VSGP and Minister for Home Affairs (Migration) - [2019] AATA 334

VSGP and Minister for Home Affairs (Migration) [2019] AATA 334 (1 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7283
Re:VSGP
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:1 March 2019
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of Refugee visa (class XB sub-class 200) – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 decision under review affirmed
Legislation
Crimes Act 1958 (Vic)
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v Martin Tran; R v Van Nhan Tran [2006] VSCA 222
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 March 2019
BACKGROUND

VSGP (“the Applicant”) arrived in Australia in March 2003 as the holder of a Refugee (Class XB, Subclass 200) visa. On 1 February 2017, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. The Applicant subsequently applied for this cancellation to be revoked in 4 February 2017. On 6 December 2018, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa. On 12 December 2018, the Applicant applied to this Tribunal to reconsider the Delegate’s decision.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3] I will address each of these grounds in turn.
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, concedes that he does not pass the character test as he has a substantial criminal record.[4] This concession was appropriately made: on 22 November 2016, the Applicant was sentenced to an aggregate custodial period of at least two and a half years’ imprisonment for various, serious offences.[5] Although these sentences contained certain stipulations about release on parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[6]
[4] The Applicant appears to concede or does not otherwise take issue with the Delegate’s finding regarding the character test. This position was confirmed by the Applicant’s representative at the hearing.
[5] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, [15].
[6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(1)(a) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies[7]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [8]
[7] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019. The decision in this matter is due by 1 March 2019 in accordance with the 84 day time limit in s500(6L) of the Act. As this decision is intended to be published after 28 February 2019, Direction 79 will be applied.
[8] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[10]
[9] [2018] FCA 594.
[10] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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 forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s appalling offending can be readily gleaned from his National Police Certificate.[11] His offending is particularized into episodic categories in the Respondent’s Statement of Facts, Issues and Contentions.[12] Suffice it to say that the offending includes:
[11] Exhibit R3(a), Section 501 G-Documents, G5, pages 24 – 30.
[12] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 4, paragraph [17].
·conduct for which the Applicant was convicted in 2007, 2011 and 2012 involving the assault of Police officers, including an incident wherein the Applicant violently struggled with Police officers who eventually subdued him with capsicum spray;
·conduct for which the Applicant was convicted in September 2015 involving respective assaults against on-duty emergency workers and the Police were called to intervene following the Applicant’s violent assault on his sleeping father. Two things should be noted about this incident. First, the Applicant’s father suffered a debilitating stroke in the early 2000’s resulting in a significant restriction of his bodily function. Second, the Applicant kicked two of the intervening Police officers in the head while resisting arrest;
·conduct for which the Applicant was convicted in April 2016 involving (1) assault whilst in company and (2) assault with a weapon;
·conduct for which the Applicant was convicted in December 2017 for a further robbery offence that involved very serious conduct whereby the victim was accosted at an ATM with a demand for money and when that request was refused, the Applicant punched him above his right eye and stole his mobile telephone;
·respective convictions in November 2016 comprising:
otheft (two charges);
ointentionally damaging property (two charges);
ocommitting an indictable offence whilst on bail (two charges);
ocontravening a conduct condition of bail following a shoplifting offence (two charges);
owilful damage of property;
otheft of a motor vehicle;
orobbery;
ofailure to stop motor vehicle on request of lawful authority;
odriving whilst disqualified;
opossession of cannabis;
ostate false name when requested;
ofailing to leave licensed premises;
ocontravention of community corrections order;
oassault in company (two charges);
ounlawful assault (two charges);
oassault with weapon;
ofail to answer bail;
·conduct for which the Applicant was convicted in March 2017 comprising the following offences:
obreach of community corrections order;
ocriminal damage with intent to damage/destroy (four charges);
otheft from motor vehicle;
oattempt to commit an indictable offence;
ocommit indictable offence whilst on bail (two charges);
oshoplifting;
ounlawful assault;
oresisting a Police officer;
ohandle/receive/dispose of stolen goods;
·conduct for which the Applicant was convicted in October 2017 comprising two shoplifting offences and robbery;
·conduct for which the Applicant was convicted in December 2017 involving one charge of robbery.
The Nature and Seriousness of the Applicant’s Conduct to Date
There seemed to be unanimity between the parties about the seriousness of the Applicant’s offending conduct. There is a ready acceptance on behalf of the Applicant “…. that the Applicant’s offending was serious in nature.”[13] Having regard to the totality of the Applicant’s offending and any alternative finding would, in my view, be “wholly inconsistent with the objective evidence before the Tribunal”.[14]
[13] Exhibit A1, Applicant’s SFIC, page 4, paragraph [19].
[14] Exhibit R1, Respondent’s SFIC, page 4, paragraph [16].
It was conceded on behalf of the Applicant that his behaviour contained certain elements of violence that are rightly the subject of the delegate’s revocation decision. As I understood them, the submissions put on behalf of the Applicant were predicated on the basis that the Applicant’s violent offending was asserted to be at the lower end of the range. In this regard, it was submitted that none of the relevant violent offences committed by the Applicant are such as to cross the threshold of injury.
The Applicant’s representative quoted a passage from the Crimes Act 1958 (Vic) which defines “injury” as “unconsciousness, hysteria, pain and any substantial impairment of bodily function”.[15] The resulting contention was that none of the Applicant’s violent offending crosses that threshold of “injury” and is thus to be accepted as all being within the lower end of the spectrum.
[15] Crimes Act 1958 (Vic), section 15 Definition of ‘injury’.
There was a further concession on behalf of the Applicant to the effect that due to their nature as violent offences, they must be necessarily relevant to the Direction. A similar concession was forthcoming with regard to the Applicant’s offences against serving Police officers on active duty. This offending, however, was sought to be ameliorated on the basis that none of that offending had “caused any injury of any substantial or significant nature”. According to the Applicant’s representative, the view that the Tribunal should form about this offending is that while it is not a necessarily useful factor for the Applicant, because the offending did not cross the “threshold relating to the infliction of injury” the offending should thus be accepted to be within the lower band of violent offending.
The submissions put on behalf of the Applicant then moved into another dimension relating to the configuration of sentences imposed by sentencing judicial officers. According to this aspect of the submissions put on behalf of the Applicant, a consideration of the sentences imposed by the Courts for the purposes of sub-paragraph 13.1.1(1)(d) of the Direction is that the reference to “the sentence” in that sub-paragraph necessarily involves an examination of the relative ratio between the head sentence and the time ordered to be served in actual custody. The thrust of the submission was that the Applicant’s offending should not be regarded as serious because the sentencing courts ordered that the Applicant serve a lower quotient of actual time in custody compared to other sentences which had identical head terms but as a result of which higher, actual custodial terms were ordered to be served.
The Tribunal was taken to the sentence imposed by the Dandenong Magistrates Court on 22 November 2016 involving, as it did, the imposition of a head sentence of 18 months imprisonment with a six month non-parole period. The Tribunal was referred to certain Victorian Supreme Court of Appeal authority[16] which apparently informs a decision-maker about the Victorian Supreme Court of Appeal’s assessment on what constitutes an appropriate non-parole period in certain circumstances and what a decision-maker can take from any lower non-parole period that may be imposed. According to submissions put on behalf of the Applicant, the Victorian Supreme Court of Appeal noted that “… case law recognizes that a non-parole period is generally set at 60% of the head sentence with a non-parole period increasing to 75% in the worst category of case”.
