VLPW and Minister for Immigration, Citizenship and Multicultural AffairsMattertype: Migration (Migration)

VLPW and Minister for Immigration, Citizenship and Multicultural Affairs
Division:GENERAL DIVISION
File Number(s): 2022/7735
Re:VLPW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:4 September 2023
Date of written reasons: 3 October 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
..............[sgnd]..........................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – substantial criminal record – whether another reason for the cancellation decision to be revoked – Direction no. 99 – violent crime – drug use – frequency in the applicant’s offending – trend of increasing seriousness – cumulative effect of repeated offending – strength, nature and duration of ties to Australia – applicant has spent part of his formative years in Australia – applicant has a mother and siblings in Australia – applicant would face serious impediments were he removed to South Sudan – ongoing political instability and serious poverty – applicant has not lived in Sudan since a very young age – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
3 October 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons contain certain standard paragraphs, in particular [9] and [24].
This is an application by “VLPW”, a person whose name is subject to a confidentiality requirement and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review of a decision of the respondent’s delegate dated 19 September 2022. By that decision the delegate declined to revoke the cancellation of the applicant’s visa.[2] The visa had been cancelled under section 501 of the Migration Act 1958 (Cth) (“the Act”) after the applicant was convicted of serious offences involving, amongst other things, an assault upon an older disabled man coupled with the theft of his phone and jacket. The applicant received a lengthy aggregate sentence and was required to serve part of this sentence in jail. His visa was cancelled in these circumstances.[3]
[2] A Class WA Subclass 050 Bridging E visa.
[3] This administrative action assumed section 501(3A) of the Act applied to aggregate sentences. This construction of the section was later held to be wrong by the Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 (“Pearson”), but the effect of Pearson was reversed as a result of certain amendments to the Act passed in 2023: see Migration Amendment (Aggregate Sentences) Act 2023 (Cth).
The applicant sought an internal review of the decision to cancel his visa. The delegate was required to address two questions under section 501CA(4)(b) of the Act. The first was whether the applicant passed the so-called “character test” as defined by section 501 of the Act. The delegate decided that the applicant did not pass this test.
The internal-review delegate then had to decide whether there was “another reason” for the revocation of the cancellation decision. In answering this question, the delegate applied Direction no 90,[4] then in force under section 499 of the Act, as he or she was obliged to do. Having weighed the factors required to be weighed under Direction no. 90, the delegate decided that on balance the cancellation of the visa should not be revoked. The delegate found that the power under section 501CA(4)(b) of the Act to revoke the cancellation for “another reason” was not enlivened and declined to take the action requested by the applicant.
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
The applicant then applied for a review in this Tribunal. This Tribunal affirmed the decision under review on 12 December 2022.[5] That decision was quashed by the Federal Court of Australia, however.[6] The record before me indicates that a consent order was made. The respondent had conceded that the Tribunal’s decision was affected by jurisdictional error because the Tribunal had failed to consider a substantive representation made by the applicant (viz, that if he were returned to South Sudan, he would face the impediment of civil instability).[7]
[5] Ex R1, 47ff.
[6] Ibid, 812-13.
[7] Ibid, 812.
The further hearing I have conducted[8] was required by paragraph 2 of the Federal Court’s orders. This paragraph required the Tribunal to re-determine the application according to law.
[8] I was not the Tribunal member who first determined the matter. The matter was reconstituted to me when it was remitted by the Federal Court for redetermination.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must address the same two questions as were addressed by the internal-review delegate. So far as the first question is concerned, there is no doubt that the applicant does not pass the “character test” under section 501 of the Act. This was properly conceded to be the case. So far as the second question is concerned, like the delegate, I must apply any direction issued under section 499 of the Act.
In matters like these, the Tribunal conducts a review on the merits. I do not simply review the delegate’s decision for error. Since the delegate’s decision, Direction no. 90 has been repealed and Direction no. 99 has taken its place.[9] Neither party submitted that I should apply the repealed direction as part of my review, and I proceed on the basis that the correct direction to apply is Direction no. 99.
