ZHRS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2918

ZHRS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2918 (12 September 2023)
Division:GENERAL DIVISION
File Number: 2023/4411
Re:ZHRS
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:12 September 2023
Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant's visa.
.............................[SGD]...........................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 200 Refugee (Permanent) visa – Migration Act 1958 (Cth) s 501CA(4) – South Sudan – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 99 – primary and other considerations – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Nationality Act 2011 (South Sudan)
Cases
1910307 (Refugee) [2019] AATA 4673
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43
AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114
Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 357
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esber v Commonwealth of Australia (1992) 174 CLR 430
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133
Hughes v R [2017] HCA 20
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194
Lewer v Minister for Home Affairs [2023] FCAFC 121
LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571
LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW 20 by his Litigation Representative BFW20A [2020] FCAFC 121
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
R v Olbrich (1999) 199 CLR 270
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Ryan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 701
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3502
WAD230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813
XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1386
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (No 02/2013, May 2013) <December-2013-Suicide-and-self-harm-in-the-Immigration-Detention-Network.pdf (ombudsman.gov.au)>
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
Li, Pamela, ‘Formative Years – Why are they Important in Child Development’ (Web Page, 14 June 2023) < Olaniyi, ‘Parenting: The Formative Years Are Crucial’, HealthNews (Web Page, 30 November 2022) < formative years UNICEF’s work on measuring early childhood development’, UNICEF (Online Document, 22 September 2019) < FOR DECISION
Senior Member C. J. Furnell
12 September 2023

In this proceeding, the issue is whether a September 2021 decision to cancel the applicant’s Class XB Subclass 200 Refugee (Permanent) visa (the “visa cancellation decision”)[1] ought to be revoked.
[1] G29, pp.358-362. In this regard, references to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act.
The cancellation of the applicant’s visa was mandatory because, under s 501(3A) of the Migration Act 1958 (the “Act”):
(a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record;[2] and
(b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[3]
[2] As defined in the Act, s 501(7). See in particular Act, s 501(7)(c).
[3] G33, p.371.
In September 2021, the applicant made representations about revocation of the visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[4]
[4] Act, s 501CA(3). See G11, pp.120-124.
As a result, the respondent was required to[5] revoke that decision if satisfied that the applicant passed the Act’s character test or that there was another reason why the decision should be revoked.[6]
[5] Although the relevant provision states that the decision-maker may revoke the cancellation if there is another reason to do so, this does not involve a separate exercise of a discretion but rather is part of a single balancing exercise. See BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 at [16]; Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 at [27]; Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [56] per Derrington J but cf O’Sullivan J at [82] and [91]-[96]; Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27]; Minister for Home Affairs v Buadromo [2018] FCAFC 151 (Besanko, Barker and Bromwich JJ, 14 September 2018), at [21], referring to Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 (North ACJ, 28 September, 2016) and Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548, but contrasting the emphasis Gageler and Gordon JJ placed on the word ‘may’ in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [74]. See also the outline of cases relevant to the question of whether there is a residual discretion in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 at [71].
[6] Act, s 501CA(4).
A delegate of the respondent was not, however, satisfied of either of those things. In June 2023, the delegate decided not to revoke the visa cancellation decision.[7]
[7] G2, pp.11-14.
The applicant has asked the Tribunal to review the delegate’s decision.[8]
[8] G1, pp.4-10.
The role of the Tribunal in conducting such a review requires that it stand in the decision-maker’s shoes to “do over again” that which was done by the decision-maker.[9] In doing so, it performs the same function, exercises the same power,[10] is subject to the same constraints and addresses the same question or questions[11] as the decision-maker.
[9] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[11] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
As such, as they were for the respondent’s delegate, the questions ultimately in issue in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
In answer to those questions and for the reasons which follow, I am not satisfied that the applicant passes the character test but I am satisfied that there is another reason why the visa cancellation decision should be revoked.
MATERIAL CONSIDERED
In undertaking its review of the June 2023 decision to refuse to revoke the visa cancellation decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[12]
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant, the mother of a now deceased former partner of the applicant (Mrs MIL), the applicant’s mother (Mrs AM), three friends of the applicant (Ms AF1, Ms AF2 and Mr AF3), the applicant’s current girlfriend (Ms AGF) and a work colleague of the applicant (Mr SM).
As for documentary material lodged with the Tribunal, it comprised:
(a)G documents of 426 pages lodged with the Tribunal by the respondent (Exhibit R1).[13]
(b)Supplementary documents of 603 pages lodged with the Tribunal by the respondent (Exhibit R2) (the “SG” documents).
