TVVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1659
•13 June 2022
TVVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1659 (13 June 2022)
Division:GENERAL DIVISION
File Number: 2019/0755
Re:TVVT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:13 June 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 11 February 2019, to not revoke the mandatory cancellation of the Applicant’s visa.
.......................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Global Special Humanitarian (Class XB) (Subclass 202) visa - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – other reason why mandatory cancellation decision should be revoked – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Nationality Regulations, 2011 (South Sudan)
Transitional Constitution of 2011 (South Sudan)Nationality Act 2011 (South Sudan)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
M1/2021 v Minister for Home Affairs [2022] HCA 17
PGDX and Minister for Immigration citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
13 June 2022
TVVT (“the Applicant”) is a 25-year-old male, born in Nasir, Sudan – now present-day South Sudan. He belongs to the Nuer tribe of that region. He arrived in Australia at the age of ten on 18 January 2006 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (“the visa”). He has not departed Australia since his arrival.[1]
[1] T1, RB8, page 77.
On 16 July 2018, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence.[2] On 23 July 2018, the Applicant, through his legal representative, made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 11 February 2019, a delegate of the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, RB10, pages 78-81 (excluding attachments).
[3] Ibid, pages 86-89.
[4] Ibid, RB2, pages 27-41.
This matter has been previously ventilated before the Tribunal. On 13 February 2019, an application was made to revoke the mandatory cancellation of the abovementioned delegate’s decision on 11 February 2019.[5] The first hearing of that application proceeded before this Tribunal on 23, 24 and 26 April 2019, respectively. The Applicant was represented at the hearing and, on 6 May 2019, the Tribunal set aside the delegate’s abovementioned decision made on 11 February 2019.[6]
[5] Ibid, RB1, pages 1-8.
[6] Ibid, RB58, pages 1806-1832.
The Respondent subsequently appealed against the Tribunal’s decision and on 24 May 2021 the Federal Court of Australia (per Murphy J) issued consent orders that the Tribunal’s decision, made on 6 May 2019, be set aside.[7] Specifically, it was ordered by the Federal Court that this matter be remitted to the Tribunal for re-determination of the application for review of the decision of the Respondent’s delegate, made on 11 February 2019, under s501CA of the Act according to law.[8]
[7] Ibid, RB59, pages 1833-1834.
[8] Ibid, see Order 2.
This remittal hearing proceeded before me in this Tribunal on 14 February 2022. The Applicant represented himself at the hearing. The Tribunal had before it a not-insignificant bundle of material (given the previous ventilation of this matter in this forum). That material was particularised into an agreed Exhibit List, a true and correct copy of which is attached hereto and marked “Annexure A”.[9] At the commencement of the hearing, I checked with the Applicant as to whether he would call any witnesses other than himself. I also made a similar enquiry of the Respondent’s representative.[10] In this regard, the transcript reads as follows:
“SENIOR MEMBER: Just to check in relation to witnesses, TVVT, as I understand it the only witness from your side will be of course yourself, that's so, and there aren't any other witnesses? That's so, TVVT?
TVVT: That's true because my witnesses, they're sick. I have family members that they can't make it today because they didn't think they had to come back to this again because we went through this last time, like, yes, so they can't make it.
SENIOR MEMBER: Did you want them to give evidence for you?
TVVT: They've said what they needed to say last time and, yes, there's no point in them repeating themselves again. Even it's in the reports, you know.
SENIOR MEMBER: That's fine. So the only witness, then, for your side will be yourself. And, Mr Cunynghame, I presume there's no witnesses to be called by the respondent?
MR CUNYNGHAME: No.”[11]
[9] See Transcript (14 February 2022), page 2, lines 16-42.
[10] Mr Adam Cunynghame, Senior Associate, Sparke Helmore.
[11] Transcript (14 February 2022), page 2, lines 44-46; page 3, lines 1-15.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Given this is a remittal, there is no need for this Tribunal to reach a state of satisfaction that the Applicant made the representations required by s 501CA(4)(a) of the Act. Clearly, he did so prior to the first ventilation of this application in this forum. The remaining issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[12]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13]
[12] [2018] FCAFC 151.
[13] Ibid, at para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, at para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at para [31] (Collier J, with whom Logan and Murphy JJ agreed).
The abovementioned remaining discretionary exercise before the Tribunal gives rise to two residual issues:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have, “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s Criminal History Check Results Report appears in the material and is dated 29 November 2018.[14] It is not, on any reasonable view, an insignificant history. It recounts the commission of some 128 offences committed since the Applicant was fifteen-years-old. This offending matrix has been dealt with (for sentencing purposes) at some eleven sentencing episodes. The offending is varied and multi-faceted, involving convictions for (1) drug offending; (2) a refusal to comply with the dictates of lawful authority; (3) offences against the person; (4) property offences; (5) driving offences and (6) fraudulent conduct in the form of seeking to obtain property by deception.
[14] T1, RB3, pages 42-46.
Most significantly, for the purposes of whether the Applicant passes the character test, the criminal history discloses that on 26 April 2018, the Applicant was sentenced (at the Melbourne County Court) for two counts of “armed robbery”. The sentence involved the imposition of a head custodial term of thirteen-months imprisonment.[15] At the previous hearing (at which the Applicant was represented), he conceded that he did not pass the character test.[16] There cannot be any dispute that the Applicant most certainly fails the character test.
[15] Ibid, page 43.
[16] Ibid, RB58, page 1813, see specifically para [31].
I am therefore satisfied (and I find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Thus, the only live issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the original decision of the delegate (made on 11 February 2019) refusing to revoke the mandatory cancellation of the Applicant’s visa.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction”, or “Direction 90”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[18]
[17] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[18] Direction No 90, para [6]. See also Direction No 90, para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four, “Primary Considerations”, and four, “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[19]
[19] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[20]
[20] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each component of paragraph 8.1(2) in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to earlier, this Applicant has compiled a not-insignificant offending history in Australia. It is a history that has consumed more than its fair share of Australia’s law enforcement, judicial sentencing, and community health apparatuses.
I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This specific sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. There is a plethora of this type of offending to be found in the Applicant’s criminal history. I will recount the relevant convictions pointing to the commission of offences of violence:
Date of Conviction Nature of Conviction 20/06/2011 Unlawful assault 17/10/2011 Recklessly cause injury 17/10/2011 Discharge missile to cause injury/danger 07/03/2014 Recklessly cause injury 07/03/2014 Assault with weapon 07/03/2014 Recklessly cause injury 07/03/2014 Recklessly cause injury 07/03/2014 Recklessly cause injury (3 charges) 07/03/2014 Assault in company 07/03/2014 Recklessly cause injury 07/03/2014 Throw missile injure/danger/damage shop 17/06/2016 Recklessly cause injury 17/06/2016 Unlawful assault 20/06/2016 Unlawful assault (2 charges) 15/08/2016 Unlawful assault 07/11/2016 Unlawful assault 09/05/2018 Unlawful assault 09/05/2018 Intentionally cause injury 09/05/2018 Recklessly cause injury
Little can be said to cavil with the proposition (and finding) that the nature and extent of this Applicant’s convictions for violent crimes must militate strongly in favour of a finding that the totality of his criminal offending in Australia has been of a, “very serious” nature.
Paragraph 8.1.1(1)(a)(ii)
This sub-paragraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be viewed, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed for it. On 26 April 2018, at the Melbourne County Court, the Applicant was sentenced for his commission of two armed robbery offences.[21]
[21] T1, RB3, page 43.
The first of those offences was committed on 5 April 2017. There were two victims, both aged fifteen years. The offending involved the Applicant confronting the victims with a flick knife as a means of reinforcing his demands for, and removal of, the victims Apple iPhones and some cash.[22] The second of those offences was committed on 28 April 2017. Once again, there were two victims, both of whom were fifteen years of age.[23] While in the process of rolling a cannabis cigarette, the Applicant produced a large pair of scissors which he threateningly presented to one of these two victims. The threat involved a verbal threat to stab that victim as a means of relieving both of those victims of their respective iPhones.
[22] Ibid, RB4, page 48, paras [4]-[5].
[23] Ibid, page 49, paras [7]-[9].
