XDJD and Minister for Immigration and Border Protection (Migration)
[2021] AATA 2882
•17 August 2021
XDJD and Minister for Immigration and Border Protection (Migration) [2021] AATA 2882 (17 August 2021)
Division:GENERAL DIVISION
File Number: 2017/2887
Re:XDJD
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:17 August 2021
Place:Melbourne
The Tribunal affirms the decision under review.
....[SGD]..........................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending involving domestic violence – whether discretion to revoke mandatory cancellation should be exercised – consideration of amendments introduced by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) - primary considerations – applicant poses unacceptable risk of reoffending – other considerations – the seriousness of the criminal offending outweighs non-refoulement obligations – whether indefinite detention is a legal consequence of a finding of non-refoulement obligations – risk of harm if returned – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Nationality Act 2011 (South Sudan)
Cases
Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338; [2016] FCA 1166Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 244
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
UN High Commissioner for Refugees, UNHCR Position on Returns to South Sudan - Update (April 2019)
UN Human Rights Council, Report of the Commission on Human Rights in South Sudan (31 January 2020)
Explanatory Memorandum for the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
REASONS FOR DECISION
Deputy President Britten-Jones
17 August 2021
INTRODUCTION
This hearing arises from orders made by the Federal Court on 17 November 2020 which quashed the decision of the Tribunal made on 5 November 2018 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 3 August 2016, the applicant’s Class XB Subclass 202 (Global Special Humanitarian) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 21 August 2016, the applicant sought revocation of the cancellation decision. On 9 May 2017, a delegate of the Minister (the Delegate) refused to revoke the cancellation decision pursuant to s 501CA (the non-revocation decision).
On 16 May 2017, the applicant applied to the Tribunal for review of the non-revocation decision. On 26 July 2017, the Tribunal affirmed the non-revocation decision.
On 10 August 2017, the applicant sought review of the Tribunal’s decision in the Federal Court. On 5 February 2018, the Federal Court made orders by consent setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.
On 16 and 18 July, and 3 August 2018, the Tribunal (differently constituted) heard the application. On 5 November 2018, the Tribunal again affirmed the non-revocation decision.
On 10 December 2018, the applicant filed an application for review of the Tribunal’s decision in the Federal Court.
As set out above, the Federal Court decided in favour of the applicant and again remitted the matter to the Tribunal for a further rehearing. That rehearing took place on 12 and 13 May 2021. The parties subsequently provided further written submissions with respect to certain amendments to the Migration Act1958 which took effect from 25 May 2021.[2]
[2] The Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) received royal assent on 24 May 2021.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Sections 197C and s 198 are also relevant:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen;
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non‑citizen who withdraws their written request to be removed to a country is taken not to have made that request.
198 Removal from Australia of unlawful non‑citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4]
[4] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia;
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia;
b)impact on Australian business interests
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 90 at 7.
Summary of recent amendments to the Migration Act
Whilst this decision was reserved, Parliament passed the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the Amendment Act) which took effect from 25 May 2021.[7] Leave was granted to the parties to provide supplementary submissions as to how the Amendment Act may impact upon the Tribunal’s decision.
[7] The Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) received royal assent on 24 May 2021.
By way of summary, the Amendment Act introduced a new s 36A which provides that, in considering a valid protection visa application, the Minister must consider and record findings against the protection obligations criteria (ss 36(2)(a) and 36(2)(aa)) before deciding whether to grant or refuse a protection visa based on the other criteria.
The Amendment Act amended s 197C to clarify that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a)the individual has made a valid application for a protection visa that has been finally determined;
(b)in the course of considering the application, a ‘protection finding’ has been made; and
(c)none of the following apply:
(i)the decision in which the protection finding was made has been quashed or set aside;
(ii)a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii)the non‑citizen has asked the Minister, in writing, to be removed to the country.
Section 197C(4) provides that a “protection finding” includes when, in the process of a protection visa application, a non-citizen satisfies the criterion to engage Australia’s non-refoulement obligations however is ineligible for a protection visa due to character or security concerns. It clarifies that in this circumstance, s 198 does not operate to involuntarily remove the non-citizen in breach of Australia’s non-refoulement obligations.
The Explanatory Memorandum for the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the 2021 Explanatory Memorandum) states:
Section 197C of the Migration Act provides that, for the purposes of section 198 (removal from Australia of unlawful non-citizens), it is irrelevant whether Australia has non-refoulement obligations in respect of a UNC, and that person must be removed as soon as reasonably practicable.
…
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Consideration of the applicant’s evidence in his supplementary submissions
As stated earlier, the Tribunal gave leave to the parties to provide supplementary submissions on the Amendment Act. During this process, there was a conflict between the parties over the admissibility of documents that the applicant attached to his supplementary submissions.
The applicant attached the following documents released by the Department of Home Affairs under Freedom of Information requests:
(a)Data that shows that no protection visas have been granted between 1 July 2015 and 5 May 2021 to a person with a s 501(3A) visa cancellation that has not been revoked;
(b)Data about the number of cases from 1 July 2015 until 30 April 2021 in which the Minister has intervened under s 195A where the visa holder did not satisfy s 501 and non-refoulement obligations were owed; and
(c)Data about the number of individuals between 1 July 2012 to 30 April 2020 who have been voluntarily and involuntarily removed after their visas were cancelled under s 501.
The respondent argues that this material goes beyond the scope of the Tribunal’s direction to provide submissions on the Amendment Act. Further, the respondent says that the Tribunal is prohibited from having regard to the material and the related submissions under s 500(6J) as it was not provided to the Minister at least two days prior to the commencement of the hearing.
The applicant argues that the new evidence is allowed because it is an ‘answer to the Minister’s case’, and because it supports the applicant’s submissions on the Amendment Act.
I find that the attachments go beyond the scope of the direction and would amount to the applicant adducing further evidence without leave to do so. The parties were not given leave to re-open their cases or to adduce further evidence. The Tribunal only gave leave for the parties to provide submissions and there was no application to re-open the matter. Further, I find that the Tribunal is prohibited from having regard to the attachments under s 500(6J).
