulted in his imprisonment. The applicant initially said he could not remember, but my perception is that the applicant was not interested in telling me what had happened. When I pointed out some of the observations made by the Magistrate, the applicant appeared to then confirm that someone was injured and gave some further details in response to my very direct questions when pressed. For example, the applicant told me the victim was male and ‘was Indian’, the victim was not known to him, he stole a mobile phone from the victim, and the victim was attended to by an ambulance – but the applicant said he could not remember the nature of his injuries or what had inflicted them.
I note the violent nature of the applicant’s offending and that it was perpetrated on a member of the public unknown to him. I note that violent offending was carried out in company. I note that the last-mentioned instances of offending resulted in injury to the victim and was observed by the sentencing magistrate to amount to a ‘very, very significant’ robbery.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or 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 the Australian community.
As mentioned above, the applicant’s rape convictions are very serious indeed, constituting violent offending of a sexual nature against a woman. I am aware of no feature of the applicant’s conduct in this regard that might tend to mitigate the abhorrent nature of that offending. Features of the offending tend to emphasise its gravity; namely that it was perpetrated by a group upon a single victim in her own home, and children were present in the home while the offending was perpetrated.
The sentence imposed by the Children’s Court is very significant, and on the information contained in the media articles appears to be the maximum penalty available.
The applicant’s subsequent violent offending is also very serious. The conviction for robbery and affray involved a serious robbery on a victim in a public place, resulting in some form of injury. I note that offending also appears to have been committed upon a victim by the applicant who was in a larger group.
I have had regard to the types of crimes or conduct described in sub-paragraph (b) of paragraph 8.1.1(1) of the Direction as crimes considered by the Australian Government and the Australian community to be serious. I note that the applicant’s offending does not fall into any of the named categories.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. I am conscious that the imposition of a custodial term is regarded as the last resort. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
As mentioned above, I note that the sentence imposed by the Children’s Court for the rape and related offences reflects the seriousness of the offending. The sentence imposed by the Magistrates Court for the robbery and affray I note arose in part because the applicant had failed to comply with a series of community corrections orders. The Court’s decision to impose a custodial term on that occasion also reflects the seriousness of the offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
I consider the applicant’s offending as reflected in his criminal antecedent report is sufficiently frequent such that no credit is reflected upon him. I note the applicant was dealt with for violent offending in 2017 and 2019, and theft in 2012, 2014, and 2017. The cumulative effect of repeated offending involving violence, is highly adverse in the applicant’s case.
The applicant’s criminal history does not show any trend of increasing seriousness for sexual offending. Indeed, there are no further instances of sexually based offending after the rape. I do however perceive an increase in the seriousness of the applicant’s violent offending, progressing from assault and culminating in ‘a very, very serious robbery’ and affray.
There is no evidence that the applicant has provided false or misleading information to the Department. Despite the Department commencing to consider visa cancellation on character grounds in 2014 (albeit not pursuing that process to any conclusion), I am not satisfied that the applicant was relevantly warned about the consequences of further offending. In this regard, I note the applicant stated he did not receive the letter commencing that process.
In my view, having regard to all the evidence available to me about the applicant’s offending against the factors identified in 8.1.1 of the Direction, the applicant’s conduct must be viewed as very serious indeed. This consideration weighs very heavily against revocation of the cancellation of the applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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 posted 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.
Nature of harm should the applicant engage in further criminal or other serious conduct
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, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
In relation to the nature of the harm should the applicant repeat his sexually-based offending, I view the nature of the harm caused by offending of that nature to be so grave that any risk that it may be repeated, even a low risk, is unacceptable. I consider the offending so serious that the Australian community would have no tolerance to being exposed to even a low risk that offending of that nature might be repeated.
In relation to the instances of the applicant’s violent offending described above, I am also of the view that violent acts of robbery and affray in particular are of a nature that any further conduct of that nature would be unacceptable. From the limited information available to me about the circumstances of the last of the applicant’s offences, a member of the public was injured in the course of a robbery in a public place. I do not know the extent of the victim’s injuries. There is every potential for members of the community to be seriously injured by a violent assault in the course of a robbery and subsequent affray. I consider the Australian community would have a very low tolerance to being exposed to any substantive risk of conduct such as that being repeated by the applicant.
As to the likelihood of the applicant engaging in either repeat sexually based offending or repeat violent offending, I have considered carefully the content of a psychological report prepared at the request of the applicant by Ms Alison Mynard, Clinical Psychologist on 5 April 2021.
Ms Mynard has prepared an impressive and detailed report. Her qualifications and experience make her an expert in the field of clinical psychology, and I also accept her oral evidence to the Tribunal that she has worked extensively in the field of forensic psychology. I have placed significant weight on her opinions (and diagnosis of the applicant) in light of her professional expertise and the objective quality of her report. I have not however approached her evidence uncritically. In this regard the report and the opinions expressed therein do suffer from two inevitable limitations, namely that Ms Mynard only consulted with the applicant on one occasion, and Ms Mynard has also laboured under the same lack of detail about the particulars of the offences that I have laboured under, despite Ms Mynard being thoroughly and appropriately briefed by the applicant’s solicitor.
Ms Mynard reports that the applicant had low average cognitive function, and a moderate insight into his offending behaviours. Ms Mynard asserts that the applicant’s judgment was impaired during his offending, impacted primarily by his alcohol intoxication. While I have observed that Ms Mynard was well briefed for her report, I doubt Ms Mynard had sufficient details about the particulars of the offending to make the statement regarding drug psychosis or alcohol impairment from sources other than the applicant. In relation to the robbery and affray, Ms Mynard confirmed that she did not know exactly what had happened in relation to that offending, in response to my question.
I accept Ms Mynard’s diagnosis of post-traumatic stress disorder and complex post-traumatic stress disorder arising from the applicant’s war-related trauma, poverty, abuse and homelessness as a child. I understand and accept that the existence of such conditions tends to incline people towards self-medication with alcohol and illicit substances.
