ZDPL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2023] AATA 3720

ZDPL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3720 (9 October 2023)

Division:GENERAL DIVISION

File Number(s):     2023/5181

Re:ZDPL

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member D. Cosgrave

Date:09 October 2023

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 July 2023 and substitutes it with a decision to revoke the mandatory cancellation of Applicant’s visa.  

...........................[SGD]...............................

Member D. Cosgrave         

Catchwords

MIGRATION – Mandatory visa cancellation – South Sudanese citizen – Refugee (Class BA) (Subclass 200) visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bartlett and Minister for Immigration and Border Protection, [2017] AATA 1561

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Bushell v Repatriation Commission (1992) 175 CLR 408

Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588

DEMIR V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] FCA 870

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

GJJF AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2019] AATA 930 (17 MAY 2019)

HOLLOWAY V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2022] FCA 1126

Ibrahim v Minister for Home Affairs (2019) 270 FCR 12

Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461

Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153

Khalil v Minister for Home Affairs (2019) 271 FCR 326

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs [2022] HCA 26

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member D. Cosgrave

14 November 2023

INTRODUCTION

1. ZDPL seeks review of the Respondent’s delegate’s 6 July decision not to revoke the mandatory cancellation of his Refugee Class BA Subclass 200 visa (the visa).[1]

   [1] G documents (bookmarked G1-G27), G2, page 11. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.

2. The hearing was held by audio visual link in Brisbane on 19 and 20 September 2023. ZDPL was represented by Ms Blaker, a legal practitioner with Legal Aid NSW. The Respondent was represented by Ms Donaghy, a legal practitioner with HWL Ebsworth.

3. On 9 October 2023 the Tribunal met its 84 day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3]   The Tribunal now gives its reasons for its decision.

   [2] Pursuant s 500(6L) of the Migration Act 1958 (Cth).

   [3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].

4. Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.

   FACTS 

5. ZDPL is 34 years old, born in Bor in what was Sudan and which now comprises part of South Sudan. He never knew his parents, was cared for by his elder siblings in a Ugandan refugee camp and arrived in Australian on 29 October 2002 when he was 13 years old. He has not departed since[4].

   [4] Exhibit G1: G11, page 80

6. On 24 February 2023, ZDPL’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act)[5] due to s 501(6)(a) (substantial criminal record) and because he had been sentenced to term of imprisonment of 12 months or more.[6]

   [5] Exhibit G1:G10, pages 73-79

   [6] As defined in ss 501(6)(a) and 501(7)(c) of the Act.

7. On 10 March 2023, ZDPL made valid representations seeking revocation of the mandatory cancellation of his Visa, accompanied by a Personal Circumstances Form.[7]

   [7] Exhibit G1: G8, pages 47-67

8. On 6 July 2023, a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke ZDPL’s mandatory visa cancellation of the Applicant's Visa.[8] The Applicant was notified of the decision on 17 July 2023.[9]

   [8] Exhibit G1: G2, pages 11-25

   [9] Exhibit G1: G2, pages 8-10

   OFFENDING HISTORY

9. ZDPL’s offending history is summarised in table form, attached to this Decision and marked Annexure B.

10. His offending primarily relates to four separate incidents between September 2020 and August 2022, summarised below.

    (a)ZDPL was convicted on 26 February 2021 of Common assault (DV)-T2. This resulted from a domestic violence incident involving ZDPL and another person.  According to NSW Police, the other person was a victim of ZDPL’s violence and resided with him in a share accommodation house.[10]

    (b)ZDPL was convicted on 7 April 2021 of driving related offences, including Drive with high range PCA - 1st offence. This resulted from NSW Police stopping ZDPL when he was driving a motor vehicle after discovering that his vehicle registration had expired and was uninsured. When NSW Police approached ZDPL's vehicle, they could smell intoxicating liquor emitting from it and observed that ZDPL "slurred his words, had a flushed face with watery eyes and smelt of intoxicating liquor". ZDPL returned a positive reading of 0.203 grammes of alcohol in 210 litres of breath, which equated to high range drink driving.[11]

    (c)ZDPL was convicted on 7 October 2021 of the offences of Common assault-T2 and Excluded person remain in vicinity of licensed premises. These offences resulted from ZDPL attacking an individual at a club at around 6:45am on 26 March 2021.[12]

    (d)ZDPL was convicted on 1 November 2022 of the offences of Armed w/i commit indictable offence-T1, Damage property by fire/exp >$15000-T1 (two charges) and Custody of knife in public place - first offence. These offences occurred in the context of ZDPL’s involvement in an ongoing dispute in relation to car parking spots in his residential unit complex. ZDPL used a jerry can with a quantity of petrol to deliberately damage the cars at approximately 8:30pm on 26 August 2022.[13]

    [10] Exhibit G1: G3, page 31.

    [11] Ibid.

    [12] Ibid.

    [13] Exhibit G1: G4, pages 33 and 36; and Exhibit R2: Evidence Bundle page 27.

    LEGISLATIVE FRAMEWORK

11. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.

12. Section 501(3A) of the Act, read with ss 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.

13. The ‘character test’ is defined in Section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by section 501(7) of the Act.

14. Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.

15. Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.

16. Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:

    (a)the person whose visa has been cancelled makes representations in accordance with the invitation; and

    (b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.

    MATTERS FOR CONSIDERATION

    The character test.

17. ZDPL’s visa was cancelled on the basis that he had failed the character test as he had a substantial criminal record as he had been sentenced to, and was serving, a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Sections 501(6)(a) and 501(7)(c) of the Act). Consequently, Section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.

18. The remaining issue for the Tribunal to consider under Section 501CA(4)(b)(ii)(‘another reason’) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[14] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[15]

    [14] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).

    [15] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).

    Is there another reason why ZDPL’s visa cancellation should be revoked?

19. The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[16] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:

    ·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.

    ·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.

    ·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.

    ·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.

    ·Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

    ·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.…”

    [16] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

20. When the Tribunal assesses and considers the factors weighing for and against revoking a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[17]

    [17] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].

    The Direction

21. Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[18]

    [18] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).

22. The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[19]

    [19] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].

23. The following principles in paragraph 5.2 of the Direction inform the decision-making process:[20]

    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 cancellation 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 measureable  risk of causing physical harm to the Australian community.

    [20] Paragraph 5.2 of the Direction.

24. Paragraph 6 of the Direction provides that, informed by the above principles, a

    
    

    decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.

25. Paragraph 8 of the Direction provides the following primary considerations:

    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; and

    5.expectations of the Australian community.

26. Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

27. Paragraph 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’

28. Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’

29. The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[21] The weighing process is determined by decision-makers exercising the relevant power under the Act.[22]

    [21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.

    [22] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].

    EVIDENCE

30. The following is a summary of the evidence tendered or adduced before the Tribunal including oral testimony.

    Documentary evidence

31. The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’.

    Oral Testimony

32. The witnesses who gave evidence during the hearing were:

    (a)ZDPL.

    (b)Dr Kim Dilati, a forensic psychologist.

    (c)ZDPL’s brother, B1.

    (d)ZDPL’s sister, S1.

    THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE

1. The Tribunal found ZDPL’s answers to questions put to him (in both examination-in-chief and cross-examination) to be informative. While he tended in some answers to minimise the seriousness of his offending and attribute blame to his victims, he also appeared to take responsibility for his actions and demonstrate insight into his mental health.

2. ZDPL’s siblings gave straightforward answers rarely varnished by apparent bias, although B1 at times gave unrealistic answers in terms of his knowledge of his younger brother’s offending.

3. Dr Dilati’s expert evidence and her precise and qualified answers, taken in conjunction with her report, was of great value to the Tribunal in considering this matter.

4. The Tribunal will now consider the oral testimony, together with the documentary evidence and both parties’ submissions, against the Direction’s requirements.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

5. When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.

6. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

7. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   (e)The nature and seriousness of the non-citizen’s conduct to date; and

   (f)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   Tribunal consideration: The nature and seriousness of ZDPL’s conduct

   Paragraph 8.1.1(1)

8. This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:

   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.

9. The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.

10. The Respondent contends that ZDPL's offending is very serious and weighs heavily against revocation.[23] Support is drawn from paragraph 8 as follows:

    [23] Exhibit R1: Respondent's Statement of Facts Issues and Contentions [29]

    a)paragraph 8.1.1(1)(a)(i) states that violent crimes are viewed very seriously by the Australian Government and the Australian community. ZDPL's two assaults are crimes of a violent nature.

    b)paragraph 8.1.1(1)(c) requires a decision-maker to have regard to the sentence imposed by the Courts. ZDPL was sentenced to several terms of imprisonment for his offending, including three 18-month terms served concurrently and a six-month term (which was imposed after he breached a condition of his Conditional Release Order by reoffending). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.[24]

    [24] Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1257 (11 May 2020)

    c)paragraph 8.1.1(1)(d) requires a decision-maker to have regard to the frequency of the offending and/or whether there is any trend of increasing seriousness. ZDPL is a repeat and frequent offender. Since 26 February 2021, he has been convicted of 12 offences, four of which occurred whilst subject to the conditions of a Conditional Release Order. His offences are of a similar nature (noting the presence of violence and/or the potential for lethal consequences) and have a trend of increasing seriousness, as reflected by the latest term of imprisonment. The Applicant's behaviour must be seen as cumulatively having had a deleterious impact on the Australian community (paragraph 8.1.1(1)(e)).

    d)And in terms of the risk to the Australian community:

    a.ZDPL’s repeated crimes of a violent and/or dangerous nature are very serious and any likelihood that they may be repeated is unacceptable.

    b.the potential harm that could be caused if ZDPL committed further acts of criminal or other serious conduct could involve significant physical, financial and psychological harm to members of the Australian community.

    c.There is a real risk of ZDPL engaging in further criminal or other serious conduct because:

    i.there is a connection in his criminal history between his intoxication and the commission of violent and/or dangerous offences, noting that most, if not all, of his offending has involved the presence of alcohol. Despite this, there is no evidence of ZDPL engaging in any form of rehabilitation to address his alcohol and/or other substance abuse issues. While he claims to have attended a "drug and alcohol course in prison" [25], his "Offender Programs / Service Status Report" held by Corrective Services does not support this [26], and there is no evidence of ZDPL taking any steps to rehabilitate himself whilst in the community. He confirmed as much in a meeting with a Corrective Services Officer on 24 October 2022, and reportedly expressed ambivalence about engaging in future treatment, noting that this would require him to "stop work…".[27]

    ii.there is no evidence of ZDPL engaging in any sustained period of individualised psychotherapy, particularly in conjunction with pharmacological intervention, to address his serious mental health issues, which have also contributed to his offending behaviour. When questioned by a Corrective Services Officer on 24 October 2022, he indicated that he did not have a treating general practitioner, he was unable to recall the details of any prior counselling, nor did he have a formal diagnosis and was yet to proceed with a recent referral to Blacktown Mental Health for initial assessment by a psychiatrist.[28]

    iii.ZDPL’s siblings reside in either Western Australia or Queensland, while ZDPL has resided in New South Wales since "about 2017 or 2018"[29] and would not be physically present to support ZDPL if he were to be released into the Australian community. There is otherwise no evidence of any meaningful family support. ZDPL previously told NSW Corrective Services that he had "limited family and social supports [in Australia], with most of his family living in his home country, Uganda".[30] He said that he would be homeless if he were released into the Australian community, noting that he did not have any accommodation options as at 23 February 2023.[31] ZDPL could not provide Corrective Services with the name of anyone to contact to verify his details, except for his sister whose phone was disconnected.[32]

    iv.ZDPL's own evidence is that he has not engaged in the Australian community via church or other events since COVID-19 (which is taken to be a period of approximately three years).[33] This is consistent with his evidence to Corrective Services on 24 October 2022 that he "used go to church two years ago".[34] Consequently, it therefore appears as though he has limited social support to assist him if he were released into the Australian community;

    v.ZDPL has attempted to minimise the seriousness of his offending behaviour by blaming others, justifying his actions or both. For example, when a Corrective Services Officer asked him on 24 October 2022 about the assault involving a cleaner, ZDPL said that the cleaner "pushed me first".[35] In contrast, the narration of the incident by NSW Police does not suggest that ZDPL was provoked in any way by the cleaner prior to ZDPL assaulting him. To the contrary, the cleaner told NSW Police that ZDPL's actions prior to the assault "caus[ed] the Victim to be fearful" and that he entered the club to distance himself from ZDPL in the first instance.[36] Similarly, the Sentencing Assessment Report dated 31 October 2022 confirmed that ZDPL "ultimately placed blame on the victims for his behaviour", when referring to his most recent offences involving burning two cars.[37]

    vi.the 31 October 2022 Sentencing Assessment Report assessed ZDPL as a Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).[38]

    vii.ZDPL has shown an inherent disregard for the laws of Australia and the judicial system through the repeated nature of his conduct and has not been deterred from reoffending by his convictions and sentences, including the imposition of a Conditional Release Order.[39]

    [25] Exhibit A2: Applicant Evidence Bundle A1, page 13.

    [26] Exhibit R2: Respondent’s Evidence Bundle, page 79

    [27] Exhibit R2: Respondent’s Evidence Bundle, page 58

    [28] Exhibit R2: Respondent’s Evidence Bundle, page 58

    [29] Exhibit A2: Applicant Evidence Bundle A1, page 6

    [30] Exhibit R2: Respondent’s Evidence Bundle, page 82

    [31] Exhibit R2: Respondent’s Evidence Bundle, page 61

    [32] Exhibit R2: Respondent’s Evidence Bundle, page 58

    [33] Exhibit A2: Applicant Evidence Bundle A1, pages 6 -7

    [34] Exhibit R2: Respondent’s Evidence Bundle, page 58

    [35] Exhibit R2: Respondent’s Evidence Bundle, page 59

    [36] Exhibit R2: Respondent’s Evidence Bundle, page 32

    [37] Exhibit R2: Respondent’s Evidence Bundle, page 89

    [38] Exhibit R2: Respondent’s Evidence Bundle, page 90

    [39] Exhibit G1: G3, page 31

11. Summarising ZDPL’s contentions[40]:

    [40] Exhibit A1: Applicant’s Statement of Facts, Issues, and Contentions, [38] – [53]

    (a)The three Queensland summary offences involve outcomes where the matter was discharged, no conviction recorded, and a small penalty imposed by way of a fine. Consequently, it is appropriate to describe ZDPL as having a minimal criminal record until 2021, some 19 years after his arrival in Australia.

