WKMZ and Minister for Home Affairs (Migration) - [2019] AATA 4381

WKMZ and Minister for Home Affairs (Migration) [2019] AATA 4381 (14 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4472
Re:WKMZ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati
Date:14 October 2019

Date of written reasons: 28 October 2019
Place:Melbourne

The decision under review is affirmed.
...........................[SGD].............................................
Member Tigiilagi Eteuati

Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
Legislation
Migration Act 1958 (Cth) – s 36, s 65, s 195A, s 197C, s 198, s 417, s 499, s 501, s 501CA, s 501J
Migration Regulations 1994 (Cth), sch 2, reg 866.226
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Al-Kateb v Godwin [2004] HCA 37
Ali v Minister for Immigration and Border Protection [2018] FCA 650
AXT19 v Minister for Home Affairs [2019] FCA 1423
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BDQ19 v Minister for Home Affairs [2019] FCA 163
Chol v Minister for Immigration & Anor [2018] FCCA 306
DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
DOB18 v Minister for Home Affairs [2018] FCA 1523
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2019] FCA 1132
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration & Border Protection [2017] FACFC 66
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Omar v Minister for Home Affairs [2019] FCA 279
Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554
PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – 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 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
28 October 2019
background

This is an application by WKMZ (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 17 July 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 202 (Global Special Humanitarian) visa.
The Applicant is a 26 year old citizen of South Sudan who was born in Sudan (as it then was) in 1993. The Applicant arrived in Australia in November 2005. He began offending in 2012. On 19 September 2016, after the Applicant had committed over 70 offences including over 20 crimes of violence, the Applicant’s visa was cancelled under section 501(3A) of the Act. These offences include the offences for which he was convicted on 18 May 2016 of robbery and make threat to kill for which he was sentenced to a total of 18 months imprisonment. On 21 September 2016, the Applicant sought for the cancellation decision to be revoked. On 9 January 2017, the Applicant was notified that after consideration of his application to have the cancellation decision set aside, the cancellation decision was set aside by the Minister’s delegate. On the same day, the Applicant signed an acknowledgement of receipt of the notice of the decision to revoke the cancellation of his visa. That acknowledgement contained the following statement:
“I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”
It appears that the Applicant was released from prison in late 2017. He reoffended in June 2018 and the Applicant was convicted and sentenced on 4 September 2018 for a number of offences including unlawful assault and recklessly cause injury. The Applicant was sentenced to an effective term of imprisonment of 12 months in relation to these offences.
On 22 October 2018, the Minister’s delegate cancelled the Applicant’s visa under section 501(3A) of the Act for the second time. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of 12 months and was serving a full-time term of imprisonment. On 26 October 2018, the Applicant sought for revocation of the cancellation decision. On 17 July 2019, the Minister refused to revoke the cancellation of the Applicant’s visa. On 22 July 2019, the Applicant applied to this Tribunal for review of that decision. This matter was heard on 3 and 4 October 2019.
The Tribunal decided to affirm the non-revocation decision on 14 October 2019, the last day the Tribunal was permitted to make a decision on review: see section 500(6L) of the Act. As the Tribunal had not finished recording the reasons for its decision in writing, the Tribunal did not give written reasons for its decision on 14 October 2019. The Tribunal publishes these reasons on 28 October 2019. This approach is in accordance with the decision of the Full Court of the Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151.
For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(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.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A17 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R3. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 35 of these reasons.
does the Applicant pass the character test?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 8 October 2018 shows the following offences committed by the Applicant:
(a)On 4 September 2018, the Applicant was convicted of the following offences:
(i)recklessly cause injury, the Applicant was sentenced to 9 months imprisonment;
(ii)unlawful assault, the Applicant was sentenced to 2 months imprisonment;
(iii)theft from shop (shopsteal)
(iv)theft
(v)commit indictable offence while on bail, the Applicant was sentenced in relation to the above three offences to 2 months imprisonment with one month to be served concurrently;
(vi)Drunk and disorderly in public place, the Applicant was convicted and discharged.
The Applicant was sentenced to an effective total period of imprisonment of one year in relation to all of the above offences.
(b)On 18 May 2016, the Applicant was convicted of robbery and make threat to kill and sentenced to an aggregate of 18 months imprisonment.
(c)On 23 March 2016, the Applicant was convicted of the following offences:
(i)intentionally damage property;
(ii)without authorisation/excuse enter private place;
(iii)three charges of drunk in a public place;
(iv)refuse or fail to state name and address;
(v)refused to leave private place after warning
(vi)unlawful assault;
(vii)two charges of contravene a conduct condition of bail;
(viii)wilfully trespassing a public place;
(ix)use indecent language in public place;
(x)assault police officer;
(xi)fail to answer bail;
(xii)wilfully damage property;
(xiii)throw missile to danger person;
(xiv)drunk and disorderly in public place;
(xv)fail to leave licensed premises – drunk/violent/quarrelsome; and
(xvi)two charges of possess cannabis
The Applicant was sentenced to an aggregate total sentence of imprisonment of 40 days in relation to these offences.
(d)On 23 March 2016, two charges of contravene community corrections order were found to be proven against the Applicant.
(e)On 19 November 2015, the Applicant was found guilty of the following offences:
(i)contravene community corrections order. Breach of community corrections order of 27 November 2014. The order was varied and the Applicant was given a community corrections order for 12 months to perform all 110 hours of unpaid community work;
(ii)Two charges of affray (common law);
(iii)unlawful assault. The Applicant was sentenced to an aggregate of one month imprisonment for this offence and the two affray offences;
(iv)possess cannabis. The Applicant was convicted and fined $50;
(v)Contravene community corrections order. Breach of community corrections order of 21 April 2015. The order was varied and the Applicant was given a community corrections order for 12 months to perform 133 hours of unpaid community work.
(f)On 21 April 2015, the Applicant was convicted of the following offences:
(i)Theft;
(ii)unlawful assault;
(iii)contravene community correction order.
A further community correction order was imposed for 12 months to perform 150 hours of community work.
(g)On 27 November 2014, the Applicant was convicted of the following offences:
(i)assault protective services officer;
(ii)behave in an offensive manner public place;
(iii)careless driving of a motor vehicle;
(iv)unlicensed driving; use handheld mobile phone - vehicle moving;
(v)fail to render assistance after accident;
(vi)fail give name/address - property damaged;
(vii)fail report to police owner not present;
(viii)two charges of unlawful assault;
(ix)lit fire in open air without authority;
(x)assault in company;
(xi)assault police on duty.
The Applicant was convicted of the above offences and a 12 month community corrections order was imposed on the Applicant to perform 150 hours of community service.
(h)On 7 December 2012, the Applicant was found guilty of the following offences in the Dandenong Children’s Court:
(i)Theft;
(ii)recklessly cause injury.
Without conviction the Applicant was placed on probation to 9 July 2013.
(i)On 10 October 2012, the Applicant was found guilty of the following offences in the Dandenong Children’s Court:
(i)two charges of theft from shop (shopssteal);
(ii)affray (common law);
(iii)intentionally destroyed property;
(iv)fail to answer bail;
(v)attempted robbery;
(vi)two charges of robbery;
(vii)deal with property suspected to be a proceed of crime.
(viii)Intentionally cause injury.
Without conviction the Applicant was placed on probation to 9 July 2013.
(j)On 17 August 2012 the Applicant was found guilty of the following offences in the Dandenong children’s court:
(i)two charges of affray (common law);
(ii)intentionally cause injury;
(iii)recklessly cause injury;
(iv)two charges of failed to answer bail.
The Applicant was convicted of each charge in order to be detained in a youth Justice Centre for a period of six months.
I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months or more on multiple occasions.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of 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. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
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 relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence in this matter. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal. The summary also includes information which was in documents before the Tribunal.
The Applicant
The Applicant was born in South Sudan in 1993. The Applicant’s mother gave him to his grandmother to raise when he was 18 months old. When the Applicant was six years old, he was taken by his grandmother, aunt and uncle to live with them in Egypt. The Applicant claims that they left Sudan to escape the violence and instability there.
In 2005, the Applicant’s mother, her husband and their three children came to live with the Applicant, his grandmother, aunt and uncle in Egypt. They lived together for some six months until the Applicant, his grandmother, aunt and uncle were granted Special Humanitarian visas and arrived in Australia in November 2005.
The Applicant said that he did not remember living with his mother, stepfather and siblings in 2005. The Applicant said that he did not remember much about Sudan other than that there was war and violence there. He said that he witnessed a lot of street violence as a child in Egypt and that this had been difficult for him.
The Applicant arrived in Australia in 2005 at the age of 12. The Applicant reported that his living arrangements upon arriving in Australia were not particularly settled. The family lived with friends for a few months before they found their own place. The Applicant reported that his grandmother then sent him to live with another family friend from Sudan for about a year. The Applicant reported that he felt hurt by this and that he felt lonely knowing that his mother, stepfather and half-siblings were living together in Egypt without him.
The Applicant reported that he moved back to live with his grandmother, aunt and uncle when he started high school. However, he reported that he felt lonely and felt that his grandmother was not able to give him the love that his mother could. The Applicant also reported that his grandmother was old, tired and often ill and that his aunt was also often ill.