[9] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
As I have said, in exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[10] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[10] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
I should further add, for the sake of clarity, that I am not required to review the Tribunal’s earlier decision, although I may of course have regard to its reasoning. Rather, I am to determine the applicant’s application according to law (as directed by the Federal Court). This requires me to determine the matter afresh on the evidence adduced before me, including the oral evidence adduced before me, and in accordance with the direction now in force.
At the hearing, Ms Battisson appeared for the applicant; Mr Byrnes, for the respondent. I acknowledge their assistance to me.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and the reasons for my conclusion.
BACKGROUND FACTS
The applicant is a young man of Sudanese ethnicity. He was born in March 2002 in Sudan. As at the date of the hearing before me, the applicant was 21 years of age. He arrived in Australia in 2008 at the age of six and has mostly resided in Australia since that time. He arrived in Australia with his mother from Egypt, where the family had been living (having fled there from Sudan).
The applicant’s criminal record was before me.[11] It is extensive. The more serious offences in 2017 include theft, dishonesty, and robbery. Later offences include driving at a speed dangerous to the public, possession of prohibited weapons without approval, possession of methylamphetamine, and an unlawful assault. These offences clearly show that the applicant had formed poor associations, was misusing drugs substantially, and posed a real and substantial threat to the public. It is clear from his repeated appearances before the Children’s Court as a minor that he was largely “out of control”, if I may use that expression. His appearances did not deter him, it is clear, from criminal activity; and so it may be concluded that the juvenile criminal justice system did not have in his case any appropriate deterrent effect. I accept what appears at paras [16]ff of the delegate’s decision in respect of the offending.[12]
[11] Ex R1, 127ff.
[12] Ibid, 115.
I should address in detail the most recent offending, which is particularly serious. In 2020, when the applicant was 18 years of age, and while he was in the company of other youths, he set upon an older and partially blind man who happened to be walking in a park. They viciously attacked him. I note the photographs of the injuries were before me, as well as some stills showing the attack underway.[13] The victim was 63 years of age. His phone and jacket were stolen from him.
[13] Ibid, 610ff and 262ff.
The viciousness with which the three youths attacked the man as he lay on the ground is striking and of particular concern. He was repeatedly kicked to the head and body, and so the crime did not simply consist of the overpowering of a person in order to effect a theft, but, rather, it involved the wanton infliction of serious injury for the sake of it or, more exactly, for the sake of pleasure. The victim was repeatedly assaulted and indeed, at one point, he was dragged along the ground.
I have also read the victim impact statement that was prepared for use in court.[14] The victim describes his ongoing physical and emotional harm. Naturally, the crime also affected his confidence to use and enjoy public spaces. It was, as I say, a particularly vicious attack where the motivation for the attack must be taken to have included gratification obtained through the infliction of serious injury upon an older Australian.
[14] Ibid, 622ff.
On the very same day, the applicant was also involved in further offences involving assaults upon innocent persons and theft of their property including a motor vehicle. These are described in the Victoria Police preliminary brief to which I was referred[15] and I need not detail them. The offending on that day consisted therefore of multiple offences. Again, the applicant appeared to be out of control.
[15] Ibid, 595ff.
I reject the applicant’s submission that he was not a member of a gang when committing these crimes. He clearly was. Gang violence of this type (that is, violence perpetrated in concert by youths who consort for criminal purposes) is a feature of urban life in some parts of Australia. It is a notorious fact, for example, that Melbourne’s residents have been subjected to gang attacks. It is plain enough that the three youths were open on that day to the idea of attacking anyone whom they felt they could overpower. They knew one another, they acted in concert, and they were consorting that day, self-evidently for the purpose of attacking others should the chance present itself. The applicant’s own evidence was that he had been committing offences to support a drug habit for a number of years. He was no doubt acting very frequently in concert with others. It is quite clear that the applicant had participated in an organised group on multiple occasions. He was, therefore, a gang member.
The applicant was sentenced to an aggregate sentence of two years jail on 9 October 2020 but he had already been detained for nearly four months prior to that date and credit was given for that time. A one-year non-parole period was imposed.[16]
[16] Ibid, 132-161.