    (b)The majority of his offences coincide with a period in his life he describes as being very difficult and made worse by external circumstances. These include the health of his younger brother B3, losing his job and accommodation due to him leaving NSW for a period to care for B3, his mental health declining and his coping mechanisms limited by the restrictions and isolation imposed by the coronavirus.[41]

    [41] Exhibit A2: Applicant’s Evidence Bundle, pages 7-13

    (c)ZDPL describes feeling weighed down by the cumulative effect of these circumstances and that he experienced periods of paranoia, difficulty sleeping and a feeling that he needed external intervention in his mental health, which was made worse when he used alcohol as a coping mechanism.[42]

    [42] Exhibit A2: Applicant’s Evidence Bundle, pages 7-13

    (d)Much of his offending conduct has fallen within a short period of time, after a significant period of no offending, and within an exceptionally challenging period in the Applicant’s life.

    (e)ZDPL has expressed deep remorse and regret for his actions and demonstrated insight into the seriousness of his conduct. The nature and seriousness of his conduct, when viewed objectively, as it fits within the scale of criminal offending and penalties for his offences, sits at the lower end.

    (f)ZDPL’s prison sentence giving rise to his having ‘a substantial criminal record’ is also his first sentence of incarceration. His evidence on the impact of incarceration on his motivation for rehabilitation and the development of his insight into past conduct should therefore be given significant weight.

    (g)There is a Community Corrections Order made until April 2025 to support ZDPL to address his relationship with alcohol.[43]

    [43] Exhibit G1: G1, page 31

    And in terms of the risk to the Australian community:

    (h)Notwithstanding ZDPL’s history of offending, which has included acts of assault and property destruction impacting the community, he also has the necessary supports in place to help facilitate his rehabilitation and integration into the Australian community, which can be complemented by appropriate mental health treatment.

    (i)His offending largely involves incidents that occurred whilst he was affected by alcohol, experiencing poor mental health with having limited coping mechanisms available to him. The offences also occurred in the context of family illness involving [B2] and significant disruption to life because of COVID-19.

    (j)ZDPL has identified that he would benefit from support to work on his mental health, including working on his history of trauma, his offending conduct, and how to better regulate his emotions and his responses, particularly when placed in situations he feels provoked.[44]

    (k)ZDPL has described having some sense that something was wrong with his mental health around the time of his offending, and that he knew he needed “something,” but that the first experiences of being treated by way of medication were not a positive experience for him. He has reflected on what he has been able to identify as positive in preliminary psychology sessions [although limited] in detention and has given evidence of his plan to seek psychological treatment in the community.[45]

    (l)ZDPL has given evidence that he has benefited from programs completed in prison, including a drug and alcohol program, and reflected on the benefit of further programs such as anger management.

    (m)His evidence demonstrates development of insight into his behaviour over time, and self-identified methods to try and address his past behaviour to ensure he does not repeat this behaviour. He has provided genuine reflection on why he acted the way he did in the past, and how he could have approached these situations differently. He has identified supports he wishes to utilise, which also include engagement with his family, which will assist him in the long term to manage his mental health and emotional regulation.

    (n)His life in Australia makes clear that he is a highly capable and motivated individual and that he has the life skills and self-motivation to put into effect the goals and plans he has made. He has demonstrated through his long education and work history that he is ambitious.

    (o)His evidence about what he has learned from his offending, particularly while incarcerated, is significant and manages any potential future risk to the community.

    (p)The evidence demonstrates the low risk to the community if ZDPL’s visa is re­ instated. Notwithstanding that the criminal conduct included acts of assault and destruction of property. The conduct was not so serious as to weigh against revocation because of where his sentences sit on the sentencing scale and where there are demonstrated prospects of rehabilitation.

    [44] Exhibit A2: Applicant’s Evidence Bundle, pages 7-13

    [45] Exhibit #: Applicant’s Evidence Bundle, page 7

    Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)

12. These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.

13. The Tribunal concludes, based on ZDPL’s October 2021 and November 2022 convictions for common assault, his February 2021 common assault conviction, Magistrate Bugden’s November 2022 sentencing remarks,[46] and New South Wales Police Services[47] reports that ZDPL has committed violent crimes.

    [46] Exhibit G1: G4, page 33 - 37

    [47] Exhibit R2: Respondent’s Evidence Bundle Tender Bundle, pages 1-21

14. The Tribunal considers that this paragraph carries significant weight in favour of affirming the delegate’s decision not to revoke the cancellation of ZDPL’s visa.

    Paragraph 8.1.1(1)(b)(i)

15. This paragraph is not relevant as ZDPL has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.

16. The Tribunal considers that this paragraph carries neutral weight.

    Paragraph 8.1.1(1)(b)(ii)

17. This paragraph is not relevant as ZDPL has not committed an offence against government representatives or officials due to the position they hold in the performance of their duties.

18. The Tribunal considers that this paragraph carries neutral weight.

    Paragraph 8.1.1(1)(b)(iii)

19. This paragraph refers to conduct forming “...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”.

20. There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of ZDPL’s conduct.

    Paragraph 8.1.1(1)(b)(iv)

21. There is no evidence before the Tribunal that ZDPL is committed a crime described under this paragraph.

22. The Tribunal considers that this paragraph carries neutral weight.

1. Treating paragraph 8.1.1(1)(b) holistically, none of ZDPL’s offending or conduct falls into the types of crimes and conduct prescribed here.

   Paragraph 8.1.1(1)(c)

2. In applying this paragraph, the Tribunal is precluded from considering sentences imposed on ZDPL for:

   (a)any violent offending that he may have committed against women or children,

   (b)acts of family violence; and

   (c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.

3. ZDPL was sentenced to several terms of imprisonment for his offending, including three 18-month terms served concurrently and a six-month term (which was imposed after he breached a condition of his Conditional Release Order by reoffending). The Tribunal considers that this paragraph carries weight in favour of affirming the delegate’s decision not to revoke the cancellation of ZDPL’s visa.

   Paragraph 8.1.1(1)(d)

4. This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.

   Frequency

5. The Tribunal, in addressing this paragraph, considers that ZDPL’s offending should be divided into two categories:

   (a)His driving and vehicle related offences; and

   (b)His violent offending, domestic violence offending, property damage offences, offences involving weapons and other offending such as contravening a police banning notice and being an excluded person remaining in the vicinity of licensed premises.

6. ZDPL’s criminal history,[48] in the absence of specific contentions from either ZDPL or the Respondent, makes clear that apart from the 2016 unlicensed driving conviction, the bulk of his serious offending occurred between May 2018 and March 2022.

   [48] Exhibit G1: G3, pages 29-31

7. This pattern of offending is equivocal, being capable of characterisation as either increasing in frequency or as sporadic but possessing a high frequency when it occurred.