The Applicant indicated that when he was younger he felt that he was caring for his grandmother and aunt rather than them caring for him. He said that he was responsible for running the household, doing the housework and food shopping, and would organise and take his grandmother and aunt to medical appointments.
The Applicant indicated that he began to associate with people that he believed had the same issues as he had. He said that he would seek out the company of negative peers whenever he was feeling sad or out of control. He said that whenever something bad happened he would begin drinking alcohol to numb the pain. The Applicant said that it was in these circumstances, where he was drunk and in the company of others who were a negative influence on him, that he began offending in 2012. The Applicant explained that almost all of his offending had occurred while he was under the influence of alcohol.
The Applicant indicated that his mother, stepfather and siblings came to Australia in 2010 when he was 17 years old. He said that he continued to live with his grandmother, aunt and uncle because he was not close with his mother and siblings at the time. He also said that he was not used to having parents who told him what to do and he wanted to continue to make his own decisions. The Applicant said that he would visit his mother, stepfather and siblings about twice a week. He said that he was always sober when he visited.
The Applicant said that he enjoyed spending time with his siblings when he visited them. He said that they would play together and talk, enjoying each other’s company. He said that doing so made him feel like he was part of a real family.
The Applicant said that he currently has a positive relationship with his stepfather. He said that his stepfather was a great role model for him and made him feel like he wanted to be a better man. He said that his stepfather encourages him and talks to him about making good decisions and leading a good life.
The Applicant said that he had a good relationship with his mother. He said that she would tell him that she loves him and would not give up on him. The Applicant said that his mother teaches him to be self-aware, kind others and to be self- disciplined. The Applicant said that his mother and stepfather make him want to be better and to stop drinking.
The Applicant said that when he was younger he could not accept the love and help of his mother and stepfather but was now willing to do so.
Criminal History
The Respondent’s solicitor asked the Applicant questions about a number of his violent offences.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for assault protective service officer on 27 November 2014.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 20 February 2014 the Applicant was involved in a verbal argument with three other males. Three protective service officers attempted to move the parties on. The report indicates that the Applicant became extremely aggressive and abusive to the protective service officers and swore at them. Two further protective services officers intervened to assist the others. The report indicates that the Applicant challenged the protective services officers to a physical fight and threw several concrete rocks at them. One of the rocks struck a bystander. The report indicates that the protective service officers were unable to dodge the rocks as it was dark. The Applicant did not deny the facts as alleged.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for assault police officer on duty on 27 November 2014.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 14 March 2014 the Applicant grabbed a protective service officer by the arm. When another officer told the accused to remove his hands the accused said “fuck you, you racist” and pushed the protective service officer in the chest with both hands causing the protective service officer to lose balance. The report indicates that the Applicant then moved into the street and clenched both his fists, gritted his teeth “and went at PSO [protective service officer’s name redacted] aggressively”. The protective service officer then deployed pepper spray to subdue the Applicant. Again the Applicant did not deny the facts as alleged.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for assault police officer for which the Applicant was convicted on 23 March 2016.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 18 November 2015 police were called to assist paramedics with an uncooperative male. The police found the Applicant drunk and he refused to answer their questions. The Applicant was arrested for being drunk in public and upon attempting to place him in the back of the police van, the Applicant started to kick the police, causing a small cut to the hand of one of the police officers. The Applicant accepted that this had occurred.
The Respondent’s solicitor took the Applicant to a police record of events leading to convictions for affray and intentionally destroyed property for which the Applicant was convicted on 10 October 2012.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 26 August 2011 the Applicant punched the driver side window of a vehicle, smashing it. The Applicant was in a group of men who were threatening and assaulting others in public. The Applicant punched a victim to the head a couple of times before the victim fell to the ground hugging his head in an attempt to protect himself. The Applicant indicated that he could not remember the events of that evening as he was intoxicated.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for unlawful assault on 27 November 2014.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 24 July 2013 that the Applicant and a group of other men approached a person sitting on a seat with a friend. The Applicant then punched the victim to the left side of the head, hitting him in the ear. The Applicant that then walked over to a second man and punched that man in the nose with his right fist, causing the victim’s nose to bleed. The Applicant indicated that he could not remember this incident.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for assault in company on 27 November 2014.
That report, which was put to the Applicant by the Respondent’s solicitor indicates that on 17 September 2013, the Applicant was part of a group of men, one wielding a baseball bat, who attacked a security guard at Dandenong Plaza. The Applicant himself struck one of the security guards to the left side of his face. The Applicant then punched the victim a second time. Again, the Applicant indicated that he did not recall this offence.
The Respondent’s solicitor took the Applicant to police records of events leading to convictions for affray and possession of cannabis on 19 November 2015.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 30 May 2015, the Applicant was involved in a fight with another male during which time each party threw several punches at each other before wrestling. A protective service offer intervened and as the Applicant and the co-accused were separated, a bag of cannabis fell to the floor. Again the Applicant indicated that he could not recall these offences.
The Respondent’s solicitor took the Applicant to police records of events leading to a conviction for affray on 19 November 2015.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 12 September 2015, the Applicant approached a man at a bus stop and questioned him about what he was doing with the Applicant’s sister. The Applicant then grabbed the victim by the shirt and dragged him through a doorway into the railway station entrance. The Applicant then punched the victim in the face with a clenched fist causing him to stumble. An associate punched the victim a second time. The Applicant indicated that he recalled this event.
The Respondent’s solicitor took the Applicant to a police record of events leading to a conviction for robbery and make threat to kill on 18 May 2016.
A transcript of proceedings before the Magistrates Court in Melbourne from 18 May 2016 was before the Tribunal. The Transcript indicated that the Applicant pleaded guilty to robbery and make threat to kill. The facts pertaining to the convictions were read out by the prosecutor during the proceedings as follows:
“…On Sunday, 1 May 2016 at 8:10pm the accused (indistinct) the accused and his associate boarded a taxi waiting in the transit bay opposite the train station. The accused went in the front passenger seat. The associate got in the back seat.
The accused told the taxi driver (indistinct) [taxi driver’s name redacted] to go to [address redacted]. As the taxi reached Power road, the accused started punching [taxi driver’s name redacted] in the face. [Taxi driver’s name redacted] pressed the emergency alarm and stopped the car in Paperbark Street, which was (indistinct) intersection. The associate seated in the back wrapped his hand around the neck of [taxi driver’s name redacted] and the accused continued punching him in the face.
The accused told [taxi driver’s name redacted], “move the car or we will kill you.” [Taxi driver’s name redacted] drove the car up Tristania Street and stopped the car. [Taxi driver’s name redacted] started screaming for help. The accused and his associate took [taxi driver’s name redacted]’s wallet, credit card, drivers licence (indistinct) over a thousand dollars. The accused and his associate got out of the car and pulled [taxi driver’s name redacted] out of the car before punching him again.
Witnesses heard the screams and observed the accused and his associate. One of the witnesses (indistinct) taxi and one of the males stated, “What are you going to do about it?” The accused and his associate damaged internal and external taxi cameras (indistinct) the total cost of the damage being $4500. …”
The Respondent’s solicitor took the Applicant to police records of events leading to convictions for recklessly cause injury, unlawful assault, theft from shop, theft and commit indictable offence whilst on bail on 4 September 2018.
Those reports, which were put to the Applicant by the Respondent’s solicitor, indicate that on 28 June 2018, the Applicant struck a Youth Support Advocacy Services (YSAS) worker in the face with his knee while the YSAS worker, who had been helping the Applicant, was crouching in front of the Applicant. The sentencing remarks for these offences were also before the Tribunal. They indicate that the victim suffered a laceration to his right eye, concussion and a suspected fracture of the right cheekbone.
The report indicated that an off-duty police officer approached the Applicant to ascertain whether he was okay. The report indicated that the Applicant struck the off duty police officer across the face with an open palm forcing him backwards.
The sentencing remarks in relation to these offences also indicate that the Applicant stole from a store and stole a person’s mobile telephone while out on bail for the violent offending.
The Applicant indicated that in relation to this offending he had been released from gaol in November 2017. He said for 6 to 7 months following his release he remained sober and was looking for employment while living with his grandmother and aunt. The Applicant indicated that his grandmother and aunt told him they were moving to a smaller house and that he would no longer be able to live with them. Around the same time, the Applicant was having difficulties holding down a job. The Applicant indicated that he had intended on moving in with his mother, stepfather and siblings at the time but that his mother indicated that he could not live with them. The Applicant’s mother later gave evidence that this may have been a misunderstanding as she had refused the Applicant to live with them at that time because the Applicant had just visited her brother who was in hospital suffering from tuberculosis and she did not want the Applicant to infect her other children.

