TVVT and Minister for Home Affairs (Migration)

[2019] AATA 824

TVVT and Minister for Home Affairs (Migration) [2019] AATA 824 (6 May 2019)

Division:GENERAL DIVISION     

File Number:           2019/0755

Re:TVVT

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:6 May 2019

Place:Melbourne

The Tribunal:

(1)sets aside the decision made by a delegate of the Minister dated 11 February 2019 refusing under s 501CA(4) of the Migration Act 1958 to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa under s 501(3A); and

(2)substitutes a decision that the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa under s 501(3A) be revoked under s 501CA(4).

.......[sgd].......................................

Mr A. Maryniak QC, Member

Catchwords

MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – consideration of Ministerial Direction – other reason why mandatory cancellation decision should be revoked – decision set aside and substituted for decision revoking mandatory cancellation of visa

Legislation

Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)

Summary Offences Act 1966 (Vic)

Cases

Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Guden v R (2010) 28 VR 288
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Omar v Minister for Home Affairs [2019] FCA 279

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Migration Act 1958 – Direction No. 75 – Direction under section 499 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b)

REASONS FOR DECISION

Mr A. Maryniak QC, Member

6 May 2019

1. Australia is a country solidly built upon immigration.  Many people from around the world have come to Australia for a better life.  The majority of those fortunate enough to live here appreciate that it is indeed a privilege to live in Australia.  An integral part of Australia’s immigration policies is accepting refugees from less fortunate war ravaged countries.

2. The Applicant in this matter is one such refugee.  In 2006, as a 10 year old, he was sponsored to Australia from war-torn (then) Sudan by his father, who himself had been resettled in Australia with his new wife and children in 2001, through UNHCR assistance under the Refugee and Humanitarian program.  Unfortunately, upon his arrival in Australia, the Applicant was subjected to regular beatings and violence by his abusive and alcoholic father.   This was in addition to the trauma he had endured in war-torn Sudan up to the age of 10, including being shot at age 6 and witnessing killings.  Clearly the innocence of childhood was taken from the Applicant early is his young life.[1]

   [1] Exhibit A8 pages 115-120.

3. By an application made on 13 February 2019, the Applicant seeks review of a decision of a delegate of the respondent dated 11 February 2019 made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), to refuse to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (the visa) under s 501(3A) of the Act.

4. The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to this Tribunal for review of decisions of a delegate of the respondent under section 501CA(4) of the Act.

5. The evidence considered by the Tribunal comprised documentary evidence including the G and Supplementary G Documents, statements and statutory declarations from Ms Para Grigorakis, Youth Justice Worker, Mr Craig Fisher, Youth Worker, the Applicant’s step‑mother and the Applicant’s half-sister.  These individuals also gave oral evidence before the Tribunal.

   AT ISSUE

6. The issue before the Tribunal is whether it should exercise its discretion to revoke the cancellation of the Applicant's visa.  The cancellation can be revoked if either the person passes the character test (s 501CA(4)(b)(i)), or if there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)).  The Applicant concedes he does not pass the character test but contends that ‘there is another reason why’ the cancellation should be revoked.  On balance, and on the evidence, the Tribunal agrees for the reasons set out below.

   BACKGROUND

7. The Applicant was born in 1996 in Nasir, Sudan – now South Sudan, belongs to the Nuer tribe and is a Christian.

8. The Applicant grew up in Sudan with his mother, grandfather, aunt and twin brother and sister.  The Applicant’s mother and father separated when he was very young.  The Applicant did not attend school in Sudan.  He sustained a bullet injury at around 6 years of age.  His childhood in Sudan was marked by violent conflict and killings.  Rebel groups would regularly raid villages and take children.  The Applicant witnessed atrocities and has suffered lasting trauma.

9. The Applicant was granted a Class XB Subclass 202 Global Special Humanitarian visa on 9 November 2005 and arrived in Australia on 18 January 2006.  The Applicant does not personally know his date of birth.  It was recorded as 1 January 1994 on his visa application and by the Department on the visa grant document.  In March 2013, the Applicant undertook a bone age test which indicated his age at that time to be 16.  On 21 March 2013, based on the medical evidence, the Department approved the Applicant's request to amend his birth date to 1 January 1996.[2]

   [2] Department of Immigration and Citizenship Decision Record 21 March 2013.

10. The Applicant has not departed Australia since the day of his arrival.  The Applicant's father and step-mother have now separated.  The Applicant wants to strengthen his relationship with his step-mother and half-siblings who all remain in Australia and who are Australian citizens.  This can occur more easily now that the Applicant’s father is ‘out of the picture’.

11. In rural Victoria around 2010, when aged about 14, the Applicant confided in his school principal about the violence he was experiencing at home.  The Applicant was then assisted to leave home by the school principal.  He lived with the family of a school friend for a time and may also have been subject to abuse during this time.

12. Around this time, the Applicant became homeless.  The Department of Health and Human Services became involved.  The Applicant stopped attending school and was introduced to drugs including cannabis and ice, and commenced offending. The Applicant was also consuming alcohol from around this time.

