XTRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

XTRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3378 (20 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/4287
Re:XTRG
APPLICANT

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

DECISION
Tribunal:Mr Rob Reitano, Member
Date:20 September 2021
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Global Special Humanitarian (subclass 202) visa.
..........................[SGD]......................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of visa - where visa was cancelled under s 501(3A) because applicant did not pass the character test – where Applicant has served prison sentence of 12 months or more - whether discretion in s501CA to revoke mandatory visa cancellation should be exercised - Direction No 90 – primary and other considerations - risk of re-offending - the protection and expectations of Australian community - the impact on victims – best interest of minor children - strength, nature, and duration of connections to Australia - non-refoulement obligations - impediments to applicant if removed - possibility of indefinite detention - whether the Tribunal has power to make decision - whether Applicant made representations to the Minister in time - whether the Applicant made representations to the Minister in prescribed form - where Applicant has significant mental health condition - where Applicant has substantial history of offending - degree of seriousness of offences - Reviewable Decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501(3A)
Migration Regulations 1994 (Cth) reg 2.52
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
Migration Act 1958 – Direction No. 90 – direction under s 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Made 8 March 2021/commenced 15 April 2021)
United Nations High Commissioner for Refugees April 2019 Position on Returns to South Sudan - Update II (UNHCRU)
REASONS FOR DECISION
Mr Rob Reitano, Member
20 September 2021

On 24 December 2006 when the Applicant arrived in Australia, he had a Global Special Humanitarian (subclass 202) visa. On 17 December 2017 the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required to cancel that visa under s.501(3A) of the Migration Act 1958 (Cth) (Act) because of the Applicant’s criminal offending and the fact that the Applicant was in gaol.
This case is about whether the Tribunal has power to revoke the decision cancelling the visa and if it does whether the decision cancelling the visa should be revoked, so that the Applicant can stay in Australia.
I have decided that the Tribunal does have power to deal with the Applicant’s request to have the decision cancelling his visa revoked and that the visa cancellation should be revoked. The decision cancelling the visa should be revoked because I am satisfied that there is another reason to revoke that decision. These are my reasons for that decision.
BACKGROUND
The Applicant is 33 years old. He was born in Sudan. He is from the Dinka people. When he was 14 years of age, in the midst of the civil war that beset Sudan, he and his family left Sudan for Egypt. In 2006 they came to and settled in Australia.
After arriving in Australia, the Applicant did a course to learn English and attended high school completing years 10 and 11. He is able to read English although he has trouble understanding it. He can understand and speak English. He has some cognitive difficulties which I will say more about later.
After the Applicant left school, he worked as a cleaner and in the construction industry. Although there was some issue about what the Applicant wrote on one of the forms he submitted to the Minister about his employment history in Australia, it seems he has worked for much of his time in Australia after he left school in the construction industry, as a cleaner, as a chef and in recycling. For a least some of his time he has been unemployed and in receipt of social security benefits at times.
The Applicant has a large immediate family with six sisters and three brothers all of whom live in Australia. His mother and father are both Australian citizens who live permanently in Australia. His father is presently in Juba, South Sudan. The Applicant has four nieces and nephews who are aged 10, 7, 5 and 3 years of age. They are the children of his older sister whose name I do not record here because of the Applicant’s preference that he not be identified. His sister is separated from the children’s father who lives in Melbourne and does not see the children at all.
The Applicant suffers from mental illness, specifically schizophrenia. He has been aware of his mental illness for many years but was first diagnosed with schizophrenia in 2018. He has received antipsychotic medication by way of monthly injections for a little time. These injections are known as depot injections. A psychiatrist who assessed him in June 2020 expressed the opinion that he was ‘seriously cognitively affected by ongoing, partially treated schizophrenia’. I will say more about the Applicant’s mental health later.
On 10 December 2019 the Applicant was convicted of criminal offences for which he was sentenced to imprisonment for 18 months.
On 17 December 2020 he was serving that sentence on a full-time basis at the Metropolitan Reception and Remand Centre at Silverwater in Sydney. On that day the Minster made a decision under s.501(3A) of the Act cancelling the Applicant’s visa because the Act required him to do so where a person was both sentenced to a period of imprisonment of more than 12 months, and thus failed the character test in the Act, and was at that time serving a full time custodial sentence.
THE PRELIMINARY ISSUE
The Tribunal is only able to review a decision cancelling the revocation of visa if the Minister himself had that power. The Minister’s power to make such a decision is prescribed by the Act. There are some conditions that attach to the exercise of the power.
Sections 501CA(3) and 501CA(4) contain a pre-condition for the exercise of the Minister’s power. Those sections provide:
(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.
The existence of the power to revoke a cancellation is informed by the jurisdictional fact in s.501CA(4)(a) which is that ‘the person makes representations in accordance with the invitation.’ In turn s.501CA(3)(b) requires that the invitation must be ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.’
Regulation 2.52 of the Migration Regulations 1994 (Cth) (Regulations), so far as is relevant, provides:
(1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The representations must be made:
(a) for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and
(b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.
(3) The representations must be in writing, and:
(a) in English; or
(b) if the representations are in a language other than English—accompanied by an accurate English translation.
(4) The representations must include the following information:
(a) the full name of the person to whom the representations relate;
(b) the date of birth of that person;
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued by Immigration when the visa application was made;
(d) if the visa application was made outside Australia—the name of the Australian mission or Immigration office at which the visa application was given to the Minister;
(e) a statement of the reasons on which the person relies to support the representations.
The issue is about first whether the representations were made in accordance with the invitation because they were not made within the period prescribed, that is by 14 January 2021 or, alternatively, because they were not made in the manner provided for by the Regulations. They arise in two different ways, but in any event, it is first necessary to refer to the facts concerning the issue.
