YNPX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 627
•5 April 2024
YNPX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 627 (5 April 2024)
Division:GENERAL DIVISION
File Number: 2024/0344
Re:YNPX
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J. Pennell
Date of decision: 5 April 2024
Place:Melbourne
The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.
..................................[SGD].....................................
Senior Member J. Pennell
CATCHWORDS
MIGRATION – Visa refusal – citizen of South Sudan – Global Special Humanitarian (Class XB) (Subclass 202) visa – Applicant does not satisfy character test – Common Assault – Destroy or damage property – Assault police office in execution of his duty – Resist or hinder police officer in execution of his duty – Wilfully use of offensive language on train or public area – fail to appear in accordance with bail undertaking - Make threat to kill – Unlawful assault intentionally cause injury Contravene Community Corrections Order – Commit indictable offence while on bail – Aggravated burglary – Contravene Family Violence Order – diagnosis of PTSD – expert evidence considered – strength, nature and duration of ties to Australia – risk of impediments if returned – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
The Nationality Act 2011 (South Sudan)
CASES
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021 FCAFC 133
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 150
SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCAFC 55
SECONDARY MATERIALS
Africa, 101 Last tribes- Madi people; < No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
The Lancet ‘Mental Health services in South Sudan’ by Ashok N Singh April 2014. < States Agency for International Development, USAID Global Health South Sudan; < FOR DECISION
Senior Member J. Pennell
30 October 2023
INTRODUCTION
1.This is an application to review the decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (‘the humanitarian visa’).
2.The Tribunal hearing was held in person on 20 and 21 March 2024 at the Tribunal’s Melbourne Registry. The applicant was represented by Mr Matthew Kenneally of counsel, instructed by Ms Amelia Faraone of Refugee legal, and the respondent was represented by Ms Catherine Oppel from the Australian Government Solicitor.
3.The applicant was born on 30 January 1991 in what is now known as South Sudan.
4.The applicant arrived in Australia on 13 September 2006 (aged 15 years) as a dependant on his grandmother’s visa, together with his uncle and brother and sister.[1]
[1] Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) at p.4, G 80.
5.The applicant has been convicted of a number of offences. He was 18 years old at the time of his first offence.[2]
[2] District Court of NSW No 2009/194431, Sentence at p.2, G 124.
6.On 30 July 2012 the Department of Home Affairs (‘the department’) decided not to cancel the applicant’s visa.[3] The departments notice of decision contained a warning to the applicant that the cancellation of his visa may be reconsidered if he committed further offences or otherwise breached the charter test in the future.[4]
[3] Notice of Decision not to cancel visa under section 501 of the Migration Act 1958 dated 30 July 2012, G 110.
[4] Ibid; Statement of Reasons for decision under s.501 CA of the Migration Act dated 11 January 2024 (‘the department’s decision) at p.17, G 25.
7.On 3 April 2023 the applicant was notified of the decision to cancel his visa.
8.On 3 April 2023 the applicant made a request for revocation of a mandatory visa cancellation under s.501(3A).[5]
[5] Applicant’s Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) dated 3 April 2023, G 73.
9.On 11 January 2024 the delegate decided not to revoke the mandatory cancellation of the applicant’s visa (‘the delegates decision’).[6]
[6] The department’s decision, G 25.
10.The applicant has made application for a review of the delegates decision.
11.Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision (‘84-Day Rule’),[7] being 6 April 2024. Failure to do so results in the reviewable decision being affirmed by operation of law.
[7] s.501G(1) of the Act.
12.For the following reasons, the Tribunal has concluded that the delegate’s decision should not be revoked.
RELEVANT LAW
13.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s.501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s.496 of the Act, the Minister may delegate these powers.
14.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly s.501CA(4) states:
(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.
15.Subsection 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
16.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part s.501(6) states:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or……..
17.Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
18.If an applicant fails the character test, the issue to be determined under s.501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[8] The Full Court in Bettencourt[9] reflected with approval upon the approach taken in Viane,[10] about how this is determined. Their Honours summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[8] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[9] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[10] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
19.More recently, in Plaintiff M1/2021,[11] the plurality of the High Court stated how representations made under s.501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand, and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them.
(Citations omitted).
[11] Plaintiff M1/2021 v Minister for Home Affairs [2022 HCA 17] (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
Direction 99
20.On 3 March 2023, Direction No.99 Visa refusal and cancellation under s.501 and revocation of a mandatory cancellation of a visa under s.501CA (‘Direction 99’) came into effect. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under s.501 of the Act.
21.Direction 99 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. Paragraph 5.2 of the Direction provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(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 measurable risk of causing physical harm to the Australian community.
22.The primary considerations in making a decision under s.501(1), 501(2) or 501CA(4) are detailed in clause 8 of Part 2 of Direction 99 as follows:
(1) protection of the Australian community from criminal or other serious conduct.
(2) whether the conduct engaged in constituted family violence.
(3) the strength, nature and duration of ties to Australia.
(4) the best interests of minor children in Australia.
(5) expectations of the Australian community.
23.Clause 9 of Direction 99 details other considerations where relevant, that must be considered. These are:
a) legal consequences of the decision.
b) extent of impediments if removed.
c) impact on victims.
d) impact on Australian business interests.
24.Generally, a decision maker should give greater weight to primary considerations under clause 8 than to other considerations pursuant to clause 9. In Suleiman v Minister for Immigration and Border Protection[12] Colvin J when considering Direction 65 (now Direction 99) stated:
‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[12] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
25.While his Honours comments were made in relation to the earlier direction, they continue to be relevant in relation to Direction 99.
26.In this case, there is no dispute in relation to the applicant having made representations about the revocation of the cancellation of the visa. As such the requirements of s.501CA(4)(a) of the Act have been met. The issues before the Tribunal are:
(a)does the applicant pass the character test, as defined in s.501 of the Act? If not;
(b)is there another reason why the original decision should be revoked?
APPLICANTS BACKGROUND
27.The applicant was born on 30 January 1991 in South Sudan. The applicant parents were both born in South Sudan. His father was employed as a teacher. He has an elder brother and sister who both currently live in Australia.
28.When the applicant was approximately 13 years of age his parents were taken by members of the Sudan People’s Liberation Army (SPLA). His evidence was that his father and grandfather were killed by the SPLA. He claims that he has not had any contact with his mother since the time she was taken and does not know if she is alive or dead. After being separated from his parents, he lived with his grandmother, who took him to live in a refugee camp in Uganda. While in Uganda he attended a Jesuit Refugee Service (JRS) sponsored school.
29.On 13 May 2004 the applicant’s uncle made an application to travel to Australia on a humanitarian visa, together with the applicant’s grandmother and his brother and sister.[13] The applicant arrived in Sydney, Australia on 13 September 2006.
[13] Application for an Offshore Humanitarian Visa (Form 842) dated 13 May 2004, G 1.
30.In Australia the applicant initially lived at home with his uncle and grandmother in Sydney, New South Wales. However, his uncle demanded that he leave school to find work.[14] As a result, he left home in or about 2008 and lived for a time in transitional accommodation. Because of the difficulties he was experienced upon leaving home the applicant began abusing alcohol.[15]
[14] District Court of NSW, Sentence at p.3, G 125.
