TXFB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1142

TXFB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1142 (12 May 2023)

Division:GENERAL DIVISION

File Number:          2023/1178

Re:TXFB

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:12 May 2023

Place:Melbourne

The decision of the delegate not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is set aside and substituted with the decision that there is another reason the mandatory cancellation should be revoked.

............................[SGD]............................................

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – national of South Sudan – Class XB Subclass 200 Refugee visa – failure to pass character test – public order, family and other violence, and breach offences – whether another reason cancellation should be revoked – best interests of minor children – impact on victims – previously undisclosed head injury –decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

Migration Act 1958 (Cth)

Cases

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
CKL21 v Minister for Home Affairs [2022] FCAFC 70
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Pearson v Minister for Home Affairs [2022] FCAFC 2023
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Secondary Materials

Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

12 May 2023

INTRODUCTION

1. This matter is a member of a class of matters affected by the judgment of the Full Court of the Federal Court of Australia in Pearson v Minister for Home Affairs [2022] FCAFC 2023 (Pearson), which was decided on 22 December 2023, and the legislation that responded to that decision, being the Migration Amendment (Aggregate Sentences Act) 2023 (the Amending Act).

2. TXFB originally lodged an application for review on 13 October 2022 in respect of the decision of a delegate of the Respondent Minister on 12 October 2022 not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee visa. Both mandatory cancellation and revocation decisions arise under provisions in the Migration Act 1958 (found in Part 9 – Miscellaneous) (the Act) relating to what is known as the ‘character test’.

3. This application was case managed in the usual manner by the Tribunal and an in-person hearing was conducted on 15 and 16 December 2022. Pursuant to s 500(6L) of the Act the 84^th day by which a decision of the Tribunal would have ordinarily been required was 4 January 2023.

4. The Applicant’s record of criminal convictions commences in 2017 and extends until his incarceration in mid-2021. His offending encompasses public order, property, honesty and breach offences. More critically, his offending also includes convictions for violence including several against his then partner, Ms T. TXFB also has convictions for repeated contravention of family violence intervention orders in respect of Ms T. The most severe penalty received by the Applicant is that of imprisonment for an aggregate 12 months for a range of offences. A family violence intervention order was granted in July 2021 for a period of 12 months in respect of Ms T and her children.

5. Relevantly, the significance of Pearson is that the Full Court held that an aggregate sentence imposing a term of imprisonment did not amount to a ‘substantial criminal record’ for the purposes of the character test. The Amending Act then inserted s 5AB in the Act to provide that the provisions of the Act apply no differently to sentences which are imposed for multiple offences. It also included provisions validating things done, or purportedly done, which would have otherwise been deemed invalid as a consequence of Pearson.

6. Written submissions were lodged on TXFB’s behalf dated 22 December 2022, following the decision in Pearson, contending that because of the imposition of an aggregate sentence, the original mandatory cancellation decision was void. Written submissions were lodged by the Respondent dated 30 December 2022 also contending that decision was invalid, and noting that TXFB’s visa had been reinstated and he had been released from detention. The Respondent further proposed that the Tribunal dismiss TXFB’s application for review and, accordingly, I dismissed the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) by order dated 3 January 2023.

7. At an unspecified time TXFB was again detained and lodged a fresh application for review dated 24 February 2023, in respect of a new notification from the Department of Home Affairs dated 17 February 2023. Notwithstanding that this notification contains important factual errors, the Tribunal and the parties proceeded to again case manage TXFB’s application. Specifically, the parties consented to the Tribunal conducting the review of the decision without conducting a further hearing, pursuant to s 34J of the AAT Act.

8. Subsequent to these case management steps, I sought submissions from the parties with respect to the status of the purported notification dated 17 February 2023, and the scope for the application in this 2023 matter of the rule in s 500(6L) of the Act.

9. The Respondent acknowledged on 10 May 2023, properly, that statements made in the correspondence of 17 February 2023 ‘do not reflect accurately the outcomes of the 2022 Application, nor the process available to him to seek review of the decision under review’ ([9]). The Respondent contends that the Amending Act had the effect of validating the original decision of 12 October 2022 and, consistent with authority, the 84-day rule is not enlivened ([6]-[7]). Finally, the Respondent contends that the correct course was indeed for TXFB to make fresh application to the Tribunal, notwithstanding that there is no statutory obligation for further notification from the Department ([9]-[10]).

10. The Applicant agreed on 11 May 2023 that there is no statutory time-limit applying to the 2023 matter ([3]). The Applicant however disagrees with the Respondent’s contention that there is no obligation for notification to an applicant and that ‘s5(2)(d) of the Amendment Act, when read with s 500(6B) of the Act and the general principles of procedural fairness, raises serious questions as to whether such time prior can be said to have “crystallised” relying solely upon the commencement’ of the Amending Act ([10]).

11. I consider the parties’ interpretation as to the non-applicability of s500(6L) of the Act to be reasonable in the circumstances. It would also appear, as identified by the Applicant, that the Respondent has not squarely addressed a resulting anomaly. That is, what in these circumstances is the relevant trigger for the making of an application, what is the relevant timeframe for making any application, and what is the relevance in this case of the apparently invalid notification?

12. Notwithstanding these unresolved issues, and absent any other active procedural steps, and consistent with the Tribunal’s objective as set out in s 2A of the AAT Act, I consider it in the best interests of TXFB to render a decision in this matter.

13. Finally, the Minister for Immigration, Citizenship and Multicultural Affairs issued Direction 99 (the Direction), pursuant to s 499 of the Act, on 23 January 2023. The Direction, and its predecessor Direction 90, set out considerations that a decision-maker must take into account when undertaking review of a mandatory cancellation decision. As the Direction commenced operation on 3 March 2023, the parties lodged updated submissions addressing the considerations as they now are.

14. These submissions are styled as the Statements of Facts, Issues and Contentions (SFIC) of the parties in the present matter. In the case of the Applicant’s SFIC (ASFIC), the 2023 submissions address primarily the key changes found in Direction 99. I note below primary material lodged in TXFB’s previous application for review, including previous SFICs. For the avoidance of doubt, pursuant to s 33(1) of the AAT Act, I note that I have relied upon this material and the evidence given in the December 2022 hearing in preparing these reasons. I will distinguish when required between the respective SFICs.

    BACKGROUND

15. The Applicant was born in Sudan in 1994, in a region that now forms part of South Sudan, and is of Dinka ethnicity. At the age of seven he was separated from his immediate family due to the eruption of conflict, fleeing to a refugee camp in Kenya with an uncle. TXFB travelled to Australia with extended family members in 2006, then aged 11.

16. With the assistance of the Red Cross and together with an aunt, TFXB was able to locate his immediate family members who then arrived in Australia in 2013. This family group comprises the Applicant’s mother (Ms I), and five siblings (S1 and S2 (currently aged 26), S3 (aged 23), S4 (aged 19), and S5 (aged 17)).

17. TXFB is understood to have three biological children. The eldest is ten years old and is the child of the Applicant’s former partner Ms T (C1). Another child is aged seven and is the child of TXFB’s partner Ms P (C2). The third child, of another mother, is five years old and lives with the child’s grandparents (C3). Ms P has another child aged 5 from a different partner (SC1). Ms T also has two older children aged 15 and 13 (SC2 and SC3).

18. TXFB completed schooling to Year 11 at a Catholic high school and gained several years’ work experience in unskilled roles, with aspirations for a career in Australian rules football. In a year that has not been consistently determined, possibly 2016, TXFB experienced a head injury or injuries from a combination of an assault and contact on the sporting field. He eventually underwent cranial surgery including a substantial period in a coma. TXFB appears to have failed to undertake any formal post-operative medical review, and the injury and medical intervention led to the end of his involvement in both sport and employment.

19. TXFB obtained representation only shortly prior to the hearing in December 2022. This permitted the lodging of a Statement of Facts, Issues and Contentions (ASFIC/2022), a large number of supporting statements, a report from Ms Gina Cidoni, forensic psychologist, and a bundle of up-to-date country information relating to South Sudan.

20. The Respondent lodged a SFIC (RSFIC/2022), documents pursuant to s 500(6F) of the Act (G Documents), and medical records of TXFB from his time in detention. A joint Hearing Book (HB) was prepared by the parties and references will be made to this source where possible, and to the G documents.

21. In consultation with the parties at the commencement of the hearing, I ascertained that all but one of the supporting documents lodged on TXFB’s behalf were submitted within the time limit established by ss 500(6H) and (6J) (the ‘two-day rule’). The appearance of witnesses was managed in order to ensure compliance with this rule.

22. In addition to oral evidence from the Applicant himself, evidence was given by: TXFB’s mother, Ms I; his siblings, S1 and S2; his partner, Ms P; his former partner, Ms T; Ms Selba Luka, of the community organisation Afri-Aus Care; Ms Cidoni; and, Mr Arnel Davis, a football coach. Several of the witnesses, including TXFB, were assisted by an interpreter in the Dinka language.

    LEGISLATION

23. The character test is elaborated in s 501 of the Act. Subsection 501(3A) provides that a visa must be cancelled if a person does not pass the character test on the basis of having a substantial criminal record. Failure to pass the character test arises by combined operation of ss 501(6) and (7) and arises in the circumstances including where a person has been sentenced to a term of imprisonment of 12 months or more.

24. Pursuant to s 501CA(4) of the Act, in circumstances where representations have been properly made, a mandatory cancellation decision (as above) may be revoked if the person in question is found to pass the character test, or where a decision-maker is satisfied that there is another reason the decision should be revoked (s 501(4)(b)(ii)).

25. I noted above the requirement to take into account the considerations set out in Direction 99. The Direction also sets out principles (5.2) that provide the framework within which a decision about revocation of a mandatory cancellation decision is to be made. In summary, (relevantly) they are:

    (a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia;

    (b)non-citizens who have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;

    (c)the Australian community expects the Government to cancel their visas and this expectation applies regardless of whether they pose a measurable risk of causing physical harm to the community;

    (d)Australia has a low tolerance of criminal or other serious conduct of non-citizens who have participated in and contributed to the Australian community for only a short period of time;

    (e)Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years; and

    (f)decision-makers must take into account the considerations set out relevant to the individual case. In some circumstances the nature of conduct or harm may be so serious that even strong countervailing considerations may be insufficient to justify revocation. In particular, the inherent nature of family violence and other specified forms of conduct is so serious that even strong countervailing considerations may be insufficient even where there is no measurable risk of physical harm to the Australian community.