On 17 December 2019 the Applicant was served with the notice that told him that despite the cancellation of his visa he had an opportunity to make representations to the Minister about revoking the decision to cancel the visa. A blank Revocation Request Form was included with the notice.
The notice invited the Applicant to make those representations ‘in accordance with the instructions outlined below’. The notice outlined the things in Regulation 2.52 that ‘must’ be included in the representations which other than some relatively formal matters included a statement of the reasons on which ‘you rely to support your representations’. In capital letters and bold the notice contained the word ‘must’. It said that the representations ‘must’ be received by the Department ‘within 28 days after you have are taken to have received this notice’ and ‘as the notice was given to you by hand, you are taken to have received it when it was handed to you’. The notice said that the ‘your representations and any additional information may be sent by mail, email or fax’.
The Applicant said in his evidence that after he was given the notice on 17 December 2019 ‘The officer didn’t tell me what the date I had to put a response in. The officer just gave it to me. The boys in gaol told me, you have to put it in within 28 days’.
On 19 December 2019 the Applicant was released on parole and taken to Villawood Immigration Detention Centre (Villawood). The next day the Applicant was interviewed by an officer of the Department of Home Affairs. A record of the contents of that interview was made at the time of the interview. The document was signed by the Applicant and taken away by the officer. It contained all of the more formal details that would have been required by the documents complying with the Regulation.
The document recorded that the Applicant had answered the question ‘Do you have any applications before the Department’ under the heading ‘Applications and intentions’. The box ‘yes’ was ticked and the words s.501 cancellation were written. That was not so at the time as there was no application before the Department at that time on any view of the material. Under the question on the form ‘Do you have any reasons why you cannot return to your country of nationality/residence?’ the officer wrote the words ‘No family and war’. The Applicant said on the form he had a health issue, schizophrenia, that required treatment and that he had community support if he was released from detention into the community referring to his mother and father in particular.
On 20 December 2019 the Applicant also completed and signed a declaration page from the Revocation Request Form requesting revocation of his visa cancellation. He did not do anything with that form on that day. The Applicant said in his evidence that he sought assistance from someone else who was in detention to complete the form because he could not do that himself. I will refer to this person as the ‘other detainee’ because he is the only other detainee that was involved in anything relevant to what happened.
The Applicant later prepared the rest of the Revocation Request Form. The other detainee assisted him to complete the form. There was no issue that the Revocation Request Form complied with the Regulation in so far as the information that was contained in it was concerned.
The Applicant gave evidence that ‘When I went to give the form to be faxed it was the last day of the 28 days, I can’t remember what the date was now’. He said he gave the Revocation Request Form to an officer at Villawood to be faxed that day. He was very clear that the other detainee who had helped him complete the Revocation Request Form was not present when he gave the form to the officer to be faxed. He initially thought he had handed the Revocation Request Form to the officer at 4:00am but then said he could not remember the time at which he gave the Revocation Request Form to the officer. The Applicant’s evidence was the only direct evidence given about when he gave the form to be faxed and no direct evidence was called from anyone else, including the officer who made enquiries of him about when he gave the form over to be faxed.
The Revocation Request Form was sent to the National Character Consideration Centre by facsimile. It was sent from Villawood Immigration Detention Centre. The receipt stamp created by the facsimile transmission which commences on the first page records ‘15/01/2020 01:52’ as the time and date that the form was received. The rational inference being that the form was sent from Villawood at about that time. Of course, if it had been handed to someone after that time to be sent, say at 4.00am it could not have been sent by facsimile at 1:52am. It also follows that it must have been provided before 1:52am on 15 January 2019 in order to be sent then. There are no records from Villawood that record when the Revocation Request Form was handed to the officer. None were able to be found.
There is a record of a telephone conversation that was had between the status resolution officer and the Applicant which in the part of the record referred to as ‘Description’ records ‘Phone [the Applicant] regarding his revocation 16.01.2020’. The body of the record starts with the words ‘Called [the Applicant] to confirm if he had lodged his revocation as not (sic) updates where (sic) seen on ICSE. [The Applicant] informed that he had submitted his revocation via fax on 15.01.2020.’ The remainder of the note starts with the words ‘The phone was then passed to another detainee …’ and continues to record in a little detail the conversation with the other detainee. The conversation with the other detainee appears to have been conducted on the detainee’s part in a less than friendly way with words recorded such as ‘who spoke rudely to complain’, ‘would not stop speaking’ and ending with the words ‘would not tone down his voice and was extremely rude therefore the conversation was ended’. The clear impression created by what the other detainee is recorded to have said is that he was more than a little overbearing.
The record of the call also contains words under the heading ‘Completion Details’ which are ‘Start Date’, ‘Planned Completion’ and ‘Actual Completion’ with times and dates to be filled in alongside them. Those times and dates are for the first two entries, that is ‘Start Date’ and ‘Planned Completion,’ recorded as ‘16/01/2020 04:45:10 PM’. The ‘Actual Completion’ is recorded as ‘17/01/2020 04:56:51 PM’. The reasonable inference is that they are the times and dates the task is started, planned to be completed by and actually completed. It is open to infer that the phone call occurred on 16 January 2020 and the entry was a record of that call that was made a little over twenty-four hours later. It is significant that the officer who had the conversations with the Applicant and the other detainee was not called to give evidence.
Finally, there is an email in the material that was sent between two officers of the Department on 20 January 2020 which, after recording that Serco ‘could not locate a notation for this fax’, contains the following:
On the 16/01/2019 (sic) during a phone call with [the status resolution officer], SRO, [the Applicant] initially thought the paperwork was faxed the day before yesterday (14/01/2020).
However [the other detainee] then got on the phone and corrected [the Applicant] and advised he [the other detainee] took the paperwork to Seco (sic) be faxed on 15/01/020. So then they both agreed the paperwork was sent on 15/01/2020.
