VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3502

VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3502 (7 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3697
Re:VNVT
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:7 September 2020
Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides to revoke the decision to cancel VNVT’s visa.
.....[sgd]...................................................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 202 – Global Special Humanitarian visa – South Sudan – substantial criminal record – applicant does not pass character test – another reason why mandatory cancellation should be revoked – serious offending – Direction 79 – protection of the Australian community – non-refoulement obligations – extent of impediments if removed – decision under review set aside and in substitution decision to revoke cancellation
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Nationality Act 2011 (Sudan)
Cases
1910307 (Refugee) [2019] AATA 4673
Ali v Minister for Home Affairs [2020] FCAFC 109 at [103]
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [32]
BDQ19 v Minister for Home Affairs [2019] FCA 1630
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Briginshaw v Briginshaw and Anor (1938) 60 CLR 336
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
DYY18 v Minister for Home Affairs [2019] FCA 1901
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 374 ALR 601
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
GBV18 v Minister for Home Affairs [2020] FCAFC 17
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 178
Hernandez v Minister for Home Affairs [2020] FCA 415
HSCK v Minister for Home Affairs [2019] AATA 4392
Hughes v R [2017] HCA 20
Hughes v R [2017] HCA 20
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
MIAC v SZQRB (2013) 210 FCR 505
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister For Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protectionv BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
Sowa v Minister for Home Affairs [2019] FCAFC 111
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Secondary Materials
Commission on Human Rights in South Sudan, Report to the UN General Assembly February 2018, < Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 Art 33(1) (entered into force 22 April 1954)
Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960)
Department of Foreign Affairs and Trade, Country Brief – South Sudan, online version as at 25 August 2020
Department of Home Affairs, Standard QandA Report South Sudan 20200522142421 – Citizenship (dated 26 May 2020)
Department of Home Affairs, Standard QandA Report South Sudan 20200619130254 – 2018 Peace Agreement – 2020 Unity Government – Militia – Political Violence – Ethnic Violence – Dinka – Neur – Shilluk – Returnees – Internal Displacement – Relocation – Security Situation, dated 22 July 2020
Department of Home Affairs, Standard QandA Report South Sudan: 20190411092354 – Humanitarian Situation in South Sudan – Active belligerents and conduct of hostilities – Security in Juba and other cities – Returnees – Forced conscription and recruitment, dated 28 May 2019
Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
The Office of the United Nations High Commissioner for Human Rights, South Sudan: To achieve lasting peace, localized violence must end, says Bachelet, 20 March 2020, <
World Health Organisation, Tuberculosis – Key Facts, 24 March 2020, < FOR DECISION
Senior Member C. J. Furnell
7 September 2020

In this proceeding, the issue before the Tribunal is whether a discretion conferred by the Migration Act 1958 (the Act) to revoke the decision to cancel VNVT’s Class XB Subclass 202 - Global Special Humanitarian visa should be exercised.
For reasons that follow, I have decided that it should be.
BACKGROUND
On 22 August 2019, VNVT’s visa was subject to mandatory cancellation.[1]
[1] G23. References to “G” and “SG” are references to documents, and supplementary documents, provided by the Respondent under s 501G of the Act.
The cancellation was mandatory because, under s 501(3A) of the Act, a delegate of the Minister was satisfied that VNVT:
·did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and
·was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[4]
[2] As defined in the Act, s 501(7).
[3] The Act s 501(7)(c).
[4] G10.
VNVT made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[5]
[5] G8, with attachments G9-G21.
As a result, under the Act, the Respondent could have revoked the decision to cancel VNVT’s visa if satisfied that he passed the character test or that there was another reason why the visa cancellation decision should be revoked.[6]
[6] The Act, s 501CA(4).
On 9 June 2020, however, a delegate of the Respondent decided not to do so.[7]
[7] G2.
VNVT applied to the Tribunal for review of that decision on 18 June 2020.[8]
[8] G1: having received notice of the decision on 15 June 2020; G1,11.
In conducting this review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[9] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that VNVT passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[10]
[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
[10] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].
VNVT accepted that he does not pass the character test.[11]However, he submitted that there is another reason why the visa cancellation decision should be revoked.
[11] G2,13; G16-120
As is apparent from my decision in this matter, I have accepted that submission.
Material before the Tribunal
In arriving at that decision, I have had regard not only to the submissions made and evidence adduced at the hearing of this proceeding, but also to documentary material lodged with the Tribunal prior to the hearing.
That documentary material is extensive. It comprised:
(a)Documents (and supplementary documents) provided by the Respondent under s 501G of the Act (which I refer to as the “G” and “SG” documents, respectively);
(b)The Respondent’s statement of issues, facts and contentions of 19 August 2020 (R SFIC);
(c)Bundle of Adult Parole Board Victoria notes and letters;
(d)Prison work assessment of 24 June 2020;
(e)Prison urine test result of 29 January 2020;
(f)Pathology results of 16 July 2020;
(g)IHMS clinical handover summary of 27 June 2020;
(h)IHMS fitness to travel assessment of 29 June 2020;
(i)Undated induction mental health screen;
(j)K10 Kessler psychological distress scale report of 19 July 2020;
(k)Mental health assessment of 19 July 2020;
(l)IHMS clinical records;
(m)IHMS health transfer summary;
(n)IHMS self-administration of medication risk assessment;
(o)IHMS drug and alcohol induction screen of 27 June 2020;
(p)St Vincent's Hospital Discharge summary;
(q)Letter of 14 August 2020 from Selba Gondoza Luka of Afri-Aus Care Inc;
(r)Letter of 14 August 2020 from Kuol Riek, medical scientist;
(s)Statement of VNVT of 17 August 2020;
(t)Letter of 20 August 2020 from Reverend Deacon George Piech Meat of St Mary’s parish Dandenong;
(u)Applicant’s tender bundle of 511 pages (the “tender bundle”);[12]
(v)'South Sudan: 20200619130254 – 2018 Peace Agreement – 220 Unity Government – Militia, – Political Violence – Ethnic Violence – Dinka – Nuer – Shilluk – Returnees – Internal Displacement – Relocation – Security Situation', Country of Origin Information Services Section (COISS), 22 July 2020, 20200722165619;
(w)Sudan, South Sudan 20200522142421 – Citizenship ', Country of Origin Information Services Section (COISS), 26 May 2020, 20200526134707;
(x)'South Sudan: 20190411092354 - Humanitarian Situation in South Sudan - Active belligerents and conduct of hostilities - Security in Juba and other cities - Returnees - Forced conscription and recruitment', Country of Origin Information Services Section (COISS), 28 May 2019, 20190528163444;
(y)‘South Sudan - Situation Report', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 11 October 2019, 20191014135215;
(z)UNHCR Position on Returns to South Sudan - Update II', UNHCR, 18 April 2019, 20190429190315 (UNHCR April 2019 report);
(aa)Undated summary of offences and relevant material in G documents.
[12] Comprising some material otherwise provided but also submissions and copies of material said to be relevant to the consideration concerning the best interests of children plus the “other considerations”, especially the non-refoulement consideration
In addition to that material, at the hearing of this proceeding, VNVT called to give evidence not only himself but also his mother (who I will refer to as Ms M), his brother (who I will refer to as Mr B), Ms Selba Gondoza Luka, Mr Kuol Riek, Reverend Deacon George Piech Meat and Mr Ter Yul Yoa.
Background facts[13]
[13] These facts are largely derived from a personal circumstances form apparently completed by VNVT in August or September 2019-G9-75
VNVT was born in 1984[14] near Malakal in what is currently South Sudan. With his uncle (who I will refer to as Mr U), VNVT moved to Khartoum, Sudan in around 1997 (aged 13) and then to Egypt where he spent around two years before leaving for Australia. He arrived in Australia on 30 December 2004.[15]
[14] Or possibly 18 November 1984-see G17-158; G19-167
[15] G22-compare G9-78 where VNVT suggests he arrived in 2003
VNVT’s father was killed in the war which ultimately resulted in the creation of South Sudan,[16] it having seceded from Sudan in 2011.
[16] Statement of VNVT of 6 December 2019-G13-104
After the war with Sudan, South Sudan descended into a civil war along tribal lines, the combatants being members of the Dinka and Nuer tribes.
VNVT is of Nuer ethnicity. He is single and has no children.[17] His mother, sister, two brothers, uncle, two cousins and several nieces or nephews all reside in Australia. He has no other family apart from a sister living in Egypt.[18] His mother is an Australian citizen,[19] as is his uncle[20] and sister.[21]
[17] Certain of the material before me suggests that VNVT has two children but this was denied by VNVT-see SG11-213,219, 234
[18] G19-167
[19] G10-93
[20] G10-94
[21] G10-95
VNVT submits that his mother depends on him. He drives her around to community events and assists financially to meet the costs of raising his siblings. He considers himself to be the leader of his family.
As submitted by the Respondent, VNVT “…has a long and consistent history of habitual offending that began approximately two years after his arrival in Australia and has continued despite multiple terms of imprisonment and court orders.”[22]
[22] R SFIC [4]
As to VNVT’s history of offending, I note that:
(a)In October 2006 (roughly 22 months after his arrival in Australia), on a charge of unlawful assault, he was fined $300, without conviction.
(b)In December 2006, on charges of failing to state name and address and resisting police, he was fined $600, without conviction.