The Applicant indicated that he was very upset by his mother’s refusal to let him live with her and that he returned to drinking. It was in these circumstances, when the Applicant was drunk, that he was present at YSAS and committed the violent offences.
The Respondent’s solicitor also took the Applicant to a record which indicated that the Applicant had pleaded guilty to a prison disciplinary charge of having assaulted another prisoner in 2017.
The Respondent’s solicitor also took the Tribunal and the Applicant to a number of police reports relating to less serious offences committed by the Applicant where he displayed extremely aggressive behaviour.
The evidence before the Tribunal indicates that the Applicant had engaged in a number of rehabilitation programs through YSAS in 2012 and entering into detox stays with YSAS in September 2013 and January 2014. The Applicant went on to consume alcohol after participating in these programs and detox stays and went on to continue to offend. There was also evidence before the Tribunal that, in relation to the offences for which he was dealt with on 10 October 2012, the Applicant was ordered by the court as a condition of his probation that he attend anger management programs and alcohol and drug counselling. The Applicant continued to consume alcohol and commit offences after being ordered to attend these programs.
The Applicant said that the rehabilitation programs which he undertook with YSAS in 2012 did not involve much more than being given pamphlets. He said that the detox stays did not involve any information as to how to avoid alcohol or violence. The Applicant said that he never undertook the Court ordered rehabilitation programs because he was never given details of when to engage in those programs.
The evidence before the Tribunal including in various sentencing remarks was that the Applicant did not comply with community corrections orders and that there were multiple breaches of those orders. However, at the hearing the Applicant indicated that he never breached community corrections orders and always reported as required. The Applicant indicated that he would often attend appointments late and was told to come back on another day or that he was unfit to attend the programs when he arrived.
The Applicant said that he would never reoffend. He said that he intended to live with his mother, stepfather and siblings if he were allowed to remain in Australia. The Applicant indicated that he was confident of gaining employment. The Applicant also said that he now realised that if he continues to offend he may have to return to South Sudan.
It was put to the Applicant that his visa had been cancelled in 2016 and that he and his family members had made representations to the Department that the Applicant would not reoffend, that he deeply regretted his conduct, that he accepted that his conduct was unacceptable, that he did not want to be separated from his family and that he had concerns for his safety if he returned to South Sudan. On that occasion, the Minister decided to revoke the cancellation of the Applicant’s visa. The Applicant was sent a warning by the Department indicating that further offending could result in the cancellation of his visa. However, the Applicant went on to commit further offences including violent offences.
The Tribunal asked the Applicant why, in those circumstances, it should accept that the Applicant would not reoffend. The Applicant said that on the last occasion when his visa was cancelled he had not been able to ask his mother and stepfather for assistance, that he had not been detained in immigration detention, and that he had not been before the Tribunal to discuss these matters directly with a Tribunal member. He said that because he could now communicate with his mother and stepfather and would be likely to live with them, that he had learned from the experience of immigration detention, and that he had spoken with a member of the Tribunal, these things would prevent him from ever offending in the future.
The psychiatrist
The Applicant provided the Tribunal with a report prepared by a psychiatrist regarding the Applicant’s mental health, required treatment and risk of reoffending.
In her report, the psychologist concluded:
“[The Applicant’s name redacted] is not currently receiving any psychological or psychiatric treatment. Further psychiatric assessment is required to clarify [Applicant’s name redacted]’s personality structure and whether he does fulfil full diagnostic criteria for a personality disorder. I feel that he is highly likely to have a borderline personality disorder, and also has prominent dependency personality traits, both of which can be factors contributing to and perpetuating alcohol abuse and dependence.
For future treatment I would recommend:
1.Assertive engagement in an alcohol rehabilitation program that not only involves an inpatient stay in a residential rehabilitation setting, but also provides ongoing counselling with an appropriate drug and alcohol service in the community to maintain recovery. This should include ongoing individual and group therapies and consideration of whether he would benefit from a 12-step program such as Alcoholics Anonymous. My understanding is that [Applicant’s name redacted] has not previously been engaged and alcohol treatment program of this intensity.
2.In addition with regard to his personality difficulties, there are many well validated treatments for borderline personality disorder. These include dialectical behaviour therapy (DBT), which is a longer term treatment that is effective in increasing emotional and cognitive regulation, improving impulse control, addressing substance abuse and promoting healthier coping strategies. It is my belief that [Applicant’s name redacted] has never been engaged in this form of therapy. He would benefit from this approach and DBT should be available to him.
Until [Applicant’s name redacted] has received treatments as indicated above for both his alcohol abuse and personality disorder, I did not feel he will have been given adequate opportunity to rehabilitate. Treatments for borderline personality have been shown to help people overcome emotional problems, learn how to understand and live with themselves, find a purpose in life and build better relationship: all of which would mitigate the risk of further offending.
Attention should also be given to his social situation. Homelessness and social dislocation are likely to lead to a relapse of alcohol abuse and therefore increase the risk of further offending.”
The psychiatrist attended the hearing before the Tribunal by telephone from Western Australia.
While the psychiatrist indicated that she was of the opinion that the Applicant suffered from borderline personality disorder, she was unable to make a formal diagnosis of this. The psychiatrist said that it was a matter of philosophical debate as to whether borderline personality disorder is a mental illness or a mental disorder. The psychiatrist indicated that members of the community without psychiatric or psychological qualifications and experience in the areas of psychiatry or psychology would be unable to recognise that the Applicant suffered from borderline personality disorder or other mental illness or disorder.
The psychiatrist indicated that if the Applicant were to complete the treatment outlined in her statement above, she believed that his risk of reoffending would be considerably reduced. Conversely, the psychiatrist indicated that if he did not complete the recommended treatment, he would not have the opportunity to rehabilitate, that his prognosis would not be good at all and that “history may well repeat itself.” The Tribunal takes this evidence from the psychiatrist to indicate that unless the Applicant were to complete the suggested rehabilitation programs, that there is a high risk that he would reoffend. The Tribunal also takes the psychiatrist’s evidence to mean that if he were to complete the suggested rehabilitation programs that his high risk of reoffending would be considerably reduced.
The Applicant’s mother and stepfather
The Applicant’s mother and stepfather provided written statements to the Tribunal and appeared before the Tribunal to give evidence.
The evidence of the Applicant’s mother and stepfather was very similar in material respects. They both describe that the Applicant had an unsettled and difficult upbringing. They both described that the Applicant’s mother arrived in Australia in 2010 and that his stepfather arrived here in 2012. Both the Applicant’s mother and stepfather indicated that after their arrival they had wished for the Applicant to come and live with them. However, they indicated that this was rejected by the Applicant’s grandmother. They explained that according to their culture, the wishes of elders must be respected.
Both the Applicant’s mother and his stepfather attributed blame to the Applicant’s grandmother for shortcomings in the way that the Applicant was raised. They both indicated that they would visit the Applicant often and regularly when he was detained.
Both the Applicant’s mother and stepfather indicated that they had a strong bond with the Applicant and that they believed that he would not reoffend. They indicated that they have observed a strong positive change in the Applicant since he has been in immigration detention. They said that the Applicant would live with them if he were allowed to remain in Australia.
Both the Applicant’s mother and his stepfather indicated that the Applicant was very close with his other siblings. They indicated that the Applicant was a good older brother and that he would spend time visiting the children and playing with them. They said that their other children dearly loved the Applicant and that he made them happy. They indicated that the other children missed the Applicant when he was detained. They indicated that the Applicant tries to be a very good example to his siblings and that he has never been drunk around them.
Both the Applicant’s mother and stepfather indicated that the Applicant is a good person but that he changes dramatically when he is consuming alcohol. They indicated that they would do everything that they could to help the Applicant rehabilitate himself. They indicated that the elder children knew that the Applicant had been to gaol and was in immigration detention, whereas the younger children were unaware of this. They indicated that all of the children speak with the Applicant regularly by telephone. They indicated that they, and each of the children, would be greatly negatively affected if the Applicant had to return to South Sudan.
The Applicant’s mother indicated that she was of the view that the Applicant would die if he were return to South Sudan. She indicated that he could not survive in a war-torn country where he has never lived as an adult and where he would have no family or friends to assist him.
The Applicant’s mother indicated that she was Shilluk and that the Applicant’s father was also Shilluk. She indicated that she had no family in South Sudan.
The Applicant’s siblings
The Applicant has seven half-siblings in Australia. They have a different father but the same mother. The oldest sibling is a female of 21 years of age. The Applicant indicated that he is very close to this sibling and that she motivates him to live a good life. He indicated that she worked at a dentist surgery. The Applicant reported that she was hospitalised in 2014 after being involved in a car accident. The Applicant indicated that he would visit his sister almost every day in hospital.
The eldest sibling provided a statement to the Tribunal. This sibling indicated that she visited the Applicant once a month when he was in gaol on the last occasion and had visited him once while he has been in immigration detention. The eldest sibling indicated that the Applicant was good, loving and heart-warming. She indicated that he cared for and loved his family. She indicated that South Sudan was experiencing civil war and that the Applicant would find it unbearable if he was returned there. She indicated that, because of the civil war in South Sudan, she would not be able to visit the Applicant if he were returned there. She said that while removal of the Applicant to South Sudan would have the greatest effect on her and her mother, the whole family would be entirely lost if he were removed from Australia. She indicated that she was convinced that the Applicant would change as he has seen how bad the situation has become for him and everyone else.
The Applicant also has a 17 year old half-brother. His brother provided a statement to the Tribunal in support of the Applicant. This brother described the Applicant as a wonderful brother who was supportive of him. He said that the Applicant made an effort to spend time with them. This brother indicated that he believed that the reason that the Applicant offended was because of a lack of good role models around him early on in his life. This brother indicated that he could not visit the Applicant in South Sudan as it was unsafe there. This brother indicated that if the Applicant were returned to South Sudan, this would have a drastic effect on him as he would feel personally responsible. He said that the removal of the Applicant to South Sudan would also negatively affect his younger siblings as they would have to grow up without their eldest brother and that they would not have peace of mind knowing that the Applicant would be living in a very unsafe place.
The Applicant has a 16 year old half-sister who provided a statement to the Tribunal in support of the Applicant. She indicated that while she has not been able to see the Applicant in person since he has been in detention, she has been speaking with him once or twice a week over the telephone. She indicated that the Applicant is trustworthy and respects the other members of their family, especially her parents. She indicated that if the Applicant were returned to South-Sudan, he would not be able to succeed as it is dangerous there. She indicated that the Applicant would have a frightful and miserable life in South Sudan. She indicated that if the Applicant were to be returned to South Sudan, she would never see him in person again as she could not visit there because it was unsafe. She said that that if the Applicant were returned to South Sudan, it would greatly negatively affect her family in that they would know that the Applicant had been returned to a dangerous place. She also expressed concern that her three youngest sisters would forget who their brother was. She said that her mother would be the most affected by the Applicant’s removal. She said that her mother was constantly praying and was unable to sleep because she was very worried.
The Applicant also has a 13 year old brother, a seven year old sister, a four year old sister and a three year old sister. The youngest three siblings are unaware that the Applicant has committed any offences or that he has been in gaol or immigration detention. The Applicant’s mother indicated that all of the siblings would be very sad if the Applicant had to return to South Sudan and that this would have a real negative impact on them. The Applicant indicated that his younger siblings tell him that they miss him and want him to return home. He said that his youngest siblings were confused about where he was. The Applicant’s stepfather indicated that the youngest siblings always told him that they loved it when the Applicant came over and asked him when the Applicant would return. The Applicant’s stepfather indicated that the Applicant used to take the younger siblings to the playground, play sports with them, tell them stories and make them laugh. He said that they have become very attached to the Applicant.
primary consideration A: Protection of the australian community from criminal or other serious conduct
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 provides that decision-makers should 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.
The nature and seriousness of the Applicant’s conduct to date
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 including:
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 vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts 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;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed over 70 offences in Australia including, on the last sentencing judge’s count, 24 offences of violence against the person. The Applicant’s violent offences are clearly the most serious of his offences. They include offences of recklessly causing injury, unlawful assault, robbery, make threat to kill, assault police officer, throw missile to danger person, affray, assault in company, assault police on duty, assault protective services officer, attempted robbery, and intentionally cause injury. Some of the Applicant’s violent offences have been described above.
In relation to the Applicant’s offence of robbery for which he was convicted in May 2016, the sentencing judge remarked that taxi drivers are “incredibly vulnerable”. The sentencing judge described the Applicant’s offending as serious and described the likely effect on the victim taxi driver as follows:
“It would be absolutely unbelievably frightening. I mean you just can’t imagine it, being repetitively punched in the face, being grabbed by the neck, being pulled out of your car, being repeatedly punched again - two males. A passer-by tries to intervene and told, you know, “Why don’t you come out here, you tough guy”. You just can’t - it would have been terrifying for him. Where that area is in Doveton, he would have been wondering what on earth is going to happen to him out there and where is it going to end.
I mean where do you go when you’re in a taxi and you’re being grabbed by the throat and from behind and been punched by the front seat passenger?”
The Tribunal has also taken into account that a number of the Applicant’s violent offences were committed against police or protective services officers in the performance of their duties.