[16] R v Martin Tran; R v Van Nhan Tran [2006] VSCA 222.

With further reference to the abovementioned authority, the Applicant’s representative quoted the following passage:
“[28] …. when a minimum term is fixed, the prisoner’s punishment is mitigated in favour of rehabilitation through conditional freedom where appropriate but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case.”[17]
[17] Ibid, paragraph [28].
The purpose of the Tribunal being referred to this passage of the abovementioned authority is to support the contention put on behalf of the Applicant that the Tribunal ought to regard the sentence imposed by the Dandenong Magistrate Court on 22 November 2016 as being a “highly unusual, if not extraordinary one”. The essence of the contention, as I understood it, is that a non-parole period of “a mere 33% of the head sentence” was imposed and that this is reflective of the fact that the Applicant’s moral culpability for the offending is somewhat lessened due to his mental health conditions. On that basis, it is propounded on behalf of the Applicant that any assessment of the nature and seriousness of the Applicant’s offending conduct must include a consideration of the extent to which his mental health symptomology operated as a causative factor behind his propensity to offend.
According to the Applicant’s representative, the Applicant’s mental illnesses are necessarily relevant when assessing his prior offending and, to some extent, any propensity he may have to offend in future.
I do not accept the abovementioned contentions put on behalf of the Applicant. In particular, I regard as extraordinary any suggestion that his offending did not result in actual bodily injury or, indeed, traumatic psychological injury to those who have been on the receiving end of his offending. One need look no further than the inherently unpleasant photographs[18] of the physical damage inflicted on the victim attacked by the Applicant near the ATM. Similarly, it is surely not sustainable to say that the victim of the Applicant’s dreadful conduct in the service station did not suffer any psychological injury. This conduct involved, as it did, him chasing a terrified and traumatised victim around the forecourt of that service station until she was relieved and protected by the alert console operator who promptly opened the electronic doors and locked them behind her and then alerted the authorities.
[18] Exhibit R3(c) Section 501 – Further Supplementary G-Documents, Victoria Police, Exhibit 2, photographs 5, 6, 7, 8, 9 and 10.
I similarly reject the propounded amelioration of the very serious nature of the Applicant’s offending on the basis that any non-parole period appearing in one of his sentences may have been lower than another offender who had committed a similar offence. It would be, in my view, dangerously unreliable for this Tribunal to adopt a formulaic approach to the assessment of the seriousness of an Applicant’s offending history based on comparative ratios between head sentences and non-parole periods.
As observed by the Respondent’s representative, the imposition and extent of any non-custodial term is most probably reflective of mitigating or other similar factors placed before the sentencing judicial officer at the time of sentencing. The submission put on behalf of the Respondent is, in my view, correct: the seriousness of an Applicant’s offending is more aptly reflected in the effective head sentences imposed and “the maximum sentences involved in relation to the offences generally”.
It is thus fanciful to suggest that the offences involving assaults on Police officers on active duty were, somehow, to be regarded at the lower end of seriousness because that offending did not cross the “threshold” of the imposition of injury resulting from the offending. The offending involved the Applicant kicking Police officers in the head and spitting blood at them. It is difficult to comprehend how that type of offending can be ameliorated on some kind of formulaic basis deriving from comparative ratios between head sentences and non-parole periods or “thresholds” about whether a victim was actually injured or not.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against … government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
...”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. There can surely be no argument that, viewed longitudinally, the Applicant’s offending undeniably involves an obvious and sustained theme of violence. His offending cannot be viewed in any other way. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the often violent circumstances of the Applicant’s history of offending must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women are to be viewed very seriously, regardless of the sentence imposed. I have, earlier in these Reasons, described the Applicant’s offending involving him pursuing a female in the process of paying for fuel for her car, around the forecourt of that service station. This conduct involved the Applicant approaching the victim and then “…. tried to put his arm around the victim and she pushed him away. The accused physically grabbed the victim, reached for her purse. She held it in her hand, struggled with him for a short time, being pushed around … the victim ran in fear from the accused. He chased her around the forecourt”. The sentencing Judge observed that the incident was “frightening at that time of the night” and “terrifying”.
The terms of this sub-paragraph are clear. This type of violent offending against women is to be viewed very seriously regardless of the sentence imposed. I am thus of the view that upon an application of this sub-paragraph (b) to the circumstances of the Applicant’s offending, I assess the nature and seriousness of his conduct as very serious conduct indeed.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with the principle that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are to be regarded as serious. Earlier in these Reasons, I spoke of the Applicant’s offending against the Police officers who arrived to intervene in the incident involving the Applicant assaulting his father. Police officers are clearly “government representatives or officials” and when they were dealt with as they were by the Applicant, they were clearly conducting themselves “in the performance of their duties”. The Applicant’s kicking of those Police officers in the head and his spitting of blood at them clearly attracts the operation of this sub-paragraph (c) and, as a consequence, I am of the view that it assists in a finding that his conduct is very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. Even a cursory review of the Applicant’s National Police Certificate demonstrates he has an offending history that runs from May 2005 until December 2017. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
In the early phases of his offending history, the Applicant rightly received the benefit of non-custodial penalties in the form of convictions without the recording of a penalty, fines, the performance of unpaid community work, the imposition of multiple community correction orders and, when custodial terms eventually were imposed, the benefit of serving multiple custodial terms on a concurrent, as opposed to cumulative, basis. Little or no deterrent effect is evident from the sentencing options above and, this in turn, compelled the sentencing Courts to impose significant custodial terms for his offending. Viewed on a cumulative basis, the totality of the custodial terms imposed upon him since November 2016 are notable. Stated concisely, those custodial terms (in bold) are as follows:
·24 September 2008:
oattempted theft (two charges), state false name when requested, unlawful assault, fail to answer bail granted (four charges), use indecent language n public place, resist Police (two charges), shoplifting, assault Police (two charges): 114 days;
·22 November 2016:
o   theft (two charges), intentionally damaging property (two charges), committing indictable offences whilst on bail (two charges), contravention of a condition of bail, shoplifting (two charges): 6 months;
o   wilful damage to property: 6 months;
o   theft of a motor vehicle: 6 months;
o   robbery: 12 months;
o   failing to stop motor vehicle on request: 14 days;
o   driving whilst disqualified: 1 month;
o   contravention of community corrections order: 1 month;
o   further breach of community corrections order, assault in company (two charges), unlawful assault (two charges), assault with weapon, failure to answer bail: 3 months;
·     2 March 2016:
o   breach of community corrections order, criminal damage (with intent to damage/destroy) (four charges), theft from motor vehicle, attempt to commit indictable offence whilst on bail (two charges), shoplifting, unlawful assault, resisting Police officer, handle/receive/dispose of stolen goods: 2 months;
·     9 October 2017:
otheft, shoplifting (two charges), robbery: 4 months;
·     15 December 2017:
orobbery: 4 months.
I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant has committed in excess of 100 offences since he was first dealt with by judicial authority in May 2005. On one view, the offending may be viewed as serious from its commencement but graduating to a very serious level through its evolution. For present purposes, my assessment of this Applicant’s offending is (1) that it is undeniably frequent and (2) it is escalating in seriousness.