As to the risk assessment (in the sense of an assessment of the likelihood of offending being repeated) Ms Mynard concludes after detailed analysis that the applicant’s risk of sexual reoffending is estimated to be very low. Ms Mynard’s opinion in this regard is based on the absence of any other sexual offences since the applicant’s offences as a juvenile. In response to questions under cross-examination, Ms Mynard explained that this terminology arose from a choice of ‘low-risk’, ‘moderate risk’ or ‘high risk’, and it is not possible to say that someone is at no risk of reoffending from the perspective of a psychologist.
As to the risk assessment for violent offending, Ms Mynard’s opinion is that the risk is ‘moderate to high if he continues to consume alcohol at problematic levels’.
Ms Mynard then sets out a number of interventions to reduce the risk (in the sense of likelihood) including drug and alcohol counselling, and psychological treatment. Ms Mynard predicts that if the applicant were to continue to engage in treatment and rehabilitation (by which I infer she means commence and then continue) then the risk of reoffending would reduce significantly.
Ms Mynard also expresses the view that there has been a deterrent effect arising from the applicant’s imprisonment and the potential for ‘deportation’, and this constitutes a strong motivating factor for reducing the risk of reoffending. Ms Mynard also points to the applicant’s recent interest in religion as facilitating growth and pro-social attitudes.
During examination in chief, Ms Mynard was asked to comment on the fact that the applicant had not been compliant with court ordered processes that required counselling and the like. Indeed, in this regard, I note that when the applicant was sentenced to a term of imprisonment, he was also sentenced for two separate breaches of community corrections orders in the context of a report from a community corrections officer that had concluded the applicant was not a suitable candidate for a further such order because of his failure to comply with conditions. The conditions of earlier such orders included accessing mental health and addiction counselling – but it seems the applicant did not do so because he had reoffended. A report of 22 March 2019[9], for example, details the applicant’s failure to attend drug and alcohol assessment and treatment and not following up with mental health treatment.
[9] SM4, p 194.
Ms Mynard remarked that when the applicant was placed on those orders in the past he was emotionally immature and not thinking about the consequences of his actions. Ms Mynard however stated that there had been a change in the applicant’s level of maturity. She accepted the proposition that this was attributable to the applicant’s time in gaol and interest in religion. Later in her evidence, I asked Ms Mynard whether this change in emotional maturity was the factor that might predict a change in behaviour in the future when compared to past behaviour. Ms Mynard confirmed that it was her view that the applicant had a different level of maturity and had changed from behaviours based on adolescent impulses, and was transitioning from adolescence into adulthood. I asked Ms Mynard how she could observe such changes based on one consultation. Ms Mynard explained that she had observed his responses to questions, speculating he would not have engaged in that conversation previously.

Although I have generally found Ms Mynard’s evidence to be persuasive, this particular exchange has troubled me. Based on Ms Mynard’s report, the applicant’s likelihood of repeating his violent offending will be moderate to high, subject to him adopting the interventions Ms Mynard has suggested. The difficulty I have is that the applicant has demonstrably not adopted similar suggestions from higher authorities previously and has subsequently reoffended violently. I was not persuaded that any change of attitude or behaviour referred to by Ms Mynard was more than an aspiration arising from the applicant’s current circumstances.
In this regard, I also note recent incidents taking place within immigration detention that do not reflect well on the applicant’s emotional maturity and capacity to avoid illicit substances. The first incident of 25 December 2020 involved the applicant headbutting another detainee in the dining room because he was dissatisfied with the way the meal had been served. The second incident related to contraband (drug paraphernalia) being located in a room the applicant shared with another detainee. Both detainees denied the items belonged to them. The applicant did however concede he had used an illicit substance (cannabis) once while in detention.
While I am mindful not to be place significant adverse weight on these incidents in the stressful environment of immigration detention, they do tend to place in doubt the aspiration described by Ms Mynard that the applicant had reached a level of maturity to attend to the treatment he needs such that his failure to engage in community corrections orders is not a reliable predictor of what might happen in the future. I think the applicant’s past failure to engage in such therapeutic interventions remains a good indicator that he will not engage in those interventions in the future.
I also mention the evidence of the applicant’s cousin’s wife. She was a particularly impressive witness. The applicant’s cousin’s wife told me that she had not been aware of the applicant’s rape convictions until recently, or been aware of the applicant being dealt with for violent offences at the time he was being dealt with. The applicant’s cousin’s wife described her shock at learning of these convictions, but stated these convictions were out of character for the person she knew.
With respect to the likelihood of the applicant repeating this conduct, the applicant’s cousin’s wife gave evidence regarding the family support she intended to place around the applicant to assist him with rehabilitation, suggesting he had not previously had access to that support. I accept that applicant’s cousin’s wife does genuinely intend to offer that support to the applicant and such support would improve his chances of successfully reducing the likelihood that he would reoffend, if he were to engage with the interventions suggested.
I also mention the ‘Post Action Release Plan’ prepared by the applicant’s cousin’s wife, the applicant’s general practitioner, Ms Mynard and others engaged in social work fields. The document identifies 8 different psychological and social interventions proposed. It is an impressive plan, and I accept that the applicant’s engagement with the plan would reduce the likelihood of him reoffending.
On reflection however, having regard to the applicant’s history of failing to engage with community corrections orders, my concern regarding the aspirational nature of the identification of a changed level of maturity in the applicant as the key change to drive different behaviour, and to a lesser extent the recent incidents taking place within immigration detention, I am not confident to assume the applicant will engage with the various forms of support that I accept will be offered to him. The applicant has engaged in violent offending as an adult. Those actions are not explained by the applicant being a juvenile or adolescent.
I return to Ms Mynard’s key findings and opinion regarding the likelihood of the applicant reoffending. I accept that the applicant’s likelihood of sexual reoffending is low. I am concerned that the applicant’s sexual offending took place in the company of others, and this feature persisted into the applicant’s violent offending, but on balance I think the opinion that it is low is supported by the absence of any further instances of sexual offending.
