VSGP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3435

VSGP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3435 (7 September 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2018/7283
GENERAL DIVISION  )
Re: VSGP
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Deputy President Britten-Jones
DATE OF CORRIGENDUM:            9 September 2020
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by including the following details after the decision outcome at paragraph 106:
Dates of hearing:  28 - 30 August 2020
Applicant’s Representative:  Mr R Kornhauser & Mr M Radzaj of Counsel, instructed by Refugee Legal
Respondent’s Representative:  Mr A Cunynghame, Sparke Helmore

[Sgnd]

...................................................................
P BRITTEN-JONES
(Deputy President)

Division:GENERAL DIVISION
File Number(s): 2018/7283
Re:VSGP
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date: 7 September 2020

Place: Adelaide
The decision of the Tribunal is to set aside the decision dated 6 December 2018 and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 1 February 2017.
.......................[Sgnd]............................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – other considerations outweigh primary considerations - decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
INTRODUCTION

This hearing arises from orders made by the Federal Court on 19 March 2020 which quashed and remitted the decision of the Tribunal made on 1 March 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).[1]
[1] All references to legislation are to the Migration Act unless otherwise stated.
THE DECISION TO CANCEL THE VISA
On 1 February 2017, the applicant’s Class XB Subclass 200 Refugee (Permanent) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 4 February 2017, the applicant made representations seeking revocation of the cancellation decision. The applicant’s submissions included that:
·     he has spent half of his life in Australia and has always worked and he has no connection with South Sudan
·     he fears for his life if he is removed to South Sudan
·     he is sorry for what he has done and will not re-offend
·     he has been ‘cleaned’ of alcohol for two years and from now on will take his medication for mental illness
·     he is close to his family and wants to remain in Australia with them.
On 14 October and 26 November 2018 the applicant provided written submissions in letters from Refugee Legal to the delegate, which included statutory declarations of the applicant and his father, letters of support from community members and reports from Dr Mullen, forensic psychiatrist, dated 2012 and from Carla Lechner, consultant psychologist, dated 2016.
On 6 December 2018, after taking into account the representations made by the applicant, a delegate of the Minister for Home Affairs decided under s 501CA(4) not to revoke the cancellation decision (the delegate’s decision). The delegate’s findings were on the basis that the applicant represents an unacceptable risk to the Australian community and that the protection of the Australian community outweighs the best interests of his minor sibling and nephews and certain other countervailing considerations.
On 12 December 2018, the applicant applied to the Tribunal for a review of the delegate’s decision.
At the hearing before me, the applicant was represented by counsel, Mr R Kornhauser on instructions from Refugee Legal. The respondent’s counsel was Mr A Cunynghame from Sparke Helmore.
I am required to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request.[2]
[2] Minister for Home Affairs v Omar [2019] FCAFC 188 at [34] – [37]; and GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31] – [32].
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has ‘a substantial criminal record’ as defined under s 501(7). The applicant concedes the same.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
THE OFFENDING
On 22 November 2016, the applicant was sentenced after pleading guilty in the Dandenong Magistrates Court to 18 months’ imprisonment, with a non-parole period of six months, in respect of offences of theft, damaging property and breach of bail.
The magistrate in his sentencing remarks dated 22 November 2016 noted his post-traumatic stress disorder and his schizophrenia and said:
When you do engage in either alcohol or drug use it clearly affects your mental health, your behaviour and you become a risk, clearly, to the community. When you consider what occurred to that young lady at the petrol station, she was just simply lining up, was approached by you and then ended up having her vehicle stolen.
… On the current community corrections order you’ve only attended two appointments. You disengaged at a very early stage.
… 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. Your offending is not deescalating, 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.
