Shoul and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 364
•1 March 2021
Shoul and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 364 (1 March 2021)
Division:GENERAL DIVISION
File Number: 2020/8042
Re:Gok Daing Boul Shoul
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:1 March 2021
Place:Melbourne
The Tribunal decides, under section 43 of the Administrative Appeals Tribunal Act 1975, to affirm the decision (i) that the Applicant does not pass the character test, and (ii) that there is not another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 why the cancellation of the Applicant’s visa should be revoked.
[sgd]........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is from South Sudan – applicant held Class BC Subclass 100 spouse visa – visa cancelled as delegate not satisfied applicant passed character test on basis of substantial criminal record as defined in Act: sentence or sentences of more than 12 months imprisonment – applicant made representations to different delegate that there was another reason mandatory cancellation should be revoked – applicant’s sentence reduced on appeal to 10 months – delegate concedes applicant no longer has substantial criminal record – delegate decides applicant still fails character test – delegate decides not another reason to revoke cancellation of visa – what decision is Tribunal reviewing – scope of review – consideration of character test – consideration of Direction No 79 – primary considerations – other considerations – decision under review is affirmed
Legislation
Administrative Appeals Act 1975, ss 33, 33A
Migration Act 1958, ss 36, 197C, 198, 499, 500, 501, 501CA
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513
CYNQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re [2020] AATA 545
Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629
FYBR v Minister for Home Affairs [2019] FCAFC 185
Galuak v Minister for Immigration and Border Protection, Re [2018] AATA 2301
Jayba and Minister for Immigration and Border Protection, Re [2018] AATA 385
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re [2020] AATA 665
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10SYLN and Minister for Home Affairs, Re [2018] AATA 4408
Secondary Materials
Department of Home Affairs Standard Q&A Report South Sudan 20200522142421 – Citizenship (26 May 2020)
Explanatory Memorandum of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 – Commonwealth Australia
Migration Act 1958 – direction under s 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b). Dated 6 September 2017/commenced 7 September 2017
Migration Act 1958 – direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Dated 20 December 2018/commenced 28 February 2019
The Nationality Act 2011 (South Sudan), ss 8 and 9
REASONS FOR DECISION
Senior Member D. J. Morris
1 March 2021
The background to this matter is as follows. The Applicant, Mr Gok Daing Boul Shoul was born in January 1998. He arrived in Australia on a Class BC Subclass 100 spouse visa (the visa) on 10 September 2008. On 11 March 2020, a delegate of the Respondent Minister cancelled the visa under section 501(3A) of the Migration Act 1958 (the Act) on the basis that the delegate was satisfied that Mr Shoul did not pass the character test defined in section 501(6) of the Act because, at that time, the Applicant had a ‘substantial criminal record’ under section 501(7)(c) of the Act, in that he had been sentenced to a term of imprisonment of 12 months or more and, under section 501(3A)(b) of the Act, he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
When a decision is made under section 501(3A) of the Act, the Minister must give the person whose visa has been cancelled notice of the decision (the original decision) and must also invite the person to make representations about revocation of the original decision (see section 501CA(3) of the Act).
The Minister, through his delegate, invited Mr Shoul to make representations, and he did so on 20 May 2020.
However, concurrently with this process, the Applicant lodged an appeal against the sentences which had been imposed upon him in the Magistrates’ Court of Victoria at Sunshine and which founded the mandatory cancellation of this visa. On 11 June 2020, the County Court of Victoria re-sentenced Mr Shoul to an aggregate term of 10 months’ imprisonment. As a consequence, the Applicant no longer had a sentence of 12 months or more within the meaning of section 501(7)(c) of the Act and his visa was not subject to mandatory cancellation under section 501(3A) of the Act.
On 5 October 2020, Mr Shoul was invited to comment on further information received by the Department of Home Affairs (the Department), including a National Criminal History Check, the transcript of the appeal proceedings before the County Court of Victoria on 11 June 2020, the transcript of the earlier Magistrates’ Court of Victoria proceedings relating to his offending, on 15 January 2020, and a press article from the Herald-Sun newspaper dated 17 January 2020. On 2 November 2020, through his legal representative, the Applicant made further representations.
On 4 December 2020, the delegate decided that Mr Shoul did not pass the character test in the Act under sections 501(6)(d)(i) and (v) of the Act. Those provisions say:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
The delegate declined to revoke the cancellation of Mr Shoul’s visa, and on 7 December 2020 the Applicant was notified of this decision through his legal representative. On the same day he asked the Tribunal to review the decision.
Under section 500(6L) of the Act, if a person makes an application for review of a decision under section 501 not to revoke the cancellation of a visa and the person is within the migration zone (i.e. within Australia and its Territories stipulated under the Act), the Tribunal must make a decision within the period of 84 days after the day on which the person was notified of the decision, otherwise the Tribunal is taken to have affirmed the decision. The parties agreed at the hearing that the relevant date in this matter is 1 March 2021.
HEARING
The matter was heard on 15 and 16 February 2021 by video-link, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Applicant gave evidence and was cross-examined. He was represented by Mr Zaki Omar, a lawyer from Human Rights for All. The Respondent was represented by Ms Emma Letcher-Boldt of Clayton Utz.
The Applicant tendered the following documents which were admitted into evidence:
(a)Applicant’s statutory declaration, declared on 4 February 2021 (Exhibit A1);
(b)A letter from Ms AB, the sister of the Applicant, dated 30 October 2020 (Exhibit A2);
(c)A selection of news reports on South Sudan, various dates, lodged on 10 February 2021 (Exhibit A3); and
(d)A selection of news reports on floods in South Sudan, lodged on 10 February 2021 (Exhibit A4).
The Respondent tendered the following documents, which were admitted into evidence:
(a)Volume of ‘G’ documents (GD), paginated 1 to 262 (Exhibit R1);
(b)Volume of supplementary ‘G’ documents (SGD), paginated 263 to 404 (Exhibit R2);
(c)Volume of further supplementary ‘G’ documents (FSGD), paginated 405 to 446 (Exhibit R3);
(d)Bundle of summons material (SM), paginated 1 to 67 (Exhibit R4).
The Applicant submitted a written Statement of Facts, Issues and Contentions (ASFIC), and the Respondent likewise submitted a written Statement of Facts, Issues and Contentions (RSFIC), both of which were taken into account by the Tribunal.
THE QUESTION BEFORE THE TRIBUNAL
Mr Omar, for the Applicant, made submissions about the nature of the proceedings. He referred to the cancellation of Mr Shoul’s visa on 11 March 2020 under section 501(3A) of the Act and that there was no ‘natural justice letter’ sent to the Applicant before this cancellation decision. Mr Omar submitted that the ‘original decision’ should be revoked because Mr Shoul passes the character test because the basis of that decision was that the Applicant had a substantial criminal record as that term is defined in the Act and that on appeal the sentence imposed on Mr Shoul was reduced to 10 months. Mr Omar said that the County Court of Victoria took into account the protection of the Australian community before reducing the sentence.
Ms Letcher-Boldt, for the Respondent, submitted that there were two questions before the Tribunal. The first was: does the Applicant pass the character test? The second question was: Is there another reason that the mandatory cancellation of the visa should be revoked? Ms Letcher-Boldt submitted that the Respondent’s delegate decided that Mr Shoul failed the character test under sections 501(6)(i) and (v) of the Act.
Consideration
Mr Shoul’s visa was cancelled on 11 March 2020. At that time the factual situation was that the Applicant had been convicted on 15 January 2020 (GD, p 155) in the Magistrates’ Court of Victoria at Sunshine of the following offences, detailed in the National Criminal History Check dated 2 March 2020 (GD, p 30): Resist police officer; Affray (3 counts); Assault Emergency Worker on Duty (3 counts); Assault Protective Services Officer; Commit Indictable Offence on Bail; Fail to Answer Bail, and the Court had sentenced him to a period of imprisonment for 18 months (sentencing remarks of the Magistrate at GD, p 65). Mr Shoul therefore had a ‘substantial criminal record’ under section 501(3A)(a)(i) of the Act in the terms expressed in section 501(7)(c) of the Act as he had been sentenced to a term of imprisonment of 12 months or more. He also fulfilled the requirement in section 501(3A)(b) of the Act because he was at the time of cancellation serving a sentence of imprisonment on a full-time basis in Marngoneet Correctional Centre in Victoria (see the Department file note dated 11 March 2020 at GD, p 158).
The beginning of section 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of stipulated facts, in Mr Shoul’s case that he had a ‘substantial criminal record’ and was serving a full-time prison sentence. I am satisfied that the factual circumstances that applied to Mr Shoul were met on the date his visa was cancelled, 11 March 2020, in terms of the mandatory cancellation of his visa.
Mr Omar is correct that no ‘natural justice letter’ was sent to the Applicant about the cancellation of his visa, but that is because the Minister did not make a decision based on a discretionary power. The Minister (or his delegate) needed only to be satisfied that the factual circumstances of (a) a ‘substantial criminal record’ and (b) the person serving a full-time prison sentence at the time of the visa cancellation, had been met. The opportunity for natural justice to be extended to a person whose visa has been cancelled in these circumstances comes after the cancellation, as is provided in section 501CA(3) of the Act. The Minister must, as soon as practicable after making the decision to cancel the visa, give the person written notice of the decision, particulars of the relevant information and invite the person to make representations about revocation of the original decision. I am satisfied that Mr Shoul was advised of the cancellation of his visa on 11 March 2020 and invited to make representations as required under the Act, because he wrote to the Department of Home Affairs (the Department) on 19 May 2020 (GD, p 90) requesting revocation of the mandatory cancellation of his visa, making representations and advising he would be providing further documents to support his revocation request ‘shortly’.