(c)In May 2007 he was convicted and placed on a community-based order in relation to charges of theft from a shop (three charges), using threatening words in a public place, possessing a dangerous article, assaulting police and resisting police.
(d)In July 2007 he was convicted of being drunk in a public place, possessing ammunition without a licence, wilfully damaging property, failing to answer bail (three charges) and resisting police, for which he was fined $100 and sentenced to a term of imprisonment of one month (sentence suspended).
(e)In October 2007 he was convicted of being drunk in a public place (three charges).
(f)In February 2008 he was convicted of failing to comply with his community-based order of 16 May 2007 for which he was sentenced to a term of imprisonment of three months (sentence suspended).
(g)Also in February 2008 he was convicted of wilfully damaging property, possessing a controlled weapon without excuse, resisting police and unlawful assault (two charges) for which he was sentenced to a term of imprisonment of four months (sentence suspended).
(h)In January 2009, on charges relating to a failure to leave licensed premises and the provision or failure to provide certain information, he was fined $400 without conviction.
(i)In May 2009, on a charge of wilful damage, he was fined $300 without conviction.
(j)In April 2010 he was convicted of assaulting or obstructing a police officer (two charges) and fined $900.
(k)Also in April 2010 he was convicted of committing a public nuisance and fined $200.
(l)In May 2010 he was convicted of committing a public nuisance and fined $1000.
(m)In September 2010 he was convicted of committing a public nuisance and fined $400.
(n)In March 2011 he was convicted of failing to obey an order given by an officer and fined $200.
(o)In September 2011 he was convicted of fighting in a public place and disorderly behaviour in a public place and fined $600.
(p)In March 2013 he was convicted of a driving offence, his licence was disqualified for a month and fined $500.
(q)In April 2014 he was convicted and placed on a community-corrections order in respect of charges of dealing in property suspected to be the proceeds of crime, failing to answer bail (four charges), recklessly causing injury, intentionally damaging property and theft.
(r)In July 2015 he was convicted of causing damage to a police gaol and failing to answer bail (three charges) and fined, in total, $500.
(s)In August 2015 he was convicted of acting in a way prejudicial to the security, good order and management of a gaol, failing to answer bail (two charges) and contravening his community correction order of 9 April 2014 for which he was fined $500, sentenced to imprisonment for two days and sentenced to a further term of imprisonment of 50 days (sentence suspended).
(t)In August 2016 he was convicted of contravening a family violence interim intervention order and fined $500.
(u)In September 2016 he was convicted of intentionally damaging property, contravening a conduct condition of bail, contravening a family violence interim intervention order and assault and sentenced to five months of imprisonment and placed on a community correction order.
(v)In February 2017 he was convicted of contravening a family violence intervention order “INT harm/fear.”
(w)In August 2018 he was convicted of contravening a family violence final intervention order (two charges), failing to answer bail, contravening a family violence intervention order “INT harm/fear” (two charges), intentionally causing injury (two charges), assault and committing an indictable offence while on bail for which he was sentenced to 10 months’ imprisonment and placed on a community correction order.
(x)In June 2019 he was convicted of contravening the community correction order made on 29 August 2018, contravening a family violence final intervention order and assault for which he was sentenced to multiple concurrent terms of imprisonment amounting to 13 months.[23]
[23] Australian Criminal Intelligence Commission check results report of 20 August 2019-G3,33
This offending entailed:
(a)At least seven convictions for assault.
(b)Four convictions for resisting police, two convictions for assaulting or obstructing police, one conviction for failing to obey an order given by an officer and one conviction for damaging a police gaol.
(c)11 convictions for failing to answer or failing to observe a condition of bail.
(d)Six convictions for contravening a family violence final or interim intervention order.
(e)Three convictions for contravening a community based or community correction order.
Including suspended sentences, VNVT has been sentenced to imprisonment on seven occasions.

While VNVT’s offending occurred primarily in Victoria, it also took place in Western Australia, South Australia, Queensland and the Northern Territory.
The circumstances in which VNVT contravened the community correction order made in August 2018 are described in sentencing remarks of 3 June 2019 of Her Honour Judge Martin (a magistrate of the Victorian Magistrates Court).[24] VNVT was said to have failed to engage in the treatment component of the community correction order by attending appointments erratically and under the influence of alcohol (albeit that there would seem to have been failures in the delivery of the treatment provided for in the order).[25] Her Honour indicated that the sentence imposed in August 2018 was not as long as might otherwise have been the case because of VNVT’s apparent willingness to undergo rehabilitation, but then “…within no time, you were reporting under the influence, missing appointments and generally making it very difficult for Corrections to help you. It may be that they delayed but reading the report, and hearing what’s been said today, you didn't take up the opportunity to -rehabilitate yourself.”[26]
[24] G4-39.
[25] G4-44, 47 and 48
[26] G4-58
Judge Martin characterised as “serious” the offending that comprised and led up to the assault and family violence final intervention order contravention for which VNVT was convicted in June 2019”.[27] To VNVT Her Honour said “You've .got a shocking prior history, as I said last time, much of it involves family violence, much of it involves the same victim, and when I read the summaries of the matters I have to resentence on, your violence towards her is shocking and it deserves, instead of another rehabilitative order, if I was sentencing in the beginning, it would've been a. much longer period of imprisonment.”[28]
[27] G4-57
[28] G4-58
The Respondent urged that I adopt the description of the relevant events (and of other conduct of VNVT) found in police informant statements and incident reports.[29] As the Respondent submitted, they are contemporaneous records the accuracy of which was largely not disputed by VNVT (given that, when taken to a number of them, his response was to the effect that he could not remember the events as he was intoxicated at the time). Nevertheless, I attribute little probative value to much of the police material. In large part, that material comprises representations that are prejudicial hearsay made by persons not called to give evidence. Moreover, to do otherwise would run counter to the principle derived from the Briginshaw[30] decision, a principle applicable in the context of Tribunal decision-making.[31] As so applied, the more serious the allegation, the less likely it is that the Tribunal ought be satisfied of its validity on the basis of “inexact proofs, indefinite testimony or indirect inferences.”[32] Much of the police material before me constitute proofs, testimony and inferences of that type.
[29] G6-64,65
[30] Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[31] Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37]; LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw v Briginshaw [1938] HCA 34; see the discussion of these cases in HSCK v Minister for Home Affairs [2019] AATA 4392 at [141]-[147]; see also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41].
[32] Briginshaw at 361-362 where it was suggested that a state of satisfaction ought not be “… attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
There are, however, some aspects of that material which I do take into account. For instance:
a.The informant in respect of the charges for which VNVT was convicted in June 2019 stated that the victim of VNVT’s offending was his partner and that his assault on her was the 23^rd police recorded incident between them over the five year period of their relationship.[33] When asked about this at the hearing of this proceeding VNVT’s response was to acknowledge that police involvement in incidents between him and his former partner meant that they (the police) had “come over and over”.
b.That informant stated that VNVT had blamed his former partner for the incidents that gave rise to those charges.
c.In the context of police having frequent contact with VNVT, the informant stated that VNVT “is always alcohol affected”.
[33] SG12-332
It is also clear from the police material that VNVT’s difficulties were not confined to his former partner. In 2014, he is alleged to have stabbed his uncle with a pitchfork while intoxicated.[34] In August and October 2014, police were called to VNVT’s mother’s residence as a result of conflict between her and VNVT, again in the context of VNVT being intoxicated.[35] In 2010, Queensland police were called in respect of an incident alleged to have involved a fight between VNVT and his cousin.[36]
[34] SG12-405
[35] SG12-403, 401
[36] SG4-78
Family members were not, however, the only ones affected by incidents involving VNVT (and I refer, for instance, to his public nuisance conviction in April 2010 in Queensland,[37] and his September 2011 conviction in the Northern Territory for fighting in a public place[38]).
[37] SG4-75
[38] SG6-97
VNVT’s offending is said by him to have occurred in a context where he was drinking heavily, occasionally taking sleeping tablets, had witnessed terrible things and had nightmares about people being killed. In his IHMS drug and alcohol induction screen of 27 June 2020, VNVT stated that he had been a heavy drinker in the period from 2006 to 2018 and a weekly user of marijuana. In November 2017, he is said to have told a remand centre nurse that he only drank alcohol and did not use drugs, having stopped using cannabis two years earlier.[39] I note, however, that in substance overview material of July 2020, it was said that VNVT was a daily user of marijuana, had last used it in March 2019 and that he had used ICE.[40] His use of ICE was also acknowledged at the hearing of this proceeding.
[39] SG11-213
[40] SG11-245
DOES VNVT PASS THE CHARACTER TEST?
I am not satisfied that VNVT passes the character test.
Under s 501 of the Act, a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[41] VNVT has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[42]
[41] s 501(6)(a) Act.
[42] s 501(7)(c) Act.
In particular and as I outlined earlier, in June 2019, VNVT was sentenced to an aggregate term of imprisonment of 13 months.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
I am satisfied that there is another reason why the decision to cancel VNVT’s visa should be revoked.
In arriving at that state of satisfaction I have sought to (as I am required by s 499 of the Act to) comply with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Compliance with Direction 79 requires that I consider whether to revoke the decision to cancel VNVT’s visa decision “given the specific circumstances of the case.”[43] It also requires that I take certain considerations (where relevant)[44] into account, informed by certain principles.[45]
[43] Direction 79, cl 6.1(3) and 13(1).
[44] Direction 79, cl 8(1).
[45] Direction 79, cl 7(1).
