VNVT and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 674

VNVT and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 674 (2 June 2025)
Applicant/s:  VNVT
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2023/3977

Tribunal:Deputy President K Millar
Place:Adelaide
Date:2 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 02 June 2025 at 1:00pm
CATCHWORDS
MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) – consideration of Ministerial Direction No. 110 – consideration of ss 501(3A), 501(6) and 501(7) of the Act - consideration of protection of Australian community – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Pearson v Minister for Home Affairs [2022] FCAFC 203
XLJR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] FCAFC 6
Shi v Migration Agents Registration Authority [2008] HCA 31
Nkani v Minister for Citizenship and Multicultural Affairs [2023] FCA 1410
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024).
Statement of Reasons

The Applicant is a citizen of South Sudan who arrived in Australia in approximately 2004 on a Global Special Humanitarian Visa. His visa was cancelled on 18 August 2022, and a delegate of the Minister decided not to revoke the cancellation of his visa. The decision under review is the decision not to revoke the cancellation of his visa.
At the time his visa was cancelled, the Applicant had been sentenced to a term of imprisonment of 12 months. After his visa was cancelled, he successfully appealed this sentence which was reduced to a term of imprisonment of 286 days.
The Applicant sought revocation of the cancellation of his visa, and a decision by a delegate of the Minister not to revoke the cancellation of his visa was affirmed by the Administrative Appeals Tribunal. The matter was remitted for reconsideration by the Federal Court on 11 October 2024, and this is the reconsideration of this matter.
The Applicant’s visa was previously cancelled 22 August 2019. The decision of a delegate of the Minister not to revoke the cancellation of his visa on that occasion was set aside by the Administrative Appeals Tribunal.
As the Applicant has recently applied for a protection visa, under s 501K of the Act the Tribunal must not publish any information which may identify the person, or any relative or dependent of the person, and a pseudonym has been applied to the Applicant.
BACKGROUND
The Applicant was born in what is now South Sudan. His father is deceased, and his mother is in Australia. He has two brothers and one sister in Australia, and one sister who lives in Egypt.
The Applicant was living in Malakal, South Sudan when the war started. He was separated from his family at approximately 13 years of age and fled to Khartoum with an uncle, where they lived for approximately three years. He states they could not remain in Sudan, because of religious persecution as the authorities wanted Christians to convert to Islam.
In approximately 2001, he and his uncle travelled to Egypt. His uncle located his mother and sister in Australia, and they started the process to migrate to Australia. He arrived in Australia in 2004 when he was 18 or 19 years old.
On arrival he studied reading and writing in English at TAFE. He worked picking fruit in 2006 and 2007, and then worked at a meatworks in country Victoria for a few months at a time, returning to Melbourne to improve his English.
In 2007 or 2008 he was diagnosed with tuberculosis and stopped working. He had treatment for 6 months then went to Queensland to look for work fruit picking and worked in a chicken factory for 2 to 3 years. He moved between Queensland and Alice Springs where he worked as a cleaner. He applied for a mining job in Western Australia and did this for a short time.
He returned to Melbourne in approximately 2014 after his brother had a car accident, and lived with his mother, sister and brother for approximately 6 months. He applied for public housing and was allocated a permanent apartment, and started work at a tannery.
He was imprisoned in 2016 and lost his job. He completed a Certificate II in housing and a Certificate II in welding while in prison. He was again diagnosed with tuberculosis in 2018.
His visa was cancelled in 2019, and he successfully applied to the Administrative Appeals Tribunal for the cancellation to be revoked. His visa was reinstated in September 2020 and he was released from immigration detention. He initially lived with his mother but returned to his public housing apartment, at which time COVID lockdowns restricted his ability to travel. He contracted COVID which he found frightening due to his lung condition.
In July 2021 he commenced a relationship with a woman who also lived in the apartment block. He was taken into custody on 7 November 2021 due to offences against this partner and was released from prison to immigration detention in September 2022.
On 28 December 2022, he was released from immigration detention following the decision in Pearson v Minister for Home Affairs,[1] in which an aggregate sentence of imprisonment was found not to fall within the mandatory cancellation provisions in s 501(3A) of the Act. He commenced another relationship in January 2023 but is no longer in this relationship.
[1] [2022] FCAFC 203.
In February 2023 he moved to Adelaide for a job in a chicken factory but, after being told by his lawyer he could be re-detained, he returned to Melbourne later that month.
He was re-detained on 7 March 2023 following legislative amendments that reinstated mandatory cancellation where an aggregate sentence of imprisonment for 12 months or more had been imposed, and he is currently in immigration detention.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), the Minister must cancel a non-citizen’s visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory.
The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act.
As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa.
Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.
If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to refuse his visa should be revoked.
WAS THE APPLICANT’S VISA CORRECTLY CANCELLED?
At the time the visa was cancelled on 18 August 2022, the Applicant had been sentenced to a term of imprisonment of 12 months or more and was in prison.
On 20 October 2022, his sentence was reduced on appeal to imprisonment for 286 days.
Subsection 501(3A) of the Act is mandatory, and the Minister must cancel a visa if satisfied two preconditions are met. In the circumstances of this case, these are:
(1)The person does not pass the character test because the person has a substantial criminal record, which includes where the person has been sentenced to a term of imprisonment of 12 months or more; and
(2)The person is serving a sentence of imprisonment on a full-time basis in a correctional institution for an offence against the Commonwealth, a State or a Territory.