    ISSUES

26. The issues for consideration are whether the Applicant fails the character test, and, if so, whether another reason exists to revoke the mandatory cancellation of his visa.

27. I noted above the legal issues arising in this matter leading to TXFB’s release from detention and subsequent return to detention consequent upon the decision in Pearson. It is the submission of the parties in their 2023 SFICs that TXFB does not pass the character test. I am satisfied that TXFB was sentenced in a Magistrates Court in July 2021 to a sentence of imprisonment for 12 months (G2/A). On this basis I am also satisfied that he therefore has a substantial criminal record pursuant to s 501(7)(c) and does not pass the character test.

28. I will now address the considerations set out in the Direction, and any others arising from the evidence or submissions, in order to determine whether another reason exists to revoke the mandatory cancellation decision.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

    Nature and seriousness of conduct

29. The Applicant’s record of convictions commenced at around the age of 23, some 11 years after his arrival in Australia, spanning four and a half years between May 2017 and November 2021. In eight appearances at Magistrates Courts he has received outcomes spanning a wide range from conviction and discharge (for public order offences) to his 12 month prison sentence, and an 18 month Community Corrections Order (CCO). Other outcomes include a number of relatively small fines and shorter periods of incarceration including an aggregate 2 months and 100 days (concurrent with the longer sentence), and separate sentences of 145 days and 10 days aggregate.

30. With respect to the offending resulting in the aggregate sentence of 12 months, I note the following from the remarks of the sentencing Magistrate in July 2021 (G2/B):

    (a)charges of unlawful assault (March) and intentionally cause injury (April) were found proved and they carry lengthy terms of imprisonment;

    (b)contravention of family violence intervention order and theft from a shop were also proved, and are serious offences;

    (c)prospects for rehabilitation carried concerns due to the six court appearances since 2017 and TXFB’s pattern of denying responsibility and blaming the victim;

    (d)pleading guilty was a small indication of responsibility, but the Magistrate did not accept TXFB’s explanation that he did not understand a prior CCO;

    (e)TXFB had done ‘stupid stuff’ whether due to being around friends or due to an alcohol problem;

    (f)TXFB needed time in custody to think about how he can stop this happening, noting that his mother, the community and his siblings need him;

    (g)TXFB consented without admissions to finalise an interim intervention order which was granted in respect of Ms T and her children; and

    (h)the Magistrate explained that Ms T cannot agree in future to breaching the order.

31. The materials include are a number of Police preliminary briefs (G2/B) concerning various incidents:

    (a)attendance in May 2017 when TXFB was disruptive in the family home, abusive to his mother and in a scuffle with S1, pushed him into a plaster wall;

    (b)theft of alcohol from a bottle shop in August 2019;

    (c)attendance on three occasions on the same day in April 2020 following calls from Ms T after incidents in which she was struck by TXFB, choked and threatened, with both found to be intoxicated, stating that Ms T attended hospital after an instance of violence, TXFB was issued with an interim family violence intervention order, and it appears Ms T was pregnant;

    (d)attendance in March 2020 following a call from Ms T after being punched twice in the head by TXFB during an altercation, following which a family violence safety notice was issued in respect of Ms T and her children;

    (e)attendance in August 2020 for an alleged COVID breach in which TXFB, Ms T and others were found affected by alcohol and at a time when an intervention order was in place;

    (f)attendance in March 2021 following a call made by S1 after a dispute between TXFB and Ms T in person, at a time when an intervention order was in place and at which no person present provided a statement; and

    (g)attendance after a call from Ms T after an incident in which she was struck in the head by TXFB with a ceramic cup causing a cut, at which time an intervention order was in place.

32. The above material is the totality of the material elaborating the offences leading to the sentence causing the mandatory cancellation. Also in the materials are the intervention order made at the time of the sentencing (G2/C), and the decision of the Adult Parole Board (G2/D) denying TXFB parole, with no further explanatory material provided.

33. In a statement dated 22 March 2022 (G2/M), TXFB states:

    (a)the head injury was a big blow to him and was when his offending first began ([14]);

    (b)he started drinking and spending time with people who were not good for him, he felt depressed and ‘spiralled’, and has noticed that he has had anger issues and thinks this is related to his experiences overseas ([14]); and

    (c)he feels bad for his actions in the past and knows that he can only do things differently in the future ([15-16]).

1. TXFB was asked about his offending and incidents of family violence in cross-examination. He acknowledged arguing with siblings but was unable to provide great detail about these incidents. TXFB acknowledged punching Ms T in the head, but stated he was drunk and stupid, adding that he would ask her to forgive him, and he felt sorry for her. The Applicant stated he could not remember striking Ms T with a cup.

2. TXFB provided little meaningful evidence about the nature of his personal friendships that he considered were a bad influence. When asked about possible future contact with this circle, TXFB stated he had been where they had not, being locked up and placed in detention. In short, he would tell them that he doesn’t need them.

3. In her statement (HB/4/3), Ms T states that most of the problems in their relationship were because of alcohol and that it impaired their communication ([10]). She states that TXFB did not always become aggressive when affected by alcohol and the pair made up after the Police imposed an intervention order; she did not realise they were breaching it by ‘hanging out together’ ([11]-[12]). Ms T also states that she attempted to take steps to have the order withdrawn after the incident in August 2020 ([13]).

4. In her oral evidence Ms T stated that she did not know why the intervention order listed her children as they did not live with her at that time.

5. In his statement (HB/4/5) and oral evidence, S1 stated that the incident in which he was said to have been pushed into a wall was misinterpreted, and in fact it was he who pushed TXFB into a wall. S1 was asked in cross-examination about an intervention order that may have been granted in his favour against TXFB. S1 responded that the siblings at home needed to sleep in order to attend school and TXFB used to come home and make noise with his friends. S1 stated further that the Applicant had not been aggressive or threatening.

   Submissions, consideration and findings

6. It was submitted for the Applicant that some higher tolerance might be afforded his criminal conduct given the time he has spent in Australia. It was further submitted that having been granted a refugee visa meant that this tolerance was heightened. Reference was also made to the contentions set out in the ASFIC/2022 ([19]), being:

   (a)Ms Cidoni in her report identified that the absence of a father and a traumatic background increased the likelihood of risky behaviour;

   (b)TXFB had been diagnosed with several mental health disorders and may have an Acquired Brain Injury (ABI), which present a causal relationship to his offending;

   (c)alcohol abuse contributed significantly to the offending;

   (d)the sentencing Magistrate was not referred to TXFB’s possibly impaired mental functioning, which must be considered in criminal sentencing; and

   (e)TXFB’s visa status appears not to have been raised with the sentencing Magistrate.

7. Submissions acknowledged that the Direction places special emphasis on acts of family violence (Direction, 8.1.1(1)), but it was contended that acts of violence in the family home were not threatening or causing fear, in the wider sense of the definition of family violence in the Direction (4(1)). It was further contended that Ms T’s evidence indicated the breaches of intervention orders were not constituted by further acts of violence. Notice should also be taken of the fact that the maximum sentence imposed on TXFB was the 12-month term of imprisonment which resulted in the mandatory visa cancellation.

8. The Respondent’s representative noted that the RSFIC/2022 had been prepared prior to information coming to light about TXFB’s head injury. It was contended at the hearing that his criminal offending should be considered serious. In the RSFIC/2022 it is specifically contended:

   (a)crimes of violence are, as a general class, ‘abhorrent’ and that TXFB has offended repeatedly against his former partner Ms T, as well as having accumulated a number of other convictions for violent conduct;

   (b)accordingly, his violent offending should weigh heavily in the context of this primary consideration;

   (c)TXFB’s family violence offending relating to the same victim, should be considered as extremely serious, and the related breach offending should be considered as very serious as it reflects disregard for the ‘critically important purpose for which such orders are granted’; and

   (d)the Applicant has reoffended after earlier terms of imprisonment, and has, cumulatively, been convicted of a total of 71 charges between May 2017 and November 2021 (very consistent and persistent offending, as observed by the sentencing Magistrate).

9. The Respondent submitted (RSFIC/2023) that plainly TXFB’s extensive history of offending ought to be viewed as being serious, and that his history of family and domestic violence is extremely serious. It is also contended that reoffending including through contravention of orders reflects contempt for authority, and that serious concerns arise due to TXFB offending after periods of incarceration.

10. The Direction specifies that certain types of crime or conduct are viewed very seriously by the Australian Government and the Australian community, including violent crimes, crimes of a violent nature against women, and acts of family violence, whether or not resulting in a conviction (8.1.1(1)(a)).

11. I note the definition of family violence in the Direction encompasses ‘violent, threatening, or other behaviour … that causes the family member to be fearful’ and provides an inclusive list of behaviours (4(1)).

12. I am satisfied that TXFB has been convicted of multiple violent crimes including against his former female partner. Accordingly, I find that this offending is to be viewed very seriously.

13. I accept the submission that the evidence indicates that the incidents in the family home did not clearly demonstrate that TXFB had been violent with family members, and had not led to convictions. I also note the submissions made by the Respondent in respect of this other conduct in the subsequent primary consideration.

14. I must have regard to a range of factors concerning the nature of TXFB’s offending (8.1.1(1)(c)-(g)).

15. There does not appear to be an obvious trend of increasing seriousness in the offending, and it has comprised a wide range of conduct including violent offending throughout. His offending is clearly relatively frequent, albeit in a relatively limited time span. The cumulative effect of TXFB’s repeated offending might be said to be reflected at least in the imposition of a more substantial sentence of 12 months, but also in the sheer volume of convictions.

16. In short, I find that his offending record overall raises significant concerns for its intensity, consistently poor quality, and TXFB’s evident disregard for the opportunities afforded him by less punitive outcomes.

17. I consider that I am required to accept the criminal record and any related sentencing outcome on their face. There is, however, authority for the view that a decision-maker may make an assessment of the ‘entirety of the conduct’ of an Applicant, ‘including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned’ (Minister for Immigration and Multicultural Affairs v Ali, [2000] FCA 1385, at [45]).

18. For this reason, I do not consider that I am able to take into account, under this element of this consideration, submissions as to the hypothetical impact upon historic court outcomes of the recently identified head injury, nor the related clinical diagnoses. These submissions may, however, have some relevance in considering the relative weight overall of the various findings made in respect of the considerations arising in this matter. The issue of the head injury is also addressed at length in the following element of this primary consideration.