I therefore will not consider the attachments to the applicant’s supplementary submissions to inform my decision.
The respondent also contended that I should not have regard to the applicant’s submissions regarding these attachments. I am prepared to allow the applicant’s submissions regarding these attachments insofar as they relate generally to the prospects that the applicant will be refouled or indefinitely detained. This is within the scope of the leave granted to provide further submissions as it clarifies the legal consequences of my decision in light of the Amendment Act. I note these are submissions only and I do not treat them as evidence.
THE CRIMINAL CONDUCT
The Applicant was convicted of various offences between October 2010 and July 2016. He was first found guilty for driving whilst his licence was suspended. His marriage broke down in 2011 and his wife was granted a 12 month family intervention order on 23 November 2011. In September and November 2012, he contravened that intervention order by attending his wife’s home and arguing with her. During the November incident, the applicant kicked a television through a window and drove a car into the garage door.
In March 2013, the applicant committed the offence of recklessly causing injury towards a guest who attended a party at the applicant’s home. The victim complained that the applicant cut the back of her ankle with a knife. He was later sentenced to 1 month of imprisonment.
A further family intervention order, with a one year duration, was issued against the applicant on 10 April 2013 after an incident of domestic violence.
On 9 July 2013, the applicant twice breached the family intervention order by attending his wife’s home late at night. A further breach occurred on 11 July 2013 and the applicant again attended his wife’s home late at night, running away when the police were called. On 10 October 2013, the applicant attended his wife’s house, argued with her, and committed an unlawful assault, to which he pleaded guilty on 29 October 2013. When asked at the hearing about this incident he said he could not remember it because he was intoxicated.
On 29 October 2013, the applicant was convicted at the Sunshine Magistrates Court of seven counts of contravening family violence orders, one count of criminal damage and the unlawful assault. He was sentenced to a 15 month community corrections order plus 60 hours of unpaid community work.
The applicant committed his most serious offence of domestic violence in the early morning of 20 January 2014. Whilst intoxicated, the applicant argued with his wife who went to the kitchen and took out a kitchen knife. A struggle took place and the applicant stabbed his wife twice in the chest. She suffered a collapsed lung, a fractured rib, bruising and a cut airway that required further surgery. Following the stabbing, the wife suffered post-traumatic stress disorder (PTSD), anxiety attacks, sleeplessness, paranoid ideas and feelings of insecurity. The applicant was sentenced to two years imprisonment, subsequently reduced on appeal to 18 months, and a further two years on a community corrections order.
The applicant was released from prison in July 2015. On 8 December 2015, the applicant again assaulted his wife and contravened a family violence intervention order. The applicant’s wife ran away and then called the police. There was a further incident at his wife’s house on 14 February 2016 when he was intoxicated and breached an intervention order. Then on 17 March 2016, the applicant broke into his wife’s house and caused property damage. These charges, amongst others, were dealt with on 13 July 2016 when the applicant was convicted of two counts of contravening a final family violence intervention order, one charge of criminal damage, one charge of threat to inflict serious injury and one charge of committing an indictable offence while on bail. The applicant was sentenced in the Sunshine Magistrates Court to 5 months imprisonment. On the same day he was convicted of obtaining a financial advantage and sentenced to 5 months imprisonment on each count to be served concurrently with the other sentence.
On 17 October 2016, the applicant was sentenced to a further six months imprisonment for breaching a community corrections order, which related to the January 2014 offending.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I 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 non-citizen’s conduct – 8.1.1 of Direction 90
The applicant was convicted of offences involving violence against his wife and another woman. These types of crimes are viewed very seriously by the Australian Government and community. The seriousness of the crimes is reflected in the custodial sentences imposed. The domestic violence was repeated even after the applicant had intervention orders made against him and had spent time in prison.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[8] I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[8] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[9] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be extremely serious because it involved repeated domestic violence which has caused physical and mental injuries.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that in light of his increased maturity, insight into his behaviour and psychological rehabilitation, the likelihood of reoffending is low. Further, the applicant contends that, although the nature of harm should he reoffend in a similar way is serious, it is unlikely that he will reoffend.
With respect to the January 2014 incident, the applicant gave evidence of his version of the events as follows. He came home late after drinking and passed out. His wife told him to get out and he told her to leave him alone. She got a knife and he panicked. A struggle ensued and she fell on his chest when the knife was in her hand. She told him that she was stabbed. He called an ambulance and left. The police found him nearby.
Under cross-examination the applicant said that “we struggled. She fell on top of me and the knife was in her hand and she got stabbed.” He accepted that “I did it”. In an earlier account during a psychological assessment interview on 17 February 2020 with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors he had said that “we struggled and accidentally my wife stabbed herself between her chest and arm”.
Despite pleading guilty to recklessly causing serious injury, the applicant has repeatedly failed to admit that he stabbed his wife. This is contrary to the reasons of the sentencing Judge who found that “A struggle took place and you stabbed her in the chest two times with the knife”. Later in the reasons, the sentencing Judge said:
[9] In the course of the argument she left the room and got a knife from the kitchen. You disarmed her, but in the struggle stabbed her twice with the knife. You gave her the phone after you had called triple zero and left the house. You blamed the alcohol for what had happened, and also [the wife] for arguing with you.
It is concerning that the applicant continues to put forward a different version of events and that he puts blame upon his wife for the incident. Mr Newton, a clinical and forensic psychologist called by the applicant, was asked about the applicant’s different version of events. He said that the applicant’s statements were exculpatory, and placed blame on the victim. The applicant did not endorse these earlier statements when interviewed by him, but during cross-examination, the applicant again failed to acknowledge that he was holding the knife when his wife was stabbed. This reveals his lack of insight into the seriousness of his offending and that he still does not take full responsibility for his offending but rather continues to put blame on the victim.
I reject the applicant’s contentions with respect to his risk of recidivism. I prefer the opinion expressed by the applicant’s own expert, Mr Newton, who said that the applicant poses:
(a)a moderate risk of further intimate partner violence;
(b)a moderate to low risk of further violent offending; and
(c)a relatively low risk of recidivism to general criminality.