It was for the commission of these two offences that the Applicant was sentenced to a head custodial term of imprisonment for thirteen months. The learned sentencing Judge (His Honour, Judge Meredith) noted the following about this offending:
“Your offending was not particularly planned, your rewards modest, no disguise or real getaway strategy employed. Nonetheless, it has had a significant impact on your two victims, who have put forward victim impact statements and all of your victims were vulnerable, given their young ages. It further needs to be stated that people are entitled to go about their business in the city without being the subject of offending such as yours.”[24]
[24] Ibid, page 55, para [40].
Therefore, there is little the Applicant can say in response to a finding that the violent nature of his criminal convictions for crimes of violence committed against children must militate strongly in favour of a finding that the totality of his criminal history in Australia has been of a, “very serious” nature.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed, “very seriously” by the Australian Government and the Australian community. As best as I understood the totality of the material, I am not able to locate any conviction or other independent and authoritative document pointing to the Applicant’s commission of acts of family violence, regardless of whether there was a conviction and any sentence for such conduct. This sub-paragraph 8.1.1(1)(a)(iii) is not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(i)
I cannot find any reference in either the oral or written material to the effect that this Applicant has committed any offences in the realm of causing a person to enter into, or being a party to, a forced marriage. I am not able to find any formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This sub-paragraph 8.1.1(1)(b)(i) is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. A detailed examination of the Applicant’s criminal history reveals that he has respective convictions for:
·26/06/2011 – “Act in a disruptive manner – police gaol”;
·07/03/2014 – “Resist police”;
·07/03/2014 – “Act prejud sec/good order/managemnt gaol”; and
·09/05/2018 – “Act prejud sec/good order/managemnt gaol”.
While professing no great level of expertise in Victorian regulatory and criminal law, I am satisfied that a conviction for, “Act in a disruptive manner – police gaol” and “Act prejud sec/good order/managemnt gaol” involves a person in a detention facility acting in a disruptive, abusive, or indecent manner contrary to the lawful direction of the supervising correctional officers whose responsibility it is to maintain the peace and good order of that institution. Likewise, I am satisfied that a conviction for, “Resist police” involves an offender assaulting, resisting or hindering a police officer while they are performing their duties.
There is thus little to cavil with the proposition (and finding) that the auspices of this sub-paragraph 8.1.1(1)(b)(ii) are engaged because this Applicant has convictions for crimes committed against, “government representatives or officials...in the performance of their duties”. Convictions captured by the regime of offences categorised under 8.1.1(1)(b) are considered by the Australian government and the Australian community to be serious. Accordingly, this sub-paragraph(1)(b)(ii) militates in favour of a finding that this aspect of the Applicant’s offending must be viewed as, “serious”.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. As best as I understood the material and the transcript of this hearing before me, there is nothing to demonstrate that neither party made submissions about this sub-paragraph. I therefore find that this sub-paragraph 8.1.1(1)(b)(iii) of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen whilst in immigration detention. The delegate’s decision under review (dated 7 February 2019) notes that, “While in immigration detention, [the Applicant] has been involved in several incidents of assaults, abusive and aggressive behaviour and contraband found. He was placed on a Behaviour Management Plan for a period”.[25] I have looked at the relevant “Client Incidents” reports in the material before me which variously report and record the following conduct by the Applicant whilst in Immigration Detention:
[25] Ibid, RB2, page 24.
·17/11/2018 – the Applicant displayed threatening and abusive behaviour towards a Serco ERT Staff Member when asked to stop filming staff responding to another detainee who was requesting medical assistance;[26]
[26] Ibid, RB7, page 64.
·12/11/2018 – the Immigration Detention authorities pre-planned the application of mechanical restraints upon the Applicant en route from the Villawood Immigration Detention Centre to the IHMS[27] Treatment Facility;[28]
[27] Acronym for: International Health and Medical Services.
[28] T1, RB7, page 64.
·05/11/2018 – the Immigration Detention authorities pre-planned the application of mechanical restraints upon the Applicant en route from the Blaxland Facility to the IHMS Treatment Facility;[29]
[29] Ibid, pages 64-65.
·31/10/2018 – the Applicant was abusive and aggressive towards an IHMS Doctor;[30]
[30] Ibid, pages 65-66.
·18/10/2018 – the Immigration Detention authorities pre-planned the application of mechanical restraints upon the Applicant en route from the Villawood Immigration Detention Centre to the IHMS Treatment Facility;[31]
[31] Ibid, page 66.
·15/10/2018 – the Detention Centre authorities saw fit to resort to a use of force by way of application of mechanical restraints upon the Applicant when escorting him from the Melbourne Immigration Detention Centre to the Melbourne Domestic Airport for a transfer to the Villawood Immigration Detention Centre in Sydney;[32]
[32] Ibid, pages 66-67.
·15/10/2018 – the Detention Centre authorities pre-planned the use of mechanical restraints to facilitate movement of the Applicant who was regarded as a “high-risk escort” from Sydney Domestic Airport to the Villawood IDC;[33]
[33] Ibid, page 67.
·08/10/2018 – during a security sweep of the dining room at the Immigration Detention facility at which the Applicant was then detained, contraband referable to the Applicant was discovered secreted under a soft drinks machine;[34]
·08/10/2018 – contraband referable to the Applicant in the form of drug paraphernalia was discovered during a routine sweep of the dining room area of the Immigration Detention facility at which the Applicant was then held;[35]
·08/10/2018 – a detainee was observed on CCTV footage with a bloody nose, and it is thought that he was assaulted in his room by another detainee, most likely the Applicant;[36]
·02/10/2018 – the Detention Centre authorities saw fit to resort to a use of force by way of application of mechanical restraints upon the Applicant when escorting him to onsite, “Dental Van” appointments;[37]
·05/09/2018 – a detainee – revealed by CCTV footage to be the Applicant – passed a cigarette under the Zone E basketball court to another detainee in Zone B;[38]
·05/09/2018 – there was a verbal altercation between two detainees, one of whom was said to have been the Applicant;[39]
·26/08/2018 – the Applicant was recorded as becoming verbally abusive towards Serco staff;[40]
·26/08/2018 – Immigration Detention Centre officers were required to utilise, “Unplanned force…to safely relocate an aggressive detainee” said to be the Applicant;[41]
·26/08/2018 – the Applicant was involved in a minor assault incident that saw him make a verbal and attempted physical threat towards Immigration Detention Centre officers. His conduct required the application of force to restrain him and prevent him from assaulting any of the staff. Whilst this force was being applied the Applicant told those officers, “wait until I fucking see you tomorrow”;[42] and
·05/08/2018 – the Applicant was involved in a minor assault resulting from a physical altercation between him and another detainee. The victim of this assault sustained injuries described as, “Laceration above right eyebrow”, “Bruising to right cheek”, “Laceration to right knuckle”, “Bruising to left shoulder” and, “Redness to right knee and upper thigh”. The victim’s injuries were treated by the IMHS staff and he declined going to the hospital for further treatment of those injuries. The detention centre’s authorities offered the victim the opportunity to call the police and he declined. The Applicant denied assaulting the victim.[43]
[34] Ibid, pages 67-68.
[35] Ibid, page 68.
[36] Ibid, pages 68-69.
[37] Ibid, pages 69-70.
[38] Ibid, pages 70-71.
[39] Ibid, pages 71-72.
[40] Ibid, pages 72-73.
[41] Ibid, pages 73-74.
[42] Ibid, pages 74-75.
[43] Ibid, pages 75-76.
I am mindful that this sub-paragraph 8.1.1(1)(b)(iv) refers to, “a crime committed while the non-citizen was in immigration detention”. While I have, more out of an abundance of caution than anything else, sought to refer to and briefly mention the abovementioned seventeen recorded incidents, all of them appear to post-date the Applicant’s final appearance before lawful authority on 9 May 2018 for commission of, “a crime”. Therefore, while the Applicant may have done whatever he did in Immigration Detention, none of that conduct resulted in him being convicted of, “a crime committed while [he] was in immigration detention”.
It would thus be unsafe to rely upon this sub-paragraph 8.1.1(1)(b)(iv) for the purposes of reaching any finding about the extent to which the Applicant’s conduct in Immigration Detention speaks to any analysis of the nature and seriousness of his unlawful conduct.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[44] (2) acts of family violence;[45] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[46] The Tribunal notes that the Applicant does not have convictions for these three categories of unlawful conduct.