19. Finally, I note that the evidence as a whole demonstrates that much of TXFB’s serious offending occurred while he was under the influence of alcohol.

    Risk to the Australian community

20. In his first statement (HB/G2/M), TXFB states that:

    (a)he remembers at age seven people came to his village and started shooting people, was separated from his family and lived in a refugee camp in Kenya, has so many bad memories from this time, and had nightmares when living in Kenya ([2]-[5]);

    (b)he had limited opportunities in prison to obtain counselling for his personal issues, but has undertaken a program on respectful relationships and, together with other conversations, this has helped him think about his decision making ([14-17]);

    (c)he knows that alcohol is a big problem and wants to return to sport, take care of his family and children ([19]-[20]);

    (d)sometimes when difficult situations have occurred at home it has reminded him of past memories from the war and refugee camps, thus counselling will be useful to help change his behaviour ([21]); and

    (e)he worked as a billet in prison and has a good work record ([22]).

21. In his statement dated 12 December 2022 (HB/4/1), TXFB also states that:

    (a)he acknowledges his offending conduct, he feels he has let himself, his family and his community down, and that he has done shameful things to his family and Ms T ([6], [8]-[9]);

    (b)he is committed to never getting in trouble again, having been informed about family violence in the relationships course he completed in prison, and that he takes full responsibility for his acts of violence ([10]-[12]);

    (c)he previously made a positive contribution to the community, attending school, participating in football including the grand final of an amateur competition playing for Team Africa, and at this time was focused on positive things ([13]-[15]);

    (d)he now considers a head injury that occurred after an assault at a party and later being kneed in a football game was a major turning point in his life, as – following surgery – he was unable to play again and started hanging out with the wrong crowd ([16]-[17]);

    (e)time in prison and being sober have helped him to reflect upon his life and he understands the opportunities he has been given in the past, and he now understands the consequences of his actions ([18]-[21]); and

    (f)he wants the opportunity to be a good father to his children, and has plans for the future around gaining qualifications and employment, and to be of assistance particularly to his mother ([38], [40]-[45]).

22. Attached to this statement, in addition to photographs of his football experiences, are a certificate from Anglicare dated July 2012 for completion of two modules (each of three hours) of the Tuning into Respectful Relationships course. Also attached is a certificate for completion of a module toward a Certificate III in Civil Construction.

23. In his evidence at the hearing TXFB stated that he intended to change, and reiterated his plans for education and employment. When asked about his family violence offending, the Applicant stated that he knows this was not the ‘right thing to do, especially in our culture’. He acknowledged bringing shame upon the family, and would like to apologise to Ms T, and ask her to forgive him. TXFB stated that he is a different person and has spoken to ‘elders’ in jail who have explained to him the ‘right way to go’.

24. TXFB stated that he felt Ms P had always been there for him, and that she is a lovely woman who is very supportive. When asked about his recent re-connection with her, TXFB stated that she had missed him, and that he will make her stronger, and they hope to have more children. He stated further that Ms P does not drink, will not let him drink, and will keep him away from other influences.

25. TXFB acknowledged the importance of his role as the oldest child of the family, and considered that it was his role to assist his mother, stating his siblings were ‘too young’ and not familiar with their mother’s needs, or ‘how things work’.

26. When asked about Ms Cidoni’s assessment, and recommendations, TXFB stated that he will follow-up on medical assessment and treatment, ‘stay away from doing bad things’, and take medications if told to do so. He stated further that he felt that his mother would be hurt the most by any ongoing absence through prolonged detention or return to South Sudan.

27. In cross-examination, TXFB stated that he had been injured when trying to stop a fight at a party following the AFL draft at the MCG in 2014. He was later kneed in the same place and a doctor told him he had internal bleeding, leading to surgery and a coma lasting two weeks. Having prepared to recommence training, TXFB also stated that he was told he could not play for five years and started drinking as he had hoped to play in the AFL.

28. TXFB reiterated his intention to avoid those he previously kept company with. He stated that he had learned about the link between alcohol and his offending through participating in a program in jail, and speaking to fellow inmates. He acknowledged his work experience as comprising a year with KFC (2011-12) and in construction (2013-14) (G2/J). TXFB stated his employment was interrupted due to his injury.

29. Medical records lodged by the Respondent (HB/9) include records of medical reviews upon TXFB’s departure from prison in which note is made of his report of a head injury. More relevantly, I note that this bundle includes a radiology report and accompanying images dated 18 November 2022. The report describes findings including: ‘A previous left sided craniotomy is noted, transfixed my metallic hardware overlying the frontal parietal and temporal bones’. I understand from discussion with the parties at the commencement of the hearing that the imagery was taken following a request from the Applicant for an MRI and, as noted in the report, he had been unsure whether there was metal in his body (he also has ‘hardware’ in his left ring finger).

30. The written material from Ms P comprises two emails and a more formal statement. Photographs of TXFB’s football career and of he, Ms P and her children in detention are incorporated in to one of the emails.

31. In her statement (HB/4/2), Ms P states that:

    (a)she is ‘broadly aware’ of TXFB’s offending against Ms T including intervention orders and their breach ([2]);

    (b)she had an on-and-off relationship with the Applicant since 2014, having known him since 2012, and that they have reconciled in the past six months and love each other ([3]);

    (c)TXFB has never been allowed to drink at her home or in front of the children and it is her intention that, if released, he will live at her home with the children, accepting that he will also need to spend time with his mother ([4]-[5]);

    (d)C2 and TXFB have always had a positive relationship, SC1’s father passed away in 2019 and the Applicant has been a paternal figure to this child, who has ADHD and another disorder ([6]); and

    (e)she desires to do everything to support TXFB get his life back on track, he has promised to stay sober, he has learned the benefit of family, and she believes he can become a functioning member of society ([10]-[11]).

32. In her evidence, Ms P stated that the relationship had been on-and-off due to her relationship with the father of SC1. She stated that her relationship with TXFB was much better now they have reconciled.

33. Ms P stated that her support to him would be in the form of a ‘stable, loving, caring home’. A significant part of her written and oral evidence centred on TXFB’s interest in and relationship with both children (C2, and SC1). When asked about the Applicant’s place as a role model, Ms P responded that both children have ADHD, and that she considered some of their behavioural problems would be moderated by TXFB’s presence.

34. In cross examination, Ms P stated that she has met both S1 and S2 and TXFB’s mother, however the children have not seen TXFB’s family for two years. She stated that after his head injury TXFB took to alcohol more and that he was now better able to understand things.

35. I asked Ms P to explain her personal circumstances, and she stated that she is a fulltime mother, but has qualifications in aged care and disability services. Ms P would like to study more and work part time. She presently shares her house with an uncle and his child, apparently in order to obtain assistance with her children. The uncle would move out should TXFB come to live with Ms P. She added that her uncle does not know TXFB well, and while he has met her mother, she does not know about his health or criminal record.

36. S2 gave both written (HB/4/6) and oral evidence in respect to TXFB’s head injury. They stated that the Applicant appeared unwell, including vomiting and sleeping excessively, but did not engage with him for a few days, thinking he may be hungover. S2 did eventually call an ambulance and accompanied the Applicant to hospital, where he was admitted after a prolonged wait. When asked, S2 agreed that TXFB was at this prior time a social or weekend drinker, but never brought alcohol home.

37. S2 was unable to be specific as to the year of the head injury, but gave evidence as to a ‘big change’ that occurred in TXFB afterwards. They recalled conflict at home involving the Applicant and other members of the family, but stated they never felt threatened or harmed. They attested to have had a distant relationship which has now become ‘really better’ during the Applicant’s time in detention. S2’s evidence attested to the positive role TXFB played upon their arrival in Australia, and as a sibling. S2 stated that they continue to run community dance activities initiated by TXFB and expect him to re-join this work if released.

38. In cross-examination, S2 stated he had only recently met Ms P in the last two months and via video and phone calls. S1 stated in cross-examination that he intended to meet her for the first time after the Christmas holidays.

39. S1 gave written and oral evidence that after the head injury TXFB became depressed, lost focus and started drinking. S1 stated that the Applicant felt he was failing because he ‘lost football’. When asked if they were confident TXFB would be able to stop drinking in the future, S1 stated they were ‘one hundred percent confident, because he has a child’. S1 has seen changes in TXFB who is now more reliable, responsible and helpful. 

40. S1 stated that they are in a position to assist TXFB find employment with themselves (S1 is a roofer), through a relative, or with a friend. S1 also stated that they have a car at home ready for the Applicant to secure his driver’s licence and is willing, along with the family, to do anything to help TXFB secure a new life. When asked whether they or others in the family could assist Ms I rather than the Applicant, S1 stated that they need to focus on work.

41. When asked by myself about the family living arrangements, S1 stated that the house is currently occupied by themselves, S5 and Ms I, and that there is room for TXFB. They stated that S2 lives separately with their partner.

42. Both siblings indicated through their written and oral evidence that they highly valued the contribution made by TXFB to the family by assisting in bringing them to Australia.

43. This notion was also a significant feature of the evidence given by Ms I, with the exception that she identified her destination as ‘America’ (explained by the interpreter as a generic term used by some individuals of African ethnicity to describe the West, or Western nations). In her statement (HB/4/4), Ms I explains that in around 2008 TFXB and her sister sent someone to the village where they were living after conflict ended in the Yirol region to inform the family that they were in Australia. She states further that her husband died in around 2005 after having fought in the conflict for South Sudan and that in that culture, when a husband dies, the older son steps into the role of head of the family.

1. Ms I confirmed in both written and oral evidence that she has had for some time medical issues including with her teeth (which she has lost) and eyes (she has lost one, and has limited vision in the other). She stated in evidence that she believes she would be dead had she not been able to leave South Sudan. Ms I emphasised the role played by TXFB in taking her to medical services on arrival and in helping to establish the family and familiarise them with Australia.

2. When asked about TXFB’s conduct following his head injury, Ms I attributed this to associating with a group who brought trouble. When asked what she would do were TXFB to start drinking, Ms I replied and indicated to her son in the hearing room, stating that he was ‘very good’. She would, however, tell him ‘to sit in the house and don’t drink’.