Mr Newton provided a comprehensive psychology report to the applicant’s solicitors on 9 February 2021. After receiving further material, he confirmed his opinion in a second report dated 15 April 2021. In particular, Mr Newton was informed that there is an ongoing intervention order that prohibits the applicant from living with his former partner and that, if released, he will not live with her and their children. In response to this further information, Mr Newton said:
The change to the relationship between [the applicant] and his former partner provided some containment to, but does not eliminate, the risk of intimate partner violence occurring between them. As noted in my earlier report, [the applicant] has previously breached the FVIVO with regard to his ex-partner and there has been a long-term pattern of separations and reunions across the course of their relationship. The reported changes are relatively recent and remain untested.
The implementation of additional strategies to minimise contact between the applicant and his ex-partner (for instance, at times of child visitation) would be likely to result in further containment of risk: reducing the risk of further intimate partner violence within that context. Further, it would be appropriate to review the level of risk that is extant in [the applicant’s] case again once it is clear that the changes in his relationship with his ex-partner have indeed become permanent.
However, even assuming that such changes in [the applicant’s] relationship status are permanent, they have no impact upon the risk of his perpetrating intimate partner violence against any other prospective partners with whom he may become involved.
…
That is, I stand by the risk assessment provided in … my earlier report.
I give the opinion from Mr Newton significant weight because it is evidence from an independent and authoritative source.[10]
[10] Direction 90 at paragraph 7(1).
The applicant gave oral and written evidence and expressed remorse for his past conduct which he accepted was very bad and hurtful to those that he loved. He said that he was mentally unstable and fighting PTSD on his own. He has engaged with rehabilitative programs and said that he will never drink alcohol again. In particular, he has been receiving counselling from Foundation House and says he has learnt that fighting does not help and that if he finds himself in a position of conflict he now knows to walk away. He is taking active steps to continue his rehabilitation including at Odyssey House Victoria with whom he attended a comprehensive drug and alcohol assessment via phone on 27 April 2021. I note that arrangements have been made with Relationship Matters for him to participate in their Men’s Behaviour Change Program.
With respect to rehabilitation, Mr Newton said that the applicant continues to suffer from residual traumatic anxiety with deep-seated feelings of insecurity and powerlessness, together with a perennial vulnerability to intense reactions at times of stress. The emotional and psychological consequences of his past trauma remain far from resolved. The applicant also has a history of severe alcohol-use disorder currently in remission, in a controlled environment.
Mr Newton accepted that whilst in custody the applicant has addressed some risk factors for further intimate partner violence through some offence-specific programs. However, he said that important rehabilitative factors remain extant, namely:
(a)continued treatment of his trauma and its emotional effects;
(b)consolidation of his abstinence from alcohol;
(c)improvement in his interpersonal and general communication skills; and
(d)assistance with reintegration into the community after any release.
In summary, when asked about whether the applicant had been given a proper and adequate opportunity to rehabilitate, Mr Newton said:
[The applicant] has not adequately participated in alcohol education and anger management training. His access to trauma-related treatment has been delayed. These factors have compromised his rehabilitation.
In assessing the risk to the Australian community, I must have regard to the likelihood of recidivism taking into account the “evidence of rehabilitation achieved by the time of the decision”.[11] I find that the applicant is not adequately rehabilitated. I accept that he has a genuine desire to be with his children who he loves and that gives him an incentive not to reoffend. I note that he has been well behaved whilst in detention and has avoided violent incidents. He has support from members of the South Sudanese community and specific financial and accommodation support from his cousin. Further, the wife of the applicant’s first cousin provided a statement to the effect that she would support the applicant financially, assist with carer responsibilities and offer accommodation to the applicant if he were released. I accept that with appropriate interventions the risk of recidivism may diminish. However, as things currently stand the risk of reoffending is unacceptably high and the consequences of reoffending are too severe. His expressions of remorse and that he has changed have not been tested by sufficient time in the community.
[11] Direction 90 at paragraph 8.1.2(2)(b)(ii).
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[12] The applicant has committed serious crimes including repeated domestic violence offences over a significant period of time and has not demonstrated that he is adequately rehabilitated. The nature of the harm of any re-offending is very serious. My conclusion as to the protection of the Australian community is that it is a factor that weighs very significantly against revoking the cancellation decision.
[12] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant has engaged in numerous acts of family violence including repeated breaches of intervention orders and the most serious violent attack on his wife when he stabbed her twice in the chest with a knife. Whilst the applicant has expressed some responsibility for the family violence, he failed to accept that he was the one holding the knife when his wife was stabbed. Further, as found by Mr Newton, the applicant has not adequately participated in alcohol education and anger management training and he continues to pose a moderate risk of further intimate partner violence. The applicant’s most recent act of family violence was on 17 March 2016 when he broke into his wife’s house in breach of an intervention order, threatened her and caused property damage. I am not convinced that since that time the applicant has achieved adequate rehabilitation and I am not convinced that he accepts appropriate responsibility for his conduct. The efforts that he has made to address the factors which contributed to his conduct are not sufficient.
This is a factor that weighs very significantly against revoking the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; 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 three children who are Australian citizens aged 13, 11 and nine. The applicant has maintained a close parental relationship with his children throughout their lives although there have been significant periods of separation whilst the applicant has been in prison and in detention. He did not see his children while he was in prison as he and his wife did not consider the prison environment to be appropriate for the children, so they spoke on the phone. The children regularly visited the applicant while he was detained at Maribyrnong Immigration Detention Centre and, on account of his current remote detention location, they now maintain regular phone contact. I accept that the applicant loves his children. I also accept that the applicant’s children love him and wish for him to be released as they expressed in a statutory declaration in June 2017.