The Applicant arrived in this country in March 2003. He has been in this country for approximately 15 – 16 years. Giving him the benefit of the time he has spent in criminal custody and/or immigration detention, during his time here, he has been dealt with by lawful authority – in the form of sentencing episodes – on no less than 20 occasions. This equates to a sentencing episode every one year and four months. Viewed another way, he has been in this country for 15 – 16 years and has committed over 100 offences since 2005. Adopting the figure of 100 and dividing it by say, the 16 years he has been here, results in approximately six – seven offences committed each and every year of the totality of his time in this country. If one discounts his time in this country by the amount of time he has been out of the community as a result of finding himself in criminal custody and/or immigration detention, these ratios are even more sobering.
In terms of making a finding about any trend of increasing seriousness in the Applicant’s offending, one need look no further than two things. First, the Applicant’s history of offending where both escalating in terms of the seriousness of the actual offences and the resulting sentences is self-evident. Second, the comments of the learned sentencing Magistrate who sentenced the Applicant at the Dandenong Magistrates Court on 22 November 2016:
“Your offending is not de-escalating, it’s escalating so by way of number there is more. And certainly the robbery by far is the most serious offence that you’ve committed to date. That has to be at the higher end for your offences.”[19]
[My underlining].
[19] Exhibit R3(a), Section 501 G Documents, G6, page 21, lines 5 – 9.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending is broad in its scope. It demonstrates a lack of capacity to distinguish right from wrong. It is not respectful of the personal and property rights of others. It is not respectful of the lawful authority governing the Australian community into which the Applicant seeks re-admission. It is not respectful of himself because as the Applicant said in his evidence at the hearing, when he fails to adhere to his defined regime of treatment, he becomes unwell and his propensity to offend commensurately increases. As noted by the abovementioned sentencing Magistrate in November 2016:
“If you can see anything from this, [Applicant], when you are unwell, when you are not engaging with treatment and rehabilitation, and in particular abusing either drugs or alcohol, you are committing a lot more offences lately.”[20]
[20] Ibid, lines 1 – 4.
The cumulative effect of the Applicant’s offending has culminated in him being removed from the mainstream community either as a result of criminal custody or immigration detention. His offending has culminated in him comprising a genuine threat to other people in the community whether they are seeking to withdraw or deposit money at their local ATM or when they are at the service station filling their car with fuel. The application of this sub-paragraph (f) leads to a finding that the cumulative effect of the Applicant’s offending and its increasing seriousness is clearly indicative of its very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history is not a short one and his appearances before lawful authority are indeed quite numerous. On any reasonable view, the Applicant’s difficulties with lawful authority have dominated his time in this country. The significant level of the seriousness of his offending ought not be ameliorated by mental health factors affecting his life. He has had the benefit of numerous community corrections orders – both in terms of his mental health and as a means of him staying out of custody – to comply with the rehabilitative process. He has breached a significant majority of those orders and expects the Australian community to assist him where he has repeatedly failed to assist himself.
Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
In the hearing before me, the primary, independent witness who provided evidence informing the above two factors was the forensic psychiatrist, namely, Dr Nina Zimmerman. Dr Zimmerman was engaged by the Applicant to provide a medico-legal report. Her report is dated 15 February 2019 and forms part of the written evidence[21] in this matter. Dr Zimmerman also gave oral evidence at the hearing. It is, I think, important at this juncture to review the totality of the evidence of Dr Zimmerman.
Dr Zimmerman - Evidence in Chief:
[21] Exhibit A(2), Report of Dr N. Zimmerman, forensic psychiatrist, dated 15^th February, 2019.
Dr Zimmerman was initially taken to paragraph [35] of her report wherein she mentions that the Applicant “…was regularly reviewed by a psychiatrist while in prison but this is no longer the case in detention.” Dr Zimmerman spoke about the difference in the levels of care that someone with the Applicant’s condition would receive in criminal custody compared to immigration detention. Specifically, she was asked about the comparative level which one receives in either of these two scenarios.
Dr Zimmerman said that in the criminal custody scenario, if an inmate is identified as having a major mental disorder, such as schizophrenia (as this Applicant does), such an inmate/patient would be placed in an area of the prison where he would be able to receive adequate mental health care. She provided the example of Ravenhall Prison where there are a number of units that are staffed by full-time mental health professionals. According to Dr Zimmerman, there is good psychiatric care in the prisons depending on where a given inmate is located. In the opinion of Dr Zimmerman, the Applicant is clearly someone who would be noted as having to be placed in an area where there is good mental health care.
According to Dr Zimmerman, in the immigration detention scenario, the Applicant told her that it is effectively up to him to approach the detaining authorities and request to be seen by a doctor if he realises he has a problem. In that scenario, Dr Zimmerman says a detainee with the Applicant’s diagnosed mental health issues would be directed to consult with a general practitioner provided, of course, that the Applicant had the necessary insight to indicate to the detaining authorities that he was experiencing mental health difficulties and that he needed to speak with someone about it.
Dr Zimmerman agreed that the Applicant would receive greater psychological intervention in prison than he would in immigration detention. It was during his time in immigration detention that Dr Zimmerman saw the Applicant for the purposes of producing her above mentioned report. She said that upon her review of the Applicant, she assessed that:
“… there was absolutely no evidence of psychotic illness. His mental state was very stable. He was taking an anti-psychotic medication. So what that indicates to me is that he is able to continue to take anti-psychotic medication and remain well despite the fact that he’s not getting any regular psychiatric care, oversight and reviews that I think would be ideal.”

Dr Zimmerman was then asked about the basis upon which she formulated her assessment of the Applicant’s risk of future offending. She confirmed that her assessment in this regard was based on the assessment tool known as HCR 20 Version 3. Dr Zimmerman described HCR 20 Version 3 as a “…structured professional judgement instrument.” According to her, this tool means that the professional judgement of the treating clinician plays a big role in formulating an assessment of future risk but that this assessment is also based on risk factors that have been previously found to be predictive of violence and/or re-offending.
According to Dr Zimmerman, HCR 20 Version 3 involves a process of gathering relevant information, identifying the risk factors that are present and looking at the relevance of those risk factors to the given case before the clinician. Some of those risk factors may be relevant in one case but not in another, and, says Dr Zimmerman, this is where the clinician’s professional judgement comes into play.
In determining the relevance of a given risk factor(s), a person might be at very high risk of re-offending. Yet in another scenario, given different identified risk factors, the person might be at very low risk of re-offending. According to Dr Zimmerman, the professional expertise involved in an application of HCR 20 Version 3 is specifically concerned with the clinician “…trying to tease some of that out.” That is, (1) identifying the risk factors in a given case, and (2) ascertaining the extent to which those risk factors predispose a given patient to a risk of re-offending.
Importantly (to my mind), Dr Zimmerman made the point that HCR 20 Version 3 is really a strategy to manage risk because HCR 20 Version 3 is ultimately a risk management tool and not a “risk assessment tool.” Dr Zimmerman said “… it’s primarily about what you can do to reduce risk and then coming up with an overall statement or formulation of the clinician’s opinion of risk in the future.”
Based on her assessment of the Applicant using the HCR 20 Version 3 assessment tool, Dr Zimmerman was of the opinion that the Applicant does not pose a risk of serious or imminent violence. In her evidence in chief, Dr Zimmerman picked up on the point of “imminent violence” and said:
“… I should have mentioned that’s another thing that the HCR 20 Version 3 encourages you to look at. Specifically looking at whether there’s an imminent risk of violence and that might be particularly for someone who is in an institution and is making specific threats that they are going to say, assault another patient. Or, of serious violence – so you’re looking for those cases where there’s been rape, murders, attempted murders – so very serious acts of violence that they are threatening or are at risk of. So I certainly don’t think the Applicant poses a risk at the moment of serious violence or imminent violence. And then you look at a more general assessment of violence.”