In XLJR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs,[2] Rares J states at [45] that even if the sentence that attracts the operation of s 501(3A)(b) is later set aside, or a verdict of acquittal entered, the person has no right to have the visa restored and instead must seek the revocation of the cancellation of the visa.
[2] [2022] FCAFC 6.
There is a temporal element to s 501(3A) of the Act as contemplated in Shi v Migration Agents Registration Authority,[3] in that at the time the decision was in fact made to cancel the Applicant’s visa, the delegate was satisfied that the two pre-conditions were met. On being satisfied they were met at that point in time, the conclusion must be that the visa is cancelled.
[3] [2008] HCA 31 per Kirby J at [46], per Heyne and Heydon JJ at [99], per Kiefel J (Crennan J agreeing) at [142] – [146].
That s 501(3A) of the Act has a temporal element is reinforced by the inclusion of a requirement for a delegate of the Minister, and the Tribunal in the place of the delegate, to consider again whether the person meets the character test when considering whether to revoke the cancellation of the visa. If a sentence is reduced on appeal this falls again for consideration, albeit with other ways in which a person may not meet the character test, when a decision is made about whether the cancellation should be revoked.
At the point of time at which the delegate was satisfied the conditions in s 501(3A) existed, the Applicant was sentenced to a period of 12 months imprisonment, and the delegate on being satisfied these conditions existed was required to cancel the visa under s 501(3A) of the Act.
DOES THE APPLICANT MEET THE CHARACTER TEST?
The Minister relies on a previous sentence imposed on the Applicant to establish that he does not meet the character test at the time of this decision, and in the alternative relies on other aspects of the character test in s 501(6) of the Act.
The Applicant’s visa was previously cancelled on 22 August 2019 on the basis that he did not meet the character test. The notice of cancellation states this was because he had been sentenced to 13 months in prison as an aggregate sentence following breach of a community corrections order imposed on 29 August 2018.
The Minister accepts this offence cannot be relied on to find the Applicant does not meet the character test at the time of this decision because his visa has previously been cancelled relying on this sentence.
The Minister instead relies on another sentence of imprisonment for 12 months imposed on the same date as the sentence of 13 months imprisonment. The notice of cancellation dated 22 August 2019 refers to the aggregate sentence of 13 months imprisonment as the reason for the cancellation.
The decision of the delegate not to revoke the cancellation of the Applicant’s visa also refers to the 13 month sentence of imprisonment in deciding that he does not meet the character test. The concurrent 12 months period of imprisonment was considered when deciding if there was another reason to revoke the cancellation of the visa, in the nature and seriousness of the conduct, and was clearly before the delegate and considered by the delegate in making this decision. It was also before the Administrative Appeals Tribunal when it made the decision to revoke the cancellation.
In Nkani v Minister for Citizenship and Multicultural Affairs (Nknai),[4] O’Bryan J found that a separate conviction considered in a previous decision, but not relied on to cancel the visa under s 501(3A), could form a different factual basis for the exercise of the power under s 501(3A) of the Act, regardless of whether it has been considered in a previous revocation decision.[5] In summary, this means each time a person is sentenced to a term of imprisonment of 12 months or more, the power to cancel the visa arises for each occasion, regardless of whether it was considered in deciding if the previous cancellation should be revoked. I am bound by the decision in Nkani, and the Applicant does not meet the character test.
[4] [2023] FCA 1410.
[5] Ibid [46].
Even if I were not, it is apparent that the Applicant would not meet other aspects of the character test that:
· having regard to either or both of the person’s past and present criminal conduct and past and present general conduct the person is not of good character (s 501(6)(c) of the Act); or
· if allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia (s 501 (6)(d)(i));
· if allowed to enter or remain in Australia, there is a risk that the person would harass, molest, intimidate or stalk another person in Australia (s 501(6)(d)(ii)).
This is because of his extensive previous criminal history, relatively recent and repeated reoffending involving breaches of family violence safety notices.
THE DIRECTION
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[6]
[6] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.[7]
[7] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) The protection of the Australian community from criminal or other serious conduct;
(2)      Whether the conduct engaged in constituted family violence;
(3)     The strength, nature and duration of ties to Australia;
(4)      The best interests of minor children in Australia;
(5)       The expectations of the Australian community.[8]
[8] The Direction, cl 8.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[9]
[9] Ibid cl 8.1(1).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[10]
[10] Ibid cl 8.1.1(1)(a).
The Applicant’s criminal history commenced in 2007 with convictions for theft (3 charges), resisting police, assaulting police, possessing a dangerous article, drunk in a public place, and possessing ammunition without a licence.
The police report records a report of theft from a liquor outlet that involved the attendant being distracted by another offender while liquor was stolen. On that same day the Applicant was approached by police with the witness from the liquor store. He was reported to be aggressive to a female police officer and was advised to back away, on which he took a silver object from his pocket. On being advised he was under arrest he has shaken loose from police and attempted to leave. The Applicant says he was drunk at the time, and he can’t remember if it was him or his friend that took the alcohol, but later said it was his friend. He said due to his difficulties with his English the blame was put on him. He could not recall the interaction with police.

The Applicant was required as part of a community-based order for the 2007 offences to attend a cognitive skills program and alcohol treatment, as well as any other program that may assist him with his English or cultural awareness issues. The Applicant said he did not undertake this treatment as he became sick at the same time.
Failing to answer bail, wilfully damaging property, and assaulting police in the latter part of 2007 resulted in a suspended sentence of imprisonment for one month.