The respondent’s Statement of Facts, Issues and Contentions (“SOFIC”) asserts at para [7] that the applicant began using drugs from his early teenage years and that he progressed to methamphetamine, heroin, cannabis, and MDMA among other drugs.[17] I have proceeded on the basis that this submission is correct.
[17] Ex R3.
The respondent further contends that there are numerous incidents of the applicant’s illegal conduct from 2017 onwards (that is, from the time the applicant was 15 years of age) until the most recent offending that led to the applicant’s imprisonment in 2020 (at the age of 18).[18] I accept that submission as well. Indeed, it would appear that the applicant had begun offending at an even earlier age.
[18] Ibid, 2 [8].
Since the time he was taken into custody in mid-2020 aged 18, the applicant has been either confined in jail or immigration detention. I note that he had earlier served a youth detention order of some 15 months.
REASONS
I now turn to consider Direction no. 99 (“the Direction”). In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA
790, I made certain prefatory remarks about the Direction. I repeat them here:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. There are five so-called “primary considerations” for me to consider and weigh. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by the noncitizen in question. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they will not cause or threaten harm to individuals or the Australian community. I bear this in mind and I note that it has a particular resonance in this case.
Paragraph 8.1(2) requires decision-makers to give consideration to the nature and seriousness of the non-citizen’s conduct to date, and to the risk to the Australian community should he or she commit further offences or engage in other serious conduct. In paragraph 8.1.1(1)(a) to (h), a number of principles are set out.
I have taken into account the applicant’s entire conduct. There have been many violent crimes. Quite apart from the crimes of which he has been convicted, the applicant has accepted that he was actively supporting a drug habit and was spending large sums on a weekly basis. I can infer that he was repeatedly offending even though it is clear that not all of his offending found its way before the courts. I bear in mind that I am required to assess “the nature and seriousness of the [applicant’s] conduct to date”[19] and I have acted on the basis that I should not exclude from consideration conduct that has not resulted in a conviction, provided I am satisfied it occurred (as I am).
[19] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023), para. 8.1(2)(a).
I regard the applicant’s assault on the 63-year-old partially blind person as one of particular seriousness. When youths encircle and attack an older Australian, and indeed unleash their fury upon him or her, the consequences for the individual can be severe. Stomping and kicking ‒ particularly in the region of the head ‒ are entirely reprehensible acts that can lead to extreme injury, even death. The seriousness of the crime committed in this case is heightened by the fact that it was committed against a vulnerable person. The attack was of the most serious kind, and it was not in my opinion untypical of the applicant’s disposition.

The attack was particularly serious as well because it was one that was initiated in concert with others.
I regard all the applicant’s other offending as very serious as well. Australians are entitled to the safe enjoyment of their property. The arbitrary deprivation of property is extremely inconvenient and unfair, quite apart from the fear it inevitably instils in victims.
The applicant also has a criminal record that includes the possession of drugs and dangerous driving. His drug dependence meant that he was always likely to turn to crime to support his dependence. Conversely, his ongoing dependence was likely to have disinhibited him from the usual restraints that normally functioning adults experience in relation to any urge to violence. Driving at a dangerous speed is self-evidently a serious matter.
I have had regard to all the sentences imposed. The most recent sentence was a long one for someone of the applicant’s youth. There has clearly been a great frequency in the applicant’s offending, and there has also been, self-evidently, a trend of increasing seriousness. The crimes in relation to which the applicant received an aggregate sentence of two years were marked by viciousness and brazenness. There is a cumulative effect of repeated offending insofar as this applicant is concerned. He belonged to a group which repeatedly threatened the good order of Victorian society by offending and reoffending on multiple occasions. I accept the respondent’s contention at para [28] of its SOFIC that the applicant offended after he was aware of the negative consequences to his visa status of further criminal conduct.[20]
[20] Ex R3.
Paragraph 8.1.2 addresses the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I bear in mind what appears in subparagraph (1) of this paragraph. The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. This is set out clearly in subparagraph (1).