[44] Direction No 90, para [8.1.1(1)(a)(ii)].
[45] Ibid, para [8.1.1(1)(a)(iii)].
[46] Ibid, para [8.1.1(1)(b)(i)].
This Applicant has received virtually the full ambit of sentences available to a judicial sentencing officer. He has been: (1) found guilty of an offence but released on a Youth Supervision Order, “without conviction”; (2) found guilty of an offence where the court thought the charge was proven but the court nevertheless noted the Applicant’s record with the words, “without conviction” upon him entering an, “accountable undertaking”; (3) placed in a Youth Justice Centre; (4) had his driver licence cancelled or suspended for a set period; (5) dealt with, “without conviction” but fined a monetary penalty; (6) sentenced to a custodial term of thirteen-months imprisonment with an accompanying Community Corrections Order; and (7) sentenced to an actual custodial term for numerous offences for an, “aggregated” period,[47] being three months.
[47] Presumably, that each three-month sentence imposed for each offence or group of offences for which he was sentenced on 9 May 2018 be served concurrently.
It is well-established that the imposition of a custodial term is regarded as the last resort in the sentencing hierarchy. The imposition of a custodial term must, therefore, be viewed as a reflection of the objective seriousness of the offending sought to be punished.[48] It is no exaggeration to suggest (and find) that the sentences imposed upon this Applicant for crimes he has committed in Australia must undoubtedly speak towards any analysis of the nature and seriousness of his conduct. He has reached the point in his offending history where the courts are no longer prepared to deal with him in a non-custodial manner. There seems to be no other way to address and curb the nature and extent of his criminal offending.
[48] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162, at para [20].
I am satisfied that the sentences imposed by the courts for the crimes of this Applicant across the approximate seven-year history of his offending are militative of a finding that his unlawful conduct in Australia has indeed been of a, “very serious” nature.
Paragraph 8.1.1(1)(d)
This sub-paragraph is concerned with two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, even a cursory review of the Applicant’s offending history will demonstrate the frequency of his offending. We are talking about the commission of some 128 offences across a seven-year offending period. This equates to the commission of, and conviction for, over eighteen offences for each of the seven years of the totality of the offending history. There can be no cavilling with the finding that his offending has been frequent.
Second, it is necessary to assess whether the Applicant’s criminal history is demonstrative of a trend of increasing seriousness. On one view, it can be said that it is. On another view (and this is the view that I hold) his offending can safely be viewed as serious virtually from its commencement. The first year of the Applicant’s offending featured almost the full gamut of the offending modalities he later committed. For example, during that first offending year (2011), he has convictions for offences against the person, offences against property, an offence against lawful authority, a driving offence, and a drug offence. This pattern of offending is completely, or substantially replicated for the remainder of the years in which he was sentenced for his offending (i.e., 2014, 2015, 2016 and 2018). I am satisfied that this Applicant’s pattern of offending has been serious from its inception.
Therefore, I am satisfied that this Applicant’s offending has been of a frequent nature. I am also satisfied that his offending pattern and modality has been present from its inception and has maintained its level of seriousness throughout its seven-year duration. I therefore conclude that both elements of this particular sub-paragraph 8.1.1(1)(d) are strongly militative of a finding that the totality of the Applicant’s offending in Australia has been of a serious nature.
Paragraph 8.1.1(1)(e)
This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. Without question, it can be safely found that this Applicant’s repeated offending has resulted in specific cumulative effects. First, during his time in Australia, it can be safely found that the Applicant’s criminal offending and the subsequent requirements and results of dealing with it, have been the predominant feature of his life. I have earlier found that he has been dealt with for the commission of over eighteen offences per annum during the seven-year period of his offending history. Put another way, he first came here in 2006 and has been here for approximately fifteen years. His commission of some 128 offences equates to some eight-to-nine offences per annum across his total time in this country.
If one adds up the totality of head custodial time he has received for his offending, the total number comes to approximately 133 months, or just over eleven years. His offending has been of such a magnitude that the sentences imposed amount to or exceed approximately two thirds of his time in Australia.
Second, he has failed to experience any deterrent effect from the progressively applied sentencing regime. As mentioned earlier, he has received virtually the full ambit of sentences available to judicial sentencing officers. He took nothing from the non-custodial sentences imposed upon him during the first five years of his seven-year pattern of offending. He continued to offend and evermore seriously so. At his last sentencing episode on 9 May 2018, the learned judicial sentencing officer imposed custodial time without accompanying orders to lower the time spent in actual custody. The only concession to the Applicant at that last sentencing episode was that he was required to serve each of the three-month custodial terms concurrently instead of cumulatively.
Third, the Applicant’s history is demonstrative of a repeated tendency towards a failure to comply with or otherwise meet the requirements of lawful authority. This conduct has ranged from disruptive behaviour in a closed custodial facility, to a direct challenge to police officers physically attempting to restrain his unlawful conduct. In a similar vein, he has multiple convictions for the commission of offences whilst on bail, as well as multiple convictions for a failure to make any kind of report or acknowledgement to the police about his involvement in a motor vehicle incident.
Fourth, there can be no question that the Applicant’s past difficulties with substance abuse and excessive alcohol consumption have been front and centre of his offending. These difficulties have very significantly distorted and impaired his capacity to distinguish right from wrong and have resulted in him disrespecting and not appreciating the lawful boundaries around other people’s personal and property rights. While his evidence at the hearing was of an upbringing that deprived him of life’s material things, there is, to my mind, a more sinister and unresolved foundation upon which his offending has been committed. Much of his offending can be attributed to conduct aimed at meeting his unresolved issues with illicit drugs, both in terms of his addiction in consuming them and the precursory requirement of having funds or other means to acquire them.
Fifth, the totality of this Applicant’s offending has consumed more than its fair share of the community’s law enforcement, judicial sentencing, and community health apparatuses. The commission of some 128 offences across a seven-year offending period has undoubtably tested and taxed police resources in dealing with it. The Applicant’s appearance at eleven separate sentencing episodes across the seven-year history of his offending has consumed an inordinate amount of the community’s judicial sentencing apparatus. The Applicant’s failure to meet the conditions of a multiplicity of Youth Supervision Orders and/or Community Corrections Orders has similarly consumed its inordinate share of the community’s rehabilitative resources.
The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been of a serious nature.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. As mentioned earlier, the Applicant’s movement details[49] confirm that upon his arrival into Australia on 18 June 2006, he has never left these shores. Accordingly, he has never had occasion to complete an incoming passenger card or to otherwise make any form of lawful disclosure about the nature of his offending and/or the extent of his convictions to the Respondent or any of its derivative entities. This sub-paragraph 8.1.1(1)(f) is thus not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
[49] Ibid, RB8, page 77.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of that non-citizen’s visa status to remain here. The orthodox conception of the language of this sub-paragraph involves a non-citizen receiving a written warning from the Respondent (per one of its derivative entities) giving notification that: (1) the non-citizen’s offending history in Australia had come to the notice of the Respondent; (2) the Respondent was considering cancellation of that non-citizen’s visa; (3) that after considering cancellation, the Respondent formed a view to not so proceed but that; (4) in making the determination not to cancel the visa, the Respondent formally warned the non-citizen, in writing, that the consequences of further offending in Australia could result in cancellation of the requisite visa.
The circumstances of this Applicant’s receipt of a formal warning, in writing, about the consequences of further offending do not fall within the abovementioned orthodox conception but do, nevertheless, satisfy the requirements of this sub-paragraph 8.1.1(1)(g). I could not find in the material any formal warning being issued to the Applicant pursuant to the paradigm described in items (1)-(4) in the immediately preceding paragraph. However, I am nonetheless satisfied that this Applicant has received a, “formal warning” and that it was, “in writing” and that it pointed him to, “the consequences of further offending” in terms of his visa status to remain here.
As mentioned earlier in these reasons, this matter was previously ventilated before this Tribunal on 23, 24 and 26 April 2019, respectively. Part of the material tendered and relied upon by the Applicant at that hearing was an unsigned statutory declaration, made by him, dated March 2019.[50] In that statutory declaration, it is plain to see that the Applicant was aware of: (1) the existential threat he then faced with regard to his visa status to remain here and that; (2) the reality that further offending would again attract the auspices of s 501 of the Act and again imperil his visa status. This is what he said in that statutory declaration:
“I want to start by saying that I take responsibility for past my actions, am remorseful and am truly sorry for all the harm I have caused. There is a not a day that goes by that I do not think of my victims and what they went through. I can’t change the past but I can do everything in my power to make sure I never go back to that situation again.