The children are still young and would benefit from having their father in the community with them during their childhood. I would expect that, if released, the applicant is likely to play a positive parental role in the future but I remain concerned about the likely negative impact on them of the applicant’s prior family violence and the risk of further violent conduct. I note that the applicant does not intend to live with his wife and children but I accept the evidence of his wife given by written statement that she considers the applicant to be a good father and she wants him to help her take care of the children if he were released. That would require the terms of the current intervention order to be varied or revoked.
There was also mention in the applicant’s Statement of Facts, Issues and Contentions of nieces and nephews who are minors but their relationship with the applicant was not the subject of evidence. I am prepared to assume that they would likely benefit from the applicant remaining in Australia and that it would not be in their best interests if he were deported.
I find that non-revocation of the cancellation decision would not be in the best interests of his children because of the likely negative impact on them if they continue to grow up in the absence of their father. I give this factor less weight because of the applicant’s long periods of absence in the past and because of the risk of further family violence which would have an unacceptable adverse impact on the children. The applicant’s wife is available to care for the children and the applicant can maintain phone contact. I accept that if returned to South Sudan it would be very unlikely that the children would be able to visit him there because of the ongoing safety concerns in South Sudan. I consider that this is a factor that weighs moderately in favour of revoking the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13]
[13] Direction 90 at 8.4(1).
In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa.[14]
[14] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case.
The applicant has engaged in serious conduct in breach of the Australian community’s expectation that non-citizens obey the law. I find that the character concerns arising from the applicant’s criminal conduct are such that the Australian community would not expect the applicant to be allowed to remain in the Australian community. Domestic violence is viewed very seriously by the Australian community and it raises very serious character concerns. Further, a moderate risk of future domestic violence, as found by Mr Newton, is an unacceptable risk given the serious consequences of that conduct.
The domestic violence committed by the applicant is of such a serious nature that the Australian community would not expect the Government to revoke the cancellation of the applicant’s visa.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs significantly against revoking the cancellation decision.
Other Considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[15] I must also consider the consequences that would flow from not revoking the cancellation decision.[16]
[15] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303
[16] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if returned to South Sudan. I am required to give separate and meaningful consideration to each of these representations. I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refoulement obligations on the basis that “a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then”.[17]
[17] Ali v Minister for Home Affairs (2020) 380 ALR 393, 426 at [101]; [2020] FCAFC 109; FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 at [45].
I will consider separately the risk of harm if returned to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm
The applicant made numerous representations concerning risk of harm in South Sudan:
(a)on the basis of ethnicity, imputed political opinion and as a former child soldier;
(b)arising from lack of physical and psychological medical care; and
(c)on account of the civil war and humanitarian crisis.
To properly understand the applicant’s assertions as to the risk of harm if returned to South Sudan, it is necessary to consider his evidence as to what happened to him in South Sudan and how he came to Australia. The applicant was born in 1980 in what is now South Sudan. His mother is of Nuer ethnicity and his father is of Dinka ethnicity. He was abducted by the Sudan People’s liberation Army (SPLA) and forced to be a child soldier at the age of nine or 10 years old. He was raped and abused and witnessed war related atrocities. He did not see his father again until he was around 15 years old when they fought together in some battles. He witnessed his father’s death on the battlefield. He started suffering from nightmares and losing his mind. He managed to escape and sought refuge in a camp in Kenya. He was resettled in Australia under the Refugee and Humanitarian Program and arrived in June 2006 when he was 25 years old.
The applicant’s history and the situation more generally in South Sudan was corroborated in evidence given by a community leader who runs a local Refugee Service. The community leader fought with the applicant as a child soldier and fled to the same camp in Kenya. He has returned to South Sudan four or five times and confirmed the hostile and dangerous environment there. He decided after his last visit that he would not return whilst it remained so dangerous. He fears that if the applicant is forced to return to South Sudan, he would not survive.
I also note that the applicant has long-term depression, anxiety and PTSD. He has osteoarthritis in his knees which significantly inhibits his movement and causes him severe pain. He is recovering from a bilateral hip replacement which occurred in November 2020. The risk of harm to the applicant is exacerbated by his poor physical and mental health.
The situation in South Sudan remains very dangerous to this day. The applicant fears that he will die if he is returned to South Sudan. I accept the evidence given by the applicant with respect to South Sudan. He said in his statement dated 8 June 2018 that:
I can never return to South Sudan. The country is at war again and I cannot go back to the same fighting. The SPLA became the official army of South Sudan after independence, and I know they will remember me and that I escaped. They kill people for trying to run away.
I am scared that if I am not punished for deserting, I will be forced to fight again. They will think that I am already trained so I should fight. Both the army and the new rebel groups are still forcibly recruiting people, including children, to fight.
A lot of civilians in South Sudan lost family members during the second Civil War. They might think that I am responsible, and want to seek revenge.
Because of the present conflict, I am also at great risk of harm because of my mixed ethnicity. I am half Dinka and half Nuer, and I speak both languages. I am considered the enemy by both groups.
So many people are dying in South Sudan and because of the conflict. There are terrible human rights abuses going on. My mum reads the news from South Sudan and cries. Even if I was not targeted for my ethnicity or for being a former child soldier, I would probably be killed in the conflict anyway.
Going back to the place where all of those terrible things happened to me would be really bad for my mind. I think my depression and PTSD would be badly affected.
In his more recent statement, dated 7 April 2021, he said:
When you escape from the SPLA, you are considered a traitor, that you have deserted people in their time of need. Because I left the SPLA in this way, I cannot survive there. As soon as I arrive at airport, I would be taken again. I would be tortured and killed.
…
I also fear that I’ll face harm because I would be returning from the West. People will think that I have money and will try to rob me at gunpoint and kill me if I don’t give them what they want.
There is no one who would protect me. Even if I could leave the airport, I would not survive.
Also, I would not be able to get the medical treatment that I need for physical and mental health issues. I still need a carer to help me have a shower every day and need a walking frame to move around. There would be no one to care for me if I returned to South Sudan and I would not be able to survive. I think that my PTSD would get worse if I was sent back to South Sudan and had to be there again. Also it would be very difficult for me to find a job and financially support myself.