The applicant was convicted of over 100 offences in the period from 11 May 2005 to 15 December 2017. He pleaded guilty to them all and accepts that the national police certificate is accurate. His first offence in May 2005 was for driving an unregistered motor vehicle whilst in Adelaide at 16 years of age. His next offence was in November 2006 in the Dandenong Magistrates Court for dealing in proceeds of crime and giving a false name. Over the next decade there were numerous and regular convictions involving assaults, theft and dishonesty offences, drug offences, driving offences, public disorder offences, breaches of community corrections orders and breaches of bail. In addition to his most recent term of imprisonment, he was sentenced to a term of imprisonment for 114 days in 2008 for offences including attempted theft, unlawful assault, resist police and assault police.
EVIDENCE
The applicant gave oral and written evidence as follows. He was born in 1988 in Malakal which is now part of South Sudan. His childhood in Sudan was traumatic due to the conflict in that country. He is of Nuer ethnicity and his father is a Christian pastor. He is the fifth of 11 children. They had to flee due to persecution and the civil war. He saw his cousin get shot in the head and back and his village burnt to the ground. At 11 years of age when they had fled to Khartoum his father had a stroke and was paralysed on one side. Life became more difficult and he had to work in the market to support his family.
The applicant and his family came to Australia as refugees via Egypt in March 2003. They lived in Adelaide where he attended St Paul’s College and then moved to Melbourne from 2006. He attended TAFE and got work driving a forklift in a factory which he did for four years. In 2006 he became unwell and was diagnosed with schizophrenia. He started drinking and getting in trouble with the law. He was taking medication but stopped in about 2011 when his life really went downhill. His mind was completely disordered – he pushed his family away and became homeless for a while. In 2010 he was convicted of numerous driving related offences and received a community-based order which he breached. He was told to follow his medication and to continue with his mental health plan, but despite this assistance he went on to commit more serious offences including assaulting and resisting police, theft, possess cannabis and assault by kicking an emergency worker on duty. He recognises now how the drugs and alcohol affected him and his mental health, but he could not change his ways at that time.
He was in prison from September 2016 and was forced to remain sober which was hard; but having been sober for four years now he feels much better. He attended alcohol counselling and classes for drug and alcohol rehabilitation. He realises now that the drinking made it hard to treat his schizophrenia. He says he will not drink again.
He knows little about South Sudan but fears for his life if he is returned. He worries about the lack of family support in Sudan and not being able to get proper treatment for his mental health issues. He expressed remorse for his offending and understands now how important it is to get treatment for his schizophrenia and to stay away from drugs and alcohol. He wants to do the right thing by his family and to spend time with them if released.
In his statement dated 8 May 2020 the applicant said:
I explained in my last statement the things that were happening in my head at the time of my offending. I was very unwell and hearing voices in my head, which was made worse by using Marijuana and drinking alcohol. I did not feel myself and I did things I really regret. I am very sorry to anyone I hurt by my offending.
Now that I am a stable and being treated for Schizophrenia, I look back and it is difficult to think about my old behaviour. It is not who I am and not who I want to be moving forward with my life.
I am aware that Schizophrenia is a serious mental health condition and I know how it can affect my behaviour. I take full responsibility for what I have done, and I know I have to stay away from alcohol and drugs to stick to my treatment plan.
I am much more stable now and sober for a number of years, which has allowed me to see things a lot clearer. I now understand that I cannot drink alcohol or smoke marijuana, because they make my condition much worse and I never want to return to the way I was back then.
It was very difficult to break that cycle at that time because of the alcohol and drugs. Drinking alcohol and smoking Marijuana made my head worse and then the voices came back and I would stop taking my medication.
Since I have been sober, I take my medication – each day I take an antipsychotic tablet which keeps me in a good place. In detention, a psychiatrist reviews my medication and treatment every three months, and checks in to see how I am doing with my condition.
The applicant’s father provided written statements which confirmed the horrific upbringing that the applicant had in Sudan and as a refugee. He confirmed that there is no family left in South Sudan and how he fears for his son’s safety if returned there. He said that his son has been a great support to him and assisted him to do the things he could not do because of his stroke.