On 11 June 2020, the County Court set aside the 18-month sentence imposed by the Sunshine Magistrates Court and substituted a new sentence of 10 months imprisonment and a $150 fine. On 5 October 2020 (GD, p 145), the Department wrote a further letter to Mr Shoul inviting him to make any representations on further information relevant to whether to revoke the original decision to mandatorily cancel his visa, and this letter included, as an attachment, the transcript of the proceedings before the County Court where the sentence was reduced to 10 months. By this time Mr Shoul had engaged legal representatives, and they did make further representations (GD, p 121). Relevantly, the Applicant’s legal representatives wrote to the Department:
Of significance to Mr Shoul’s visa cancellation is that on 11 June 2020, Mr Shoul’s custodial sentence was reduced to 10 months and a $150 fine. As such, if Mr Shoul’s criminal record was examined de novo, his visa would not be mandatorily cancelled. This is a significant factor supporting the revocation of the cancellation of the visa.
In the delegate’s Statement of Reasons, the delegate wrote (GD, p 14):
I am cognisant that a National Criminal History Check report dated 31 July 2020 indicates that on 11 June 2020 in the Country Court of Victoria the original sentencing orders [i.e. the Magistrate’s orders] were set aside and Mr SHOUL was resentenced to a 10 month aggregate term of imprisonment.
I therefore accept that Mr SHOUL now does not have any single sentence of 12 months imprisonment in his criminal history and therefore he no longer fails the limb of the character test embodied in s 501(6)(a) (substantial criminal record) on the basis of s501(7)(c).
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, Rares J held, at [68] that the Applicant’s failure in that matter ‘to satisfy the delegate about the criterion in s 501(6)(d)(i)’ meant that ‘ground confined the issues…on review’.
In Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629, the High Court (Bell, Gageler, Gordon and Edelman JJ) reasoned, at [51]:
The AAT must address the same question the primary decision-maker was required to address…
In the delegate’s signed decision dated 4 December 2020 itself, the wording of the decision is (GD, p 13):
Mr SHOUL has made representations about revocation of the visa cancellation decision in accordance with this invitation. Mr SHOUL now passes the character test embodied in s501(6)(a) with reference to s501(7)(c), I am not satisfied that Mr SHOUL passes all other limbs of the character test (as defined in s501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in section 501CA is not enlivened and Mr SHOUL’s Class BC Subclass 100 Spouse visa remains cancelled. My reasons are set out in the attached Statement of Reasons.
It is this decision that the Tribunal is reviewing. It is not the decision to mandatorily cancel the visa, because that was not a discretionary decision and the Tribunal has found that the factual ingredients for the exercise of that power on 11 March 2020 were met.
The first question before the Tribunal – a ‘confined’ question
The Tribunal partially accepts the Respondent’s submission that the first question before me is: Does the Applicant pass the character test? However, the relevant subparagraphs on which the delegate decided Mr Shoul did not, sections 501(6)(d)(i) and (v) of the Act, ‘confine’ the Tribunal to review whether that finding was correct in law and the preferable decision where a discretionary power is available.
If Mr Shoul does pass the character test, then the visa should be restored.
The second question before the Tribunal, if the answer to the first question is ‘No’.
If, however, the Tribunal finds that Mr Shoul does not pass the character test, then the next step is for the second question to be addressed: Is there another reason why the original decision should be revoked, i.e. is there another reason to restore the visa?
The Tribunal also agrees with the Applicant’s representation to the Department that the fact that, owing to the reduction in the sentence, the visa would not have been mandatorily cancelled, is a factor that is relevant to the question of whether the visa should be restored, but the plain fact is that Mr Shoul is without a visa and the Tribunal must consider his application arguing that it should be restored to him.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act, and section 499(2) requires any such directions to be consistent with the Act and regulations made under the Act. If the Minister has made such a direction, a decision-maker (including this Tribunal) is required, under section 499(2A) of the Act, to comply with it. The Minister did make a relevant direction under section 499(1) of the Act on 20 December 2018, Direction No. 79 (the Direction) and the Direction took effect from 28 February 2019.
Annex A of the Direction refers to the character test. Sections 1(1), (2) and (3) relevantly state:
Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
Annex A goes on at Section 2, paragraph 6.1 to refer to ‘Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))’ and says:
A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Further in Section 2, paragraph 6.3 refers to ‘Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v))’, and says:
In deciding whether a person does not pass the character test under section 501(6)(d)(iii), (iv) or (v) of the Act, factors to be considered include, but are not limited to, evidence that the person:
(a)Would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression;
(b)Would vilify a part of the community;
(c)has a record of encouraging disregard for law and order;
Note: For example, in the course of addressing public rallies.
(d)has engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society;
Note: For example, advocating that particular ethnic groups should adopt political, social or religious values well outside those generally acceptable in Australian society, and which, if adopted or practised, might lead to discord within those groups or between those groups and other segments of Australian society.
(e)participates in, or is active in promotion of, politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia;
(f)is likely to provoke civil unrest in Australia because of the conjunction of the person’s intended activities and proposed timing of their presence in Australia with those of another individual, group or organisation holding opposing views.
The operation of section 501(6)(d)(iii), (iv) and (v) of the Act must be balanced against Australia’s well established traditions of free expression. The grounds in these sub-paragraphs are not intended to provide a charter for denying entry or continued stay to persons merely because they hold or are likely to express unpopular opinions. However, where those opinions may attract strong expressions of disagreement and condemnation from the Australian community, the current views of the community will be a consideration in terms of assessing the extent to which particular activities or opinions are likely to cause discord or unrest.
In Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, (Akpata) Lander J stated at [105]:
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
At the time of Akpata, an earlier version of the Direction was in force, which has since been superseded. Clause 6(1) of Section 2 of Annex A relevantly says:
Risk in regards [sic] to future conduct (section 501(6)(d))
(1)A person who does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act…
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
(Emphasis added)
Therefore, in short, under the current Direction it needs to be found that there is ‘a risk’ that Mr Shoul would engage in any of the conduct stipulated in section 501(6)(d)(i) and (v) of the Act. That risk need not now be a ‘significant risk’, but there must be more than a minimal or remote chance of any of that conduct occurring in the future.
Relevantly, in considering the statutory construction of section 501(6)(d)(i) in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 (Sabharwal), Kerr J referred to the Explanatory Memorandum of the Migration Amendment (Character and General Visa Cancellation) Bill 2014, at [83]–[84]:
Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.
The Full Court of the Federal Court of Australia stated in a subsequent appeal (Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, at [2]) that section 501(6)(d)(i) of the Act requires:
…an evaluative judgment by the decision-maker…as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has the discretion to refuse to grant a visa to the person.
Before the Tribunal were the sentencing remarks of the Magistrate at the Sunshine court. His Honour stated (GD, p 46–48):
…you’re correct in saying, is that he’s been violent for many years both that have been dealt with in the Children’s Court but throughout that period of 2017, 18 and 19 it’s gone unabated and irrespective of where he is, his propensity to use violence seems to be extreme and his preparedness to assault police officers without warning who are executing or performing their duties is alarming.…
Which is seemingly fortunate rather than anything else in the context that baseball bats have been used, head-butts to unexpected, unsuspecting persons, police officers so you’re right. There has been no long lasting injury but it’s rather good luck rather than good management.
…
Some of the threats that he made to officers at various times during these incidents are of a very vile and threatening nature… “I don’t give a fuck about you guys, I will fuck you up on any given day without hesitation," and seemingly he’s carried that through. Complete lack of remorse in regards [sic] to what he’s done.
…
But then again, it seems to fly in the face of the KISP report which is dated 28 October 2019. “Since his bail application on 4 September Mr Shoul has attended one out of seven case management appointments."… So again when tested, so you know, I’ve got some very real concerns in regards to the YSAS letter, flies completely with the face of what appears to be facts…But that six years is the total period of his prior history… Which kicks off with an intentionally cause injury in 2013 and as we discussed earlier, since that date he’s appeared on at least seven significant and serious assault related matters all examples of violent behaviour and a contempt for law enforcement… So the six years of identifying goals and working with YSAS is just not supported by one, his criminal history and two, the KISP report when given an opportunity post-release from remand he sadly doesn’t comply at all…
Stand up please, Mr Shoul. Your counsel on your behalf of submitted that I should consider a combination sentence of perhaps a period of imprisonment combined with a community corrections order upon your release. Matters that your counsel relied upon is that your relative young age, you’re a youthful offender. You’ve turned 22 years whilst on remand for these matters. You were aged between 18 and 21 at the time of the offending and that’s a serious consideration that the court cannot ignore.
Your plea of guilty which is significant, the fact that you have a family support is also significant. The fact that you had a troubled past and upbringing and the circumstances that led to you coming to Australia, living with your sister, the uncertainty in regards to the whereabouts or status of your mother, the death of your father, all of those are important considerations as is the absence of a significant male role model.
It’s been put that you have developing maturity since this offending and have had a time of reflection and insight into the offending since you’ve been in custody and have now appreciated a link between alcohol consumption and violence. Those are all matters that the court must take into account in formulating an appropriate sentence but as you’d appreciate there is a balancing act that the court needs to do.
I need to balance those considerations against the offending and your prior criminal history. Dealing firstly with your criminal history, I note that it is a four-page LEAP history spanning between 2013 and current times which would make you between 15 and your current age of 22. During the course of that you’ve appeared for several violent related offences in the Children’s Court and have had a range of dispositions afforded to you culminating in a youth supervision order in 2016.
It’s significant that in April of 2017 you appeared on a number of charges including intentionally cause injury times two, assault police times two, resist police times four and related offences for which you were fined an aggregate sum of $2,000. Subsequent to that court appearance there has then been offences involving different informants for different matters in December of 2017, November of 2018 and July of 2019.
You’ve heard me say that I considered the matter involving Informant Walker, the matter in December of 2017 to be a particularly serious form of an affray. Two opposing groups of individuals armed with weapons assaulting one another in public area witnessed by parents picking up their children from a nearby school who were in fear of what they were witnessing. I note that when police intervened you had made comments such as “take the handcuffs off or I’ll fuck you up."
Notwithstanding the seriousness of that matter in 2018 you were then involved in a second affray where an individual involved in that lost consciousness. A person went to his assistance. It seems that you were trying to prevent that person from rendering the assistance and when police turned up you head-butted one of the officers and then perhaps arrogantly stated “What are you going to do now?”