In 2008, he was convicted of resisting police, unlawful assault (2 charges), possessing a controlled weapon without excuse, and wilfully damaging property. These offences were given an aggregate sentence of imprisonment of 4 months which was suspended. The police facts states that one assault was following a refusal by a nurse to take blood after he had not fasted, and he grabbed the nurse by the throat. The other assault involved punching a person who told him not to swear on a train. The Applicant said he could not recall these offences and was drinking. He said there may have been a misunderstanding with the nurse, and that he does not like to punch but may have been singing on the train, and he now knows that when police give him a piece of paper, he needs to read it.
In 2009 when he relocated to Queensland, he was fined without conviction for failing to leave a licensed premises, providing false, misleading or incomplete documents to an investigator and failing to state his name, age or address. He was fined without conviction for failing to appear in accordance with an undertaking. He was also fined without conviction for wilful damage.
In 2010 he was convicted twice for assaulting or obstructing a police officer, and on three occasions for committing a public nuisance.
In 2011 he was fined for refusing to obey an order given by an officer in Perth, and then convicted in Alice Springs for disorderly behaviour in a public place and fight in a public place.
There are no convictions recorded in 2012, and one traffic offence in South Australia in 2013.
In 2014, he was convicted of dealing with property suspected to be the proceeds of crime, failure to answer bail (4 charges), recklessly causing injury, intentionally damaging property and theft.
In 2015, he was convicted of failing to answer bail (3 charges), threatening to cause damage to police goal, acting prejudicial to the good order or management of police goal, intentionally damaging property, recklessly causing injury dealing with property suspected to be the proceeds of crime, and another 4 charges of failing to answer bail.
In 2016, he was fined with conviction for contravening a family violence order before being sentenced to imprisonment for 5 months as an aggregate sentence for intentionally damage property, unlawful assault, contravening a family violence interim intervention order, and contravene a conduct condition of bail.
In 2017 he was convicted of contravening a family violence order with intent to cause harm or fear.
In 2018 he was given an aggregate sentence of 10 months’ imprisonment for contravening a family violence intervention order (2 charges), failing to answer bail, contravening a family violence order with intent to cause harm or fear (2 charges), intentionally cause injury (2 charges), unlawful assault and committing an indictable offence while on bail. The intentionally cause injury charges are for assault against two different people, one of whom was his domestic partner. A community corrections order was made for a period of 12 months on release from imprisonment and included requirement to undergo assessment and treatment for alcohol abuse or dependency and attendance at the Men’s Behaviour Change program.
On 3 June 2019, the Applicant was sentenced to:
·     12 months imprisonment for contravening a final family intervention order and unlawful assault,
·     3 months imprisonment for following breach of a community corrections order as a resentence for the 2018 offences of fail to answer bail, unlawful assault and committing an indictable offence while on bail.
·     13 months imprisonment for breach of community corrections order and resentence for the 2018 offences of contravening a family violence intervention order (2 charges), contravening a family violence order with intent to cause harm or fear (2 charges) and intentionally cause injury (2 charges).
In resentencing, the Magistrate noted that he had failed to attend appointments with his corrections officer and on one occasion arrived smelling of alcohol.
In 2022 the Applicant was convicted of contravening a family violence safety notice intending to cause harm or fear for safety, common law assault, without authority or excuse entering a private place and contravening a family violence safety notice (two charges). He was sentenced to an aggregate period of 12 months imprisonment which was reduced on appeal to 286 days. He was also convicted of theft from shop and sentenced to 7 days imprisonment.
The Direction specifies at paragraph.8.1.1(1)(a) that violent or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed and acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed, are viewed very seriously by the Australian Government and the Australian community.
The Applicant’s offending history includes contravening family violence intervention order or safety notices, contravening these notices with intent to cause harm or fear and unlawful assault. It includes intending to cause fear or harm and intentionally causing injury.
The Applicant pleaded guilty to the 2022 convictions. These offences are described by the prosecution and were accepted by the Applicant in the Magistrates Court where he was legally represented. The circumstances were that on 5 November 2021, the complainant was at her home address and on hearing banging noises went to her kitchen and saw the Applicant with one leg sticking through the window after he had damaged the security protection on the windows to access the flat. The victim ran out of her unit and was chased by the Applicant who tackled her to the ground, pushing her by the shoulders and chest to the extent that she could not breathe. Witnesses saw the Applicant sitting on top of the victim holding her down and the victim calling “[h]e’s trying to choke me.” The Applicant left the property but returned a further three times, and on the third occasion again tackled the victim outside pinning her to the ground and lifting a bottle of wine over his head. When he left witnesses called triple zero. The Applicant returned to the location later with his cousin and was arrested, at which time he made admissions about breaching the family violence intervention order.
In his statutory declaration dated 19 April 2023, the Applicant states he had been drinking and had seen the victim who invited him to her house. He does not remember trying to enter her house through the kitchen window and cannot remember what happened for the rest of that day.
The Applicant’s criminal history as established by the convictions includes acts of family violence and crimes of a violent nature toward women and children which are viewed very seriously.
The Applicant has also been convicted on a number of occasions of assault police, which is viewed seriously in accordance with cl. 8.1.1(b)(ii) of the Direction.
The sentence imposed
A consideration of the sentence does not apply to crimes of violence against women and children or acts of family violence. Apart from these offences, the Applicant has been sentenced to numerous terms of imprisonment including resisting police, unlawful assault, wilfully damaging property, theft and intentionally damaging property. Where community corrections orders have been imposed, he has breached orders, which has led to terms of imprisonment being imposed on resentencing.