The applicant’s sister provided a written statement. She has three young boys and describes the applicant as a good uncle. She talks to him two or three times a week and so do her boys. She says that she and her family will suffer greatly if the applicant is returned to South Sudan. She would be pleased for the applicant to stay with her upon his release. She referred to the applicant’s Christian faith which the family continues to practise. She believes in her brother and wants to help him.
The applicant’s mother and brother also provided statements in support of the applicant.
Selba Luka gave oral evidence and a letter outlining the counselling services that were available to the applicant upon his release into the community. She is a qualified mental health clinician who founded Afri-Aus Care which provides support to African Australian youth. The applicant has expressed interest in Ms Luka’s programs and met her in 2015 when he came to play in their basketball team.
A team leader at SECADA, who provide drug and alcohol recovery support, provided a letter dated 19 May 2020 advising of the applicant’s attendance by phone at a comprehensive assessment and that an individual treatment plan had been formulated with the applicant which includes relapse prevention strategies, stressors and triggers and improving emotional regulation.
Dr Nina Zimmerman is a forensic psychiatrist who prepared two written reports with respect to the applicant dated February 2019 and June 2020. She gave oral evidence and confirmed her opinion that he presents a low risk of re-offending. In her written report she said:
[The applicant] was born in Sudan and witnessed his village burning down and much death and destruction as he and his family fled first to Khartoum and then to Egypt. His schooling was cut short when his father suffered a stroke and he grew up in poverty. [The applicant] lived in difficult circumstances until his family finally made it to Australia when he was 15. He has had symptoms of intrusive memories of the trauma, death and destruction that he experienced from his primary school years. After initially settling well into school here, he began smoking cannabis and developed an enduring psychotic illness. He was diagnosed with schizophrenia and post traumatic stress disorder when he was 18 and has had a number of subsequent admissions. Unfortunately he has had repeated episodes of non-compliance with antipsychotic medication and began abusing alcohol very heavily. The resulting chaotic lifestyle he was leading lead to conflict with his father, relapses in his illness and offending culminating in his most recent incarceration.
… [The applicant] was first admitted to a psychiatric unit in a floridly psychotic state. He was experiencing auditory hallucinations in the form of voices and experiencing delusions of reference, whereby he believed that he was receiving messages from the television and radio. [The applicant] was also experiencing grandiose delusions in the form of beliefs that he might be the new Messiah. The applicant had repeated admissions due to relapses of his psychosis over the next few years. He had been using cannabis earlier on but began using alcohol heavily.
Dr Zimmerman confirmed the diagnosis of schizophrenia and noted that the applicant has a history of depression and post-traumatic stress disorder both currently in remission. She said that he is currently free from any sign of positive symptoms of psychosis. Later in these reasons I will consider further the opinions expressed by Dr Zimmerman.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[5] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[5] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[6]
[6] Direction 79 at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·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 have to forfeit the privilege of staying in Australia.
·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 for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.

Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Factors that I must have regard to under paragraph 13.1.1 include:
·the principle that violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; and
·the sentence imposed by the courts for a crime or crimes (subject to the preceding dot point);
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The cumulative effect of the offending by the applicant is serious. From 2007 to 2016 there was a pattern of alcohol fuelled violence involving resisting arrest, assaults against police, emergency workers and other innocent persons including women.
The seriousness of the offending is reflected in the sentence of 18 months imprisonment in 2016. There is a trend of increasing seriousness starting with traffic and cannabis offences in 2005 and 2007 and then the series of assaults and property offences for which he was convicted from 2008 to 2016. The sentencing magistrate described his offending as ‘escalating’. Further, the applicant has a history of breaching community corrections orders, bail conditions, and family violence interim intervention orders. His offending is plainly serious, and it demonstrates a disregard of judicial orders and authority.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending the harm to the Australian community would be serious.