You then tried to bite police, you tried to kick police who were simply there to try and quell the significant and distressing circumstances that you had engaged in. Then lastly there’s the matter in 2019 where again police have attended as a result of a brawl at the hotel. You refused to give details to officers who attended and as you seemingly have been want to do in the past, you suddenly without warning head-butted a PSO to the side of the head and then made the statement “I don’t a give a fuck about you guys, I will fuck you up on any day without hesitation."
Now, that calls into question any insight that you do have into your behaviour because the level of violence that you’ve expressed against members of the police executing their duties is disturbing. The community has an expectation that the courts will support emergency workers involved in carrying out their duties who are the subject of violence brought about through nothing that they’ve done. It’s notable that on each of the three affrays police have been called by numerous members of the public who are witnessing violence in the streets of Melbourne and have attended to those calls or responded to those calls and tried to quell the situation as quickly and as professionally as they could but during the course of that were subjected to significant violence themselves.
When given opportunities in the past such as when bailed in 2019 subject to YSAS involvement which is a Youth Support and Advocacy Service, it seems that you said things that people wanted to hear as opposed to carrying through with that because the report that I have from KISP shows that you did not engage, you attended once in seven appointments and really just fell off the radar.
I have to consider general and specific deterrence, be conscious of the community’s expectations and denounce behaviours which is, for a protracted period of arguably three years…
(Emphasis added)
The Tribunal notes that the National Criminal History Check (GD, pp 30-32) records that the Applicant appeared before the Children’s Court in June 2013 with 20 charges brought against him. On that occasion no convictions were recorded, and he was placed on probation for nine months until March 2014.
Mr Shoul was again before the Children’s Court in October 2013 on three charges. Again, no conviction was recorded, and he was released on a Youth Supervision Order for 9 months to July 2014.
In April 2014, Mr Shoul was before the Children’s Court on one charge of Burglary, one charge of Attempted Burglary and two counts of Theft. No conviction was recorded, and a fresh Youth Supervision Order was made for 6 months to October 2014.
In September 2014, Mr Shoul appeared before the Children’s Court on three charges. The court adjourned the matters without conviction and released the Applicant on a Good Behaviour Bond.
In June 2015, the Applicant was back before the Melbourne Children’s Court. He was charged with the offences of Burglary, Assault Police, Drunk in a Public Place, and Contravene a Conduct Condition of Bail. He was released without conviction but placed on probation for 12 months.
In February 2016, Mr Shoul again faced the Children’s Court, with 15 charges brought against him. He was not convicted but placed on a Youth Supervision Order for 6 months.
In April 2017, the Applicant appeared before an adult court for the first time, the Magistrates’ Court of Victoria at Sunshine. He was convicted of 15 charges, including three charges of Assault Police Officer, four charges of Resist Police Officer, one charge of Resist Protective Services Officer, one charge of Assault Protective Services Officer. He was fined an aggregate of $2,000.
In August 2019, Mr Shoul was convicted before the Melbourne Magistrates’ Court of three charges of Contravene a Conduct Condition of Bail, and was imprisoned for an aggregate of 18 days.
In January 2020, the Applicant was before Sunshine Magistrates’ Court on the charge of Drunk in a Public Place. The charge was found proven and dismissed.
On 15 January 2020, Mr Shoul was again before the Sunshine Magistrates’ Court and charged with the offences which triggered the cancellation of his visa.
ORAL EVIDENCE OF APPLICANT
Mr Shoul adopted his statutory declaration dated 4 February 2021. He said he had undertaken various activities in prison, including a Certificate II in Food Handling and Kitchen Preparation, a Certificate II in IT, and part of the studies towards a Certificate III. He said he had also undertaken one vocational course, but could not recall the detail, and a Certificate II in Construction (a ‘white card’). He said he had undertaken a ‘Seachange’ course on moderating violent behaviour.
Asked what he had learnt from the moderating violent behaviour course, Mr Shoul said
‘I learned to control myself. I learned to set my wrongs. I learned to apply that for the future, my mood and the way I communicate, my feelings. How to cope with drugs and alcohol and have learned a little bit.’
Mr Shoul confirmed that he arrived in Australia aged 10. Asked about his early experiences in Australia, he responded:
‘At the start, everything was ok. Grade 6 was integrated with other kids. I was bullied about my name. My name is Gok, and I was teased about that. Four boys always picked on me. One day one of them just hit me in the face. I didn’t know how to react. I had no trouble with teachers but in Year 7 I started to have trouble with teachers, my teachers in maths, ESL, arts, humanities. I didn’t like art.’
Mr Omar asked did he feel there were elements of racism with his teachers and, if so, how did he feel about that. The Applicant responded that he did not feel anything at the time. He said he was teased because he did not have the proper uniform or money for lunch and was sometimes late for school because he had to walk.
Asked whether his lack of trust with his teachers made him lose faith in authority figures, Mr Shoul responded: ‘It did, but I can’t blame that. There were some good authority figures. It doesn’t mean it was right.’
When asked if he felt remorse for his past criminal conduct, Mr Shoul said: ‘Yes. Everything I have done has impacted on me. I was intoxicated and on drugs. I was emotional and reacted. If given the chance again, I wouldn’t react. I would do things a lot differently.’
Mr Shoul said the way he lashed out was related to his alcohol and drug dependency. Mr Omar asked how he has addressed that. The Applicant responded:
‘I am thankful of the chance to rehabilitate for this long. My addiction was alcohol. Now, I would not be going back to the same situation. I probably would not go back to the same State. I want to start a new life and look after my niece and nephews. Melbourne is not a good place for me.’
When asked how long he has been sober, Mr Shoul responded: ‘Since 27 November 2019, when I was arrested.’
When asked if there have been any incidents in prison or immigration detention, the Applicant said: ‘No, I have kept myself calm. If there was, it would be in the reports. I have always worked in prison.’
Mr Shoul said he worked in the prison kitchen from April until August 2020 when he went into detention.
When asked about his relationship with his sister, Ms AB, Mr Shoul said
‘It has always been good. We got closer when she had her first child, [LO]. He’s a good kid. For six months I helped with [LO] then she had her second child. She contracted TB. I had it prior. I used to take them out to KFC, McDonald’s, and to the playground to kick a ball about. I took my niece to the playground. I was around for seven months after [EK, the youngest of his sister’s three children] was born, and then I was arrested.’
When asked about the father of his nephew and nieces, Mr Shoul said: ‘I don’t see the father around. I don’t like to ask my sister about him – I don’t want to get into her love affair. He would come around every month – sometimes not at all.’
Mr Omar asked what the Applicant would do if he was given the opportunity to go back into the community. Mr Shoul said:
‘I would try and come back to Western Australia. There is more opportunity here. I would build my life here, rather than a life of crime which benefitted nobody. I would make a lot of good money that is legal, and pay my taxes and do my part in the Sudanese community. Crime is not cool. I might end up dead one day.’
Under cross-examination, Mr Shoul agreed that he began offending in 2013 when he was aged 15. He agreed that his juvenile offending included charges for reckless injury, assaults, theft and burglary. He agreed that he had received three Youth Supervision Orders, a Good Behaviour Bond and probation, and that these orders did not stop him re-offending.
Mr Shoul was asked about a fight in Collingwood in December 2017 which was near a school during a school pick up period. The Applicant responded that there were no parents around at the time of the fight, but they were there when he was arrested.
Ms Letcher-Boldt asked Mr Shoul whether he used a bat to hit two individuals. He responded: ‘In self-defence.’
Asked whether he remembered refusing to provide his name to police officers who attended the incident, Mr Shoul responded: ‘Actually, I didn’t comment. I walked away.’
When asked whether he became verbally abusive to police on that occasion, Mr Shoul said: ‘Yes, when he pushed my cousin, I reacted. I swore at him and made comments that I’d do something.’
Mr Shoul was then asked about a fight in Newport in November 2018, which he said he recalled. He agreed that a person was hit in the head and lost consciousness. Asked whether he and his associate stopped first aid being administered to the victim, Mr Shoul said: ‘No that is not right because I did not. The police only put certain things in the statement. They didn’t put all of what I said and what actually happened.’
Asked whether he knew that the victim spent time in hospital, Mr Shoul said: ‘I recall reading that he was in an induced coma for some days.’
When asked whether he recalled the police attending the incident and did he remember head-butting the police and threatening an officer, that he would ‘find them on the street’, Mr Shoul said that he did recall this. Asked whether he recalled attempting to bite a police officer and kicking him, Mr Shoul said: ‘I recall kicking but not biting.’ He agreed that this was an aggressive way to respond.
Asked about a fight in Sunshine in 2019, Mr Shoul said he did not recall a fight but did recall the occasion. He said he did not recall attempting to attack a person or fleeing the scene but did recall the police talking to him at a train station. He said he did recall refusing to provide his personal details to the police.
Mr Shoul said that he did not have a fight that day but had a fight a previous day and recalled head-butting a police officer. He said: ‘My body reacted; I can’t change what happened.’
Mr Shoul agreed that he had committed a number of violent offences over the years and that some of these offences were directed to police officers, emergency workers and protective service officers.
When asked why he had assaulted officers on a number of occasions, the Applicant responded: ‘Every day I was heavily intoxicated. I had a grudge against them at the time.’
Asked directly by the Tribunal why he had a grudge, Mr Shoul replied: ‘I don’t know. I was young. I did get beaten up.’
Asked whether he was suggesting that he was beaten up by the police, Mr Shoul said ‘Yes. I even got my legs broken by police in 2017.’ He told the Tribunal he no longer has a grudge.
When asked whether he would say he had been a danger in the community, Mr Shoul responded: ‘I don’t know. I could say I was because I was irrational because I was only thinking of myself and not good outcomes for myself.’
Mr Shoul said he did not think he was now a danger to the community because of the courses and training programmes he had done in gaol. He said he had not received a completion certificate for the course he did in prison before he was transferred to immigration detention. He said the course went for three months but he was not assessed for a more intensive course because there was a waiting list, so he did the shorter course. He said the course included content on alcohol or substance abuse.
Mr Shoul said he had abstained from alcohol since November 2019 and had not used drugs since that time. He said he had learned to say ‘no’ and stand up for himself, even in prison. He said he had come to understand that there was a connexion between his alcohol use and his offending.