Impact of offending on victims
The impact of the offending on victims can be considered where information in this regard is available, and the Applicant has been afforded procedural fairness. Information on the impact of the offending on the individual victims is not before the Tribunal.
The frequency of offending
The Applicant has committed multiples offences in most years since 2008, except for 2023, and his offending has been frequent.
The cumulative effect of offending
The Applicant has committed more than 50 offences between October 2006 and October 2022, and there is a cumulative effect of his repeat offending.
Providing false and misleading information
There is no material before me to suggest the Applicant has provided false or misleading information.
Whether the non-citizen has re-offended since being formally warned, or otherwise being made aware in writing of the consequences of further offending in regard to the non-citizens’ migration status.
The Applicant’s visa was previously cancelled in 2019, with this cancellation being revoked following his application to the Administrative Appeals Tribunal and a hearing at which he gave evidence. The previous cancellation and his involvement in the process that led to the cancellation being revoked shows he has previously been made aware of the consequences of further offending yet continued to offend.
Overall, I consider the very serious nature of the Applicant’s criminal offending, the frequency and cumulative effect of his offending and reoffending after his visa was previously cancelled weighs heavily in favour of not revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[11]
(1)In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[11] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[12] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[13]
[12] The Direction, cl 8.1.2(2)(a).
[13] Ibid cl 8.1.2(2)(b).
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[14]
[14] The Direction, cl 8.1.2(2)(a).
Given his previous conduct, the likely harm is personal injury to individuals with whom he has a relationship, harm to police officers acting in the course of their duties, and to the community in public order offences and theft.
Likelihood of the Applicant engaging in further criminal or other serious conduct
This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (cl.8.1.2(2) of the Direction)
Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct
The Applicant has repeatedly disregarded periods of imprisonment, bail, community corrections orders and family violence safety notices. He has reoffended despite his visa previously being cancelled due to his offending, and his most recent offending closely resembles the offences for which his visa was cancelled in 2019 with a different victim. These are breaches of family violence safety notices with intent to cause fear or harm, assault, and, in the most recent offences entering a private place without lawful excuse. That there were two different victims increases the likelihood that he will offend again toward any future partner.
Rehabilitation
The Applicant has attended counselling at Foundation House, which provides counselling for survivors of torture, and provided an assessment from a social worker dated 10 August 2023. This assessment records the Applicant’s account of events with the information drawn from eight sessions with the Applicant in the period 22 November 2022 to 3 August 2023, the Applicant’s statement of 13 August 2020 and the notification of decision refusing to revoke the cancellation of his visa.
This assessment reports that the Applicant believes he has learned better coping strategies to manage conflict and escalating tension in communication. The themes of these sessions were the Applicant’s motivation to work on himself and further establish coping strategies. It is recorded that the trauma suffered by the Applicant in the past led him to attempt to numb the distress through alcohol. It is reported he has realised the futility of continuing as before and that the consequences are overwhelming. Continued counselling was recommended. There are no further reports after August 2023 from Foundation House, however the Applicant states that if he is released from immigration detention, he would like to do more rehabilitation and counselling with Foundation House.
The Applicant said alcohol addiction was a big problem for him, and he does not want to go back to this. He said he had toxic anger and violence, but he is trying to fix this and move forward. He is sorry for his ex-partner but has not had a good life since. His assurances are similar to the assurance he gave when his visa was cancelled in 2019.
Given these past assurances and continued offending, in the absence of intervention his assurances are of little weight.
The Applicant was ordered to undertake drug and alcohol rehabilitation in community corrections orders in 2007 and to undertake the Men’s Behaviour Change program in orders made in 2018. He was asked why he did not do these courses earlier, and the Applicant said it was very hard for him because of his education, so he seeks help from friends. There were no counsellors in prison, but he has done more in immigration detention. He said he only had to sign in and tell the corrections officer if he had been drinking. He did not comply with the corrections order because he was working, and the corrections officer smelt alcohol on him.
The Applicant has now completed the Men’s Behaviour Change program which is 20 sessions. This program is stated to be designed for men who have used violent or controlling behaviours towards partners, former partner and children in which participants are invited to take responsibility for their behaviour and the impact of their behaviour and discuss ways to relate non-violently. He said he has learned to manage anger differently which involves talking respectfully to others, being peaceful and kind and to moving away and not responding.
In 2022 he completed courses with Anglicare on “Tuning into Respectful Relationships”, “3-hour AOD & Relationships Program”, “Harm Reduction”, a prisoner legal aid family law presentation, and part of a program on “Take Stock” which is described as a program to build self-reflection and positive future directions.
In 2020 when he was released from immigration detention, he said he continued rehabilitation with Anglicare but this stopped due to COVID restrictions. He has completed the required 5 sessions of the SMART recovery program on September and October 2024. He previously completed 4 sessions in 2023. This is described as a self-help and mutual aid program to examine and change addictive behaviours. He said this has helped him know what to do if he is hanging around people who are drinking by building boundaries and that without alcohol, he can better control his emotions.
The Applicant has taken significant steps after his most recent convictions to engage with rehabilitation and take advantage of the opportunities provided to him. However, this has come somewhat late in the piece and following a previous cancellation. Given his very lengthy pattern of offending behaviour, alcohol use as well as his past assurances that he was a low risk, whether this rehabilitation will have a significant effect on his behaviour when he is in the community is yet to be seen.