As I am half Nuer and half Dinka ethnicity and I speak both languages, I am at risk of harm from both tribes.
Despite a peace deal, the report of the UN High Commissioner for Refugees (UNHCR) on the position on returns to South Sudan dated April 2019 says that conflict remains, egregious human rights violations continue to be perpetrated and sustainable conditions are not in place for the safe and dignified return of refugees in South Sudan.[18] Recent country information in January 2021 from the United Nations Office for the Coordination of Humanitarian Affairs reports that the peace agreement has not reduced the humanitarian needs of the South Sudanese people and that the humanitarian situation in South Sudan is likely to continue to worsen in 2021. The report also notes that between January and October 2020, more than 1200 human rights incidents, including arbitrary killings, injuries, abductions, conflict related sexual violence, arbitrary arrests and detention, torture and ill treatment, forced military recruitment, and the looting and destruction of civilian property were documented.
[18] UN High Commissioner for Refugees, UNHCR Position on returns to South Sudan - Update II, (April 2019) at [2].
The overall security, rule of law and human rights situation remains highly volatile. It stands in the way of safe and dignified return for any person originating from South Sudan. I find that the applicant would face the prospect of serious harm given his particular profile as a former soldier of mixed Nuer and Dinka ethnicity and as a western returnee. I consider that there is a general risk of harm and violence associated with the civil war and the instability in the country. The risk of harm would be exacerbated because the applicant is a person with a background of trauma and mental and physical health needs and because he is unlikely to receive adequate treatment for these conditions in South Sudan. The risk of harm to the applicant should he return to South Sudan is a factor that weighs heavily in favour of revoking the cancellation decision.
International non-refoulement obligations – 9.1 of Direction 90
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[19]
[19] Direction 90 at 9.1(1).
In Ali v Minister for Home Affairs,[20] the Full Court said with respect to Australia’s non-refoulement obligations:
[20] (2020) 380 ALR 393; [2020] FCAFC 109.
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.
The applicant relies upon country information and his representations with respect to the following:
·security and humanitarian situation in South Sudan generally;
·targeting of civilians based on ethnicity and imputed political affiliations;
·targeting of returnees;
·forced military recruitment of men in South Sudan;
·harm to persons with mental and physical health issues or backgrounds of trauma;
·harm perpetrated by the South Sudanese government and inability of the South Sudanese authorities to prevent harm; and
·risk of harm to former child soldiers.
The 2020 annual report of the UN Commission on Human Rights in South Sudan documents an intensification of conflict with the number of civilian casualties in 2019 increasing by nearly 200% over 2018.[21] The report refers to civilians being deliberately starved, systematically surveilled and silenced, arbitrarily arrested and detained and denied meaningful access to justice. It referred to the dire situation of human rights throughout South Sudan characterised by the deliberate starvation of civilians, the largest refugee and internal displacement crises in Africa and sexual and gender-based violence. It says that government forces were responsible for most of the attacks against civilians. There have been gross human rights violations and abuses and serious violations of international humanitarian law in the context of localised conflict, often with the participation of armed militias.
[21] UN Human Rights Council, Report of the Commission on Human Rights in South Sudan (31 January 2020).
The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his mixed Nuer and Dinka ethnicity, his past involvement with the SPLA, his status as a returnee from a western country and his disabilities in the context of the deteriorating security situation and ongoing civil war.
I will not repeat the matters considered separately under risk of harm, but they are relevant to non-refoulement. I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan. This is a factor that weighs in favour of revoking the cancellation decision.
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including risk of violence based on his ethnicity and history as a child soldier, a deterioration in his mental and physical health and a lack of support if he were to return to South Sudan.
Legal consequences of a non-revocation decision
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa,[22] bearing in mind my determination that the applicant is a person to whom non-refoulement obligations are owed.
[22] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
I note that the applicant has not applied for a protection visa meaning the processes in the Amendment Act are not enlivened. Some guidance is provided by the recent Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ). This decision pre-dated the Amendment Act but is still relevant because the amendments only apply where there has been an application for a protection visa. This judgement related to Direction 79 however it provides principles about how a decision-maker should consider indefinite detention as a legal consequence of a visa cancellation decision that are relevant to the interpretation of Direction 90.
WKMZ referred to three possibilities if the visa cancellation is not revoked – removal, indefinite detention and the prospect that the applicant might be granted a visa.[23] I find below that there is no realistic prospect the applicant would be granted another visa,[24] so I will focus on the prospect of indefinite detention and removal to South Sudan.
[23] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [97].
[24] See MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [73]
The Consequence of Removal
The applicant contends if I do not revoke the cancellation decision that the applicant is liable to be removed to South Sudan and I should place significant weight on this consequence. The respondent contends that removal is less likely because s 197C clarifies that an unlawful non-citizen will not be removed if they are found to be owed non-refoulement obligations during an application for a protection visa.
I refer to ss 197C and 198 which I set out in full earlier in my reasons.
Despite the introduction of the Amendment Act, the applicant contended that he may be returned to South Sudan in breach of non-refoulement obligations because the Amendment Act is limited to protection visa applications. If there is a finding of a non-refoulement obligation in a revocation case under s 501CA (such as the case before me) and a decision is made not to revoke the cancellation decision, then the applicant would be liable to be returned pursuant to s 198. If, for whatever reason, the applicant decided not to exercise his right to apply for a protection visa, then the Amendment Act would not apply to him and he could be returned to South Sudan in breach of Australia’s non-refoulement obligations.
I note that the 2021 Explanatory Memorandum provides with respect to human rights implications:
The amendments to section 197C of the Migration Act ensure that the power at section 198 of the Migration Act does not require or authorise an officer to remove an unlawful non-citizen whose valid application for a protection visa has been finally determined, and for whom a protection finding has been made through the protection visa process, in circumstances where to do so would be inconsistent with Australia’s non-refoulement obligations. That is, the person cannot be removed to the country in relation to which their protection claims have been accepted, unless they no longer engage non-refoulement obligations or have requested, in writing, to be removed.