Asked directly by the Tribunal what drugs he had taken, Mr Shoul said: ‘Meth 2018 to January 2019. Alcohol and weed, marijuana mostly.’
When asked whether he recalled referring himself to Youth Support and Advocacy Services (YSAS) in April 2013, Mr Shoul said he did remember that, it was at the time he had just dropped out of Year 9. He said: ‘I was drinking every day so wanted to get expert help.’
He said he remembered a two-week residential stay in a support centre in 2014. Ms Letcher-Boldt drew Mr Shoul’s attention to a report in 2014 (SM1, p 21) which states:
It is the writer’s assessment that Jok has limited comprehension of the seriousness of his offending behaviour and the impact he has had on the victims. Jok has been able to identify substance abuse and boredom as contributing factors to his offending.
Mr Shoul agreed that at the time of this report he had identified the link between substance abuse and offending. He agreed that he was seeing a YSAS worker on a weekly basis in 2015. He recalled spending two weeks in a detoxification unit in 2015 (SM1, p 34).
He agreed that in 2015 and 2016 he recognised the link between alcohol and drug use and his offending.
Mr Shoul was taken to a report (SM1, p 34) which recorded that he was referred to a psychologist in January 2016 to ‘address escalating offending behaviours and underlying trauma, however Gok disengaged from this service and did not wish to participate.’ Mr Shoul said that he attended a few sessions but did not think he was getting helpful feedback, so he just disengaged.
Asked by Ms Letcher-Boldt what programmes he would engage in if allowed to stay in Australia, Mr Shoul said that he wanted to undertake a course in video production and get back to playing basketball and going to the gym.
When asked directly by the Tribunal what courses he would undertake in terms of drug and alcohol use, Mr Shoul responded: ‘Anger management mostly. I think I need more AA meetings. Try to get a certificate. I think I forgot most of what I learned in 2013 and need to refresh.’
Mr Shoul was asked whether he had identified any specific Alcoholics Anonymous meetings or anger management courses. He said he would talk to a South Sudanese family friend who had provided a statement in his support (GD, p 119-120).
Mr Shoul confirmed he would look to move to Western Australia. He said he had not identified any courses in WA yet. He said he did not want to stay in Melbourne any longer than six months, and that he had told his sister of his plans.
The Applicant confirmed he had had support of his sisters over a number of years and did not have any family in Western Australia but had a close friend there. He said he wanted to make new friends and did not want to go out clubbing every weekend.
Mr Shoul said he did not think that if he only had one drink of alcohol, he would be unable to stop but said ‘I know I have an addictive personality. I don’t want to get into that again.’
In relation to his sister, Ms AB’s, children, Mr Shoul said he had helped look after them over the years but agreed that their mother is their primary carer. He said that he knew that their father also has some involvement in their lives.
Mr Shoul was taken to a Pre-Sentence Report (SM1, p 15) which, at page 18, recites a summary he gave to the author of the report about his early life in South Sudan. He said he believed he had been born in South Sudan, which is what he was told by his aunt. The summary states that the Applicant ‘moved to Egypt to study with his maternal aunt’. Mr Shoul said: ‘No, that is not correct. I admit to stating a false report. Most of the things I said are false.’
The report states that Mr Shoul’s mother was living in Africa and that family members were contacting her and advising her he was not doing well at the time (i.e. in 2013). Mr Shoul was asked if this report was correct. He responded: ‘I don’t know. We have no contact with her.’
Mr Shoul said he had no family in Sudan or South Sudan.
When asked about his employment history in Australia, Mr Shoul said: ‘I’ve had no legitimate job. I did some lawnmowing, cash in hand, and some demolition, cash in hand, and some volunteering work at the YSAS café in the city in Melbourne.’
He said he did the volunteering while he was attending a detoxification unit and helped in the kitchen of the café. Mr Shoul said he was offered the opportunity to continue volunteering, but he chose to disengage.
In terms of the lawnmowing, Mr Shoul said that was when he was aged about 12 to 14, and he did work on the weekend. In terms of the demolition work, the Applicant said that was full-time from mid to late 2018. He said that if he was to stay in Australia, he hoped to work in either construction or hospitality, but probably the former because he thought it would pay more.
Mr Shoul said he had been a Christian but converted to Islam in 2018. He said he did not attend a mosque and there was a Friday prayer at the detention facility, but that he prays in his room and reads the Qur’an from time to time.
Asked about his health, Mr Shoul said he had ‘no disability’ and apart from the diagnosis of latent tuberculosis (TB), he had never been diagnosed with other health conditions. He confirmed he did not currently take any medication in relation to TB.
When asked whether he had been told he would need medication in the future, Mr Shoul said he had been told his condition could activate at any time. He said that he had completed three months of a four-month course of TB medication because he found it made him sleepy and decided as it had not activated, that there was nothing wrong with him.
Mr Shoul was asked if he remembered having a chest x-ray in 2020. Ms Letcher-Boldt took the Tribunal to a report of Dr Leeshana Reddy, radiologist, dated 21 December 2020, which states (FSGD, p 445):
CONCLUSION:
The chest views are normal for the patient’s age with no evidence of previous or active post-primary pulmonary tuberculosis or other lung pathology.
Mr Shoul said he had not seen the report before and that he had not been told that his TB had not reactivated.
When asked whether his sisters had ever spoken to him about where their parents were born, Mr Shoul said he understood it was a village in South Sudan.
When asked about whether he has any concerns about returning to South Sudan, the Applicant replied: ‘Mostly health issues. Malaria. Flooding. Where my family is from is near a river. There has been a lot of famine. I am also concerned if my TB reactivates. My doctor told me I probably got it as a child and that it’s been lying dormant.’
The Tribunal asked him about his half-sister, Ms NS, who lives in a Melbourne suburb. Mr Shoul said that they were close now, but in the past they had not been. The Tribunal noted that his other sister, Ms AB, works at a school in Melbourne. Mr Shoul said that she would not be able to move with him to Western Australia if he does that because of her work, but his sister Ms NS might move there with him.
Submissions on behalf of the Applicant
Mr Omar said that the County Court took into account the protection of the Australian community when it reduced Mr Shoul’s sentence to 10 months. He further submitted that there is no risk that the Applicant will engage in criminal conduct because he is substantially rehabilitated and had not used alcohol or drugs for the last 15 months even though it was available to him in prison and detention.
Mr Omar said that Mr Shoul had ‘unresolved trauma’ from his very early life in South Sudan and does not remember that time and place. Mr Omar said that a characteristic of Mr Shoul’s offending is that he was mostly resisting and reacting rather than being the first aggressor.
Mr Omar said in the case where the victim of an assault sustained a head injury, it was relevant to note that the Court recorded (GD, p 47) that without taking away the gravity of the offending, there was no long-lasting injury.
In terms of Mr Shoul’s TB diagnosis, Mr Omar drew the Tribunal’s attention to the medical records produced from International Health and Medical Services, who provide medical services to immigration detention centres. At FSGD, p 405, there was refence to the Applicant reporting that he was treated for TB at Footscray Western Hospital in either 2016 or 2017. Mr Omar said that if it is being suggested that the Applicant never had TB, the pathology report at FSGD p 435 dated 27 August 2020 records that he tested positive to the TB antigens and states ‘Evidence of exposure to TB previously or current infection.’
In respect of non-refoulement obligations, Mr Omar drew the Tribunal’s attention to news reports (Exhibit A4) on floods in South Sudan and a UN news report dated 29 September 2020 which states that 5.5 million people, around half the population of the country, require assistance.
Mr Omar said that the home village of the Applicant is in the State of Northern Bahr el Ghazel and that the situation in South Sudan is dire from a humanitarian perspective.
Mr Omar noted that the RSFIC set out extracts from the Department of Foreign Affairs and Trade (DFAT) travel advice in relation to South Sudan which records that, except for the capital Juba, the rest of South Sudan has little or no medical facilities.
The Applicant’s counsel noted that Mr Shoul is of Dinka ethnicity but is not from Juba. He said that the Applicant is Muslim and does not have citizenship documentation, and that there is a US report recorded in the Respondent’s submissions that some Muslims face official discrimination, particularly in relation to obtaining nationality or identity documents. He said that Mr Shoul has no documents to enable him to provide that his parents were born in South Sudan, and it would be ‘onerous’ for him to apply for citizenship of South Sudan.
In terms of the considerations in the Direction, Mr Omar referred to Protection of the Australian Community. He submitted that sufficient rehabilitation has taken place and that the appellate court had taken into account protection of the Australian community before reducing the sentence to ten months.
In terms of the Nature and Seriousness of the Conduct, Mr Omar said the Applicant is truly remorseful and regrets his past conduct. He was young and faced bullying and systemic racist behaviour, and lashed out as a teenager, which he now regrets immensely. Mr Omar said that the pattern of behaviour of the Applicant is ‘conduct where the Applicant was not the first aggressor.’
Mr Omar said there was no likelihood of any risk to the Australian community in the future, because the Applicant has now been sober for a sustained period, had undertaken courses to address his behaviour and there had been no reported incidents of violent or aggressive behaviour in either prison or immigration detention.
Submissions by the Respondent
Ms Letcher-Boldt said that the Applicant has an expansive criminal history of some 80 offences in seven years. She said that in spite of the courts imposing numerous non-custodial sentences, Mr Shoul has not been deterred, in spite also of having familial support.
Ms Letcher-Boldt submitted that there was ‘considerable risk’ that the Applicant would engage in criminal conduct. He has been violent to people he did not know, and one victim spent a week in hospital. The Respondent submitted that Mr Shoul represents a particular danger to police, emergency service workers and protective service officers because of his propensity for violence. Ms Letcher-Boldt noted that sixteen of the Applicant’s offences between 2016 and 2020 related to interactions with the police, including head-butting and hitting.
In terms of the reduction in the sentence, Ms Letcher-Boldt said that this was conceded, but that the County Court still said that the offending was serious. She said that non-custodial sentences have not prevented re-offending and demonstrate a disregard of the Applicant for Australian laws.