In relation to the violent offending however, I accept Ms Mynard’s opinion that the likelihood is moderate to high, but I am not confident to assume that the reduction in that likelihood that would be brought about by alcohol rehabilitation will come about. I am not confident the applicant will engage with the support that would be offered to him in circumstances where he has not done so previously, and so I settle on the finding that the likelihood of the applicant reoffending violently is moderate to high.
In relation to the sexual offending, even though the risk of it being repeated is low, I consider the nature of the harm that would be caused by such offending being repeated is so grave that even the low likelihood is not to be tolerated.
In relation to the violent offending, I consider that a moderate to high likelihood that the offending will be repeated is not to be tolerated given the real risk that the violent offending is of a nature that may result in serious injuries to members of the public if it is repeated.
I place very great weight on the risk to the community should the applicant commit further offences.
Overall, as to the protection of the Australian community, I find that this consideration weighs very heavily against revoking the visa cancellation.
FAMILY VIOLENCE
There is no evidence that the applicant has engaged in family violence, and so this primary consideration is immaterial to the applicant’s circumstances and my decision, and carries no weight for or against revocation of the visa cancellation.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The following children have been identified by the applicant and on the material before me as children whose interests might be affected by the decision. The evidence available to me about their circumstances comes primarily from the applicant and from the applicant’s cousin’s wife. The applicant’s cousin’s wife has provided more detailed information about the wider family’s circumstances, including in particular the circumstances of Y1 and Y2, who she identified as the children who would be most affected by my decision.
·M: a child who the applicant has not met who he believes might be his biological child. M is aged approximately 5 and lives in Sydney. The name the applicant uses to refer to the child is a name he has adopted for the child. He does not know what name the child’s mother uses for the child. The applicant has never met the child, but once saw a photograph. He has no contact with M’s parent.
·Y1: Y1 is the applicant’s niece, aged about 10. The applicant used to reside with Y1 and in that context had a caring role in respect of her along with other members of her family. Y1’s father is the applicant’s brother. He is in prison. Y1’s mother has passed away through suicide. Y1’s maternal family place some blame on the applicant’s brother for this, and since Y1’s mother’s death Y1’s maternal family have not accommodated any contact between Y1 and Y1’s paternal family including the applicant. Y1 lives with her maternal grandmother.
·Y2: Y2 is the applicant’s nephew. He is Y1’s brother. Y2 is aged 8 years old. The same circumstances that affect Y1 also affect Y2. There is no evidence before me to materially distinguish Y2’s circumstances and interests from Y1.
·As to Y1 and Y2’s circumstances, I asked the applicant’s cousin’s wife to elaborate on whether it is the case that the person who now performs the parental role in respect of them (their maternal grandmother) has decided that they will not have contact with the paternal side of the family. The applicant’s cousin’s wife explained that the relationship between Y1 and Y2’s maternal family and the applicant had always been positive, but it now appears that Y1 and Y2’s maternal grandmother is lumping the paternal family together, including the applicant and the paternal grandmother. I invited the applicant’s cousin’s wife to predict whether that attitude might change in the future. She stated that there is a lot of hurt at the moment, but the paternal family very much wish to be part of Y1 and Y2’s lives. She explained discussions are not yet ready to be had.
·I have noted that the applicant’s responses to questions about these matters in relation to Y1 and Y2 were different to the answers given by the applicant’s cousin’s wife. He described a mere loss of contact. I prefer the applicant’s cousin’s wife’s evidence of these matters.
·R, N, T, J and A: R, N, T, J and A are the children of the applicant’s cousin and his wife. The applicant’s involvement with these children is much less than it was with Y1 and Y2, but he has been in contact with them weekly while in immigration detention. The applicant’s cousin’s wife described growing recognition amongst the children of the applicant’s predicament, and the thought of the applicant being returned to the country that the wider family had fled from distresses the older of the children. Other than their ages, there is no evidence before me to materially distinguish the circumstances and interests of R,N,T,J and A.
·B: B is the applicant’s nephew who is aged about 2.
·SB: SB is the applicant’s half-brother who is identified as having been born on 29 July 2003.
·BB: BB is the applicant’s half-brother who is identified as having been born on 14 October 2005
·MW: MW is the child listed at question 8 of the applicant’s personal circumstances form. This child is the applicant’s partner’s child. The applicant has indicated on the form that he will live with the child on return to the community.
As to Y1 and Y2, I accept that the nature and duration of the relationship between the applicant and the children is significant given they once cohabited. Although I accept the applicant once had a familial caring role for the children, I do not characterise the relationship as a parental role. I note this matter was explored with the applicant in examination and the applicant recognised it was a non-parental relationship.
The current nature of the relationship and the likely future relationship is difficult to assess in the circumstances of trauma and alienation between the children’s maternal and paternal families. Although it appears that currently the applicant will not be permitted to have an ongoing role in the children’s lives by the person who now stands in a parental role in respect of them, this may not be a permanent situation.
The children are relatively young, and it appears that the applicant once played a positive role in their lives. His criminal offending would not have had any direct impact on the children.
I accept that separation from the applicant will be somewhat adverse to the children.
I find that another person fulfils the parental role in respect of the children. I do not have any direct evidence from the children or the person who fulfills the parental role in relation to their wishes as to a future relationship with the applicant.
On balance, I am satisfied that it is in Y1 and Y2’s best interest that the visa cancellation be revoked, as this will preserve the potential for the formerly positive relationship with the applicant to resume. As the applicant does not have a parental role in respect of the children, I place only moderate weight on preserving this potential by revoking the visa cancellation.
As to R, N, T, J and A, I find that the nature and duration of the relationship between the applicant and these children is more remote than that of Y1 and Y2. I recognise however the value and benefit to children of preserving wider family relationships. The applicant does not however have a parental role in relation to these children. These children are fortunate to have the benefit of positive and engaged parents in the applicant’s cousin and his wife.
If the visa cancellation is revoked, I accept that it is likely that the relationship between the applicant and the children will continue as a positive or benign relationship between the children as a more distant relative.
Like Y1 and Y2, the children are relatively young. His criminal offending would not have had any direct impact on the children.