   Trend of increasing seriousness

8. ZDPL’s criminal history[49] demonstrates a pattern of increasing seriousness, especially in terms of his willingness to apply violence.

   [49] Op Cit.

   Paragraph 8.1.1(1)(e)

9. This paragraph addresses the cumulative effect(s) of ZDPL’s repeated offending.

10. The cumulative effects of ZDPL’s offending, especially the offending between 2020 and 2021 can be characterised as imposing significant financial psychological and emotional costs on his victims.

11. Setting cars on fire can result in significant financial costs to their owner who may be responsible for financially contributing to their repair. If the car is unserviceable because of the damage caused by the fire, the owner may be prevented from or hindered in performing everyday tasks that are essential to one's wellbeing and livelihood. Using a weapon with intent to commit an offence has the capacity to cause significant physical and psychological trauma to the victims. This offending can cause victims to suffer from psychological distress, which can then impact their physical wellbeing, particularly if the incident causes anxiety, depression and/or post-traumatic stress.

12. Looking broadly, ZDPL’s repeated offending has also imposed externalities and costs the Australian community and its policing, judicial and corrective services systems. 

    Paragraph 8.1.1(1)(f)

13. There is no evidence before the Tribunal that ZDPL provided false or misleading information to the Minister’s Department, including by not disclosing criminal offending.

14. The Tribunal considers that this paragraph carries neutral weight.

    Paragraph 8.1.1(1)(g)

15. This paragraph involves the issue of whether ZDPL has re-offended since being formally warned about the consequences of further offending in terms of his visa status.

16. The Tribunal considers that this paragraph carries neutral weight.

    Paragraph 8.1.1(1)(h)

17. This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.

18. There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction.

19. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of ZDPL’s conduct.

    Tribunal finding: The nature and seriousness of ZDPL’s conduct.

20. The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.

21. With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of ZDPL’s unlawful conduct in Australia should be characterised as very serious.

    Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

22. This aspect of the Direction requires the Tribunal to assess the risk ZDPL poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.

    Paragraph 8.1.2(1)

23. This paragraph states:

    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.

    Paragraph 8.1.2(2) 

24. This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:

    a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i) information and evidence on the risk of the non-citizen re-offending; and

    (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

25. In assessing the risk to the Australian community, the Tribunal has considered the oral testimony, the documentary evidence, including Dr Dilati’s report and the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.

    The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were ZDPL to engage in further criminal or other serious conduct.

26. ZDPL’s historic criminal and serious conduct encompasses a broad range of physical, psychological, financial, and societal consequences.

27. If ZDPL offends or engages in conduct in future in ways similar to his historic criminal and serious conduct, the nature of the harm to individuals or the Australian community would be material and involve physical, psychological and financial harm.  

28. Further criminal conduct of the categories ZDPL has previously engaged in would also result in material physical, psychological and financial harm to the Australian community.

29. This is true of both his traffic offending as well as his non-traffic offending. Road users might be exposed to the dangers of an unlicensed or intoxicated driver, and the consequences of this could be very serious indeed[50]. 

    [50] See Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561[43]-[45]

30. The Tribunal finds the nature of the harm in the circumstances of paragraph 8.1.2(2)(a) to be very serious.

    The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.

31. The Tribunal has holistically considered the totality of the evidence addressing the likelihood of ZDPL engaging in further criminal or serious conduct.

32. The issues surrounding the consideration of “likelihood” under paragraphs 8.1.2(1) and (2) have been extensively considered by the Tribunal and superior courts.[51]

    [51] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.

33. The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:

    “…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”

34. The clear legislative intention is that the threshold is whether there is ‘a’ risk.[52] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[53] On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):

    “The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”

    [52] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].

    [53] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].

35. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [54]

    “The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”

    [Added emphasis]

    [54] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].

36. Justice Mortimer (as Her Honour was at the time) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs[2018] FCA 1924, [37], where Her Honour noted:[55]

    “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”.”

    [55] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

37. Consequently, by engaging in the task described by Justice Mortimer and applying the reasoning in Guo, there is “a risk” or a likelihood of ZDPL engaging in further criminal or serious conduct.

38. That risk can be dissected as the product of the nature of any further criminal or other serious conduct that ZDPL may engage in future if returned to the community and the likelihood of that criminal or other serious conduct happening.

39. The nature of any further criminal or other serious conduct that ZDPL may engage in in the future is considered above.

40. In considering the likelihood, and applying Guo, at first glance there appears to be a strong likelihood that ZDPL would reoffend in ways that are similar to his historic offending given the prevalence and causes of his offending.

41. A consideration of the risk or likelihood of ZDPL engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing this enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.”

42. The Tribunal also has the benefit of Dr Dilati’s report and her evidence, along with that of ZDPL, his brother and his sister.

43. Dr Dilati considers that at the time of his offending, ZDPL met the criteria for Mild Post-Traumatic Stress Disorder, Alcohol Use Disorder and Generalised Anxiety Disorder[56].

    [56] Exhibit A4: AR1, Dr Dilati 31 August 2023 report, [92]

44. She considers that ZDPL developed symptoms of PTSD and anxiety during childhood as a result of his circumstances. He began to use alcohol to mitigate these symptoms which is a common problem in individuals who have suffered childhood trauma. This then exacerbated his mental health difficulties (trauma and anxiety) and led to impairment in his executive functioning in the area of decision making, rational thinking, and problem solving.

45. However, the combination of his trauma and alcohol use then led to a trajectory of problems including emotional dysregulation and offending behaviours beyond what he could manage.

46. Dr Dilati notes that research has demonstrated a strong link between exposure to traumatic events and substance use problems. Many individuals who have experienced child abuse, or other traumatic events turn to alcohol or drugs to help them manage emotional pain, traumatic memories, poor sleep, guilt, shame, anxiety, and terror. This is consistent with ZDPL’s history.

47. Dr Dilati also found that ZDPL developed fixed beliefs with themes of persecution due to his refugee history, perceived racial vilification and unresolved trauma (hypervigilance and hyperarousal). This caused him to fear for his physical safety and wellbeing (whether his beliefs are accurate or not) and to express his reactive anger towards perceived antagonists which will need to be addressed in therapy.

48. Dr Dilati assessed ZDPL as scoring within the Moderate to High range of Future Violence/Case Prioritisation, the Moderate range of Serious Physical Harm and the Low range of Imminent Violence towards others.[57]

    [57] Ibid, [81]

49. In Dr Dilati’s opinion, ZDPL's risk of reoffending is due to his history of trauma and adversity, alcohol use, mental health conditions, exposure to community violence, accommodation instability in the past, potential problems with his living and personal situation in the future, problems with his stress and coping, and possible difficulties with affective, behavioural, and cognitive instability. However, although his risk of violence cannot be eliminated, it can be mitigated and contained through substance use treatment and abstinence, trauma therapy, offence focused therapy, psychotropic medication, therapeutic supports, meaningful occupation, family support, religious faith, engagement in meaningful activities, healthy relationships, prosocial activities, and regular violence risk assessments.