Those principles are:[46]
[46] Direction 79, cl 6.3.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[47]
[47] Direction 79, cl6.2(3).
I turn now to the considerations which I am required by Direction 79 to take into account.
Considerations: overview
The relevant considerations are those set out in Part C of Direction 79.
Part C is divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[48]
[48] Direction 79, cl13(2).
The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[49]
[49] Direction 79, cl14(1).
The primary considerations are generally to be given more weight than the other considerations[50] and one or more primary considerations may outweigh other primary considerations.[51]
[50] Direction 79, cl8(4).
[51] Direction 79, cl8(5).
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration (so that, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations).[52]
[52] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32]
Protection of the Australian community
The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[53]
[53] Direction 79, cl13.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations being, in the circumstances, the nature and seriousness of VNVT’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[54]
[54] Direction 79, cl13.1(2).
Nature and seriousness of conduct
In summary, VNVT’s conduct to date has been very serious. I have so characterised VNVT’s conduct taking into account the factors which Direction 79 requires be taken into account in considering the nature and seriousness of a person’s conduct. Application of those factors requires that I characterise VNVT’s conduct in this manner (something I would, in any event, have done). His offending has involved crimes of violence against women and crimes against police officers, has been frequent and has attracted multiple sentences of imprisonment. As I mentioned earlier, in sentencing remarks in 2019, Judge Martin characterised VNVT’s history of offending as shocking.
Nevertheless, while I characterise VNVT’s conduct as very serious, in the context of this matter where (as will be seen later) there are non-refoulement obligations owed in respect of VNVT, I need to go somewhat further given the requirement under Direction 79 to carefully weigh non-refoulement obligations against the seriousness of offending.[55]
[55] Direction 79, 14.1(6)
As I have said, in light of the factors which Direction 79 requires that I take into account (which I will outline shortly), VNVT’s offending has been very serious. There are, however, gradations of very serious offending. For example, on the spectrum of very serious offending, I suspect that premeditated murder and rape would likely fall towards one end of the spectrum followed, perhaps, by intentionally causing serious injury. As I have previously described it, however, VNVT’s offending tends towards the lower end of that spectrum (albeit not at the low end, given the frequency of it and its cumulative effect). I note in this regard, that there is no suggestion of any member of the community suffering any permanent physical harm as a result of his offending.
I turn now to the factors which Direction 79 requires that I take into account in considering the nature and seriousness of VNVT’s conduct.
Those factors include:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.[56]
[56] Direction 79 cl13.1.1(1)(a).
Given his seven assault convictions, violence has been a significant component of VNVT’s offending. Put shortly, VNVT’s offending involves crimes of violence and as such, it is required by Direction 79 to be, and is, viewed very seriously.
So viewed, VNVT’s conduct falls within at least one of the general principles that forms part of the framework within which I should, under Direction 79, approach my task, being the principle that refers to an expectation of the Australian community that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes.
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[57]
[57] Direction 79 cl13.1.1(1)(b).
As is apparent from the description of his criminal history, VNVT’s offending involved crimes of violence against women, in particular, his former partner. This reinforces the need to regard them as very serious.
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.[58]
[58] Direction 79 cl13.1.1(1)(c).
VNVT’s criminal history includes a number of crimes against police in the performance of their duties (including four convictions for resisting police and two convictions for assaulting or obstructing police). Again, this constitutes another reason to regard his crimes as serious.
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.[59]
[59] Direction 79 cl13.1.1(1)(d).
In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine[60]).
[60] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [202].
In this matter, as was the case in Bartlett and Minister for Immigration & Border Protection[61], VNVT “…contrived to continue his offending in circumstances where he … received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail, probation…”.
[61] [2017] AATA 1561 at [32]
In particular, while his initial offending in Australia attracted community correction orders and fines, VNVT ended up being sentenced to imprisonment on seven occasions.
The guidance provided by the sentences imposed on VNVT is to the effect that his offending has been serious. The imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[62] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[63]
[62] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[63] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[64]
[64] Direction 79 cl13.1.1(1)(e).
As revealed by his convictions, VNVT’s offending has been frequent, sustained and repetitive, albeit that it does not reveal a trend of increasing seriousness.
While no trend of increasing seriousness is revealed, VNVT’s offending does suggest a fundamental lack of respect for Australia’s law enforcement framework (of relevance to that general principle that forms part of the framework within which I should, under Direction 79, approach my task, being the principle that refers to an expectation of the Australian community that non-citizens will respect important institutions, such as Australia’s law enforcement framework). In this regard and as I indicated earlier, VNVT has been convicted of four charges of resisting police, two charges of assaulting or obstructing police, one charge of failing to obey an order given by an officer, one charge of damaging a police gaol, eleven charges of failing to answer or failing to observe a condition of bail, six charges of contravening a family violence final or interim intervention order and three charges of contravening a community based or community correction order.
(f)The cumulative effect of repeated offending.[65]
Neither party made any submissions directed to this particular factor. I do note, however, that the sustained and repetitive offending of VNVT would, cumulatively, have resulted in a significant and increasing amount of community resources being consumed as well as a greater adverse community impact, given that the more VNVT offended the more members of the community came to be directly affected by his conduct.
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.[66]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[67]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding, because it does not appear that VNVT was formally warned in the above terms. I do mention, however, that I consider VNVT’s claimed lack of awareness of the risk to him of removal from Australia to be of relevance to my assessment of the risk of recidivism, a matter to which I will return.
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.[68]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
[65] Direction 79 cl13.1.1(1)(f).
[66] Direction 79 cl13.1.1(1)(g).
[67] Direction 79 cl 13.1.1(1)(h).
[68] Direction 79 cl 13.1.1(1)(i).
The risk to the Australian community

I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community consideration; the risk to the community should VNVT commit further offences or engage in other serious conduct.
In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should VNVT engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[69]
[69] Direction 79 cl13.1.2(1).
As to the nature of harm to the Australian community should VNVT commit further offences or engage in other serious conduct, I refer to the comments I made earlier in the context of considering the cumulative effect of his repeated offending.
As to the nature of harm to individuals should VNVT commit further offences or engage in other serious conduct, assuming offending of the type previously engaged in by VNVT, it would entail physical harm to victims of his violent conduct together with the possibility of associated psychological harm. That harm would befall random members of society as well as family members and partners.
As to the likelihood of VNVT committing further offences or engaging in other serious conduct, on the material before me I not satisfied that it is unlikely but nor am I satisfied that it is likely. Instead, I am satisfied that the risk of him re-offending is a real one which is not low.
The evaluation of likelihood or risk of re-offending usually entails at least two steps.
First, regard is had to the person’s past conduct. As was said in Guo “… proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”[70]
[70] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574.
There is, however, no direct analytical bridge between a finding that past conduct has been criminal and a conclusion that there is a risk of re-offending. Establishing that a particular type of conduct has been engaged in by a person is not a sufficient basis for a finding that there is a risk of that type of conduct again being engaged in by the person. [71] According to Mortimer J in Splendido[72] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. More needs to be shown if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[73].
[71] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65] “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
[72] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[73] See Hughes v R [2017] HCA 20 at [70-72] per Gageler J (in dissent).
A second step is required. The nature of that second step is revealed by decisions in cases such as Guo.
In Guo it was said that“…[t]he extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”[74]
[74] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.
In Hughes[75] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated at [154] that … “[e]vidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence…”.
[75] Hughes v R [2017] HCA 20 at [154].
In Splendido[76] Mortimer J said that “[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[76] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
Hence, the second step in assessing risk in this case entails identifying facts about VNVT’s circumstances, or about the nature and circumstances of his past conduct, that rationally affect the assessment of the risk of his re-offending.
One element of VNVT’s circumstances of relevance is his remorse for his past conduct. A person truly remorseful for certain conduct is less likely to repeat it.
In material lodged with the Tribunal[77] and at the hearing of this proceeding, VNVT frequently, and (I accept) sincerely, expressed remorse for his past conduct. He is said to be extremely remorseful.[78] As I see it, however, that remorse needs to be coupled with an acceptance of personal responsibility for that conduct if VNVT is to be truly committed to the making of the personal changes necessary to avoid that conduct recurring (changes which I describe later). In this regard, I suspect that any insight VNVT has as to his personal responsibility for his past criminal conduct is somewhat qualified. In his statement in December 2019[79], he seemed to allocate blame for the crimes of which he was convicted in June 2019 to his former partner and to the presiding magistrate[80] (a view he might well continue to hold, at least in relation to his former partner,[81] albeit that he seems to have stepped back somewhat from his December 2019 statement[82]).
[77] See, for example, G17-statement of VNVT of 22/5/20
[78] G13-121
[79] G13-104
[80] In his December 2019 statement he says in relation to his convictions in 2019 that he tried to mitigate the issue but was taken advantage of in his own home, the police were used to persecute the rightful occupant (him), he feels he was set up for an unfair and biased opinion of the magistrate, the courts and “Corrections” failed consistently and completely to fulfil their obligations to help him and the facts seem to have then been entirely ignored by the magistrate.
[81] In May 2020 VNVT reported to have told a registered nurse, when speaking of his imprisonment, that “[m]y partner put me here"- SG11-181-see too St Vincent’s Hospital discharge summary concerning treatment on 22 June 2020 at a prison.