Protective factors
The Applicant’s mother states that the Applicant can live with her and his sister on his release from immigration detention, and that he wants to move away from the bad influences at his current housing. The Applicant’s mother said she will support him to do what it takes to change his life. His sister also said that if released the Applicant will live with her and his mother, and that she can help him find work and organise alcohol rehabilitation. She can provide financial support and drive him to any appointments he needs to attend.
This support was available to him on his last release from detention, yet he chose to return to the same environment in the public housing apartment block. The Applicant says this was because he was advised his unit had been broken into and he needed to return, and then he was limited by COVID. While I accept these were reasons he returned and stayed, it also shows the ease with which he was induced to return to the same environment and resume his previous patterns of behaviour.
His brother “J” said he can provide the Applicant some financial support and can assist and with him to get a job in the factory where he works. His brother “G” says he can support the Applicant with his mental health, going to church, help financially, and can let him know about vacancies where he works.
The Applicant completed a Certificate II in welding while in prison and states he wanted to complete his welding career pathway through TAFE if released from immigration detention.
There is considerable family assistance available to the Applicant and he will have assistance with accommodation, financial support, reconnecting with the church community and attending counselling and he has plans for the future. This acts in his favour, however did not prevent him reoffending in the past.
Conclusion on the protection of the Australian community
The Applicant’s offending has included offences regarded as very serious and serious, has been frequent, and has occurred over a lengthy period of time. It has resulted in terms of imprisonment, suspended sentences, community corrections orders and fines. It has also previously resulted in the cancellation of his visa. The Applicant has more recently engaged with rehabilitation and has undertaken a lengthy course on family violence and shorter course on alcohol use and has the support of his family.
His lengthy and repeated offending and the lack of change even following the cancellation of his visa results in this consideration weighing heavily in favour of not revoking the cancellation of his visa.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
This is relevant where the Applicant has been convicted of an offence, found guilty of an offence or had charges proven that involve family violence or there is evidence from independent and authoritative sources that he is, or have been involved in the perpetration so family violence, and procedural has been accorded (cl.8.2(2) of the Direction).
The Applicant’s mother and sister called police when the Applicant was living with them in 2014. His mother acknowledged a family violence order was made to protect her against her son, and that she had told police that when he was drinking, he became extremely aggressive.
His mother and sister now deny they were fearful of the Applicant and said he was playing loud music and being disrespectful. His sister states he has said hurtful things but has not physically hurt her or her mother. I do not accept that they were not fearful at the time police were called and a family violence order was made.
Information on incidents of family violence are recorded in the police incident summary report and police briefs, which are independent and authoritative sources, and were provided to the Applicant in the course of the hearing for comment. These incident reports relate to two previous partners with whom the Applicant was in an intimate personal relationship as contemplated by the definition of ‘members of the person’s family’ for the purposes of the definition of family violence in cl. 4 of the Direction.
In September 2016, a final intervention order was made to protect the Applicant’s ex-partner. The Applicant said at this time he was released from prison and was drinking. The bills were not being paid and they argued, but she kept coming back and the police did not understand it was his house. He said sometimes they loved each other but it was toxic and complicated.
He breached the intervention order in July 2017. The police facts state that the Applicant slapped the victim 7 times and was choking her. The Applicant said he did not think he choked her and may have slapped her but not 7 times, and that she cut herself when she was angry.
A police brief states that on 27 November 2017, the victim went into the elevator on the level where the Applicant lives. A witness was present in the elevator. The Applicant entered the elevator and punched the victim multiples times to the face. When the elevator reached the ground floor the victim exited, and the Applicant kicked her to the groin/stomach area and chased her around the foyer continuing to kick and punch her. Police were called and observed the victim with a swollen nose which had appeared to have been recently bleeding. She told police she had been punched several times to the face and was taken to hospital by ambulance. The Applicant appeared intoxicated and was considered unfit for interview and placed in the cells to sober up. Footage in the foyer of the building is reported to show the Applicant kicking the victim, the victim bleeding from the nose, and the Applicant chasing her around the foyer. On being interviewed, the Applicant reportedly denied being in the elevator with the victim and said she had been banging her own head against the wall.
At this hearing, the Applicant said the police “make it look bigger than it is”, and that when he drinks he does not have the right to defend himself because he is drunk. He said it was a toxic relationship and he was trying to calm his partner down, but he has no power (with police) because he was drunk.
In November 2021 a further final intervention order was made. This is after his visa was cancelled and reinstated. This order was to protect a new intimate partner. The police incident report records that police were called following reports of an argument. There was no response at the premises when police attended, however shortly after there was a report of a female requesting an ambulance from a payphone due to assault from a male. When they attended, police observed that the victim had scratch marks around her neck. Police record that the victim reported she had been in a heated argument with the Applicant during which he placed his hands around her throat and squeezed until she blacked out. She did not want him to get into trouble or be charged.
The Applicant says the victim asked him to leave, he didn’t know why and he went outside to smoke and then was taken to police station. He was drunk at the time. I consider the police report provides an independent and authoritative record of reported events, and that even where the victim was later unwilling to given evidence, the contemporaneous record shows conduct involving family violence.
The previous cancellation of the Applicant’s visa was for contravening a family violence order, contravening a family violence order with intent to cause harm or fear, and intentionally cause injury. A lengthy period of imprisonment did not deter him from this behaviour as his most recent conviction was again family violence.
The seriousness of the family violence must be considered in light of the following:
· The Applicant’s breach of family violence orders commenced in 2016 and has continued since this time despite periods of imprisonment because of this behaviour. His behaviour has been frequent. There is a cumulative effect to his repeat offending since 2018.