I accept that separation from the applicant will be somewhat adverse to the children. I find that other people fulfil parental roles in respect of the children. I do not have any direct evidence from the children, but accept the evidence of the applicant’s cousin’s wife as to the distress and negative impact the applicant’s situation is causing the children.
I consider it is in the best interests of R, N, T, J and A that the more distant relationship with the applicant is preserved. The more distant nature of the relationship however leads me to accord only marginal weight to the best interests of these children.
I have no further evidence about the nature and duration of the relationship between B, SB and BB, and the extent to which the applicant has played any positive role (parental or otherwise) in relation to these children.
I note B is very young and is a more distant relative. In his evidence about the relationship with B, the applicant merely confirmed that he had once met him. I accept that it is in B’s best interest that his capacity to develop a relationship with his uncle is preserved, but in the absence of any more detailed evidence identifying the relationship as any closer than that of uncle and nephew, I place only marginal weight on B’s best interest in that regard. I have no evidence from B or any person who has a parental role in respect of B.
SB and BB are the applicant’s siblings who are not yet 18. They were not referred to in the proceedings. They are of an age where they are capable of giving evidence to the Tribunal and informing me of their views and interests, but they have not done so. Nor has the applicant’s mother, who is also the parent of SB and BB.
Nonetheless, I recognise the inherent importance of sibling relationships. It is in the best interests of the applicant’s child siblings that the relationship be preserved through revocation of the visa cancellation. It is difficult to ascribe weight to the best interests of these children in that regard in the absence of any evidence about the nature of the relationship with the applicant. In all the circumstances however, I ascribe moderate weight to this consideration in respect of the applicant’s siblings under the age of 18.
My considerations in relation to M are inevitably abstract given the applicant does not know for sure if he is the child’s father and has never met him. What is clear to me from the applicant’s evidence however is that the prospect of the applicant fulfilling a parental role in relation to M is remote.
Nonetheless, and assuming the applicant is M’s father, the potential for M and applicant to know each other in some way in the future is important to recognise, and I apply moderate weight to M’s best interest in this regard. I apply this weight despite the applicant not having any existing relationship with M.
No evidence has been provided to me about MW. I have not heard from MW’s parent. I am not satisfied that the applicant has had a longstanding parental role in relation to MW, and am not satisfied he will have such a role in the future. It is apparent that another person fulfils the parental role for MW. I am not satisfied on the evidence before me that separation from the applicant will have any particular adverse effect on MW. I am not satisfied that MW’s interests will be affected by the decision in the absence of any more evidence about the child.
Overall, having regard to the circumstances of all of the children identified by the applicant in these proceedings as children whose interests may be affected by the decision, I find that the best interests of all the children identified is served by revoking the visa cancellation, albeit to varying degrees of weight. I accept that the best interests of Y1 and Y2 in particular will be served by preserving the potential for their formerly positive relationship with the applicant to resume, and I give their best interests moderate weight. Although difficult to assess, and assuming M is the applicant’s biological child, I would also ascribe moderate weight to preserving the capacity of the applicant and M to someday connect and for M to develop a relationship with the applicant. The interests of the other identified children accumulate only marginal further weigh in my assessment. Overall, I find that the best interests of the children are served by the visa cancellation being revoked, and I ascribe moderate weight to this consideration.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.

Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[10]
[10] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In line with the Direction, I consider that the Australian community would expect the visa to remain cancelled. This is reflected by the identification of serious crimes against women, including crimes of a violent or sexual nature, as crimes that the Australian community would expect would lead to a person not continuing to hold a visa. The Australian community would expect that I do not revoke the applicant’s visa cancellation
As to weight, I am conscious that the expectations of the community identified through applying the terms of the Direction is a primary consideration. As I have observed above, the applicant’s sexual offending was particularly abhorrent, and I have concluded that he presents a moderate to high risk of repeating his violent offending. The applicant’s sexual offending falls squarely and completely within the kinds of offences that the Direction identifies as offences leading to a community expectation that his visa will remain cancelled. I can see no reason not to ascribe very substantial weight to this consideration, and so I ascribe very substantial weight to the expectations of the community that the visa remains cancelled.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
International non-refoulement obligations
I observe that it is open to the applicant to apply for a protection visa in the event that the visa cancellation is not revoked, although I also recognise that it is now well established that I must nonetheless give meaningful consideration to clearly articulated claims of harm or hardship made by the applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the applicant. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[11]
[11] See Minister for Home Affairs v Omar[2019] FCAFC 188.
As the Direction recognises at 9.1 (6) it may not be possible at the s 501/s 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act. A decision-maker, in making a decision under s 501/s 501CA, is not required in every case to make a positive finding as to whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.
The applicant articulated some claims in his initial representations to the Department, in his Statement of Facts Issues and Contentions, and added further matters in his reply. In my perception, other matters raised and identified in the hearing tended to straddle non-refoulement obligations and impediments to return, which is another non-primary consideration.
I summarise the claims articulated by the applicant (or on his behalf):
·he would be perceived as being an apostate for having converted from Christianity to Islam;
·he would be perceived as being against South Sudanese independence because of his family background and fluency in Arabic rather than Dinka;
·he would be perceived as being opposed to armed groups due to his Dinka ethnicity;
·he may be targeted due to his father’s involvement in the war as a rebel soldier or member of the South Sudanese army or armed group;
·he may be targeted due to his Dinka ethnicity;
·he is susceptible to forcible recruitment by armed groups due to his membership of a particular social group defined as young men at risk of forcible recruitment by armed groups;
·he may be targeted due to his membership of a particular social group of persons perceived to be wealthy in South Sudan;
·he may be targeted due to his membership of a particular social group of persons perceived to be foreign;
·he may be targeted due to his membership of a particular social group of returnees from Australia;
·as a person suffering from a mental health issues, he will be ostracised and suffer discrimination, physical and mental abuse;
·he would be perceived as a member of a particular social group of returnees from Western countries; and
·he would have no protection against exploitation or abuse amounting to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, because he would have no protective social or family connections in South Sudan.