50. ZDPL has, in Dr Dilati’s words, the following static risk factors:

    … several historical risk factors including a history of violence, heavy alcohol use, exposure to traumatic experiences, adverse childrearing experiences, problems with relationships, major mental health difficulties, possible violet attitudes, problems with insight into his mental health condition and violence risk, affective, behavioural and cognitive instability, future potential problems with professional services and plans (if he is returned to Sudan), reduced personal support, and problems with stress and coping.[58]

    [58] Ibid, [82]

51. Further, Dr Dilati states that:

    However, risk is dynamic and changeable and dependent on the balance of risk and protective factors present. Hence, to reduce [ZDPL]'s risk of reoffending, as noted, it will be imperative that he increases and maintains his existing protective factors of stable employment and accommodation, abstinence from alcohol use, engagement in meaningful activity, regular mental health treatment, access to family support, and that he has his risk re-evaluated every 6 to 12 months to mitigate risk factors of violence.[59]

    [59] Ibid, [82]

52. ZDPL acknowledged his offending with qualifications and took responsibility for when giving evidence. While his initial steps towards rehabilitation have been difficult and interrupted, he appears to now have insight[60]  and to recognise that he must seek assistance.[61] He also appeared motivated to do so, especially in terms of his community corrections order banning him from consuming alcohol[62][63]

    [60] Transcript, page 11, lines 38-42

    [61] Transcript, page 11, line 44 – page 12, line 7.

    [62] Transcript, page 11, lines 20-31

53. Other dynamic risk management factors include the end of COVID-19 lockdowns with the consequential effect that ZDPL’s demonstrated focus, commitment and will in educating himself and gaining formal qualifications[64] should improve his employment opportunities. In addressing likelihoods, the Tribunal should also acknowledge the possibility that he may re-connect with the Bor Community Association which would be a further dynamic risk management factor[65].

    The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    [64] Transcript, page 6, lines 37-45

    [65] Transcript, page 7, lines 15 -30

54. The Tribunal finds that the risk to the Australian community should ZDPL commit further offences or engage in serious conduct exists. Given the balance of static and dynamic risk and risk management factors, the Tribunal considers that this risk is low to medium.

    Conclusion: Primary consideration 1: Protection of the Australian community

55. This consideration weighs significantly in favour of affirming the delegate’s decision to not revoke the cancellation of ZDPL’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN. 

56. Paragraph 8.2 of the Direction states:

    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 non­citizen, 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

    d.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 non­citizen’s migration status, should the non-citizen engage in further acts of family violence.

1. Paragraph 4 of the Direction contains this definition:

   family violence means violent, 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. Examples of behaviour that may constitute family violence include:

   a.    an assault; or

   b.    a sexual assault or other sexually abusive behaviour; or

   c.     stalking; or

   d.    repeated derogatory taunts; or

   e.    intentionally damaging or destroying property; or

   f.   intentionally causing death or injury to an animal; or

   g.    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   h.    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   i.   preventing the family member from making or keeping connections with his or her family, friends or culture; or

   j.   unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

   The Tribunal’s Consideration

2. The Tribunal considers that paragraph 8.2 is not enlivened.

3. While ZDPL was convicted of domestic violence, it was not family violence for the Act’s purposes.

4. The Respondent acknowledges that there is no evidence to suggest that family violence is a relevant consideration in ZDPL's case.

   Conclusion: Primary consideration 2: Family violence committed by the non-citizen. 

5. This consideration is neutral.

   PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.

6. Paragraph 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 a 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 noncitizen has been ordinarily resident in Australia 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 the 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 noncitizen began offending soon after arriving in Australia.

7. The Respondent’s contentions on this point are concisely stated:

   (a)The Minister concedes that this primary consideration weighs in ZDPL’s, having regard to factors such as his residency in Australia since 29 October 2002 (which include during some of his formative years) and family links to Australian citizens or permanent residents, including his two brothers and sister.[66]

   (b)Nevertheless, less weight should be given to this primary consideration in circumstances where ZDPL:

   (i)has provided limited evidence of social links generally with Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely. Whilst ZDPL has provided a letter of support by Mr Michael Kuany of the Bor Community Association in Australia, Mr Kuany suggests in his letter that his interactions with the Applicant are limited to the period 2015 and 2018, before the Applicant relocated to New South Wales.[67] Mr Kuany and the Applicant's three siblings are the only people to provide a letter or statement in support of the Applicant in these proceedings;[68] and

   (ii)there is no evidence before the Tribunal of ZDPL making any recent positive contribution to the Australian community. To the contrary, since 26 February 2021, he has been convicted of 12 serious offences, four of which occurred whilst subject to the conditions of a Conditional Release Order. Any employment or study undertaken by ZDPL is properly characterised as benefits he has enjoyed whilst in Australia, not examples of positive contributions to the Australian community.

   (c)This primary  consideration  should  not  be  given  greater  weight  than  the  primary considerations of the protection and expectations of the Australian community, which weigh heavily against revocation.

   [66] Exhibit G1: G15, page 190

   [67] Exhibit A2: Applicant’s Tender Bundle A9, page 122

   [68] Exhibit A2: Applicant’s Tender Bundle A2-A4, A9

8. ZDPL's submissions on this point can be summarised as follows:

   ZDPL has lived in Australia for approximately 21 years. He has never left Australia and calls Australia home.

   He arrived in Australia in 2002, when he was approximately 12 years old.

   The Applicant lost his parents at a very young age, and he arrived in Australia with his four siblings, who are now permanent residents or citizens.

   He spent his formative years developing in Australia, attending school and making friendships, engaging in sports and leisure activities, and joining the workforce in his teens.

   He also has an extended family within the Australian community including nieces and nephews and cousins.

   ZDPL has demonstrated a strong connection to the Australian community through his employment history. He has a consistent employment record demonstrating the positive contribution he has made to the Australian economy.[69]

   ZDPL has also demonstrated strong ties to the Australian community through his participation in cultural and religious community organisations and events. His evidence shows that he has regularly participated in his church community and Bor community when not in prison or detained.[70]

   The Respondent contends that there is no evidence of positive contributions that ZDPL has made to the Australian community, that the support of his family is limited as they do not reside in the same state, and that the best interests of the children should be given no weight in the current proceedings.

   Family support need not be physical to be meaningful. ZDPL has indicated that he maintains regular contact with his siblings, and that in the past he has lived with various family members, including his aunt in Sydney. There is also direct evidence from his siblings before this Tribunal[71], making specific reference to offers of accommodation and emotional support.

   There is also no requirement that ZDPL live in the same state as his siblings, when considering the strength, nature and duration of the ties to Australia. It is relevant that his siblings, and members of his extended family reside in Australia, and that he has these personal ties to Australia. There is also the evidence from ZDPL’s siblings that they would be negatively impacted if ZDPL was returned to South Sudan.

   This consideration weighs heavily in favour of revocation.

   [69] Exhibit A2: Applicant’s Evidence Bundle pages 5 - 6.

   [70] Exhibit A2: Applicant’s Evidence Bundle page 6.