This visa cancellation and the chance of being sent back to South Sudan is death to me. Until my visa was cancelled I did not know about these immigration laws, that I could be sent to immigration detention with no end date, or that I could be sent back to Sudan. I will do all that is required of me to make sure that I do no further wrong. I have to properly face up to my past trauma and be supported to properly deal with it so that I can move forward and live a good life. I know that it will probably take some time. I am fortunate to be here in Australia and want to do good for the Australian community. If given another chance as I am asking, I will not take this chance I have for (sic) granted.”[51]
[My emphasis; error in original]
[50] Ibid, RB23, pages 1567-1578.
[51] Ibid, page 1567, paras [3]-[4].
Later in this statutory declaration, when talking about his claimed fears of harm upon a return to South Sudan, there is further reference by the Applicant about his visa, “again” being cancelled and that this possibility was explained to him by his, “representative” (presumably, his previous legal representative):
“In South Sudan - I fear that I will be killed. My representative has explained to
me that if my visa is not returned or is taken from me again, and if it is found that I can’t be sent back to South Sudan, I could be kept in immigration detention indefinitely.”[52]
[My emphasis]
[52] Ibid, page 1574, para [40].
This Tribunal previously examined the nature of the Applicant’s offending and his evidence regarding his recidivist risk and the extent to which such risk impacted upon affirming the delegate’s decision to refuse revocation:
“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.”[53]
[My emphasis]
[53] Ibid, RB58, page 1818, para [53].
In its decision published on 6 May 2019, this Tribunal (differently constituted), in determining the matter in favour of the Applicant and setting aside the delegate’s decision to refuse revocation, noted the following about any further offending on the Applicant’s visa status to remain here:
“However, the Applicant must appreciate that if, in the unlikely event, he offends [against] any Australian laws in the future, the privilege of living in Australia will most likely be taken from him”.[54]
[My emphasis and insertion]
[54] Ibid, page 1831, para [99].
Despite the Applicant’s own knowledge about the consequences of further offending on his visa status to remain here and despite the clear and unequivocal comments of the Tribunal on this specific issue, the Applicant contrived to re-offend shortly after being released from Immigration Detention which occurred contemporaneously with publication of this Tribunal’s decision on 6 May 2019. The relevant document from the Department of Justice and Community Safety is dated 2 December 2019 and it appears in the material.[55] Relevantly, it records the following:
[55] T2, SRB1, pages 196-199.
“Of concern, this service received notification that [the Applicant] was in attendance on 27 July 2019 and was released on bail. On 29 July 2019, he was arrested and remanded for alleged further offending as outlined below. Should [the Applicant] be found guilty of these offences, this will constitute a further contravention by way of further offending.”[56]
[56] T2, p 197.
[My emphasis and redactions]
Date
Court
Offence
Commission date(s) of offence
04/12/2019
Melbourne Magistrates Court
Outcome To be heard for a filing hearing
Fail to stop vehicle on police direction x1
Reckless conduct endanger serious injury x1
Fail to render assistance after accident x1
Theft of a motor vehicle handle/receive/retention solen goods x1
Commit indictable offence whilst on bail on 29/07/2019 x1
29/07/2019
07/01/2020
Melbourne Magistrates Court
Outcome Yet to be heard
Theft of a motor vehicle x1
Traffick Methamphetamine x1
Att. Traffick Methamphetamine x1
Possess controlled weapon without excuse x1
Possess Methylamphetamine x1
26/07/2019
27/07/2019
08/01/2020
Melbourne Magistrates Court
Outcome To be heard for a committal hearing
Armed Robbery x2
Attempted carjacking, robbery
Intentionally cause injury
Theft of a motor vehicle
Dishon, u/take in retention stolen goods
Armed robbery
Theft, Handle/receive/retention stolen goods
Theft, Handle/receive/retention stolen goods
Theft, Armed robbery, intentionally cause injury
Possess cannabis
25/06/2019
29/06/201905/07/2019
06/07/2019
08/07/2019
10/07/2019
29/07/2019
During the interlocutory phases of this remitted matter, the Tribunal was made aware of certain new or, “fresh” charges confronting this Applicant. It can be safely assumed that the abovementioned charges were the charges said to be, “pending” during the hearing conducted before me. Also, during the hearing before me, the Respondent’s representative made enquiries about the status of those charges. This is what he found:
“MR CUNYNGHAME: The applicant evaded my question regarding the process of his pending charges. It was a benign question, but in the lunch break I have checked (indistinct) conducted a local source search on the County Court of Victoria website which confirms that the applicant's pending charges are listed for hearing on 2 March, that a 12-day hearing has been set down”.[57]
[57] Transcript (14 February 2022), page 38, lines 7-11.
For the purposes of this sub-paragraph 8.1.1(1)(g), I am satisfied that the Applicant has been formally warned or otherwise has been made aware, in writing, about the consequences of further offending in terms of his visa status to remain in Australia. However, and for the further purposes of this sub-paragraph 8.1.1(1)(g), it would be unsafe to find that the Applicant, “has re-offended” since receiving the aforementioned warning (via the Tribunal’s decision in May 2019). The above list contains some 22 charges which, at the date of the hearing before me, had not been finalised or otherwise determined by way of trial before Judge and jury, or by way of any plea(s) entered by the Applicant.
Accordingly, and fortuitously for this Applicant, this sub-paragraph 8.1.1(1)(g) should not carry any determinative weight against the Applicant in terms of the assessment of the nature and seriousness of his unlawful conduct in Australia. I point out, as clearly as I can, that this situation – that is, the weight allocable to this sub-paragraph 8.1.1(1)(g) and, indeed, the weight allocable to other applicable sub-paragraphs of paragraph 8.1.1(1) – would most likely have been very different if these latest charges had been finalised in any manner adverse to the Applicant.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “very serious”.[58]
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[58] This finding would have only been further galvanised if, at the time of publishing these Reasons, the Tribunal was aware of any outcome, adverse to the Applicant’s interests, resulting from the abovementioned, “pending” charges.
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. There can be surely little said by this Applicant to cavil with my finding that were he to re-commit any of the offences apparent from the offending categories in his criminal history to date, the nature of the harm to individuals or the Australian community could involve physical, psychological, and other materially quantifiable damage (i.e., financial). This finding is consistent with that contended for by the Respondent in its Statement of Facts, Issues and Contentions (“SFIC”).[59]
[59] R1, page 8, para [33].
Were the Applicant to again interfere with the rights of other property owners in terms of: stealing a motor vehicle; handling/receiving/disposing of stolen goods; committing robbery (armed, or otherwise) directly upon victims and otherwise obtaining property by deception (just to cite some examples of his property offences appearing in his criminal history), there can be no question that the potential victim/s of that offending would suffer quantifiable material loss. Were he again to transgress against the personal rights of other people by unlawfully, or intentionally assaulting them (with or without a weapon), recklessly causing injury to them, or becoming involved in an affray with them, (just to cite some examples of his offences against the person appearing in his criminal history), then those victim/s would suffer identifiable and measurable physical and/or psychological harm.
Were he to again operate a motor vehicle whilst unlicenced, carelessly drive a motor vehicle, or fail to report the circumstances of a motor vehicle incident to police (just to cite some examples of his driving offences appearing in his criminal history), then he would again represent a danger to other users of Australian carriageways. Were he to again act in a disruptive manner whilst in police/jail custody, resist police officers, or commit an offence whilst on bail – including an indictable offence (just to cite some examples of such offending appearing in his criminal history), then such conduct would again demonstrate the Applicant’s refusal to meet the requirements of lawful authority governing the Australian community back into which he now seeks re-admission.
Perhaps the greatest concern arises from the Applicant’s unresolved difficulties with illicit substances. He may talk about not having partaken in illicit substances during his time of removal from the Australian community, but that does not necessarily prove, to any reliable extent, that he has overcome his difficulties with illicit substances. I will have more to say about this in my discussion around his recidivist risk. For present purposes, were he again to have his moral compass severely distorted by illicit substances as a result of convictions for possessing such substances, cultivating such substances and otherwise committing other offences to realise funds to partake in such substances, then the entire plethora of his offending matrix again comes into play and has every prospect of being re-committed. In those circumstances, his offending will again – in addition to harming individual victims – consume an inordinate share of the community’s law enforcement, judicial sentencing, and public health resources.