The applicant contends that he would face harm if removed to South Sudan. First however, the applicant suggested initially that the applicant might be stateless or practically stateless, although has later accepted that his claims should be assessed against South Sudan as the country of reference. For completeness, and with the limited capacity to comprehensively assess such contentions as acknowledged in the Direction at 9.1(6), I do not accept that the applicant is stateless and find that he is in fact a citizen of South Sudan.
In this regard, the respondent refers to s 8 of the South Sudan Nationality Act 2011, which expressly confers citizenship on persons who belong to one of the indigenous ethnic communities of South Sudan. It is not in issue that the applicant is of Dinka ethnicity, and the Dinka are among the indigenous communities of South Sudan.
I am further satisfied, for the reasons put forward by the respondent, that the applicant is not a citizen of Sudan, the country of his birth. In this regard, I note that citizenship of Sudan is revoked by Sudanese law upon a person acquiring de jure or de facto the nationality of South Sudan.
I proceed therefore to consider the applicant’s claims by reference to South Sudan.
The next issue that arises is how I am to assess whether Australia has non-refoulement obligations in respect of the applicant. The Direction instructs that the concept of ‘protection obligations’ reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. The Direction instructs that accordingly, in considering non-refoulement obligations, I should follow the ‘tests enunciated in the Act’.
In response to my request, the respondent has provided written submissions after the hearing to assist me identify the ‘tests enunciated in the Act’ as referred to in the Direction. This issue presented itself because the applicant contends that non-refoulement obligations include obligations accorded by customary international law.
The applicant refers to the error identified in Ali v Minister for Home Affairs [2020] FCAFC 109 at [108]. In that case, the Full Court considered that the Assistant Minister had misunderstood that the manner in which Australia’s international non-refoulement obligations would be considered were qualitatively different as between s 501CA(4) and s 36 of the Act (which deals with criteria for protection visas). The applicant argues that I should consider non-refoulement in the general international law sense in order to assess whether there is ‘another reason’ why the visa cancellation should be revoked. The applicant further contends that the Act refers to both “non-refoulement obligations” and “protection obligations”, albeit the meaning of the latter must be inferred from its use in section 36 of the Act. The applicant contends that if I were to proceed on the basis that by applying the ‘tests enunciated in the Act’ in the sense of “protection obligations”, then the Direction would be inconsistent in the Act because I may be restricted from recognising other non-refoulement obligations as ‘another reason’ for revoking the visa cancellation.
The respondent contends that the relevant tests in the Act referred to in the Direction are those in ss 36, 5H and 5J of the Act. The respondent recognises that the concept of ‘protection obligations’ does not necessarily exhaustively encompass Australia’s non-refoulement obligations, but submits that ‘protection obligations’ do frame how decision-makers should approach non-refoulement claims in the context of a decision whether to revoke the mandatory cancellation of a visa. The respondent submits that the tests thus enunciated in the Act specify the scope of my task in assessing non-refoulement claims in the context of a decisions whether to revoke the cancellation of the visa.
I have also noted that the respondent submits that whether non-refoulement obligations arise or not, I must also consider whether the claims raised by the applicant are “another reason” why the cancellation should be revoked.
As mentioned above, I consider the Direction clearly instructs me to follow the tests enunciated in the Act. I accept that the tests identified by the respondent are the tests to which the Direction refers.
I am persuaded that the respondent’s construction of my task is correct, and that in undertaking my assessment I should follow those tests enunciated in the Act, primarily in section 36 of the Act, from subsection 36(2) and onwards. While I understand the distinction identified by the applicant and see the support that may be drawn from Ali, in circumstances such as this case where I will ultimately find that Australia does have protection obligations in respect of the applicant, the distinction identified by the applicant has limited practical application.
.
As outlined above, and perhaps articulated more precisely by the respondent in the subsequent written submissions, a claim has clearly emerged in respect of the applicant to the effect that in circumstances where he has no connections, resources, or language skills, he would face an immediate risk of harm upon arrival in South Sudan given the general situation in that country.
As I observed to the applicant’s counsel at the hearing, an observation which I understood to be accepted, the applicant appears to be largely ignorant about the circumstances in South Sudan. It was clear enough however that the applicant is fearful of returning to the country, even if he is unable to articulate for himself precisely why he feared harm. The applicant was asked to give evidence about each of the formulations of his claims that had been put forward, but the applicant did not appear to be able to cogently articulate why he feared harm in relation to those matters, or provide any further evidence or particulars to assist me.
The applicant’s solicitor has provided a bundle of country information to the Tribunal that establishes the following key features about the circumstances in South Sudan at the present time (restricting myself for present purposes to well-established and orthodox sources of general country information).
Despite a peace agreement in 2018, fighting between government forces and “non-signatories” continues in the capital region and there is widespread intercommunal violence elsewhere. Human Rights Watch described 2020 as a year marked by conflict, security forces’ violations, entrenched impunity and a lack of respect for rule of law. Sources such as Human Rights Watch, Amnesty International and the US Department of State all concur that the following features are features of the circumstances in South Sudan that I accept will confront the applicant in the event that he were removed from Australia to South Sudan:
·Significant human rights abuses are perpetrated including ethnically based killing, arbitrary detention, life-threatening prison conditions, unlawful killing of civilians, unlawful recruitment, trafficking in persons among other forms of very serious harm.
·Food insecurity and associated violence and disruption caused by large numbers of internally displaced persons. There are more than 180,000 persons in the country receiving shelter from UN agencies.
·Migrants are subject to killings and abuse and forced recruitment.
These aspects of the orthodox country information about the dire state of affairs in South Sudan was also addressed by the applicant’s witness, Ms Williams. Ms Williams is the co-founder of Footprint Enterprises, an organisation founded to bring about social change through the creative arts. As part of her work, Ms Williams has travelled to South Sudan three times, most recently two years ago. Ms Williams was able to describe the practical consequences for people arriving in Juba of general observations about the circumstances in the country described in the country information referred to above.