· These are substantial periods of imprisonment ranging from 5 months’ imprisonment as an aggregate sentence with contravening a bail conditions and unlawful assault, to 3 months imprisonment.
Frequency of offending
The Applicant has been imprisoned on five occasions for family violence related offences and his visa was previously cancelled due to a 13-month term of imprisonment imposed for contravening a family violence order, contravening the family violence order with intent to cause harm or fear, and intentionally causing injury. The previous cancellation of his visa and periods of imprisonment did not result in a change to his behaviour, and he was again convicted in 2022 for contravening a family safety order with intent to cause harm or fear, common law assault, entering a private place without authority or excuse and contriving a family violence safety notice.
Rehabilitation
The rehabilitation contemplated by the Direction is rehabilitation achieved since the person’s last known act of family violence. Since his last offence, the Applicant has completed the Men’s Behaviour Change program and said he learned that he can move away and not respond, to talk about things when he is in a better mood, and to talk to a counsellor or call a friend. He said he did a course in prison about family law, and he learned that if he is not in a good mood then he should talk about things the next day when things have calmed down, and to call a friend or his counsellor.
The Applicant attributed much of the cause of his violence against his partner to alcohol. He said he does not intend to drink again. He attended the required 5 sessions of the Smart Recovery program in September and early October 2024, having earlier attended 4 sessions in 2023. He also attributes the cause of his offending to the stresses of COVID, with his public housing being one of the blocks where tenants were not able to leave during a lockdown period, which prevented him accessing support and medical care. He said that because he was unable to access rehabilitation he returned to drinking, but now that he does not feel he needs alcohol he will live a better life.
The Applicant acknowledged he did drink to a limited extent when he was released from immigration detention to celebrate getting a job.
The Applicant did not reoffend in the period he was in the community from December 2022 to March 2023. However, the limited rehabilitation he has undertaken for alcohol use and that he continued to drink even in a relatively minor way in the period he was released from immigration detention does not provide confidence he has addressed his longstanding problems with alcohol use.
In regard to the extent to which the Applicant accepts responsibility, he does accept he was drinking and should not have gone to the victim’s house and should have left when she told him to leave.
The extent to which he understands the impact of his behaviour on abused and witnesses to the abuse
The Applicant could not explain the effect of his behaviour on the person who was abused, or adequately explain how she may have felt. He said she was drinking as well, and she had called him to fix her TV before they started drinking. She started arguing with him, and told him to leave the house. He didn’t control his behaviour and should have left when she asked him to leave. He said his she would feel bad about what had happened but would not have felt fear. He said little things turned into a big fight because neither gave the other a chance to talk. He was drunk and angry, and he would drink to deal with the problems.
The Applicant had difficulty answering questions about how his ex-partner felt without referring to his own situation, and while he could identify alternatives to his past behaviour, could not convincingly articulate the effect of his behaviour on the abused.
Efforts to address factors which contributed to his conduct
The Applicant said that now that he has completed the Men’s Behaviour Change Course and the Smart Recovery program he has more knowledge. He said he was unable to do courses when he was previously released or when he was on community corrections orders due to COVID and work. The sessions in this course covered anger management, addiction, bad behaviour, managing emotion and how to change behaviour.
The Applicant commenced a new relationship in the period he was released into the community in 2023. He said that relationship is now complicated because he is in detention. He said during this relationship he did drink a little. He said he was looking for a job and his friend got him a job, and when he was happy, he would have one drink but not every day. He said he had a drink if he was celebrating. That he continued to drink when released does not operate in his favour, as much of the family violence occurred in the context of the Applicant being intoxicated.
The promising signs of his efforts to address these factors including by engaging with the Men’s Behaviour Change Program and Smart Recovery are tempered by his repeated family violence offences, which were repeated even after his visa was cancelled due to this type of offending. While the Applicant was able to specify the courses he has completed and the content of these courses, his assurance that he will not drink and that this will not happen again must be viewed in the context of his longstanding alcohol abuse, lengthy history of family violence and the assurance in the statement he gave on the last occasion that his visa was cancelled that he would do whatever it takes to solve his drinking and drug problem and actively seek help from family, friends, Church and the Nuer community.
The extent and frequency of the family violence which occurred in the context of alcohol abuse together with family violence offences being committed after his visa was previously cancelled because of similar offending result in this consideration weighing heavily in favour of not revoking the cancellation of the Applicant’s visa.
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
The Applicant’s immediate family in Australia are his mother and three siblings. The Tribunal heard from his mother and two of his siblings and adjourned to allow it to hear from his other brother.
His mother said it would be very painful if the Applicant’s visa remains cancelled, and she is concerned about his health.
His sister and brothers all said that it would affect them adversely if the Applicant’s visa is cancelled, with his sister stating it will affect her emotionally and financially, adding that she is the person financially supporting their mother.
His siblings have had limited contact in person with the Applicant, with the last in person contact being when he was released from immigration detention.
His brother “J” states the family miss spending time with the Applicant and need him as he is their big brother. They will be devastated if they do not get to see him.
His brother “G” provided a statement that when the Applicant was in the community, he would see him once a fortnight, and sometimes once a week, and they help each other out when either of them needs help. When in the community the Applicant was involved in the activities for his 5 children, and he considers it would break his mother’s heart if the Applicant is sent back to South Sudan.
If the Applicant’s visa is cancelled it will have an adverse effect on his mother, sister and two brothers.
Other ties
The Applicant has been in Australia since 2004, arriving as an adult. He was first convicted of offences in 2007. He has been in Australia for a long period of time, however his offending commenced within a relatively short period of arrival and as a result less weight is given to his ties to the community.