…
Together, the amendment to section 197C and the introduction of section 36A promote human rights by strengthening protections from removal where a person engages non-refoulement obligations under the CAT and the ICCPR, as well as under the Refugees Convention.
The 2021 Explanatory Memorandum suggests that any finding of a non-refoulement obligation would protect the applicant from removal to South Sudan but the definition of “protection finding” in s 197C clearly only relates to a finding made through the protection visa process. It follows that there may be some force in the applicant’s submission, but it remains to be seen whether an unlawful non-citizen found to be owed non-refoulement obligations in proceedings other than a protection visa application would be removed. One would not expect that to occur if the Australian government was committed to “strengthening protections from removal where a person engages non-refoulement obligations”. However, pursuant to s 198 the applicant would remain liable to be removed as soon as reasonably practicable even if a non-refoulement obligation was found on his application to revoke the cancellation decision. Therefore, removal remains the legal consequence.
Authorities prior to the Amendment Act found that the consequence of removal and therefore non-compliance with Australia’s treaty obligations not only impacts the applicant, but also impacts negatively upon Australia’s reputation and standing in the global community.[25] Given the limited definition of “protection finding” there remains the potential consequence of Australia breaching its non-refoulement obligations which would be damaging to Australia’s reputation. Further, s 197C does not preclude Australia from removing the applicant to South Sudan if he requests to be refouled in writing, even if he makes this request out of despair due to his prolonged detention. If this occurred, Australia would be in breach of international non-refoulement obligations and risk harm to its reputation in the international community. I consider that this adds further weight in favour of revoking the cancellation decision.
[25] See Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 at [91].
I now consider Direction 90 in the context of determining what will be the consequences of not revoking the cancellation decision. Direction 90 at 9.1(2) and 9.1(3) states:
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful noncitizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the noncitizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the noncitizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
Paragraph 9.1(2) of Direction 90 provides that I must be mindful that, irrespective of a non-refoulement obligation, the applicant (if the cancellation decision is not revoked) is an unlawful non-citizen liable to removal as soon as it is reasonably practicable. This would suggest a very significant and detrimental consequence for the applicant which would weigh heavily in favour of revoking the cancellation decision.
However, paragraph 9.1(3) provides a qualification to the significance of that consequence. It appears to downplay the consequence by saying that a non-revocation decision will ‘not necessarily’ result in removal to South Sudan because consideration may be given to removal to another country or the Minister may exercise a personal discretion in favour of the applicant. Further, the applicant could apply for a protection visa and he will not be removed whilst it is being considered. This suggests that, because of these possible outcomes, by which the applicant is not removed to South Sudan, the significance of the consequence is diminished and therefore less weight should be given to it. Of course, these alternative outcomes will ‘not necessarily’ occur. I am required to consider the evidence before me.
There was no evidence before me that consideration had been given to removal to another country, nor is there any realistic prospect that the Minister would exercise a personal discretion in favour of the applicant in circumstances where the applicant’s visa has been cancelled and the respondent contends that there is an unacceptable risk to the Australian community that the applicant will engage in serious criminal conduct in the future.[26] I note that the applicant has been in detention since August 2016 and the Minister has not intervened to release him. Whilst I have not accepted the Freedom of Information attachments as evidence before the Tribunal, I am prepared to accept the applicant’s submission that there is no realistic prospect that the Minister would exercise a personal discretion in favour of the applicant. Consequently, the examples given in paragraph 9.1(3) would not diminish the weight to be given to the consequence of removal to South Sudan.
[26] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [56].
Therefore, pursuant to s 198, the legal consequence of a decision not to revoke the visa cancellation is that the applicant would be removed from Australia as soon as it is reasonably practicable for that to occur, subject to either a successful protection visa application or a “protection finding” during this process. I have already found that there is a very real risk that the applicant will suffer significant harm if he is removed to South Sudan. The possibility of removal to South Sudan is a factor that weighs in favour of revoking the cancellation decision.
I take into account when considering consequences, that if the cancellation decision is not revoked, the applicant may apply for a protection visa in which case the Amendment Act would operate. Whilst I am not obliged to speculate on what might happen next,[27] where the Minister opposes the revocation of the cancellation of the visa on character grounds, it seems incongruous for the Minister to effectively reverse his position and grant a protection visa.[28] Whilst I have not accepted the Freedom of Information attachments as evidence before the Tribunal, I am prepared to accept the applicant’s submission that there is no realistic prospect that the Minister would grant the applicant a protection visa. I note that an unsuccessful protection visa application would not necessarily lead to removal but it may result in indefinite detention which I will consider below.
[27] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150].
[28] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [56] and [72]-[73].
The Consequence of Indefinite Detention
I note that if the visa cancellation is not revoked, the applicant would likely remain in detention whilst the Minister considers the possibility of re-settlement, exercise of personal discretion or a protection visa application. This in itself may amount to indefinite detention whilst consideration is being given to these administrative options. In WKMZ, Kenny and Mortimer JJ said:[29]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[29] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
Another potential reason that the applicant’s removal to South Sudan may be delayed is that he will not be removed until it is reasonably practicable to do so. In WKMZ, the Court referred to the need to engage with the legal and practical realities of the act of removal which may result in a person suffering further deprivation of liberty for an indefinite period of time: [30]
Once challenges to a visa refusal or cancellation are exhausted, the course that a particular individual’s case might take will be highly fact-dependent. As TCWY and other authorities in this Court illustrate, being a national of some States will not guarantee that State will accept a person Australia seeks to remove. In turn, such circumstances will contribute to whether or not removal is “reasonably practicable”. In other words, the operation of s 197C does not guarantee removal will occur immediately. It does not obviate the responsibility of a decision maker, in considering whether to revoke a visa cancellation, to engage with the legal and practical realities of the act of the removal. The nature of those realities may result in a person suffering further deprivation of liberty for an indefinite period of time.
[30] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [68].