Likelihood of further criminal or other serious conduct
The respondent contends that the applicant poses a real and unacceptable risk of reoffending. In support of this contention the respondent says that the applicant’s risk of reoffending is linked to his mental health condition and substance use disorder. The respondent says that the applicant has demonstrated time and time again that he is unable to remain abstinent from drugs and alcohol and remain compliant with his medication when in the community. This is despite having the protective factor of a supportive family; having been treated for psychosis and treated by a psychologist and receiving drug and alcohol counselling; and having support services made available to him through numerous community corrections orders which were consistently ignored. The respondent also relies upon recent failings to comply with taking medication whilst in immigration detention although it is recognised that this has improved in the last 6 months.
In conclusion as to risk of re-offending the respondent said:
There is a real and unacceptable risk that the applicant will again take himself off his medication (as he has shown in immigration detention) and or relapse into drugs and alcohol if released to the community and commit further crimes of violence against members of the Australian community. The nature of the harm to members of the Australian community should the applicant reoffend would be serious and is an unacceptable risk.
The applicant relies upon the expert evidence from Dr Zimmerman that the risk of the applicant re-offending is low and that he does not pose a risk of serious violence or imminent violence. Dr Zimmerman accepts that the risk of re-offending would be increased if he lapses into alcohol misuse or psychosis, but she considers that he has developed coping strategies to remain sober and that his mental illness can be managed with medication. She reaches this conclusion based on the following:
(a)the availability of family and professional support which plays a crucial role to ensure he is not isolated and that he continues to engage with those willing to help him;
(b)his stated desire to continue his work as a forklift operator and to engage again with his church;
(c)he is no longer physically dependent on alcohol because of his four-year period of sobriety and the longer the period of abstinence, the greater the chance of avoiding a relapse;
(d)the prolonged absence of positive symptoms of psychosis;
(e)his alcohol and drug counselling and attendance at Alcoholics Anonymous reduces the chance of a relapse;
(f)the availability of specialist drug and alcohol counsellors such as SECADA and community services such as Afri-Aus Care;
(g)the availability of an Area Mental Health Service so that he can receive the benefits of case management as well as psychiatric review;
(h)his stated desire to take his medication and to stay off drugs and alcohol and his demonstrated insight into the link between these factors and his offending;
(i)his stated remorse and understanding of the harm his offending has caused in the past;
(j)his additional motivation of having been placed in detention for a lengthy period of time.
The respondent has made much of the fact that some of the above factors have been present in the past and the applicant has still reoffended, but I find that an important difference is that all of the above factors are now present together. It is not in dispute that the most significant factors that have contributed to his past offending are substance abuse and positive symptoms of psychosis. As the sentencing magistrate noted:
When you do engage in either alcohol or drug use it clearly affects your mental health, your behaviour and you become a risk, clearly, to the community.
I find that the main drivers of the applicant’s past offending, namely his alcohol abuse and failure to take his medication for his mental health, are now under control. The applicant has been sober for four years and has sworn to never drink again. I accept the applicant’s evidence that the cannabis use whilst in detention was a once off in circumstances where he was unaware that the tobacco offered to him was in fact marijuana. I find that it is likely that the applicant will take his medication and will stay off the alcohol and drugs if he is released into the community because he will have the support of his family and community services and the providers of care for his mental health. Noting paragraph 8(2) of Direction 79, it is appropriate to give substantial weight to the opinion of Dr Zimmerman as an independent and well qualified expert whose opinions were not contradicted by any other expert testimony. I conclude that the applicant poses a low risk of committing further offences.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[7] (2014) 225 FCR 424.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[8] In this case the nature of the harm upon reoffending is serious but the likelihood of reoffending is low. I do not consider that the harm to the Australian community is so serious as to pose an unacceptable risk.
[8] Direction 79 at 13.1(1).