The Tribunal has taken into account that the Applicant appears to have been sentenced to imprisonment on four occasions and prior to this, spent six months in a youth justice centre. His sentences of imprisonment have ranged from one month to 18 months imprisonment. The Tribunal has also considered that a number of the Applicant’s offences, including many of his offences of violence were dealt with by way of non-custodial sentences.
The Tribunal has taken into account that most, if not all of the Applicant’s offences, have been linked to alcohol use and that the psychiatrist considered that he suffers from alcohol use disorder. The Tribunal has also taken into account the Applicant’s claimed poor mental health during his offending and the view of the psychiatrist that the Applicant is likely to suffer from borderline personality disorder and has prominent dependency personality traits. The Tribunal has also considered that the Applicant did not have stable accommodation available to him during much of the time when he was offending. The Tribunal considers that these matters may provide part of an explanation for the Applicant’s offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant’s offending, or it seriousness.
As is apparent from his criminal record, the Applicant has offended frequently and it appears that his violent offending has increased in seriousness.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s violent offending has resulted in many members of the Australian community being subjected to violence, including extreme violence, with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal has also considered that when the Department decided to revoke the cancellation of his visa in January 2017, the Applicant was clearly informed that his visa may be cancelled if he committed further criminal offending. The Applicant went on to commit further offences including further serious violent offences.
The Tribunal finds that the Applicant’s violent conduct is very serious. Over a significant period of time the Applicant has committed appalling violent offences against numerous members of the Australian community, including police officers, protective services officers and a vulnerable taxi driver.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The psychiatrist report suggested intensive treatment for the Applicant’s alcohol abuse and mental condition. The psychiatrist’s report concludes:
“Until [Applicant’s name redacted] has received treatments as indicated above for both his alcohol abuse and personality disorder, I did not feel he will have been given adequate opportunity to rehabilitate.”
The psychiatrist indicated that if the Applicant were to complete the treatment outlined in her statement above, that she believed that his risk of reoffending would be considerably reduced. Conversely, the psychiatrist indicated that if he did not complete the recommended treatment, he would not have the opportunity to rehabilitate, that his prognosis would not be good at all and that “history may well repeat itself.”
The Tribunal takes this evidence from the psychiatrist to indicate that unless the Applicant were to complete the suggested rehabilitation programs, that there is a high risk that he would reoffend. The Tribunal also takes the psychiatrist’s evidence to mean that if he were to complete the suggested rehabilitation programs that his high risk of reoffending would be considerably reduced.
The Tribunal finds that it is very unlikely that the Applicant will undertake the intensive alcohol abuse and psychological rehabilitation programs necessary to considerably reduce the risk that he poses to the community. The evidence before the Tribunal shows that the Applicant has failed on numerous occasions to undertake rehabilitation courses, even those ordered by the court. Where the Applicant has undertaken some rehabilitative courses, those courses have failed to prevent the Applicant from consuming alcohol or reoffending. The Applicant has breached community corrections orders on a number of occasions.
The Tribunal accepts that the Applicant’s mother and stepfather fully intend for the Applicant to live with them and to help him rehabilitate in any way that they can. However, the Tribunal finds that it is unlikely that the Applicant will reside with his mother, stepfather and siblings if he is allowed to remain in Australia. He was raised by his grandmother, aunt and uncle and has never lived with his mother and stepfather. Indeed, despite what the Applicant describes as periods of homelessness, he did not seek to live with his mother and stepfather.
The Applicant continued to offend despite repeated warnings from sentencing judges, the cancellation of his visa in 2016 and having been sentenced to 18 months imprisonment in 2016. The Tribunal does not accept the Applicant’s claim that his period in immigration detention or having appeared before the Tribunal will in any way mean that he will undertake the intensive treatment required to reduce the risk of his reoffending.
As the Tribunal is not satisfied that the Applicant will successfully undertake the intensive rehabilitation treatment necessary to reduce the Applicant’s risk of reoffending, the Tribunal accepts the psychiatric evidence that the risk that the Applicant will reoffend is high.
Indeed, the Tribunal is satisfied that given the Applicant’s intensive criminal history and his failure to cease offending despite the many opportunities that he has been given to rehabilitate himself, and despite the Applicant knowing full well after receiving the warning from the Department that future offending could result in his separation from his family and his removal to South Sudan, that it is almost certain that the Applicant will continue to commit violent offences against members of the Australian community if he is allowed to remain in Australia.
In reaching this conclusion the Tribunal has had regard to the psychiatric report, evidence of the Applicant and members of the Applicant’s family, and all other relevant evidence before the Tribunal.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent conduct is very serious. The nature of the Applicant’s offending involves repeated violent conduct against numerous members of the Australian community.
The Tribunal has found that, if the Applicant were to reoffend in Australia, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences and possibly death.
The Tribunal has found there is high likelihood that the Applicant will engage in violent crime in the future if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
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, or is not, 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.
Paragraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
a)“The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
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.”
The Applicant has six half-siblings in Australia who are under the age of 18.
The Tribunal accepts that the Applicant has a particularly close relationship with the eldest two of these children who are 17 and 16 years of age. These two children have provided statements in support of the Applicant which have been described above. The evidence before the Tribunal is that these children and the Applicant’s 13-year-old brother are aware of the Applicants offending and that he has been in gaol and immigration detention. The youngest three children are unaware of the Applicant’s offending and detention.
The Tribunal accepts that the Applicant has a close relationship with each of his child siblings, that they love him and want him to remain in Australia. The Tribunal accepts that each of the children will be distressed if the Applicant is required to return to South Sudan, as they are unlikely to ever see him in person again and will be concerned for his safety and well-being in South Sudan. This will be especially so given that the children understand that their family fled South Sudan because of the violence and instability there. The Tribunal accepts that each of the children will be greatly saddened by their brother’s absence from Australia. The Tribunal accepts that the Applicant, as the eldest child, holds a special place for his younger siblings.
The Tribunal considers that nature of the relationship between the Applicant and each of his child siblings in Australia is a brotherly relationship marked by a long periods of absence owing to his detention. The Applicant did not live with any of the children prior to his detention, does not play a parental role for any of the children and is not a primary caregiver to any of the children. They are all cared for by their parents.
The evidence does not indicate that the Applicant will play a parental role for the children in the future. Whether the Applicant will play any positive role in the future in Australia will depend on whether the Applicant continues to offend. If the Applicant was to remain in Australia and was to reoffend as the Tribunal considers is very likely, this may cause further trauma for the children as a result of future incarceration and probable removal from Australia.
The impact of the Applicant’s prior conduct on the children is difficult to determine. The Applicant’s prior conduct has resulted in the Applicant being incarcerated and therefore being unable to spend time in person with the children.
The Tribunal considers that the likely effect of separation of each child sibling from the Applicant, which would result from an affirmation of the delegate’s decision, would be severe negative on each of the children. The Tribunal accepts that the Applicant maintains a close relationship with each of his siblings, that they speak regularly by telephone and that prior to his detention, he would spend time with his siblings regularly.
Given the extremely unstable situation in South Sudan, and the dire situation that the Applicant will find himself in if he returns there, the Tribunal is not satisfied that it is clear that the Applicant will be able to maintain telephone contact with his siblings. In any event, contact by telephone or other electronic means is no substitute for the relationship that the siblings could enjoy with the Applicant if he were to remain in Australia.
The Tribunal has received statements from the eldest two of the Applicant’s child siblings. They have clearly indicated that they wish for their brother to be able to remain in Australia so that they can continue to have contact with him and so that he will not be subject to harm in South Sudan.
While the Tribunal has not received evidence from the Applicant’s four youngest siblings, the Tribunal accepts that they would all wish for their brother to remain in Australia so that they could continue their relationship with him and so that he will avoid harm in South Sudan.
There is no evidence that the Applicant has abused any of the children or neglected them in any significant way.
There is no evidence that any of the children have suffered from physical or emotional trauma as a result of the Applicant’s conduct other than the trauma to the children of separation from the Applicant during his detention and the prospect of his removal.
The Tribunal considers that it is in the best interests of each of the Applicant’s child siblings in Australia for the Tribunal to set aside the decision not to revoke the decision to cancel the Applicant’s visa so that the their brother can remain in Australia and continue to have a close relationship with his siblings.
Conclusion: Primary Consideration B
The Tribunal has considered the best interests of the Applicant’s child siblings in Australia both individually and cumulatively.
The Tribunal finds that the best interests of each of the Applicant’s child siblings weigh moderately in favour of revocation of the cancellation decision.
The Tribunal attributes moderate weight to the primary consideration of the best interests of minor children in Australia in favour of setting aside the decision not to revoke the cancellation of the Applicant’s visa.
primary Consideration C: The expectations of the Australian Community
Paragraph 13.3(1) of the Direction states:
“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.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
In DKXY v Minister for Home Affairs [2019] FCA 495 (“DKXY”) his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles mentioned above.
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).