In this case, removal may be delayed because the applicant has no paperwork to rely upon as a ground for his return to South Sudan. The applicant also contended that there is a possibility that he is stateless which may result in indefinite detention because it would not be “practicable” to remove him to South Sudan pursuant to s 198. The applicant was born in an area that is now South Sudan and his ethnicity is mixed Dinka and Nuer. Under South Sudanese law, people belonging to “one of the indigenous ethnic communities of South Sudan” are automatically granted South Sudanese citizenship.[31] The applicant contends in his Statement of Issues, Facts and Contentions dated 8 April 2021 and his Written Submissions in Reply dated 7 May 2021 that his lack of documentation as to his nationality will cause him practical difficulties establishing his place of birth and other requirements such that there is a real possibility that the he is stateless. The applicant said in re-examination that he does not have any documents from South Sudan. Whilst I am not prepared to make a finding that the applicant is stateless because of his automatic right to citizenship, the lack of documentation represents a practical difficulty for the return of the applicant to Sudan.
[31] Nationality Act 2011 (South Sudan) s 8(1).
The applicant contended that there are several further practical difficulties that he would face in being removed from Australia. First, the applicant is not fit to travel given his existing medical conditions. There is a possibility that he may never be fit to travel to return to South Sudan. Secondly, the current COVID-19 pandemic has greatly restricted international travel and it is currently not possible for the applicant to be returned to South Sudan. This is evidenced by the applicant’s statement where his own family members are trapped overseas and unable to return to Australia. The applicant contended that these practical difficulties will likely result in delays and therefore, indefinite detention.
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the notion of “indefinite detention” arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:[32]
It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).
[32] [2021] FCAFC 35 at [93]–[94].
I accept that given the applicant’s circumstances, even if the respondent intended to refoule him, there would be a significant delay before such removal would be possible. The applicant would be indefinitely detained until it became reasonably practicable to remove him from Australia.
If the applicant applies for a protection visa and there is a “protection finding” (recalling that both contingencies are at this time speculative), the Amendment Act clarifies that s 197C would not authorise the applicant’s removal to South Sudan in contravention of Australia’s non-refoulement obligations. This would lead to the real possibility that the applicant would be indefinitely detained, noting he has already been detained for five years.
With respect to the prospect of indefinite detention, the 2021 Explanatory Memorandum accepts that persons affected by the Amendment Act may be subjected to ongoing immigration detention under s 189:
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
Conclusion as to Consequences
In considering all of the circumstances referred to above, I conclude that the most likely consequence of a decision to not revoke the cancellation is indefinite detention which would likely arise whether or not the applicant makes a subsequent application for a protection visa. This consequence would be severely detrimental to the applicant because, as opined by Mr Newton, the applicant would then be at risk of a resurgence of depression, anxiety, and possible PTSD-related symptoms. Australia would also be in breach of its international obligations and human rights standards if it subjected the applicant to indefinite detention. The consequence of indefinite detention is a factor that weighs heavily in favour of revoking the cancellation decision.
Whilst I have found that indefinite detention is likely, there remains a possibility that the applicant will be returned to South Sudan and be put at risk of harm as set out above. Given that this consequence would be so seriously detrimental to the applicant, I give it significant weight.
In conclusion, the legal and practical consequences of a decision not to revoke the applicant’s visa cancellation is the prospect of indefinite detention or refoulement to South Sudan or both. I accept that these consequences would likely cause significant harm to the applicant and breach Australia’s human rights obligations. These consequences weigh heavily in favour of revoking the cancellation decision.
Further consideration of Direction 90 – 9.1(2) and (3)
Returning to a consideration of sub-paragraphs 9.1(2) and (3) of Direction 90, I am required to weigh the existence of non-refoulement obligations against the seriousness of the criminal offending bearing in mind that under s 198 unlawful non-citizens are liable to be removed from Australia as soon as reasonably practicable. Paragraph 9.1(3) of Direction 90 makes it clear that the existence of a non-refoulement obligation does not preclude non-revocation of the cancellation decision. As part of the ultimate weighing up exercise required by Direction 90, it may be appropriate to not revoke the cancellation decision because the existence of the non-refoulement obligation is outweighed by the seriousness of the applicant’s criminal offending, seen in the context of a proper consideration of all of the relevant factors in accordance with Direction 90. The existence of a non-refoulement obligation is not always determinative of the issue as to whether to revoke the cancellation decision. Non-refoulement is an “other consideration” which must be taken into account by me as the decision maker. I will return to this weighing up exercise later in my reasons.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant was born in what is now South Sudan. He is 40 years old and has physical and mental health issues. He had a double hip replacement in November 2020 and has a carer who comes to help him because he cannot bend past his knees and is practising to re-walk. He has severe osteoarthritis in both knees and requires knee replacement surgery. He suffers from high cholesterol, high blood pressure, diabetes, ulcers, asthma and obstructive sleep apnoea. He uses a sleep apnoea machine every night. He was on a methadone program in detention for his pain.
With respect to his mental health, he is recovering from PTSD which is described by Mr Newton as being in partial remission. Mr Newton says that there is a clear need for the applicant to continue to participate in professional mental health treatment. Mr Newton said that he would anticipate a resurgence in the applicant’s trauma related symptoms together with an onset of depressive and anxiety related symptoms related to his separation from his partner and family if he were required to return to South Sudan. He would require relatively intensive support to manage the likely emotional and psychological effects of such a course of action.
The physical and mental health treatment that the applicant needs is unlikely to be available in South Sudan where there is extremely limited access to healthcare generally and almost non-existent mental health services. The community leader who gave evidence to the Tribunal confirmed the lack of mental health services available in South Sudan. He also considered that because the applicant was a child soldier he would be forced to fight again.
The applicant would be at risk of physical harm due to the ongoing conflict, as well as being a western returnee and a former child soldier of mixed Dinka and Nuer ethnicity. It is most unlikely in these circumstances that he would be able to find work. He has no family or other support available to him in South Sudan and he left there at a very young age.
The security and humanitarian situation in South Sudan is dire and presents the most significant impediment to the applicant if he is returned. The respondent accepts that the applicant will face a number of impediments should he return to South Sudan arising from his physical and mental health conditions and because of the violent conflict, as well as the limited economic resources in South Sudan.