Ms Williams described needing to pay bribes to leave the airport, the high costs of accommodation in a safe compound and observing people sleeping in carboard boxes in the street. Ms Williams explained she was extremely concerned about the applicant’s safety upon arrival in Juba. She described being aware of another South Sudanese person who had earlier returned to South Sudan from Australia who she subsequently observed to be malnourished.
The respondent perceived the applicant’s claim as one pertaining to being a member of a particular social group. For the reasons elaborated upon below, I do not think the applicant has a well-founded fear of persecution by reason of his membership of any of the articulated social groups, his religion or his ethnicity. I am satisfied the claim establishes a real risk of significant harm by reference to the ‘complementary protection criteria’, and the applicant’s particular vulnerability.
While I note that the DFAT report does not support a claim in relation to the applicant being targeted on account of his membership of a group such as returnees from the west or on account of his ethnicity as Dinka, the DFAT report does accord with the observations in other orthodox sources of country information pertaining to the risk of arbitrary deprivation of life, extra judicial killings and arbitrary arrest (for example).
As outlined above, and perhaps articulated more precisely by the respondent in the subsequent written submissions, a claim has clearly emerged in respect of the applicant to the effect that in circumstances where he has no connections, resources, or language skills, he would face an immediate risk of harm upon arrival in South Sudan given the general situation in that country.
Having regard to the tests enunciated in the Act, I consider that among those tests, is a test with the effect that Australia will have ‘protection obligations’ if I find that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicant suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
I am of the view that non-refoulement obligations do arise under that test as enunciated in the Act. More specifically, I consider that in respect of the last -mentioned formulation of a claim put forward by the applicant, there is a real risk that the applicant will suffer significant harm, including being arbitrarily deprived of his life, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Sudan, because he would hold particular characteristics that would expose him as being particularly vulnerable to significant harm that are not held by the population generally.
In this regard, I accept the applicant’s evidence that he was born in Khartoum and has in fact never been to the territory that is now South Sudan. I accept that the applicant’s first language is Arabic, and while he understands some Dinka, he does not speak it. I further accept as being consistent with the applicant’s evidence about his background that he has no family, tribal or social connections to other people living in South Sudan. I accept the applicant does not know anyone that might assist him if he were to return to that country. I accept that if he were to return to South Sudan, he would have no connections, resources or orientation to call upon for basic support or protection, and no knowledge about the circumstances and perils (which are significant) of life and survival in South Sudan.
In this way, I consider that the applicant will be so particularly vulnerable to the unlawful and arbitrary killings, unlawful and forced recruitment into militias, food insecurity and violence described in the country information that his particular risk is different to that faced by the population of the country generally, who generally speaking may have access to social, tribal and other supports that will not be available to the applicant in Juba upon arrival, or indeed anywhere else in the country.
Furthermore, having regard to the country information, I do not accept that it would be reasonable for the applicant to relocate to any part of South Sudan where there would not be a real risk that he would suffer significant harm. There is evidence before me of road blocks, inter-ethnic violence and cattle raids affecting many parts of the country, and the applicant was unable to articulate any particular part of the country where he might find support or protection even if he could find his way there. My observations about the applicant’s lack of social and tribal connections apply in respect of the capital and all parts of the country.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147. Having regard to the country information available to me, a feature of the adverse circumstances in South Sudan appears to be a failure of the rule of law and the involvement of the authorities within the country in the perpetration of abuses. I am not satisfied it is realistic to expect the applicant would access protection from an authority of the country so as to reduce the risk of significant harm.

Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. As mentioned above, I view the applicant’s circumstances as being materially different to the population of South Sudan generally because of his unfamiliarity with the country and apparent lack of any protective connections.
In accordance with subsection 36(3) of the Act Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
That provision however does not apply in relation to a country if the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
The Full Federal Court in MIMAC v SZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
There were no submissions or country information introduced in the proceedings addressing this complex point. This is an example of the practical limitations in adequately assessing whether Australia owes either protection obligations or non-refoulement obligations by applying the tests enunciated in the Act in proceedings of this nature.
The applicant has however referred me to a published decision of the Migration and Refugee Division of the Tribunal on a review of a decision to refuse to grant a protection visa: matter 2001814. I am conscious I am not engaged in any such review in these proceedings, but have nonetheless found the member’s approach to safe third country protection instructive in relation to South Sudan. I respectfully adopt the following aspects of the reasoning in that matter as it pertains to safe third country protection.
I am satisfied that South Sudan is a member of the East African Community (EAC). Under the terms of arrangements between member states to the EAC, the applicant would be able to enter any of the other partner states as a visitor for up to six months. In this way, I would find that the applicant has not taken all possible steps to avail himself of a right to enter and reside in, whether temporarily or permanently any country apart from Australia. However, I note the references in matter 2001814, to increased intolerance of EAC partner states to humanitarian movements given increases in the number of refugees, and historical instances of breaches of the Refugee Convention and non-refoulement obligations. Based on the analysis and sources cited in matter 2001814, I consider that the applicant has a well-founded fear that a member country of the EAC would return him to South Sudan if he exercised his right of entry; and, for the reasons given above, upon return there would be a real risk that the non-citizen will suffer significant harm in relation to that country (South Sudan).
In this way, while recognising the ‘protection obligations’ identified by the tests enunciated in the Act may not exhaustively encompass Australia’s non-refoulement obligations, I find that Australia does have ‘protection obligations’ (for the purpose of applying the Direction) by applying the test enunciated in the Act at sub-paragraph 36(2)(aa) of the Act, arriving that conclusion by considering also the terms of subsection 36(2A) and subsection 36(2B) of the Act, and considering the relevant exclusions provided for in the tests enunciated by the Act.
While this finding is sufficient for the purposes of the Direction, I have also applied genuine consideration to the other aspects of the applicant’s claims, within the inevitable limitations of this process. In this regard, I am conscious that it remains open to the applicant to apply for a protection visa where better articulated claims, and more comprehensive evidence and analysis may be undertaken.
I have turned my mind to the refugee criterion for a protection visa application as enunciated in the Act, for the purpose of identifying whether Australia has protection obligations or non-refoulement obligations arising in that regard (and not for assessing if the applicant is qualified for a protection visa).