The Tribunal has found that the Applicant’s violent crimes were very serious and that there is a high risk that he will continue to offend in a similar manner if he is allowed to remain in Australia. The Tribunal has concluded that if the Applicant were to reoffend in a similar manner that this would be likely to result in physical harm to members of the Australian community. Considering these matters, and those identified by Deputy President Tamberlin in WKCG, the Tribunal finds that the Applicant is a danger to the Australian community. The Tribunal reaches this conclusion whether danger in section 36(1C) of the Act means “present and serious risk” as supposed by Logan J, or some lesser level of risk.
Having so found, the Tribunal finds that it is unlikely that Australia owes non-refoulement obligations in respect of the Applicant under the Refugees Convention or the Act. Therefore, it is unlikely that a decision not to revoke the cancellation of the Applicant’s visa will result in a breach of Australia’s non-refoulement obligations under the Refugees Convention.
However, the Tribunal finds that it is likely that Australia owes international non-refoulement obligations to the Applicant under the ICCPR and the CAT.
This is because, the Tribunal has found that there is a real risk that the Applicant will suffer significant harm if he is returned to South Sudan. As such, the Tribunal considers that the Applicant is likely to meet the complementary protection criteria in section 36(2)(aa).
However, the Tribunal considers that it is likely that the Applicant will be refused a Protection visa on the basis of complementary protection as he is unlikely to meet the criteria for a Protection visa under sections 36(1C) and 36(2C). As mentioned above, it is possible for a person to meet the criteria in section 36(2)(aa) and therefore be a person in respect of whom Australia owes international non-refoulement obligations, and yet be refused a Protection visa on the basis of failing to meet the criteria in 36(1C) and 36(2C) of the Act.
That this is so as explicitly recognised in Direction 75. The fourth principle in Direction 75 provides:
“Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia's non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia's security or to the community, this does not necessarily mean that a person should be removed from Australia.”
The third paragraph of part two of Direction 75 provides:
“Where the Protection visa Applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C ) and 36(2C)(b).
a. Where the Applicant meets both section 36(2)(aa) and section 36(1C ), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C ) or section 36(2C)(b), noting that the refused Applicant will still engage Australia's non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.” [My emphasis]
The Tribunal has found that the Applicant is a person in respect of whom Australia owes non-refoulement obligations under the ICCPR and the CAT. The Tribunal has also found that the Applicant is unlikely to be granted a Protection visa notwithstanding that he is a person in respect of whom Australia owes international non-refoulement obligations.
However, this does not necessarily lead to the conclusion that Australia will breach its international non-refoulement obligations in respect of the Applicant. The Tribunal reaches this conclusion on a number of bases. The first is that Direction 75 clearly indicates that a person that meets both section 36(2)(aa) but does not meet the criteria in section 36(1C ) or section 36(2C)(b) will still engage Australia’s non-refoulement obligations despite not being eligible for the grant of a Protection visa.
Secondly, if the Applicant’s application for a Protection visa is unsuccessful, as the Tribunal considers is likely, section 197C of the Act does not have the effect that the Applicant will be removed from Australia immediately notwithstanding Australia’s international non-refoulement obligations. That is clear from the decision of North ACJ in DMH16 where his Honour reasoned that while section 197C has the effect that a person that was refused a Protection visa will not be detained indefinitely, section 197C did not prevent an officer referred to in section 198 from detaining a person whilst the Minister considers, inter alia, whether to exercise the power in section 195A to grant a person in detention a visa of a specific type. His Honour stated at [17]:
“In SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1, [2015] FCAFC 125 (SZSSJ), the Full Court (Rares, Perram and Griffiths JJ) held that s 197C did not prevent an officer referred to in s 198 from detaining a person whilst the Minister considers, inter alia, whether to exercise the power in s 195A to grant a person in detention a visa of a specific type. That decision was appealed to the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653, [2016] HCA 29, (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). The appeal against orders made by the Full Court was allowed but in respect of this aspect the High Court said at [16]:
No party to either appeal suggests that s 197C prevents an officer from giving effect to that instruction [relevantly, that no person shall be considered for removal until the assessment of Australia’s protection obligations in respect of the person have been concluded]. For the purposes of the appeals, no further consideration need be given to the operation of that section.”
Similarly, Kerr J in BDQ19 indicated that despite the enactment of section 197C, it remained open to Australia to continue to meet its non-refoulement obligations to a person refused a Protection visa. His Honour appeared to be confident that the government’s pledge to abide by its non-refoulement obligations as contained in the Direction and in the explanatory memorandum to the bill which introduced section 197C, would be honoured and that any inconsistency evident in the Direction would be cured by the removal of the last sentence of clause 14.1 (6). His Honour stated at [73]-[75]:
“Insofar as a person is, or may be owed, non-refoulement obligations, cl 14 of Ministerial Direction No 65 simply advises the decision-maker to take that circumstance into account as one of what may be several “other considerations.” Clause 14.1 explains how that is to be done. The decision maker must, in proceeding, be mindful of s 2 cl 8(4) of Ministerial Direction No 65 and its command that such “other considerations” should generally be given lesser weight than the three “primary considerations” set out in Part C.
If in the event, having regard to cl 8(4) and what it directs, an illegal non-citizen’s visa remains revoked but he or she is owed non-refoulement obligations by Australia, the decision maker need not speculate as to how those obligations will be met. It is uncontentious that there are available legal means as can secure that outcome. The unavailability of indefinite detention as one of those means, which the Minister by his counsel accepts is the law, does not alter that position.
If Ministerial Direction No 65 is read as a whole, with only the last sentence of cl 14.1(6) necessarily excised, there is no relevant inconsistency.”
Thirdly, it will be clear from this decision that the Tribunal considers that Australia owes non-refoulement obligations in respect of the Applicant arising under the ICCPR and the CAT.
The Tribunal notes however, that despite Kerr J’s confidence that Australia would never breach its non-refoulement obligations, the Tribunal is not so confident. First, if there were no risk that Australia would ever breach its non-refoulement obligations in relation to an Applicant, it is not clear why consideration of Australia’s non-refoulement obligations would ever be relevant in the exercise of the discretion.[3]
[3] However, see discussion of Teoh’s case above at [178].
Secondly, as a matter of fact, it is always possible that this decision may not come to the Minister’s attention.
It is also possible that the Minister may decide not to consider the exercise of one of the non-compellable discretions the exercise of which would prevent a breach of Australia’s non-refoulement obligations. Although the Tribunal considers that these outcomes are unlikely, the Tribunal still considers that there is a risk that the Applicant will be unwittingly returned to South Sudan, in breach of Australia’s non-refoulement obligations.
As this risk remains, the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa. As the Tribunal considers that there is only a low risk that Australia will breach its non-refoulement obligations in respect of the Applicant, the Tribunal places only moderate weight on this consideration in the Applicant’s favour.
The Tribunal notes that any future decision maker who considers a Protection visa application by the Applicant will not, of course, be bound by the findings I have made above relating to the likelihood of the applicant meeting the criteria for a Protection visa. I have only made such findings in an attempt to foresee the likelihood that the Applicant may be granted a Protection visa and whether Australia’s non-refoulement obligations are “engaged”, as these matters may be relevant to the ultimate question relating to the risk that the Applicant will be refouled in breach of Australia’s non-refoulement obligations if the decision before the Tribunal is affirmed. While it appears that undertaking such an exercise is the necessary consequence of the decision in Omar, any findings that I have made in this decision as to whether the Applicant may meet criteria for a protection visa, including whether the applicant is a “danger” to the community, should not influence any future protection visa decision maker.