[The Applicant] claims the Correctional Centre told him the paperwork was due on the 15/01/2020 when he received the notification. (The underlining is added)
The Applicant’s initial thoughts, which are likely to have been conveyed by what he actually said about when the paperwork was sent are consistent with him having given them to an officer at the detention centre to send by facsimile on 14 January 2020. It is also important that the Applicant was addressing the issue of when the paperwork was faxed and not when he gave the paperwork to the officer. No doubt his expectation would have been that they would be faxed the same day. His recollection at that time is consistent with his evidence about when he, not someone else and not the other detainee, went to give the Revocation Request Form to be faxed it was the last of the twenty-eight days.
The note of the call made by the status resolution officer apparently on 17 January 2020 does not record anything at all about the conversation between the Applicant and her about the Revocation Request Form being sent ‘the day before yesterday’, nor does it record anything about the Applicant, or indeed the other detainee, changing their mind about or agreeing upon the date the Revocation Request Form was sent on its way by being given to an officer. The secondary evidence, as confused as it is, lends weight to the fact that the Revocation Request Form was given to an officer to be faxed on 14 January 2020 because when the Applicant was first asked about the matter his immediate response was to that effect.
It was submitted that it was unlikely that the Revocation Request Form would have been handed to an officer and been ‘left laying around’ for the best part of 22 hours before it was sent by facsimile. That presumes, of course, that the Applicant’s recollection about the time he gave the form to the officer, which he was asked about something like 18 months later and which he retracted and said he could not remember, is correct in circumstances where he could not remember the date he handed the Revocation Request Form to an officer to be sent. I have no way of knowing how attentive officers at Villawood are to detainee’s requests about sending facsimiles might be, they may be very attentive, but they may not be. Also, the proposition presumes a level of conformity to what usually or generally happens: human experience suggests things are not always as they seem or should be. Things go wrong.

The issue I have to determine is not when the facsimile was sent but rather when the representations were made which happens when the Applicant gave them to an officer of Villawood ‘and entrusted [he or she] to the task of communicating them to the Minister as and when they saw fit’ (Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 at [51]). I consider in the light of the Applicant’s direct evidence about when he, not the other detainee, handed the document to the officer of Villawood to be sent on the last day of the 28 days, and his first response when questioned about the matter on 16 January 2020, ‘the day before yesterday’ that it is more probable than not that he handed his Revocation Request Form to an officer of Villawood to send by facsimile transmission to the Minister at some time on 14 January 2020. At that point in time the representations were made and were therefore made within the time required by the Minister’s invitation and the Regulation.
It is unnecessary to consider in detail the alternative basis on which it was said that the representations were made within the period and in the manner ascertained in accordance with the regulations about revocation of the original decision which suggested that the interview form signed by the Applicant on 20 December 2019 satisfied the requirements of the Regulation. I should briefly indicate that I do not consider that the document as a whole can be considered to be representations to the Minister about revocation of the original decision especially because it does not set out any reasons why the decision should be revoked. Either because there are no representations in the document or because it did not contain reasons for revocation as required by Regulation 2.52. I would reject the contention that it constituted representations in accordance with the invitation so as to engage the decision making process.
Nonetheless it follows from my conclusion about when the Applicant handed the document to an officer of Villawood, namely on the last of the 28 days which was 14 January 2021, that I consider I have power to review the delegates decision that refused to revoke the cancellation of the Applicant’s visa.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
The Tribunal is required to consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. That is because that is the only basis under the Act which allows the decision to cancel the Applicant’s visa to be revoked. The other basis, that the Applicant passes the character test provided for by s.501, is not available as the Applicant has a ‘substantial criminal record’ as a result of his being sentenced to imprisonment for more than 12 months.
The issue about being satisfied as to whether ‘there is another reason why the original decision should be revoked’ requires identification of a rational or reasoned basis or justification for undoing the visa cancellation.
The Minister has issued Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction) which commenced on 15 April 2021. The Tribunal is required by s.499(2A) of the Act to comply the Direction when it performs its functions and exercises it powers.
The purpose of the Direction is to provide guidance to decision-makers in performing functions and exercising the power with which this application is concerned. The Direction identifies principles which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and considerations that the decision-maker must consider where they are relevant to the decision. The principles inform the matters to be considered. I will refer to the principles where it is necessary, but I will not set them out here.
The Direction refers to two categories of matters the Tribunal must consider: ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·the protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
The ‘other considerations’ include:
·international non-refoulement obligations;
·the extent of impediments if a non-citizen is removed from Australia;
·the impact on victims;
·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.
The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ contemplates cases where it may not to do that.[1] There are cases which in their specific circumstances may require departure from the general position. Colvin J observed in relation to one of the predecessors to the Direction which is not materially different to the Direction in this respect:
The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[2] (The underlining is added)
The Direction also says that ‘one or more primary consideration may outweigh other primary considerations.’ These are all matters for the decision maker acting rationally and reasonably to assess.
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).
[2] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The Direction requires the decision-maker to take into account the considerations where they are relevant to the decision and in doing so, lays down within each consideration those matters that must be taken into account where relevant. The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[3]
[3] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The issue of considering all matters is important because of the subject matter with which the decision is dealing which potentially involves the exclusion from Australia of someone who may have lived here for a substantial part of their life. It need only be said now that the far-reaching ramifications to the community, particular people, and, naturally enough, an applicant, are an important factor of the need to consider matters earnestly and deliberatively.
I will first consider matters that are relevant to each of the relevant primary and other considerations in turn.
PROTECTION OF THE AUTRALIAN COMMUNITY
The Direction requires that I ‘keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. I am required to have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian law and institutions and will not harm the community. There are two aspects to this consideration: the nature and seriousness of the conduct of an applicant and the risk the community faces should that applicant re-offend.