    HISTORY OF OFFENDING

13. The Applicant first appeared before the Children's Court in June 2011 at age 15 for offences including possess cannabis, handle stolen goods, theft and unlawful assault.  He was released without conviction on a Youth Supervision Order.  The Applicant had two further appearances before the Children's Court in August and October of 2011 with further Youth Supervision Orders recorded without conviction.

14. The Applicant voluntarily attended a drug rehabilitation (detox) program to try to beat his drug addiction.  He was referred to Youth Support and Advocacy Service (YSAS) and was taken to Melbourne in or about 2012 and admitted to the YSAS detox program.  After this time, the Applicant never returned to rural Victoria.

15. When the Applicant arrived in Melbourne, youth support workers questioned his age based on him presenting as younger than his designated date of birth.  The process to determine his age was then undertaken and he was determined to be about two years younger than his recorded date of birth.  This was critical as it impacted on the application of Victorian sentencing laws to him.

16. In March 2014, aged 18, the Applicant again appeared before the Children's Court and was sentenced to his first period of Youth detention on that day for 9 months.  The Applicant was paroled by the Youth Parole Board in May 2014.

17. In January 2015, aged 19, the Applicant was sentenced in the Melbourne Magistrates Court to charges including theft, aggravated burglary, and drug possession.  This offending breached his earlier parole.  He was sentenced to 10 months in a Youth Training Centre.  The Applicant was granted parole in April 2015.

18. On two occasions in June 2016, aged 20, the Applicant was sentenced in the Melbourne Magistrates Court for offences again including drug possession, burglary, theft, unlawful assault, and sentenced to a further period of detention in a Youth Training Centre.

19. While in Youth Detention, on sentence and remand, the Applicant undertook education and vocational training.  He also engaged in psychological counselling and psychiatric treatment both while in Youth detention and in the community through Youth Health and Rehabilitation Service (YHaRS) and received drug and alcohol counselling through YSAS.[3]

    [3] Exhibit R1 pages 139-165.

20. In August and November 2016, the Applicant received a fine and an adjournment respectively in the Kyneton Magistrates Court for unlawful assault offences which occurred whilst the Applicant was in a Youth Justice Centre.  No conviction was recorded.  The Applicant was granted parole in September 2016.

21. In December 2016 the Applicant was the victim of an assault by stabbing on the street requiring surgical treatment.  He suffers ongoing nerve pain.

22. In April 2018, aged 22, the Applicant was sentenced to 13 months imprisonment in the County Court at Melbourne with a two year community corrections order (CCO) upon release, for two charges of armed robbery and committing an indictable offence while on bail.  The two armed robbery offences were committed by the Applicant on seperate occasions in April 2017 when he was aged 21.  At the date of sentencing, the Applicant had been remanded for 351 days.  The first of the April 2017 offences was against two 15 year olds.

23. In May 2018, the Applicant was convicted and sentenced to an aggregate term of 3 months imprisonment for offences including drug possession and unlawful assault.  The Applicant’s offending, particularly more recently, has been serious and is viewed accordingly by the Tribunal.

24. While serving his prison sentence, the Applicant completed rehabilitation programs including an intensive drug and alcohol program with Caraniche and other personal development courses.[4]

    [4] Exhibit A8 pages 42-47.

25. The Applicant was notified of the cancellation of his visa on 16 July 2018 at Port Phillip Prison just days prior to his release date.

26. The Applicant was released from Port Phillip Prison on or around 18 July 2018. On 24 July 2018, when the Applicant attended the Office of Corrections Sunshine to report for his Community Corrections Order, he was apprehended and taken to immigration detention at the Maribyrnong Immigration Detention Centre.  The Applicant was subsequently transferred to the Villawood Immigration Detention Centre in New South Wales, where he is currently detained.

27. The Applicant has been diagnosed with chronic Post Traumatic Stress disorder (PTSD), a poly substance abuse disorder and attachment deprivation.[5]  He has reported experiencing command hallucinations and has been medicated for his mental health.  He is currently medicated with Seroquel and Endep.

    [5] Report of Ian H Mackinnon, Forensic Psychologist dated 16/10/2017.

28. The Applicant has a background of suicidality and self-harm including whilst in custody.[6]  In 2014 or 2015, he was prevented from making an attempt to take his life at the Melbourne Remand Centre by another prisoner.

    [6] Exhibit R1 page 157.

29. The Applicant’s life to date, has been difficult and unfortunate in the extreme.

    LEGAL FRAMEWORK

30. Subject to the terms of the Act, the Minister may grant a non-citizen permission either to travel to and enter Australia or remain in Australia.  That permission takes the form of a visa.  A visa may be subject to conditions.  It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.  There are various classes of visa set out in s 31(2) of the Act and others may be specified in regulations made under the Act.  Regulations may specify the criteria that must be met for a visa of a specified class as do specific provisions of the Act.

31. The Minister must cancel a visa if satisfied that the Applicant does not pass the character test because of a ‘substantial criminal record’, s 501(3A) of the Act.  The Applicant has a ‘substantial criminal record’ as he has been sentenced to a term of imprisonment of more than 12 months, s 501(7)(c) of the Act.  The Applicant concedes he does not pass the character test.