[15] ibid
31.The applicant completed his High School Certificate in 2008 and enrolled in a Bachelor of Education and Training at the Open University in 2009 but did not complete the course. The applicant has completed the following courses at the Kangan Institute (‘the Kangan courses’).[16]
(a)Certificate II in Warehousing Operations.
(b)Certificate III in Entrepreneurship and New Business.
(c)Certificate I in Access to Vocational Pathways.
(d)Certificate II in Cleaning.
(e)Certificate II in Community Services.
(f)Certificate III in Civil Construction.
(g)Certificate II in Kitchen operations.
[16] Various Kagan Institute Certificates. G 92-101.
32.In Australia, the applicant was employed as an independent sales agent for a homecare supplier in Sydney, NSW from 2010 to 2012 and a Telemarketer in 2012.[17] In or about 2014 the applicant moved to Melbourne where he worked installing smart powerboards for a home energy product supplier.[18]
[17] Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) at p.4, G 88.
[18] Ibid.
The applicant’s criminal history.
33.The applicant has been convicted of the following offences:[19]
[19] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 36; Statement of Facts, Issues and Contentions of the Respondent dated 13 March 2024.
(a) September 2010 - Robbery and Common Assault.[20]
[20] NSW District Court proceeding September 2010 at p.2, G 124.
In September 2010 the applicant pleaded guilty and was convicted of Robbery and common assault. The District Court of New South Wales sentenced the applicant to 12 months’ imprisonment with a 3-month non-parole period for the Robbery. He was also sentenced to a month’s imprisonment to be served concurrently with the 12-month terms for the assault.
In August 2009 the applicant snatched a bag containing a cask of wine and some cigarettes from the victim. A struggle ensued during which the applicant punched the victim causing him to fall to the ground. The applicant took the wine cask and ran off but was chased and caught by another man. The applicant then punched the man in the face several times, bit his arm and headbutted him.[21]
[21] NSW District Court proceeding September 2010 at p.2, G 67.
(b)March 2010 - Common Assault, Destroy or Damage Property.[22]
[22] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 38.
The applicant was convicted in March 2010 without penalty of these offences while on bail the Robbery and Common Assault referred to above.
(c)September 2010 – Various offences including Assault and Hinder a police officer.
In September 2010 the applicant was convicted in the District Court of NSW of:
· Assault Police Officer in Execution of his duty and sentenced to one month imprisonment.
· Resist or Hinder Police Officer in the Execution of his duty sentenced to one month imprisonment.
· Not pay train fare and hold Valid Ticket, fined $150.00
· Fail to leave Train, Railway premises when directed, fined $200.00.
(d)September 2010 – convicted of wilfully using offensive language on train or public area but not penalised.
(e)May 2013 - Various offences including Assault and Resist Officer, Failure to Appear in accordance with Bail undertaking.[23]
[23] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 37-38.
In May 2013 the applicant was convicted of the following offences at the Local Court at Mt Druitt NSW:
· Wilfully Obstruct Officer in execution of his Duty, fines $400.00.
· Two counts of Fail to Appear in accordance with Bail Undertaking, no penalty.
· Resist Officer in Execution of Duty, 18 months’ probation.
· Assault officer in Execution of Duty, 18 months’ probation
· Assault Occasioning Actual Bodily Harm, 10 months’ imprisonment (3 month non parole period)
· Common Assault, 1 mot imprisonment (concurrent).
· Affray, no penalty.
(f)January 2017- Theft and Failure to answer bail.[24]
[24] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 37.
The applicant was fined without conviction for these offences.
(g)August 2019 – Family Violence Intervention Order (FVIO) issued.[25]
[25] Preliminary Brief- Statement by Informant, G 48.
(h)May 2020 - Various offences including Threat to Kill, Intentionally Cause Injury, Contravene FVIO.[26]
[26] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 37.
In June 2019 the applicant had been drinking heavily. He approached his de facto partner for money and was told that she did not have any more money. The applicant came at his partner with a pair of scissors and stated, ‘I’ll kill you today.’ The applicant grabbed her around the neck and choked her.[27]
[27] Preliminary Brief – Statement made by Informant, G 65.
In May 2020 the applicant was convicted of:
· Five counts contravening FVIO. The applicant received a Community Corrections Order (CCO) for 15 months.[28]
[28] Ibid.
· Make a Threat to Kill intending Fear and Unlawful Assault Intentionally Cause Injury. Then applicant received and aggregate sentence of 127 imprisonment days to be served concurrently.[29]
[29] Ibid.
(i)January 2020 – FVIO issued.[30]
[30] Preliminary Brief – Statement made by Informant, G 39.
The FVIO was served on the applicant with full conditions including not to be within 200 metres of the victim’s address.
(j)January 2021 -FVIO issued.[31]
[31] Preliminary Brief – Statement made by Informant, G 40.
(k)May 2021 – Various offences including Threat to Kill, Assault, Contravene Family Violence Order, Breach bail.
In December 2019 the applicant grabbing his de facto partner around the throat and squeezing her neck to the point that she could not breath.
In May 2021 the applicant was convicted of:
· Contravening CCO of May 2020, fined $500.00.
· Breach of CCO resulting in the order being cancelled and a total of 127 days imprisonment being imposed.
· Contravene FVIO (5 counts), Contravening Condition of Bail and Unlawful Assault with a sentence of 3 months imprisonment, to be served concurrently.[32] The applicant was ordered to undergo an assessment and treatment for alcohol abuse or dependency as directed, a mental health assessment and treatment as directed, and an offending behaviour plan as directed.[33]
[32] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023: G 37; Certified Extracts of Various orders made 6 May 2021, G 50-63.
[33] Ibid.
(l) March 2023 – Various offences including Contravene CCO and FVIO, Threat to Kill, Indictable Offence while on Bail, Aggravated Burglary.
In August 2022 at 11pm the applicant knocked on his de facto’s door upon which he was told that he was not allowed to be at the address. The applicant then attempted to access the house through a rear sliding door, damaging the door as he entered the house. The applicant’s de facto called the police upon which the applicant said to her ‘When the police come, I will surrender but after, I will kill you.’[34]
In June 2018 the applicant attended the victim premises with the co accused because of a dispute over a purchase of a motor vehicle. The applicant entered the victim’s premises with the co accused holding a bottle of wine. The co accused threatened and struck the victim with a piece of wood and taking the keys of the car before leaving the premises.[35]
In March 2023 the applicant was convicted of:[36]
· Aggravated Burglary, for which he received 4 months’ imprisonment.
· 2 x Contravene FVIO, for which he received 2 months imprisonment to be served concurrently.
· 3 x Contravene FVIO for which he received 4 months imprisonment with one month to be served concurrently.
· Commit Indictable Offence while on Bail, Failure to Answer Bail. The applicant received 14 days imprisonment concurrently served.
· Make a Threat to Kill Intending Fear for which he received one months imprisonment.
· The offence of Contravene CCO was proven.
[34] Preliminary Brief – Statement made by Informant, G 45.
[35] Statement of Material Fact G 44.
[36] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 37.
APPLICANT’S CITIZENSHIP.
34.South Sudan gained independence from Sudan on 9 July 2011. The applicant evidence to the Tribunal was that he is an ethnic Madi[37] born in Maridi South Sudan and that both his parents were born in Nimule, South Sudan. The Madi community is indigenous to Pageri County, South Sudan.[38]
[37] Application for Offshore Humanitarian Visa, dated 13 May 2004, R 10.