[82] In May 2020 VNVT said that he had re-read the magistrate’s sentencing remarks and feels really bad about what he did- G17-160
Nevertheless, while VNVT’s acceptance of personal responsibility may be qualified, this is not to say it is non-existent. I do accept as sincere VNVT’s expressions of sorrow for the way he behaved and his acceptance of the need for him to make personal changes.
Even if VNVT lacks insight into his personal responsibility for the position he now finds himself in, I do accept that he is very concerned about the risks he now faces as a result of his criminal convictions, and is alive to the potential consequences for his right to remain in Australia were he to be released into the community and continue to engage in criminal conduct. In this regard, VNVT is said not to have been aware that his criminal conduct could lead to cancellation of his visa[83] and has expressed concern as to what he characterises as “the recent and very serious threat of being extradited to my likely death.”[84] It seems to me that VNVT’s recognition of the threat of removal from Australia that flows from him engaging in criminal conduct ameliorates the risk of him re-offending.
[83] G16-123
[84] G13-104
Offset against this, however, is the nature and circumstances of VNVT’s past offending. It has been frequent, repetitive and persistent over a long period, commencing relatively shortly after his arrival in Australia and continuing until shortly before his incarceration. This suggests ingrained habits, habits that mitigate against a conclusion that the risk of VNVT re-offending is low.
That past offending would appear to have been almost always (if not always) associated with substance abuse, in particular, excessive alcohol consumption. According to VNVT, drug and alcohol dependence has been the root cause of his past offending[85] with alcohol dependency being a central factor in his past behaviour.[86]
[85] G17-159
[86] G17-160
Hence, despite VNVT’s frequent, repetitive and persistent history of offending, I might have been able to conclude that the risk of him re-offending was low if I could be confident that VNVT’s problems with alcohol would not resurface were he to be released into the community. I am not, however, confident of this.
While he is currently abstaining from alcohol, that abstinence is enforced and previous periods of enforced abstinence (in the context of him serving sentences of imprisonment) have not prevented VNVT from again slipping into what would appear to be a cycle involving excessive alcohol consumption and associated criminal conduct.
On VNVT’s behalf it is submitted that he “has undertaken various activities to turn his life around and address the circumstances that led to his offending.”[87]
[87] G16-123
Included in the activities identified is VNVT’s participation in a number of programs characterised as “intensive behavioural intervention programs.”[88] Those “intensive” programs would appear to comprise:
(a)a three-hour drug and alcohol course conducted in 2019 at a remand centre;[89]
(b)a three-hour anger management program completed in June 2019;[90] and
(c)a 24-hour drug and alcohol program conducted over six weeks in early 2020.[91]
[88] G16-121
[89] G9-85
[90] G14-108
[91] G14-109
I am sceptical of the potential for participation in programs such as these to alter what, from VNVT’s history of offending and the circumstances of that offending, would appear to be ingrained habits, habits with which he persisted despite their patent role in his relationship, family and broader community troubles.
That scepticism is reinforced when regard is had to what I suspect was VNVT’s mandatory participation in various programs in the past. In this regard I refer to
(a)Orders in August 2018 which would appear to have required that VNVT participate in a Men’s Behaviour Change Program and undergo assessment and treatment (including testing) for alcohol abuse.[92]
(b)Orders in September 2016 which would appear to have required that VNVT participate in a Men’s Behaviour Change Program and undergo assessment and treatment (including testing) for alcohol abuse.[93]
(c)Orders in May 2007 which would appear to have required that VNVT undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatments and then, after assessment, to participate in a cognitive skills program and alcohol treatment and any other program that may assist him with his English or cultural awareness issues.[94]
[92] SG9-128, 129
[93] SG9-149
[94] SG12-320
Clearly, participation in these earlier programs did not operate to prevent VNVT from offending (noting, however, VNVT’s evidence to the effect that those programs were not substantive).
VNVT contends that things are different now. He says that he has come to realise that his substance abuse has been a result of the trauma he suffered as a child in South Sudan and the difficulties he encountered in moving to and adjusting to life in Australia. He says he has undergone counselling which helps him address these underlying issues and expresses a desire to continue with counselling.[95] In addition, he says he will join AA (which I take to mean Alcoholics Anonymous) on release from detention.[96] At the hearing VNVT said he was 100% positive that he will not go back to alcohol. He does not consider that he is a risk of re-offending because he had developed as a person.[97]
[95] G17-160
[96] G17-161
[97] G9-85
As evidence of that development, VNVT says he is trying to change the way he behaves and has kept out of trouble while incarcerated.[98] Some support for this is found in a prison work assessment of 24 June 2020. It refers to VNVT’s work as a morning cleaner in the kitchen. VNVT is said to be a conscientious worker performing duties to a high standard. I do note, however, that in August 2018 VNVT is said to have looked at a staff member and stated that “if you ever speak to me again I will f…ing kill you.”[99]
[98] G9-88; G13-105
[99] SG10-165
Further evidence of VNVT’s development can be found in the fact that, while incarcerated, he has taken the opportunity to achieve competency in a number of largely employment related subjects. In this regard, I mention that in 2019 VNVT achieved competency in four units of a Certificate II in cleaning program, and in one unit of a Certificate I in access to vocational pathways program, run by Bendigo TAFE.[100] In 2020, he achieved competency in five units of a Certificate II in warehousing program, also run by Bendigo TAFE.[101]
[100] G14-110, 111
[101] G14-112
On VNVT’s behalf it is said that his “active engagement with support and education programs has enabled him to develop coping mechanisms to ensure that he does not re-offend.”[102]
[102] G16-122
I accept that VNVT’s engagement with such programs over the last couple of years may have assisted his development. I also accept that VNVT was sincere when he said at the hearing of this proceeding that he now recognised where the source of his problems lay and was sincere in expressing his intent not to revert to alcohol when freed in the community. I am not satisfied on the material before me, however, that the extent of any personal development VNVT may have experienced over the last couple of years has been such as to justify either:
(a)me being confident that he would honour his present intent not to revert to alcohol; or
(b)a conclusion that the risk of him re-offending has been materially ameliorated.
If VNVT were to be released into the community, it is clear there would be a support network available to him that would assist him to engage in pro-social activities and avoid anti-social activities. I mention in this regard the support offered by:
(a)Family members such as VNVT’s mother,[103] brother[104] and sister;[105]
(b)The Nuer Community in Victoria Inc through its president, Mr Ter Yul Yoa, who suggests that the community would offer VNVT any support he needed;[106]
(c)Ms Selba Gondoza Luka of Afri-Aus Care Inc, who says that her organisation offers to ex-offenders such as VNVT holistic, individualised, culturally-appropriate care that may involve counselling services and treatment by a general practitioner, a qualified mental health clinician, psychologist and selected community members;[107]
(d)Mr Kuol Riek, medical scientist, who suggests that the Nuer community and Fangak community will provide support to VNVT;[108]
(e)Reverend Deacon George Piech Meat of St Mary’s Parish Dandenong who says he will offer spiritual support and guidance to VNVT if he is released into the community and will be in constant contact with him “to ensure that he is on the right path”.[109]
[103] G19
[104] G20
[105] G21
[106] G18
[107] Letter of 14 August 2020
[108] Letter of 14 August 2020
[109] Letter of 20 August 2020
I do not doubt the worth of the support offered by these individuals and organisations. In terms of the risk of VNVT re-offending, however, the weight I give this support network is diminished by the fact that it would not appear to be of recent origin. As it has not been effective in the past to prevent VNVT offending, it is difficult to be confident about its future effectiveness in that respect.
I note that VNVT suggests that, were he to be released into the community, there would be no chance of him interacting with his former partner.[110]
[110] G17-160
While no longer associating with his former partner would address the risk to her of VNVT re-offending, it would not address the risk of him re-offending. First, as previously outlined, much of the offending that VNVT has engaged in did not involve VNVT’s former partner. Second, a preparedness to assault one’s partner suggests a preparedness to assault any partner, especially where (as here) the perpetrator’s violent conduct has not been confined to one person only.
Conclusion
I have found that VNVT has committed serious crimes and that his offending has been frequent, repetitive, sustained and indicative of a lack of respect for Australia’s law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework.
As to the likelihood of VNVT committing further offences or engaging in other serious conduct, on the material before me I not satisfied that it is unlikely but nor am I satisfied that it is likely. Instead, I am satisfied that the risk of him re-offending is a real one which is not low.
The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel VNVT’s visa.
The best interests of minor children in Australia
The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
In this proceeding, the only children whose best interests the Tribunal was being asked to take into account are two nieces and a nephew of VNVT,[111] all children of his brother. As at May 2020 one niece was aged three, the nephew was aged two[112] and the second niece was either aged one or an infant.
[111] G16-123
[112] G17-162
On VNVT’s behalf it is said that, if his visa cancellation decision is not revoked, the impact on his nieces and nephew would be profound. It would remove the possibility for them of having a relationship with their uncle.[113]
[113] G16-123
It is also contended that VNVT’s removal from Australia would contravene article 17 of the International Covenant on Civil and Political Rights as it would constitute arbitrary or unlawful interference with VNVT’s family.[114] This contention appears to be based on the premise that VNVT’s release into the community would not pose a risk to the Australian community so that his removal from Australia would be unreasonable. I do not address this contention further given that, as is apparent from my earlier findings, I do not accept the validity of that premise.
[114] G16-124; Tender Bundle 31
In taking a minor’s best interests into account, Direction 79 requires that certain factors be considered, where relevant. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
I attribute little weight to VNVT’s relationship with his nieces and nephew.