32. The Minister, and this Tribunal, may revoke a decision made under s 501(3A) if the Applicant makes representations and satisfies the Tribunal that there is ‘another reason’ why the original decision should be revoked, s 501CA(4).

33. Section 499 of the Act gives the Minister the power to make and give directions to persons exercising powers under the Act.  A person (including the Tribunal) must comply with such directions.  On 20 December 2018, pursuant to s 499, the Minister signed Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (the Direction) with a commencement date of 28 February 2019.

34. The Tribunal is required to apply the relevant considerations in the Direction including the preamble (objectives, general guidance and principles) and the primary and other considerations contained in Part C, as well as any other considerations.

35. Paragraph 13 of Part C of the Direction sets out primary considerations to be taken into account when considering whether to revoke the mandatory cancellation of an Applicant’s visa and includes:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

36. Paragraph 14 of Part C provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

37. These considerations are given their purpose by the principles set out in paragraph 6.3 of the Direction which are as follows:

    (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.

    PRIMARY CONSIDERATIONS

    Protection of the Community

38. The Applicant’s two convictions for armed robbery in April 2018[7] are, by reference to paragraph 13.1 of the Direction, very serious.  They were committed (in April 2017) against children (13.1.1(1)(b) of the Direction) and involved threats of violence (13.1.1(1)(a) of the Direction).

    [7] Exhibit R1 page 43.

39. Furthermore, the Applicant has been convicted or found guilty of crimes involving actual or threatened violence on a substantial number of occasions.[8]  More than 10 of those convictions/findings of guilt involved, as an essential element of the charge, the infliction of injury or serious injury.  One of those convictions concerned an incident at a fast food restaurant on 1 January 2017.[9]  Whilst some time during the hearing was spent discussing this incident, the Tribunal will not look behind the convictions[10] to attempt to make findings of fact which would, at their least, be procedurally unfair to the Applicant.

    [8] Exhibit R1 pages 42-46.

    [9] Exhibit R2 vol. 2 page 1250.

    [10] See Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 and Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313.

40. It is conceded that the Applicant has convictions for violent offences.  The Applicant submitted that the nature and seriousness of the offences should be considered in light of the following factors; including his youth homelessness being a consequence of him having to escape his father’s violence.

    The Applicant’s youth

41. The Applicant committed a number of his offences when he was a minor and his level of culpability should be considered in light of his youth and in the context of his unstable childhood.  Until 2015, the Applicant was sentenced in the Children's Court, and prior to 2018, he was sentenced to Youth Detention.

    The Applicant’s mental health

42. In a report of 16 October 2017 provided to the County Court for sentencing, Mr Ian H. Mackinnon, Forensic and Consultant Psychologist, assessed the Applicant as suffering PTSD and poly substance abuse disorder with episodic mild psychotic symptoms.  He refers to the Applicant appearing to self-medicate his PTSD and general distress with illicit substances and states that under the influence of psychological disorders the Applicant’s ability to reason and make sound judgement was probably degraded.  Since that date the Applicant has taken significant steps to address his mental health, as discussed below.

    Seriousness of the offences

1. The Applicant acknowledges that assault, in whatever form, is a serious offence and is remorseful of his conduct. The Applicant submitted that in relation to his unlawful assault convictions, these offences were the least serious of the assault charges in Victoria and were dealt with under s 23 of the Summary Offences Act 1966 (Vic). In relation to the convictions for recklessly causing injury, the Applicant submitted that these convictions are on the less serious end of assault offences under the Crimes Act 1958 (Vic). The Tribunal agrees.

2. The Applicant was convicted and sentenced to his longest period of confinement, an aggregate term of 13 months imprisonment, for two counts of armed robbery occurring on two occasions in April 2017.  This triggered the mandatory cancellation of the Applicant's visa under s 501(3A).

3. The Applicant acknowledges that he was in possession of a knife and scissors when he threatened the victims to hand over their phones and a small amount of cash and does not dispute the seriousness of these convictions.  However, it is submitted by the Applicant and noted by the Tribunal that the Applicant did not physically harm his victims in these armed robberies.

4. In relation to the first offence in April 2017 in particular, the Summary of Prosecution Opening Upon Plea noted that the Applicant had said to his victims: “You're 15 so I won't hurt you”, and shook hands with one of his victims after taking their possessions.

5. Whilst not diminishing the fear the victims would have experienced, it was submitted that the Applicant was mindful of the ages of his victims and the offences were on the less serious end of the scale.  This was acknowledged by Judge Meredith in sentencing:

   Whilst the crime of armed robbery is taken very seriously by the courts… there are features of your offending which place it towards the lower reaches of the range of offending that this Court deals with.

   Your offending was not particularly planned, your rewards modest, no disguise or real getaway strategy employed.[11]

   [11] Exhibit R1 page 55.

6. The Tribunal, with respect, accepts Judge Meredith’s finding that the Applicant’s offending was at the lower reaches of the range.