[38] Africa, 1010 Last tribes- Madi people; <
35.Pursuant to the Laws of South Sudan, s.8 of The Nationality Act 2011(‘the Nationality Act’)[39] provides that a person shall be considered a South Sudanese national by birth if any of their parents, grandparents or great grandparents were born in South Sudan or if a person belongs to any of the indigenous ethnic communities of South Sudan.
[39] Section.8 of The Nationality Act 2011 (Sudan)
36.Therefore, based on the applicant evidence, the Tribunal finds that pursuant to s.8 of the Nationality Act of South Sudan, the applicant is a citizen of South Sudan.
THE CHARACTER TEST
37.Section 501(6) of the Act provides that a person does not pass the character test if they have a substantial criminal record as defined in section 501(7) of the Act. Relevantly, section 501(7)(c) of the Act provided that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[40]
[40] Section 501(7) of the Migration Act 1958.
38.The Tribunal was provided a copy of the applicant’s criminal history[41] as detailed above. The documentary evidence provided indicates that the applicant was sentenced to 2 or more terms of imprisonment, where the total of those terms was 12 months or more. The applicant conceded that his offences since 2019, including the Threat to Kill, are serious in nature.
[41] Australian Criminal Intelligence Commission Check Results Report dated 31 March 2023, G 37; Statement of Facts, Issues and Contentions of the Respondent dated 13 March 2024.
39.Therefore, based on the documentary evidence provided and the applicant’s own admission as the serious nature of the offences, the Tribunal finds that the applicant has a substantial criminal record as defined by s.501(7)(c) of the Act. As such, the Tribunal finds that the applicant does not pass the character test and accordingly finds that the requirements of s.501CA(4)(b)(i) are not met.
OTHER REASON TO REVOKE
40.Section s.501CA(4)(b)(ii) of the Act requires the Tribunal to consider those factors in favour or against the cancellation decision in assessing if there is another reason why the cancellation decision should be revoked having regard to the principles and considerations detailed in Direction 99.
41.A failure to comply with a ministerial direction has been held to amount to jurisdictional error.[42] The Direction does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure.[43] It imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4). Nevertheless, the Tribunal must comply with its statutory obligations, in particular s.430 of the Act, to give written reasons that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.' As such any only a material failure by the Tribunal to comply with Direction 99 in making its decision would amount to jurisdictional error.[44]
EVIDENCE
[42] PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J; Williams v Minister for Immigration and Border Protection [2014] FCA 674.
[43] PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42].
[44] PQSM v Minister for Home Affairs [2019] FCA 150, at [22] per Colvin J.
Documentary evidence
42.The following materials were taken into evidence by consent at the hearing:
(a)Applicants Tender Bundle numbering 419 pages. (A)[45]
(b)G-Documents numbering 164 pages. (G)[46]
(c)Respondents Bundle of Documents numbering 125 pages. (R)[47]
[45] Applicants Tender Bundle.
[46] Applicant’s G Documents.
[47] Respondents Bundle of Documents.
Applicant’s evidence
43.The applicant arrived in Australia when he was around 15 years old. He has not returned to South Sudan or had any contact with the country since his arrival. The applicant has limited ties to his country with the majority of his surviving family members continuing to reside in Australia.[48]
[48] Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) (Family Details), G 86.
44.The applicant is the youngest in his family. His grandmother and two siblings continue to live in Australia. The applicant claims that he contacts his siblings and grandmother on a sporadic basis. The last time he spoke to his grandmother was about seven months ago.
45.In addition, the applicant claims to have a total of four uncles and an aunty who are living in Australia.[49] There was no evidence that he has any contact with any of his uncles or his aunty in Australia.
[49] Ibid.
46.The applicant’s evidence was that his father and grandfather were killed by the SPLA. He claims that he has not had any contact with his mother since the time she was taken and does not know if she is alive or dead. The NSW District Court[50] noted that the applicant’s mother had contacted him by telephone and that they now speak by telephone on a regular basis. However, the applicant’s evidence was that this was incorrect. He claims that the court may have been referring to his Aunty (rather than his mother) who continues to live in a refugee camp in Uganda and with whom keeps in contact by telephone.
[50] The NSW District Court[50] proceeding per Judge Sides
47.After the death of his father and his mother’s disappearance, the applicant was cared for by his grandmother. Due to the internal fighting, it became too dangerous, and his grandmother took him and his siblings to live in a refugee camp in Uganda. The applicant’s evidence was that life in the camp was hard. He suffered considerable trauma in both South Sudan and the refugee camp including violence and starvation. On 13 May 2004 the applicant’s uncle made an application to travel to Australia on a humanitarian visa, together with the applicant’s grandmother and his brother and sister.[51] The applicant arrived in Sydney, Australia on 13 September 2006.
[51] Application for an Offshore Humanitarian Visa (Form 842) dated 13 May 2004, G 1.
48.In Australia, he initially lived with his uncle and grandmother in Sydney, New South Wales. However, in or about 2008 his uncle demanded that he leave school to find work.[52] As a result the applicant left home and moved into transitional accommodation.
[52] District Court of NSW, Sentence at p.3, G 125.
49.The applicant completed his High School Certificate in 2008 and enrolled in a Bachelor of Education and Training at the Open University in 2009 but did not complete the course. The applicant’s evidence was that he was not able to ‘keep his mind’ on his studies because he was focused on working to support himself. In addition, he was drinking heavily which led to his offending. The applicant has completed the Kangan courses referred to above.[53]
[53] Various Kagan Institute Certificates, G 92-101.
50.In Australia, the applicant’s work history has been interrupted because of his criminal convictions. He initially worked an independent sales agent for homecare supplier in Sydney, NSW from 2010 to 2012 and a Telemarketer in 2012.[54] In or about 2014 the applicant moved to Melbourne to be with his girlfriend. In Melbourne he worked installing smart power boards for a home energy product supplier.[55] In or about 2017 the applicant received a head injury from being assaulted and has not worked since.[56] As a result, he has been receiving Centrelink Job Seeker payments.[57]
[54] Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) at p.4; G 88.
[55] Ibid/
[56] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine magistrates Court dated 29 April 2021. R 26.
[57] Ibid, p 26.
51.The applicant’s evidence was that he started abusing alcohol in or about 2008[58] because of the difficulties he experienced upon leaving home.[59] His evidence was that he would drink to get ‘blind drunk.’[60] As a result, much of his offending was related to his use of alcohol.[61] He claims that he has not used any other substances and has not had a drink since November 2022.[62]
[58] Ibid p 27.
[59] Ibid p 27.
[60] Ibid p 26.
[61] International Health and Medical Services (IHMS) report dated 30 November 2023; R 64.
[62] Ibid.
52.In March 2010 the applicant was convicted in the Local Court in New South Wales of Destroy and damage property and two counts of Common Assault.[63]
[63] The department’s decision; G 15.
53.In September 2010 the applicant was convicted in the District Court of New South Wales of Robbery for which he was sentenced for a term of 12-month imprisonment, and Common assault, for which he was sentenced to one month imprisonment.[64] The offences relate to the applicant snatching a bag containing a cask of wine and some cigarettes from the victim. In addition, the applicant punched the victim and another person in subsequent struggles to restrain and detain the applicant. At the time of the offences the applicant was 18 years of age.
[64] The department’s decision; G 16.