   [71] Transcript, page 54, lines 32-34; page 55, lines 37-42; page 65, lines 7-15

   The Tribunal’s Consideration

9. Relevantly here, ZDPL's immediate family members are either Australian citizens or permanent residents.

10. Evidence of the ties between siblings includes the fact that ZDPL incurred several of his traffic penalties and lost his accommodation in Sydney by giving priority to travelling to Brisbane to care for his ill brother.

11. There is some evidence of ties with his extended family in Australia, including residing for a period with an aunt in Sydney. The same observation applies to the evidence of his involvement in community groups. The Tribunal acknowledges that this involvement has necessarily been constrained by COVID-19 and ZDPL’s imprisonment and detention.

12. In addressing sub-paragraph (4), the Tribunal gives weight to the fact that ZDPL has been ordinarily resident in Australia during and since his formative years and that he has made some positive contributions to the Australian community in terms of employment and his involvement with the Bor Community Association.[72]

    [72] Transcript, page 7, lines 15-30

    Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.

13. This consideration weighs moderately in favour of setting aside the delegate’s decision to cancel ZDPL’s visa.

    PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.

14. Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.

15. Relevantly,

    (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

    (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4) In considering the best interests of the child, the following factors must be considered where relevant:

    a)   the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c)   the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)   whether there are other persons who already fulfil a parental role in relation to the child;

    f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)   evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h)   evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

16. The Respondent submits that while ZDPL’s submissions set out at a high level details of his sister’s six children (ranging in age from 6 to 16), very little detailed information such as names and birthdates is provided.

17. ZDPL did not declare them in his Personal Circumstances Form[73] nor give any indication of an existing relationship with the children when requesting revocation. Similarly, he did not mention the children at all in his recent statement dated 18 August 2023.[74]

    [73] Exhibit G1: G8 at page 61, pages 63-65

    [74] Exhibit A2: Applicant’s Evidence Bundle, A1, pages 3-14

18. His sister gave evidence that the children, apart from a 2021 visit, have not seen ZDPL since 2017.[75] The 2021 visit involved ZDPL looking after his brother, so it reasonable to consider that the children were not the focus of ZDPL’s visit.

    [75] Transcript, page 64, lines 16 - 21

19. ZDPL’s sister fulfils the parental role with regard to the children.

20. The Tribunal, given the lacunae in the information, cannot effectively consider each of the factors set out in sub-paragraph 8.4 (4) (a) – (h).

    Conclusion: Primary consideration 4: Best Interests of Minor Children In Australia Affected By The Decision.

21. This consideration is neutral.

    PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

22. Paragraph 8.5(1) of the Direction provides:

    “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.”

23. In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

24. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:

    (a)acts of family violence;

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;

    (f)worker exploitation.

25. Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

26. As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.

27. Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).

28. Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[76]

    [76] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

29. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[77]

    [77] Ibid at 473 [75]– [76] (Charlesworth J).

30. The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[78]

    [78]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.

31. Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:

    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 measureable 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, However, Australia will generally may 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) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

32. The Tribunal has found that ZDPL has committed crimes of a violent nature. Paragraph 8.5(2) of the Direction is enlivened.

33. The next question is whether there are any factors which modify the Australian community’s expectations.

34. This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:

    a.Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.

    b.The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.

    c.In relation to decisions to refuse, cancel and revoke cancellations of visas, 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.

    d.The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    e.the nature of a 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 a visa outcome that is not adverse to the non-citizen.

    f.In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):

   "This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case."

2. Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act.

3. ZDPL held a Refugee Class BA Subclass 200 visa until it was cancelled on 24 February 2023. This visa allowed its holder to remain in Australia indefinitely.[79] Consequently, the visa cannot be classified as a limited stay visa.[80]

   [79] and Exhibit G1: G2, page 11.

   [80] MCGLONE AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2022] AATA 3202, [194].

4. This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.

   Tribunal’s Consideration

5. ZDPL has lived in Australia since he was 13 and began offending in 2015.

6. The Respondent submits that the combination of ZDPL’s criminal record, the violent and dangerous nature of his offending, their recent frequency, the dire consequences that may flow from such further offences and the likelihood of ZDPL re-offending, would give rise to an expectation on the part of the Australian community that his visa should remain cancelled.

7. ZDPL submits that his circumstances – his refugee trauma, his mental health and his contributions to the Australian community – should mitigate the extent to which this consideration weighs against revocation of the delegate’s decision to cancel his visa.

8. Australia may 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. ZDPL has not done so.

9. The Tribunal has also found the totality ZDPL’s offending conduct to be very serious.

10. The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a 
    non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that ZDPL poses ‘a’ risk of re-offending, albeit a low to moderate risk.

11. The Tribunal is satisfied that ZDPL has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

    Conclusion: Primary consideration 5: Expectations of the Australian community 

12. This consideration weighs moderately in favour of affirming the delegate’s decision not to revoke the cancellation of ZDPL’s visa.

    OTHER CONSIDERATIONS

13. It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.

    Other Consideration(a): Legal consequences of the decision

14. Paragraph 9.1 of the Direction directs a decision-maker to consider the following:

    (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.

    9.1.1 Non-citizens covered by a protection finding.

    (1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

    (2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

    (3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

    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 noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

15. ZDPL contends that Australia has a non-refoulement obligation to him.[81] He also contends that he has a well-founded fear of persecution in South Sudan because of his race, being his Dinka ethnicity and membership of the Dinka tribe and submits that he will face significant harm as a necessary and foreseeable consequence of being returned to South Sudan.[82]

    [81] Exhibit A1: Applicant’s Statement of Facts, Issues, and Contentions, [90] – [91], [93], [102] - [107]

    [82] Ibid, [94]

16. This articulation of the risk of harm is relevant to both this consideration and Other Consideration (b).

17. CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CKT20)[83] makes it clear that the Tribunal 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 Respondent’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.

    [83] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

18. Acknowledging Plaintiff M1/2021,[84] the Tribunal should consider ZDPL's claims and ‘read, identify, understand and evaluate’ these claims. In doing so, it should also consider whether the claims or the alleged facts underpinning the claims establish another reason why the visa cancellation decision should be revoked and whether they support any other matter relevant to the Tribunal’s exercise of the discretion under the Direction.

    [84] Op.cit., [24]-[25] and [30].

19. One potential outcome of this consideration, as described in Plaintiff M1/2021, is to defer assessment of whether ZDPL is owed non-refoulement obligations pending his application for a protection visa.

20. However, the Tribunal notes that there is no evidence before it to suggest that ZDPL has applied or is applying for a protection visa.

    ZDPL’s Claims

21. Following from the above, the Tribunal has read, identified and evaluated ZDPL’s non-refoulement obligation claims in order to understand them. In doing this, the Tribunal has had recourse to the secondary materials referenced in ZDPL’s SFIC as noted above.