7. Judge Meredith made no allowance in sentencing the Applicant for the consequence of the inevitable mandatory cancellation of the Applicant's visa and potential removal from Australia.  There is no evidence that the judge was made aware of the immigration implications.  The burden that potential removal places on a person in prison, whilst serving a term of imprisonment is a matter which the court may take into regard as a mitigating factor when sentencing.[12]

   [12] Guden v R (2010) 28 VR 288 at paragraph 27

   Risk to the community

8. The Applicant acknowledges the seriousness of his past offending, and must accept that it weighs heavily against him.  Nevertheless, the criterion under paragraph 13.1.2  of the Direction is fundamentally forward-looking.  It is concerned with the protection of the Australian community from future offending.  The Applicant’s prospects of rehabilitation, given suitable conditions, are good, as discussed below.

9. The Applicant appears to be genuinely remorseful for his past conduct and for the harm he has caused to his victims.  This was noted by Judge Meredith in sentencing the Applicant on 26 April 2018:

   In addition, I am satisfied that you are now appropriately remorseful, having regard to the whole of the material before me.[13]

   [13] Exhibit R1 page 54.

10. Similarly consistent were the findings of Mr Mackinnon in his report of 16 October 2017, which stated that the Applicant “…acknowledged that there is no reasonable excuse for any of his offending and he appeared genuine in his stated desire to establish a legitimate and law-abiding lifestyle”.[14]  The Applicant’s remorsefulness was also apparent when giving oral evidence to the Tribunal.

    [14] Report of Ian H. Mackinnon Forensic & Consultant Psychologist, 16/10/2017.

11. The  Applicant  appreciates  the  gravity  of  his  conduct  and  its  consequences; including a 13 month adult prison sentence, the cancellation of his visa, and the prospect of either his forced removal to South Sudan or indefinite immigration detention.  The cancellation of his visa and the Applicant's experience in prison and immigration detention has had a major impact on him.  It provided a strong incentive for the Applicant to deal with his past through intensive treatment and to do no further harm.  It has given the Applicant real motivation to stay on ‘the straight and narrow’ and in these circumstances the evidence supports the conclusion that the Applicant’s risk of re-offending is low.

    The Community Corrections Order lowers the risk of re-offending

12. The Applicant submitted that he would still be subject to a two year CCO if he were to be released from immigration detention.  The Respondent did not dispute this.  The Applicant's CCO includes such conditions as supervision, unpaid community work and drug, alcohol and mental health treatment and other rehabilitation programs as directed.  Upon application to the County Court, the order can be extended so that the Applicant receives the benefit of the full two years of the order from the time of his release from immigration detention.  Whilst it has no power to do so, the Tribunal respectfully recommends to Corrections Victoria that the Applicant’s CCO be extended, insofar as any extension may be necessary, so that the Applicant is subject to the CCO for the period of two years from the date of his release from immigration detention.  The Tribunal is of the view that the CCO will contribute significantly to maintaining the Applicant’s low risk of re‑offending.

13. The rehabilitative effect of a CCO was also supported by Mr Mackinnon in his report of 16 October 2017.  Mr Mackinnon noted that, despite his serious history of offending, the Applicant “does not possess an inherently antisocial or criminal disposition”, but rather gravitated to other troubled and disaffected people due to the lack of supportive parents and a stable family network.  In this context, Mr Mackinnon was supportive of a community based order, which would provide the Applicant with support and allow the Applicant to “make lasting rehabilitative progress”.

14. The CCO reduces the risk of the Applicant re-offending.  Not only will he be closely supervised, he will have the benefit of referrals to targeted programs for his mental health and drug and alcohol use, which form part of the underlying basis for his offending.

    Applicant’s commitment to addressing mental health

15. The Applicant is committed to receiving long term professional assistance to confront and fully deal with his past trauma. Up until his remand in 2017, the Applicant had received some mental health treatment through YHaRS, completed several episodes of detox, and had done quite well with engaging with services.  He had not however been able to fully engage with treatment for issues related to his past and PTSD.  Through  the programs  the  Applicant  completed  in  prison, he understands that he cannot use drugs to block his memories of the past, that he has to confront and deal with it to be able to move forward to a positive future.  He is committed to this and his CCO will ensure he has the necessary support to do this.   The Applicant’s oral evidence was consistent with this commitment.

    Applicant’s commitment to rehabilitation and good conduct

16. The evidence establishes that it has been at least two years since the Applicant used illicit substances.  Whilst he has been confined over this period it is significant that all of his random drug tests in prison were negative in circumstances where illicit substances are generally known to be available in the prison system.[15]

    [15] Exhibit A8 page 48.

17. The Applicant completed Year 10 education and vocational training in Youth Detention. During his term of imprisonment he completed a Caraniche drug and alcohol program and other personal development courses.  Through these courses he gained greater insight into the impact of his troubled past, and what he is required to do to move forward in his life now, which is different to how he has approached his rehabilitation in the past.  The Applicant’s oral evidence was consistent with such greater insight.

18. The Applicant has the ongoing support of his former Youth Justice worker Para Grigorakis and of another former youth worker, Craig Fisher, formally of Jesuit Social Services.  Both believe, in their professional opinions, that the Applicant genuinely wants to make positive changes in his life.