54.The applicant conceded to the Tribunal that he had committed the offences. He claimed that when he saw the video footage of the offences, he was shocked, but claimed they occurred when he was drunk. The applicant claimed he had no recollection of the events.[65] In sentencing the applicant, the court noted that he was receiving counselling to address his issues with alcohol.[66] In addition, the court referred to the applicant’s future plan to seek help to address his alcohol addiction.[67] However, despite his evidence to the Court, the applicant’s evidence to the Tribunal was that he did not seek any further help in relation his alcohol addiction beyond the 6 week course offered through the Community Correctional Services (CCS). His evidence was that despite wanting to continue his counseling he failed to do so because he was not able to afford the continuing sessions. There was no evidence of the applicant attempting to access counselling services or support from community from any other organization to address his addiction to alcohol, beyond the 6-week course provided by CCS.
[65] NSW District Court proceeding September 2010 at p.2, G 124-127.
[66] Ibid.
[67] Ibid.
55.Later in September 2010 the applicant was convicted in the Local Court in New South Wales of:
·Assault of Police officer in execution of duty,
·Resist or hinder police officer in execution of his duty.
·Not pay a train fare and hold a valid ticket.
·Fail to leave a train, railway premises when directed.
·Wilfully use offensive language on a train or public area.
56.In relation to the charges relating to the assault and resist or hinder a police officer the applicant was sentenced to one month’s imprisonment. As to his failure to pay or hold a valid ticket he was fined $150.00, and his failure to leave a train or railway premises when directed he was fined $200.00 and wilful use of offensive language fined $250.00.[68]
[68] The department’s decision, G 16.
57.In July 2012 the Department of Home Affairs (‘the department’) forwarded a Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958 (‘the departments notice’) to the applicant by registered mail.[69] The departments notice contained a warning to the applicant that the cancellation of his visa may be reconsidered if he committed further offences or otherwise breached the charter test in the future.[70] The applicant evidence to the Tribunal was that he does not recall receiving the notice.
[69] Notice of Decision not to cancel visa under section 501 of the Migration Act 1958 dated 30 July 2012, G 110.
[70] ibid; Statement of Reasons for decision under s.501 CA of the Migration Act dated 11 January 2024 (‘the department’s decision) at p.17, G 25.
58.In May 2013 the applicant was convicted in the Local court of New South Wales of Fail to Appear in accordance with Bail Undertaking and Affray. A conviction was recorded but no penalty was imposed. In addition, the applicant was convicted of Common Assault for which he was sentenced to one month imprisonment and Assault occasioning and in company of others for which he was sentenced to 18-month supervision order.[71] The applicant’s evidence was that he regretted the assault but stated he was intoxicated at the time and had only been present at the time of the assault to assist friend.
[71] The department’s decision, G 16.
59.In or about 2014 the applicant moved to Melbourne. The applicant evidence was that he moved to Melbourne to leave his problems behind in New South Wales and to be closer to his then girlfriend who lived in Melbourne. The applicant’s evidence was that by 2018 they were living together as de facto partners. His evidence was that his partner also had a trauma in her life by which she had lost a baby by miscarriage. As a result, they drank alcohol heavily together to the point that they would abuse alcohol every day.
60.In May 2020 the applicant was convicted of Make a Threat to Kill- intending Fear, Unlawful assault intentionally cause injury and Contravening FVIO, for which the applicant was sentenced to a term of imprisonment of 127 days and a 15-month CCO.[72] These charges related to offences the applicant committed in June 2019 by which the applicant attached his de facto partner with a pair of scissors and threatening to kill her. In addition, the applicant grabbed his partner around the neck and choked her.[73] The Informants Statement[74] notes that the applicant and his partner had been in a de facto relationship for 5 years and that he was heavily intoxicated at the time of his arrest. In August 2019 the applicant was served with a FVIO which listed his partner as a protected person.[75] The applicant evidence was that he became remorseful for his action against his partner when he was served with the FVIO.
[72] Ibid.
[73] Preliminary Brief – Statement made by Informant, G 65.
[74] Preliminary Brief – Statement made by Informant, G 65.
[75] The department’s decision, G 17.
61.The Department of Justice and Community Safety provided a report dated 29 March 2021[76] in relation to the applicant’s compliance with the CCO. The report notes that the applicant attended the departments service in May 2020 at which he was inducted full and at which the rules and regulations of the order were explained to him. The report notes that the applicant acknowledged his understanding of the order. Nevertheless, the report notes that the applicant’s attendance and engagement with the service was sporadic throughout the duration of the order. He failed to attend supervision on 7 September 2020, 24 November 2020 23 December 2020 31 December 2020 12 January 2021 and 9 February 2021.[77] In addition, he failed to attend alcohol assessment and treatment as directed on 17 July 2020 and 27 January 2021.[78] At times the applicant refused to engage with the service and when he did engage, he demonstrated limited insight into the effects of his unlawful behaviour by victim blaming and deflecting blame on external factors such as mental health. Due to Covid-19, supervision of the order was conducted remotely during which the applicant would frequently lose or break his phone.[79] Overall the applicant’s attendance with the service was deemed unsatisfactory. As a result, it was recommended that the order be cancelled, and he be resentenced to the original charges.
[76] Department of Justice and Community Safety Report dated 29 March 2021, R 19
[77] Department of Justice and Community Safety Report dated 29 March 2021 at p.3, R 21.
[78] Ibid.
[79] Ibid.
62.In May 2021 the applicant was convicted in the Magistrates Court of Victoria of 5 charges of Contravening FVIO, contravene a conduct condition of bail, and Unlawful Assault for which he was sentenced to a 3-month term of imprisonment and 15-month CCO. In addition, he was convicted of Contravene Community corrections order issued May 2020 and fined $500.00. These charges arose out of offences committed by the applicant in December 2019 at which time the applicant and his de facto partner were celebrating New Year’s Eve at home with friends and drinking heavily. During the evening the applicant and his de facto partner argued resulting in him grabbing her around the throat and limiting her ability to breath. He then bit her face causing ‘a large chunk of flesh’ to be torn from her chin. As a result, the applicant was assaulted and taken to hospital.[80]
[80] The department’s decision, G 17.
63.In March 2023 the applicant was convicted in the Magistrates Court in Victoria of Contravene CCO, Commit indictable offence whilst on bail, Fail to answer bail, for which he was sentenced to 14 days imprisonment on each charge and Threat to Kill – intending fear, for which he was sentenced to one month imprisonment. He was also convicted of 3 counts of Contravene FVIO and Contravene FVIO intending to fear/harm for which he received four months imprisonment, Contravene FVIO (2 counts) and sentenced to two months imprisonment and Aggravated Burglary for which he received a sentence of four months imprisonment.[81] These offences arose out of several offences committed by the applicant over a period that included:
(a)In November 2020 the applicant attended this de facto partner address in breach of breached a FVIO dated 17 January 2020.
(b)In July 2021 the applicant went to his de facto partners premises in beach a FVIO dated January 2021. The applicant went to pick up some documents but stayed the night, drinking, and smoking with other residents. In July 2021, the applicant contacted the police claiming he had been assaulted by his de facto partner with a clay pot. When the police arrived, the applicant was intoxicated with a cut on his forehead and blood on his pants.
(c)In October 2021 the applicant went to his de facto partners address and began consuming alcohol. At around 10.00pm he contacted the police and informed them he was there, upon which he was arrested.