I am satisfied (and I find) that were this Applicant to re-offend, the nature of the harm to individuals or the Australian community at large would be very serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
As part of submissions supporting the Applicant’s request for revocation of a visa cancellation under s 501(3A), the Applicant’s then-representatives provided a written report, dated 28 January 2019. In this report, the representatives cited the then-applicable paragraph of the previous Direction[60] and made the following submission about the Applicant’s recidivist risk:
“In our submission, [the Applicant’s] offending occurred prior to his mental illness being stabilised with consistent medication, receiving treatment for substance addiction, and receiving support for the trauma he experienced as a child.
Further, [the Applicant] has expressed a deep fear of being returned to South Sudan and this is a significant incentive for [the Applicant] to avoid offending in the future. In this regard, [the Applicant] has stated that:
55. If I am returned to South Sudan, I fear that I would be seriously harmed on the basis of my Nuer ethnicity, my sexuality and because I have been away from South Sudan for so long, I would be considered a foreigner. I cannot speak Arabic or Nuer. I fear that I would not be able to survive in South Sudan, both financially and physically. I fear that my mental health would worsen and fear that there would not be mental health treatment available to me there. I also could not get the pain medication that I need for my leg.
56. I fear that I would be harmed during the ongoing civil war that is happening in South Sudan. Whenever I think of South Sudan, I just think that life there would be misery and horror.
57. For these reasons, I ask that my visa not be cancelled and I be given the chance to remain in Australia, rebuild my life and contribute to the community.
In our submission, as a result of [the Applicant’s] increased insight into his mental illness and his efforts to address his offending behaviour, he presents an acceptable risk to the community.”[61]
[60] See specifically Ministerial Direction 65, para [13.1.2]. This was superseded by the current Ministerial Direction No 90, which commenced on 15 April 2021.
[61] T1, RB12, page 107.
In addition to the abovementioned request for revocation of a visa cancellation, the representations to the delegate seeking to set aside the decision made pursuant to s 501(3A) of the Act included a statutory declaration made by the Applicant.[62] In this statutory declaration, he purported to express: (1) remorse for his offending; (2) claimed to have overcome his propensity to abuse alcohol; (3) spoke of a desire to find employment; and (4) to make a meaningful contribution to the community:
“35. Looking back now, I am remorseful about my actions. I would never want a person to do to me what I did to others.
36. I have never been charged or convicted for any crime that has physically hurt someone. However, I know that I have psychologically damaged people with my actions and for that I am remorseful and feel guilty.
37. I want to get a job and contribute to the community because I get a lot out of it. When I eventually do die, I want to leave a legacy behind that people will think I was good man. I do not want to take this life for granted any more. Reality has struck me and I know that if I do stuff up again, there will be much worse punishment for me awaiting.
38. I do not drink alcohol anymore. I saw that I was turning into my father and that is not an image I want, particularly when I eventually want to have children of my own. It has been around 3 years that I have not had alcohol. I have not used ICE for approximately two years.”[63]
[62] Ibid, pages 132-138.
[63] Ibid, page 135.
In this same statutory declaration forming part of his representations to the delegate, the Applicant spoke of his recidivist risk and couched it in terms of his completion of, “many courses” and of him being, “regretful for my actions”. He also spoke of a desire to return to university and to obtain qualifications in roof tiling. He was uncertain about where he would reside and noted that he was, “not sure” if he wanted to return to reside with his mother:
“48. I have completed many courses while being detained in remand, youth justice and prison. I will submit these documents to the Department.
49. I believe that it is unlikely that I would reoffend in future. I know what is at stake now. But regardless of that, I understand that it is wrong to steal something that someone has worked hard for. It is wrong to physically threaten people. I know that I should earn a living and pay for things myself and I realise that I will enjoy those possessions more if I earn them. I know how it feels to have something stolen from you, it is not a good feeling.
50. I am regretful for my actions and know I have damaged people in the process through my actions. I will do all that I can to ensure I do not reoffend in the future.
51. If I am released from detention and my visa cancellation is revoked, I want to go back to Victoria University to do roof tiling. I have also always enjoyed painting and first started when I was in Youth Justice. I developed a keen interest and that is one of my main hobbies in detention. I have done many paintings and some are in my old home. This has kept me occupied while I am detained and I am hoping to be released so I can continue painting, start a course at Victoria University and contribute back to society.
52. My step-mother has offered me a roof to at her place if I am released. I am not sure if I want to live with her in Cranboume, but I do want to be in more contact with her and my step-siblings if I am released. Para has continued to offer me support and worked very hard to try to keep my house while I am detained. When I lost my house, she collected some of my belonging for me.”[64]
[64] Ibid, page 137.
At the previous ventilation of this matter before the Tribunal, the Applicant filed and sought to rely on an updated statutory declaration made in March 2019.[65] In this statutory declaration, the Applicant said:
“I am not an unacceptable risk to the community now. My offending started when I was a minor, homeless and struggling with my past and my future. I was using or coming down from drugs - including weed and ice. I am not going to use drugs anymore and I only want to do good. I want a happy and safe future. I will do no more harm. It is important not to judge a book by its cover. I ask that the Tribunal look deeper into my life and my determination now.”[66]
[65] Ibid, RB24, pages 1567-1578.
[66] Ibid, page 1572, para [24].
Fortuitously for the Applicant, the previous Tribunal did, “look deeper into [his] life” and, on 6 May 2019, made a decision to restore his visa status. Be that as it may, within barely a couple months after his return to the Australian community, the Applicant’s conduct was such as to cause the authorities to charge him with the commission of some 22 criminal offences which, at the time of publication of these Reasons, apparently remain to be resolved at the Melbourne County Court. I exercise caution in allocating any determinative weight against the Applicant for his recidivist risk on the basis of these additional 22 charges, but observe that it would be astonishing if his conduct post-May 2019, which saw him charged with offending in the realm of, for example, multiple counts for theft of a motor vehicle, multiple counts of trafficking in methylamphetamine, multiple counts of armed robbery and multiple counts of theft together with charges relating to possession of cannabis and methylamphetamine was inadvertently committed, or is somehow attributable to someone else.
What is also important, but not necessarily determinative given the unfinalised nature of these fresh charges, is the stark reality that much of this alleged future offending was committed whilst he was on bail and that the Applicant could not provide a straight answer as to whether he had made an application for bail and whether it had been refused. That said, the further stark reality for the Applicant is that he has remained in criminal custody for over two and a half years without any grant of bail.
I will now turn to an explanation and analysis of the Applicant’s evidence given in cross-examination. The Respondent’s representative configured his cross-examination of the Applicant on the basis of asking him questions about so-called, “protective factors” which, on the Applicant’s case, would tend to support a finding of a lower recidivist risk. The difficulty for the Applicant is that the responses he provided to these questions did not demonstrate that such protective factors were in play, or that they militated against his offending when first returned to the community in May 2019. The strong impression to be taken from his oral evidence at the hearing is that those so-called, “protective factors” are unlikely to play any greater role now in lowering the Applicant’s recidivist risk.
The Applicant was taken to a case note, dated 10 May 2019, prepared by an officer of the Department of Corrections. The author of this case note, when writing about the Applicant’s mental health, noted the following:
“The writer discussed engaging with Foundation House or a private psychologist, noting his recent immigration detention and furthermore, his current situation and identified stressors of transiency. [The Applicant] denied any SASH concerns and explained that he wants to focus on his housing, rather than attending his GP for a MH assessment.”[67]
[My redactions]
[67] T2, SRB1, page 170.
The Applicant unconvincingly took issue with the contents of this case note and spoke of his mental health as being, “my biggest problem in life so I don’t see how I would have said that to them”.[68]
[68] Transcript (14 February 2022), page 8, lines 29-31.
He was then taken to a further case note, dated 3 June 2019, which described his housing status shortly after his release from immigration detention in May/June 2019. In this case note, the author noted that the Applicant told him that, “…he has been couch surfing with friends and expressed his concerns that he was unable to find a house”.[69] The Applicant said that upon leaving immigration detention in May 2019, he initially went to stay with his mother. He said that she agreed to this arrangement because, “…I’m still her son even though I’ve done wrong”.[70]
[69] T2, SRB1, page 168.