19. Mr Fisher has undertaken to support the Applicant to access housing upon his release from immigration detention and to work toward securing long-term housing.  The Applicant's permanent Department of Housing property was held for him with the assistance of Ms Grigorakis while he was in prison but the lease has now been terminated as a result of his immigration detention.

20. The Applicant is eager to secure employment either in bricklaying where he has skills and experience (although his height makes this work a real challenge), or in other construction work.  He would like to undertake further study to increase his employability perhaps in roof tiling.  The Applicant also expresses a desire to give back to the Australian community by supporting people either on a voluntary or paid basis who are suffering issues he has experienced, namely homelessness and other related issues.  He had previously taken part in an ABC radio program relevant to this.

21. The Tribunal has been particularly assisted by the considered and informed evidence of Ms Grigorakis and Mr Fisher.  Ms Grigorakis has had contact with the Applicant since about 2013 and effectively knows him better than any other witness who gave evidence.  Such evidence is fundamentally independent although the Tribunal accepts that Ms Grigorakis will also have had the Applicant’s best interests at heart when giving her evidence.  Despite this, she gave credible testimony, based upon 20 plus years experience with troubled young people.

22. What is apparent is that Ms Grigorakis has gone ‘beyond the call of duty’, has kept in touch with the Applicant beyond a time that she was professionally obliged to and importantly believes in him.  She is as certain as she can be that the Applicant aspires to mend his ways, truly values the privilege of living in Australia and has the ability to get his life ‘back on track’.  Although she frankly and properly accepted she does not have any academic qualifications upon which to assess the Applicant’s likelihood or not of re‑offending, she does bring to the Tribunal not only years of experience with children who lose their way, but also a solid familiarity with the Applicant himself.  A familiarity which spans well over 5 years and in fact makes up the Applicant’s most formative years so far as the task of the Tribunal is concerned.

23. Ms Grigorakis has stated she will assist the Applicant, should he be released, with housing, employment searching and compliance with his CCO.  Upon hearing her oral testimony, the Tribunal accepts that Ms Grigorakis will provide such assistance to the Applicant.

24. Consistent with the evidence of Ms Grigorakis is the report of Mr Ian Mackinnon dated 16 October 2017. Mr Mackinnon assessed the Applicant on 6 October 2017.  At that time, the Applicant was in remand at the adult maximum security Barwon Prison.  Mr MacKinnon made the following relevant observations:

    (a)  In my opinion, despite his serious history of offending, [the Applicant] does not possess an inherently antisocial or criminal disposition.  Rather, having been ‘adrift’ in the world since his mid-adolescence – without the benefit of supportive parents and a stable family network – [the Applicant] (in his loneliness) has gravitated to other troubled and disaffected people like himself (being a poor substitute for a healthy family network but often the ‘easiest option’ available to him).

    (b)  [The Applicant] acknowledged that there is no reasonable excuse for any of his offending and he appeared genuine in his stated desire to establish a legitimate and law-abiding lifestyle.

    (c)  In my opinion… [the Applicant] understood the ordinary meaning of ‘right and wrong’ and he was able to comprehend and competently negotiate his legal matters.

    (d)  In my opinion, should [the Applicant] have a community based order imposed upon him, he appears to now have reasonable prospects for maintaining himself appropriately with the benefit of close supervision. [The Applicant] appears to have a history of engaging well with welfare and treating professionals and he may now be able to make the most of such assistance and make lasting rehabilitative progress as part of a CCO. 

    (e)  If [the Applicant] can establish lasting abstinence in the community, and sever his links with negative peers, he is less likely to reoffend in any serious manner.

25. In light of the Applicant's remorse, the existence of a CCO, the Applicant's commitment to addressing his mental health issues and his commitment to rehabilitation since his period in prison, the Tribunal finds that the Applicant has good prospects of rehabilitation and accordingly, the risk of further offending is low.

26. The Applicant was let down by the Australian Child Protection system which failed to ensure his safety.[16]  The Applicant was forced to leave home, became homeless, was mentally unwell, commenced illicit substance use, and subsequently commenced offending.  The Applicant was treated as two years older than his actual age until 2013.[17]  The Children's Court in sentencing the Applicant in 2014 noted his major trauma issues and recommended psychiatric/psychological assistance.[18]  Judge Meredith in sentencing the Applicant in April 2018 also noted psychological evidence of his significant developmental  trauma and abuse.[19]

    [16] Exhibit A8 pages 131-136.

    [17] Exhibit A8 pages 137-138.

    [18] Exhibit R2 pages 674-714 and  Direction 79 paragraph 13.1.1(1)(d). See also Exhibit A8 pages 139-145.

    [19] Exhibit R1 page 50.

27. The Respondent correctly submitted that the offences which resulted in convictions in April 2018 were very serious and were against children and submitted the following:

    (a)So far as the risk to the Australian community is concerned, it is evident that the Applicant has suffered significant trauma, and has been diagnosed with Post Traumatic Stress Disorder and Poly Substance Abuse Disorder.[20] Although Judge Meredith did not consider those disorders reduced the Applicant’s culpability for the April 2017 armed robberies,[21] it is equally apparent that they are significant drivers of his offending.[22]

    (b)So far as the Applicant’s prospects of addressing the drivers of his offending are concerned, Mr Mackinnon considered that the Applicant was “highly vulnerable to relapsing into substance abuse when he is eventually released from prison”, and that “[the Applicant] will have to maintain intensive rehabilitation efforts for a sustained period if he is to eventually overcome the antisocial tendencies he has sometimes given in to”.[23] In evidence his sister was “scared for him” if he does not get support.  However, in light of the evidence discussed above the Tribunal finds that it is likely that the Applicant will not relapse.