In terms of her assessment of the Applicant’s likelihood to commit acts of future violence, Dr Zimmerman thought this risk was “low” but that “… there’s a number of areas that need addressing. There are relevant risk factors in his case in order to maintain that low risk of offending.” At this point in her evidence in chief, Dr Zimmerman was asked to specifically outline how those “relevant risk factors” must be managed in the case of this Applicant in order to maintain a low risk of re-offending.
Mr Carolan:[22] “And in addressing those areas at paragraph [57] of your report, you say there are a number of services available?
[22] Counsel for the Applicant.
Dr Zimmerman: That’s correct.
Mr Carolan: And that includes Area Mental Health?
Dr Zimmerman: Yes.
Mr Carolan: Foundation House?
Dr Zimmerman: Yes.
Mr Carolan: HiROADS?
Dr Zimmerman: Yes.
Mr Carolan: And, just for the Tribunal’s information, how available are those facilities to people such as the Applicant?
Dr Zimmerman: Given that the Applicant is very much appropriate for all of those services and they target specifically people in his situation, I don’t think there will be any problems with access for him.
Mr Carolan: And you say “people in his situation”, what are you referring to by that?
Dr Zimmerman: So, for example, Area Mental Health Services are set up to deal with people who have major psychotic illnesses such as schizophrenia. Therefore, there should be no problems with accessing an Area Mental Health Service, Foundation House – treats people, often refugees, but people with backgrounds of trauma or torture. And obviously, he has had significant symptoms of PTSD and has a developmental history where there was a lot of trauma that he was exposed to. HiROADS is a program that delivers drug and alcohol services to people both – well, HiROADS, specifically in the community side, but particularly it targets people who have complex needs and that could include a mental illness as well as a drug and alcohol problem. But also people who have failed in the past to comply with supervision in the community. And so they need additional case management as well as the drug and alcohol work that is delivered. Again, ideal for the Applicant.”
Dr Zimmerman was then taken to the specific paragraph in her report dealing with instructions the Applicant provided to her about his fear of being returned to South Sudan.[23] She was asked what effect such a return would have on the Applicant’s mental health and why it would affect his mental health. Dr Zimmerman’s response was instructive:
“… well, I believe that it would have a devastating effect on his mental state. It is unlikely that a country in conflict that is a developing country would have the level of mental health services and availability that his psychotic treatment requires. It is very unlikely that they have the sort of services set up for complex clients, I guess, with drug and alcohol needs. He’s also going into a situation where his family and a lot of his extended family will not be present. He didn’t know where he would be able to live, his chances of finding work and support in that setting would be low. All of those things are going to be associated with a high risk of obtaining a relapse of his schizophrenia illness. And also triggering a relapse in his PTSD – obviously.”
Dr Zimmerman – Cross-examination
[23] Exhibit A(2), Report of Dr N. Zimmerman, forensic psychiatrist, dated 15^th February, 2019, specifically, paragraph [28].
Dr Zimmerman confirmed that she met with the Applicant, in person, on 13 February 2019 for the purposes of preparing her above mentioned report tendered in this application, which is dated 15 February 2019. Dr Zimmerman confirmed her engagement and involvement with the Applicant had been strictly for seeing him for the purpose of preparing her above mentioned report. Dr Zimmerman also noted that her assessment period with the Applicant was cut short and that she was only able to spend one hour with him.
Dr Zimmerman was taken to paragraph [56] of her report and, specifically, her words to this effect: “It is my opinion that he does not pose a risk of serious violence or imminent violence.” She confirmed that this statement represented her current risk assessment of the Applicant based on the interview she had with him.
She was further asked whether her risk assessment took into account the fact that the Applicant is currently in immigration detention. Dr Zimmerman said:
“… Yes, certainly that’s relevant, and I think as I identified, there are certain things about his current situation that maintains his risk at a low level. In terms of serious violence or imminent violence – imminent violence is necessarily restricted and they often talk about hours to days as being the period of time that you’d look at in the HCR. So, certainly there’s no concern about risk there. Serious violence – you’re talking about acts of violence that would be more serious than what he’s been engaged in in the past. So, they’re not the main areas of concern in my opinion. But it’s more about him returning to the sorts of property offending, thefts, robberies, and on occasion, he has been involved in assaults as well – and it’s those sorts of offending that I am most interested in and that I think are most relevant for the Applicant.”
Dr Zimmerman was then taken to her further words in paragraph [56] of her report comprising “he currently presents a low risk of future violence using the HCR 20 Version 3.” She confirmed that this remained her current assessed risk of future violence. Dr Zimmerman confirmed that this assessment was based on several assumptions that would act as protective factors, comprising (1) that the Applicant would be living with his family; (2) that he would have stable accommodation which “would be very important”; (3) that he would have the support of his family; and (4) that this assessment of a low risk of further violence and offending was based on the “four pillars” of treatment described in paragraph [57] of her report.
Dr Zimmerman was clear that the maintenance of any assessment of a low risk of further violence or offending was “certainly dependant” on the four above mentioned protective factors. With specific reference to those protective factors, the following exchange materialised in cross-examination:
Ms Whittemore[24]: “Yes, so there’s the mandated psychiatric follow-up by an Area Mental Health Service, preferably as an involuntary patient?
[24] Solicitor for the Respondent.
Dr Zimmerman: Yes.
Ms Whittemore: There is psychological interventions to address the ongoing impacts of childhood trauma?
Dr Zimmerman: Yes.
Ms Whittemore: There’s engagement with drug and alcohol services, for example, Alcoholics Anonymous?
Dr Zimmerman: Yes.
Ms Whittemore: And then there’s engagement with the drug and alcohol counselling service as well. So that’s four?
Dr Zimmerman: Yes, and the Alcoholics Anonymous is not necessarily something that, in my experience, that I specifically recommend, but that’s something he identified as having been very helpful – certainly. The more support of that nature that he’s getting, the better. But, you’re correct, those are the main risk factors that came out of doing the HCR 20, and that needs to be in place to maintain a low risk in the future.
Ms Whittemore: Right, so it’s correct to say that if any of those pillars are missing, then a low risk assessment can’t really be maintained?
Dr Zimmerman: Yeah, I would say that the risk would be elevated in the absence of those sorts of supports, yes.”
[My underlining]
Dr Zimmerman was then taken to the Applicant’s lengthy history of non-compliance with his medication and stipulated regimes of treatment, together with his difficulties in abusing alcohol while he has been in the community. Dr Zimmerman accepted that lengthy history, despite the reality that the Applicant has had numerous previous admissions to hospital for adverse issues arising from his history of non-compliance with treatment. She also accepted that the Applicant has relapsed as a result of non-compliance with his treatment regimes despite the fact that he has, in the past, complied with at least two community corrections orders under which he had received some counselling.
Dr Zimmerman agreed that the Applicant has also had treatment available to him through a number of other community corrections orders that he has failed to comply with or otherwise engage with. Further, Dr Zimmerman accepted that the Applicant has relapsed in circumstances where he has had a very supportive family around him throughout the virtual totality of his offending history. The following exchange then ensued between the Respondent’s representative and Dr Zimmerman:
Ms Whittemore: “And so, against this background, you would agree, wouldn’t you, that on release into the community, he does remain a real risk of failing to comply once again with his medication?