(d)In August 2022 at about 11.00pm, the applicant went to his de facto partner address in an intoxicated state. She refused to let him in and advised him that he was not allowed at the address. The applicant then went down the side of the house and forced his way into the premises through a sliding door. His de facto partner then tried to leave the house to call the police from a neighbours’ home. The applicant gave his de facto parent his phone and instructed her to call the police from his phone. He said words to her to word to the effect that ‘When the police come, I will surrender but after, I will kill you.’
(e)In November 2022, the police attended his de facto partner address on an unrelated matter and found the applicant at the address in breach of FVIO.
(f)In June 2018 the applicant attended the victim premises with the co accused because of a dispute over a purchase of a motor vehicle. The applicant entered the victim’s premises with the co-accused holding a bottle of wine. The co-accused threatened and struck the victim with a piece of wood and taking the keys of the car before leaving the premises.[82]
[81] The department’s decision, G 17.
[82] Statement of Material Fact G 44.
64.A Forensicare report dated 29 April 2021[83] states that the applicant used alcohol heavily with him stating that once he starts drinking, he continues until the alcohol is finished or he is ‘blind drunk.’ The report states that the applicant claimed he was intoxicated with alcohol when reoffending and not engaged in any mental health or drug and alcohol support. It states the applicant wants to stop alcohol use when released. He was recommended to commence Naltrexone to help him stop his alcohol consumption and has been assessed with early stages of liver damage. In addition, he has received anti-psychotic medication to treat symptoms of him hearing voices making it difficult for him to sleep. The report notes that the applicant has a history of relapse upon his release for custody and further offending which remains a risk.[84]
[83] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, R 26.
[84] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, R 28.
65.A Community Corrections Order Assessment of Outcomes Report dated 29 April 2021,[85] states that the applicant had accepted responsibility for the offending and confirmed his understanding of the requirements of the Community Corrections Order. It notes that the applicant had no interest in continuing his friendship with his de facto partner and while in custody he had realised that his relationship with her had caused him trouble. The applicant acknowledged his alcohol addition and stated that he would like another opportunity to engage in CCO order to obtain support and guidance in relation to his alcohol addiction. Nevertheless, the report assessed the applicant as having a high risk of reoffending. Accordingly, it recommended that the applicant be supervised and receive a Treatment and Rehabilitation Program, to reduce his risk of reoffending. The report recommended that given his history of non-compliance a Judicial monitoring condition be applied.
[85] Community Corrections Order Assessment of Outcomes Report dated 29 April 2021, R 23.
66.In May 2021 the applicant’s evidence to the Magistrate Court[86] was that he was willing and prepared to undergo assessment and treatment, including testing or alcohol abuse and dependencies as directed, mental health assessment as directed and complete any programs that he was asked to do to reduce his re offending.
[86] Victoria Police v YNPX Melbourne Magistrates Court May 2021, R 42.
67.A report by the Department of Justice and Community Safety dated 26 June 2022 in relation to his compliance to a Community Corrections order[87] noted that the applicant had been released from the Fulham Correctional Centre in May 2021 to recommence his 15-month varied order. After his release the applicant attended the Sunshine Community Correctional Centre where he was inducted in full. The applicant verbally indicated that he understood his obligations under the Community Correction Order. The report states that due to Covid-19 pandemic supervision appointments were conducted by telephone or by video.[88]
[87] Department of Justice and Community Safety, Contravention of Community Correction order by Conditions and Further offences dated 26 June 2022, R 31.
[88] Ibid.
68.In May 2021 the applicant stated to the Melbourne Magistrates Court[89] that he was willing was willing to undergo assessment and treatment, including testing for alcohol abuse and dependencies as directed, mental health assessment and completed any programs to reduce his offending as requested. In addition, the applicant the Community Correction Order Assessment Outcome report dated 29 April 2021 (the CCO report)[90] states that the applicant acknowledged his alcohol addiction and stated that he would like another opportunity to engage in a CCO order to obtain support and guidance in relation to his alcohol addiction.
[89] Transcript national Character Consideration Centre- Dept of Home Affairs, Victoria Police v NYPX May 2021, R42.
[90] Community Correction Order Assessment Outcome report dated 29 April 2021, R 24.
69.Despite the applicant assurance to the Court and the Department that he was willing to partake in the CCO program, the Sunshine Community Correctional Services Officers[91] reported that the applicant’s attendance and engagement was sporadic throughout the duration of the order. The CCO report notes that the applicant’s compliance varied and that at times he refused to speak with the service. It states that the applicant demonstrated limited insight into the effects of his unlawful behaviour by victim by blaming and deflecting on external factors such as his mental health.[92] In June 2021 the applicant failed to appear at a scheduled assessment for drug rehabilitation treatment but did attend a rescheduled assessment and was found suitable for an episode of care and recovery counselling.[93] Nevertheless, the applicant’s attendance at counselling sessions was as sporadic and his engagement poor.[94] The CCO report notes with concern that the applicant had further offending which mirrored his index offending and stated that this behaviour raises serious concern in relation to his beliefs and behaviours as well as a clear escalation in risk.[95] On 7 December 2021, the applicant was removed from the program. As a result, it was recommended that the applicant’s order be cancelled, and he be re-sentenced to the original charges.[96]
[91] Department of Justice and Community Safety, Contravention of Community Correction Order by Conditions and Further Offences dated 24 June 2022, R 31.
[92] Ibid.
[93] Ibid.
[94] Department of Justice and Community Safety, Contravention of Community Correction order by Conditions and Further offences dated 24 June 2022; R 32
[95] ibid
[96] Department of Justice and Community Safety, Contravention of Community Correction order by Conditions and Further offences dated 26 June 2022; R 33
70.The applicant has been in the MITA detention since April 2023. In detention the applicant has received therapeutic counselling and several sessions with an Alcohol and Drug Counsellor from IHMS.[97] The applicant has not received any psychiatric counselling for trauma he claims to have suffered in South Sudan and as a refugee.[98]
[97] Foundation House report by Christine Nathan dated 20 October 2023. A 4; International Health and Medical Services (IHMS) report dated 30 November 2023, G 56, 64.
[98] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, G 26.
71.The applicant provided two reports by Ms Christine Nathan of Foundation House dated 20 October 2023[99] and 4 March 2024.[100] In the reports Ms Nathan refers to the fact that the applicant presented to her in a distressed state suffering poor sleep and frequent nightmares.[101] The report dated 20 October 2023 states that the applicant meets the diagnostic criteria for post-traumatic stress disorder and depression.[102] The applicant was prescribed psychotropic medication for depressive symptoms and in October 2023 was prescribed Naltrexone to stave off alcohol craving.[103] In addition, the applicant has been supported by the provision of IHMS drug and alcohol counselling and has attended Smart Recovery sessions when available. The report states that trauma focussed sessions have contributed to the applicant’s stabilisation and reduced feeling of isolation and shame.[104] The evidence of Ms Nathan to the Tribunal was that since June 2023 the applicant has attended 13 psychological counselling sessions by telephone and one session in person. These sessions provide the applicant with psychological support through which psychological intervention can be provided where appropriate.
Applicant’s future.
[99] Foundation House report by Christine Nathan dated 20 October 2023, A 4.
[100] Foundation House report by Christine Nathan dated 4 March 2024, A 10.
[101] Foundation House report by Christine Nathan dated 20 October 2023, A 4.
[102] Foundation House report by Christine Nathan dated 20 October 2023, A 4.