In assessing the risk that may be imposed by the applicant to the Australian community, I must have regard to certain matters “cumulatively”. I do so. The first factor is the nature of the harm to individuals and the Australian community should the non-citizen engage in further criminal or other serious conduct. This requires me to assume that the applicant does engage in the conduct in question. Gang-related violence that includes the wanton infliction of serious harm is self-evidently extremely serious. I refer again to the victim impact statement in this case. It is quite clear that dragging an older person to the ground, belabouring him with blows, and kicking him (including in the head region) is a crime with potentially very serious consequences for the victim. I bear in mind that group violence can assume something of a frenzied character and that it is of great seriousness for that reason.
I have referred to the other aspects of the applicant’s offending that raise very real concerns as well. Any repetition of these crimes would inflict substantial harm on the Australian community or expose it to serious risk.[21]
[21] As is the case for example with dangerous driving.
I must also assess the likelihood of the applicant engaging in further criminal or other serious conduct. This has proved rather difficult in this case. The applicant submitted reports from an expert, Dr Scally,[22] and led evidence from her. Dr Scally indicated that the applicant was still in the medium range of risk.[23] Certainly, the applicant’s risk profile can be no lower than this, but in my opinion, it is likely to be higher. I did not discern in the applicant’s evidence to the Tribunal a clear acknowledgment that he was guilty of the offences of which he was convicted. I did not regard his evidence concerning the pictures taken of his most recent offending as persuasive. He was reluctant to acknowledge his offending when he ought, in my opinion, to have said plainly that he was involved in the offending and that one of the attackers in the stills shown to him may well have been him even if he could not personally recognise himself (although it is hard to believe that he would have been unable to recognise himself since he knows that he was involved in precisely the sort of brutal attack captured in the stills). In this regard, the respondent rightly drew my attention to the transcript of the applicant’s evidence before the earlier Tribunal.[24] The applicant did not express convincing remorse for his offending. I do not accept that the applicant at this point in his life feels any particular remorse for the harm he has inflicted on others. This is a concerning feature of his evidence.
[22] Ex A1, 16-30.
[23] Ibid, 29.
[24] Ex R2.
I do accept, however, that the applicant fears for his own future, as well he might. At a very young age, he has entered the prison system, and since mid-2020, when he was just 18, he has spent three years in one form of detention or another. The prospect of either removal to South Sudan or indefinite detention is very daunting for him. I do not doubt that. This does offer a serious deterrent to him. But I must weigh the presence of a deterrent against the quite uncontrolled and unbridled behaviour of which the applicant has shown himself capable. For many years, he was effectively lawless: he was consuming illicit drugs, he drove dangerously, he robbed people, he was engaged in extreme violence, and he had willingly participated in gang crimes. A 15-month detention order while he was a juvenile did not deter him. He is still young and there must be a question as to whether he would, if released, once again regard himself as beyond the law and give in to headstrong impulses, irrespective of the almost certain prospect of jail and eventual deportation (or indefinite detention).
It will help him, of course, to move to another part of the city, which I understand to be his intention, and thereby to keep a distance from former criminal associates. And he has made certain prosocial choices including developing his fitness and an interest in boxing.
His outlook at the present time, however, is most uncertain. He will need serious support and stability in the community. I regard the likelihood of the applicant engaging in further criminal or other serious conduct at this point (and I include here a return to drug use) as real and substantial. In that respect I am less sanguine than Dr Scally and regard the risk of reoffending as somewhat higher than she does. As I say, I would regard the threat the applicant poses as substantial.
It is accepted that family violence is not a consideration that arises in this case.
I must have regard to the strength, nature, and duration of the applicant’s ties to Australia. The applicant arrived here as a child and has spent, therefore, at least some of his formative years here. There is no suggestion that the applicant has contributed positively to the Australian community. The applicant does have a mother and siblings here in Australia. For much of his life, however, he has been largely “out of control”, as I have said; and I must say that I query the strength of his connection with his family in light of his very disruptive behaviour. I attach this consideration some weight but it is limited.
I must have regard to the best interests of minor children in Australia. The applicant is not the father of any children, but he does have nieces and nephews. I think this consideration weighs neutrally. If the applicant returns to drug use and crime, and I have found that there is a real risk of a recurrence, it would be better for the minor children to end contact with the applicant now. Whilst there is a potential for him to make a positive contribution in the future, I regard that as a potential only at this point, and I think that to date he has played only a marginally positive role in the life of his family (that is, in terms of making a nondisruptive contribution to family life). Accordingly, I do not attach weight to this consideration either way.