Dr Zimmerman: I think the difference is that he has had a prolonged period of sobriety and compliance and that this hopefully going to be at a time when he’s highly motivated after his experiences recently to engage with those services. As far as I know, he’s never been referred to HiROADS, for example, in the past, and one of the problems has been many of the services that were being looked at, and the assessments that were being looked at, as part of his community corrections orders, never actually occurred because of his poor engagement which was linked very much to his drug and alcohol use. Specifically, his alcohol use is going to be absolutely crucial for him to remain sober.
Ms Whittemore: Well, you certainly must have some reservations given that you have indicated a preference that he become an involuntary patient under the Mental Health Act?
Dr Zimmerman: Absolutely.
[My underlining]
There followed some discussion between Ms Whittemore and Dr Zimmerman about how a patient becomes an involuntary patient under the Mental Health Act.[25] Dr Zimmerman confirmed that the first step involves the making of a temporary treatment order which would last for no more than 28 days. She confirmed that in order to make a temporary treatment order a permanent treatment order it would be necessary to make the necessary application to the Mental Health Tribunal. Dr Zimmerman further noted that the Applicant would be first reviewed by a psychiatrist in the community who would be the clinician responsible for placing him under the temporary treatment order and, once that is done, the case goes before the Mental Health Tribunal.
[25]2014 (Vic)
The following exchange then ensued between Ms Whittemore and Dr Zimmerman:
Ms Whittemore: “And in order to have either a temporary treatment order or a permanent treatment order there has to be a satisfaction that the Applicant needs imminent treatment to prevent serious deterioration of his mental or physical health. Is that right?
Dr Zimmerman: Yes, and there’s a weighing up of the seriousness of the risk of a relapse versus, obviously, his rights and there is a preference to treat people as voluntary patients if that’s possible. But it depends on the risks associated with a relapse. A lot of patients I would look after at Thomas Embling Hospital, for example, who have serious mental illness, who have risks of offending if they become unwell, are more likely to be made involuntary than someone with absolutely no risk of offending or no risk of violence, for example, so it’s a factor that is taken into account by the Mental Health Tribunal.
Ms Whittemore: So it is fair to say that you’ve recommended an involuntary treatment order as a preference for the Applicant’s treatment, that you are concerned there is a real risk that the…
Dr Zimmerman: … Yeah, I think everything needs to be done to ensure that if there is disengagement, if he was to become non-compliant with medication, that could be acted on swiftly and that he could be brought back into hospital and put back on medication, yes. And that’s based on his history where that hasn’t always occurred. So that has been identified by me as a factor.
Ms Whittemore: Now, for argument’s sake, well, there can be no guarantees, can there, that, for example, the Mental Health Tribunal will agree to make a treatment order – that’s a matter for the Tribunal?
Dr Zimmerman: Absolutely.
Ms Whittemore: And so, if this was not made by the Tribunal, you would have to agree that your low risk assessment would need to be revised upwards?
Dr Zimmerman: Yeah, I think absolutely, yes.”
[My underlining]
Dr Zimmerman confirmed that in the event a permanent treatment order were made by the Mental Health Tribunal, it is not the case that such an order can compel the Applicant to attend sessions with entities such as Alcoholics Anonymous or similar counselling. Dr Zimmerman said the way such treatment orders are worded is that they follow the direction of the treating psychiatrist or the Area Mental Health Service, and this could include recommended directions about a patient engaging with drug and alcohol intervention.
A clearly emerging theme in the evidence of Dr Zimmerman was that, in the final analysis, ultimate responsibility for the Applicant’s commitment to and compliance with defined regimes of treatment will fall to him.
Ms Whittemore: “So it’s fair to say then, is it, that the Applicant’s compliance with going to Alcoholics Anonymous and the physical counselling and drug and alcohol counselling is really going to fall to the Applicant?
Dr Zimmerman: Well, the reason that I mention HiROADS is because these are people who classically have histories of poor supervision, and so there’s a lot of outreach, there’s a lot of taking people that have a case manager who will take them to appointments, so I think it’s a service which ensures it’s not constantly and completely on the Applicant to follow there. They’re identified as clients who have a problem in that area and it works as a service in order to ensure maximum compliance.
Ms Whittemore: Given the Applicant’s history of non-compliance with treatment orders or community corrections orders in the past, you would have to agree that there is a real risk that he will fail to engage with those sorts of services if he’s released?
Dr Zimmerman: There is a risk and that’s why it needs to be targeted intervention and why a program like HiROADS is ideal.
Ms Whittemore: Just in relation, just again, to the treatment order that you thought was made, is my understanding correct that if there is a breach of it, so say the Applicant does not attend a designated interview or take his medication as ordered, how does it then get revoked? Is it on application to the Tribunal?
Dr Zimmerman: No. It would have to go back to the Tribunal having been revoked. So we would bring them back into hospital and then there’s a period of time within which we have to take it back to the Tribunal.
Ms Whittemore: And so, it wouldn’t necessarily be that he would be taken in if he vowed to attend maybe one or two appointments, is it?
Dr Zimmerman: No, not necessarily. In fact, usually you would attempt to re-engage, find out why they didn’t get to the appointment, maybe liaise with other services involved like HiROADS and try some coordination. So you just don’t immediately bring them in.
Ms Whittemore: And so, you’d have to agree, wouldn’t you, that during this time, there would be a real risk that the Applicant, if he wasn’t being compliant with his meds, would be at a real risk of re-offending during that period?
Dr Zimmerman: If they’d missed their medication once, it’s unlikely that they would immediately relapse into psychosis and, you know, I think that’s why as treating clinicians, we often don’t bring people in straight away, because there is a period of time before someone relapses into a major psychosis.
Ms Whittemore: But it may be the case that there’s a couple of occasions before he’s taken in? Is that right?
Dr Zimmerman: Yes, that’s correct.
Ms Whittemore: And if that was the case, that there are a couple of occasions or, for example, he couldn’t be located during that period, there’d be a real risk that he might re-offend?
Dr Zimmerman: The risk would go up the longer he was disengaged from services.”
[My underlining]
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
It was contended on behalf of the Applicant that the evidence of his sister contained a realistic assessment of her frustrations with her brother during a previous period where he was at a higher risk of offending. It was contended that despite the sister’s understandable frustrations with the Applicant’s repeated failures to follow the terms of numerous community corrections orders, the Tribunal should take note of the sister’s apparent confidence in his prospects of rehabilitation and of staying on his medication in the future.
The Tribunal was referred to steps the Applicant has taken to rehabilitate himself during his time in custody, including his completion of an alcohol and drugs course that ran for seven weeks and involved him spending significant time in defining strategies for managing his mental health symptomology. It was urged on the Tribunal to accept that the Applicant has used his time away from the community, particularly his time in criminal custody, to train, upskill and gain qualifications which, apparently, indicates compliance with his allocated regime of treatment, but also demonstrates a level of planning for his future that he has contemplated during his time out of the community.

It was further contended on behalf of the Applicant that the Respondent had apparently not taken issue with the suggestion that the Applicant has indeed been compliant with his regime of medication during his time in criminal custody and immigration detention. This was contended to be something that should go to the credit of the Applicant, because “prison is not necessarily a drug-free zone and him staying sober and for him to take steps to ensure regular Alcoholics Anonymous meetings in those circumstances…are to his credit.”