I conclude that the primary consideration of protection of the Australian community still weighs in favour of non-revocation of the cancellation decision because there remains some risk, albeit a low one, of reoffending.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. 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;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant made no written submissions about the best interests of minor children in his statement of facts, issues and contentions or in his written submissions in reply. In oral closing submissions counsel for the applicant referred to his three nephews and his 14-year-old sister. The interests of these children would be affected by the removal of the applicant from Australia or his ongoing detention. The applicant said that he used to take his nephews to the park and out to Hungry Jacks. He wants to be a good uncle to his nephews and to help their mother, who has separated from the father of the children. Their mother (his sister) said that the applicant often talks to the children and that he would be an important person in their lives if he were released. I accept the evidence of the sister and the applicant about the relationship he has with his nephews. There was no evidence of significance with respect to the minor sister, so I am unable to conclude that revocation is in her best interests.
I find that the interests of each of the nephews weigh in favour of revoking the original decision, but I attach limited weight to this consideration in circumstances where there have been long periods of absence of the applicant in the lives of the nephews and a lack of meaningful contact whilst he has been outside of the community and where their relationship with the applicant is not parental in nature.
Expectations of the Australian community – 13.3 of Direction 79
Clause 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection,[9] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[10]
[9] [2017] FCA 1466.
[10] [2019] FCAFC 185.
The expectations of the Australian community are a primary consideration which must be taken into account when determining whether a cancellation decision should be revoked. Those expectations are expressed in clause 13.3(1) and they reflect the government’s views. It is not for me as a decision maker to make my own assessment of the expectations of the community. In that sense, those expectations have been ‘deemed’ by clause 13.3(1).[11]
[11] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [67] and [101].
The applicant submits that the reasoning of the majority in FYBR allows for an assessment of this primary consideration as to expectations of the Australian community that weighs in favour of the applicant. I am unable to agree with this submission. This is a case where the applicant has committed serious crimes in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia. As Stewart J says in FYBR:[12]
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa.
[12] Ibid [102].
However, the reasoning of the majority in FYBR makes it clear that despite the expectations of the Australian community weighing in favour of non-revocation, the applicant may ultimately succeed and have the cancellation decision revoked.[13] As Stewart J says:[14]
Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[13] Ibid [73] and [97].
[14] Ibid [102].
It is important to give separate consideration to, first, the expectations of the Australian community in so far as it applies to the applicant’s particular circumstances and, second, the ultimate exercise of discretion weighing up the factors for and against revoking the cancellation decision.
With respect to the consideration of the expectations of the Australian community in clause 13.3(1), I give due regard to what the Government has stated in Direction 79 as to its views on what the expectations of the Australian community are.[15] The applicant has failed to act in accordance with the expectation of obeying Australian laws. Further, the Australian community expects that the Australian government should cancel a non-citizen’s visa if a serious crime is committed.[16] I note that the offending of the applicant includes an assault against a woman and as such he should generally expect to forfeit the privilege of staying in Australia.[17] I take into account that Australia has a low tolerance of any criminal conduct by a person such as the applicant who had been participating in and contributing to the Australian community only for a short period of time before offending. The applicant commenced offending, albeit a driving offence, about 24 months after he arrived,[18] which is a relatively short period of time.
[15] Ibid [99].
[16] Direction 79 at 6.3(2).
[17] Direction 79 at 6.3(3).
[18] The applicant arrived in Australia on 12 March 2003 and he was convicted for his first offence in May 2005.
However, I do not consider that the applicant’s criminal offending, and the harm that would be caused if it were to be repeated, is so serious that any risk of similar conduct in the future is unacceptable.[19] In this regard, I note that the offending in the period 2005 to 2015 involved offences dealt with in the youth court or a Magistrates Court which reflects that the offending was in the lower range of criminal offending. The drug offences involved simple possession and not the more serious offences of trafficking or cultivation. Much of the offending occurred when under the influence of alcohol. Further, whilst an 18 month term of imprisonment was imposed which reflected the seriousness of the offending, the magistrate saw fit to set a relatively short non-parole period which would have seen the applicant eligible to be released into the community after only 6 months.
[19] Direction 79 at 6.3(4).
I conclude that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[20]
[20] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].