The Tribunal also notes that where, as here, it is found that Australia owes non-refoulement obligations in respect of an applicant, it will be very difficult to determine what weight to attribute to the consideration and how to balance it against the other considerations. The Direction provides very little assistance in this regard. We know from the Direction that consideration of Australia’s international non-refoulement obligations is not a primary consideration. But we also know that in the appropriate case one or more “other considerations” may outweigh primary considerations. In addition, we know from the Direction the government’s stated intention that it will not breach its international non-refoulement obligations.
In the absence of legislation to regulate the exercise of the prerogative powers of the State, the executive power in relation to external affairs is unconfined. It is the executive that enters into international agreements and it is ultimately a matter for the executive to determine whether Australia abides by those international agreements. As such, it is in some respects odd that administrative decision-makers should be tasked by the Direction with attributing weight to the maintenance of Australia’s international non-refoulement obligations and to balance that consideration with others such as the protection of the community.
As a normative statement, it is ultimately for the executive to determine whether Australia abides by its international obligations. If a Tribunal finds that an Applicant is a person in respect of whom Australia owes international non-refoulement obligations but, after the relevant balancing exercise, finds that there is not another reason for revoking cancellation of the Applicant’s visa, the Minister, a member of the executive, has various powers to ensure that an Applicant is not refouled contrary to Australia’s non-refoulement obligations.
If the Applicant is unsuccessful before the Tribunal and in the application for a Protection visa, it will be for the Minister, through the potential exercise of his non-compellable discretions, who is likely to determine whether Australia breaches its non-refoulement obligations owed in respect of the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2005 as a 12 year old. He has lived in Australia ever since. The Applicant began offending in 2009 and has committed over 70 offences from 2009 until 2018 including some 24 violent offences. Apart from the evidence that the Applicant has assisted his grandmother and aunt and been a loving brother to his siblings, there is very little evidence of the Applicant contributing positively to the Australian community.
The Applicant’s connection to his siblings has been discussed above under the primary consideration of the best interests of minor children. The Tribunal has also considered the Applicants ties with his mother, stepfather, grandmother, aunt, adult sister and uncle. All of these family members other than his uncle are Australian citizens, and his uncle is an Australian permanent resident.
The Tribunal accepts that the Applicant’s mother and stepfather and adult sister will be severely adversely affected if the Applicant must return to South Sudan. This is especially so given they have some understanding of the difficulties faced by those in South Sudan at present. They would be worried for the health and safety of the Applicant in South Sudan.
It is less clear what effect the Applicant’s removal would have on his grandmother, aunt and uncle. None of them provided a statement the Tribunal in support of the Applicant. It appears that the Applicant has provided great assistance to these family members in the past including assisting his grandmother and aunt while they have been ill, looking after the household and providing some financial assistance. In those circumstances the Tribunal is willing to accept that the Applicant maintained strong ties to his grandmother, aunt and uncle and that they will be adversely affected if the Applicant has to return to South Sudan.
Overall, the Tribunal finds that the Applicant has lived here for a significant amount of time since he was 12. The Tribunal finds that the Applicant has strong ties with his family members in Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a man of 26 years of age who the psychiatrist indicated is likely to have borderline personality disorder and prominent dependency personality traits.
The evidence before the Tribunal is that access to appropriate psychological or psychiatric services in South Sudan is extremely limited. However, the Tribunal has found that the Applicant is unlikely to seek to engage in mental health treatment if he were to return to South Sudan.
As such, the Tribunal accepts that there is a strong possibility that the Applicant will continue to abuse alcohol and to commit violent crimes if he returns to South Sudan. This is likely to lead to the Applicant being punished by the criminal justice system in South Sudan. It may also put the Applicant in danger of violent confrontation with others in South Sudan.
As a citizen of the South Sudan, the Applicant will be entitled to any social, medical and economic support available to South Sudanese citizens in South Sudan, however limited.
The evidence before the Tribunal is that the Applicant has no family in South Sudan. He has not lived in South Sudan since he was six years old. Although he indicated that he speaks both Shilluk and Arabic, given the amount of time he has been absent from South Sudan, the Tribunal accepts that the Applicant’s language skills in these languages are likely to be inferior to other Shilluk in South Sudan.
The Tribunal considers that the Applicant, having been raised by his South Sudanese grandmother, aunt and uncle, and around other’s in the South Sudanese community in Melbourne, would have some appreciation of South Sudanese culture. However, the Tribunal has also considered that the Applicant has not lived in South Sudan since he was six years old, that he lived in Egypt for some six years, and that he has lived in Australia for the last 14 years. In these circumstances, the Tribunal accepts that there would be some language and cultural barriers for the Applicant were he returned to South Sudan.
The Applicant ceased his secondary education before he could graduate from your 12. The Applicant has not undertaken any significant post-secondary school training. He has not held down employment for any significant period of time. In those circumstances, it is likely that the Applicant will have significant difficulty in securing employment in South Sudan.
The DFAT report provides information that South Sudan is a very poor country in the midst of civil war and as such its people and its government are far less affluent and secure than those in Australia. Some of the relevant information in the DFAT report about situation in South Sudan is as follows:
“South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy. In 2015, South Sudan had an estimated GDP of USD19.05billion and per capita income of approximately USD790.
…
Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015, contributing to increasing levels of crime.
Corruption significantly affects South Sudan’s economic performance. South Sudan ranked 163rd out of 168 countries on Transparency International’s Corruption Perceptions Index in 2015 and 187th out of 189 countries on the World Bank’s ‘Doing Business: Measuring Regulatory Quality and Efficiency’.
Overall, DFAT considers that low levels of economic opportunity may act as a push factor for external migration, but that this should be viewed in the context of the current conflict and broader humanitarian situation.
…
South Sudan’s population has extremely poor access to health care. Accurate data prepared by the Government on health indicators is often non-existent or outdated. According to data collected prior to the outbreak of conflict in December 2013, South Sudan ranked 169th out of a total of 187 countries on the UN Development Programme’s 2015 Human Development Index. South Sudan has an average life expectancy at birth of 56.7 years for women and 54.7 years for men.
…
Only 55 per cent of the population has access to improved sources of drinking water (ie. a drinking-water source that is protected from outside contamination) and around 38 per cent of the population walk more than 30 minutes one way to collect drinking water. Eighty per cent of the population do not have access to toilet facilities. DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation.
…
Data collected prior to the outbreak of conflict in December 2013 found that 76 per cent of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12 per cent of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However, as at 2016, DFAT assesses that as the security and economic situation has deteriorated, employment opportunities (both in the formal and informal sectors) have also worsened.
…
Overall, DFAT assesses that the security situation in South Sudan remains extremely volatile.
…
Conflict continues between the Government’s Sudan People’s Liberation Army and the Sudan People’s Liberation Movement-in-Opposition’s SPLA-IO in Upper Nile State, Unity State and Jonglei State. Incidents of conflict in Central Equatoria State and Eastern Equatoria State are also rising, particularly following the recent escalation of conflict in Juba in July 2016. As a result, there are significant numbers of internally displaced people throughout South Sudan.
While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba (see ‘Race/Nationality’).
…”