The submission made on behalf of the Applicant that an assessment of any future risk of harm must be fixed at “relatively low.” His representative conceded that “…the robberies toward the end [of the Applicant’s offending history] do push it in a particular direction.” But it was urged on the Tribunal that the vast majority of the Applicant’s offending, apparent from his criminal history, involves relatively minor offending, and while there may be a consistency and frequency to that minor offending, those specific offences are usually of low seriousness.
The further submission urged on the Tribunal was that there was an absence of sophistication in the Applicant’s offending and that his offending quickly came to the attention of police and that this swiftness of apprehension applied to most, if not all, of the offences he has committed. It was suggested that the Applicant is not a sophisticated offender and that, as such, he is not going to be of any high risk in future to the Australian community.
I have difficulty in accepting the submission that the nature of the harm should the Applicant re-offending in future would not be serious and I reject it accordingly. I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. Were this Applicant to re-offend, the resulting harm would be very serious and it could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm to members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I have had regard to the totality of the evidence of Dr Zimmerman and I am not convinced that this Applicant does not remain a real risk of re-offending and doing so with a propensity towards violence. The inescapable difficulty for this Applicant is that both his risk of re-offending and the nature and harm that could be caused were he to re-offend are things that, as was put by the Respondent’s representative, are “inextricably linked to the Applicant’s mental health and substance abuse disorder.”
His condition precludes him having an ability to remain compliant with his allocated treatment regime involving the absolutely essential requirement that he takes the prescribed dosages of anti-psychotic medication and that he otherwise manages his serious difficulties with alcohol. As conceded by the Respondent, one can see a level of compliance with defined treatment regimes together with an abstinence from alcohol during the time the Applicant has been removed from mainstream society and placed in either criminal custody or immigration detention. I accept the submission that this is not compliance such as to be indicative of an ability by the Applicant to remain in control of his psychotic symptoms and difficulties with alcohol were he to be released into the general community.
The unfortunate reality for the Applicant is that his history in the community is indicative of repeated failures to meet the requirements of a number of community corrections orders and to otherwise control his consumption of alcohol. This unfortunate reality has dominated his history of offending and, indeed, has been the primary feature of virtually his entire period in this country. It would, in my view, be dangerous and unreliable for the Tribunal to find that the Applicant is of a low risk of re-offending in circumstances where he has an undeniable history of flagrantly disregarding community corrections orders designed to (1) give him the opportunity to engage with the rehabilitative process and (2) keep him out of the confines of custodial terms of imprisonment.
The further troubling aspect of the Applicant’s history is that despite a supportive family around him, he has failed to ameliorate his pattern of repeatedly abandoning regimes of treatment designed to assist him. The Applicant gave vague and unconvincing evidence about an apparent escalation in the seriousness of his offending at the times when he was not residing at the family home. This evidence is both unclear and inconsistent with the evidence provided by other family members. Viewed cynically, it could be the case that the Applicant seeks to explain the most serious episodes of his offending on the basis that during those periods, he did not have the support of his family around him. The evidence simply does not support such a finding.
I am of the view that the Applicant has always had a protective and supportive family around him and that he has been living with his parents at the time of his most recent – and serious – offending. Even in the circumstances of living with his parents, the Applicant was not able to maintain compliance with a defined regime of treatment or to otherwise control his intake of alcohol.
Dr Zimmerman gave evidence of certain “protective factors” that would assist the Applicant to observe and adhere to regimes of treatment in the future. The difficulty with her evidence is that all of those protective factors have, in one form or another, been present in the past, yet had no effect on ceasing or moderating the frequency or level of seriousness of the Applicant’s offending. He has, in the past, had the benefit of (1) living with his family, (2) stable accommodation, and (3) the support of his family. Dr Zimmerman says he will need these three factors going forward if he is to remain at a low risk of re-offending. I cannot allocate much weight to that evidence because, as I have mentioned, the Applicant has had the benefit of these three things in the past and they have had no effect on the nature of his offending or its frequency.
A fourth factor identified in Dr Zimmerman’s evidence involves what she has described as the “four pillars” of treatment for the Applicant. Dr Zimmerman conceded that if any one of those four pillars is missing, in any regime of treatment or management of the Applicant’s mental health symptoms, her assessment of a low risk of re-offending cannot be maintained. Indeed, Dr Zimmerman said “the risk would be elevated in the absence of those sorts of supports, yes.” Dr Zimmerman’s evidence seemed predicated on two further things.
First, she made a recommendation that the Applicant be placed on an involuntary treatment order because “…everything needs to be done to ensure that if there is disengagement, if he was to become non-compliant with medication, that could be acted on swiftly and that he could be brought back into hospital and put back on medication, yes. And that’s based on his history where that hasn’t always occurred.” Dr Zimmerman conceded that if such a treatment order were not made by the Mental Health Tribunal, then, in her opinion, she would have to “absolutely” revise upwards her initial assessment of a low risk of re-offending.
Second, Dr Zimmerman stipulated the necessity of a “safety net” in the event the Applicant’s history of non-compliance with treatment orders and regimes were to recur. She accepted that given the Applicant’s history of non-compliance, there is a real risk that he will fail to engage with some or all of the services stipulated by Dr Zimmerman in her “four pillars” structure. That safety net would be a program like HiROADS that according to Dr Zimmerman, involves targeted intervention in specific circumstances where a patient fails to comply with a regime of treatment. In the final analysis, Dr Zimmerman agreed that it would only take a couple of episodes of non-compliance with a treatment regime or a period of not being able to be located for the Applicant’s risk profile to be significantly revised upwards. As observed by Dr Zimmerman, “The risk would go up the longer he was disengaged from services.”
The difficulty with the Applicant’s evidence is to be found in his refusal to acknowledge any insight or understanding into the absolutely critical importance of him complying with his allocated regime of treatment and controlling his intake of alcohol prior to the most recent occasion on which he was placed in criminal custody. It is propounded on the Applicant’s behalf, and it is also contained in Dr Zimmerman’s evidence, that his most recent removal from the Australian community has resulted in some kind of epiphany that has resulted in him developing the necessary insight into, not just the consequences of his offending, but the specific factors giving rise to his propensity to offend.
That contention (and evidence of Dr Zimmerman) is to be rejected because the Applicant has been propounding – as far back as 2011 – that he did have an understanding of the importance of taking his medication and remaining sober. This is apparent from his relevant statement dating from 2018 where he says:
“… because I stopped my medication, I had a re-lapse. I became really sick again and I ended up in hospital for a few weeks.
I learned a big lesson from this. Even when I think I’m okay from illnesses that need ongoing treatment, if I don’t stick to my treatment, my brain doesn’t work the way it should. This means I sometimes do things to hurt other people.”[26]
[26] Exhibit R3(a), Section 501 – G Documents, G15,, Attachment K2, page 151.
Following from the above statement, any asserted understanding or insight into his offending could reasonably expected to have been augmented as a result of counselling and treatment that he received pursuant to the community corrections order made in 2013. The stark reality is, despite what he may have said in the past and what he may say now, his history demonstrates an absence of compliance with any allocated regime of treatment and any demonstrated capacity to remain sober while in the community. Accordingly, I have no confidence that, were he to be released into the community now, the position would be any different.