It is useful to review the Applicant’s history of offending because that history is helpful in dealing with the issues that inform this consideration.
The Applicant’s time in Australia has been marred by his accumulation of a lengthy record of criminal offending that extends back until September 2008. Some of his record involves offences that are not serious ones which is partly reflected by the penalties imposed which are generally small fines, good behaviour bonds and community service orders. Some of the offences involve assault and hindering police officers doing their job but they too do not appear to have attracted sentences of imprisonment which seems to be explained by the low level of violence that seems to have been involved in the offending. Of course for reasons outlined later they nonetheless must be viewed as very serious offences.
There is one offence of affray for which the Applicant spent a little over a month in prison in 2011, and two offences in 2018 which involved contravening a restriction or prohibition in an apprehended violence order that saw him spend two months in prison in 2018 but other than those and the most recent offences the offences he committed over time until February 2019 were not serious enough to see him sent to prison.
It is helpful to set out some things about the Applicant’s criminal offences in a little detail before addressing the matters to which the Direction refers. I will deal with the more important historical offences first as they were identified by the Minister as being important.
In September 2008, when the Applicant was about 20 years of age, he hit his sister with a shoe and pushed her. He was charged with common assault. The offence involved violence towards a woman and domestic violence and for those reasons should be considered very seriously. The penalty imposed was to place the Applicant on a good behaviour bond without recording a conviction. There was nothing that suggested there were any serious consequences for his sister as a result of the offending.
A few years later, just after Christmas 2010, the Applicant was involved in a fight at a railway station where he punched another man. The man suffered a bruised jaw although that conclusion requires reliance on a police report rather than any finding to that effect or any evidence about an admission that, for example, accompanied a plea. I should treat the police report with care because it is hearsay and untested hearsay. The Applicant was convicted of an offence of affray and assault occasioning actual bodily harm. He was sentenced to one month and two days imprisonment for the affray which appears to largely reflect the time had already spent in custody and was placed on a two-year good behaviour bond for the assault. The offending was serious because it involved violence, but the penalty and the consequences of the offending reflect it was certainly not at the high end of seriousness for offences of its kind.
In September 2011 the Applicant was found in possession of a knife. I do not know much about what happened although the Minister points to a police report of what happened. Although the police report is only the policeman’s version of events and is untested it says that the Applicant tried to run away after telling the police that he had the knife. There was no attempt, it would seem, by the Applicant to use the knife and no suggestion that he actually did use it. The police report, which is hearsay and only records one person’s version of what happened and is untested, refers to the Applicant having the knife to protect his friends. It is relevant that there was no actual violence displayed towards the policeman or anyone else and the Applicant was not charged or convicted with any offence that involved the use or even attempted use of the knife. The Applicant was convicted with offences involving having the knife in a public place, not complying with a request to submit to a search and hindering a police officer whilst she or he was doing her or his job. The Applicant was placed on a good behaviour bond for 12 months.
In March 2012 the Applicant was involved in a fight that resulted in him being charged with common assault. He was given a community service order which was called up and extended on two subsequent occasions. There is no suggestion that anyone was hurt or injured as a result of the fight.
In June 2012 and February 2015, the Applicant was involved in incidents that led to him being convicted of affray. Again, there is no direct evidence about what happened and there is no evidence about what was before the Court when the Applicant was convicted and sentenced. The penalties imposed, both involving a good behaviour bond or a community service order, suggest they were not treated as being particularly serious. There is no evidence about what consequences followed as a result of either offence. There was nothing to suggest that anyone was physically injured.
The Minister also drew my attention to an offence that was committed in November 2013 that involved a conviction of stalk and intimidate with intention to cause fear of physical or mental harm when the Applicant said some things when he was being escorted from licenced premises. Again, I note there is no direct evidence of what the Applicant admitted, or what was found against him, on conviction and sentence.
On 10 December 2019 the Applicant was sentenced to 18 months imprisonment with a 10-month non-parole period for eleven criminal offences that were aggregated for sentencing purposes. There were two counts of sexually touching a person without consent, three counts of stalk and intimidate with intent to cause physical or mental harm, one count of contravening prohibitions in an apprehended violence order, one of common assault, one of behaving in an offensive manner in or near a public place or school, two counts of possessing a prohibited drug and one of stealing property worth less than $2000. There was also one offence of shop lifting called up from 2009 that defies explanation, but neither party really said much about it and it does not appear to be relevant at all.
The offences dealt with on 10 December 2019 were all committed over the period from about January 2018 until February 2019 with the offences involving sexually touching a person without consent, the stalk and intimidate with intent to cause fear of physical or mental harm and the offence of behaving in an offensive manner in or near a public place or school all being committed in one week in February 2019.
The two contraventions of the apprehended violence order involved the Applicant visiting his sister’s home which he was restrained from going to because of the apprehended violence order. He had lived there before but because of his drinking and an argument he had with her an apprehended violence order was made. The two offences were called up after the Applicant breached the good behaviour bond that he was placed on when those offences first went to Court in March 2018.
On 21 January 2018 the Applicant went to his sister’s house when he was intoxicated. In doing so he contravened an apprehended violence order. I note, a little more than in passing, that whilst there was an argument there is no suggestion that anyone was physically hurt. The Applicant’s sister said she had not asked for the apprehended violence order to be made although she had called the police a few times ’to make sure no one gets hurt’. The Applicant was also found to be in possession of a ‘small plastic bag’ which contained ‘ice’. He was dealt with for the offences on 7 March 2018 where he was sentenced to 2 months imprisonment, placed on a good behaviour bond for 2 years and was fined. The two-month sentence of imprisonment related to the contraventions of the apprehended violence order. The fine related to the prohibited drug offence. The sentence of imprisonment appears to reflect broadly the period that the Applicant had been in custody by the time he was sentenced.