3. In her letter dated 15 December 2022 (HB/4/12) and evidence Ms Luka, relevantly, states that she spoke with the Applicant and discussed volunteering opportunities, and offered him counselling which he stated he would continue. She also discussed with him appropriate medical referrals to follow-up his mental health needs, and states that TXFB agreed to attend Afri-Aus Care programs.

4. Ms Luka states further that she visited the family home and met with TXFB’s mother and siblings. She discussed with the Applicant’s mother his role in the family as a father figure, and notes that the family would invite TXFB to start his life again in the family home. She describes the home as clean, welcoming, and that there was ‘no chaos’. The impression in general from her evidence was that the family members were polite, sad at the absence of TXFB, and looking forward to his return during which they would offer support.

5. Ms Luka elaborated in her oral evidence on the way in which Afri-Aus Care assists program participants to build ‘soft skills’, work on their resumes, and to enter into employment pathways. She further emphasised the cultural significance of the oldest male in an African family as a father figure. Ms Luka also emphasised that this role was enhanced in the case of TXFB as the family were conscious of the Applicant having brought them to Australia.

6. In cross-examination, Ms Luka noted that she had not spoken to Ms P. She did not consider that TXFB’s plan to share his time between two households would affect her opinions. When asked what programs in particular TXFB might engage with, Ms Luka stated that he would be able to meet others who have exited the justice system, and because Africans are versatile, he could adapt to either soccer or basketball programs.

7. In her evidence, Ms Cidoni adopted her written report dated 12 December 2022 (HB/4/10), which I summarise briefly here:

   (a)TXFB lost his football career to a combination of physical injuries (but had been hopeful to recommence playing after surgery to his head) and reported that this had been a devastating blow ([57]-[59]);

   (b)he was quick to become frustrated and experienced problems with short-term memory, began drinking alcohol and associating with negative peers and his partner [Ms T] was also a heavy drinker, with heavy alcohol consumption continuing for some time ([60]-[64]);

   (c)administration of the Repeatable Battery for Neuropsychological Status (RBANS) test indicated ([66]-[71]):

   (i)low average capacity for immediate verbal learning;

   (ii)extremely low range scores for delayed memory, showing significant difficulties with recognition and retrieval of longer-term memory;

   (iii)very low range scores for attention indicating difficulty with basic attention process and speed of processing; and

   (iv)semantic fluency was extremely low;

   (d)administration of Symptom Checklist 90 Re vised (SDL-90-R) indicated:

   (i)endorsement for paranoid ideation;

   (ii)mood subjectively low, including sadness, worthlessness and loneliness; and

   (iii)endorsement for symptoms typical of anxiety and obsessive thoughts;

   (e)self-report measures for Post-Traumatic Stress Disorder were identified using the PTSD Checklist (PCL-5) (a screening tool), with TXFB reporting:

   (i)experiencing and witnessing traumatic events with thoughts, reminders and nightmares that cause distress;

   (ii)physiological responses to these reminders and a range of anxious arousal responses;

   (iii)items of avoidance of experience or talking about memories; and

   (iv)tension reduction behaviours such as self-destructive, dramatic, hurtful, or exciting acts to calm upset feelings;

   (f)the neuropsychological test results were concerning, possibly indicating an ABI, and indicates likely impairment in executive function, but further confirmation is required ([87], [92]);

   (g)the psychological testing led to diagnoses of PTSD, Generalised Anxiety Disorder (GAD), and Alcohol Use Disorder (in remission) (AUD) ([88]);

   (h)heavy drinking at the time of offending ‘would have made him quite disinhibited’ ([89]);

   (i)the mental illness traits ‘collectively cause anxiety and stress, difficulties modulating control over behaviour, impaired impulse control …’ ([90]);

   (j)‘[h]is decision-making at the time of the offending would be impaired by his cognitive/executive limitations as described and his mental disturbance’ ([93]);

   (k)‘[t]hese factors present a causal link and would have reduced his ability to control and understand the wrongfulness of his actions, to think clearly or calmly, make reasoned decisions, and to make sound judgments’ ([94]);

   (l)symptoms of impaired functioning from ABI are worsened with intoxication, ‘which is a major risk factor in the offending’ ([95]-[96]);

   (m)overall, TXFB’s ‘risk of family violence is higher owing to past substance abuse, mental illness and priors. Abstinence and treatment will counter risk’ ([97]);

   (n)this risk will reduce with treatment goals in place and TXFB ‘does not present with a criminal mindset’, his mental illnesses are treatable, and he has a significant support network which, along with his children, contribute to the many reasons he has for reform ([103]).

8. Ms Cidoni confirmed in evidence that she is able to administer screening tests for ABI, but that a neuropsychologist or neurologist would need to conduct the more complete testing indicated in her report. She stated that the effects of ABI can manifest very differently in different people, but the major element was difficulty regulating emotion. The next level of assessment would include specific testing for the issues identified in screening.

9. When asked what the treatment options are for the Applicant, Ms Cidoni noted that the nature of the injury should first be properly determined. Treatment would then mainly comprise psychological therapy to learn about the impact the injury has on TXFB’s behaviour, with alcohol treatment for prevention of relapse.

10. Ms Cidoni stated that TXFB’s tension reduction behaviours are still occurring with the indication being that he does not know how to calm his psychological triggers. Psychotherapy such as that offered by Foundation House would be beneficial, there are now new medications available for treatment of PTSD, and sobriety will contribute to less intense reactions in the Applicant.

11. When asked about the risk rating provided in her report, Ms Cidoni reiterated that necessary goals for TXFB were attending to his mental health issues and ongoing support for sobriety. If the Applicant is able to comply and do the things required, then the risk of family violence offending is mitigated. She stated that TXFB was willing to do whatever was necessary in this regard. Ms Cidoni also accepted that it was significant the Applicant has had no incidents of aggression in the controlled environments of prison and detention, while also observing that his emotional regulation had not been tested in the community.

12. In cross-examination, Ms Cidoni accepted that there was very high comorbidity between ABI and the diagnosed conditions. I asked her whether any findings were more characteristic of ABI, and she nominated the issues with executive functioning.

13. Ms Cidoni accepted that she had not administered a formal test for risk of recidivism. However, she then identified those parts of her report that address ‘static’ and ‘dynamic’ risk factors that commonly form part of such tests. The static factors being the historic behaviour, and the dynamic factors being those that can now change. She stated her assessment of high risk was a result of the static factors in this case, but can be reduced if TXFB follows the recommended actions.

14. I asked Ms Cidoni to estimate what the amount of reduction might be, and she responded that if his drinking ceases, the risk reduces significantly, so long as his mental health issues are also addressed. When informed that the Tribunal had evidence demonstrating the existence of cranial surgery, Ms Cidoni stated that this reinforced her hypothesis with respect to ABI.

15. I note, briefly, the statement (HB/4/8) and evidence of Mr Davis. He refers in writing to having known TXFB for 11 years, although it appeared from his oral evidence that he had not had any contact with the Applicant for some time. However, he spoke in very positive terms about him as a person, having had direct contact as a football coach approximately a decade ago.

    Submissions, consideration and findings

16. Oral submissions for TXFB drew attention to the evidence of Ms Cidoni in relation to static and dynamic risk factors, and reference was made to the ASFIC/2022 ([20]-[21]). Authorities are cited here for the proposition that there is a significant difference in reaching findings about occurrence of past events and the likely occurrence of future events (CKL21 v Minister for Home Affairs [2022] FCAFC 70, at [73] (CLK21), citing Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 (Guo)).

17. It was contended that while TXFB has not been tested in the community, the dynamic factors in his case can function so as to mitigate the risk of future offending. A large number of factors are cited in support of this submission in the ASFIC/2022 ([22]), addressing, broadly, his change of mindset, life plans, and significant support network. In summary, it was contended that there has been a significant change in conditions since the time of the Applicant’s offending and he should be afforded the chance to demonstrate his reform. It was also contended that the fact that he appears to have conducted himself well in prison and detention bodes well in this regard.

18. In conclusion, it is submitted in the ASFIC/2022 that while there is some risk of reoffending, it is low enough to be considered acceptable to the Australian community.

19. It was submitted for the Respondent at the hearing that Ms Cidoni currently rates the risk of reoffending as high, TXFB has only recently come to understand the factors influencing his offending, and his abstinence has not been tested in the community. It is further contended in the RSFIC/2022 that the nature of harm that would be caused by TXFB reoffending would include physical and psychological harm from family violence offending and would be ‘substantial’. His past offending conduct has also placed members of the Australian community at risk of serious harm.

20. I note the following further contentions in the RSFIC/2022:

    (a)to determine an ‘unacceptable risk’ a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest (Tanielu v Minister for Immigration and Border Protection [2014] FCA 673);

    (b)the Applicant has not been responsive to change after previous encounters with the justice system, a matter remarked upon by the sentencing Magistrate; and

    (c)there remains a real and significant risk of further offending.

21. It is contended in the RSFIC/2023 that continued offending by TXFB would place the Australian community at risk of substantial harm. It is contended that that there is limited tangible evidence of rehabilitation and repeated instances of family violence ‘demonstrates a predisposition for offending’ ([40]).

22. The Direction states that in considering the need to protect the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of harm becomes lower as the seriousness of potential harm increases. The risk may be so serious that the risk is unacceptable (8.1.2(1)).

23. Factors that I must have regard to, cumulatively, are the nature of harm from further criminal or other serious conduct and the likelihood of it occurring, taking into account evidence as to risk, and rehabilitation undertaken (8.1.2(2)(a)-(b)).

24. In establishing the framework for consideration of risk as a cumulative one, the Direction separates the assessment of past (established) and future (unknown) conduct. The authorities, in contrast, indicate that the process of assessment is somewhat more of a continuum. Put at its simplest, it can be said that ‘what has occurred in the past is likely to be the most reliable guide as to what will happen in the future’ (Guo at [57]). However, finding a ‘probative basis for the nature and extent of any risk of future offending’ involves more than the ‘mere specification of a criminal record’ and ‘the nature and circumstances of past offending are integral to any assessment of the risk, or likelihood of future offending’ (Mortimer J, Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, at [78]).

25. In CLK21, the Full Court of the Federal Court of Australia has recently expanded on the process of assessing the likelihood of a future event (at [74]):

    … key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.