    (c)The Applicant appeared to have little grasp of his poly substance abuse disorder. He equivocated about whether he was addicted to cannabis, did not consider he was addicted to methylamphetamine, and did not consider himself at risk of becoming addicted to addictive prescription medication (Lyrica). He gave evidence that he “needed” his Lyrica medication and accepted he got angry when he was taken off it. He was found to be in possession of buprenorphine in Barwon Prison on 12 April 2018,[24] and a package containing suboxone (both are opioid replacements) with the Applicant’s name on it was found in the Immigration Detention Centre on 8 October 2018.[25] The Respondent submitted that it is implausible that the Applicant was not involved in those incidents.  However, the Tribunal finds insufficient evidence before it to support the Respondent’s submission. Rather, on balance, the Tribunal finds that the Applicant has not misused prescription medication whilst in immigration detention and that he has not been addicted to either prescription medication or illicit drugs for at least the last 18 months. 

    (d)Significant previous mental health treatment[26] has failed to prevent further offending. The Applicant completed a single 24 hour drug and alcohol course on 21 March 2018.[27]  The Tribunal finds that the Applicant has made significant progress  to date in addressing his mental health as discussed above.

    (e)It was equally apparent from the prison[28] and immigration detention records[29] (which the Tribunal finds are not to be preferred to the Applicant’s accounts), and the Applicant’s own evidence, that he struggles to control his anger (particularly with regard to persons of authority). The Tribunal finds, on balance, that whilst the Applicant has some anger issues, his mental health needs will be addressed under the CCO and insofar as anger management forms part of his mental health management that will be addressed.  In any event, it was evident during his oral testimony that the Applicant has already acquired some anger management skills and developed strategies in this regard.

    (f)The Respondent submited that there is a high risk that the Applicant will re-offend, and cause serious harm to members of the Australian community. The Respondent submits that is an unacceptable risk.

    [20] Exhibit R2 vol. 2 page 1164.

    [21] Exhibit R1 pages 53-54 paragraph [33].

    [22] Exhibit R2 vol. 2 page 1166; Exhibit A8 pages 146-147.

    [23] Exhibit R2 vol. 2 pages 1165-1166.

    [24] Exhibit R2 vol. 2 page 1138.

    [25] Exhibit R1 page 68.

    [26] Exhibit A8 pages 150-152.

    [27] Exhibit A8 page 42.

    [28] Exhibit R2 vol. 2 pages 1123-1140.

    [29] Exhibit R1 pages 64-76.

28. On balance, upon considering all the evidence, the Tribunal disagrees with the Respondent’s characterisation of the risk to the Australian community.  The bulk of the evidence supports the finding that the Applicant has ‘learnt his lesson’.  It is apparent on the evidence that he now knows illicit drugs are not the answer to his problems and that he is going to have to continue to work upon self-improvement so that he can remain in Australia and make a positive contribution to the Australian community.  The CCO will greatly assist the Applicant in achieving this outcome.

29. Whilst the Tribunal accepts the Applicant was not a ‘model’ witness during the hearing, he was not disrespectful and he did not display any anger or violence during the hearing.  The Tribunal accepts that the Applicant was under significant pressure during the hearing and finds that essentially he was a credible witness, despite some confusion in responding to some questions and a wrinkle in his evidence regarding an incident involving some bacon which he had acquired without permission.

30. The Applicant acknowledged the seriousness of his offences and takes full responsibility for them.  Without trivialising the offences and the impact on victims, the Applicant submitted the following mitigating evidence in relation to the nature and seriousness of his conduct:

    (a)Armed robbery offences: the evidence before the Tribunal is that the Applicant never intended to physically harm his victims during the two armed robbery incidents. As noted earlier, the Prosecution’s Summary of Material Facts notes that during the first incident in April 2017, the Applicant said to his victims “You’re fifteen, I don’t hurt 15 year olds”, and shook the hands of his victims.[30]  The Applicant’s oral evidence and written statement confirm that he never intended to use the knife or the scissors to inflict physical harm.[31]

    (b)Assault post-dating the armed robberies: this is the only offence, which postdates the armed robberies. As the Applicant stated during oral evidence, the assault occurred as a result of a racial slur made against him while he was awaiting a court appearance in relation to the armed robbery charges. The Applicant has indicated that he is remorseful of his actions on that day, and the incident should be considered in light of the highly stressful environment of remand.

    (c)Offences committed as a minor: the culpability of the Applicant’s conduct as a minor should be considered in light of his youth at the time, and the childhood trauma, mental ill-health, and homelessness he was experiencing.[32]

    [30] Exhibit R2 vol.1 pages 254-255.