A person is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
The applicant has put forward a number of different permutations pertaining to membership of a particular social group. In this regard, the applicant claims that he faces a well-founded fear of persecution by reason of:
·his membership of a particular social group defined as young men at risk of forcible recruitment by armed groups;
·his membership of a particular social group of persons perceived to be wealthy in South Sudan;
·his membership of a particular social group of persons perceived to be foreign;
·his membership of a particular social group of returnees from Australia;
·as a person suffering from a mental health issues, he will be ostracised and suffer discrimination, physical and mental abuse; and
·he would be perceived as a member of a particular social group of returnees from Western countries.
The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
I have identified nothing in the country information before me that South Sudanese society perceives a particular social group in young men at risk of forcible recruitment, wealthy persons, foreign persons, returnees from Australia or from Western countries. While I accept that the applicant will be vulnerable to forced recruitment if returned to South Sudan, it is not by reason of his membership of any particular social group. Similarly, while I accept that the applicant is particularly vulnerable to the generalised perils of South Sudanese life, it is not by reason of his membership of the particular social groups that have characteristics from which it might be reasonably supposed there is enhanced vulnerability to harm.
Putting to one side the claim articulated regarding mental health, I am not satisfied that the applicant faces a well-founded fear of persecution by reason of his membership of any of the articulated particular social groups.
As to race, nationality, and ethnicity, a claim articulated on behalf of the applicant relates to his Dinka ethnicity. The applicant’s evidence on this point took the claim no further than its mere identification.
The country information available to me establishes that the Dinka are the dominant ethnicity in South Sudan. The country information (DFAT) acknowledges that there are tensions between the Dinka and the Nu’er ethnic groups, and informal inter-tribal conflict has now emerged into direct and open conflict, but describes the situation as complex, pointing to Nu’er sub-ethnic groups remaining loyal to the Dinka-led government. DFAT recognises that Dinka, Nu’er and Shilluk are most at risk owing to their active involvement in the current conflict.
In relation to the Dinka, DFAT is aware of reports of violence directed at Dinka communities continuing in conflict affected areas, but considers Dinka face a low risk of being targeted in Juba because the Dinka dominated government has unencumbered control[12]. If returned to South Sudan, the applicant will arrive in Juba.
[12] DFAT Country Information Report (2016), South Sudan, para 3.7.
In the absence of any further particulars from the applicant, I accept the information provided in the DFAT report that he would face only a low-risk, falling below a real chance, of being harmed in Juba by reason of his race or ethnicity.
As to the applicant’s claims regarding political opinion; namely that he would be perceived as being against South Sudanese independence because of his family background and fluency in Arabic rather than Dinka, his perceived opposition to armed groups due to his Dinka ethnicity and his father’s involvement in the war as a rebel soldier or member of the South Sudanese army, the applicant was not able to articulate either how his family background would be perceived politically, why he would be perceived to be in opposition to any other armed group beyond his ethnicity (dealt with above) or how his father’s involvement in the war for independence would either be known or place him at risk.
In the absence of more detail, I cannot be satisfied that the applicant’s claims in this regard are well-founded. For example, assuming the applicant’s father supported the Sudan’s People’s Liberation Movement (SPLM), the DFAT country information indicates that individuals identified as being associated with the movement are unlikely to be targeted for that reason in areas controlled by the government (such as Juba), given the government is dominated by the SPLM.
It was not explained to me how the applicant’s fluency in Arabic might be relevant to his political claims, and I have identified no cogent basis for it to be relevant in the country information available to me.
As to the applicant’s claim that he will be targeted as an apostate because he has converted from Christianity to Islam, I observe that there is little support in the country information in that regard. I accept the information in the DFAT report to the effect that there are some limited examples of Muslims experiencing some discrimination, but on the basis of that information the discrimination does not amount to serious harm.
Finally, as to the applicant’s claim that he will be ostracised and suffer discrimination, physical and mental abuse as a person suffering from a mental health issues, I have considered carefully the country information provided by the applicant’s representative in this regard. I accept that mental health services in South Sudan are extremely limited, as the availability of psychotropic drugs is inconsistent and limited[13]. I accept that support systems for people with mental illness are very weak. I have not identified any evidence to substantiate that persons with mental health conditions are targeted for harm for that reason. I note that the US-DoS report recognises that people with disabilities face disproportional hardship in the generalised crisis, but this observation is not specifically directed to people with mental health disorders.
[13] K4D, “Disability in South Sudan” – B Rohwerder, Insititute of Development Studies, 16 March 2018, p 14 (‘Applicants Bundle of Country Information’, p 85).
I have also taken into account the applicant’s claims regarding his mental health condition against the ‘complementary protection criteria’. In that regard however, the limitations on access to mental health treatment in South Sudan is clearly a situation that is faced by the population generally, and does not amount to significant harm under the tests enunciated in the Act.
For the reasons set out above, I have found that under the tests enunciated in the Act Australia does have protection obligations in respect of the applicant and also non-refoulement obligations accordingly.
I am conscious that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under s 189, noting also that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
As the Direction notes however:
…that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
As to the weight I will apply to this consideration, I will first take into account the Direction at paragraph 9.2.
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.
In this regard, my considerations largely mirror the conclusions I reached in assessing non-refoulement obligations in respect of the applicant. To put this another way, I accept that the extent of impediments facing the applicant are so great that they amount to a non-refoulment obligation in the particular circumstances of the applicant.
In this regard, I accept that the applicant has never been to South Sudan, and has spent his life outside that country, including in Sudan and Australia. I accept he is not fluent in the primary local Dinka language. I consider that there will be very substantial language and cultural barriers affecting the applicant.
Also as discussed above, I consider there will be very little social, medical or economic support available to the applicant. I consider that the applicant will have difficulty maintaining basic living standards and will also be peculiarly exposed to violence and other forms of significant harm.
I attribute very substantial weight to both Australia’s non-refoulement obligations and the extent of the impediments the applicant would face if removed. These two matters weigh heavily in favour of revoking the visa cancellation.