In terms of the consideration in the Direction relating to the best interests of minor children, the Respondent accepted it would be in the best interests of Mr Shoul’s nieces and nephew for his visa to be restored, but noted that the Applicant accepted that their mother, Ms AB, was the primary care giver and that their father was still in their lives. Ms Letcher-Boldt noted it was the Applicant’s intention to relocate to Western Australia if his visa is restored.
In respect of non-refoulement, the Respondent noted that several of the issues raised by Mr Omar were not raised by the Applicant in his oral evidence, raising only health issues and flooding. The Respondent submits that the Applicant’s own evidence is that his parents were born in South Sudan (SGD, p 264–269) and submitted that Mr Shoul is a South Sudanese National. Ms Letcher-Boldt noted that DFAT had recorded some correlation between discrimination and ethnicity but noted also that Dinka are the largest ethnic group.
Ms Letcher-Boldt said the Respondent accepts that South Sudan experiences insecurity and violence but did not accept that the Applicant would personally face a risk of harm. She said that if the Tribunal finds that Mr Shoul is owed non-refoulement obligations by Australia, such a finding might not outweigh other considerations and noted that it was open to the Applicant to apply for a protection visa.
Consideration
In relation to section 501(6)(d)(i) of the Act, the Tribunal notes that Mr Shoul has been before the Courts on some 77 matters. These matters, according to the National Criminal History Check, have been either proven without conviction, or he has been convicted. His offending commenced on his own evidence when he was aged 15 and then continued after he became an adult. The evidence is consistent that much of the offending was linked to his consumption of alcohol, noting that he said that he was drinking daily even when still at school. He has been in residential detoxification units on several occasions.
In assessing whether there is a risk that Mr Shoul would engage in criminal conduct in Australia if he is allowed to remain here, the Applicant submits that there is ‘no risk’. The Respondent submits there is a ‘substantial risk’. The Tribunal does not accept either of these submissions. In respect of there being ‘no risk’, the Tribunal is reminded of the decision of Justice Mathews in Re Lam and Minister for Immigration and MulticulturalAffairs [1999] AATA 56 where Her Honour, sitting as a presidential member of this Tribunal, stated, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
Mr Shoul has axiomatically shown a consistent disregard for the law. While some allowance may be given to the fact that his earliest offending was as a juvenile, the children’s court system applied various tools, including Youth Supervision Orders, in attempts to regulate and reform his behaviour, but he consistently breached the conditions imposed by the Courts. I do take account that much of his offending apparently was driven by him being intoxicated, and there are some early and positive signs that he is attempting to address this, so I cannot be comfortably satisfied with the Respondent’s submission that the risk of re-offending is ‘substantial’. But as the Annex to the Direction points out, the risk need only be more than minimal or remote. To borrow the words of Kerr J in Sabharwal, I am satisfied, with the significant record of offending Mr Shoul has amassed in a relatively short number of years, that the risk of re-offending is not a derisively small possibility.
Finding in relation to the character test
The Tribunal finds that there is more than a minimal or remote probability that the Applicant will engage in criminal conduct in the future if allowed to remain in Australia. It follows that he fails the limb of the character test set out in section 501(6)(d)(i) of the Act.
The Respondent submitted that the Tribunal should also affirm the delegate’s finding that the delegate was satisfied that Mr Shoul also failed the character test under section 501(6)(d)(v) of the Act. I am not convinced by this submission. There were no written submissions on this limb in the RSFIC. Ms Letcher-Boldt in her oral submissions at the hearing submitted that Mr Shoul did represent a danger to the community and a ‘significant risk of harm to persons given his history of re-offending’.
The Tribunal considers that while section 501(6)(d)(v) of the Act refers to a person representing a danger to the Australian community or to a segment of the community “or in any other way”, its prime purpose is focussed on a person whose conduct would lead to activities which are disruptive or involve violence, threatening harm to the community or a segment of that community. It would seem from the additional information in Annex A of the Direction that this is directed towards a person who might have a propensity for incitement. On the information before me, I am not satisfied that Mr Shoul falls into this category, and I find that the Applicant does not fail the character test in relation to this limb.
It is however not necessary for both of the grounds on which the delegate found Mr Shoul failed the character test to be met. The structure of section 501(6) of the Act is disjunctive – a person does not pass the character test if any one of the limbs set out in the subparagraphs is satisfied. As the Tribunal has found section 501(6)(d)(i) of the Act is satisfied in Mr Shoul’s case, it directly follows that the Applicant fails the character test.
CONSIDERATION OF THE DIRECTION
As the Tribunal has found that the Applicant does not pass the character test, the remaining issue for the Tribunal to determine is whether there is ‘another reason’ to revoke the cancellation of his visa. Under section 499(2A) of the Act, the Tribunal must comply with the Direction in considering this question.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
At the hearing, the Tribunal invited submissions from the representatives of both parties as to whether an assessment of Mr Shoul should be undertaken under Part A or Part C of the Direction. Neither Ms Letcher-Boldt nor Mr Omar expressed a view, though Ms Letcher-Boldt submitted that given it was a mandatory cancellation, Part C might still be applicable.
The Tribunal, noting that the primary and other considerations are the same in Part A and Part C, and the wording of the Direction is in many respects is substantially similar, mutatis mutandis (except notably in the subparagraphs relating to ‘the nature and seriousness of the conduct’) decides that the appropriate part of the Direction to consider is nevertheless Part C. Even though the original decision to cancel the visa was done on a ground that no longer applies, the visa remains cancelled and the delegate separately decided that Mr Shoul nonetheless failed the character test under different limbs, one of which the Tribunal upholds, and then decided there was not another reason to revoke the cancellation. Even if the Tribunal is wrong in this respect, the safer course to follow is to consider the same part of the Direction that the delegate addressed, and that is Part C.
In deciding whether to cancel a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(1) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian Community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY (PARAGRAPH 13.1)
The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia on a visa, the person will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community.
The Tribunal notes that Mr Omar submitted at the hearing that the County Court had ‘already addressed’ protection of the community when imposing the 10-month sentence. It is axiomatic that all judicial officers consider protection of the community when deciding what a penalty should be for a person found guilty of an offence. The Tribunal’s task in this regard is different from a Court’s, precisely because it is required to address the ‘Protection of the Australian community’ within the strictures of the Direction, which includes various matters to address which may not necessarily be relevant to a sentencing Judge or Magistrate.
The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain factors.
(Paragraph 13.1.1 (a)) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously:
There is no evidence that Mr Shoul has been convicted of any sexual crime. The offences contained in the National Criminal History Check span some motoring offences, several burglary and theft offences, recklessly and intentionally causing injury and many of what the Tribunal might categorise as public order offences such as public drunkenness, resisting and assaulting police officers and protective services officers. There are a large number of offences relating to the failure of the Applicant to adhere to orders made by the Courts. A significant number of offences of which Mr Shoul has been convicted of which have been proven against him relate to assaults against the person, and within this group there is also a sub-category of particular offending against police officers.
(Paragraph 13.1.1 (b)) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed:
The offences in the National Criminal History Check do not seem to fall into this category.
(Paragraph 13.1.1 (c)) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious:
Mr Shoul has repeatedly committed crimes against government officials, namely officers of the police force, protective service officers and emergency service workers, when these officers were carrying out their duties in those capacities. He admitted to head-butting and striking police officers. Sometimes these physical assaults were, on the facts before the Tribunal, without any provocation or even prior interaction. All of them were unjustified. The Applicant’s assault offences are in the category of offending which the Direction invites decision-makers to regard as serious.
It may be accepted that intoxication was an element in Mr Shoul’s offending, this provides no excuse. It is also not clear that it is a factor in all of his offending.
(Paragraph 13.1.1 (d)) The sentence imposed by the courts for a crime or crimes:
The Courts have deployed a number of sanctions against the Applicant including fines, Youth Supervision Orders, a good behaviour bond, parole, and bail. He has had two prison sentences imposed, one of 18 days and the second of 10 months.
(Paragraph 13.1.1 (e)) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; Paragraph 13.1.1 (f) The cumulative effect of repeated reoffending:
As set out in the above summary of Mr Shoul’s offending, he has committed offences regularly over the period between 2013 and 2020 when he went to prison for his most recent offending. There is not an explicit trend of increasing seriousness but there is, as the County Court Judge observed, a ‘consistency’ of offending, and it is relevant that more maturity has not brought an improvement in conduct. The Courts, initially the children’s courts and later the adult courts, have attempted to use the tools available to them to regulate the Applicant’s behaviour. In spite of regular appearances before the children’s courts, he was often not convicted and given other orders. On almost every occasion the Applicant was back before the Court before the order designed to regulate his conduct had expired. There have been frequent crimes against the person, often persons unknown to Mr Shoul.
(Paragraph 13.1.1 (g)) Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending:
There is no evidence that Mr Shoul has done this.
(Paragraph 13.1.1 (h)) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour):
There is no evidence of previous warnings to the Applicant.
(Paragraph 13.1.1 (i)) Crimes in immigration detention:
There is no evidence before the Tribunal that Mr Shoul has committed any offence or other bad conduct while in immigration detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned, at [59] that the:
…risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk…he might in the future engage…
Consistent with the assessment that the Tribunal has undertaken when considering the question of whether Mr Shoul fails the character test under section 501(6)(d)(i) of the Act, the Tribunal finds that there is a risk of the Applicant re-offending, and that it is a real risk. The sentencing remarks set out above refer to the ‘unabated’ nature of Mr Shoul’s propensity for violence over several years, including an alarming tendency to assault police ‘without warning’ or make ‘vile’ threats against them. This includes Mr Shoul’s admissions to the Tribunal that he used baseball bats against some people involved in the violent incidents referred to in Court.
I make clear that while Mr Omar’s submission that the victim who was rendered unconscious and, on Mr Shoul’s proffered evidence, was in an induced coma, did not suffer lasting effects, carries very slender weight as a persuasive argument in support of the Applicant. As the Magistrate remarked, that was the result of ‘good luck rather than good management’. There is a worrying stripe of unprovoked violent behaviour that runs through Mr Shoul’s criminal offending, and as the County Court Judge remarked, there has been a consistency of offending by the Applicant.