His positive contributions to the community have been through his employment and his past involvement in the Nuer community, as a member of a program that awards Nuer Community children certificates for completing prep, year 6 and year 12. On a 2019 statement, the president of the Nuer community states he has contributed to NCV Youth.
The Applicant has played sport in the community and contributes financially. He says he encourages other detainees to stay active together. In the absence of information showing a continued connection with the Nuer community, and his periods of unemployment, I place limited weight on his contribution to the community.
With his original material seeking revocation of the cancellation of his visa, the Applicant provide a statement from his then-partner, who met him in January 2023. The Applicant said this relationship has been difficult with his detention, and they have taken a break so he can focus on his rehabilitation. They are not currently in contact with each other, and he does not have contact with her children. As he is not currently in this relationship or and does not currently have contact with this partner or her children, this tie to the community has not been considered further.
The Applicant has extended family in Australia, including his uncle with whom he travelled to Australia and nieces and nephews. No information was provided on his ties to his uncle. He has ties with his nieces and nephews, with his brother stating he was involved in their activities when he was in the community.
Overall, the Applicant’s strong ties to his immediate family and moderate other ties to Australia attracts significant weight in favour of not cancelling his visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
While the Applicant previously cited the children of his new partner, as he does not currently have contact with them, I do not consider their interests affected by this decision.
At the time of this decision, there are 7 minor children affected by the decision; the two daughters of his brother “J” and the 5 children of his brother “G”.
The children of his brother “J” are 2 and 3 years old. They last saw the Applicant when he was released from immigration detention in 2023.
His brother “G” has two children who are 8 years old, as well as a son who is 6 years old and daughters who are 5 and 3 years old. The Applicant previously spent time approximately once a fortnight with the children when out of immigration detention. The Applicant would play sports and read books to the older children and take them to the park. His brother said having 5 children is hard, and it helps to have the assistance of his brother. Since the Applicant has been in prison or in immigration detention, they have only had contact with him by phone.
While each child is an individual, the interests of the Applicant’s nieces and nephews do not significantly differ, and they can be considered as a group.
The Applicant has been involved with each child over time, as an uncle involved in their sports and activities. He last saw the children when he was in the community and otherwise maintains contact by phone when speaking to his brothers. To this extent any further separation from the children is not likely to have a significant adverse effect on the children.
The children affected by this decision are cared for by their parents and the Applicant’s relationship is non-parental.
The children have had limited exposure to the Applicant other than his involvement in their activities, and any future adverse conduct is unlikely to have a direct negative impact on the children.
There are no known views of the children. There is no information to show the children are at risk of or have been exposed to family violence perpetrated by the Applicant or have suffered trauma arising from his conduct.
The best interests of minor children weigh in favour of revoking the cancellation of the Applicant’s visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[15]
[15] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

As the Australian community expects the visa to be cancelled as specified in the Direction, this consideration weighs in favour of not revoking cancellation of the visa.
OTHER CONSIDERATIONS
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)       legal consequences of the decision;
b)       extent of impediments if removed;
c)       impact on Australian business interests.
Legal consequences of decision under s 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[16]
[16] Ibid cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove a non-citizen does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
The Applicant has made an application for a protection visa on or around 19 March 2025 and cannot be removed from Australia until a decision is made on this application.[17] In considering this application, a decision must first be made on whether he is owed protection before considering whether to grant or refuse the visa.[18] If his protection visa is refused on the basis of his criminal offending or because he is considered a risk to the community, he can apply for a review of that decision when and if it is refused. If a protection finding is made while considering his application, he cannot be removed from Australia unless a further decision is made that a protection finding would no longer be made.[19]
[17] The Act, s 198(5A).
[18] Ibid, s 36A.
[19] Ibid s 197C.
The Applicant is likely to remain in detention until his application for a protection visa has been finally determined, and this is an adverse legal consequence of the decision. Previous submissions included material obtained under freedom of information about the time taken to make a decision on a protection visa application and that this may be lengthy. I accept that his continued detention will cause him distress, with submission citing his statement that indefinite detention would make him feel that he has lost his life when he is still young and has much to offer, and that it is hard in immigration detention. I do not accept he will be subject to indefinite detention, however there will be a lengthy period of time before his protection visa applicant is finally determined during which he will remain in detention.
The Applicant claims he cannot return to South Sudan due to:
·     His race due to his Nuer ethnicity;
·     His imputed political opinion due to:
o   His Nuer ethnicity;
o   His relationship with his father who was killed by Sudanese security forces
·     His membership of particular social groups:
o   Person suffering mental ill-health
o   Men at risk of forcible recruitment by armed groups;
o   Persons perceived to be wealthy in South Sudan;
o   Persons perceived to be foreign; and
o   Returnees from Australia.
The Applicant claims he left Sudan when he was 13 years old, and because this was during the war he is frightened to return. He states that due to his father’s involvement in the war he will be detected at the airport on arrival as related to his father and he will be detained. He states he does not know anyone there and will be unable to survive, and his family were killed or fled in the war. He claims he will be perceived to be wealthy because he has lived in Australia and has family here and will be targeted and face harm as a result. He claims he will be killed by the government because of his Nuer ethnicity by the Dinka government who will also treat him with suspicion as a returnee from a foreign country. The authorities will not protect him. He also states he will be unable to obtain the medical care and treatment he needs for asthma. He has had tuberculosis twice and is at higher risk of contracting COVID and other medical issues due to his lung condition. He injured his shoulder and has three screws in his shoulder, he does physical exercises to strengthen his shoulder. If anything were to happen to his shoulder he would be unable to access surgery or other medical treatment in South Sudan.