26. With those parameters in mind, I note the evidence of Ms Cidoni as to what I might refer to as her baseline assessment that TXFB is at high risk of family violence offending. He has a consistent past record of such offending, and I have found it to be serious offending. On this basis, I find that the harm from any further criminal or serious conduct of this kind would be very serious.

27. However, the report of Ms Cidoni is of some wider significance. It would appear to be the first comprehensive psychological evaluation of TXFB despite his persistent involvement with the justice system. I accept her diagnoses of multiple mental health conditions, and I accept her preliminary diagnosis of a possible ABI which I note is supported to some degree by medical records and evidence from a number of witnesses.

28. While Ms Cidoni cautiously qualified her preliminary findings, I take particular note of the consistently low level results in the screening assessment that she administered and her opinion with respect to impaired executive function. I also consider that the wider body of evidence appears to support her opinion about the causal relationship between the complex of conditions affecting TXFB, alcohol use, and his offending behaviour. That is, lay evidence from a number of witnesses, and the relatively abrupt appearance of offending conduct at a time following the head injury tend to reinforce Ms Cidoni’s opinion.

29. In the terms adopted in the authorities, noted above, this evidence I consider can be meaningfully applied to the task of assessing the nature and circumstances of historic offending, or the conditions under which prior events occurred. That said, a particular challenge in TXFB’s case is determining what conditions have changed, or what conditions might reasonably be expected to prevail in the future in order that such conditions are not experienced again.

30. Important factors that militate against an optimistic assessment about future risk being mitigated are: the very recent history of serious offending; the relatively brief period of abstinence; the very recent identification of mental health conditions; the absence, accordingly, of any meaningful treatment or other intervention; and, TXFB’s slender work history and extremely limited qualifications.

31. However, the evidence demonstrates that TXFB is likely to be surrounded by a diverse and committed group of family and community supports, and a central part of this web of supports is the culturally significant role of the Applicant as the senior male in the family. Moreover, the evidence demonstrates that prior to the deterioration in the Applicant’s life, precipitated by the head injury, he demonstrated that he was capable, reliable and – indeed – an emerging role model for his family and community. In the words of Ms Cidoni, TXFB does not have a criminal mindset, but was disadvantaged by life experiences and mental health problems that are treatable.

32. These positive indications of supports that I accept can mitigate the risk of future offending are also attended by some important caveats. TXFB sought to paint his web of interpersonal relationships in a quite positive and constructive light. However, I consider from the evidence overall that he in fact faces a potentially daunting challenge to balance the different personal and family commitments which will play a part of any future he has in the community. I accept the evidence that, notwithstanding its somewhat patchy past, TXFB is in a committed relationship with Ms P and she appears likely to be a positive influence, particularly in relation to abstinence.

33. On balance, while I find that TXFB may pose a risk of serious harm to the Australian community in the future, that risk is not unacceptable. I make this finding with particular reference to the insights offered by the expert evidence.

    Summary finding

34. It is conceded in the ASFIC/2022 that while this primary consideration is likely to weigh against revocation, its weight should be tempered by reference to the identified mitigating factors.

35. For the Respondent, it is contended that the first primary consideration should weigh heavily against revocation.

36. I have found that TXFB’s criminal conduct includes elements that are very serious, and that his record in general is a matter of concern. I have also found that while there is a high risk of reoffending, this risk is likely to be reduced due to the strong likelihood that the general and specific supports available to the Applicant will have a mitigating effect. I have also found that this lower level of risk is an acceptable one.

37. On balance, and in light of the repeated incidents of family violence offending and relatively recent occurrence of last offending, I find that this primary consideration weighs heavily against revocation.

    Family violence conduct

38. This consideration expresses formally that the Government has concerns about conferring the privilege of remaining in Australia on persons who engage in family violence, which concerns are stated to be proportionate to the family violence engaged in (8.2(1)). The consideration embraces criminal offending and other acts of family violence (8.2(2)), taking into account its frequency, cumulative impact, and rehabilitation achieved at the time of the decision (8.2(3)). Rehabilitation is understood with reference to the extent the person takes responsibility for their acts, the extent to which the person understands the impact, and efforts to address contributing factors. Consideration must also be given to whether the non-citizen reoffended after formal warning by a Court or other authority (8.2(3)(d)).

39. Submissions for the Applicant drew attention to the definition of family violence in the Direction and acknowledged there was no dispute that TXFB understood his past actions were wrong, and does not wish to repeat this behaviour. It was contended that Ms T’s evidence as the victim of these acts demonstrates her support for the Applicant’s relationship with his children. It was acknowledged that steps had not yet been taken for TXFB to address his mental health conditions.

1. It is further contended in the ASFIC/2022 that: Ms T has forgiven the Applicant; she gave relevant evidence about the circumstances of the breach offending; and, TXFB’s family gave evidence they have never been threatened by him. It is submitted that while this consideration is likely to weigh against revocation, its impact should be tempered by these factors.

2. The Respondent contended that the evidence of TXFB’s siblings should be accepted in respect of the 2017 incident. It was submitted that the Applicant has accepted responsibility and commenced rehabilitation, but the fact that the acts of family violence were repeated and led to imprisonment indicated that this consideration weighs strongly against revocation.

3. It is further submitted in the RSFIC/2022 that TXFB reoffended despite being warned about the consequences in the context of multiple intervention orders and having multiple instances of breach. It is contended that this represents a disregard for the significance of family violence and the warnings of authorities.

4. It is contended in RSFIC/2023 ([49]) that Ms T should be considered a member of TXFB’s family for the purposes of this consideration. The Respondent draws attention again to the frequency of acts of family violence and persistent contraventions. It is submitted that this consideration ought to weigh heavily against revocation.

5. I have set out above key evidence with respect to the family violence engaged in by the Applicant and other related matters of relevance to this consideration. Formal rehabilitation appears restricted to one short course about relationships. TXFB has had not completed any other formal rehabilitation or mental health treatment, and the offending is repeated, serious, recent, and TXFB was the subject of multiple formal orders.

6. I accept that TXFB has now accepted responsibility for his actions. I note the somewhat unusual situation that evidence was given on his behalf by Ms T, and I accept that there appear to be unique circumstances around the breach offending. Nonetheless, in the context of the nature of the offending conduct, I do not consider these more positive aspects of the evidence sufficiently compelling to substantially reduce the weight that is appropriate to give to this consideration against revocation.

7. Accordingly, I find that this primary consideration weighs heavily against revocation.

   Strength, nature and duration of ties

8. Consideration must be given to the impact of the decision on a non-citizen’s immediate family members in Australia, where they are citizens or have the right to permanently reside (8.3(1)). Consideration must also be given to the non-citizen’s ties to Australia, giving more weight to their ties to Australian citizen children, and to those with a right to remain in Australia indefinitely (8.3(2)-(3)).  I must also consider the strength, nature and duration of other ties to Australia, having regard to the length of time a non-citizen has resided in Australia (8.3(4)a)). Specifically:

   ·considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   ·more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   ·less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

9. It was submitted for the Applicant that he has a record of positively contributing to the Australian community, brought his family to Australia when still young, and was his mother’s primary carer. It was also contended that in addition to his own sporting contribution, he established youth community activities. It was contended further that TXFB made a positive contribution while in prison.

10. Submissions also addressed the contentions in the ASFIC/2022 regarding the impact of the decision upon his family. It is contended there that there will be a substantial emotional impact upon his immediate family if removed, with particular focus on Ms I’s emphasis on the Applicant as a father figure. The impact upon his partner Ms P is also noted. Ultimately, it is submitted this consideration should weigh significantly in TXFB’s favour.

11. The 2023 submissions highlight ([25]):

    (a)all of TXFB’s immediate family have the right to permanently reside in Australia;

    (b)more weight must be given to the Applicant’s ties to all children with whom he has a relationship, including his brother; and

    (c)TXFB has resided in Australia for 17 years from a formative age of 11, therefore considerable weight should be afforded to any other ties regardless of when offending commenced, and the level of that offending.

12. It was submitted for the Respondent that TXFB has strong local ties, albeit his limited employment history reduces the impact of his positive contribution. It is submitted, in short, that this consideration is outweighed by other primary considerations.

13. In its 2023 submission, the Respondent contends that additional weight ought to be placed on the interests of the children to whom the Applicant has ties. The Respondent accepts that TXFB was resident in Australia for some of his formative years, and that considerable weight should be given to his residency. In summary, it is submitted that this consideration weighs in favour of revocation, but is outweighed by other Primary considerations.

14. I do not consider it necessary to set out here further evidence with respect to the nature and extent of TXFB’s past and ongoing ties to the Australian community. I make reference, however, to his strong engagement with community prior to and at the time of his family’s arrival in Australia, albeit I accept the Respondent’s contention that his economic contribution is minimal. I incorporate and refer to here to the relevant extent, my summary of the evidence and findings below with respect to the best interests of minor children affected by the decision.

15. Of particular note in this matter is the evidence of the family, supported by the evidence of Ms Luka, as to the cultural significance of TXFB as the eldest male member of the family. This speaks specifically to the likely impact on the members of his family individually and collectively should he be deported, but with special emphasis on the emotional impact upon his mother. The importance of this factor is heightened by the Applicant’s contribution to locating his family and assisting in their travel to Australia.

16. I take into account here the fact that TXFB has not played a positive role in his family’s life in the time he has been imprisoned and detained, and indeed in the preceding years during his criminal offending. Patently, during this time, the other family members have stepped up. Nonetheless, TXFB has demonstrated in the past the capacity to be a role model, and I accept that his present circumstances appear to have brought the realisation to the Applicant and family of what it would mean in reality to lose him if deported.

17. I consider the evidence overall to demonstrate that the locus of TXFB’s tie to any community or country are clearly only to Australia. I have not been given submissions in detail on the question of when a person’s formative years might be considered to arise; this is likely to be a matter of factual inquiry in any given individual’s circumstances. However, I accept that the weight of submissions is to the effect that TXFB spent most of his formative years in Australia; patently his adolescence and coming to majority occurred here.

18. On this basis, I afford considerable weight to TXFB’s period or ordinary residence during and since his formative years, and that this weight is applied regardless of the level of his offending. A particular feature has been made of TXFB’s sporting prowess. While his footballing career could best be described as nascent, I consider that this does speak to strong community ties and counts as a positive contribution.