That relationship is non-parental. Given VNVT’s incarceration and in the context of his nieces and nephew’s ages, there have been long periods of absence and limited meaningful contact.
VNVT’s evidence at the hearing of this proceeding was that he had only physically interacted with the older niece and his nephew for a period of around five months in 2018 (when, presumably, the niece was aged one and the nephew was an infant).[115] That physical interaction apparently arose when they came to visit him, when VNVT looked after them when his brother went to work (which VNVT said occurred regularly) and when he went to stay with his brother on weekends (which VNVT said occurred sometimes).[116]
[115] This reflects the evidence given by VNVT at the hearing but I note that a Corrections Victoria, comprehensive prison history document, suggests that VNVT was incarcerated for most of 2018. That history records VNVT as being incarcerated in the period 16/9/16 to 9/2/17; 30/11/17 to 25/9/18 and 1/4/19++.
[116] G17-162
While VNVT’s physical interaction with his nieces and nephew may have been limited to a five-month period in 2018 when they were both very young (or were not yet born in the case of the younger niece). VNVT says that he often talks to his nieces and nephew when he calls his mother. That contact would appear to be very limited, however. This is because VNVT contacts his family no more frequently than monthly.[117]
[117] St Vincent's Hospital Discharge summary- On 22 June 2020 at a prison VNVT is said to have reported that he would not contact his family more frequently than monthly as it upsets them.
I note that attributing little weight to VNVT’s relationship with his nieces and nephew is not inconsistent with the approach VNVT took when completing a personal circumstances form in August or September 2019.[118] In that form VNVT was asked to identify, first, all his minor children and second, all other minor children in his life. VNVT’s response was, in both cases, to write “N/A”.[119] Again, when asked to “describe any current impact on the other minor children and/or any likely impact on them in the event of a negative s501 decision outcome (ie. a non-revocation or visa cancellation/refusal decision)” the response was “N/A”.[120]
[118] G9
[119] G9-79, 82
[120] G9-83
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
The extent to which VNVT is likely to play a positive role in his nieces and nephew’s lives depends, in part, on whether he re-offends. If he were to be released into the community and then re-offend, I see it as unlikely that he would play such a role. In this regard, I note my earlier finding that there is a real risk of him re-offending.
If, however, VNVT were to be released into the community and not re-offend I suspect he would play a positive role in his nieces and nephew’s lives, with the extent of that role being, on the one hand, limited given that it would not be parental and, on the other hand, enlarged given the length of time before both his nieces and nephew turn 18. Any such positive role would only be material from the perspective of his nieces and nephew, however, if VNVT was able to enhance substantially his currently limited relationship with them.
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
Insofar as VNVT’s prior conduct has resulted in him being physically removed from his nieces and nephew, the only material before me as to the impact of that conduct comprises, in essence, an assertion that they miss him.
As for the impact of VNVT’s likely future conduct, it depends very much on whether he is released into the community and then re-offends. If he was to re-offend, that impact is likely to be negative, especially if his re-offending occurred at a time when the nieces and nephew were of an age that enabled them to understand more fully what had occurred.
If VNVT were not to re-offend, as I suggested earlier, I suspect that VNVT would have an impact that was positive.
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
When measured against the status quo, VNVT’s separation from his nieces and nephew would have no adverse effect. He has had no physical contact with them other than (in the case of two of them) for a period of five months in 2018. Since then his only contact with them would appear to have been by way of relatively infrequent telephone discussions. It has not been contended that VNVT would be unable to telephone his family from South Sudan.
When measured against what might otherwise have occurred had VNVT been released into the community, however, VNVT’s separation from his nieces and nephew would, to a large extent, deprive them of the opportunity to have a relationship with their uncle and so deprive them of the potentially positive role he could play in their lives.
(e) Whether there are other persons who already fulfil a parental role in relation to the child.
It is clear that VNVT’s brother fulfils a parental role in relation to VNVT’s nieces and nephew. Whether others do so is not revealed in the material before me.
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
Apart from the suggestion that they miss VNVT, the material before me does not reveal the views of VNVT’s nieces and nephew.
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect
There is no evidence of this before me.
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence of this before me.
Conclusion

Overall, my determination is that revocation of VNVT’s visa cancellation decision is in the best interests of each of his two nieces and his nephew. In essence, this is because non-revocation would significantly impair their opportunity to have a potentially positive relationship with their uncle.
Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel VNVT’s visa.
The weight I attribute to this consideration is, however, not significant. This is because the opportunity being impaired by a non-revocation decision only concerns a relationship that is not, and would not be, parental and one that would, in any event, need to be substantially enhanced over that which currently subsists in order for the impairment to be material.
Expectations of the Australian community
The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.
VNVT submits that the Tribunal can identify community expectations applying, for example, humanitarian concerns and suggests that it would be an expectation of the Australian community that indefinite detention not be a proper outcome in the circumstances.[121] VNVT’s submission goes on to refer to Tribunal decisions concerning the means of identifying community expectations, suggesting that they “…should be viewed ‘from the point of view of reasonable members of the community who hold middle-of-the-road views as to migration issues and who do not hold extreme views one way or another.’”[122]
[121] G16-126
[122] Ibid
In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.
Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred, this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[123]
[123] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
In the result:
“…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[124]
[124] FYBR at [101]-[102]
Contrary to VNVT’s submission, Direction 79 does not leave determination of the community’s expectations up to the idiosyncratic tastes of the relevant decision-maker. The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[125]
[125] FYBR at [68].
As VNVT has committed what is regarded in Direction 79 as serious crimes, the expectation which the Australian community is deemed to have in the circumstances is that the decision to cancel his visa not be revoked.[126] Hence, the community expectations consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel VNVT’s visa.
[126] Direction 79, cl6.3(5)
As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in the circumstances of the relevant character assessment. As such, that weight might be said to “undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia.”[127]
[127] Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 at [108].
It is clear that the character assessment to which reference was made in FYBR is one which harks back to Direction 79’s first primary consideration, being based on the “commission of an offence or the risk that an offence will be committed”.
Hence, in this matter, of relevance to such a character assessment are my conclusions concerning the nature of VNVT’s offending and the risk of him re-offending. As I have said, while VNVT’s offending has been very serious, it tends towards the lower end of the spectrum of such offending (albeit not at the low end, given the frequency of it and its cumulative effect). As for risk, while I have found that the the risk of him re-offending is a real one which is not low, I am not satisfied that it is likely that VNVT will commit further offences or engage in in other serious conduct.
In a context where the Tribunal is dealing with matters of a type that attract mandatory visa cancellation under s 501(3A) of the Act, I see these conclusions as being suggestive of a severe, but not very severe, character assessment.
More guidance as to how the particular circumstances of a case might influence the assessment of the appropriate weight to be given to the community expectations consideration is afforded by the general principles of Direction 79, given their role under the Direction in informing the process by which I am to take the consideration into account.
One particular circumstance of this case is that VNVT has resided in Australia for almost all of his adult life, having arrived here aged 20. This circumstance is suggestive of it being appropriate to accord to the community expectations consideration lesser weight than might otherwise be the case given the general principle which suggests that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of his or her life.
Another circumstance of potential relevance concerns a related issue. VNVT has been in Australia almost 16 years. Again, this circumstance might have been suggestive of it being appropriate to accord to the community expectations consideration lesser weight than might otherwise be the case if VNVT had been making a positive contribution to the Australian community. This is because of the general principle which has, as a consideration in the context of determining whether a non-citizen’s visa should be cancelled, the length of time the non-citizen has been making a positive contribution to the Australian community.[128]
[128] Direction 79, cl6.3(7)
On the material before me, however, and assessed on a net, overall, basis, I do not consider that VNVT’s contribution to the community has been positive.
In around September 2019, VNVT listed his positive contributions to the community as working in a warehouse, participating in community meetings, teaching sport to young South Sudanese males and encouraging youth to attend church.[129]
[129] G9-87
VNVT’s comment about working in a warehouse underplays the positive contribution he has made through employment. He apparently began work as a labourer in 2007[130] and, according to him, has maintained steady employment ever since.[131] That employment is said to have involved him being a meat worker in the period 2010 to 2012 and again in 2014, followed in 2016 by a stint as a leather worker, then in in 2017 to 2018 as a chocolate worker and lastly, for around five months ending in March 2019, as a warehouse packer.[132]
[130] G16-120
[131] G17-159-noting that VNVT’s steady employment does not connote permanent employment-see, for example, SG11-229-reception psychiatric assessment of 30/11/17 indicates VNVT was then unemployed
[132] G9-86
As for assistance to the community, Mr Yoa, president of the Nuer Community in Victoria Inc, states that VNVT’s participation and contribution to the community has been excellent.[133] In his letter of support, a Mr Riek states that VNVT is “a valuable member of Nuer community in Victoria, Nuer Council of Australia, Fangak community in Australia and also Fangak Community back home in South Sudan.”[134]
[133] G18-165
[134] Letter of 14 August 2020
Statements such as these, however, say nothing about the contribution said to have been made, either in terms of its nature, timing or extent. Mr Riek does, however, refer to VNVT mentoring and supporting younger people playing sport in the context of a particular soccer club. At the hearing of this proceeding, it became apparent that the club collapsed in around 2007 and, in his letter of support, Mr Riek stated that since the collapse of the club it had been very difficult for VNVT to continue to engage with the youth he had formerly mentored. This suggests that VNVT’s community assistance, insofar as it consisted of mentoring youth through involvement in soccer, did not extend beyond 2007.