A submission was made by Mr Omar in his closing arguments that some of the offending of the Applicant was provoked by racist remarks. There is scant corroborative evidence of this before the Tribunal, and certainly not evidence that would inform any such finding.
The Tribunal accepts that Mr Shoul has not used alcohol or illicit drugs since his arrest at the end of November 2019. However, this has not been tested in the community and the Applicant himself admitted that he had what he called an ‘addictive personality’. He does seem to recognise the nexus between his drinking (particularly, perhaps more than drug-taking) and his offending, but agreed that he first recognised that in 2014. I accept that he has undertaken the course he described in prison and that his not having a certificate of completion was affected by him leaving prison and transferring to immigration detention. I accept, also, that there were elements of this course that addressed alcohol and substance abuse, but also that Mr Shoul recognises that the challenge remains, if he is released in the community, for him to continue to regulate his alcohol intake. He did not submit that he would abstain from drinking.
The Applicant submitted that he would endeavour to find some support with organisations such as Alcoholics Anonymous if he moves to Western Australia, but this intention was somewhat inchoate. It would seem to me that the main reasons he was favourably disposed to a move was because of better job opportunities and to break away from some associates in Melbourne who he might – correctly – consider could lead him back to the path of offending.
When invited to explain why he particularly targeted police officers and other uniformed persons for assault, Mr Shoul stated he had a grudge, which he said he no longer has, but he did claim to the Tribunal he had been ‘beaten up’ by the police and they had ‘broken both’ his legs. There was no information before me to corroborate these claims.
The sentencing Magistrate in January 2020 referred to Mr Shoul’s family support as being a significant factor. In addition, the President of the South Sudanese Community Association in Victoria provided a letter dated 20 October 2020 (GD, p 119) which states:
… I believe Gok has reformed and that he will not be a danger to the community when he is released from detention. I and others in our community, as well as his close family, can and will provide the support and services he needs to successfully reintegrate into the community.
…
Some SSCAV executive members have known Gok for more than ten (10) years during their time in Egypt before he arrived in Australia as minor and I have known him for about 9 years since his arrival to Australia. We all knew Gok to be a good young man with potential to offer to his community. He was a community-minded child who regularly put the needs of others before his own and did substantial volunteer work in the community. I believe Gok is sincerely remorseful for his wrong doings and he can remain reformed, especially with our support and assistance.
I know both his sisters [AB] and [N]. I have met with his sister [AB], who raised him and her 3 children. Both Gok and his sister came to Australia as minors without other extended family members in Australia or back in South Sudan. On numerous occasions, they are undoubtedly also suffering from being isolation, including Gok’s continued detention. She is committed to supporting him on his release from detention.
With Gok sisters’ help and support and that of our community I feel sure Gok has the ability to lead a productive life in Australia and contribute positively to Australia at large. It is also important that he continues to maintain a relationship with his sister’s children as he is their only family and role model, so that they can grow up with security.
I and others from SSCAV commit individually and collectively to support Gok’s reintegration into normal life, and ensure that he does not relapse. As an organization and a community we have the experience and connections required to deliver this commitment. In particular, as soon as Gok receives his visa, he will be assigned a mentor who will help him to engage with all the services and activities available to guide and support his integration so that he becomes productive and feels valued.
We will provide services such as counselling and job search support and we will ensure he is engaged socially through music, sports, singing, communal meals and other activities. In our experience, these services and activities will help Gok to find his place in our community and the wider community. I believe Gok has reformed and he is now capable of taking on the responsibility of being an adult and all it entails.
The Tribunal notes that the author of the letter is, in the Applicant’s words, a close family friend, and does not doubt the good intentions expressed within it. However, there is some tension between Mr Shoul’s stated intentions of staying in Victoria for ‘at most’ six months and then moving to Western Australia, where he would not have his family support, nor the range of support offered in this letter. It is also not clear to the Tribunal whether the author of the letter is fully aware of Mr Shoul’s offending.
I consider there is a risk to the Australian community because of the accumulation of some 77 offences for someone who is aged just 23. Mr Shoul has shown a reckless regard for the safety of others and has continued to act violently in spite of being fully aware, from appearances before the Courts, of the community’s expectations and of the possible personal consequences. Different sentencing options used by Magistrates have not deflected him from reoffending, and a particular target has been, as mentioned above, police officers and others in similar positions of authority.
The Tribunal notes Mr Shoul’s written expressions of remorse, which he reiterated at the hearing. However, it could also be argued that someone who is truly remorseful would not have continued to reoffend. It was of some concern that when asked what courses he intended to do if released into the community, the Applicant focused on a film course and sport, and had to be prompted to mention courses that might aid him in reforming his general behaviour.
Overall, the Tribunal considers there is a risk of reoffending, especially if the protective factor of detention is removed. I am not satisfied that the Applicant has a comprehensive insight into the drivers of his past offending, partly because in some of his responses when taken to specific incidents, he was defensive and to some extent characterised his behaviour as responsive, rather than aggressive. It is difficult to accept that being armed with a baseball bat, and then using it, fits with such a characterisation. Nor does head-butting police officers.
I am also concerned that he makes expansive claims against the police, such as suggesting (where there is no corroboration) that police ‘broke both his legs’ in 2017 and that the police had manipulated a record of interview to omit some information. It would seem to me that, whatever the reason Mr Shoul had a grudge against police, it may still exist. The fact that he has several times over several years been counselled and attended residential detoxification units, and has yet resorted both to drinking and offending, does not fill me with hope that, when not in the protective environment of incarceration, the Applicant might revert to heavy drinking again, with the behavioural consequences that have previously ensued.
The Tribunal finds that this primary consideration weighs relatively heavily against restoration of the visa.
PRIMARY CONSIDERATION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION (PARAGRAPH 13.2)
The Direction requires the Tribunal to make a determination about whether the revocation of the visa cancellation is in the best interests of any relevant minor child. There are three minor children in Australia affected by the decision, the three children of Ms AB – LO, who is aged 5; LU who is aged between 3 and 4, and EK who is aged between 2 and 3.
Ms AB provided a letter to the Tribunal dated 30 October 2020 (Exhibit A2). The letter relevantly says:
My name is [AB]. I work in a Catholic Secondary College as a Student and Family Engagement Officer. I am an Australian citizen and write this letter in support of the revocation of the cancellation of the visa of my little brother Gok Shoul.
…
Gok is my mother and father and everything that I identify being. Gok and myself have been diagnosed with Tuberculosis – I was diagnosed with in late 2018 and started treatment at St Vincent’s Hospital. Gok was starting his music business at the time, he put everything on hold to come and live with me and took responsibility of his nieces and nephew (my children). My children have regular check-ups at the Royal Children Hospital as they are risk of developing TB because they have a weak immune system. Gok said that the times he spent with his nieces and nephew were the only times he felt a genuine love and connection. He is loved and adored by my children and there is no day they do not ask about their dear uncle as he is the only family member they have bonded with.
…
Since Gok has been locked up, my children have missed their uncle a lot, and they constantly ask me ‘mummy why doesn’t our uncle come anymore, does he not love us anymore?’ My youngest daughter who developed an attachment with her uncle would scream at night and cry out ‘Uncle Gok, Uncle Gok!’ I became extremely depressed and stressed as I could only tell them your uncle will be coming home soon. My first born son [LO] turned five … this year, he was emotional and sad that his uncle missed his birthday for the first time in his life. Gok also missed [LO’s] major developmental milestones. In 2020 [LO] started prep and Gok missed out on seeing his nephew start his academic journey. I strongly believe Gok’s absence from [LO’s] life has negatively impacted him, as he sees his friends at school with their fathers and brothers and questions himself why his only role model, father, uncle, brother, grandfather he knows in this world cannot come to get him from school. Gok was constantly in touch with his nephew and nieces while in jail, they always get excited and look forward to talking with their uncle.
It would mean the world to us, if my dear younger brother can have his visa back.
In respect of the Applicant’s two nieces and nephew, the Tribunal accepts that Mr Shoul played a part in their earlier life, and especially did so during the periods when he lived with Ms AB and her children and, as she relates, during her treatment for TB. The Tribunal further accepts that the Applicant has maintained regular contact with these three children during his time in prison and subsequently in immigration detention.
The Direction requires the Tribunal to consider whether there are others who play a parental role, and Ms AB is in this category. It is also relevant from the evidence of the Applicant during the hearing that the children’s father, whilst he does not live with them, plays some parental role, visiting them about once a month, Mr Shoul said. There was a lack of information about how extensive their father’s role is in their lives or supporting Ms AB, and therefore the Tribunal cannot come to any conclusions on that.
On the evidence before me, I am satisfied to determine in relation to LO, LU and EK that it is in their best interests that Mr Shoul’s visa be restored. There is no information before the Tribunal that would single out any of these three children in respect of a different quality of relationship with the Applicant; they are all relatively young, so the determination applies to all three equally.
The weight that is attached to this consideration is slightly lessened because their mother, certainly, and their father, perhaps, play a parental role in their lives. Balancing that, it is clear on the evidence that Mr Shoul is very close to them and has lived in the same household for extended periods. However, it is nonetheless significant that the Applicant expressed the desire to move to Western Australia ‘within six months’ if released into the community, and acknowledged that because of her employment, Ms AB would not be able to relocate with him, although his other sister, Ms NS, might. This has an effect on the weight that should be ascribed to this consideration.
Overall, the Tribunal finds that this consideration weighs in favour of restoring the visa.
PRIMARY CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY (PARAGRAPH 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Federal Court considered this part of a superseded version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185, however the wording in that and the current Direction is essentially the same. Charlesworth and Stewart JJ held, in separate judgements, that this part of the Direction expresses a ‘norm.’
The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other assessment process.
Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(1)non-citizens will obey Australian laws when in Australia;
(2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(iii)in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances. On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
As referred to above, Mr Shoul came to Australia aged 10. He is now aged 23. His circumstances therefore are relevant to the reference in the Direction that ‘Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.