The Tribunal finds that the Applicant will face great difficulty in re-establishing himself in South Sudan. He has lived in Australia for some 14 years and will be likely to be very upset and missing his family here. Given the information provided in the DFAT report, the Applicant will have a very different life in South Sudan from the one that he has enjoyed in Australia. The Tribunal considers that the Applicant may find it difficult initially to gain employment or to start a business in South Sudan.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Hardship and harm to the Applicant
The Tribunal has also considered the effect of non-revocation on the Applicant in addition to impediments to re-establishing himself in South Sudan and Australia’s non-refoulement obligations. The Tribunal considers that the non-revocation of the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. The Applicant would be permanently separated from family in Australia. In all likelihood, the Applicant would never be able to return to Australia, where he has lived for 14 years since he was a child.
The Tribunal has also considered that there is a possibility that the Applicant may remain in detention for a prolonged period. The Applicant is almost certain to lodge a Protection visa application and is likely to remain in detention pending the ultimate determination of that application. If the Applicant is unsuccessful with a protection visa application, which the Tribunal has found is likely, he is likely to remain in detention pending the possible consideration of the exercise of Ministerial discretion.
The Applicant has raised the prospect that the Applicant may remain in detention for some time as he may be stateless in a practical sense. That is because while he is entitled to South Sudanese citizenship, he does not have any South Sudanese documents as to his identity or place of birth and there can be significant delay in the process of being granted a nationality certificate.
While the Tribunal does not accept that the Applicant is stateless, the Tribunal is willing to accept that it may take some time for the Applicant to be recognised by the South Sudanese government and for him to be issued with a nationality certificate. It would appear that until the Applicant is recognised as a citizen of South Sudan, it will not be reasonably practicable to remove him. The Tribunal has considered that this issue may result in the Applicant being detained for a prolonged period.
While the Tribunal has found that the Applicant’s mental health and generalised violence in South Sudan are unlikely to give rise to non-refoulement obligations under the relevant international agreements, the Tribunal has also considered the possibility of harm or hardship to the Applicant which may arise because of these issues. The Tribunal considers that there is a possibility that the Applicant will be harmed if he is returned to South Sudan. The Tribunal has considered the possibility that he will be harmed as a Shilluk under consideration of Australia’s non-refoulement obligations.
The Tribunal considers that the Applicant will be at much greater harm of generalised violence in South Sudan than in Australia. It is a country in civil war with a high crime rate and a security situation which the DFAT report has described as extremely volatile. The Tribunal has also found that there is a strong possibility that the Applicant will continue to abuse alcohol and to commit violent crimes if he returns to South Sudan. This is likely to lead to the Applicant being punished by the criminal justice system in South Sudan. It may also put the Applicant in danger of violent confrontation with others in South Sudan.
The Tribunal has also considered the hardship and harm that may come to the Applicant in South Sudan as a result of the situation there including the humanitarian crisis, low food security, lack of medical and health services in the very poor state of the economy including the very low rate of employment in South Sudan.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a high risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant’s family that non-revocation would cause and the length of time that the Applicant has spent in Australia since he was a child.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his six Australian child siblings, weighs significantly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations weighs moderately this in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.
In this case the Tribunal considers that there is a high likelihood that the Applicant will reoffend in Australia. The Applicant has been given multiple opportunities to reform his behaviour and has failed to do so. The Applicant has a serious problem with alcohol abuse and this, in combination with mental health issues and an apparent propensity for violence, have contributed to the Applicant repeatedly committing serious acts of violence against members of the Australian community. In these circumstances the Tribunal considers that the primary considerations of the protection and expectations of the Australian community weigh heavily against setting aside the decision not to revoke the cancellation of the Applicants visa. However, this is a difficult decision because all of the Applicant’s known relatives reside in Australia, including six child half-siblings. Their interests weigh moderately in favour of revoking the cancellation decision. In addition, unless granted a visa, the Applicant will return to a poor, war torn country where he is likely to suffer hardship and where there is a real possibility that he will be harmed. These matters also weigh heavily in the Applicant’s favour. There is also a possibility, however low, that the Applicant will be inadvertently returned to South Sudan in breach of Australia’s non-refoulement obligations. This consideration weighs moderately in the Applicant’s favour.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal understands that this decision is a harsh one for the Applicant. However, there is a point at which the Australian community can no longer tolerate repeated acts of violence against members of the Australian community by a non-citizen, notwithstanding the potential harm or hardship to the non-citizen or those who care for them which may result from the removal of the non-citizen from Australia. That point has been reached in this case.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 312 (three hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.............................[SGD]..........................................
Associate
Dated: 28 October 2019