VNVT suggests that his assistance went beyond the failed soccer club and involved helping Nuer youth attend church and engage in sporting activities.[135] On his behalf it is submitted that VNVT “has strong ties to the community through his significant contribution to the Nuer Community in Victoria.”[136] Again, however, little by way of detail of this assistance or contribution is provided[137] and I note that VNVT was generally absent from Victoria for the 2010 to 2014[138] period and was incarcerated for a significant period thereafter.[139]
[135] Statement of VNVT of 14 August 2020
[136] G16-154
[137] I do note that VNVT refers to assistance not only in the context of soccer but also basketball-G17-159.
[138] Letter of 14 August 2020 from Selba Gondoza Luka of Afri-Aus Care Inc who indicated that VNVT moved to South Australia in 2010 and only returned to Victoria in 2014
[139] Corrections Victoria, comprehensive prison history document, suggests that VNVT was incarcerated for most of 2018. That history records VNVT as being incarcerated in the period 16/9/16 to 9/2/17; 30/11/17 to 25/9/18 and 1/4/19++.
A positive contribution to the community which VNVT did not identify is found in his support of his family. In this regard, according to his mother, VNVT “…is a very hardworking person. It didn’t take him long until he started working when he came to Australia. During this time when he was working he helped me financially and emotionally… He has always been my support system ever since I brought him here to Australia.”[140] That VNVT has so assisted his family is echoed by his sister. She says VNVT “…has always supported my mum through the years he has been in Australia.”[141] (Again, however, I note that VNVT’s capacity to contribute to the community, including to his family, would have been materially impaired by the fact that he has spent most of the last four years in either prison or detention.)
[140] G19-167
[141] G21-173
Accordingly, VNVT has made some positive contributions to the Australian community but, as I see it, these are more than offset by the consequences for both individual members of the community and the community at large (including by way of the drain on community resources) of his frequent and persistent offending.
Conclusion
The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel VNVT’s visa. It does so to a moderate extent given the severe, but not very severe, result of VNVT’s character assessment and the ameliorating effect of his long-term presence in Australia.
Other considerations
The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.
Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of international non-refoulement obligations; strength, nature and duration of VNVT’s ties to Australia; the impact of non-revocation of VNVT’s visa on Australian business interests; the impact of non-revocation of VNVT’s visa on victims and the extent of impediments if VNVT is removed from Australia. This list is not exhaustive, and the considerations need only be taken into account where relevant.
International non-refoulement obligations
In this proceeding I am required to consider international non-refoulement obligations. I am not relieved of this requirement despite VNVT being entitled to apply for a protection visa[142] should his visa cancellation decision not be revoked (and despite Clause 14.1(4) of Direction 79[143]). This is because the issue of non-refoulement obligations was raised by VNVT in representations he made about the decision to cancel his visa in response to the invitation provided for in s 501CA(3) of the Act.[144] I do not need to consider VNVT’s further submission to the effect that claims which may give rise to non-refoulement obligations must in any event be addressed where they are clear from the facts of the case.[145]
[142] Note that the bar on applying for a visa under the Act, s501E, when a visa has been cancelled under s501 does not apply to a protection visa application-s501E(2)
[143] Clause 14.1(4) -Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
[144] GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31] and Minister For Home Affairs v Omar [2019] FCAFC 188 at [34] -“ Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described… In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the decision-maker has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin, constitutes “another reason”
[145] Direction 79, cl14.1(3)-as submitted on behalf of VNVT at G16-127
Representations so made on behalf of VNVT cannot be carved off for possible examination at a later stage.[146] Doing so would constitute a failure to “consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations” made on VNVT’s behalf and, as such, jurisdictional error,[147] error which may “vitiate the putatively formed state of mind” pre-conditioning the exercise of the power under s 501CA(4).[148]
[146] FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 at [44-45]
[147] Ali v Minister for Home Affairs [2020] FCAFC 109 at [103]
[148] Ali at [45]- In this regard, representations in response to an invitation under s 501CA(3)(b) are, as a whole, a mandatory relevant consideration albeit that not every statement in such representations can be so described- GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31]; Minister For Home Affairs v Omar [2019] FCAFC 188 at [34]
In order to address those representations, I propose to:
·     identify what constitutes non-refoulement obligations;
·     consider, in the context of the representations, whether those obligations would be breached were VNVT to be returned to South Sudan, taking into account the nature and extent of the risk of certain consequences for both VNVT and Australia of such a breach;
·     if those obligations would be so breached, assess the extent of the risk of VNVT being so returned to South Sudan should the decision to cancel his visa not be revoked;
·     consider the consequences should VNVT not be returned to South Sudan despite non-revocation of his visa cancellation decision.
Non-refoulement obligations
As was recently said in Ali,[149] “[t]he term ‘non-refoulement’ is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 Art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)…” (the “Refugees Convention”).
[149] Ali v Minister for Home Affairs [2020] FCAFC 109 at [24]
Article 33 provides that “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
While the concept of non-refoulement might be derived from a provision of the Refugees Convention, it is not the sole source of Australia’s international non-refoulement obligations.
As described by Wigney J in BHL19,[150] Australia’s non-refoulement obligations …” are principally derived from a number of international conventions to which Australia is a party: the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980.”
[150] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [224]
Direction 79 contains a description of a non-refoulement obligation and identifies the various sources of such obligations. In cl 14.1(1) of the Direction it is said that:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Return to South Sudan a breach of non-refoulement obligations?

The existence of the policy in practice, at least as it is applied in relation to South Sudan, finds support in the fact that as at around May 2019 a DFAT Country of Origin Information Services Section search did “…not reveal that South Sudanese nationals have been involuntarily returned from Australia, or any other western country,” a result consistent with what was then said to be the international position on non-refoulement in relation to South Sudan to the effect that “[c]ustomary state practices currently reflect that no South Sudanese national is involuntarily returned to South Sudan...”. [185]
[185] Department of Home Affairs Standard Q&A Report South Sudan: 20190411092354 – Humanitarian Situation in South Sudan - Active belligerents and conduct of hostilities - Security in Juba and other cities – Returnees – Forced conscription and recruitment -Date of Report 28 May 2019
A number of judicial decisions recognise the existence of the policy in practice. For example, in:
·BDQ19[186] Kerr J stated, in relation to a person in respect of whom non-refoulement obligations are owed, “Australia ultimately will not refoule such a person”.
·Sowa[187] Jagot, Bromwich and Thawley JJ noted that the applicant there had not referred to what was characterised as Australia’s practice of not returning a person to a place if non-refoulement obligations are owed.
[186] BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [68]
[187] Sowa v Minister for Home Affairs [2019] FCAFC 111 [43]
Quite apart from the Respondent’s policy in practice, there are two further reasons that mitigate the risk of VNVT being returned to South Sudan in the face of non-refoulement obligations owed in respect of him
First, to do so would reflect a failure by Australia to respect obligations it owes to other nations, a failure that could only affect adversely Australia’s “reputation and standing in the global community”[188] or its “reputational interests.”[189]
[188] Ali v Minister for Home Affairs [2020] FCAFC 109 at [91]
[189] Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]
Second, as I see it, there are likely to be practical difficulties in establishing VNVT is a citizen of South Sudan, difficulties which may preclude, or at least impede, his return to South Sudan.
On VNVT’s behalf it is submitted that VNVT, despite being eligible for citizenship of South Sudan, “… currently lacks effective nationality and is therefore currently stateless.”[190] I note that, for so long as a person is stateless, it is difficult to see how, in terms of the removal obligation of the Act,[191] it would be “reasonably practicable” to remove the person from Australia.
[190] G16-131; I note that under Article 1 of the 1954 Convention Relating to the Status of Stateless Persons a ‘stateless person’ is a person who is not considered as a national by any State under the operation of its law.
[191] Act, s198
The gist of the submission appears to be that VNVT could not gain South Sudanese citizenship because an applicant for citizenship needs to produce certain documentation which VNVT, having no contacts in South Sudan, would not be able to obtain.
As I see it, this submission reflects a misunderstanding of what I understand to be the legal position concerning citizenship in South Sudan.
Under the Nationality Act 2011 of South Sudan:[192]
(a)A “South Sudanese National” is defined to be a person who satisfies the eligibility criteria provided under Chapters III and IV of the Act (s 5).
(b)While Chapter IV of the Act deals with nationality by naturalisation, Chapter III deals with nationality by birth.
(c)Under a provision of Chapter III (s 8) a person “shall be considered a South Sudanese National by birth” if, amongst other things, any of the person’s parents was born in South Sudan or the person belongs to one of the indigenous ethnic communities of South Sudan.
(d)The Minister of the Interior is obliged to issue a certificate of nationality to an applicant who is a South Sudanese National by birth (s 9).
[192] SG-457
As I construe the Act, under its nationality by birth provisions, a person need not apply for citizenship to be a citizen. If the person satisfies the relevant eligibility criteria, the person is declared to be a citizen. The person “shall be considered a South Sudanese National” and the executive has an obligation (not discretion) to issue a certificate of nationality if applied for. I note that this construction is consistent with that adopted by Member Hawkins in a 2019 Tribunal decision.[193]
[193] 1910307 (Refugee) [2019] AATA 4673 at [44-45]
VNVT satisfies the relevant eligibility criteria. Each of his parents would appear to have been born in South Sudan[194] which, as defined in the Act, would appear to constitute certain territory rather than the nation state (noting that South Sudan only acquired nationhood in 2011).[195] Additionally, VNVT belongs to one of the indigenous ethnic communities of South Sudan, the Nuer (as acknowledged on behalf of VNVT[196]).