[103] Foundation House report by Christine Nathan dated 20 October 2023, A 7.
[104] Foundation House report by Christine Nathan dated 20 October 2023, A 7.
72.The applicant evidence is that if his visa is returned to him, he is committed to dealing with his alcohol addiction. His evidence was that a friend, Mr BA has offered him accommodation at his home upon his release from detention.
73.Mr BA evidence to the Tribunal evidence was that he has offered the applicant accommodation at his home, rent free, upon his release from detention. The applicant would share the house with Mr BA and two other people but would be provided his own room.[105] In addition, Mr BA stated that he will assist the applicant to get a job with his current employer. His evidence was the applicant had expressed to him his desire to and stay away from alcohol and trouble, to get a job and set himself up properly.[106]
[105] Statement by Mr BA dated 7 March 2023, A 89.
[106] Ibid.
74.However, the applicant has not provided any evidence of support or programs he intends to access to deal with his alcohol addiction upon his release from detention. Mr BA did not provide evidence of support or programs the applicant may access upon his release for detention. His evidence was that it was acceptable for the applicant to continue to drink, albeit in a ‘responsible’ or a ‘good way.’ He claimed that if the applicant continued to abuse alcohol, he will take him to ‘detox’ or take him back to Africa for a holiday to help him realise how much better life is in Australia.
75.There was no evidence that his family would provide the applicant support to deal with his alcohol addiction. The applicant stated that he had not informed his family of these proceedings because he was too embarrassed and to avoid any further stress on his grandmother. While this may be the case the tribunal notes that the applicant evidence was that he has only limited contact with his family, and they are unlikely to provide him the support and care he requires to deal with his alcohol addiction.
Fears of returning to South Sudan.
76.The applicant claims that he is not able to return to South Sudan. He claims that his grandfather and father were killed in South Sudan by those who are ‘now in government.’[107] As a result the applicant claims that if he is returned to South Sudan, he will be harmed by those who killed his father and grandfather.
[107] Request for Revocation of a Mandatory Visa Cancellation under s.501(3A) (Family Details) p.14, G 90
77.He was very young when he left South Sudan and has no family remaining in the country. Most of the applicant’s family are living in Australia, including his brother and sister. As a result, if he is forced to return to South Sudan, he will be separated from his family and friends in Australia. The applicant’s evidence is that he has not had any contact with the country since his arrival in Australia and claims to have little or no knowledge of the current regime and how it operates.[108]
[108] Ibid.
ASSESSMENT OF EVIDENCE
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
78.Clause 8.1 of the Direction states:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in 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.
(2)Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
79.Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
80.The Applicant has a criminal history that includes robbery, damage property, assault, hinder a police officer and various breaches of FVIO.
81.In September 2010 the applicant convicted in the District Court of New South Wales of robbery and common assault. In addition, In September 2010 he was convicted in the District Court of NSW of the following charges:
·Assault Police Officer in Execution of his duty.
·Resist or Hinder Police Officer in the Execution of his duty.
·Not pay train fare and hold Valid Ticket.
·Fail to leave Train, Railway premises when directed.
82.In May 2013 the applicant was convicted in the Local court of New South Wales of:
·Fail to Appear in accordance with Bail Undertaking.
·Affray.
·Common Assault.
·Assault occasioning and in company of others.
83.While the Tribunal accepts that these offences were committed by the applicant when he was relatively young, they demonstrate a history of repeated violence together with a lack of respect and disregard for the police and the courts.
84.In May 2020 the applicant was convicted in the Victorian Magistrates Court of:
·Make a Threat to Kill- intending Fear.
·Unlawful assault intentionally cause injury.
·Contravening FVIO.
85.In May 2021 the applicant was convicted in the Magistrates Court of Victoria of:
·Contravening FVIO (5 counts).
·contravene a conduct condition of bail.
·Unlawful Assault.
·Contravene Community corrections order.
86.In March 2023 the applicant was convicted in the Magistrates Court in Victoria of:
·Contravene CCO.
·Commit indictable offence whilst on bail.
·Fail to answer bail.
·Threat to Kill – intending fear.
·Contravene FVIO (3 counts).
·Contravene FVIO intending to fear/harm.
·Contravene FVIO (2 counts).
·Aggravated Burglary.
87.The Tribunal has had regard to the nature and frequency of the applicant’s offending including the number of times he has breached FVIOs and judicial orders. The applicant has display flagrant disregard for the law and the judicial process by his continued breach the FVIO and failure to comply CCO’s.
88.Accordingly, the Tribunal accepts and finds that the totality of the Applicant’s offending and other misconduct is serious. Accordingly, it places significant weight on the applicant offending in favour of not revoking the decision to cancel the applicant’s visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
89.In considering the need to protect the Australian community from harm, the Tribunal has had 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. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[109]
[109] Direction 99 at 8.1.2(1).
90.Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
91.Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, 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 noncitizen re-offending;
(ii) and 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).
92.In 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.[110] Her Honour states that, to determine an unacceptable risk, one must evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[110] Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
93.The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[111] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour) considered the notion of risk and its nexus to future possibility. Her Honour noted:[112]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[111] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[112] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
94.The applicant contends that there is a low risk of re-offending because he is no longer using alcohol. The applicant states that he is currently receiving the necessary counselling session and medication for him to be able to cope with his alcohol addiction. His evidence was that he has not used alcohol since November 2022. He relies on the fact that there is no report of him having used alcohol or of him being intoxicated while in detention as evidence of the fact that he has not used alcohol as claimed. The Tribunal notes that the incident report dated 13 February 2024 refers to applicant possessing two containers of fermented fruit (suspected home brew) while in detention.[113] The applicant denied the containers belonged to him and claimed no knowledge of how they came about. In any event, based on the applicant evidence, and the evidence of Ms Nathan the Tribunal accepts that he has not used alcohol while in detention as claimed.
[113] Department of Home Affairs Incident report 13 February 2024, R46.
95.However, the Tribunal notes that the applicant has had history of relapse with alcohol use on his release from custody and as a result further offending.[114] While the applicant has acknowledged his offending and has expressed remorse for his actions, he has demonstrated limited insight to the effects of his unlawful behaviour by victim blaming and deflecting blame on external factors such as his mental health.[115] The applicant placed significant weight on the fact that his partner had also abused alcohol and had assaulted him. He appears to blame his partner for his offending having stated in an interview with the CCS that he had been denied his ‘god given right to be a free man’ because of a ‘bitch.’[116]
[114] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, R 28.
[115] Department of Justice and Community Safety, Contravention of Community Correction order by Conditions and Further offences dated 24 June 2022; R32.
[116] Ibid.
96.The applicant was assessed as being at a high risk of re-offending due to his alcohol addiction.[117] The fact that the applicant would drink to the point where he was not able to recall his actions together with the level of violence demonstrated towards his partner while he was intoxicated gives the Tribunal considerable concerns about the continuing risk to the Australia community. His actions have shown a tendency toward more serious crimes which has been reflected in the custodial sentences he has received.
[117] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, R 28.