Date of hearing:

2 and 3 October 2019

Counsel for the Applicant:

Solicitor for the Applicant:

Mr Harry Lewis

Dr Michael Taylor

Ms Emma Svelha

Asylum Seeker Resource Centre (ASRC)

Solicitor for the Respondent:

Ms Elle Tattersall

Sparke Helmore Lawyers

ANNEXURE 1 - EXHIBIT REGISTER

File No      2019/4472................................................................................................................
Between     WKMZ.................................................................................................... (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on    2 and 3 October 2019
At               Melbourne................................................................................................................
Before       Member Tigiilagi Eteuati..........................................................................................

Exhibit Number Description of Evidence
Dated

A1

Letter from North & West Metro AOD Service dated 23 September 2019

A2

Report of psychiatrist dated 12 September 2019

A3

Department of Justice medical documents

A4

International Health and Medical Services records as of 5 September 2019

A5

Letter from Applicant’s sister (sister 1) undated

A6

Letter from Applicant’s sister (sister 2) undated

A7

Letter from Applicant’s brother undated

A8

Statement of Applicant’s stepfather dated 30 September 2019

A9

Statement of Applicant’s mother dated 30 September 2019

A10

"Our Hearts have Gone Dark" Report by Amnesty International

A11

A study of Statelessness in South Sudan – UNHCR

A12

Letter from Panel of Experts on South Sudan to President of UN Security Council dated 12 April 2018

A13

Bundle of country information on South Sudan

A14

List of Applicant's Authorities

A15

Notification of grant of subclass 202 visa in 2005

A16

Link to Applicant’s brother’s TedX talk

A17

Statement of WKMZ dated 6 September 2019.

R1

Materials summonsed from Dandenong Magistrates' Court

R2

Materials summonsed from Victoria Police

R3

Materials summonsed from Department of Justice

Exhibit Number	Description of Evidence Dated
A1	Letter from North & West Metro AOD Service dated 23 September 2019
A2	Report of psychiatrist dated 12 September 2019
A3	Department of Justice medical documents
A4	International Health and Medical Services records as of 5 September 2019
A5	Letter from Applicant’s sister (sister 1) undated
A6	Letter from Applicant’s sister (sister 2) undated
A7	Letter from Applicant’s brother undated
A8	Statement of Applicant’s stepfather dated 30 September 2019
A9	Statement of Applicant’s mother dated 30 September 2019
A10	"Our Hearts have Gone Dark" Report by Amnesty International
A11	A study of Statelessness in South Sudan – UNHCR
A12	Letter from Panel of Experts on South Sudan to President of UN Security Council dated 12 April 2018
A13	Bundle of country information on South Sudan
A14	List of Applicant's Authorities
A15	Notification of grant of subclass 202 visa in 2005
A16	Link to Applicant’s brother’s TedX talk
A17	Statement of WKMZ dated 6 September 2019.
R1	Materials summonsed from Dandenong Magistrates' Court
R2	Materials summonsed from Victoria Police
R3	Materials summonsed from Department of Justice