[194] G9-76,77-VNVT stated in a personal circumstances form that each of his parents was a citizen of South Sudan at birth
[195] Nationality Act,2011 at s5 defines “South Sudan” to mean “the territory, including airspace and
territorial waters, of the South Sudan…”.
[196] G16-131
As VNVT satisfies those eligibility criteria he is a South Sudanese national under the law of South Sudan and, hence, he is not stateless.
While VNVT is not stateless, as I said earlier, there are likely to be practical difficulties in establishing his citizenship of South Sudan, difficulties which may preclude, or at least impede, his return to South Sudan.
In this regard, in a Department of Home Affairs report of May 2020,[197] it is said (with my emphasis) that in “…practice, proving South Sudanese nationality can be difficult, especially for those not habitually resident in South Sudan. A number of forms, documents proving heritage and the testimony of witnesses may be required before a certificate of citizenship can be issued. The witnesses usually need to be male and might need to be older than the applicant. Tests of morality (attestation that they are of good character) may also be involved. These practical difficulties can lead to de facto statelessness.”
[197] Department of Home Affairs, Standard Q&A Report South Sudan 20200522142421 – Citizenship- Date of Report 26 May 2020
Consequences should VNVT not be returned to South Sudan despite non-revocation?
The more remote the risk of VNVT being returned to South Sudan consequent upon a non-revocation decision, the greater the risk of him being placed in indefinite detention.[198] Put another way, for so long as VNVT’s return to South Sudan remains unlikely, the likely result of a non-revocation decision is VNVT’s indefinite detention (subject to the outcome of any potential protection visa application and to the possibility of exercise of ministerial non-compellable powers found in provisions such as s 195A of the Act).
[198] As noted earlier once VNVT was detained as a consequence of a cancellation decision under s501 of the Act, it became a requirement to keep him in immigration detention until deported or removed from Australia, until he is granted a visa or until a court determines his detention to be unlawful-Act, s196.
In this regard, as I stated earlier, I consider VNVT being returned to South Sudan to be unlikely for so long as Australia owes non-refoulement obligations in respect of him.
Hence, VNVT faces the prospect of indefinite detention should his visa cancellation decision not be revoked as there is at least a real possibility that his removal from Australia would not be reasonably practicable in the current circumstances.[199]
[199] MIBP v Le (2016) 244 FCR 56 at [61].
Clearly there would be adverse consequences of indefinite detention.
VNVT’s would be denied freedom of movement. His capacity to liaise with family and friends would be constrained, as would his capacity to implement any plans he might have had for his future. Moreover, as submitted on behalf of VNVT,[200] it may be that the indefinite detention of a detainee operates to exacerbate the risk of the detainee suffering mental health issues.
[200] G16-153
Conclusion
Non-refoulement obligations are owed in respect of VNVT.
If he were to be returned to South Sudan, there is a real risk of him suffering significant harm on account of his race (being his Nuer ethnicity) and on account of the political opinion which it would be imputed he held by reason of his Nuer ethnicity.
I do not consider that VNVT’s removal from Australia and return to South Sudan to be a likely consequence of a non-revocation decision.
Instead, the more likely consequence of such a decision is that he would placed in indefinite detention. Indefinite detention carries with it a number of adverse consequences.
In the result, this consideration weighs in favour of there being another reason to revoke VNVT’s visa cancellation decision, and does so to a significant extent.
Strength, nature and duration of ties
In the context of this consideration, Direction 79 requires that regard be had to two further considerations.
1How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(a)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(b)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2The 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
VNVT has resided in Australia for nearly 16 years, being most of his adult life, having arrived here aged 20.
He has strong family and community ties to Australia, most of which are not of recent origin.
I have previously identified those ties in the context of discussing both the support network available to VNVT were he to be released into the community and the contribution he has made to the community (including to his family). As is apparent from that discussion, non-revocation of his visa cancellation decision is likely to impact adversely on members of his support network, especially family members and, in particular, VNVT’s mother in a context where, according to her, VNVT has always been her support.
The foregoing suggests that the strength, nature and duration of ties consideration ought weigh heavily in favour of there being another reason to revoke VNVT’s visa cancellation decision.
Offset against such a conclusion, however, is:
a)the fact that VNVT’s offending commenced roughly 22 months after his arrival in Australia and has continued, persistently, thereafter; and
b)my finding that, when assessed overall, VNVT’s net contribution to the Australian community has not been positive.
In conclusion, I find that the strength, nature and duration of VNVT’s ties to Australia are such as to weigh in favour of a conclusion that there is another reason to revoke the decision to cancel his visa and do so to a moderate extent.
Impact on Australian business interests
Direction 79 requires that I consider the impact on Australian business interests if VNVT’s visa cancellation decision is not revoked, but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Given the absence of material before me of relevance to this consideration, it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel VNVT’s visa.
Impact on victims
Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel VNVT’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and VNVT has been afforded procedural fairness.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel VNVT’s visa.
Extent of impediments if removed
In the circumstances, Direction 79 requires that I consider the extent of any impediments that VNVT may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of South Sudan), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in South Sudan.
If VNVT is returned to South Sudan, he is unlikely to encounter impediments based on language or cultural barriers. He lived in South Sudan until he was 13 and then in Sudan until he was around 18. While in submissions made on his behalf it was suggested that VNVT speaks only limited Nuer,[201] this was belied by the fact that at the hearing of this proceeding VNVT sought and utilised extensively the services of a Nuer interpreter.
[201] G16-127
VNVT is, however, likely to face material impediments in establishing and maintaining basic living standards, even when compared to what is generally available to other citizens of South Sudan, given the likely absence of economic support available to him in South Sudan.
VNVT has not been to South Sudan since he was 13 years old. He has no family there. He maintains that he has no support network there. Mr Riek’s evidence was that, as a Nuer and member of the small Fangak community,[202] VNVT could expect that members of the community would do what they can to support him, albeit that the extent of that support would depend on economic circumstances and, at the moment, there is a lot of suffering in South Sudan. This suggests that, while VNVT might be able to access a social support network in South Sudan, he would have little in the way of economic support from South Sudan.
[202] Fangak apparently being a county within a state of South Sudan
Mr Riek’s evidence that there is a lot of suffering in South Sudan might well underplay the situation. In a DFAT country brief on South Sudan[203] it is said that:
“The humanitarian situation in South Sudan is dire. There are over four million people internally displaced or seeking refuge in neighbouring countries (Kenya, Ethiopia, Sudan and Uganda). The UN estimates that almost half of the population is facing food insecurity and in need of humanitarian assistance.”
[203] Online version as at 25 August 2020
In the UNHCR April 2019 report it is said that:
“By the end of 2018, nearly 1.87 million South Sudanese were internally displaced and 5.7 million people were in need of life-saving assistance… Over 80 per cent of the population lives below the absolute poverty line… in January 2019 6.17 million people, or 54 per cent of the population, were estimated to have faced acute food insecurity (IPC Phase 3) or worse…”.
As for the possibility of government supplied social welfare, that seems doubtful. In the DHA July 2020 report it is said that:
“Credible sources state that social welfare support systems are extremely limited or unavailable in South Sudan, and that support from family and tribal groups and remittances from South Sudanese living overseas typically fill the void.”
VNVT might be able to garner economic support from family members in Australia but this assumes both a willingness[204] and a capacity to do so.
[204] I note that statements provided by family members were suggestive of at least a willingness to provide support to VNVT were he to be released into the community.
As for employment, while VNVT is of working age and is (subject to comments I make later) generally healthy, he contends that he has no way to earn a living in South Sudan.[205] As I see it, his pessimism may well be justified. In this regard, “country information indicates that employment prospects in South Sudan are poor.”[206] Moreover, as a Nuer, VNVT may experience some difficulty in obtaining a government job. The DHA July 2020 report noted that “[a]fter the start of the civil war in 2013, a large proportion of Nuer people lost their government positions because they were dismissed or fled. The ethnic dimension of employment has led to the widespread perception of “Dinka dominance” in government institutions.”
[205] G9-88
[206] DHA July 2020 report
VNVT also faces a significant potential impediment in establishing himself and maintaining basic living standards by reason of issues concerning his health.
VNVT suffers from tuberculosis. [207] At the time of the hearing of this proceeding he was asymptomatic and not taking medication for the condition. He has had, however, at least two severe bouts of the disease, one in 2008 (which involved treatment for six months) and one in 2019 (which involved treatment for nine months). Treatment of the latter bout entailed hospitalisation for around a week followed by medication and review. VNVT was advised to cease medication in June 2020, with a review to be undertaken around three months later.[208] Despite currently being asymptomatic, ongoing monitoring is required.[209]
[207] G9-87; SG11-175; SG11-251
[208] IHMS clinical handover summary of 27 June 2020
[209] SG11-251
Absent appropriate treatment, the disease can be life-threatening. Indeed, according to the World Health Organisation, roughly 1.5 million people died from the disease in 2018.[210]
[210] See WHO publication of 24 March 2020 as to Tuberculosis, key facts found at >
VNVT submits that it would be difficult to have tuberculosis treated in South Sudan and “that having been struck down by it twice now the likelihood of getting it again in a third world country is very high, and the likelihood that it would be fatal almost 100%.”[211]
[211] G13-104-G17-162
While the material before me was not such as to satisfy me that the risk of a bout of tuberculosis being fatal was almost 100%, I do accept that part of the submission concerning the likely difficulty in obtaining appropriate medical treatment in South Sudan. In this regard:
·In the UNHCR April 2019 report, it is said that “Currently, one primary health centre serves an average of 50,000 people.”