On 25 January 2019 the Applicant was convicted of an offence of common assault and stealing from a person goods valued at less than $2000 which was committed on 3 July 2018. The goods stolen were cigarettes. The police records say that the Applicant punched a man in the ribs quite hard such that he suffered immediate pain but there is no suggestion in any of the material of any actual or ongoing injury. I do not have any direct evidence about what happened so far as this offence is concerned but the elements of the offence involve stealing and violence. There is, again, no evidence about the consequences of the Applicant’s offending. I note that the records indicate that in August, a short time after the Applicant committed this offence and whilst on remand, it was observed that he was suffering from mental illness, something which I will return to, and he was being managed by the Mental Health Screening Unit. The Applicant was placed on a community corrections order for 18 months. The offences were also called up on 10 December 2019.
On 10 December 2019 all of the February 2019 offences and those which were called up were dealt with by way of sentencing. The facts leading to his conviction are recorded in the transcript of the Local Court at Blacktown on 10 December 2019. They are fairly succinct.
On 13 February 2019 the first two offences involving stalk and intimidate with intention to cause physical and mental harm and behaving in an offensive manner in a public place were committed. They involved the Applicant following two young girls aged 5 and 9 years of age into the public toilets near Blacktown library giving one of them a ‘high five’ and moving one of them up to the basin so that she could wash her hands. It should be emphasised that there was nothing else alleged about the Applicant’s conduct even though following two young girls into the female toilets is a serious matter.
On 18 February 2019 whilst sitting with his mother in a public place in Blacktown a young woman walked past the Applicant, and he hit her on the backside. The Applicant was on bail at the time. He was convicted with sexual touching without consent.
On 19 February 2019 the Applicant was on bail when he approached a woman who was mowing her lawn. They had a conversation and he stood behind her apparently trying to assist her. When she asked him not to continue, he rubbed himself against her in an up and down motion from behind. The woman yelled out. The Applicant ran off. He was eventually convicted with sexual touching without consent although he did not admit this offence.
The same day a young girl who was 11 years of age saw the Applicant, thought he was intoxicated and crossed the road to avoid him. The Applicant followed her and engaged in conversation with her. The child’s mother arrived and left with the child. Again, the Applicant was on bail at the time. The Applicant was convicted of stalk and intimidate with intention to cause physical and mental harm.
Before the Applicant was sentenced, he was referred for a mental health assessment. He was assessed as suffering from schizophrenia. On 25 October 2019 a Forensic Treatment Order was made for a period of one year. The order contemplated that if the Applicant was transferred to a different corrections facility his case manager would ensure that he was transferred to a facility with adequate mental health services.

On 10 December 2019 the Applicant pleaded guilty to all of the charges except for the one involving hitting the woman’s backside which he pleaded not guilty to but had by then been found guilty. The Magistrate regarded all of the offences as involving sexual behaviour with the offence involving the children falling ‘just below mid-range’ and the other offences ‘towards the upper end of the low range of objective seriousness’. The offences were aggravated by the fact that all of them, except the first, was committed whilst the Applicant was on bail and all of them were committed when the Applicant was on a bond and community corrections order that had been made in January 2019.
In sentencing the Magistrate acknowledged that the Applicant suffered from a diagnosed mental illness but declined to make orders under s.32 of the Mental Health (Forensic Provisions) Act 1990 because of the seriousness of the offences. The Magistrate acknowledged the lack of treatment that the Applicant had received for his condition.
The Magistrate imposed an aggregate sentence of 18 months imprisonment with a non-parole period of 10 months. The indicative sentences for the called up offences were one month imprisonment for each of them and for the other offences periods of two or three months imprisonment except for the offence involving hitting the woman on the backside for which the indicative sentence was six months imprisonment.
THE CRIMINAL OFFENDING IS VERY SERIOUS
I am required to have regard to the fact that offences involving violence and crimes of a violent nature against women and children are regarded by the Australian Government Australian community as being very serious.
The sexual contact without consent with the 19 year old young lady involved hitting her, which is viewed very seriously by the Australian Government and the Australian community. The sexual contact with the woman mowing the lawn is likewise to be viewed very seriously. I note that the Magistrate observed that the offences against the children involved ‘sexual offending’ but it is difficult to understand that characterization because there is nothing that happened that has a sexual element. The charges themselves are not charges that involve sexual behaviour. I nonetheless accept that the offence involving him in being in a female public toilet with two female children is a very serious offence quite apart from the characterization of it as ‘sexual’. As the Minister submitted, adult men should not be in female toilets with young girls.
I also consider the offences of stalking and intimidation, so far as the offences against children are concerned, to be very serious because children are properly to be considered as vulnerable members of the community. The criminal offence involving violence against his sister in pushing her and striking her with a shoe is also to be regarded as very serious.
The criminal offending involving violence, such as the affrays and assaults which involved violence against others, is very serious albeit that having regard to the sentences involved are a little serious. Two of the affray offences involved sentences to imprisonment albeit of a month and two months. One of the common assault offences was dealt with in the aggregate sentence of 18 months imprisonment.
The offences of resisting police officers in the execution of their duty are serious offences. They involve crimes against public officials doing no more than what they are required to do by reason of their position. Nonetheless the sentence imposed for those offences, good behaviour bonds of 6 and 12 months duration, do not suggest that they were at the high level of seriousness.