19. Accordingly, I find that this consideration weighs heavily in favour of revocation.

    Best interests of minor children in Australia affected by the decision

20. I identified in the Background of these reasons the minor children associated with TXFB. They are his biological children (to three mothers), the other child of Ms P, the other children of Ms T, and also the Applicant’s youngest sibling.

21. In his second statement, TXFB states that:

    (a)when in a relationship with Ms P, he would visit her house and spend time with the children, particularly C2, and would visit two days a week when in a relationship with Ms T ([24]-[25]);

    (b)he was unable to speak with Ms P when in prison as he did not have her number, but made contact with her from detention and she ‘immediately’ visited with the children, and they now all speak every morning, and they visit every two weeks (referring to the photographs noted above) ([26]-[27]);

    (c)SC1 calls him ‘dad’, and he feels terrible not being physically with the children, and he would like them to connect to their African heritage ([28]-[29]);

    (d)he would frequently visit and play with Ms T’s children, including C1 who calls him ‘dad’ – he explains that C1 was not mentioned in the statement prepared by Refugee Legal (G2/L) due to a lack of time –  and he is keen to be a ‘strong father figure’ to C1 and to reconnect with her other children (SC2 and SC3) ([32]-[35]); and

    (e)he has a ‘decent’ relationship with the mother of C3, they have not been close over the years, and C3 lives with the mother’s parents but they would meet occasionally, and TXFB has hopes of a stronger relationship in the future ([35]-[37]).

22. TXFB gave oral evidence consistent with his statement. 

23. In her statement, Ms P states that TXFB and C2 have always had a positive relationship, and that the Applicant has ‘had stable and consistent visitation since his birth’, and TXFB has ‘also been a paternal figure’ in the life of SC1, noting that both children have ADHD ([6]). She states that their relationships have been maintained during the Applicant’s detention, and both herself and the children would be impacted ‘immensely’ if TXFB were deported; in respect of the children, due to the negative impacts of not having a father, which would badly affect SC1 who has already lost their father ([9]);

24. In oral evidence, Ms P stated that she already struggles without having TXFB around, and the children would be emotionally upset if he was not returned to the community. She stated that C2 has said to her that he hates her, and loves their father and believes the child’s bad language would be reduced if TXFB was with them. When asked specifically, Ms P added that TXFB would help the children connect to their African culture, and she understood SC1’s father to have been South Sudanese also. She stated that SC1’s extended family on their father’s side were interstate.

25. In her statement, Ms T states that:

    (a)her three children live with her mother, due to Ms T’s work commitments, that she believes C1 to be the Applicant’s biological child, and that TXFB reacted positively to the news and has always had an active relationship with all of the children ([3]-[10]);

    (b)TXFB was the father of another child that was stillborn when the Applicant entered prison ([16]); and

    (c)TXFB has not had any contact with the children since the intervention order was in place and she herself has not seen him since he entered prison, but if released, Ms T would be happy for the children and especially C1, to reconnect with the Applicant ([17]-[18]).

26. Ms T gave evidence at the hearing by telephone, albeit slightly marred by a somewhat disjointed style of delivery, and the apparent participation of another individual at one or two points. She was, however, clear on the adoption of her statement, and the ‘wonderful and positive’ relationship between TXFB and C1. Ms T stated that the Applicant treated all her children the same, and she did not consider them at risk with him.

27. In cross-examination, Ms T agreed that there had been a child protection order in respect of her children in the past, but this was in respect of her former husband. Ms T also stated that while the most recent intervention order (G2/C) named the children, they were not living with her at the time. She was not able to explain why they had been nominated. When asked further about the impact of TXFB not being around, Ms T reiterated that this would affect the children, and added that she does ‘not have a man around’.

28. Ms I was asked in her evidence about the impact on her children of TXFB being deported, particularly the youngest, S5. She stated that they will be thinking about him and have anxieties, they would miss him, and he will take over the family one day. She noted that S5 would miss the Applicant a lot as he had spent time with S5 after school checking on progress.

29. It was submitted for TXFB at the hearing that great weight should be attributed to the father figure relationship that exists with the children of Ms P. Emphasis was also placed on her evidence with respect to the impact of prolonged separation on these children. It was submitted that the evidence demonstrates that the Applicant might play a positive role in the lives of the children of Ms T. It was also contended that if he is allowed, TXFB wishes to have a role in respect of C3, and that there is a role for him to play with respect to his youngest sibling.

30. Reference was also made to the prior submission of Refugee Legal (G2/L). These submissions emphasise the significant impact on TXFB’s three biological children were he to be deported. They further contend that a failure to give adequate consideration to this would amount to a breach of the Convention of the Rights of the Child (CRC) and that this primary consideration should have determinative weight.

31. It is also submitted in the ASFIC/2022 that Ms Cidoni’s report observes that TXFB’s children would be greatly disadvantaged by his absence in psychological and developmental terms ([42]). It is also contended that if TXFB is deported he will not be able to maintain any communication with any children; they would effectively be permanently deprived of contact with each other ([44]).

32. In brief oral submissions for the Respondent, it was acknowledged that it is indeed in the interests of the identified children that TXFB be permitted to remain in Australia. Limited weight should be afforded those with whom there is no parental relationship, and it was contended that there have been periods in which the Applicant has been absent from the life of all children. While the consideration weighs in favour of revocation, it was submitted this consideration is outweighed by other considerations (as also contended in the RSFIC/2022).

33. The Respondent’s 2023 submissions address in summary form the interests of the respective children. In brief, it is contended that in all cases there has been limited or no direct contact with TXFB, and that other individuals fulfill parental roles. The submissions also cite Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 for the proposition that it may be a rational assumption that the best interest of a child will generally be served by remaining with their parents.

    Summary and finding

34. In this primary consideration I must determine whether non-revocation is, or is not, in the best interests of an affected minor child, and that individual consideration should be made to the extent their interests differ (8.4(1)-(3)). In making a determination, I must consider the specified factors (8.4(4)).

35. With respect to the contention concerning CRC, I was not directed to the domestic legal source of relevant rights or obligations that have been enacted by Parliament, which I indicated at the hearing would be a necessary prerequisite to pursuing this issue (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [20]). I note the reference in the RSFIC/2022 to the decision of Meyrick v Minister for Home Affairs [2020] FCA 677 which addresses the subject at length, and the related question of the consistency of decision making in matters such as these with the Family Law Act 1975 (FL Act). I understand the Court in that case not to have expressed a concluded view about CRC, and identified broad consistency between the FL Act and an earlier version of the Direction.

36. Without wishing to further oversimplify the issue, I note, consistent with the Respondent’s submissions, that it has been accepted that a Tribunal is entitled to proceed on the assumption that in most cases a child’s best interests are served by remaining with their parents where possible (see for example Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177, at [201] of the majority judgment).

37. On the basis of the evidence overall, I consider that it can fairly be said that TXFB has a parental relationship in a literal (biological sense) with C1, C2 and C3, and in a practical sense with SC1. There is also some evidence of a parent-like relationship with SC2 and SC3. I do not consider the Applicant to have a parental relationship with S5. All such relationships have been disrupted fundamentally since TXFB’s incarceration in mid-2021. There is no evidence of an existing relationship with C3.

38. There is a relatively substantial period into the future in which TXFB is likely, on the evidence, to play a role in their lives, except in the case of S5 who will turn 18 quite soon. I accept that, notwithstanding the terms of the recent intervention order, the balance of evidence overall indicates that TXFB is indeed likely to play a positive role in respect of all identified children, and that there is no specific evidence pointing definitively to a likely negative impact.

39. I consider that any separation would have a relatively substantial impact on C2 and SC1, and a nearly similar level of impact upon C1. I consider the evidence less persuasive with respect to the impact of separation upon SC2 and SC3. I accept there would indeed be a brief and possibly heavy impact upon S5. I do not consider there is likely to be a large impact upon C3.

40. I note the brief written evidence about communication difficulties that may be faced were TXFB to deported. No oral evidence was advanced during the hearing about this matter.

41. All of the children have other persons in a parental role, however, I accept the evidence of Ms P and Ms T that they do not have partners, and that SC1’s father is deceased.

42. Bearing in mind the legal proposition set out above, and in view of my summary of the relevant evidence I make the following findings:

    (a)the interests of TXFB’s biological children C1 and C2, and SC1 weigh heavily in favour of revocation;

    (b)the interests of biological child C3 and the other children SC2 and SC3 weigh moderately in favour of revocation; and

    (c)the interests of S5 weigh somewhat in favour of revocation.

43. Accordingly, I consider that this primary consideration, overall, weighs heavily in favour of revocation. I make this finding on the number and strength of interests in respect of the biological children, and the positive weighting in respect of all minor children.

    Expectations of the Australian community

44. The Direction expresses in this primary consideration the foundational notion that the Australian community expects non-citizens to obey Australian law. It further states in normative terms the expectation that a non-citizen who has breached this expectation, or where there is an unacceptable risk they will breach it, should not be allowed to remain in Australia (8.5(1)). Further, the Direction holds that non-revocation may be appropriate simply because serious character concerns arise from conduct including, specifically, acts of family violence, and serious crimes against women (8.5(2)).

1. Submissions for the Applicant at the hearing addressed the contentions raised in the ASFIC/2022, which elaborate the application of this primary consideration with reference to FYBR v Minister for Home Affairs [2019] FCAFC 185. It is contended, accordingly, that the first ‘deemed’ expectation is accompanied by a ‘second expectation’, which requires the consideration of the facts and circumstances of each particular case. It is contended, specifically, that there are a range of factors particular to the Applicant (including his age, status as a refugee, and mental health conditions) that should temper the weight placed on this consideration.

2. For the Respondent it was submitted that the expectation is engaged in this matter and given the nature and seriousness of offending (being family violence offending), the expectation would be that TXFB not retain his visa, and accordingly the consideration weighs against revocation.

3. I understand from FYBR that: it is a matter for decision-makers to determine what weight to place on this primary consideration; the effect of the norm is in most cases, because of its nature, to weigh in favour of refusal; but a decision-maker may decide to depart from this ‘general’ ascription of weight; and, degrees of tolerance arising from the Direction are matters that fall for consideration by a decision-maker in their ultimate exercise of discretion ([77], [92]).

4. I consider that TXFB has indeed clearly breached the expectation that he obey the law, and has done so in a manner that raises serious character concerns. In response, therefore, to the Applicant’s submissions, I consider that there are not grounds given my findings above, to moderate the weight of this consideration. However, I accept that the factors identified in the contentions raised may arise for assessment in arriving at a final decision with respect to revocation.