97.Ms Nathan has indicated that she will continue to offer the applicant therapeutic counselling sessions and Foundation House will be able to provide ongoing psychological support if he is released from detention. The applicant’s evidence was that his strategy for dealing with his alcohol abuse if he is released into the community was to firstly to stay away from alcohol, secondly continue counselling services and if he failed obtain mediation to assist him. The applicant referred to services in his area offered through Anglicare and Alcoholics Anonymous. The Tribunal notes that the applicant has accessed counselling services and medication in custody but his attendance and engagement with the CCS services has been very poor.[118] In the past, despite being aware of his alcohol addiction and the risk of him re offending, upon being released into the community the applicant has failed to seek any ongoing counselling or support for his addiction due to the cost of the services.
[118] Department of Justice and Community Safety, Contravention of Community Correction order by Conditions and Further offences dated 24 June 2022, R 32.
98.In circumstances where the applicant has constantly re-offended due to his alcohol addiction, the applicant appears to have little in the way of family or community support in dealing with his addiction if released into the community. None of the applicant’s family gave evidence in support of the applicant before the Tribunal. The applicant evidence was that he did not inform them of the proceeding because he did not want to be a burden and was too ashamed to tell them. While this may be the case, the Tribunal notes that they all live interstate and as such are unlikely to be able to provide the necessary support needed to deal with his addiction. In addition, other than Mr BA, the applicant was not able to provide any further evidence of support he may receive from friends or relatives. The applicant provided the names of two individuals who he claimed were friends but did not say if they were able to help him upon his release into the community.
99.The Government is committed to protecting the Australian community from harm because of criminal activity by non-citizens. In this case, the applicant has repeatedly chosen a course of conduct that has led to his abuse of alcohol and repeated offending. The applicant by his actions has displayed a disregard for the law and for the safety of his victims and the community more generally.
100.Despite the applicant’s evidence that he has been reflecting on his past and is profoundly regretful for his being a heavy drinker in the community and mixing with the wrong people[119] he only demonstrated limited insight to the effects of his unlawful behaviour. The IHMS reports indicates that the applicant claimed he was not guilty of the crimes for which he was convicted and plead guilty.[120] In addition, in June 2023 IHMS psychiatrist Dr Alexander Van Hattem reported[121] that despite being jailed multiple time the applicant denied he ever did anything wrong. The applicant claimed that he was in in relationship but stated that false allegations of domestic violence were made. He claims that he was the victim and was beaten up by his partner while he was drunk. He claimed the police did not accept his side of the story and he pleaded guilty on legal advice.[122]
[119] Foundation House report by Christine Nathan dated 4 March 2024, A10.
[120] IHMS Report dated 6 December 2023, R 61.
[121] IHMS Report dated 8 June 2023, A 38.
[122] Ibid.
101.Therefore, based on the seriousness of the applicant’s offending and the escalating nature of his offending, the Tribunal does not accept that there is a low risk the applicant will re-offend if he is released into the community as claimed. Based on the applicant failure to seek assistance for his addiction to alcohol previously, his lack of engagement with counselling services offered through the CCS, his lack of family and community support and his limited insight into his unlawful behaviour, the Tribunal finds that the applicant will not refrain from using alcohol and that he will not access the counselling services to address his addiction upon his release from detention.
102.Given the nature and seriousness of the applicant’s conduct, in particular his abuse of alcohol, the Tribunal finds that it is highly likely the applicant will re-offend if he is released for detention. As such the Tribunal finds that there is a real risk the Australian community will be harmed if the applicants visa is restored. The protection of the Australian community is a factor that weighs significantly against revocation of the applicant’s visa in this case.
Family violence committed by the non-citizen.
103.Clause 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
c)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
104.The applicant was issued the FVIO’s pursuant to the Family Violence Protection Act 2008 (Vic) (‘FVPA’). ‘Family violence’ is defined in Direction 99 to include violence, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. For the purposes of that definition ‘member of a person’s family’ includes a person who has, or has had, an intimate personal relationship with the applicant.
105.The applicant’s evidence was that in 2018 he was living in a de-facto relationship with his partner. The Tribunal notes that the Informants Statement[123] relating to the May 2020 charges notes the applicant and his partner had been in a de-facto relationship for 5 years. As a result, the Tribunal accepts and finds that the applicant’s partner was a family member for the purposes of the Direction 99.
[123] Preliminary Brief – Statement made by Informant. G 65.
106.In this case the applicant has been convicted of multiple offences that include Making a Threat to kill, unlawful assault and multiple breaches of FVIO. For the reasons expressed above, while the applicant has accepted responsibility for the family violence offences, he has demonstrated only limited insight to the effects of his unlawful behaviour and the impact of his behaviour on his partner. The IHMS reports indicate that the applicant believed that he was not guilty of the offenses. [124] Despite having plead guilty, the applicant denied any wrongdoing claiming that the allegations were made up.[125]
[124] IHMS Report dated 6 December 2023, R 61.
[125] IHMS Report dated 8 June 2023, A 38.
107.Given the nature and seriousness of the applicant’s conduct, in particular the applicant’s abuse of alcohol and the frequency and number of occasions he breached the FVIO, the Tribunal places significant weight on this consideration against revocation of the applicant’s visa.
The strength, nature, and duration of ties to Australia
108.Clause 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
109.Prior to his arrival in Australia, the Applicant experienced extreme trauma in South Sudan and in the refugee camp in Uganda including the death of his father and grandfather. The applicant was separated from his mother and was cared for by his grandmother.
110.The applicant has a brother and sister who are living in Australia. His sister is married and living in Queensland while his brother lives in Western Australia. The applicant grandmother and uncle live in New South Wales. In addition, the applicant claims that he has a further three uncles and an aunt who live in Australia. None of his family gave evidence in support of the Applicant. The applicant’s evidence was that he was not close with his family members and that he contacted them on a sporadic basis.
111.The applicant went on to say that he had fallen in with the wrong crowd and as a result he began drinking heavily resulting in his offending. Nevertheless, he claimed that he had friends in Australia who would be devastated if his visa was cancelled, and he was forced to return to South Sudan. Despite this claim the applicant had difficulty directly referring to people who would support him in the community. The applicant gave the Tribunal the names of two individuals he claimed were friends but did not detail how they would support him if released from detention. Mr BA was the only person to give evidence in support of the applicant.
112.Based on the applicant’s evidence, the Tribunal finds that the strength, nature and duration of the applicant’s ties to the Australian community are limited and not of a positive nature. As such, the Tribunal concludes that the applicant’s ties to Australia carries neutral weight.
Best interests of minor children in Australia
113.Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
114.The evidence does not disclose any minor children in Australia who will be affected by the Tribunals decision whether or not to revoke the cancellation of the applicant’s visa. As such this primary consideration carries neutral weight.
Expectations of the Australian community
115.Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) 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 enter or remain in Australia.
116.Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
117.The Australian community expects non-citizens to obey Australian laws while in Australia. As provided by clause 8.5(1) 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.
118.The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and for the reason set out above, the Tribunal considers there to be an unacceptable risk of further re-offending. The applicant is an intelligent person, he has lived in Australia since 2009 and has been educated in Australia. The applicant’s offending has been directly related to his alcohol abuse for which he has been aware since 2010. In circumstances where the applicant had reoffended, in particular he has repeatedly breached FVIO in defiance of the court and in circumstances where he has failed to take steps to deal with his alcohol addiction in any meaningful and permanent manner, the Australia community would does not have a higher level of tolerance for his criminal past. The expectations of the Australian community is a factor that weighs greatly against revoking the cancellation of the applicants visa.