The effect of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
Very late in the proceedings, by way of written submissions received on 17 May 2021, the applicant has raised a new matter that I must therefore take into account. The applicant informs me, and the respondent confirms that on 14 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 passed both Houses of Parliament, and I presume it awaits Royal Assent. The respondent submits that the Bill will not have come into effect by the time I must make this decision.
Strictly therefore, I recognise that the terms of the Bill are not yet the law of Australia. Practically however, I proceed on an assumption that the Bill will become law in the ordinary course of events.
The applicant contends that the effect of the Bill upon becoming law will be that section 197C of the Act will be amended to provide that where the Minister has made a ‘protection finding’ in respect of a person who is refused a protection visa, the person is not to be removed from Australia. The applicant contends therefore that the applicant would face the real prospect of indefinite detention, and outcome which is unconscionable. This would amount to ‘another reason’ for revoking the visa cancellation.
The respondent contends that the applicant’s submission is based on a number of contingencies, and I cannot know the likelihood of any of the identified contingencies occurring. The respondent reiterates that the immediate legal and factual consequences of any decision I may reach not to revoke the visa cancellation do not necessarily include removal from Australia or indefinite detention.
I note that the Direction itself at 9.1(3) asserts that a conclusion that a non-refoulement obligation exists precludes the non-revocation of visa cancellation, and posits a series of possibilities other than indefinite detention.
Although I recognise that the current state of the law is that the existence of non-refoulement obligations is irrelevant to the exercise of the removal power, and I would therefore be in error to take into account the possibility of indefinite detention. The content of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 however appears likely to alter that situation somewhat upon receiving assent and coming into effect, so that if a ‘protection finding’ is ultimately made in respect of the applicant the applicant cannot be removed. I do not however accept that indefinite detention is therefore inevitable as a number of alternative possibilities are identified in the Direction. Th respondent is correct to remind me that I cannot speculate about such matters , and there are many contingencies at play.
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 being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I have no information available in regard to the impact on the victims of the applicant’s offending or the family members of the victim. To the extent that the nature of the applicant’s sexual and violent offending must have inevitably had a highly adverse impact on the victims, I have applied substantial weight to the nature and seriousness of the offending in considering the need to protect the Australian community.
Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
I am conscious that the applicant is a member of a large family in Australia. In his personal circumstances form[14] he identifies approximately 13 to 15 uncles and aunts, 6 to 9 nieces and nephews and 8 to 10 cousins. This is in addition his immediate family consisting of his mother, 5 siblings and step siblings and stepfather.
[14] G2, Attachment F, p 105.
It is unusual in these circumstances that I have no evidence available to me from any member of the applicant’s immediate family other than his cousin and his cousin’s wife. I have no evidence from the partner that the applicant mentions in his form.
I take into account that the applicant has resided in Australia from adolescence, and is now a young adult. I afford less weight however to this consideration because ethe applicant’s very serious offending was committed soon after his arrival, as a juvenile.
There is limited evidence available to me to demonstrate the applicant has made any positive contribution to the community, although I note the applicant has described being employed from time to time.
It is difficult for me to assign weight to this consideration in circumstances where I know the applicant is a member of a large family in Australia, but I have no evidence from his immediate family. To the extent that I accept that these links of themselves favour revoking the visa cancellation, I consider this consideration is reduced to neutral having regard to the fact that the applicant’s offending commenced as a juvenile, within a few years of his arrival in Australia, and there is little persuasive evidence of positive contribution.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests and nor does this issue arise on the material before me.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. The applicant’s counsel advanced a powerful argument urging upon me a conclusion that this case is not of a general nature, and I should see the case as one where the ‘other considerations’, particularly Australia’s non-refoulement obligations and impediments to return should outweigh the primary considerations. It was submitted on the applicant’s behalf that to return him to South Sudan would be unconscionable in the circumstances. That submission was justified by noting that by bringing the applicant’s family out from Sudan, if he were to be returned he would be without any of the survival skills necessary to survive in a country like South Sudan. I found that submission to have significant force, and I have considered very carefully whether this is indeed a case where the non-primary considerations should attract determinative weight.
The applicant’s final contentions regarding the likely legal effect of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 raised the applicant’s concern that the legislative landscape will materially change such that indefinite detention becomes possible. While this may be so in the future, I do not accept that indefinite detention will be inevitable assuming the Bill becomes law. I recognise non-refoulement obligations are currently legally irrelevant to the exercise of the removal power. I do accept that the applicant’s future will become very uncertain if I do not revoke the visa cancellation. I have taken these circumstances into account as to whether it amounts to another reason for revoking the visa cancellation.
My decision is to be arrived at through diligent application of the Direction. The Direction in its terms clearly articulates that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation. In this regard, I am also fully conscious that my analysis of non-refoulement obligations under the tests articulated in the Act do not rise to the same level of detail and thoroughness as might be expected for determining a protection visa claim, and it would be open to the applicant to make a protection visa claim.
Ultimately, while giving due weight as articulated in these reasons to all the considerations in the Direction, and also whether my conclusions in relation to non-refoulement and impediments to return of themselves amount to “another reason” to revoke the visa cancellation, I am mindful that I have concluded that the applicant represents an unacceptable risk to the community and has also committed an abhorrent crime that the community would expect would result in revocation of his visa.
After careful consideration, I have decided that my conclusion as to the protection of the Australian community particularly and the expectations of the Australian community to a lesser extent are ultimately determinative. I am not of the view that the very substantial weight I have applied to the existence of non-refoulement obligations, and the extent of impediments to the applicant’s return outweigh those matters. Nor does the additional moderate weight I apply for the best interests of the children.
On balance, I have concluded there is no other reason to revoke the mandatory visa cancellation. Consequently, I do not revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

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

Dated: 19 May 2021

Date of hearing: 6 May 2021 & 7 May 2021

Solicitor for the Applicant:

Michael Jones

Parish Patience Immigration Lawyers

Solicitor for the Respondent:
Ingmar Duldig

Clayton UTZ

[2021] AATA 1409

19 May 2021

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