The Applicant’s lack of insight into not just his past conduct, but his capacity to adopt and adhere to immediate and future strategies for control of his mental health symptoms and problems with alcohol was also apparent from evidence that he gave at the hearing. The Tribunal cannot be confident that he will not again relapse into repeated failures to follow his treatment regime in circumstances where the evidence goes no further than the following:
(1) the Applicant saying that his primary strategy for future self-regulation was “just to say no to alcohol and to take my medication”, and;
(2) his mother intending to reach out to community elders for support and intervention in the event the Applicant yet again fails to comply with a treatment regime and/or resumes abusing alcohol. As noted by the Respondent’s representative, it is a matter of concern that, in her own evidence, the mother spoke of presently drinking alcohol to cope with the stress and difficulties arising from the current plight of the Applicant. It is clear then, were the Applicant to be returned to his parent’s house, there would be alcohol within his immediate vicinity, and;
(3) the asserted, but ultimately misplaced, confidence of the Applicant’s sister that if the Applicant did not live with his parents, he could go and live with her and that she would ensure he would take his medication, remain sober and otherwise keep his life on an even keel. Although well intended, this evidence of the sister went nowhere. I agree with the Respondent’s contention. It is simply not plausible that the Applicant’s sister, with three young children, as a single mother who works full-time, will be able to ensure that the Applicant remains compliant with his medication and that he also remains sober, despite what may be her very best intentions. The Applicant has not listened to either clinicians, counsellors, his parents or his siblings in the past. There is no convincing reason to convince the Tribunal that he would do so now in the event of his release back into the Australian community.
There are two further aspects to the evidence which warrant discussion. The Applicant’s sister spoke of the support that would be available to the Applicant from the church and the community around it. The sister refused to acknowledge, in cross-examination, that the Applicant had not had church and community support in the past. Her evidence about previous church and community support should be rejected. As noted by the Respondent’s representative, the Applicant’s father is a leading light in that specific church and community in his position as a Pastor. In addition, the Applicant gave evidence that he himself has had previous involvement in the church because he has participated in its choir. It is thus difficult to accept that the Applicant has not had the support of the church and the community in the past. It did not stop him from offending then, and I do not expect it will stop him from offending again, were he to be released into the Australian community.
In 2016, the psychologist, Ms Karla Lechner, thought that the Applicant was readily disposed to expressing regret for his offending conduct after he committed it. But, Ms Lechner’s report goes on to demonstrate the Applicant’s inherent lack of insight into his offending when she thought the Applicant “…impressed as quite cognitively simple with limited insight on the impact that his behaviour has on both himself, and others,” and that the Applicant “…has been linked with (treatment) services in the past but either drops out of contact… or contact diminishes when he remains well for a period of time.”[27]
[27] Exhibit R3(a), Section 501 – G Documents, G15, pages 162-163.
Conclusion: Primary Consideration A
To summarise, my finding is that this Applicant’s demonstrated lack of insight into his offending, coupled with his history of repeatedly breaching and otherwise failing to comply with defined regimes of treatment points to a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community. This is despite the best efforts of clinicians, sentencing courts, his family and his local church community. Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and, quite conceivably, catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Respondent’s Statement of Facts, Issues and Contentions speaks of the Applicant having (1) a minor sister (aged 14) and (2) three minor nephews (aged 8, 10, and 12). It is contended on behalf of the Applicant that this Primary Consideration B is in his favour but is accompanied by a concession that “…it is not the strongest case of best interests of minor children.”
The evidence adduced at the hearing on behalf of the Applicant was to the effect that he is a positive influence in the lives of his three nephews and his minor sister. It was conceded that the Applicant was not a parental figure to any of the four children, but that he did have regular contact with each of the children and enjoyed a positive relationship with them.
As I understood the evidence, the Applicant’s relationship with his three nephews derives, in large part, from the limited involvement their biological father has with them. To an extent, it might be regarded that the Applicant has stepped into a fatherly role for these three children. I think that would be stating his role too highly, despite the fact that he seems to speak regularly with his nephews on the telephone.
There are, in fact, two further minor children of a brother of the Applicant. However, it is conceded that on behalf of the Applicant that those two further minor children should be of less weight in this consideration, because the Applicant has no established relationship with them, although that position may change in the future.
The Applicant’s involvement with his above mentioned three nephews appears to be of limited scope, seemingly comprising (1) taking them out to fast food restaurants, (2) playing basketball or football with them, and (3) speaking with them on the telephone. I have difficulty in accepting that the Applicant plays some kind of parental or fatherly role in their lives because of two factors. First, the children are primarily parented by their mother, and, secondly, according to the evidence of their mother (the Applicant’s sister), their biological father is presently agitating for parenting orders for defined and periodic contact time while also attending milestone events in the children’s lives, such as school graduations.
The evidence was not clear in terms of any relationship the Applicant has with his 14 year old sister. I cannot recall any evidence suggesting he has played any sort of parental role in her life, and certainly, he has not played any role that would usurp the primary parental role played by the Applicant’s parents in caring for her. The evidence is similarly vague about why the Applicant has played no role in, and has had no involvement with, the infant children of his brother.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(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);
(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;
(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;
(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;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

It can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(b)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[33]
[33] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
At the hearing, both parties submitted that it is necessary for the Tribunal to turn its mind to the Applicant’s claims that this country owes him non-refoulement obligations.[34] While it is necessary for the Tribunal to turn its mind to those claims, it is unnecessary for this Tribunal to make a definitive decision on whether Australia has non-refoulement obligations to the Applicant. This is on the basis that the Applicant is able to make an application for a Protection visa if the mandatory cancellation decision under review is not revoked.
[34] See Exhibit A3, Applicant’s SFIC in Reply, dated 18 February 2019, page 3, paragraph [7]. See also Exhibit R1, Respondent’s SFIC, page 10, paragraph [38].
While I both concur with and agree to follow that submission, I nevertheless will, more out of an abundance of caution than anything else, briefly address this Other Consideration (a). The Applicant has contended and continues to contend that he fears the prospect of returning to South Sudan. In his Statement of Facts, Issues and Contentions (in Reply), the Applicant says he:
“…is at risk of persecution by reason of, either cumulatively or separately, his:
a)    Membership of particular social groups, namely:
i.Member of an ethnic group at conflict with another; and/or
ii.Mentally ill persons in South Sudan; and/or
iii.Returnees and failed asylum seekers; and/or
iv.Returnees who have not lived in South Sudan since childhood; and/or
v.Returnees who have no family or tribal connections in South Sudan; and/or
vi.Any other identifiable social group of person, including without limitation, any combination of the above groups identified.
b)    Race on account of him being ethnically Nuer; and or:
c)    Imputed political opinion in opposition to the ruling Dinka on account of him being ethnically Nuer.”[35]
[35] Exhibit A3, Applicant’s SFIC in Reply, page 2, paragraph [4].
The Applicant seems to have raised his asserted traumatic experiences in South Sudan at the time of being sentenced by the learned sentencing Magistrate at the Dandenong Magistrate’s Court in November 2016. The highest it was put by the learned sentencing Magistrate was as follows:
“[Representative of the Applicant] Your Honour, his history – quite clearly, he’s a person who hasn’t had it easy in life in Sudan. Your Honour would have seen from his history that there’d been some hardship suffered by the family, the devastation of their village to fire, and the loss of his sister in that fire – one of his sisters, and he has continued post-traumatic stress as a result of what he observed in Sudan. He continues to suffer nightmares and flashbacks and has a strong avoidance to that topic.”[36]
…
His Honour: [The Representative of the Applicant] has told me, and I accept on all the material that’s before me, that you continue to suffer from your experiences as a young person, that you suffer nightmares and flashbacks as to your experiences.”[37]
[36] Exhibit R3(a), Section 501 G Documents, G6, page 41, lines 28-31, page 42, lines 1-5.