·In the DHA July 2020 report, it is said that “the availability of essential services such as healthcare and social services is extremely limited.”
·The DHA July 2020 report referred to a 2019 article from Médecins Sans Frontières, in which it was apparently said that the health system saw destruction on a massive scale due to the conflict that started in 2013 with the remaining facilities offering only basic treatment. Less than half the population was said to live close to a facility. HIV and tuberculosis were said to be common chronic infectious diseases with only a small fraction of people affected having access to treatment (my emphasis).
Given VNVT’s tuberculosis and the limited availability of health care services in South Sudan, I find that the risk of him suffering ill-health constitutes a significant impediment which VNVT may face in establishing himself and maintaining basic living standards in South Sudan.
On behalf of VNVT it was also submitted that his mental health will likely be negatively impacted by returning to South Sudan.[212]
[212] G17-163
No doubt being returned to South Sudan and being precluded from physical proximity to his Australian-resident family and support network would result in VNVT experiencing various emotional or psychological stresses and strains. I am not, however, satisfied that this would result in him suffering a psychiatric condition. I have not been provided with any expert opinion to the effect that VNVT currently suffers any mental health issues. At the hearing of this proceeding VNVT acknowledged that he had not seen any doctor about such issues. Indeed, on the material before me I am satisfied that he does not suffer from them.[213] While there is some indication that he suffers from anxiety,[214] as I see it, this is simply an understandable consequence of the circumstances he currently finds himself in.
[213] Undated induction mental health screen- Suggests no mental health issues; K10 Kessler psychological distress scale report of 19 July 2020- suggests no mental health issues. While VNVT’s IHMS clinical records suggest that on 30 June 2020 he reported that he had been seeing a MHN [mental health nurse] every 2/52 in prison for depression and anxiety he was not on antidepressant medication and denied any current symptoms of depression.
[214] Mental health assessment of 19 July 2020- Suggests VNVT has anxiety but no real mental health issues-IHMS clinical records of 30 June 2020 suggest VNVT reported that he had anxiety about his current situation and about being deported.

On VNVT’s behalf it is submitted that, should he be returned to South Sudan, there is a real chance that he would be harmed.[215]
[215] G16-129
This prospect of harm submission requires consideration independently of the matters considered in the context of non-refoulement obligations.[216] This is because there is a “conceptual difference between the factual claims giving rise to the applicant’s fear of harm and the international law obligations that may be breached in the event that the factual claims were accepted but the applicant nonetheless returned to…”[217], in this case, South Sudan.
[216] Goundar v Minister for Immigration & Border Protection [2016] FCA 1203; GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [9]
[217] FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 at [56]
I accept VNVT’s submission concerning the chance of him suffering harm.
The UNHCR April 2019 report makes it clear that significant levels of violence continue to pervade South Sudan despite the signing in 2018 of the Revitalised Agreement on the Resolution of the Conflict in South Sudan. In the report, it is said that:
“conflict remains and egregious human rights violations continue to be perpetrated by parties to the conflict with near complete impunity… sustainable conditions are not in place for the safe and dignified return of refugees and IDPs in South Sudan…”.
“The security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of safe and dignified return for any person originating from South Sudan, whether or not the individual is found to be in need of international protection…”.
“…while UNHCR recognizes that political changes are underway in South Sudan, the impact of these changes on the ground are not yet such as to make return under conditions of safety and dignity feasible.”
The DHA May 2019 report reinforces the suggestion of ongoing, extensive, violence in South Sudan. In the report, it is said that:
“There is a high risk of crime including violent crime…”.
“The security situation across South Sudan remains volatile due to persistent communal and interethnic violence. A September 2018 ceasefire has been difficult to maintain and fighting has occurred in the first half of 2019 despite the peace agreement. Overall the security situation remains dire across the entire country…”.
“Recent sources indicate that armed groups are forcibly recruiting civilians, including child soldiers, in the midst of all sides currently upscaling their fighting ranks..”.
The DHA July 2020 report also reinforces the suggestion of ongoing, extensive, violence in South Sudan. In the report it is said that:
“The US State Department’s country report for 2019 states that interethnic fighting and violence by government forces, opposition forces and armed militia affiliated with the government and the opposition targeting specific ethnic groups resulted in human rights abuses throughout 2019… The US report continued on to say that interethnic clashes occurred throughout 2019. Insecurity, inflammatory rhetoric, including hate speech, and discriminatory government policies led to a ‘heightened sense of tribal identity’, exacerbating interethnic differences.”
“In February 2019, the UN Commission on Human Rights in South Sudan reported on a pattern of deliberately targeting civilians based upon their ethnic identity and it was concluded that government forces were responsible for acts that may constitute war crimes and crimes against humanity.”
The DHA July 2020 report also refers to a June 2020 article said to state that:
“…Murle violence against the Nuer in Jonglei is perceived to be in retaliation to a raid that left over 100 people dead in February 2020. This June 2020 article specifies that between the Murle and Nuer, over 658 have been killed and across just three months this year (specific months were not specified), 592 people were abducted…”.
Given that a number of agreements made since the commencement of hostilities in 2013 have proved unsuccessful in stemming the violence, it is little wonder that the author of the DHA July 2020 report suggests that “[r]eturnees to South Sudan face an unstable security situation and high levels of crime, both in the capital Juba and the country as a whole.”
The Respondent contended, essentially, that the risk of harm is now acceptable given the February 2020 agreement to form a government of national unity made between the principal protagonists in South Sudan’s civil war. The Respondent suggested that the agreement still “holds” but in “a qualified sense” with the result that the position in South Sudan is better than it was. My response now to that contention is the same as it was when made in the context of non-refoulement obligations; an agreement which results in a position better than a pre-existing position which was “dire” does not support a contention that the risk of harm has been ameliorated to a level such that it could be considered safe to return to South Sudan.
Despite the February 2020 agreement, I am satisfied that there remains a real chance of VNVT being harmed should he return to South Sudan.
Conclusion
I find that this consideration as to impediments to be faced by VNVT in establishing himself and maintaining basic living standards on removal to South Sudan weighs heavily in favour of a conclusion that there is another reason to revoke the decision to cancel his visa. He will have little economic support available to him in South Sudan, poor prospects of employment and face real and significant health risks plus real risks of harm.
Conclusion as to other reason for revocation
In considering whether there is another reason for revocation of the decision to cancel VNVT’s visa, my conclusions in relation to the various considerations to which Direction 79 requires that I have regard, do not point in a uniform direction.
In particular, in the circumstances of this matter:
·The primary consideration as to protection of the Australian community from criminal or other serious conduct weighs heavily in favour of a conclusion that there is not another reason for revocation of the decision to cancel VNVT’s visa.
·The primary consideration as to expectations of the Australian community offers moderate support for such a conclusion.
·The primary consideration concerning the best interests of minor children in Australia weighs in favour of a conclusion that there is another reason to revoke the decision to cancel VNVT’s visa, but not significantly so.
·Two of the “other considerations” weigh in favour of a conclusion that there is another reason to revoke the decision to cancel VNVT’s visa, to a significant extent (being the considerations concerning international non-refoulement obligations and extent of impediments if removed to South Sudan).
·The “other consideration” concerning the strength, nature and duration of VNVT’s ties to Australia weighs in favour of a conclusion that there is another reason to revoke the decision to cancel his visa, to a moderate extent.
It is clear from this that the matter is finely balanced. In the result, however, I am satisfied that there is another reason for revocation of the decision to cancel VNVT’s visa.
In a context where non-refoulement obligations are owed in respect of him, non-revocation of VNVT’s visa cancellation decision would result in his removal to South Sudan where he faces significant risk of significant harm (whether through violence or a failure to treat appropriately his tuberculosis) or, more likely, indefinite detention (that is, loss of freedom of movement for an indefinite period). As I stated earlier, Direction 79 requires that I weigh these obligations (and, implicitly, the consequences of them) against the seriousness of VNVT’s offending. While that offending has been very serious, in my view, it tends towards the lower end of the spectrum of serious offending (albeit not at the lower end, given the frequency of it and its cumulative effect). Given that tendency, the weighing process required of me operates to shift the finely balanced result derived from taking into account the Direction 79 considerations in favour of a conclusion that there is another reason to revoke VNVT’s visa cancellation decision.
DECISION
As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that VNVT passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that VNVT passes the character test.
I am, however, satisfied that that there is another reason why the decision to cancel his visa should be revoked.
For these reasons, the Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel VNVT’s visa.

230. I certify that the preceding 229 (two hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

......[sgd]................................................
Associate
Dated: 7 September 2020

Date of hearing: 27 and 28 August 2020

The Applicant: By video

Advocate for the Respondent: M Palfrey

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date of hearing:	27 and 28 August 2020
The Applicant:	By video
Advocate for the Respondent:	M Palfrey
Solicitors for the Respondent:	HWL Ebsworth Lawyers