The fifth primary factor that I must consider is the expectations of the Australian community. I note what appears in subparagraph 8.5(1) of the Direction. This subparagraph makes it clear that where people engage in serious conduct in breach of the expectation that they should obey Australian laws while in Australia, “as a norm” the Australian community expects the government not to allow them to remain in Australia. That subparagraph applies here. Clearly the applicant has engaged in serious conduct in breach of the community’s expectation that he should obey Australian laws.
I note that the applicant has been guilty of the commission of serious crimes against vulnerable members of the community because his victim was an older and partially disabled Australian. Subparagraph (c) of paragraph 8.5(2) instances this conduct as one giving rise to serious character concerns that enliven the Australian community’s expectation that the applicant not be permitted to remain in Australia. That is an important matter.
The expectations mentioned in paragraph 8.5(1) and (2) of the Direction apply whether the noncitizen poses a measurable risk of causing physical harm to the Australian community, but I have already indicated that he does pose a substantial risk.
I note that I am not to assess the community’s expectations for myself but am to proceed on the basis of the Government’s views as articulated in the Direction. This consideration counts substantially against the applicant.
I must have regard to so-called “other” considerations under section 9. I do not have any evidence before me concerning what if any effect my decision would have on victims and I leave that to one side.
There is a question as to what consequences would flow from a decision by me to affirm the decision under review. The respondent’s contention is that Australia does not owe the applicant non-refoulement obligations. From this it follows that if I affirmed the decision under review, the applicant would be returned to South Sudan.
It is sufficient in this case to proceed on the basis that the respondent’s contention is correct.
I am required to consider the impact upon the applicant of this decision, and in particular, I must consider the extent of any impediments that the applicant may face if removed from Australia to his home country, in establishing himself and in maintaining basic living standards in the context of what is generally available to other citizens of that country: see paragraph 9.2(1). The applicant would be removed to South Sudan, as I have said.
It is quite clear on the information before me that this applicant would face the most serious impediments should he return to South Sudan. First, I note that the applicant has not lived in South Sudan on an extended basis since he emigrated to Egypt at a very young age with his family, and that he has very insecure and tenuous associations with the country. His situation is not to be equated in my opinion with that of other young South Sudanese men who have a family or an established social network. As a consequence, this applicant would face particular difficulties that other South Sudanese people in a comparable position would not. Although the Direction requires me to consider what is generally available to others in South Sudan, this applicant would face particular difficulties. In this regard, I would refer to the Federal Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.
I do not think that the fact that the applicant is young and in good physical condition and that he would face no substantial language barriers counterbalances fully the special disadvantages he faces from having very limited connections with the country.
I also accept what appears in the extensive material referred to in the applicant’s SOFIC[25] concerning the very serious situation on the ground in South Sudan. There is no doubt that on the information before me the situation is extremely difficult. The applicant quotes (at paras [98]ff of his SOFIC) from various important sources. These depose to the ongoing violence in the country, the “tremendous scale of humanitarian needs”, and the persistent diversion of State resources from the people to political and military elites.[26]
[25] Ex A4,
[26] Ibid, 31.
As is also pointed out in the applicant’s SOFIC,[27] the United Nations High Commissioner for Refugees has expressly requested that all states refrain from forcibly returning South Sudanese nationals.
[27] Ibid, 37.
The impediments the applicant would face on removal to South Sudan are a consideration that counts very substantially in his favour.
WEIGHING THE CONSIDERATIONS
I now turn to weigh the various considerations I have identified. I am conscious of the fact that the Direction says explicitly that, generally speaking, I should attach greater weight to primary considerations than other considerations arising under section 9 of the Direction. That general proposition must not be understood, however, as meaning that in no case can another consideration under section 9 of the Direction prevail over primary considerations. I must always give careful attention to the facts of the case before me.