[70] Transcript (14 February 2022), page 9, line 4.
He was asked whether he ended up living with his mother for any prolonged period. When questioned about why the arrangement did not have a long life, the Applicant spoke of past trauma returning to adversely impact his mental health even though he thought residing with his mother would be beneficial:
“MR CUNYNGHAME: Yes and did you end up living with your mother?
APPLICANT: To be honest, I went there for, like, a night and then, like, all the trauma came back from the past and it made my mental health worse and I had to leave, to be honest, you know. I had to leave.
MR CUNYNGHAME: Why did you have to leave?
APPLICANT: Because it brought up the past and, to be honest, I don't want to think about the past, that's why I'm taking medication for it at the moment, just to help me cope with that, yes.
MR CUNYNGHAME: Did you think that not living with your mother would help?
APPLICANT: To be honest, yes, yes, yes.
MR CUNYNGHAME: Why?
APPLICANT: Because in the past I was really bullied and bashed and just horrible things happened to me at home, yes, so therefore I couldn't stay there no more because of the past.”[71]
[71] Ibid, lines 7-21.
The Applicant agreed that upon leaving his mother’s house he lived solely with friends whilst couch surfing until he was eventually taken into prison, where he presently remains. He spoke of dealing with a housing service called ‘Frontyard’ and although he tried to secure some kind of accommodation through that organisation, he was not successful in doing so. He sought to suggest that ‘Frontyard’ did not assist him because, “…I think it has to do with my skin colour”.[72] He told the hearing that ‘Frontyard’ was placing him in backpacker’s hostels where many of the residents were using drugs and that he thought the arrangement of living in hostels, “…just was unsafe for me”.[73]
[72] Ibid, page 10, line 1.
[73] Ibid, line 7.
The Applicant was then taken to a further case note in the material, dated 9 June 2019. In this case note, the author recorded that the Applicant, “…denied any substance abuse issues or SASH concerns currently”.[74] The case note further records that the Applicant, “…reported that he is finding it difficult to seek housing, however, the writer asked if he has attended appointments with SASHs or Front yard, which he denied”.[75]
[74] T2, SRB1, page 167.
[75] Ibid.
The content of this case note was put to the Applicant with particular reference to the recorded denial of him having any substance abuse, or mental health issues. He was also asked about why he denied any involvement with ‘Frontyard’ as a means of securing housing. The Applicant took issue with the terms of this case note and sought to attribute the content adverse to him to the caseworker who dealt with him at or about the time he was released from immigration detention. He said:
“APPLICANT: To be honest, okay, this person that wrote this case note, to be fair, she was my case - I think she was my caseworker when I first got out of prison before I went to immigration for that one week that I was out. To be honest, me and her did not see eye to eye and, therefore, she called immigration on me to come and get me… she's not putting the right words that I said to her, to be honest. So she's lying.”[76]
[76] Transcript (14 February 2022), page 10, lines 42-47; page 11, lines 9-10.
The Applicant was then taken to a further case note, dated 10 July 2019. In this case note, the author noted that the Applicant had been couch surfing and that he had apologised for missing a supervision appointment. The case note also refers to discussion with the Applicant about a referral to ‘YSAS’ (a youth support organisation), or ‘Foundation House’ as a means of the Applicant finding assistance. The Applicant could not satisfactorily explain why the author of this case note made the following notation: “The writer explained that she is attempting to support him as much as possible, however, due to his sporadic engagement with this service he is making this difficult to support him.”[77] As best I understood his evidence, he once again took issue with the nature of the caseworker and made the following suggestion in his evidence: “So, yes, like, she just did not – to be honest, from the first day, like, she didn’t like me.”[78]
[77] T2, SRB1, page 163.
[78] Transcript (14 February 2022), page 12, lines 9-10.
With further reference to the Applicant’s difficulties in arranging accommodation upon his return to the community in May/June 2019, he was taken to an email trail between employees of the organisation known as ‘Australian Community Support Organisation Ltd’ (“ACSO”).[79] The Applicant recalled having an involvement with ACSO and further recalled it as an organisation that provides, “…short-term help for finding accommodation, I think, from my recollection”.[80] He was taken to an email in this particular trail that referred to him having an appointment on 24 July 2019 for the specific purpose of accommodation arrangements.[81] He did not recall that appointment.[82]
[79] T2, SRB1, pages 155-161.
[80] Transcript (14 February 2022), page 12, lines 21-22.
[81] T2, SRB1, page 157.
[82] Transcript (14 February 2022), page 12, lines 25-26.
The Applicant was then taken to a report, dated 2 December 2019, made by the Department of Justice and Community Safety.[83] He was specifically taken to a portion of this report which noted that on 10 May 2019, the Applicant attended the Sunshine Community Correctional Services office for the purpose of being re-introduced to the previously-imposed Community Correction Order. This report also noted that the Applicant was to be referred to ‘Launch Housing’ for crisis accommodation support, together with the allocation of a housing worker to assist him in seeking long-term accommodation. The further content of this report was also put to the Applicant. In particular, he was taken to the notation that he was directed to attend on two further occasions for supervision but that he failed to attend on three occasions, resulting in those absences being deemed, “unacceptable”.
[83] T2, SRB1, pages 196-199.
The further terms of this report were put to the Applicant. Specifically, that although he attended the office on 27 July 2019 and was released on bail, he nevertheless, on 29 July 2019, was arrested and remanded for alleged further offending and that were he to be found guilty of those additional offences, it would constitute a contravention of the then-applicable Community Correction Order on the basis of that further offending. Earlier in these reasons, I have summarised that additional list of fresh charges.[84]
[84] See table at para [60] of these Written Reasons.
The Applicant was specifically asked whether the notation in the report about him failing to attend on three occasions was correct and, if it was not correct, whether he had anything to say in relation to it. His explanation was both untenable and unconvincing. He agreed that he attended on the occasions he did, “…just to show commitment and that I’m wanting to do this community order and I’ll be there when you need me”.[85] With reference to some kind of explanation as to why he did not attend on at least three occasions, he unconvincingly said the following:
“APPLICANT: But that being said, yes, I was also homeless too at the time. Yes, I was trying to find housing. So it was hard for me to do both things at once but I was trying to show up as much as I could, and I was telling her that, look, sometime I might not make it because I need to do this, this and this.”[86]
[85] Transcript (14 February 2022), page 13, lines 7-8.
[86] Ibid, lines 8-12.
With further reference to this particular report, the Applicant was taken to the heading ‘Treatment and Rehabilitation’ and the sub-heading ‘Drug and Alcohol’. He was specifically referred to the portion of the report that records his referral to the ACSO for an assessment to determine his suitability for further drug and alcohol intervention counselling services that he was directed to attend on 24 July 2019. In particular, he was taken to the specific words in the report which noted that, “He failed to attend this appointment, resulting in having an unacceptable absence issued”.[87] He was directly asked why he did not attend the appointment with ACSO. He purported to suggest that he failed to attend this appointment due to him being in a period of transition between criminal custody and immigration detention:
“APPLICANT: Now, the only reason why I did not attend that appointment is because, number one, is because I was only out for one week. So, and number two, they probably made the appointment within a week to come, like at the end of week, you know what I'm saying. So, that means that the reason why the problem is that upon which is because I was out for one week and immigration came and got me in that one week, so therefore, I missed that appointment. That's why I was asking when did I get out of prison so I can actually know the timeline of how long I was out and how long immigration came and got me. So, therefore, that could be my answer that immigration came and got me just before I went to that appointment, so I did not attend that appointment.”[88]
[87] T2, SRB1, page 199.
[88] Transcript (14 February 2022), page 13, lines 45-47; page 14, lines 1-8.
The Respondent’s representative clarified the timetable for the Applicant and this clarification made it patently obvious that the Applicant’s reason or excuse for not attending the ACSO appointment was nonsense:
“MR CUNYNGHAME:
I might clarify the timetable, I think you've misunderstood. This isn't in relation to your prison, this is in relation to when you were released from immigration detention. So, you were released from immigration detention on 7 May 2019 and you were released into the community. This appointment was about two-and-a-half months later on 24 July 2019. So, by that time, as I understand it, you'd been in the community for at least a couple of months?