The applicant’s statement of facts, issues and contentions provide that:
(a)the applicant engages Australia’s international non-refoulement obligations on numerous grounds;
(b)the applicant would face significant impediments in establishing himself in South Sudan and maintaining even the most basic of living standards;
(c)the single greatest impediment faced by the applicant on his removal from Australia to South Sudan is that he would face the real risk of persecution and or significant harm.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. I am required to give separate and meaningful consideration to each of these representations. I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refinement obligations on the basis that ‘a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then.’[21]
[21] Ali v Minister for Home Affairs [2020] FCAFC 109 [101] and FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 [45].
I will consider separately the risk of harm if returned to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm

The applicant has made numerous representations concerning risk of harm in South Sudan.
The applicant raised in the Refugee Legal letter of 14 October 2018 that, if returned to South Sudan:
(a)he would face the prospect of serious harm given his particular profile as a person of Nuer ethnicity and a western returnee;
(b)there is a general risk of harm associated with the civil war and the general instability in the country;
(c)as a person with a mental illness, he would face stigma, marginalisation, inadequate treatment and imprisonment;
(d)he would also face forced conscription;
(e)the applicant submits that returning him to a country where he faces persecution and serious harm would be inconsistent with Australia’s non-refoulement obligations.
In his statement of 8 May 2020, the applicant said:
[28] As a Nuer man, I fear I will be targeted and killed by Dinka soldiers or people. I may be forcibly recruited by Nuer militia groups because of my ethnicity. I’m a young man who hasn’t lived in South Sudan for over 15 years – I would definitely be a target.
Country information from DFAT[22] refers to a violent crackdown by the government of the Nuer population in 2013 and reports that Nuer have continued to be targeted by groups aligned to the government. DFAT assesses that Nuer residing in areas under the control of the government, including Juba, face a high risk of official and societal discrimination and violence.
[22] Exhibit 5, DFAT, DFAT Country Information Report South Sudan (5 October 2016) [3.10].
Despite a peace deal, the report of the UNHCR on the position on returns to South Sudan dated April 2019[23] says that conflict remains and egregious human rights violations continue to be perpetrated and that sustainable conditions are not in place for the safe and dignified return of refugees in South Sudan. The overall security, rule of law and human rights situation remains highly volatile. It stands in the way of safe and dignified return for any person originating from South Sudan.
[23] Exhibit 4, UNHCR, UNHCR Position on returns to South Sudan-Update II (April 2019) [2].
I find that the applicant would face the prospect of serious harm given his particular profile as a person of Nuer ethnicity and a western returnee and that there is a general risk of harm and violence associated with the civil war and the instability in the country. The risk of harm would be exacerbated because he is a person with a mental illness.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
In Ali v Minister for Home Affairs [2020] FCAFC 109 the Full Court said with respect to Australia’s non-refoulement obligations:
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b) In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144 , Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
(c) In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).
(d) Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).
(e) The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).
[25] In general terms, the Full Court in Ibrahim held that Australia’s international non-refoulement obligations extend to obligations under treaties other than the Refugee Convention and that the scope of protection inherent in the s 36(2)(a) criteria is narrower than that afforded by the Refugee Convention itself.
As stated above, the applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[24] It is essential to ascertain the nature and scope of the grounds advanced in the representations to the delegate of the Minister in response to the invitation given under s 501CA(3)(b)[25] and to the Tribunal on this review. I am required to properly consider those grounds and the claims being made and the factual material being relied upon by the applicant.[26]
[24] Ali v Minister for Immigration and Border Protection [2018] FCA 650 [28].
[25] Ali v Minister for Home Affairs [2020] FCAFC 109 [86].
[26] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 [27].
The applicant submits he is a person in respect of whom Australia owes non-refoulement obligations under various international instruments and customary international law. Those various international law instruments, including the Convention relating to the status of Refugees (Refugee Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) give rise to non-refoulement obligations.