(c)Statement of the applicant, signed and dated 2 August 2023 (Exhibit A1).
(d)Statement of Mrs MIL, unsigned and dated 18 August 2023 (Exhibit A2).
(e)Statement of Ms AGF, unsigned and dated 2 August 2023 (Exhibit A3).
(f)Statement of Ms AF2, unsigned and dated 2 August 2023 (Exhibit A4).
(g)Statement of Mr AF3, unsigned and dated 18 August 2023 (Exhibit A5).
(h)Statement of Mrs AM, signed and dated 18 August 2023 (Exhibit A6).[14]
(i)Statement of Ms AF1, signed and dated 1 August 2023 (Exhibit A7).
(j)Statement of Mr SM, signed and dated 16 August 2023 (Exhibit A8).
[13] Within the G documents were unsigned statements of third parties not called to give evidence, such as a statement of the applicant’s youngest brother (G15, p.217) and a statement of the mother of the applicant’s two youngest children (G16, pp.219-220). No probative value was attributed to these statements.
[14] Mrs AM’s statement was in English. She could not, however, read English. The statement was nevertheless accepted by the Tribunal as a statement after the interpreter engaged by the Tribunal had translated the statement to her and Mrs AM had confirmed it was accurate.
In addition, while not tendered, the Tribunal understands that the applicant seeks to rely on a signed statement dated 18 August 2023 made by a younger brother of the applicant, Mr SB.
The parties lodged submissions about that documentary material prior to the hearing.[15]
[15] See the respondent’s statement of facts, issues and contentions of 17 August 2023 (“R SFIC”) and the applicant’s statement of facts, issues and contentions of 2 August 2023 (“A SFIC”).
ASPECTS OF FACTUAL CONTEXT
The applicant is 32 years old having been born in Khartoum, Sudan in April 1991. His ethnicity is Dinka. His parents were born in what is now South Sudan. When the applicant was around 8 years his father disappeared; “lost… in the war”. His mother subsequently remarried. She had 11 children from her two marriages, four daughters and seven sons.
Aged around 11 (in around 2002), the applicant fled to Egypt with his mother, stepfather, three younger brothers and his older brother. His time there was not easy.[16] He suffered violence from his stepfather as well as from some Egyptians.
[16] G13, p.193.
One of the applicant’s sisters passed away in 2013. Two still live in Sudan, while one lives in Cairo. As far as the applicant knows, he has no other family overseas.
In December 2005, when he was 14 and unable to speak English, the applicant travelled to Australia with his mother, stepfather, three brothers and three half-brothers. He was on a refugee visa which had been applied for when he was not in the Act’s migration zone.
For the first few years after arriving in Australia the applicant lived with his mother and stepfather. His stepfather was violent towards the applicant, culminating in the applicant, in 2007 or 2008 and aged around 16 or 17, being placed in a youth refuge.[17] He was there for six to seven months and then, while still at school, he started living with a friend.
[17] G24, p.314.
Soon thereafter, the applicant stopped going to school and, in his words, started hanging around the wrong people, getting into trouble with the law, drinking and smoking weed.
In June 2010, the applicant commenced what the applicant characterised as an on and off relationship with Ms LM. He moved in with Ms LM when she became pregnant with their first child. That child, a daughter (Ms D1), was born in April 2011.
The applicant says that in 2011, 2012 and 2013 he was a student at various tertiary institutions, attending courses in furniture making, warehousing and written English. He says he commenced a Certificate Course in Civil Construction at TAFE in 2014.
In December 2012, the applicant’s and Ms LM’s second child was born, a son (Mr S1).
The applicant’s relationship with Ms LM was fractious as a result, according to the applicant, of difficulties with her family members. He obtained his own public housing after Mr S1 was born (albeit that before Mr S1 was born the applicant had, at times, been living separately from Ms LM). He says he then lived between his house and the house where Ms LM, Ms D1 and Mr S1 lived.
He says he worked on and off as a labourer for a bricklayer in constructing, scaffolding and in warehouses but in May 2015 he apparently told a psychologist that since leaving school he had had no paid work.[18] In between 2015 and 2017, the applicant stated that he worked full time in construction for a building company,[19] albeit that in oral evidence the applicant said he worked for the company for around six months.[20]
[18] SG5, p.344.
[19] G13, p.198.
[20] The applicant was imprisoned for around three months in 2015.
With money from his work, the applicant said he helped paint Ms D1’s bedroom pink and bought Mr S1 a bed, play-station and a TV.