APPLICANT:Yes, no, no, that can't be right because ACSO, they don't - ACSO is only a short-term program and like they had no idea that I went to immigration centre. They, like, they only agreed to meet with me to give me an assessment when I got out of prison. So, me being released from immigration centre had nothing to do with me going back to ACSO at all.”[89]
[89] Ibid, page 14, lines 10-20.
There followed a series of questions in cross-examination about the Applicant’s time in prison, in particular, from the end of 2019 onwards. He was taken to a document in the material, dated 5 November 2019, bearing the title ‘Case Planning Transition…Reintegration Assessment Interview Guide’.[90] He was specifically taken to the third page of that report which posed the question, “Do you have anywhere to live if released/after release? If so, where?”.[91] The Applicant was taken to his response where he stated, “Family is not an option, Could stay with friends temporarily (a few days)” and, further, that is terms of housing options available to him upon a release, the report further noted, “Previous Gov Housing Application. Still waitlisted”.[92]
[90] T2, SRB1, pages 109-120.
[91] Ibid, page 111.
[92] Ibid.
After being taken to these specific sections, the Applicant was asked whether it was fair to suggest that towards the end of 2019, his attitude was that he could not live with his family but that he could possibly stay with friends. The Applicant responded with: “I wouldn’t call it an attitude, but yes, that’s correct”.[93]
[93] Transcript (14 February 2022), page 15, lines 4-15.
The Applicant was then taken to a particular document in the material prepared by Corrections Victoria which bears the title ‘Learning Plan Review’.[94] The Applicant was read the following portion of that report, under the heading ‘Self-reflection’::
“[The Applicant] was born in Sudan and migrated to Australia in 2006. He went to school and completed year 11 before leaving to find short-term employment in the construction industry. He explained that he has been incarcerated a few times and recently returned to prison after only being released back in to the community for a short period of time. He said that he had a tough time as he wasn't able to find work and was homeless, which lead to his offending behaviour and ultimately his return to prison. [The Applicant] is currently on remand and due to appear in Court at the end of March 2020.”[95]
[My redactions]
[94] T2, SRB1, pages 90-105.
[95] Ibid, page 93.
He was asked whether he recalled saying words to this effect while in prison. In particular, the question was refined by the Respondent’s representative and resulted in the following responses from the Applicant:
“MR CUNYNGHAME: So, I'm putting to you, firstly, whether you accept that you told prison officers that you had a tough time on return as you weren't able to find work and was homeless. If that is correct, why you think you weren't able to find work and were homeless?
…..
MR CUNYNGHAME: So would you accept that you told officers of the prison that it was difficult to find housing?
APPLICANT: Well, of course it is, like who hasn’t found housing difficult to get?
MR CUNYNGHAME: Did you also tell officers of Corrections that it was difficult to find work?
APPLICANT: Of course, it’s not easy to find work these days, sir, you know, especially for a guy of my background, you know. It’s (indistinct).”[96]
[96] Transcript (14 February 2022), page 17, lines 7-10; and lines 33-39.
In terms of cultural barriers, I am satisfied that having lived there until the age of ten the Applicant should be able to readily re-acquaint himself with the cultural norms of South Sudan. Therefore, there is little or nothing to suggest this Applicant will be confronted with any substantial language or cultural barriers upon a return to South Sudan. No weight is allocable to the Applicant pursuant to this specific sub-paragraph of Other Consideration (b).
Sub-paragraph 9.2(1)(c): little can be said against the proposition that social, medical and/or economic support that would be available to the Applicant in South Sudan would not be of the same nature, type, or extent to that available to him in Australia upon a return to the Australian community. The simplistic approach is to say that he will have available to him whatever level of social security/safety net support is available to other citizens of South Sudan. The difficulty with that proposition is that there seems to be a paucity of social security/safety net services available to the Applicant in South Sudan. As noted in the DFAT Country Information Report:
“Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015, contributing to increasing levels of crime.”[188]
[188] T1, RB27, page 1597, para [2.14]
The employment situation is likewise similarly dire. The DFAT Country Information Report stipulates that data applicable, as of December 2013, indicates 76% of households in South Sudan survive on subsistence activities and informal trade. It further notes that in 2012, South Sudan had a very high unemployment rate with only 12% of the population being actively employed.[189] Thus, while the Respondent may contend that despite the limited public facilities available to the Applicant in South Sudan he would still have access to them to the same extent as other citizens of the country, the paucity of such public facilities renders such a contention as, with respect, vacuous.
[189] Ibid, page 1598, para [2.19].
I agree with the respective contentions of the Respondent who rightly acknowledges (1) that health and social welfare support systems in South Sudan are very limited and (2) that this component of Other Consideration (b) does weigh in the Applicant’s favour.[190] Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view (and I find) that this Other Consideration (b) attracts a moderate, but not determinative, level of weight in favour of revoking the delegate’s decision to refuse to revoke the original mandatory cancellation of the Applicant’s visa.
[190] See R1, page 17, para [70].
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Respondent did not call any oral evidence regarding any impact the Applicant’s continued presence in Australia would have on any of his victims. Of course, there is the equivalent of victim impact statements in the material from one or more of the Applicant’s previous victims. But that victim impact evidence related to the sentencing of the Applicant for that crime or crimes. This hearing does not have before it any specific evidence from a victim(s) that such victim(s) would experience an adverse impact as a result of the Applicant’s continued presence in Australia.
Without such evidence, it would not be safe to enter the realm of conjecture and speculate about the extent to which the Applicant’s offending has had, or would have, on any of his victims. I am mindful of the authority of PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs,[191] which allows a decision maker to have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia. However, in the absence of such a statement, no such discussion is warranted.
[191] [2021] FCA 1235.
The Respondent’s representative agreed in closing submissions that this Other Consideration (c) is of no application to the instant determination.[192] I agree and allocate no weight to it.
[192] See Transcript (14 February 2022), page 40, lines 25-44.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, I will assess the impact of a refusal decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, I will assess the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, I will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
In submissions put to the Respondent on behalf of the Applicant at an earlier stage of these proceedings, the Applicant’s “family unit” was defined as follows:
Full name
Relationship to Applicant
Date of Birth
Nationality
Country of Residence
[Name redacted]
Father
1971
Australian
Australia
[Name redacted]
Step-mother
1973
Australian
Australia
[Name redacted]
Mother
Unknown
Unknown (assumed to be South Sudanese)
South Sudan
Mr TD
Step-brother
1997
Australian
Australia
Mr CD
Step-brother
1996
Australian
Australia
Ms TD[193]
Step-sister
2022
Australian
Australia
Ms NRD[194]
Step-sister
1994
Australian
Australia
Ms ND
Step-sister
2000
Australian
Australia
[193] This is the Applicant’s step-sister referred to in the above discussion concerning Primary Consideration 3.
[194] This is the Applicant’s other step-sister who has the three minor children that I referred to in the above discussion concerning Primary Consideration 3.
[My redactions]
None of the above immediate family members were called to give oral evidence at the hearing. As best as I understood the material, neither the Applicant’s father nor biological mother provided any written statement. The material does, however, contain a statutory declaration from the Applicant’s step-mother wherein she notes that:
“[29] If [the Applicant] is sent to South Sudan, this would have a big impact on myself and my family. It would be emotionally damaging for me. I am his mother. His biological mother is in Ethiopia but I consider myself to be his mother. [The Applicant’s] biological mother would blame me if [the Applicant] is sent back to South Sudan. She would say that it was my fault and that I sent him to his death. The blame would go to me and I would be haunted by it, thinking for the rest of my life about what more I could have done to help [the Applicant] to stop this happening. I would never forgive myself.”[195]
[195] T1, RB38, page 1670.
[My redactions]
I was not able to find any statement from the Applicant’s abovementioned step-brother (Mr TD – born 1997) in the material. In her statement, the Applicant’s step-mother says the following about the impact Mr TD would experience in the event of the Applicant’s removal to South Sudan:
“[30] [The Applicant] has had a very strong relationship with my son, [Mr TD]. If [the Applicant] is deported, [the Applicant’s] siblings, and particularly [Mr TD], would be emotionally affected for the rest of their lives too. [Mr TD] would struggle to cope with the knowledge that his brother is in danger in South Sudan.”[196]
[196] Ibid.