22. The factors that are the foundations of ZDPL’s claims are summarised below:

    1.    His Dinka ethnicity;

    2.    His imputed political opinion on account of his Dinka ethnicity;

    3.    His membership of particular social groups:

    (i)Persons with an alcohol addiction;

    (ii)Persons with mental health issues;

23. Considering each of these in turn (except where expressly conflated for the purposes of evaluation):

    (a)Dinka Ethnicity – race and imputed political opinion: The BTI 2022 Country Report South Sudan indicates that the ethnic violence described in the 2016 DFAT Report[85] continues to occur along tribal lines, indicating that Dinkas can face discrimination and violence in certain regions of South Sudan. The February 2022 Amnesty International report ’10 Human Rights Priorities for South Sudan’ states that according to the United Nations this violence declined in 2021.

    (b)Alcohol Addition: While some of the evidence suggests a strong cultural bias against alcohol consumption and addiction, this is not well-established by the secondary materials.

    (c)Mental Ill-Health: As set out in ZDPL’s SFIC and supported by the February 2022 Amnesty International report ’10 Human Rights Priorities for South Sudan’, South Sudan’s health system is weak, fragmented and underfunded by African standards, especially in terms of mental health and psychosocial support services.

    [85]

    ZDPL’s ability to apply for a protection visa.

24. It is often the case that a non-citizen whose visa has been cancelled because of criminal offending may have difficulties to obtain a protection visa because they may be considered to be a danger to the community, having been convicted by final judgment of a serious crime.

25. In that situation, if the Tribunal applies some degree of analysis to the non-citizen’s protection claims and finds that there is probably some substance to them, or that the non-citizen would face a risk of harm or hardship that does not entitle them to protection. The Tribunal may allocate some weight in favour of setting aside the cancellation of the visa. This allocation of weight could be what tips the balance in favour of revocation when all the relevant considerations are weighed.

26. On the other hand, should the Tribunal decline to assess the non-citizen’s protection claims because they can apply for a protection visa, presumably no weight would be allocated in favour of revocation. The non-citizen’s prospective action of applying for a protection visa cannot be given weight because there is no weighing attribution in that process.

27. A non-citizen must establish that they are owed protection and that they are not disqualified by any of the exclusions. If an exclusion applies, it is not balanced against their protection claims and an applicant is simply disqualified.

28. Accordingly, where a non-citizen is unlikely to obtain a protection visa. The Tribunal should engage with any protection claims that are made or arise on the evidence with a view to allocating appropriate weight to this Other Consideration to make the correct or preferable decision. This is what the Tribunal has done in this matter and has also considered that a reasonably possible outcome of a decision to affirm the delegate’s decision to cancel ZDPL’s visa would be indefinite immigration detention for ZDPL.

29. The Tribunal accepts that the South Sudan security situation is extremely unstable. The Tribunal accepts that ZDPL would face the risk of harm and hardship due to generalised violence and instability there, and consequently finds substantive weight in favour of setting aside of the delegate’s decision to cancel ZDPL’s visa.  

    Tribunal Finding: Other Consideration (a): Legal consequences of the decision.

30. The Tribunal finds that this Other Consideration (a) weighs substantively in favour of setting aside the cancellation of ZDPL’s visa.

    Other Consideration (b): Extent of impediments if removed.

31. 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.

    Initial Comments

32. The Tribunal notes that while the information cited in ZDPL’s SFIC is relevant to this Other Consideration as well as Other Consideration (a), it will seek to avoid any conflation between Other Consideration (a) and Other Consideration (b). The Direction works by isolating specific elements for analysis, consideration and subsequent weighing.

33. Other Consideration (b), in contrast to Other Consideration (a), focuses on ZDPL’s circumstances. External information about general social, economic and healthcare is useful, but not decisive, in addressing Other Consideration (b).

    Tribunal’s Consideration

34. This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that ZDPL, if removed from Australia to South Sudan, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors below into account.

    Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health

35. ZDPL is 34 years old.

36. The evidence tendered to the Tribunal, especially Dr Dilati’s report, suggests that ZDPL has mental health issues potentially arising from traumatic stress and experiences he suffered in South Sudan and Uganda as an infant and child.

37. The range, extent and causation of these issues is addressed above.

38. The Tribunal concludes, after looking holistically at the available evidence of ZDPL’s general state of health in the past and currently, that he likely suffers from chronic mental health issues that would currently impede his ability to re-settle and maintain basic living standards in South Sudan.

39. Acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[86], the Tribunal considers that Mr Singh faces a risk that the stresses and emotional hardships that the Tribunal acknowledges throughout its consideration of the impediment he would likely face if removed to South Sudan may cause his mental health issues to worsen, especially if untreated, and place him at significant risk of personal harm.

    [86] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126

40. The dynamic risk management factors identified above are unlikely to be present in South Sudan.

41. There was no evidence of physical ill-health before the Tribunal.

    Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers

42. The Tribunal considers that ZDPL, based on his oral testimony and that of his siblings, would face significant linguistic and cultural difficulties if he returned to South Sudan.

43. The reason for this lies in his formative years when his older siblings fled with him to a Ugandan refugee camp. 

    Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country

44. The Tribunal considers that, in terms of the Respondent’s submission, ZDPL would at best have access to same level of social and economic support as other South Sudanese citizens and more likely less as he appears to lack a family network or support structure in South Sudan.

45. The greater concern is with the infrastructural and systemic paucities of South Sudan’s medical and mental health services and the resulting impediment these would impose on ZDPL to the extent he suffers from mental health issues.

    Tribunal’s analysis and consideration

1. The Tribunal has considered the extent of any impediments that ZDPL, if removed from Australia to South Sudan, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).

   Tribunal finding: Other Consideration (b) Extent of impediments if removed.

2. Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b). The Tribunal finds that ZDPL would probably face substantial and sustained emotional, practical, financial and medical hardship if he was returned to South Sudan.

3. This hardship would be aggravated by the absence of significant relationships with anyone in South Sudan and the likely difficulties he would face in re-establishing himself there.

4. This consideration carries significant weight in favour of setting aside the delegate’s decision under review.

   Other Consideration (c): Impact on victims

5. 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.

   Tribunal finding: Other Consideration (c): Impact on victims.

6. There is no relevant evidence before the Tribunal addressing the impact of a decision under s 501 on members of the Australian community, including any victim of ZDPL’s offending.

7. The Tribunal finds that Other consideration (c) carries a neutral weight.

   Other consideration (d) Impact on Australian business interests if ZDPL cannot remain here.

8. Paragraph 9.4 (1) of the Direction states:

   Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. (emphasis added)

9. This compels an assessment of ZDPL’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.

10. Beyond ZDPL’s submission that he has the work experience and desire to continue to contribute to the Australian economy, which is particularly significant during a period of generalised skill shortages, there is no evidence before the Tribunal that shows that ZDPL’s removal would significantly compromise the delivery of a major project, or delivery of an important service in Australia, especially given the period he has been in prison or detention.

    Tribunal finding: Other Consideration (d): the impact on Australian business interests if ZDPL cannot remain here.

11. The Tribunal finds that paragraph 9.4 is not relevant and has neutral weight.

    FINDINGS: OTHER CONSIDERATIONS

12. The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    Other Consideration (a) – legal consequences of the decision:

    ·This consideration weighs substantively in favour of setting aside the delegate’s decision under review.

    Other Consideration (b) - extent of impediments if removed:

    ·This consideration carries significant weight in favour of setting aside the delegate’s decision under review.