The other aspect of the Applicant’s offending is its frequency. There are a large number of offences over some ten-year period that occurred with some frequency. It is also relevant that the offences involving increasing seriousness, especially having regard to the two most recent offences of sexually touching without consent involving violence towards women and the offences involving stalking and intimidating young children, are concerned. It should be noted that the offending involving violence by way of assaults and affray seems more predominant in the Applicant’s early offence history than more recently. The more recent offending appears to have much to do with the Applicant’s untreated mental illness. It is different in character to the earlier violent offending. The cumulative effect of the offending is relevant as it has involved very many offences over a long period of time.
I am satisfied that the overall nature and seriousness of the offending is to be regarded as objectively very serious.
THE RISK TO THE COMMUNITY
As part of the consideration of the Protection of the Australian community I am required to consider the risk to the community should the Applicant be permitted to remain in the community and if he were to engage in further offending. There are two aspects to this: the first is the nature of the harm to individuals or the Australian community should the Applicant engage in further offending and the second is the likelihood of the Applicant engaging in further criminal offending, having regard to information and evidence concerning that and evidence of rehabilitation.
A sound starting point for assessing the nature of the harm to the Australian community should the Applicant reoffend is the nature of the harm that his offending conduct has caused to date. So far as his assaults and affrays are concerned there does not appear to be any significant serious physical or mental injury caused by any of his offences. There is one offence of affray that resulted in, at best if the police records are considered, the victim having a bruised jaw. Another involved a man being punched and suffering pain to his ribs, but again this is according to only to untested police records. Even if accepted these things appear to be the worst of the consequences of the Applicant’s behaviour to date. Those consequences are in the context of offences that have involved intoxication by alcohol and drugs.
The offences committed the week of February 2019 that led to the 18-month sentence of imprisonment do not appear to have involved any injury being inflicted although one cannot disregard the indeterminate effect of the intimidation of young children. All of those offences do seem to be a in a different class to the Applicant’s previous offending involving, as Professor Basson described, ‘bizarre behaviour’. The Minister suggested that ‘the problem with just saying it’s bizarre offending is that it wouldn’t be that big a step for that sort of bizarre offending to cause real harm to some person. Especially a child, but also a young woman. And simply because it’s bizarre shouldn’t give you any confidence that something similar or worse might not occur in future’. To some extent that submissions involves speculation, but also it ignores the fact that in the series of four offences that occurred involving the young lady who was struck on her bottom, the lady mowing the lawn, the children in the bathroom and the other young child there was on no occasion any harm of a serious kind done to them. Four separate acts of offending involved no physical or other injury.
In my assessment the nature of the harm that is likely to follow from the Applicant engaging in similar conduct that has been involved in his offending is likely to be much the same as the harm his conduct to date has caused. This is because the Applicant’s offending has continued for so long and there does not appear to be any significant escalation in the consequences of his conduct. A great deal of what he has done in his offending has largely been without serious consequence.
Next, I must consider the Applicant’s likelihood of re-offending which requires me to take into account information and evidence about the risk of re-offending and evidence of rehabilitation achieved by the time of this decision. There are several matters that are relevant.
First, the background of the Applicant’s offending conduct fairly suggests, given the frequency, that the Applicant is likely to re-offend. That is, not much has happened in the past that would inform any confidence that the Applicant will, as the Minister suggested, suddenly stop offending given the history of the last ten or so years.
Second, much of his offending has been linked to his alcohol and other substance abuse and perhaps his mental illness. The Magistrate when sentencing the Applicant took into account the fact that the Applicant ‘needs significant treatment in the community’ and that ‘I am given some confidence of his rehabilitation or at least a commencement of it, given that he will be released on a forensic treatment order’. That of course was the position then but the importance of what the Magistrate says is the acknowledgement that his mental health condition in all likelihood contributed to his offending at least in relation to the offences that were being dealt with then.
Third, the Applicant has spent a significant time in prison and in detention, something like two and one half years. His past offending saw him in prison for two relatively short periods of time: a little over one month and about two months. It is true he was not deterred from repeat offending as a result of those sentences. It should not be presumed that his time more recently whilst incarcerated and then detained has had no effect at all on his likelihood of re-offending: in the context of a long criminal history that does not reflect any substantial period of incarceration (and detention) or any sanctions involving removal of liberty for a long time, there is some reality that the sentence and time spent in custody and detained may well influence the likelihood of him re-offending. An object of sentencing is, after all, to deter repeat offending by the offender. This operates against the first consideration of repeat offending being more likely because of the history of past offending, I should add, albeit parenthetically, that the Applicant’s apparent lenient treatment by the criminal justice system may also have ‘encouraged’ the Applicant to the view that offending would not have serious consequences: he has been disavowed of that suggestion now.
Fourth, over the period of his incarceration the Applicant has been alcohol and drug free. It is given that that is in the controlled environment of a custodial institution and of detention, but the inescapable fact is that of a significant period of being free from intoxication by alcohol or drugs. Again, as with the previous consideration that is a matter that is different to what is likely to have been the pattern of the years before the Applicant was incarcerated.
Fifth, there is some evidence that the Applicant’s mental illness, schizophrenia, has stabilised because of the treatment that the Applicant is now receiving by way of monthly depot injections. Dr Basson said in his report that there was evidence that the Applicant’s condition stabilised in response to medication and clinical interaction. Again, it should be observed in the structured environment of a custodial institution and detention the Applicant has been compliant with his medication regime, but it is not possible to determine how he will fare in that regard in the community. Two factors point to the prospect that he will comply with that regime which are his determination to do so and the likely assistance he will receive form his family, especially his sister and mother. The fact that at one or other times in the past that he stopped taking his medication because he thought it was too high without having medical advice to that effect is neither here nor there in the context of the Applicant now considering his medication is correct and the fact that he is compliant with it.