[37] Ibid, page 49, lines 10-13.
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A 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…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where 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 the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[38] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[38][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[39] In Greene v Assistant Minister for Home Affairs,[40] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[41]
[39] [2018] FCA 650.
[40] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[41] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Refugee (Subclass XB 200) visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[42] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[42] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that an assessment was made before the Applicant came to Australia in March 2003. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).[43]
[43] Ali v Minister for Immigration and Border Protection [2018] FCA 650.
As things stand, the Applicant has given evidence of previous persecution against him, his family and the ethnic minority to which they belong in South Sudan. While those claims were, to an extent, ventilated in evidence in chief and tested in cross-examination, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to March 2003 that his claims for a Refugee (Subclass XB 200) visa were genuine. The Applicant has given evidence about his traumatic experiences in South Sudan, but the totality of his evidence about harm to him, were he to be returned to South Sudan, seems to principally centre on his possible persecution as a member of an ethnic minority.[44]
[44] See paragraph [134] of these reasons for additional grounds of apprehended persecution.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his visa status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
The Respondent appropriately concedes that the Applicant’s immediate family are either Australian citizens or are residing in Australia. The Respondent further acknowledges that removal of the Applicant would have an adverse effect, in the form of emotional hardship, on his family members.[45] Be that as it may, as I have mentioned earlier, in relation to the best interests of minor children, there is no evidence to suggest the Applicant will not be able to make contact with his family via Skype, SMS, and/or other electronic/digital platforms.
[45] Exhibit R1, Respondent’s SFIC, page 11-12, paragraph [42].
The Applicant arrived in this country in March 2003, aged 14 years. Given that he commenced offending (in May 2005) relatively soon after his arrival in this country, less weight should be afforded to this Other Consideration (b).[46] There is little or no evidence before the Tribunal to enhance the weight attributable to this Other Consideration (b) on the basis of the Applicant having made any positive contribution to the Australian community during his time in this country.[47]
[46] The Direction, paragraph 14.2(1)(a)i.
[47] Ibid, paragraph 14.2(1)(a)ii.
It was propounded in oral evidence given at the hearing that any removal of the Applicant would seriously compromise the care of his ailing father who suffers from poor health as a result of a stroke that he suffered whilst in Sudan. I have difficulty in accepting the veracity of that submission in circumstances where the evidence pointed towards the Applicant’s family being a close-knit family, and that some of his siblings still reside in the family home.
The Respondent’s further contention, with which I agree, is that this Other Consideration (b), if found to weigh in favour of revocation, should be allocated limited weight and does not outweigh Primary Considerations A and C for the purposes of determining this application. Accordingly, I find that this Other Consideration (b) moderately weighs in favour of revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
It is contended on behalf of the Applicant that if he is returned to South Sudan, the impediments he would face “…can only be described as substantial.” Particular reference was made to the state of the Applicant’s mental health and that, in the absence of, available treatment of the type to which he has become accustomed in this country, the further contention was that “…it is likely that he will suffer significantly.”
This submission was sought to be augmented by reference to the most recent Department of Foreign Affairs and Trade (“DFAT”) Country Information Report for South Sudan, portions of which are summarised in the material.[48] It was contended that the requisite mental health services in South Sudan “… are simply non-existent.” As a corollary of that, it was further contended that there would be no social and/or economic support available to the Applicant if returned to South Sudan.
[48] Exhibit A3, Applicant’s SFIC (in Reply), pages 2-3, paragraph [5].
I am also mindful of the evidence given by Dr Zimmerman about the “…devastating effect on his mental state…” were the Applicant to be returned to South Sudan.
There was some level of contest in the evidence about whether the Applicant’s capacity to re-establish himself in South Sudan would be further impacted by an inability to obtain a “nationality card”. While the Applicant accepts he has a right to South Sudanese citizenship, he says he may not be able to comply with the application process to be recognized for the purposes of obtaining such a card.
I have misgivings about such a contention propounding, as it seeks to do, the Applicant’s apparent anonymity where he to be returned to South Sudan. He has a sizeable extended family and if the connections that the Applicant’s family has to the Nuer community in Australia are any indication[49], it is somewhat of a stretch to suggest that the Applicant will not be able to identify a single contact/witness/other familiar face in South Sudan who could attest to his birth and origin to the extent necessary to obtain a “nationality card”.
[49] Exhibit R3(a), Section 501 – G Documents, G11-13, pages 77-83.
Harsh though it may sound, the Respondent’s representative did draw the Tribunal’s attention to the following portions of the evidence provided by his parents in the course of this matter. At the hearing, the Applicant’s mother said “…the majority of our relatives have gone from South Sudan.” Notably, she did not say that all of their relatives had left South Sudan. Similarly, the Applicant’s father notes in his statement that “… a lot of my family were forced to flee”.[50] Again, the Respondent’s representative made the point that this statement does not say all of the family fled South Sudan. As also noted by the Respondent’s representative, the Applicant’s father did not give evidence at the hearing, and any weight attributable to his written evidence must thereby be reduced.
[50] Exhibit A6, Statutory Declaration of the Applicant’s father, declared on 23^rd November 2018, page 1, paragraph [6].
With further reference to the extent of actual or potential connectedness of the Applicant to South Sudan, the Respondent’s representative noted that neither the Applicant’s parents or his sister have said, in either oral or written evidence, that there is absolutely no one at all from the Nuer tribe – be it a family or non-family member – who could attest to the Applicant’s birth or origin such as to facilitate his obtaining of a “nationality card”. If that were the case, one would reasonably have expected such evidence to have been led by the Applicant, but this did not occur. On that basis, I regard as implausible the contention that there is no one at all in South Sudan who could vouch for the Applicant upon his return there.
There is a ready acknowledgement by the Respondent of the limited nature of mental health facilities in South Sudan.[51] As against that, regard must be had to the ambit of paragraph 14.5(1) of the Direction which relevantly stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country. As contended on behalf of the Respondent, while there is an acknowledgement of limited facilities in South Sudan, it does not necessarily follow that South Sudan is entirely devoid of such facilities. Nor is there evidence that the Applicant would not be able to access those facilities in the same manner as they are available to all of the other citizens of South Sudan.
[51] Exhibit R1, Respondent’s SFIC, page 12, paragraph [45].
The Respondent further acknowledges that the Applicant may face initial difficulty in re-establishing himself in South Sudan; Its further contention is that the evidence does not demonstrate that such impediments would be insurmountable.[52] The Respondent accepts that this Other Consideration (e) weighs in favour of revocation, but that it does not outweigh the Primary Considerations A and C, favouring non-revocation. I agree.
[52] Ibid, page 12, paragraph [46].
Conclusion: Other Considerations

The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs moderately in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant;
(e)Extent of impediments if removed: weighs in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 164 (one hundred and sixty – four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[SGD].............................................
Associate
Dated: 1 March 2019

Date of hearing: 21 and 22 February 2019

Advocate for the Applicant: Mr David Carolan (Counsel)

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: Ms Kate Whittemore (Solicitor)

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	21 and 22 February 2019
Advocate for the Applicant:	Mr David Carolan (Counsel)
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Ms Kate Whittemore (Solicitor)
Solicitors for the Respondent:	Sparke Helmore