However, the Applicant has breached the law on many occasions over several years, in spite of his relative youth. He has a sparse work record, on his own evidence, but it is accepted that he has assisted his sister, Ms AB, and worked for a short period as a volunteer in the YSAS café, noting there was no corroborating evidence of the latter. What is particularly relevant in terms of the ‘tolerance’ of the community is that a hallmark of his offending has been frequent offending against police officers, emergency workers and protective service officers, all on duty and all of whose responsibility is to protect the community at large and, in the case of the police, keep the peace. Amassing more than 70 offences since 2015 is a disreputable attainment, and the Tribunal’s view is that with the knowledge of this criminal record, the Australian community, in the context of this term in this part of the Direction, would not expect Mr Shoul to retain a visa to remain in Australia.
Even noting that his alcohol problem has been a major factor and that some of the offences have been at the lower end of the scale, there is somewhat a trend of steadily increasing seriousness and certainly a trend of assaults against strangers. The Tribunal finds that Mr Shoul has failed to meet the expectation that he obeys the laws of Australia, an expectation all visa holders, and indeed all Australian citizens as well, should meet.
The Tribunal finds that this consideration weighs relatively heavily against restoring the visa.
OTHER CONSIDERATIONS
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS (PARAGRAPH 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
In the ASFIC, it was submitted that Mr Shoul’s country of reference is South Sudan, due to his place of birth being Marial Bai and his Dinka ethnicity. During the hearing the Tribunal invited oral submissions from parties and both the Applicant’s and the Respondent’s representatives confirmed that South Sudan is the country of reference. The Tribunal notes that Marial Bai is in what is now the Republic of South Sudan (since the partition of Sudan in July 2011), in Northern Bahr el Ghazai. This is also consistent with the Applicant’s oral evidence of coming from that village.
Mr Omar submitted that there is ‘an extremely strong argument’ that Australia owes Mr Shoul protection obligations due to him being Dinka, from South Sudan with no contacts in South Sudan, and being Muslim, submitting that South Sudan is predominantly Christian.
The ASFIC stated:
There is no evidence that the Applicant has the right to enter country other than South Sudan.
It is noted that the security situation in South Sudan has not changed for decades.
The Sudanese Civil War was the longest war in Africa’s history, and now South Sudan is experiencing its own civil war. There has not been peace in the area constituting South Sudan for more than 30 years. South Sudan is currently experiencing a period of violence and extreme humanitarian disaster… Further, the Applicant is not a citizen of South Sudan. South Sudan did not exist when the Applicant and his family fled. Given the current civil war and emergency situation in South Sudan, there is no evidence that the South Sudanese Government would grant citizenship to the Applicant and accept his return.
Although it is open to Mr Shoul to apply for a protection visa, it is clear from the decisions in Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513, at [27]-[28] and Ali v Minister for Immigration and Border Protection [2018] FCA 650, at [8], that the Tribunal should apply proper consideration to any clearly articulated claims made about risk of harm, noting that this consideration relates to whether the discretion under section 501 of the Act should be exercised, in contrast to what would be a more detailed examination undertaken in relation a person’s application for a protection visa.
In terms of Mr Omar’s claims that the Applicant is not a citizen of South Sudan, the Tribunal has considered this question extensively on previous occasions (see, for example, ReGaluak v Minister for Immigration and Border Protection [2018] AATA 2301). Section 8 of The Nationality Act 2011 (South Sudan) provides that Mr Shoul ‘shall be considered’ a South Sudanese National not only because of his place of birth but also his Dinka ethnicity and the place of birth of his parents. Section 9 of the same Act requires that the relevant Minister in the South Sudanese Government issue a Certificate of Nationality to a person who is a South Sudanese National by virtue of section 8. This Certificate provides proof of citizenship but is not a prerequisite for citizenship.
The DFAT Country Information Report South Sudan - 5 October 2016 (SGD, p 292) relevantly states (at 3.20 and 3.21):
The US Department of State’s 2014 International Religious Freedom Report stated that some Muslims face official discrimination, particularly in relation to obtaining nationality or identity documents. Muslims claimed that their nationality and passport applications were sometimes refused, often without explanation. Muslims reported that the Government occasionally expropriated their land. DFAT contacts advised that while these reports are credible, the motivations behind these incidents may be more complex than an individual’s religious identity alone.
Muslims have reported low-level discrimination in employment (although high rates of unemployment are an issue throughout South Sudan). These incidents may have been exacerbated by the difficulty Muslims experience in obtaining identification documents and a lack of English language skills.
More recently, a Department of Home Affairs Standard Q&A Report South Sudan 20200522142421 – Citizenship (dated 26 May 2020) states:
…proving South Sudanese nationality can be difficult, especially for those not habitually resident in South Sudan. A number of forms, documents proving heritage and the testimony of witnesses may be required before a certificate of citizenship can be issued. The witnesses usually need to be male and might need to be older than the applicant. Tests of morality (attestation that they are of good character) may also be involved. These practical difficulties can lead to de facto statelessness.
I am satisfied that Mr Shoul is a South Sudanese National and I do not accept the submissions that it would be ‘onerous’ for him to obtain the relevant documentation if he is repatriated, although it is acknowledged that there is some evidence that being a Muslim may mean he encounters bureaucratic obstacles. I do not think that these obstacles do amount to ‘statelessness’, when there is a legal entitlement to a person born in South Sudan, as Mr Shoul is, of Dinka ethnicity and with parents born in South Sudan, to citizenship of that country.
The Applicant’s other non-refoulement claims can be summarised as follows: There is currently a ‘civil war and emergency situation’ in South Sudan, with a large number of human rights abuses including forced starvation, sexual violence, unsanctioned killings, and a man-made drought and famine. The UNHCR has classified the situation in South Sudan as an emergency, with instability, violence, and approximately two million internally displaced persons, with the same number fleeing to neighbouring countries as refugees. The United Nations estimates that these numbers will keep increasing.
Articles between 2016 and 2018 are cited in the ASFIC from Amnesty International and the Norwegian Refugee Council/Internal Displacement Monitoring Centre, which reflect on the ongoing fighting and ethnic targeting of civilians in South Sudan, and the unsafe nature of this environment for the return of refugees.
The DFAT Country Report, referred to above, is cited in the ASFIC for its references to human rights violations, people movement, poverty, hunger and violence. It is submitted that even if it was possible to return the Applicant to South Sudan, he would be at significant and foreseeable risk of harm. It is further submitted that an International Treaties Obligation Assessment would have to be completed prior to any return of the Applicant to South Sudan. It was further submitted that Mr Shoul has no rights of access to any other country and if the non-revocation decision is not set aside, it is ‘most likely’ he will be subjected to indefinite detention or ‘detention for an indeterminate period of time.’ That is because the Australian Government will not refoul a non-citizen in breach of its international treaty obligations and it is ‘extremely unlikely’ the Applicant would be granted another visa. It was further submitted that it
‘would favour form over substance to pretend that the Department would grant the Applicant a visa to avoid breaching Australia’s non-refoulement obligations in a case relating to the refusal to revoke a visa cancellation. Further, it would be unfair to the Applicant to allow form over substance and not considerate [sic] the impact on the Applicant’s [sic] in his particular circumstances.’
The Applicant’s legal representatives cited several cases in the ASFIC to emphasise the need to consider the consequences of visa refusal, particularly ‘indefinite detention or detention for an indeterminate period of time.’
The Applicant submitted that if the visa cancellation is not revoked and the Department does not remove the Applicant to South Sudan as soon as reasonably practicable, the Department will be in breach of its statutory duty under sections 197C and 198 of the Act to remove an unlawful non-citizen ‘as soon as reasonably practicable,’ which arises irrespective of Australia's non-refoulement obligations. It was submitted that, despite the poor security and humanitarian situation in South Sudan, there is no evidence that it is not physically possible to remove Mr Shoul to South Sudan, so if the cancellation of the Applicant’s visa is not revoked, or if the Applicant is either not released from detention or is not removed to South Sudan as soon as reasonably practicable, the Department will be acting against the law.
Mr Omar cited three Tribunal decisions from 2018 and 2020 as relating to Dinka men from Sudan and South Sudan with criminal records in Australia, in which the members constituted to those cases ‘weighed non-refoulement considerations and the traumatic backgrounds of these men heavily, and revoked the cancellation of their visas.’ They were: Re Jayba and Minister for Immigration and Border Protection [2018] AATA 385; ReCYNQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 545; and ReRVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665.
The Applicant’s legal representative also cited ReSYLN and Minister for Home Affairs [2018] AATA 4408, ‘in discussing detention as having the hallmarks of double punishment, and that the likely prospect of indefinite detention if the reviewable decision is affirmed provides a powerful reason to set the decision aside.’
The Tribunal makes the point that it is not a Court. While it is useful to be provided with other Tribunal decisions where there may be similar facts, there is no doctrine of stare decisis in respect of the task of the Tribunal, which is reviewing administrative decision-making. Each application turns on its own facts, circumstances and the evidence at the time.
Consistent with its role and the powers under section 33(1)(c) of the AAT Act, the Tribunal has considered other publicly available material on the continuing conflict in South Sudan and difficulties in returning people there. Ethnicity clearly continues to be a driving force in the conflict dividing the majority Dinka and minority Nuer factions. DFAT assesses that:
… ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan…
Official and societal discrimination and violence linked to an individual’s ethnicity occurs in two distinct ways – as a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict.
DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.
The DFAT Country Report states at 2.31:
While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly).
In relation to persons of Dinka ethnicity like Mr Shoul, the DFAT Country Report states at 3.7:
Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.
In his special report to the United Nations Security Council on 16 September 2020, the Special Representative of the Secretary-General for South Sudan, Mr David Shearer, stated:
From January to July, UNMISS documented 575 incidents of subnational violence – an increase of 300 percent compared to the same period last year. In Jonglei state alone, 600 people were killed in six months, women and children were kidnapped, thousands fled their homes as they were looted and torched. The three communities – Nuer, Murle and Dinka – were all victims. But all three are also guilty of carrying out crimes against others. While the situation has now calmed, tensions remain high and every effort must be made to stop a resurgence.
...