Sixth, there are prospects that the Applicant’s mental illness will be controlled if he re-enters the community. In this regard Dr Basson referred to what was necessary which was mainly assertive intervention and adherence to medication. It is correct to point out that Dr Basson qualified his evidence by saying that he could not express any confidence that the Applicant would in fact engage with services, but he did identify the means by which it could be achieved: by being placed on a community treatment order. His evidence also underlined the prospect that there is treatment available that could, if administered, mean that the Applicant would be of low risk. It was suggested that after the Applicant was admitted to hospital in 2018 and 2019, he engaged in further offending which demonstrates that he was effectively treated despite his awareness of his condition. I do not consider the equation quite so simple especially having regard to Dr Basson’s evidence about the kind of treatment the Applicant requires. It does not seem to be so simple as the Applicant being admitted to hospital and being cured. Apart from that the evidence was that the Applicant’s medication, at least in 2019, was affecting him ‘badly’ or that he reacted to it poorly.
Seventhly, the Applicant has demonstrated some awareness of his issues with drugs and alcohol. In particular, he is aware of the relationship between his mental illness and alcohol: the voices are worse when he drinks alcohol. He has expressed something of a willingness to at least to be alcohol free. It is difficult to give this any considerable weight in the assessment of likely re-offending, but the Applicant’s awareness of the issues associated with his alcohol and drug problem and what he can do about them is at least positive. Like with the Applicant’s expressed remorse it is difficult to give this aspect too much weight having regard to the history of his offending. I do consider that he has some remorse and although he lacks some insight into his ‘sexual offending’ this may have more to do with his cognitive impairment than anything else. Nonetheless his lack of insight into that offending is a matter that detracts from a conclusion that he is unlikely to reoffend or that the likelihood of reoffending should be considered to be low.
There was some suggestion that the Applicant downplayed his awareness or denied his mental illness symptoms because of entries that were found in some records whilst he was incarcerated. Aside from the entries being hearsay and untested, one feature of them is that they, to an extent, reflect some of the things that Dr Basson said about the Applicant having ‘a process delay when questions are put to him’. Dr Basson also said that the Applicant was ‘not being a very easy man to interview. I had to repeat questions. He was slow in reply, sparse in detail and monotonous in tone. He was reluctant to give me details re crimes, criminal history. I was often only able to get information by leading questions. I felt that he was man who was seriously cognitively affected by ongoing partially treated schizophrenia’. I would not give any considerable weight to what is said in the records absent the author being called and being tested about what was said.
Eighthly, there are some pro-social factors that are relevant, in particular the support the Applicant has from his older sister and his mother. Again, it is true that those factors did not prevent the Applicant from offending in the past, but that was at a time when not much seems to have been known about the Applicant’s mental health condition and was certainly not at a time when the Applicant had spent two and a half years in prison and in detention and was facing the real prospect of his permission to stay in Australia being withdrawn. In that respect, the seriousness of what has happened and the need to support the Applicant now, unlike in the past, has a greater reality to it.
Finally, I do not place any weight on the documents that have been produced that refer to the Applicant’s conduct while in detention. The allegations and what is said in those documents are untested and as the Minister properly observes none of those allegations have been proven. I do not consider in the absence of proof that they provide any assistance in determining the Applicant’s risk of re-offending.
The question about the Applicant’s risk of re-offending is a complex one, but overall, I consider that there is a risk, a real risk that the Applicant will reoffend, but I do not consider the risk to be a high one. It is very much moderated by the matters I have referred to, in particular the Applicant’s time incarcerated, being drug and alcohol free and the prospect that if released in the community with the pro social factors of his mother and his siblings behind him he is likely to obtain the treatment he needs for his condition. The likelihood of him reoffending is in the middle of the range from high to low. It is certainly real.
I do not consider that the risk, having regard to the likely consequences, is unacceptable. It is certainly one, when considered on its own, that the community should not have to run, but when considered with the factors that may realistically help the Applicant from re-offending, his prospects of rehabilitation himself and the real prospect that future treatment may genuinely help him it is one that community could take a chance on because of those factors that weigh in favour of revocation which I deal with later.
I am satisfied that the nature and serious of the Applicant’s criminal conduct is very serious. I am satisfied that the likelihood of the Applicant reoffending is real but not high. I am satisfied that the consequences of any reoffending are, whilst serious, not at the high range of seriousness. This consideration stands firmly in the way of revocation of the decision cancelling the visa.
FAMILY VIOLENCE
This consideration directs attention to Australia’s concerns about permitting people who are not citizens who engage in family violence to remain in Australia. The Direction refers to the fact that those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There are two instances that fall for consideration here. The first involves the common assault against the Applicant’s sister where he pushed her and struck her with a shoe. The Minister accepts that the incident appears to be isolated. Also, it does not appear in any pattern of behaviour and happened a long time ago in 2008.
The second instance of domestic violence offending involves the two breaches of the apprehended violence orders in January 2018. The seriousness of the contraventions appears to reside in the fact that the Applicant went to his sister’s house whilst he was intoxicated. She said she called the police ‘because she didn’t want anyone to get hurt’. The incident does not appear to be part of any ongoing conduct involving domestic violence. So far as domestic violence offending goes the offences do not appear to have been serious. There was no actual physical violence at all. The Applicant accepts he should not have gone to his sister’s house when the apprehended violence order was in place. There is no increase in frequency of domestic violence offending that is relevant and the cumulative effect of the two offences is not apparent. The Applicant accepts responsibility for what he has done and his responsibility for it.
This consideration weighs slightly in favour of non-revocation.
BEST INTERESTS OF THE MINOR CHILDREN
There are four young children aged 3, 5, 7 and 10 who are the Applicant’s nieces and nephews and who will be affected by the outcome of this matter.