5. Accordingly, I find that this primary consideration weighs heavily against revocation.

   OTHER CONSIDERATIONS

6. The consideration addressing impact on Australian business interests (9.4) was not addressed by the parties. I consider the evidence in this matter does not indicate that this component is engaged, and accordingly, I find that it weighs neutrally.

   Legal consequences of a decision under section 501 or 501CA

7. The Direction addresses at some length the nature of the obligations to be considered, and related provisions of the Act and associated decision-making processes. I should be mindful that under the Act unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable and to detention in the meantime (9.1(1)). The Direction then explains that a ‘non-refoulement obligation’ is one not to forcibly return a person to a place where they will be at risk of harm which arises under a number of international human rights conventions, and the concept of ‘protection obligations’ under the Act reflects the manner of their interpretation and their scope (9.1(2)).

8. TXFB is not covered by a protection finding and the considerations at 9.1.2 apply. In summary: I must consider claims raised with respect to non-refoulment obligations (9.1.2(1)); and, it is not necessary to consider these at the same level of detail as in a protection visa application ((9.1.2(2)).

9. In his first statement, TXFB states as follows:

   (a)he cannot return to South Sudan as bad things will happen to him ([27]);

   (b)he came to Australia because of what happened to him and his family in the past and his father was a community leader ([28]);

   (c)other tribes are fighting his tribe, the Dinka, his state is on the front line, and there is a real possibility he will die if returned ([29]);

   (d)he may be targeted because of his father’s role, he knows no one in South Sudan and has nowhere to live or any way to survive, he may be targeted as a Westerner ([30]-[32]); and

   (e)his aunt was locked up on her return to Sudan, the family had to send money to release her, and TXFB is afraid this will also happen to him ([33]).

10. In his second statement, TXFB states ([49]):

    As I have explained before, I fear being harmed or killed if I return to South Sudan. I [am] scared that I won’t be able to survive and I’ll end up in extreme poverty. I’m also scared that my mental health will suffer and I’ll become depressed and traumatised from being separated from everyone I love and returning somewhere where I’ve suffered so much before.

11. TXFB was asked in evidence about his concerns about the impact on his mental health conditions of prolonged detention or return to South Sudan. He stated that it would ‘affect his mind’ and his thinking. TXFB considered that there would be no medication and his health would be poor if returned, his condition would worsen, and he ‘won’t last there’.

12. With respect to his fears, TXFB stated that return would have a ‘bad impact’ on him and hurt his family. His children would grow up without him and not know their culture and his mother would be hurt the most. TXFB stated that he thinks a lot about what he has done and that he was ‘good’ prior to the head injury.

13. Ms Cidoni in her report states: ‘If [TXFB] were returned to South Sudan, his life is at risk. He is not a citizen, and he has no family there. PTSD will be triggered and access to treatment there is not-existent’ ([100]). I note that during her evidence I sought specific evidence from Ms Cidoni about the nature and extent of her PTSD diagnosis, and she confirmed explicitly that the Applicant reported to her his experiences of specific events of trauma from his earlier life.

14. Evidence was given by family members that they have no family in South Sudan. Ms I was asked about her written statement that her late husband had fought for South Sudanese independence. This passage of evidence was somewhat confusing, but ultimately Ms I described her husband not as a combatant, but either a victim of conflict or perhaps an aid worker of some kind.

15. When asked about the impact TXFB’s return would have on her and his siblings, Ms I indicated that she is not well, would miss him a lot and that her other children would have anxieties about their brother.

16. It was submitted for the Applicant that the fact that he may apply for a Protection Visa does not diminish the weight of this consideration as he would likely fail in such an application. It was contended that given the particular factors applying to TXFB he would be harmed or killed if returned. Reference was otherwise made to other Tribunal decisions with respect to the situation in South Sudan, country information, the ASFIC/2022, and the prior Refugee Legal submission.

17. Stated briefly, the further contentions in the ASFIC/2022 are as follows:

    (a)it is unclear whether TXFB is a citizen of South Sudan as the nationality law requires documentation or attestation, neither of which can be produced, therefore the Applicant is stateless ([59]-[60]);

    (b)the Applicant’s cancelled refugee visa is a category of visa that includes and anticipates protection obligations ([62]);

    (c)there is a very real risk TXFB would be subject to indefinite detention due to the likelihood of a Protection Visa application being refused ([65]);

    (d)material before the Tribunal demonstrates non-refoulement obligations are engaged on the following grounds ([66]):

    (i)imputed political opinion and race based on identifiable Dinka ethnicity;

    (ii)social group, being a person who will be perceived as foreign;

    (iii)forcible recruitment; and

    (iv)mental health;

    (e)current country information indicates the risk of harm in all of South Sudan, including Juba, and United Nations High Commissioner for Refugees (UNHCR) advice is that states refrain from forcibly returning South Sudanese nationals to any part of the country ([67]); and

    (f)the Minister has in recent Tribunal decisions conceded the risk of harm for returnees to South Sudan ([68]).

18. I note from the Refugee Legal submission (G2/L) the further sub-ground relating to implied political opinion arising from the role played by TXFB’s father as a community leader. This submission also expands upon the issue of statelessness, referring to South Sudan’s Nationality Act 2011. Section 8(2) of that act establishes that a person whose parents or grandparents were domiciled in South Sudan is eligible for nationality. It also states the proposition that this right may be difficult to achieve in practice, but does not cite any relevant law or regulation in support.

19. It is submitted in the ASFIC/2022 that this consideration should weigh heavily in favour of revocation. The Refugee Legal submission proposes this consideration be given determinative weight.

20. TXFB’s 2023 submissions contend that the Direction contains unclear guidance inconsistent with Court authority ([32]), thus:

    (a)any claims made must be considered;

    (b)deferral of consideration would cause unnecessary delay and inefficiency and TXFB faces ‘a significant risk of harm’ if returned on the basis of imputed political opinion, ethnicity, social group, and mental health;

    (c)M1 permits the Tribunal to consider claims based in unenacted international legal obligations;

    (d)a non-revocation decision will lead to indefinite detention;

    (e)account must be had of the underlying facts behind TXFB’s claims; and

    (f)heavy weight should be given in favour of revocation under this consideration.

21. It was submitted for the Respondent, consistent with the RSFIC/2022, that assessment of this consideration be deferred.

22. The 2023 submissions note that the Tribunal is to read, understand and evaluate claims made and take into account underlying facts ([84], [88]). Should a non-refoulment assessment be made, less weight should be given to any obligations found since a protection visa application may be made, and any weight attributable in favour of revocation is outweighed by Primary considerations ([89]). Account should be taken of the fact that non-revocation will not necessarily result in removal to South Sudan ([90]) and that affirming the decision under review will expose TXFB to a further period of detention of unknown duration ([91]-[92]).

23. The Respondent’s earlier submissions reflect the recent decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (M1). The High Court decided that one available outcome is indeed to defer assessment on the basis an Applicant may apply for a protection visa. Critically, the court there also found that a decision-maker must read, identify, understand and evaluate any representations made in respect of non-refoulement obligations. Patently, this approach is now featured in the Direction.

24. I summarise here very briefly some observations from my reading of the extensive country information lodged by the Applicant in this matter. This represents a substantive update upon other similar material lodged in matters involving nationals of South Sudan, meaning that the various reports reflect current insights into the conditions there.

    (a)the Australian Government ‘smartraveller’ resource for South Sudan (July 2022) recommends Australians not travel anywhere in the country including Juba, among other things also notes fighting and instability across the country, observes the situation is volatile and urges Australians to leave as soon as possible, remarks on the prevalence of terrorism and crime, and states that medical facilities are basic in Juba and extremely limited elsewhere;

    (b)the Office of the High Commissioner for Human Rights Humanitarian Needs Overview (February 2022) notes that nearly 50% of the population is classified as ‘at need’, describes a deteriorating humanitarian situation generally, endemic violence, protection concerns, one of the poorest health systems in the world, that conflict has taken a toll on basic services, the existence of only three trained psychiatrists in the country and scarce mental health services, as well as acute food insecurity;

    (c)the Bertelsmann Stiftung’s Transformation Index (2022) rates South Sudan as ranked 131/137 nations assessed, describes South Sudan as a fragile state between war and peace, states the level of socio-economic development is extremely low, notes there is no social welfare system, but rather welfare is based on various traditional practices; and

    (d)as noted, the UNHCR (October 2021) reaffirmed its call on states to refrain from forcibly returning South Sudanese nationals or habitual residents to any part of the country, this minimum standard needs to remain in place until security, rule of law and human rights significantly improve.

25. I consider that TXFB personally articulated his claims to harm in relatively broad terms. However, I accept that he is Dinka ethnicity and that he is, under South Sudanese law, entitled to citizenship. I do not consider there to be substantive evidence before me of his father’s involvement in conflict, but accept that a leadership role may well be sufficient to raise some risk of harm for family members.

26. I accept that the evidence overall appears to indicate that TXFB’s family no longer have relatives or active social contacts with South Sudan. While there is an indication they hail from the Yirol region, I was presented with no evidence or submission articulating anything more specific about their background and circumstances.

27. I note that submissions for the Applicant now take into account his recent mental health diagnoses. I consider it reasonable to observe that TXFB gave evidence primarily in the English language, however he engaged actively with the translator during the hearing in Dinka. Given that Ms Cidoni provided a relatively circumscribed opinion as to the full impact and current state of TXFB’s head injury, it is difficult to determine accurately how this might manifest in direct or indirect ways should he return to South Sudan. However, I have accepted her findings regarding his intellectual and executive functioning, and I note her explicit reference to the consequences of any return.

28. On balance, I am satisfied that in the circumstances of this case, given the generality of the evidence given in support of otherwise detailed claims made, that this is an appropriate case to defer consideration of non-refoulment obligations.

29. Accordingly, I find that this other consideration weighs neutrally.

    Extent of impediments if removed

30. This consideration involves assessment of an Applicant’s capacity to establish themselves and maintain ‘basic standards of living’ in the context of what is generally available, taking into account their age and health, any language or cultural barriers, and any available social or economic support (9.2(1)).