    [31] Exhibit A1 paragraph 19.

    [32] Exhibit A8 pages 115-145.

1. On balance, in light of the evidence before it, the Tribunal accepts the submissions of the Applicant.  In the circumstances, the risk of re-offending is low, particularly because the Tribunal is informed that the CCO remains in force and will apply from the day the Applicant is released from immigration detention.  Ms Grigorakis and Mr Fisher have expressed their intention to step up and assist the Applicant during this period.  This primary consideration weighs just in favour of the Applicant.

   Best Interests of minor children

2. The Applicant has a minor half-sister, and another half-sister who has three minor children.  The Applicant only recalled meeting one of his half-sister’s minor children.

3. As submitted by the Respondent, there was little in the evidence to suggest that the Applicant has any meaningful relationship with the minor children of the family, and his hopes of relationships were largely aspirational.

4. Although it would be in their interests to revoke cancellation of the Applicant’s visa, this consideration only minimally weighs in favour of doing so.

   Expectations of the Australian community

5. In light of the findings above, the Tribunal finds that this consideration weighs just in favour of the Applicant.  As noted in YNQY v Minister for Immigration and Border Protection[2017] FCA 1466, the Federal Court has held that this consideration is inextricably linked to the other primary consideration regarding protection of the Australian community.  The expectations referred to in the Direction are those espoused by the Government in paragraph 13.3 of the Direction.

6. When assessing such expectations it is important to assess all of the evidence before the Tribunal.  The fact is that Australia quite properly accepted the Applicant, then a war traumatised 10 year old boy on humanitarian grounds.  His welcome on the first night in Australia was, very unfortunately, a beating from his disturbed father.  Such mistreatment essentially continued until the Applicant had to leave home around age 14.  In light of the evidence before the Tribunal, the Australian community would not expect this country to abandon the Applicant at this point in his life.

   OTHER CONSIDERATIONS

   Non-refoulement obligations

7. The Respondent made the following submissions which the Tribunal accepts.  The Tribunal’s decision-making process requires a state of satisfaction to be formed – not as to whether a person satisfies the criteria prescribed by s 36(2) of the Act – but as to whether “there is another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii) of the Act.[33]The entirety of the representations made by the Applicant are a mandatorily relevant consideration,[34] and it is not sufficient for the Tribunal to simply carve out the Applicant’s claims to fear harm in South Sudan and decline to deal with them.[35]  But there is a difference between considering the Applicant’s claims to fear harm, and considering whether non-refoulement obligations are owed to an Applicant.[36]

   [33] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].

   [34] Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56].

   [35] Omar v Minister for Home Affairs [2019] FCA 279 at [46] approved by Robertson J (Logan J agreeing) in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [189].

   [36] DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [185].

8. In addition to the Applicant’s claims seeking to engage Australia’s non-refoulement obligations,[37] the Applicant also advances claims that he may suffer harm in South Sudan from generalised violence[38] and/or that he may be stateless.[39]  The latter are not of a nature which would, in and of themselves, engage Australia’s non-refoulement obligations.  The Applicant’s claims to fear harm (whether capable of engaging international non-refoulement obligations or not) are to be considered as part of the extent of impediments to removal.

   [37] Applicant’s Statement of Facts, Issues and Contentions dated 28 March 2019 (Applicant’s SFIC) at [66] and [71].

   [38] See Applicant’s SFIC at [67].

   [39] See Applicant’s SFIC at [64].

9. So far as any non-refoulement obligations are concerned, it remains relevant that the Applicant could apply for a protection visa.[40]  Ministerial Direction No. 75 – refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Direction 75) issued pursuant to s 499 of the Act requires a decision-maker assessing a protection visa application to first assess an applicant’s refugee claims with reference to ss 36(2)(a) and (aa) of the Act before considering any character or security concerns.[41]  However, this does not mean that this Tribunal can ignore the non-refoulement obligations for they are part of Australia’s domestic legislative framework under the guidance of Direction 79 and are to be considered and balanced accordingly.

   [40] The visa held by the Applicant was a Global Special Humanitarian (Class XB) (Subclass 202) visa, and is not a “protection visa” as defined at s 35A of the Act. The Applicant is therefore not precluded from applying for a protection visa pursuant to s 48A of the Act.

   [41] Part 2 of Direction 75.

10. The Tribunal’s discretion under s 501CA(4)(b)(ii) is of a qualitatively different nature to the binary consideration of whether an applicant meets the criteria for the grant of a protection visa (a matter of which the Tribunal is cognisant).[42]

    [42] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [48]-[50]; see further DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [63].

11. The Tribunal deems it necessary to consider whether non-refoulement obligations are owed to the Applicant, but accepts that the exercise of the statutory power conferred by s 501CA(4)(b)(ii) does not require the same analysis to be undertaken as would be required on an application for a protection visa.[43]

    [43] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [28].

12. The Applicant engages Australia’s international non-refoulement obligations in relation to South Sudan, and these obligations are part of the balancing exercise.  Evidence given by the Applicant, his step-mother and half-sister of the risk to his life if returned to South Sudan, being a young ethnically Nuer male who has been absent for 13 years, who has mental ill-health and other characteristics, personal to the Applicant, claimed, is supported by current country information about South Sudan.  The Applicant does not speak the language, does not know anyone and would have no support whatever if returned to South Sudan.  This consideration heavily weighs in favour of the Applicant and the revocation sought.