The applicant says he started using methamphetamine in late 2016. This, however, is inconsistent with what he apparently told a psychologist in May 2015. He is reported to have then said that his use of methamphetamine had started approximately one week before he committed (and had played a significant role in him committing) a burglary and theft on a store in February 2015.[21]
[21] SG5, p.343.
In late 2017, the applicant suffered a hand injury which required surgery. The injury was the result of being stabbed by Ms LM’s brother, an injury which became infected after, according to the applicant, police stood on his hand when arresting him. He says that, as a result, he lost his job and his relationship with Ms LM “went downhill”. Apparently, around this time, Ms LM suggested to the applicant that, if he loved their children, he would stay away from them.

In 2018, the applicant says he worked for around three months doing blinds and windows at a factory outlet.
Also in 2018, the applicant met his second partner, Ms SD. According to the applicant, she helped him to stop drinking and get his life back on track.
In early 2019, the applicant started to communicate with Ms LM again and spend time with his children. The applicant said it “was great to be with the kids again.”[22]
[22] G13, p.196.
In June 2019, Ms LM committed suicide.[23]
[23] G13, p.198.
After Ms LM died, the applicant stated that he did not work and “started” using drugs[24] (noting that it is apparent that his use of drugs in fact started well before 2019).[25]
[24] G13, p.197.
[25] G27, p.350, where the applicant’s history recounted in a psychologist’s report refers to the use of methamphetamine in 2017. As noted earlier, to another psychologist the applicant reported use of methamphetamine in early 2015.
In around September 2019, shortly after the applicant was released from prison, Ms SD left the applicant to live with her mother in Queensland. Around two months later, in November 2019, she gave birth to the applicant’s third child, a son (Mr S2).
The applicant stated that at this time he was not coping, his mental health had deteriorated and he again turned to alcohol and drugs.[26]
[26] G13, p.197.
In July 2021, Ms SD gave birth to the applicant’s fourth child, a son (Mr S3).
The applicant has had several stints in prison. He was imprisoned or on remand from February to May 2015, July to September 2019, February 2020 to September 2020 and March 2021 to May 2022. In May 2022, the applicant was released from prison and placed in immigration detention. In December 2022, he was released from detention but was re-detained in March 2023.
The applicant has been diagnosed by a psychologist as suffering from post-traumatic stress disorder (PTSD), adjustment disorder, persistent depressive disorder and substance use disorder (said, in November 2022, to be in remission).[27] He is currently taking medication for anxiety and depression.[28]
[27] G27, pp.347-354 (report of Ms Cidoni dated 11 November 2022).
[28] G21, p.232; G27, p.348.
DOES APPLICANT PASS THE CHARACTER TEST?
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[29] The applicant has such a record. In July 2021, he was sentenced to an aggregate term of imprisonment of two years[30] in respect of his conviction for “reckless conduct endanger serious injury, theft of a motor vehicle and intentionally damage property.”
[29] Act, s 501(6)(a).
[30] Act, s 501(7)(c). See G8, p.72. In this regard, under s 5AB of the Act, the provisions of it “apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.” Hence, s 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more “whether the sentence is imposed for a single offence or for 2 or more offences” (see the example set out at the end of s 5AB).
Accordingly, I am not satisfied that the applicant passes the character test.
Given the failure to pass that test (a failure which the applicant accepts[31]), the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.
[31] A SFIC [71].
IS THERE ANOTHER REASON WHY THE VISA CANCELLATION DECISION SHOULD BE REVOKED?
As is clear from my decision in this proceeding, I am satisfied that there is such a reason.
That state of satisfaction was arrived at in the performance of a function or the exercise of a power of the Tribunal under the Act. As such, the Tribunal was required to comply with any direction given under s 499 of the Act about the performance of such functions or the exercise of such powers.[32]
[32] Act, s 499(2A).
A number of directions have been given under s 499. The direction that applied at the time of the decision the subject of review is Direction 99[33] and, consistently with the submissions of the parties, it is the direction with which the Tribunal is bound to comply in this proceeding.
[33] Direction 99 being an instrument made on 23 January 2023, which commenced on 3 March 2023 and entitled “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”.
As there has been a failure to pass the Act’s character test, compliance with Direction 99 requires that the Tribunal consider whether there is another reason to revoke the visa cancellation decision “given the specific circumstances of the case”.[34] The direction is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[35]
[34] Direction 99, cl 5.1(3).
[35] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
The Tribunal’s consideration is to be undertaken informed by,[36] and in the context of a framework comprised of,[37] certain principles.