31. It was submitted for the Applicant that while he can converse in Dinka he will be perceived as foreign. Reference was also made to Tribunal considerations in other matters, including to the effect that the dire situation in South Sudan may influence consideration of the assessment of basic living standards. The ASFIC/2022 references, broadly, country information identifying the challenging humanitarian situation in South Sudan. It also highlights TXFB’s lack of social connections and his young age upon departure. These submissions also note that TXFB is relatively young, but that the dire economic situation and risk of recruitment to the military presents challenges. It is contended that the Applicant would be unable to subsist and would be at risk of harm.

32. It is submitted overall for TXFB that this consideration should weigh very heavily in favour of revocation.

33. For the Respondent, it was submitted that TXFB would face significant impediments if returned given his mental health conditions, and the context of the conditions in South Sudan. It is contended also in the RSFIC that there is no country information supporting the risk of forcible recruitment. It appears that some of the other specific contentions raised may require amendment in light of the updated country information lodged in this matter.

34. The Respondent accepts in the 2023 submissions that TXFB has no recent or longstanding ties to South Sudan ([95]). Curiously, it is contended that the Applicant has not raised any diagnosed mental health issues ([96]). It is also contended that some limited weight be given to the largely emotional hardship that would arise from removal to South Sudan ([97]). Based on country information, the Respondent submits that TXFB would be unlikely to face discrimination in Juba ([101]) but should not be satisfied his father’s community links would be of relevant concern ([102]). In conclusion, it is contended this consideration weighs in favour of revocation, but is outweighed by primary considerations.

35. I have set out above in respect of other considerations much of the relevant evidence with respect to TXFB’s personal attributes, and wider family circumstances. I consider that, in broad terms, he does not face substantial difficulty in terms of age and general language fluency.

36. However, beyond these basic facts, I consider that the Applicant would face potentially substantial barriers to attaining basic living standards. This is due to the lack of personal connections and his mental health conditions (and possible ABI) that can reasonably be understood as significantly increasing his vulnerability upon return. I consider the Applicant’s contention that I take into account the extremely poor state of development and humanitarian conditions more broadly to be correct. That is, it is particularly difficult to determine what an appropriate benchmark of basic living standards in South Sudan might be at this point in time, with reference to the updated country information referred to above. This consideration further reinforces the importance of taking into account any individual circumstances which, as noted, already render TXFB vulnerable.

37. Accordingly, I find that this other consideration weighs heavily in favour of revocation.

    Impact on victims

38. I must consider under this other consideration the impact of a decision to revoke the mandatory cancellation of TXFB’s visa on members of the Australian community, including victims of his ‘criminal behaviour’ (9.3(1)). This consideration extends to family members of the victim or victims, and arises only where information in this regard is available, and in circumstances when TXFB has been afforded procedural fairness.

39. There is in this matter both written and oral evidence from Ms T. In her statement, Ms T states that:

    (a)following the imposition of an intervention order they ‘made up and were together again’ and that she did not want him charged for breach of that order ([12]);

    (b)she tried to get the order lifted but was unable to do so due to COVID restrictions ([13]);

    (c)she has forgiven him and does not hold any negative feelings ([19]);

    (d)she sought again to have the order lifted in 2022 in order to facilitate TXFB visiting her children, but was advised that it was shortly to expire ([20]);

    (e)on hearing about the possibility of deportation or indefinite detention, Ms T wanted to give evidence for TXFB, still cares for him, and does not want his visa taken away ([21]); and

    (f)‘I want him to stay here in Australia and do something with his life’ ([25]).

40. At the hearing, Ms T stated that she forgave TXFB ‘forever’ and just wanted him to have a life alongside C1. She wanted his visa restored so that he could ‘get in touch with his own life’, and considered that he had maybe been drinking too much at ‘that time’ (meaning at the time of his offending). When asked if she thought TXFB could stop drinking, she replied that she knew him before his injury and he was a ‘good man’ then.

41. In cross examination, as already noted, Ms T stated that child protections orders referred to in her statement were with respect to issues arising with her ex-husband, and not TXFB. She also stated that her children had not been present during TXFB’s offending against her. Ms T stated in a highly emotional manner that she wanted the Applicant’s visa restored because ‘if he goes to Africa it will hurt him’.

1. Written and oral evidence was provided by S1 about their involvement in a number of instances of offending committed by TXFB against Ms T, and in respect of another incident in the family home. However, I do not understand the evidence in this matter to disclose actual instances of criminal offending against S1 and, accordingly, I do not consider them to be a victim in the sense of this other consideration.

2. It was submitted for the Applicant that the evidence given by victims of TXFB’s offending indicated they wished that his visa cancellation be revoked, and this is highly significant. It is contended in the ASFIC that this consideration should weigh heavily in favour of revocation.

3. The RSFIC/2022 was prepared prior to the provision of the statement of Ms T. At the hearing it was contended that the evidence addressed, primarily, the interests of various children, and that Ms T made no contentions as to the impact of a revocation decision on herself directly. Accordingly, it was submitted this consideration weighs neutrally.

4. It is correct to acknowledge that the majority of Ms T’s evidence dealt with the interests of her children, and I have taken this into account under the relevant consideration above.

5. I also consider it appropriate to note that Ms T’s evidence was not well articulated in respect of the impact on her personally, as a victim of TXFB’s offending, of possible revocation. Nonetheless, in the context of the Direction overall, it is of some significance that the victim of his principal serious offending is prepared to give evidence in support of a revocation decision. That is, that were TXFB’s visa cancellation to be revoked, this would not have a negative impact upon Ms T.

6. Accordingly, I find that this other consideration weighs slightly in favour of revocation.

   Consequences of a decision not to revoke

7. This other consideration was raised initially in the decision under review and addressed further in the ASFIC/2022. The delegate made reference to the various options raised by the Direction under the consideration concerning non-refoulment obligations.

8. Submissions were made for the Applicant on the concept of ‘constructive refoulement’, being the prospect that a person will be effectively coerced to voluntarily return to a place where they face harm. Reference was also made, and detailed in the ASFIC/2022, to the decision in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, with respect to the importance of giving genuine consideration to the human consequences of decisions of this kind.

9. I consider that in light of the approach now taken in the Direction, that these considerations have been properly addressed under the other consideration, legal consequences of a decision under section 501 or 501CA. This other consideration therefore weighs neutrally.

   Impact of being subject to the Amending Act

10. The Applicant’s 2023 submissions raise this further other consideration. They highlight that ([39]): the retrospective validation of visa cancellation sits uneasily with the rule of law; that TXFB was free in the community for around two months during which time no discretionary powers were exercised; and, his automatic re-detention is arbitrary.

11. The Respondent replied to this submission with the contention that to place weight on the impact of the Amending Act would be seeking to circumvent Parliament’s intention, and no weight should be placed on this other consideration.

12. I consider the Respondent’s contentions to better represent the legal situation and accordingly find that this other consideration weighs neutrally.

    CONCLUSION

13. Of the Primary considerations I have found that the considerations Protection of the Australian community, and Family violence committed by the non-citizen weigh heavily against revocation, and that Expectations of the Australian community weighs heavily against revocation. I have found that the considerations The strength, nature and duration of ties to Australia, and Best interests of minor children in Australia affected by the decision weigh heavily in favour of revocation.

14. Of the Other considerations, I have found that two specified considerations and two additional other considerations weigh neutrally. I have found that Extent of impediments if removed weighs heavily in favour of revocation, and Impact on victims also weighs slightly in favour of revocation.

15. Primary considerations should generally be given greater weight than other considerations, and one or more primary consideration may outweigh other primary considerations (7(2) and (3)). Information from independent and authoritative sources should be given appropriate weight (7(1)).

16. Decisions are also to be informed by the Principles (5.2). Thus, if serious character concerns are found to arise, cancellation of a visa may be the expectation of the Australian community even if there is no measurable risk of harm (5.2(3)). A higher tolerance might be afforded to those who have contributed to the community for a longer period of time, or lived in Australia most of their life (5.2(5)). Further, in certain cases the risk of harm that might arise if offending behaviour is repeated may outweigh any countervailing considerations, with particular emphasis on conduct such as family violence (5.2(6)).

17. I consider this matter to be relatively finely balanced. TXFB’s repeated and acknowledged family violence is serious offending and there is a risk of reoffending. However, there are considerations that weigh in favour of revocation. Moreover, I have identified above in these reasons authorities that repeatedly stress (in the context of different considerations) the importance of determinations being made in the light of the particular circumstances of an individual non-citizen.

18. Despite the seriousness of his offending history, TXFB received a single aggregate sentence of 12 months in respect of a range of convictions. His substance abuse problems were a factor in this sentencing, but the Applicant has now had the benefit of a comprehensive forensic evaluation by a qualified professional. This reporting has highlighted a number of inter-related mental health concerns which are understood to have a bearing upon his offending conduct.

19. Moreover, I have had the benefit of material demonstrating that the Applicant’s offending behaviour appears also to have been influenced, at the least, by a previously undisclosed head injury. Despite some caveats in the expert evidence, I identified above that this injury could be seen to have what I might describe as some explanatory force in the context of TXFB’s life story.

20. Despite the additional time afforded to the parties in this matter due to its particular procedural history, the Respondent’s submissions overall appear not to have taken clear account of the forensic, medical and lay evidence with respect to TXFB’s experience of head trauma. Indeed, in the latest submissions the Respondent appears to inadvertently misrepresent the relevance of diagnosed mental health conditions with respect to possible return to South Sudan. Despite this body of material the Respondent also sought to characterise TXFB in submissions as having a ‘propensity’ to offending behaviour.

21. The Applicant’s serious offending cannot be ignored, and I have afforded substantial weight to certain primary considerations accordingly. However, the Tribunal is not engaged in a mathematical but rather an evaluative exercise. I consider that this is an appropriate case in which to afford greater weight overall to those primary and other considerations which I have found weigh in favour of revocation.

22. Accordingly, I find that there is another reason why the mandatory cancellation of TXFB’s visa should be revoked.

    DECISION

23. For the reasons given above, the decision of the delegate not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is set aside and substituted with the decision that there is another reason the mandatory cancellation should be revoked.

I certify that the preceding 223 (two hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member.

...........................[SGD].............................................

Associate

Dated: 12 May 2023

Hearing:	On the papers
Solicitors for the Applicant:	Ajak & Associates
Solicitors for the Respondent:	Clayton Utz