The Applicant lived with the children when he was living with his sister. He has had some involvement in their care, and it was obvious during the hearing that they have some affection for him and he for them. His care for them included minding them at times when his sister needed to go out without them. She obviously trusted him to care for them. She expressed the opinion, as their mother, that it would be good for the kids to have the Applicant around. The children’s father lives in Melbourne and the children do not see him

The Minister acknowledged that there will be significant impediments to the Applicant if returned to South Sudan accepting as he did that the Applicant has limited family ties and community support and would face cultural as well as linguistic barriers.
I consider that this consideration weighs strongly in favour of revocation.
TIES TO THE AUSTRALIAN COMMUNITY
The Direction requires that attention be paid to links to the Australian community which are broken into two categories, first the strength, nature and duration of ties in Australia, and second, the impact on Australian business interests. There was no suggestion that business interests are relevant.
So far as the strength, nature and duration of the Applicant’s ties to the community are concerned, I must consider how long the Applicant has lived in Australia but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.
The Applicant has been in Australia for a little over 15 years. His offending started soon after his arrival. He has been employed for some of the time he has been in Australia although the evidence was a little unclear about the duration of his employment. In his Revocation Request Form the Applicant said he had been employed only for a matter of months, but it was clear, at least, from his evidence that he was employed for much longer than that. On his evidence he held employment for at least four years on and off due, it would seem, to the nature of the work, but the evidence of his mother and sister suggested periods longer than that. His sister gave evidence that he had been unemployed for about a year at one time. The evidence suggested he had worked in construction, in recycling, in a restaurant and as a cleaner at various times and had mainly worked in recycling.
The Applicant’s mother and father are Australian citizens who live permanently in Australia. The Applicant has nine brothers and sisters who all live in suburban Sydney who are all Australian citizens or permanent residents. The nature of his ties, familial as they are, is important and the strength of them appears to be fairly close particularly to his mother and his older sister who is the mother of the four children to whom I referred. The duration of the ties is for the whole of the time he has been in Australia.
I consider that this consideration weighs in favour of revocation of the cancellation of the visa; in particular, having regard to the ties that the Applicant has to Australia. His offending history, having started shortly after he came to Australia and its consistent pattern means that the weight given to this consideration must be reduced. This is nonetheless a consideration that weighs in favour of revocation.
THE VICTIM(S) OF THE OFFENDING
This consideration requires attention being given to the ‘impact of a decision not to revoke on members of the Australia community, including victims of non-citizen’s criminal behaviour, and the family members of the victim or victims where the information is available and the non-citizen being considered for revocation has been afforded procedural fairness.’
The Applicant’s older sister who was involved in his offences relating to the contravention of the apprehended violence order. She will be impacted by a decision refusing to revoke the cancellation because she wants her brother to remain in Australia. The decision will adversely affect her not only immediately but into the future.
This consideration weighs in favour of revocation.
THE CANCELLATION SHOULD BE REVOKED
I have found that the protection of the Australian community weighs firmly in favour of non-revocation of the visa cancellation. In doing so I consider that the consequences of the Applicant’s re-offending should he do so are not so serious as to preclude revocation in the main because none of his offending to date has had any serious consequences for members of the Australian community. That conclusion is also reinforced by the prospects that the Applicant’s risk of re-offending is, whilst not to be regarded as low and is real, is moderated by some of the matters to which I have referred. I have found that the family violence offences weigh only slightly in favour of non-revocation and that the expectations of the Australian community weigh moderately against revocation. I have found that the best interests of the Applicant’s four young nieces and nephews weigh in favour of revocation. The primary considerations weigh against revocation of the cancellation although the most significant consideration in that regard is the protection of the Australian community.
So far as the other considerations are concerned, I have found that the Applicant’s ties to the community, in particular his familial relationship with his brothers, sisters and parents who are all Australian citizens or permanent residents weighs in favour of revocation as does the impact of non-revocation upon his older sister who was one of the victims of his offending.
I have found Australia’s non-refoulement obligations weigh very strongly in favour of revocation. I consider the prospects of the Applicant’s persecution and likely harm resulting from his ethnicity, but more significantly from his mental illness, is significant. The prospect that he may end up in indefinite detention in Australia if he is not removed to South Sudan is equally significant in light of his mental illness and his need for treatment. I have carefully weighed these considerations against the Applicant’s criminal offending which for the reasons I have given I do not consider that the harm that would be caused from any repeat offending would be so serious that any risk of repetition is unacceptable. Although I consider the risk of his reoffending is real I do not consider that there is a high likelihood of him reoffending, it lays squarely in the middle of the range of likelihoods. I also consider the impediments that the Applicant faces in establishing a basic living standard for himself if removed to South Sudan is a weighty matter that favours revocation mainly because of the dire situation that prevails in South Sudan, but also because of the Applicant’s mental illness.
These two considerations, Australia’s non-refoulement obligations, and the impediments to the Applicant in establishing and maintaining a basic standard of living in South Sudan in my assessment strongly weigh in favour of revocations such that they should be considered as the weightiest considerations in the particular circumstances of this case. They should, in the particular circumstances of the Applicant, be treated or weighed as though they are primary considerations. Together with the other considerations that weigh in favour of revocation they outweigh the protection of the Australian community, the expectations of the community and the consideration related to family violence.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Global Special Humanitarian (subclass 202) visa.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

................................[SGD]........................................
Associate
Dated: 20 September 2021

Date(s) of hearing: 6 September 2021

Solicitors for the Applicant: Ms Kate Bones, Legal Aid NSW

Counsel for the Respondent: Mr Tim Reilly

Solicitors for the Respondent: Ms Isobel Leonard, Australian Government Solicitors

[2021] AATA 3378

20 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	6 September 2021
Solicitors for the Applicant:	Ms Kate Bones, Legal Aid NSW
Counsel for the Respondent:	Mr Tim Reilly
Solicitors for the Respondent:	Ms Isobel Leonard, Australian Government Solicitors