Clearly enough, there are primary considerations that speak strongly against the applicant. I acknowledge the very strong considerations that favour maintaining the status quo of a visa cancellation. The applicant’s crimes have been extensive and of an extremely antisocial type. There is no doubt about that. His criminal offending has included violence in concert with others against vulnerable members of the community. His antisocial offending has increased in severity, and not abated in frequency, and was repeated in his adult years, although I accept that he had just turned 18. His offending has been associated with prolonged illegal drug misuse and disinhibited behaviour both of which directly threaten the safety and good order of the Australian community.
There is no doubt at all that there are serious character concerns arising in respect of this applicant. Moreover, as I have indicated, his risk profile is not low, but to the contrary he poses a substantial risk to the Australian community at the present time, a matter to which I am directed to have regard “cumulatively”. These are very substantial considerations.
Against that, I must have regard to the fact that the applicant, on the respondent’s case, would return to South Sudan if I affirmed the decision under review. Civil society in South Sudan is largely dislocated, and it continues to experience serious poverty. There are very challenging conditions in the country. This applicant has not lived in South Sudan on an extended basis (except as a child of some 4 or 5 years of age), and his uncertain connections with the country would make it all the more difficult for him to navigate the extreme difficulties that he would face on return. South Sudan presents itself in fact as one of the most difficult countries one might imagine as a refoulement destination for a deportee.
I have not found this an easy case to resolve, but in my opinion the correct or preferable decision on the evidence before me on balance favours revocation of the cancellation decision notwithstanding the applicant’s extremely antisocial offending and the substantial risk he poses to the community. There is in my opinion, “another reason”, therefore, for the cancellation decision to be revoked under section 501CA4(b)(ii) of the Act.
I would note that I have approached the decision in this case without considering the alternative hypothesis of indefinite detention. It has been sufficient for me to decide the application on the basis of the scenario that the respondent has submitted is the more likely one; namely, one where the applicant should be held not to be owed non-refoulement obligations. That is in my opinion a fair way (see s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)) for the Tribunal to approach the matter.
But the alternative hypothesis would also give me very significant concerns, and as presently advised, I would not affirm the decision under review if this were the more likely scenario. Since it is not the principal basis of my decision, I need express myself briefly only. Under this hypothesis, the applicant would not return to South Sudan because he would be found to engage Australia’s non-refoulement obligations. If that were the case, he could not be forcibly removed to South Sudan given the provision in section 197C of the Act. He would remain in detention. The only possibilities for ending the impasse of ongoing detention would be either the exercise by the Minister of a personal power the Minister has (e.g., under section 195A of the Act) or the securing of a third country to take the applicant.
The prospect of ongoing detention would also cause me serious concerns given what fell from the plurality of the full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 (“WKMZ”). In this scenario the detention would answer, in my opinion, the descriptor of “indefinite detention” as used by the plurality in that case; namely, detention where the detainee does not know in advance of a defined end point.[28] The plurality emphasised in that case that the “continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter the visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedom known to the common law”.[29]
[28] See WKMZ at [132] – [133].
[29] Ibid, at [123].
Common sense suggests that there may well be difficulties in finding a third country willing to accept the applicant given his extensive criminal record and antisocial offending. It seems counterintuitive to suppose a third country would be found to receive the applicant in a relatively short period of time when Australia wishes no longer to have him on account of his criminality. So far as the Minister’s personal power to allow the applicant to remain is concerned, I do not impute to the Minister an intention never to intervene, thus resulting in a situation of quasi-permanent detention. That would suppose a completely inhumane situation. But there may well be a lengthy delay before the Ministerial power is exercised. This implies the likelihood of a not insignificant period of further detention. This prospect is of very real concern in this case.
FORMAL DECISION
It follows from my conclusion that I should set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.
I certify that the preceding sixty-five (65)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]…………………………..
Associate
Dated: 3 October 2023
Date of hearing:   7 & 10 August 2023
Advocate for the Applicant:       Alison Battisson,
Human Rights for All
Advocate for the Respondent:   James Byrnes, Counsel
Instructed by Georgina Ellis & Alex Chan,
Sparke Helmore

[2023] AATA 3102

4 September 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Natural Justice

Procedural Fairness

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Statutory Construction

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