The applicant relied upon country information and his representations with respect to the following:
(a)the security and humanitarian situation in South Sudan generally;
(b)the targeting of civilians based on ethnicity and imputed political affiliations;
(c)targeting of returnees;
(d)forced recruitment of men in South Sudan;
(e)persons with mental health illnesses;
(f)harm perpetrated by the South Sudanese government and inability of the South Sudanese authorities to prevent harm.
The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his Nuer ethnicity and his status as a returnee from a western country in the context of the deteriorating security situation and ongoing civil war. I will not repeat the country information and the matters considered separately under risk of harm but they are relevant to non-refoulement and I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan.
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa[27] bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur.[28] The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable his detention would not be indefinite.[29]
[27] See Minister for Immigration and Border Protection v Le [2016] FCAFC 120 [61].
[28] Migration Act1958 s 198.
[29] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 [158].
Given that the legal consequence is that the applicant would be returned to South Sudan, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation.
The consequence of non-compliance with Australia’s treaty obligations does not only impact the applicant but it also impacts negatively upon Australia’s reputation and standing in the global community.[30] I consider that this adds further weight in favour of revoking the cancellation.
[30] See Ali v Minister for Home Affairs [2020] FCAFC 109 [91].
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support in the event that he were to return to South Sudan.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia in March 2003 aged 14. He has lived in Australia for more than half his life and all his adult life. His mother and father and his siblings (except one brother) live in Australia as permanent residents. The applicant has seven siblings living in Australia. He completed his secondary education in Australia and has attained certificates in timber merchandising, business management and warehousing. He has worked for four years as a forklift operator and one year as a meat processor. He has worked as a volunteer. This represents a period of positive contribution although I give it less weight because of his offending soon after his arrival. His family has expressed how devastated they would be if his visa remains cancelled. His father, who is partially paralysed due to a stroke, said that the applicant provided assistance to him in day to day activities and financially.
The applicant’s commitment to his education, his strong work ethic, his strong family links and length of time in Australia means that the strength, nature and duration of ties is a factor that weighs heavily in favour of revocation.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
The applicant submitted that I should find that this favours the applicant because his father, as a victim of one of his assaults, has expressed how he would be detrimentally impacted by his removal. I have already considered the father’s interest when considering the strength, nature and duration of ties so no further weight should be given just because his father happens also to be one of the applicant’s victims.
I find that this other consideration weighs neither in favour of, nor against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·the applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
The applicant is a 32-year-old man who suffers from severe mental illnesses of schizophrenia and post-traumatic stress disorder. He was born in Malakal which is now South Sudan’s second largest city. He and his family were forced to move to Khartoum and then on to Egypt. He fled his country with his family as a child and has not been back since. He has no close relatives in South Sudan and therefore would have no family support if returned there.
In his statement of 8 May 2020, the applicant said:
[29] I have also heard that there is lots of poverty and clean drinking water is hard to find. I know the medical facilities are not good. I won’t be able to get treatment for my medical condition if I am in South Sudan. I will be driven to the point where I will lose myself again if I can’t access the medication I need for my condition.
[30] My schizophrenia is a serious condition and without treatment, people lose their lives. I cannot return to a country where I am not able to survive or be treated for my medical condition.
The security and humanitarian situation in South Sudan is dire and presents a most significant impediment to the applicant if he is returned. The report of the UNHCR on the position on returns to South Sudan dated April 2019[31] says that the food security situation continues to deteriorate due to conflict driven displacement, low crop production, economic crisis, climatic shocks and humanitarian access challenges. It says that sustainable conditions are not in place for the safe and dignified return of refugees to South Sudan. It concludes that the overall security, rule of law and human rights situation remains highly volatile.
[31] Exhibit 4, UNHCR, UNHCR Position on returns to South Sudan-Update II (April 2019).
Country information from DFAT[32] reports that South Sudan’s population has extremely poor access to healthcare and that only 12% of the population is actively employed.