    Other Consideration (c) - impact on victims:

    ·This consideration is neutral.

    Other Consideration (d) – Impacts on Australian business interests :

    ·This consideration is neutral.

    ADDITIONAL CONSIDERATIONS

13. The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[87]

    [87] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.

14. There are no additional considerations before the Tribunal.

    CONCLUSION

15. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, ZDPL does not pass the character test.

16. In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.

17. The Tribunal find as follows:

    Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:

    ·This consideration weighs significantly in favour of affirming the delegate’s decision to not revoke cancellation of ZDPL’s visa.

    Primary Consideration 2 - whether the conduct engaged in constituted family violence:

    ·This consideration is neutral.

    Primary Consideration 3 - the strength, nature and duration of ties to Australia:

    ·This consideration weighs moderately in favour of setting aside the delegate’s decision to cancel ZDPL’s visa.

    Primary Consideration 4 - best interests of minor children in Australia affected by the decision:

    ·This consideration is neutral.

    Primary Consideration 5 – expectations of the Australian Community:

    ·           This consideration weighs moderately in favour of affirming the delegate’s decision not to revoke the cancellation of ZDPL’s visa.

18. The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.

19. A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance setting aside the delegate’s decision to not revoke the cancellation of ZDPL’s visa.

    DECISION

    Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 July 2023 and substitutes it with a decision to revoke the mandatory cancellation of Applicant’s visa.  

I certify that the preceding two hundred and eight     paragraphs (208) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...................[SGD]................

Associate

Dated: 14 November 2023

Date of hearing: Tuesday 19 and Wednesday 20 of September 2023

Legal Practitioner for the Applicant: Ms Blaker, Legal Aid NSW

Legal Practitioner for the Respondent: Ms Donaghy (HWL Ebsworths)

ANNEXURE A

EXHIBIT REGISTER

File No      2023/5181
Between     ZDPL (Applicant)
Represented by Legal Aid New South Wales: Florence Cruz Montalvo

AndMINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS (Respondent)

Represented by HWL Ebsworth: Claire Campbell

Heard        Tuesday 19 and Wednesday 20 of September 2023
Location     MS Teams
Before       Member Cosgrave
Associate   Nicholas S.
84^th Day:     9 October 2023

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	(Updated G-Documents 2023_5181(1101644113.1).pdf) Updated G-Documents (G1 to G12) 108 Pages	R	Various	21 August 2023
Applicant’s Submissions
A1	(20230818 Applicant SOFIC.pdf) Applicant’s Statement of Facts, Issues, and Contentions. 25 Pages	A	Various	21 August 2023
A2	(20230818 ZDPL Applicant Evidence Bundle.pdf) Applicant’s Evidence Bundle (A1 to A10) 133 Pages	A	Various	21 August 2023
A3	(20230914 Applicant's Reply.pdf) 5 Pages	A	Undated	14 September 2023
A4	(20230914 ZDPL Applicant's Evidence in Reply Bundle.pdf) (AR1 to AR6) 88 Pages.	A	Various	14 September 2023
Respondent’s Submissions
R1	ZDPL - Respondent's Statement of Facts Issues and Contentions (1102742403.2)  15 Pages	R	Various	4 September 2023
R2	Evidence Bundle (1102815283.2).pdf 92 Pages	R	Various	4 September 2023

ANNEXURE B

Court	Date	Offence	Result
Downing Centre District Court	22/02/2023	Common assault-T2	ORDER CONFIRMED IMPRISONMENT: 6 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2023
Downing Centre District Court	22/02/2023	Armed w/i commit indictable offence-T1	ORDER VARIED IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD WITH CONDITIONS : 6 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2023 - SUBJECT TO SUPERVISION BY COMMUNITY CORRECTIONS
Downing Centre District Court	22/02/2023	Damage property by fire/exp >$15000-T1	ORDER VARIED IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD WITH CONDITIONS: 6 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2023 SUBJECT TO SUPERVISION BY COMMUNITY CORRECTIONS
Downing Centre District Court	22/02/2023	Damage property by fire/exp >$15000-T1	ORDER VARIED IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD WITH CONDITIONS: 6 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2023 SUBJECT TO SUPERVISION BY COMMUNITY CORRECTIONS
Burwood Local Court	01/11/2022	Common assault-T2	(CALL UP - BREACH) IMPRISONMENT: 6 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2023 SEVERITY APPEAL LODGED
Burwood Local Court	01/11/2022	Armed w/I commit indictable offence- T1	IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD: 13 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/09/2023 SEVERITY APPEAL LODGED
Burwood Local Court	01/11/2022	Damage property by fire/exp >$15000- T1	IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD: 13 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/09/2023 SEVERITY APPEAL LODGED
Burwood Local Court	01/11/2022	Damage property by fire/exp >$15000- T1	IMPRISONMENT: 18 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/02/2024 NON PAROLE PERIOD: 13 MONTHS COMMENCING 27/08/2022 CONCLUDING 26/09/2023 SEVERITY APPEAL LODGED
Burwood Local Court	01/11/2022	Custody of knife in public place - first offence	COMMUNITY CORRECTION ORDER: 30 MONTHS COMMENCING 01/11/2022 CONCLUDING 30/04/2025 SUPERVISION: 30 MONTHS COMMENCING 01/11/2022 CONCLUDING 30/04/2025 SUPERVISED BY COMMUNITY CORRECTIONS SERVICE ABSTENTION: 30 MONTHS COMMENCING 01/11/2022 CONCLUDING 30/04/2025
Bankstown Local Court	07/10/2021	Common assault-T2	CONDITIONAL RELEASE ORDER - CONVICTION:15 MONTHS COMMENCING 07/10/2021 CONCLUDING 06/01/2023
Bankstown Local Court	07/10/2021	Excluded person remain in vicinity of licensed premises	FINE: $1,200
Bankstown Local Court	07/04/2021	Use unregistered registrable Class A motor vehicle on road	FINE: $300
Bankstown Local Court	07/04/2021	Not comply P2 licence condition not display P plates	FINE: $50
Bankstown Local Court	07/04/2021	Drive with high range PCA - 1st off	FINE: $2,000 DISQUALIFICATION - DRIVER: MINIMUM DISQUALIFICATION PERIOD PARTICIPATION ALCOHOL INTERLOCK PROGRAM: MINIMUM INTERLOCK PERIOD
Bankstown Local Court	07/04/2021	Use uninsured motor vehicle	FINE: $300
Bankstown Local Court	07/04/2021	Use vehicle on road or road related area m/v tax not paid	FINE: $300
Bankstown Local Court	26/02/2021	Common assault (DV)-T2	FINE: $500
Ipswich Magistrates Court	28/06/2018	Contravene Police Banning Notice (on 09/11/2017)	CONVICTION RECORDED FINED: $200.00
Ipswich Magistrates Court	30/11/2017	Assault or obstruct police officer (on 09/11/2017)	NO CONVICTION RECORDED FINED: $300.00
Brisbane Magistrates Court	20/03/2015	Commit public nuisance (on 22/02/2015)	DISCHARGED

[63] Transcript, page 10, lines 28-45