The political violence of the past has largely subsided despite delays to the peace agreement, as I outlined earlier. The ceasefire holds and the unified transitional government is up and running. UNMISS is looking at this evolving situation and examining how it can better support peace and protect civilians. One area of change that springs from last year’s report to the Council on the future of Protection of Civilians sites – or POCs as they are known. As the report noted, external threats that led to the establishment of POC sites no longer exist today. For example, the Juba POC site – just a few metres from where I am sitting now – has become more of an outer suburb of the town. Residents move back and forth daily to attend school and university, to shop and go to work.
...
The spike in subnational violence is occurring in remote areas, not near our POC sites. Therefore, we have to deploy our forces to provide protection where there is greatest need. For example, freeing up troops from Wau and Bor POCs has allowed us to redeploy our forces to hotspots like Tonj and Jonglei where people are in immediate danger. Following the gradual withdrawal of our peacekeepers, the POC sites will then be re-designated and sovereign control of them will be with the South Sudanese government, not the UN.
The Tribunal finds that Mr Shoul is a citizen of the Republic of South Sudan and of Dinka ethnicity. Although the Applicant did not cite fears of harm in his oral evidence and focussed on health challenges such as malaria and flooding, especially in the area where he was born, the Tribunal accepts the written submissions that he fears harm. South Sudan, especially outside the capital Juba, remains a volatile place with frail governmental structures. Mr Shoul has not been in South Sudan since he was aged 6 when on Ms AB’s evidence in her letter he was taken, first, to Khartoum. If he is repatriated, he would be without familial support and exposed to generalised harm because of the unstable security situation. The Tribunal does not accept the submissions that the Applicant cannot be returned to South Sudan.
In answers to direct questions from the Tribunal, Mr Shoul said he speaks Dinka, but not fluently. He has a small knowledge of South Sudanese Arabic but mostly speaks in English. This lack of proficiency in local languages, notwithstanding that English is the official language of the Republic, may mark him out for attention as someone newly arrived, including by persons who may want to harm him or may form a view that because he has come from a Western country, he may have wealth. This is speculation on the Tribunal’s behalf but informed by the material from official sources.
The Tribunal accepts that the situation in South Sudan appears, on the most recent objective information provided by the UN Special Representative, to be improving, especially in terms of the capital, Juba. However, there is also evidence of sporadic conflicts in other parts of the nation, especially the more remote areas.
The lack of familial support and some language challenges do not by themselves rise to the level that complementary protection considerations may be relevant in terms of ‘another reason’ why the Applicant’s visa should be restored. What is relevant, given that Mr Shoul is from a smaller village away from Juba, is that he may be exposed to treaty-related harm were he not to settle in the capital.
The Tribunal notes that the Minister issued a different direction under section 499, Direction No. 75, on 6 September 2017. Direction No. 75 provides that a decision-maker must first assess an applicant’s refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
The Tribunal finds that this consideration weighs, on balance, in favour of restoring the visa.
Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has resided in Australia, noting that less weight should be given when the non-citizen began offending soon after arrival in Australia and, on the other hand, more weight should be given to time the person has spent contributing positively to the community. The Tribunal must also consider the nature of any family or social links with Australian citizens or permanent residents, including the effect of non-revocation of the visa cancellation on them.
Mr Shoul arrived in Australia aged 10 and on his evidence was first before the Children’s Court at the age of 15. He said he worked casually mowing lawns when he was aged around 12 and for a couple of years after that. The Tribunal notes that (at GD, p 110) he recorded that he mowed lawns from 2010 to 2012. He said he worked for several months full-time in demolition, noting that he wrote this was in 2018–2019. He has not had any other sustained employment, and possibly a contributory factor has been his reliance on alcohol.
It is tragic that the Applicant’s father died in the Sudanese civil war. In regard to the whereabouts of Mr Shoul’s mother, that is less clear, given that he told the Tribunal that certain things he had said to the author of the pre-sentence report were false. It may be that his mother is alive and in Sudan or South Sudan, but the Tribunal makes no finding about that. The Tribunal does accept, on its face, the evidence of Mr Shoul that he has had no contact with her since coming to Australia.
The ASFIC submitted that he has a ‘large extended family in Australia, including his siblings, their children, cousins and nieces and nephews’. In his personal circumstances form submitted to the Department, Mr Shoul listed (GD, p 108) a brother-in-law, an uncle, then ‘80’ aunts and uncles, ‘50’ cousins, and, then separately, ‘5 uncles and aunts’ and ‘3 nieces and nephews’. There was no information on this wider family group apart from the Applicant’s two sisters and Ms AB’s children. There was also, in spite of the ASFIC, no evidence that his sister, Ms NS, has children, only that Ms AB does. It is accepted that there are other people in the community, including Australian citizens and permanent residents, who have links with Mr Shoul, and evidence for that is, for instance, provided in the letter from the President of the South Sudanese Association of Victoria (GD, p 119) set out above.
It is noted that the Applicant wrote that Ms NS has ‘heart problems and high blood sugar’ in his personal circumstances form, but this was not elaborated upon at the hearing.
The Tribunal finds that Mr Shoul has strong links with both of his sisters, and his two nieces and nephew, and with other members of the Australian community, and that this consideration weighs in favour of restoring his visa. However, it is also true to say that for much of his time in Australia he has associated with others who have been either co-offenders or, on his own evidence, not a good influence. That is a driver in his desire, if allowed to stay in Australia, to relocate to another State.
Overall, given that their parents are not in this country and they left Africa in very traumatic circumstances, the Tribunal finds that because Mr Shoul’s known family network comprises his sisters and Ms AB’s three children, this consideration weighs slightly in favour of restoring the visa.
Impact on Australian business interests (paragraph 14.3)
The Direction provides that the Tribunal should consider any impact on Australian business interests if a non-citizen’s visa is not revoked, noting that an employment link would generally only be given weight where not restoring the person’s visa would significantly compromise the delivery of a major project or important service in Australia.
Mr Shoul’s minimal employment history is described above. The Tribunal does not consider this rises to the level that would require consideration under this part of the Direction.
The Tribunal finds that this consideration is not relevant and weighs it neutrally in this assessment.
Impact on victims (paragraph 14.4)
The Direction provides for the Tribunal to take into account any information available where a victim of a person’s offending may be aware of the immigration status of the person. As there is no such information before the Tribunal, this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that Mr Shoul may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: his age and health; any substantial language or cultural barriers; and any social, medical and/or economic support available to him in South Sudan.
In terms of language, the Tribunal notes that after he fled to Egypt in 2004 (GD, p 122) he attended a school predominantly for Sudanese children where the lessons were in Arabic. As mentioned above, he also speaks Dinka and English.
Mr Shoul is aged 23 and on the medical records, appears to be in general good health. It was submitted by Mr Omar that when his appeal was heard in the County Court, Dr Linda Borg, a neuropsychologist who examined Mr Shoul, reported that he had no formal mental health diagnoses or cognitive deficits but a number of what the Judge described as psychological symptoms or personality traits (GD, p 81).
In respect of the Applicant’s diagnosis of latent tuberculosis, the Tribunal accepts that the medical records indicate an historical diagnosis and accepts the Applicant’s oral evidence that he largely completed a course of medication, ceasing just before the prescribed period because he considered there was nothing wrong with him. The best and most recent evidence in regard to this condition is the December 2020 radiology report of Dr Reddy referred to above. The Tribunal notes that medical facilities in South Sudan, particularly outside the capital, are not well equipped and, where there has been recent flooding as detailed in the media reports Mr Omar referred the Tribunal to, are likely also to be overwhelmed. I am not satisfied that there is a current diagnosis of tuberculosis in terms of that being an ‘active’ condition of Mr Shoul, but the October 2020 pathology reports record the TB antigens being present.
The measure the Direction requires decision-makers to apply are what supports, including medical supports, are available to a person in the context of what is generally available to other citizens of South Sudan, not in the context of what is available in Australia. However, where there might be a special medical condition relating to a non-citizen, that may be a special consideration.
Mr Shoul has attained some trade certificates while in prison, which is to his credit, and is proficient in English, which will assist him and may advantage him over other Muslims, according to the US State Department report cited above (noting that his conversion to Islam is relatively recent and he grew up, he told the Tribunal, as a Christian until 2018).
Because of the potential, slim as it may be, of the Applicant’s TB condition to revive, the Tribunal finds that this consideration weighs slightly in favour of restoring the visa.
CONCLUSION
The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, two relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs in favour of the Applicant but that weight is tempered by the fact he is not in a parental role in relation to the relevant children, and others exercise that role.
In respect of the other considerations, three weigh in favour of the Applicant, non-refoulement obligations, the strength, nature and duration of his ties to Australia and the extent of impediments if removed, the last two of these slightly. The other considerations stipulated in Part C weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) of the Act to revoke the mandatory cancellation of the visa, but the Tribunal has not identified any other particular factor it should take into account which would affect the exercise of the statutory discretion under the Act.
There are considerations which the Tribunal has found weigh in favour of the Applicant, including consideration of non-refoulement obligations and the extent of impediments Mr Shoul would face if removed from Australia, but the Tribunal does not consider the weight that attaches to either of these considerations to be determinative. Balancing these points is that Mr Shoul has regularly offended, especially against police officers on duty. He has offended consistently for half of his teenage and all of his adult life until his recent incarceration.
After considering all the considerations and applying them to the particular circumstances of the Applicant, the Tribunal finds that the protection of the Australian community and the risk of re-offending, especially re-offending in a similar nature, are of such significant weight that they outweigh those other considerations which have been found to weigh in favour of restoring the visa.
The Tribunal, having concluded that the Applicant fails the character test under section 501(6)(d)(i) of the Act, does not find that there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the decision not to restore the visa should be revoked. That decision should be affirmed.
DECISION
The Tribunal decides, under section 43 of the Administrative Appeals Tribunal Act 1975, to affirm the decision (i) that the Applicant does not pass the character test and (ii) that there is not another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 why cancellation of the Applicant’s visa should be revoked.
I certify that the preceding 228 (two hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[sgd]................................................
Associate
Dated: 1 March 2021
Dates of hearing: 15 & 16 February 2021 Advocate for the Applicant: Mr Zaki Omar Solicitors for the Applicant: Human Rights for All Advocate for the Respondent: Ms Emma Letcher-Boldt Solicitors for the Respondent: Clayton Utz
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