[32] Exhibit 5, DFAT, DFAT Country Information Report South Sudan (5 October 2016).
The South Sudan medical journal reports that persons with mental health disorders are not receiving the care and treatment they require and are likely to function poorly in the community. There are only two South Sudanese psychiatrists in the country and there are minimal outpatient facilities available and only 12 inpatient beds in Juba. Prisons have a role to play in the institutionalised care of people with mental health issues because of the lack of proper medical facilities. Some patients are detained in chains.
The applicant is particularly at risk because of his mental health for which he would most likely not receive the treatment or support he needs. Schizophrenia is a very serious mental health condition and it is clear that the applicant would not be able to access the medical services he needs to treat this serious condition. Without treatment, the consequences would be devasting for the applicant. Dr Zimmerman in her June 2020 report confirms the lack of mental health care and services in South Sudan and concludes that if returned the applicant would be at high risk of a relapse in his schizophrenia and destabilisation of his post-traumatic stress disorder.
In addition to this mental harm, the applicant would be at risk of physical harm due to the ongoing conflict and being a returnee of Nuer ethnicity. It is most unlikely in all of these circumstances that he would find or be able to work. He would have no family support and be forced to live in a completely unfamiliar country.
I conclude that the extent of the impediments facing the applicant if returned to South Sudan are extreme and unacceptable. The consequences for the applicant would be devastating. This consideration weighs most heavily in favour of revocation.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community favour non-revocation of the cancellation decision. Whilst the Australian community expects non-citizens to obey the law and their visas to be cancelled if they commit serious crimes, I consider it appropriate that the cancellation decision is revoked because of the presence of significant countervailing factors. Those factors include the international non-refoulement obligations, the strength, nature and duration of ties that the applicant has with Australia and the extent of impediments and risk of harm if the applicant is removed to South Sudan and, to a lesser degree, the best interests of minor children.
Clause 6(4) of Direction 79 refers to a circumstance where the offending is so serious that even other strong countervailing considerations may be insufficient to justify not cancelling the visa. This is not such a circumstance. The applicant’s offending is not so serious as to be decisive when all of the circumstances are considered. The applicant committed multiple assaults, theft and driving offences but an experienced forensic psychiatrist, Dr Zimmerman, has opined that the risk of further offending is low. This low risk means that less weight can and should be afforded to the protection and expectations of the Australian community. The applicant has the support of his very large family and has satisfactorily addressed his issues relating to mental health and alcohol.
In weighing the considerations for and against revocation of the cancellation decision, I give great weight to the real and significant risk of harm that the applicant would face if returned to South Sudan. This harm arises on two fronts. First, because the applicant would be at risk of being persecuted and physically harmed due to being of Nuer ethnicity and a returnee from a western country and because of general risk of harm associated with the civil war and the general instability in the country. Second, because of the lack of available treatment, and in fact positive discrimination, due to his diagnosed mental illnesses of schizophrenia and post-traumatic stress disorder. If returned to South Sudan, he would have no family or other support and he would likely lapse into a state of psychosis assuming he is not killed first.

I also give significant weight to the strength, nature and duration of ties that the applicant has with Australia.
I give only limited weight to the best interests of minor children.
I note that primary considerations should generally be given greater weight than other considerations but in the circumstances, including where there is a low risk of reoffending, I consider that the primary considerations of the protection and expectations of the Australian community are outweighed by the other considerations of the international non-refoulement obligations, the strength, nature and duration of ties that the applicant has with Australia and the extent of impediments and risk of harm if the applicant is removed to South Sudan.
It follows that I am satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 6 December 2018.

107.    I certify that the preceding   one hundred and six [106] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

........[Sgnd]................................
Administrative Assistant Legal
Dated    7 September 2020
Dates of hearing:  28 - 30 August 2020
Applicant’s Representative:              Mr R Kornhauser & Mr M Radzaj of Counsel, instructed by Refugee Legal

Respondent’s Representative: Mr A Cunynghame, Sparke Helmore