I give this factor significant weight in favour of revoking the cancellation decision.
Impact on victims – 9.3 of Direction 90
The applicant’s wife was the victim of the domestic violence. She provided a written statement dated 5 May 2021 in which she expressed her preference that the applicant be released to help her take care of their children. However, the negative consequences for family members who are also victims of the offending if the applicant is not allowed to remain in Australia are matters to consider under other aspects of Direction 90.[33] Accordingly, I take into account the impact on the applicant’s wife under the heading of links to the Australian community below. In any event, the applicant did not call the wife to give oral evidence before the Tribunal; hence she was not available to be cross examined and less weight would be given to her evidence. I find that this factor neither weighs for nor against revoking the cancellation decision.
[33] DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 [32] - [37].
Links to the Australian community – 9.4 of Direction 90
I must consider the impact of the visa cancellation decision on the applicant’s immediate family members which in this case would include the applicant’s wife and three children, as well as his extended family. I accept the evidence in the written statement from the wife that it is difficult for her to care for the children on her own and that she would like the applicant to be released so he could help her to take care of them. I find that non-revocation of the cancellation decision would have a negative impact on the applicant’s wife because she would not have the benefit of his care and support for the children.
The majority of the applicant’s extended family live in Australia and are citizens of Australia, including his mother and two brothers. I accept the evidence of the applicant’s “aunty”, the wife of his cousin that his family would be “devastated” if he were returned to South Sudan.
The applicant has significant ties to Australia because he has lived here for nearly 15 years having arrived when he was 25 years of age. He has had steady employment and been involved with community activities including as a coach to a youth basketball team. He lived in Australia for over four years before his first offence and I find that he has made a significant positive contribution to the Australian community.
No evidence or argument was advanced with respect to any impact on Australian business interests.
The applicant’s links to the Australian community weigh in favour of revoking the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to revoke the cancellation decision. Part of that determination requires me, pursuant to sub-paragraph 9.1(2) of Direction 90, to carefully weigh the existence of non-refoulement obligations against the seriousness of the criminal offending.
The primary considerations relating to family violence and the protection and the expectations of the Australian community are overwhelmingly against revoking the cancellation decision. The offending was most serious; involving repeated acts of domestic violence including a stabbing which caused significant physical and mental harm to his wife. From about 2010 until March 2016 the applicant engaged in persistent acts of violence and intimidation directed at his wife. He has regularly breached intervention orders and he reoffended only six months after being released from an extended period of imprisonment.
I do not consider that the applicant has developed an appropriate level of insight into the seriousness of the domestic violence perpetrated upon his wife. There is a real and substantial risk that the applicant will reoffend by committing further domestic violence. That risk is unacceptable to the Australian community who, in these circumstances, would expect the applicant to forfeit the privilege of staying in Australia.
There are countervailing considerations, but they do not outweigh the primary considerations relating to family violence and the protection and expectations of the Australian community. I have given weight to the interests of the applicant’s wife and his three children. They will miss the care that the applicant could provide if released but they will also not be at risk of any further domestic violence.
The applicant should be commended for his positive contribution to the community as an employee and volunteer, but this is significantly outweighed by his acts of domestic violence. The strength, nature and duration of ties is a factor, when considered on its own, which favours revoking the cancellation decision, however, it is again outweighed by the primary considerations.
The most significant, in terms of weight, of the other considerations are the risk of harm if returned, the international non-refoulement obligations and the extent of impediments if removed, together with the potential for indefinite detention. These considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to South Sudan or indefinite detention. The applicant has few links with South Sudan because he left there as a child and has no remaining family there. His health needs will not be met and he will be at elevated risk as a Western returnee and former child soldier. If he is not removed from Australia but remains in detention indefinitely then his physical and mental health will deteriorate with serious potential consequences.
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations relating to family violence and the protection and expectations of the Australian community than on the other countervailing considerations. Paragraph 7(2) of Direction 90 says that primary considerations should generally be given greater weight than other considerations and I see no reason to depart from that in this case. The prospect of indefinite detention and the dangers and difficulties that the applicant would meet upon his return to South Sudan are real and serious, but they do not outweigh the very real risk of harm to the Australian community if the applicant is released from detention. I am guided by the principle in paragraph 5.2(5) of Direction 90 that the inherent nature of domestic violence is so serious that it may outweigh even strong countervailing considerations. This is such a case. The applicant has committed very serious acts of domestic violence and has not shown that he is rehabilitated. I accept that it will be difficult for his wife to support the children on her own and that the children will miss not have a father in their lives, but these unfortunate consequences arise from the applicant’s own conduct. By cancelling the applicant’s visa, the Government is exercising its commitment to protecting the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations relating to family violence and the protection and expectations of the Australian community outweigh any claims with respect to the other considerations. This includes risk of harm, non-refoulement obligations, the prospect of indefinite detention, the extent of impediments and the best interests of his children if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed serious crimes involving domestic violence, breach of community correction and intervention orders:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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 – by committing the crimes of domestic violence, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to his wife.
(b)The applicant, as a non-citizen who has committed serious crimes of a violent nature against women, should generally expect to forfeit the privilege of staying in Australia.
(c)The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.
(d)In the circumstances of this case, the nature of the applicant’s conduct and the harm that would be caused if it were to be repeated, is so serious that even strong countervailing considerations are insufficient to justify not revoking the mandatory cancellation.
Further, in terms of carefully weighing the existence of non-refoulement obligations against the seriousness of the criminal offending as required by paragraph 9.1(2) of Direction 90, I find that the non-refoulement obligations are outweighed by the seriousness of the criminal offending.
It follows from the application of these principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
CONCLUSION
I consider that there is no other reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 143 (One hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
...[SGD].......................................................
Associate
Dated: 17 August 2021
Dates of hearing: 12 and 13 May 2021 Counsel for the Applicant: G Hughan Solicitors for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: C Symons Solicitors for the Respondent: Australian Government Solicitor
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