    Strength, nature and duration of ties

13. Having arrived in Australia at the age of 10, the Applicant has now spent most of his life in Australia.  He has family ties in Australia, including his step-mother, who gave evidence that she considers him to be her own son.  The Applicant has five half-siblings in Australia, one of whom is a minor.  The Applicant’s step-mother and half-sister gave evidence that if the Applicant were to be deported to South Sudan, the Applicant’s step‑mother would feel the blame for what happened to the Applicant.  They also each gave credible evidence that they will do as much as they can to support the Applicant’s future life in Australia.  His step-mother has a spare room for him in her home which he can live in indefinitely, should he choose to.

14. In addition to his family, the Applicant has developed a strong bond with his support workers, over and above their formal involvement with him.  As discussed, Mr Fisher and Ms Grigorakis both gave evidence of having intensively supported the Applicant through his adolescent years and of their ongoing commitment to assisting his transition back into the community, in particular with accessing housing, counselling, drug and alcohol treatment, employment services, and further education/training in conjunction with his CCO.

15. This consideration weighs heavily in favour of the Applicant.

    Impact of Australian business interests and Impact on victims

16. There is no evidence that these considerations are engaged on the facts of this case.

    Extent of Impediments to removal

17. The Applicant’s claims to fear harm is considered under this consideration.[44]  The Tribunal finds the Applicant will face a very significant risk of harm in South Sudan for the reasons discussed above.

    [44] DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [183].

18. The Respondent accepts that in light of the present circumstances in South Sudan, the Applicant’s only language being English, the other characteristics, personal to the Applicant, claimed and the lack of any remaining family in South Sudan, the impediments to the Applicant establishing himself in South Sudan would be significant.

19. The Applicant has not been in South Sudan since the age of 10.  He gave evidence that he has not spoken to his biological mother since his time in juvenile detention.  The Applicant does not speak Nuer, the language of his tribe.  The Applicant’s step-mother gave evidence that the Applicant’s biological mother is in Ethiopia, and that the Applicant has no knowledge of family connections in South Sudan.  In addition to safety concerns, without any support the Applicant’s ability to subsist in South Sudan will be threatened, and it is likely he will be exposed to violence and tribal conflict.

20. Returning to South Sudan is also likely to cause the Applicant’s PTSD and depression to deteriorate and the Applicant will not be able to access treatment for his mental health in South Sudan.[45]  The Applicant gave evidence that he takes daily medication for his mental health, and painkillers for the nerve pain in his leg resulting from historical stab wounds.  His access to medication and medical care in South Sudan would be limited.[46]

    [45] Exhibit A8 page 232-241.

    [46] Omar v Minister for Homes Affairs [2019] FCA 279.

21. The Tribunal finds that the impediments would be significant in the extreme and accordingly, this consideration weighs in the Applicant’s favour.

    PROSPECTIVELY STATELESS

22. Where relevant, the Tribunal is required to consider the legal consequences of its decision.[47]  If the Applicant were stateless as claimed, then that may include the prospect of indefinite detention (as it would not be “reasonably practicable” to remove the Applicant to any country per s 198 of the Act).

    [47] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [17] per Allsop CJ and Katzmann J, and at [178] per Buchanan J; and Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at [61] per Allsop CJ, Griffiths and Wigney JJ.

23. The Tribunal is unable to find on the evidence whether the Applicant is in fact stateless.  The Respondent submits that the Applicant’s claims in this regard are equivocal, and that he has failed to establish that he is stateless as a matter of fact.  The Tribunal agrees.  There is no evidence whether or not he could obtain citizenship in South Sudan or of any attempts the Applicant may or may not have made in this regard.

24. In the circumstances, the Tribunal cannot make a determination upon the Applicant’s claimed statelessness.  In any event, in light of other findings above, it is not necessary to do so.

    CONCLUSION

25. The primary considerations weigh just in favour of revocation and the other considerations, where relevant, weigh heavily in favour of the revocation of the mandatory cancellation.

26. The correct or preferable decision is to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa.

27. However, the Applicant must appreciate that if, in the unlikely event, he offends any Australian laws in the future, the privilege of living in Australia will most likely be taken from him.

    DECISION

28. For the above reasons the Tribunal:

    (1)sets aside the decision made by a delegate of the Minister dated 11 February 2019 refusing under s 501CA(4) of the Migration Act 1958 to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa under s 501(3A); and

    (2)substitutes a decision that the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa under s 501(3A) be revoked under s 501CA(4).

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

.....[sgd]..........................................

Associate

Dated: 6 May 2019

Date of hearing:	23, 24 and 26 April 2019
Counsel for the Applicant:	Ms Julie Zhou
Solicitors for the Applicant:	Refugee Legal Shelley Burchfield
Counsel for the Respondent:	Mr Jamie Grant
Solicitors for the Respondent:	Sparke Helmore Lawyers Eleanor Elliott