[My redactions]
I have not been able to find any statement in the material from the Applicant’s step-brother [Mr CD – born 1996] but I note from the abovementioned statutory declaration from his step-mother that Mr CD, “supported [the Applicant] and they did homework together”.[197] I have not been able to locate any statement in the material referrable to the Applicant’s step-sister [Ms ND – born 2000].
[197] Ibid, page 1668, para [14].
There is, however, a statutory declaration from the Applicant’s other step-sister, the abovementioned Ms NRD. Her statutory declaration dates from 16 April 2019. In it, she says the following about the impact of the Applicant’s removal on herself, her younger sister (Ms TD) and her younger brother (Mr TD):
·“If [the Applicant] does not have his visa returned, I will be very worried or him. Because of what I have heard about South Sudan and the tribal war [the Applicant] as a Nuer going back there without the language and without family support would not survive.”;[198]
[198] Ibid, RB37, page 1665, para [28].
·“My younger sister [Ms TD]…would be upset if [the Applicant] was sent back. [Ms TD] was young when [the Applicant] left and she doesn’t know a lot about [the Applicant], but she holds him in high esteem.”;[199] and
[199] Ibid, page 1666, para [30].
·“My brother [Mr TD] would also be upset. [Mr TD] and [the Applicant] have always been close. They are close in age. Their mindset was similar. They always had each other’s back at home. [Mr TD] would always jump in and help when [name of the Applicant’s father redacted] was abusing [the Applicant]. This is what cemented the relationship My brother [Mr CD] on the other hand keeps very much to himself. He would crawl into a shell when things were happening.”[200]
[200] Ibid, para [31].
As against what is recorded in the various abovementioned statutory declarations, it should be noted that (as mentioned) none of them gave oral evidence in support of the Applicant at the hearing before me. By way of counterpoint in the evidence, the Applicant told the forensic and consultant psychologist, Mr Ian H Mackinnon, in or about October 2017 that “…I’ve lost contact with all my family. I have no-one in Australia but me.”[201] As recently as 30 May 2021, the Applicant told someone from Corrections Victoria that no one in his family, apart from a sister, actually support him. This is what the relevant Corrections Victoria Case Management Review document said:
[201] T1, RB20, page 1400.
“RELATIONSHIPS – [THE APPLICANT] MAINTAINS CONTACT WITH SISTER. UNFORTUNATELY, SHE IS THE ONLY FAMILY MEMBER WHO SUPPORTS [THE APPLICANT]. HIS PARENTS DO NOT SUPPORT HIM, AND THIS REALLY DISTURBS [THE APPLICANT].”[202]
[202] T2, SRB1, page 56.
[My redactions]
During closing submissions, the Respondent’s representative made the, to my mind, valid submission:
“MR CUNYNGHAME: The applicant has not led any evidence from family members or friends in his favour. If anything, the evidence that I've referred to during this hearing provides that there is some distance between the applicant and his family members, at least insofar as the availability of housing.”[203]
[203] Transcript (14 February 2022), page 39, lines 28-32.
Given the state of the evidence around the strength, nature, and duration of the Applicant’s ties to his immediate family in Australia and the extent to which at least some of them would be affected by his removal, I am of the view that this component of Other Consideration (d) carries a moderate, but not determinative, level of weight in favour of revocation. I reach this finding on the presumption that each of the immediate family members who have expressed a view about his removal are either Australian citizens, Australians permanent residents, or people who have a right to remain here indefinitely.
2. Strength, nature and duration of “other ties” – length of residence
There are two necessary enquires referable to any assessment of the Applicant’s “other ties” to Australia. Initially, it is necessary to look at how long he has resided in Australia, including whether he came here as a young child. As I mentioned earlier, the Applicant arrived in this country in 2006 as a ten-year-old. Since his arrival, he has spent all of his life in Australia, although such time has been limited by the amount of time he has spent either in criminal custody or immigration detention. It can be safely found that the Applicant has spent approximately twelve to thirteen years in the mainstream Australian community.
I now make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those requires me to allocate less weight if the Applicant began offending soon after arriving here. As mentioned, he initially arrived in 2006 and commenced offending in June 2011. This was five-and-a-half years after his arrival. This is not offending that could be said to have occurred, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements requires me to assess the extent of the Applicant’s positive contributions to the Australian community. I have earlier recounted the Applicant’s intention to become involved in remunerative work. The evidence around his engagement with remunerative employment is largely aspirational. In the later of his two statutory declarations made in 2019, he said, “I really want to do paid work so that I am busy, can feel good about myself, and financially support myself.”[204] It is thus difficult to ascertain whether the Applicant has been engaged in remunerative employment at any stage in Australia. To whatever extent he has, it can be found that he may have made some sort of positive contribution to the Australian community by any taxation he would have paid on those earnings. Likewise, it is difficult to glean any evidence of community involvement and/or contributions from the evidence.
[204] T1, page 1574, para [33]: this is the statutory declaration dating from March 2019.
Thus, while the first of the two tempering sub-elements has been rendered neutral, the second one might, to whatever extent the Applicant has an employment history in Australia, be applied in his favour to attract some limited weight to this Other Consideration (d) for the purposes of setting aside the delegate’s decision under review.
3. Strength, nature and duration of “other ties” – family and other social links
As best as I understood the material, there does not seem to be any reference to other family ties or social links the Applicant has with people in Australia. The material contains respective statutory declarations from the abovementioned Ms Para Grigorakis and Mr Craig Fisher.[205] However, his connection with those people is by way of social worker-client or counsellor-client and cannot be said to constitute a, “tie” he has with them. In any event, in his oral evidence, he spoke of the relationship with Ms Grigorakis as being one of, “Just to support me and to help me with what I need help with”.[206] Similarly, with reference to Mr Craig Fisher, the Applicant said in his oral evidence that, “He is a good man and a good friend. For a short time, yes, I did [have a relationship with Mr Fisher], but after that, it started to get faded away”.[207]
[205] See generally, T1, RB35-RB36, pages 1650-1662.
[206] Transcript (14 February 2022), page 22, line 29.
[207] Ibid, lines 39-41.
Therefore, given the relative absence of “other ties” this Applicant has in Australia who might be adversely impacted by his removal, I must arrive at a finding that this third component of Other Consideration (d) does not facilitate any weight in his favour towards revocation of the delegate’s decision under review.
(2) Strength, nature and duration of ties
I am mindful that paragraph 9.4.2(3) requires an assessment of the Applicant’s links to Australia with particular reference to any impact his removal may have on “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australia community
With reference to the first part of this Other Consideration (d) (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above-referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative level of weight in favour of the Applicant. The second part of this Other Consideration (d) (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (nominated in the Direction) relevant to the present matter:
International non-refoulment obligations: a moderate, but not determinative, level of weight in favour of revocation;
(b)Extent of impediments if removed: a moderate, but not determinative, level of weight in favour of revocation;
(c)Impact on victims: is of no weight; and
(d)Links to the Australian community: carries a moderate, but not determinative, level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs very heavily against revocation;
·Primary Consideration 2: is not relevant;
·Primary Consideration 3: weighs very minimally in favour of revocation; and
·Primary Consideration 4: weighs heavily against revocation.
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (a), (b) and (d) are not sufficient to outweigh the combined heavy weights I have respectively allocated to Primary Considerations 1 and 4, respectively;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 11 February 2019, to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 242 (two-hundred-and-forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
........................[SGD]...........................
Associate
Dated: 13 June 2022
Date of hearing:
14 February 2022
Applicant:
Self-Represented
Solicitor for the Respondent Adam Cunynghame, Senior Associate
Sparke Helmore Lawyers
Annexure A – Exhibit List
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
T1
Remittal Bundle (paged 1–1835)
Various
2 Jul ‘21
T2
Supplementary Remittal Bundle
(paged 1–448)Various
3 Aug ‘21
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1–18) with Annexures:
· Annexure A: Ministerial Direction 90;
· Annexure B: Q & A Report regarding citizenship and residency requirements in Sudan, South Sudan and Kenya;
· Annexure C: DFAT Facts Sheet regarding South Sudan.
Various
23 Aug ‘21
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Natural Justice
-
Standing
0
6
0