OTHER CONSIDERATIONS
119.In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal must consider the “other considerations” listed in Direction 99. These considerations are not exhaustive.[126]
[126] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal consequences of the decision
120.Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) 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 noncitizen.
(2) 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
121.The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan. The Tribunal notes and accepts the risks of harm that the applicant may face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
122.The applicant has not applied for a protection visa but has indicated that he will do so if he is not successful in this application. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, 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. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non revocation decision will not necessarily result in removal of the non-citizen 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 non-citizen, 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 makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
123.Pursuant to Plaintiff M1/2021[127] the Tribunal is required to read, identify, understand and evaluate the applicant’s representations, including any claims for non-refoulement under domestic law. The Tribunal intends to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. However, that does not mean that the Tribunal ignores the applicant’s representations. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[128] but “one available outcome” is the deferral of the substantive assessment of such a claim.[129]This is consistent with the terms of paragraph 9.1.2 of Direction 99.
[127] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
[128] Ibid.
[129] KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 at [105].
124.In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as the Tribunal has decided to do in this matter.
Applicant’s representations as to risk of harm
125.The applicant made minimal representations concerning risk of harm in South Sudan.
126.In Plaintiff M1/2021[130] the High Court has provided the following guidance for this situation:
[37] ... [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
...
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
[130] Plaintiff M1/2021, [37] & [39].
127.CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 (CKT20) provided that the Tribunal is required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20, the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[131]
[131] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124 at [97] to [106].
128.The applicant said he feared being removed from Australia to South Sudan, where he claimed as an ethnic Madi he could be killed by members of the Sudan People’s Liberation Army (SPLA) who had killed his father and grandfather and abducted his mother. His evidence was that if he as returned to South Sudan, he would be homeless and have no family or social support because he does not know anyone in South Sudan and no longer has any family remaining in the country. In addition, he claimed that as a returnee from the west with perceived wealth, the applicant claimed he would be a target.
129.The Tribunal has considered the country information provided by the applicant, including the DFAT Country Information Report for South Sudan dated 5 October 2016[132] (DFAT report), Human Rights Watch World Report 2023 – South Sudan and Amnesty International report 2022/2023- South Sudan. The country information reports that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. It is reported[133] that after years of war, those returning to South Sudan many of their former homes no longer exist or have been claimed by others. In addition, many areas are without services and there are no opportunities for employment. In addition, returning to some areas can inflame ethnic tensions and disputes.
[132] DFAT Country Information Report for South Sudan dated 5 October 2016, A 90.
[133] Refugees International, ‘Return to a Displaced Nation- The Sudan Crisis and South Sudan’s Returnees’ by Daniel P.Sullivan and Abdullahi Boru Halake, July 2023, A 116.
130.While not making a finding in relation to any protection claim the applicant may wish to advance, based on the available country information the Tribunal does not necessarily accept that as an ethnic Madi, the applicant would be at risk of harm if he returns to South Sudan. Nevertheless, the Tribunal accepts that there may be other claims for protection the applicant is able to make. The Tribunal accepts there may be other reasons for him being harmed if he is returned to South Sudan. It is not in dispute that as a child the applicant left South Sudan and spent time in a Ugandan refugee camp due to the war prior to traveling to Australia. The applicant would have limited family support and other network if removed to South Sudan. This is a factor that weighs in favour of revocation of the cancellation decision. However, in circumstances where it is open for the applicant to make a protection visa application the Tribunal gives it less weight.
131.If the applicant was to make a protection visa application, then he would face a further period in detention whilst any application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence to suggest that re-settlement or the exercise of a personal discretion would be considered. While the Tribunal notes that given the applicant is in dentition it is open for him to request an application for protection be heard and determined expeditiously. Nevertheless, it accepts that the applicant would face an extended period in detention.
132.The Tribunal accepts that the applicant’s likely ongoing detention would impact adversely on his mental health. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[134] Kenny and Mortimer JJ considered the impact of further detention:[135]
… 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...
[134] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
[135] Op Cit at [132].
133.However, in this case the Tribunal has found that there is a real risk the Australian community will be harmed if the applicants visa is restored. The Tribunal notes that the applicant is receiving counselling services while in detention that can assist the applicant in dealing with any adverse impact on his mental health while being held in detention. In such circumstances the Tribunal gives the fact that the applicant will spend more time in detention little weight in favour of revoking the decision to cancel his visa.
Extent of impediments if removed.
134.Direction 99 requires that the Tribunal consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
135.Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
136.The applicant meets the diagnostic criteria for with post-traumatic stress disorder[136] and suffers from the early stage of liver damage.[137] It is reported[138] that South Sudan’s population has extremely poor access to health care. Mental health services are reported to be in a precarious state. There is only one Hospital in Juba treating mental health. The hospital has limited drugs, twelve beds with one psychologist and two clinical officers treating mental health patients.[139]
[136] Foundation House report by Christine Nathan dated 4 March 2024, A 10.
[137] Report by Therese Wilkinson Mental Health Community Corrections Screening Program -Sunshine Magistrates Court dated 29 April 2021, G 28.
[138] DFAT Report p.6, A 96.
[139] The Lancet ‘Mental Health services in South Sudan’ by Ashok N Singh April 2014. < on the available country information, the fact that the applicant left South Sudan when he was a young child, has no network of family or friends to support him in South Sudan, the Tribunal accepts that the applicant would find it difficult if returned to South Sudan. However, the Tribunal notes that the applicant is an intelligent and articulate person who has an education. Given the applicants educational standard and his work experience, the chance of him establishing himself in the country is greater than for a person with less qualifications. Nevertheless this is a factor that weighs in favour of revocation of the cancellation decision.
Impact on victims
138.Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
139.While it may be self-evident to say that the victims of the applicant’s crimes have suffered terribly, there was no evidence presented to the Tribunal of impact on victims within the meaning of the Direction to enliven this consideration, which carries neutral weight.
Impact on Australian business interests
140.Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.
CONCLUSION
141. The Tribunal has considered the specific circumstances in relation to the applicant. The Tribunal is required to weigh up all the relevant factors to determine whether it is satisfied that there is “another reason” to revoke the cancellation decision.
142.The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. Having considered the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal is not satisfied that the cancellation of the applicant’s visa should be revoked.
143.The applicant’s offending was serious, it occurred over an extended period and in circumstances where he showed a complete disregard for the safety of the community and the operation of the law. In addition, the applicant has displayed violent and aggressive behaviour arising from incidents of family violence.
144.In addition, the applicant has failed to adequately address his addiction to alcohol. While the applicant may have become alcohol free while in prison and immigration detention, his behaviour, once he is free in the community, has been to revert to using alcohol. He has continually rejected the support and assistance of his family in favour of alcohol, a result of which, he has repeatedly engaged in dangerous, antisocial, and violent behaviour that has put his victims and the general community at the risk of harm. While the applicant has expressed remorse for his actions the IHMS reports suggest that he continues to hold limited insight into his unlawful behaviour.
145.In such circumstances the Tribunal is of the view that the applicant is an unacceptable risk to the Australian community. As such, it is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.
DECISION
146.The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 146 (One Hundred and Forty Six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Pennell.
…………[SGD]……………………….
Associate
Dated: 5 April 2024
Date of hearing:
20 and 21 March 2024
Advocate for the Applicant:
Solicitors for the Applicant:
Mr Mathew Kenneally
Refugee Legal
Solicitor for the Respondent:
Ms Catherine Oppel
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