Submissions for the Applicant refer to the report of the United States Department of State on South Sudan from 2024, and recent reports of a surge in violence. Reports provided by Human Rights Watch and other humanitarian agencies to the United Nations also report gross violations of human rights and international humanitarian law which include extrajudicial and other unlawful killings. It is submitted that there is a risk of further inflaming tension between Nuer and Dinka communities, however the quote provided does not specifically mention ethnic tension.
I accept that the circumstances in South Sudan are, as submitted, fluid, unstable and currently dangerous. The fluid nature of these circumstances, and the lack of information that ties these tensions specifically to the Applicants circumstances means that it is appropriate to defer this complex assessment to the consideration of his application for a protection visa.
The Applicant also submits that while his ethnicity results in him being eligible for citizenship of South Sudan, he is not currently a citizen and therefore is de jure stateless. This is a matter which can be considered in his application for a protection visa.
Submissions on behalf of the Applicant invited me to consider that a protection finding is likely to be made, and that as a result the Applicant would be granted a BVR and face potential removal to Nauru. This turns on whether a protection finding is made in the course of his protection visa application. If his visa application is refused, it is at this time the legal consequences, including the grant of a BVR or any potential removal to a third country, falls for consideration. To do so at this earlier stage involves a high degree of speculation about the outcome of his application for a protection visa.
The legal consequence of the decision is that the Applicant will remain in immigration detention until his application for a protection visa is finally determined.
The legal consequences of the decision, including the uncertainty regarding his ongoing visa status and ongoing detention pending the consideration of his protection visa application, weight moderately in favour of revoking the cancellation of his visa.
Extent of impediments if removed
The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia. This is to take into account the Applicant’s:
(a)Age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is now approximately 40 years of age. He has had active tuberculosis on two occasions and has asthma. He is understandably fearful of the effects of contracting COVID given his lung conditions. The Applicant stated he will be unable to obtain medication in South Sudan.
He has had surgery to his shoulder and states if anything were to happen to the screws in his shoulder he would be unable to obtain treatment in South Sudan, however has also said he is fit for employment which requires manual labour, such as welding, in Australia. I consider he is capable of being employed, however the existence of suitable employment in South Sudan is unknown but likely to be very limited given the reports of South Sudan’s poor economic condition.
The 2016 DFAT Country Information Report on South Sudan provided by the Applicant reports that South Sudan’s population has extremely poor access to health care. While this report is now 9 years old, I accept that treatment and medication for the Applicant’s condition is unlikely to be available.
The Applicant speaks Nuer and will not have a language barrier. He left what was Sudan as a teenager and states he does not have any family support in South Sudan.
The combination of the circumstances in South Sudan, the Applicant’s health and the lack of social support result in this consideration weighing heavily in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant plans to get a job if released from immigration detention and both his brothers say they can assist him to get a job, there is no other information before me to show that Australian business interests will be affected by this decision. This consideration does not weigh in favour of or against revoking the cancellation of his visa.
CONCLUSION
The Applicant has family ties in Australia with his mother, sister and two brothers who will support him if he is released from immigration detention. He plans not to relapse into alcohol use and to undertake qualifications in welding or obtain a job through his brothers, however these assurances must be viewed with some caution given he gave similar assurances when his visa was cancelled in 2019. He has minor nieces and nephews in Australia and is involved in their activities and lives when he is in the community.
The Applicant has recently engaged in the Men’s Behaviour Change program which ran for 6 months, drug and alcohol courses, and has undertaken some counselling for past trauma in 2023. The security and political situation in South Sudan is unstable and the Applicant fears that he will be harmed if he returns due to his Nuer ethnicity, his father’s involvement in the civil war, his lengthy absence and perceived wealth from being in Australia, and his mental and physical health. He will remain in immigration detention until his protection visa is finally determined which imposes an additional hardship on him and his family. The degree of impediments he will face if returned to South Sudan attracts a heavy weight in favour of revoking the cancellation of his visa.
However, he also has a long and extensive criminal history and has had little regard for community corrections orders, suspended sentences and bail. He has breached family safety notices against two different partners. His visa was previously cancelled for the same type of offence as that which led to this cancellation, and the previous cancellation of his visa did not prevent him reoffending in the same way. That the type of offending which resulted in the cancellation of his visa involved family violence, which is itself a separate consideration in the Direction, adds a degree of gravity to this repeated conduct. His relatively recent engagement in rehabilitation does not assure me that the risk to the community has lessened during his most recent period of imprisonment and detention.
Overall, the weight attached to the protection of the Australian community, family violence committed by the Applicant and the expectations of the Australian community, outweighs his ties to Australia, the best interests of minor children, the legal consequences of the decision and the extent of impediments if removed.
As a result, another reason the original decision should be revoked has not been established for the purposes of s 501CA(4)(b)(ii).
As the Applicant does not pass the character test as defined by s 501 for the purposes of s 501CA(4)(b)(i) and another reason to revoke the cancellation has not been established for s 501CA(4)(b)(ii) the decision not to revoke the cancellation of the visa is affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one hundred and eighty one (181) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Millar.

...........................[SGND].................................

Associate

Date of hearing:

25 and 26 March, 9 April 2025

Counsel for the Applicant:

Self-Represented

Counsel for the Respondent:

Ms S Thompson
(HWL Ebsworth Lawyers)