[36] Direction 99, cl 6.
[37] Direction 99, cl 5.2.
Those principles are set out in cl 5.2 of Direction 99. They are as follows:
“5.2 Principles
(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 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 non-citizens 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 8.5(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.”
I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 99 to take into account in deciding whether to revoke the visa cancellation decision.[38]
[38] Direction 99, cl 6.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 99. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and expectations of the Australian community.[39]
[39] Direction 99, cl 8.
The other considerations include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[40]
[40] Direction 99, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[41] and one or more primary considerations may outweigh other primary considerations.[42]
[41] Direction 99, cl 7(2).
[42] Direction 99, cl 7(3).
While primary considerations should generally be afforded greater weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[43] However, for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations”.[44]
[43] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
[44] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[45]
PROTECTION OF THE AUSTRALIAN COMMUNITY[46]
[45] Direction 99, cl 7(1).
[46] Direction 99, cl 8.1.
I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[47]
[47] Direction 99, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[48]
Nature and seriousness of conduct[49]
[48] Direction 99, cl 8.1(2).
[49] Direction 99, cl 8.1.1.
As for the nature of the applicant’s conduct to date, it is reflected in multiple convictions and proven charges.[50]
[50] See Australian Criminal Intelligence Commission check results report of 29 March 2023: G4, pp.49-52.
On 16 July 2010, the applicant was found guilty of theft from shop and failure to answer bail.[51] The applicant’s evidence was to the effect that the theft was of scissors to be used to steal cars.
[51] This was a children’s court proceeding and is considered as an element of the applicant’s conduct to date rather than as a conviction: see LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571 at [14].
On 17 January 2011, the applicant was convicted of state false name when requested, theft of a motor vehicle and exceeding prescribed blood alcohol content within three hours of driving. The applicant’s evidence was to the effect that he did not know the car was stolen but did recall he was drunk when driving. The conviction appears to relate to conduct engaged in by the applicant in July and December 2009.[52]
[52] SG, pp.320-323.
On 17 March 2011, the applicant was convicted of armed robbery and sentenced to a community based order, one requiring that the applicant undergo assessment and treatment for alcohol and drug addiction, and submit to psychological or psychiatric assessment and treatment as directed.[53]
[53] SG5, pp.396-403.
A Victoria police summary of evidence relating to this offending suggests it related to an incident in January 2010 when, according to the applicant, he would have been aged around 18.[54] From CCTV footage, it is said that the applicant could be seen “…producing a glass bottle of alcohol which he then holds in his right hand like a club and with his left hand points at the cash register. The victim was in fear of being struck by the glass bottle when the accused makes the demand for the victim to open the cash register.”[55] In his evidence, the applicant stated that he was drunk and was waiting for a train with friends. One friend went into a store. After a while he went into the store and saw his friend was being choked by the shopkeeper. He then threatened the shopkeeper with a bottle of alcohol as his friend stole cash. The applicant said he was angry with what had occurred; it was not planned and he and Ms LM had a baby coming.
[54] G24, p.314.
[55] G7, p.70.
I do not accept the applicant’s description of what transpired as accurate. In sentencing the applicant, the presiding judge adopted, in essence, the description found in the police summary of evidence. The applicant was said by his Honour to have gone into a store with two others and to have demanded cigarettes and money and that the shopkeeper open the cash register. The applicant was then said to have taken notes and coins from the till.[56]
[56] SG5, p.379.
On 17 August 2012, the applicant was convicted of failure to answer bail and theft of a motor vehicle. The applicant’s evidence was to the effect that he had “been kicked out of” Ms LM’s house, he and his friends were being stupid, he was “couch surfing” and did not answer bail because of inadequate sleep.
On 22 February 2013, the applicant was convicted of recklessly causing injury, failure to answer bail (two charges) and driving whilst disqualified. The applicant’s evidence was to the effect that he suspects that this offending was committed by a person who had used his identity.[57]
[57] Although on his behalf it was suggested that the offending involved was not serious given that the penalty imposed, being a fine of $1000, was not significant: G13, p.199.
On 21 June 2013, the applicant was convicted of failure to comply with the 17 March 2011 community based order (and was sentenced to a community corrections order). The applicant’s evidence was to the effect that he contravened the community based order by sleeping in a few times.
On 14 June 2014, the applicant was convicted of shop theft and failure to answer bail (two charges). The applicant’s evidence was again to the effect that he suspects that this offending was committed by a person who had used his identity.
On 28 May 2015, the applicant was convicted of burglary, unlawful assault (two charges), theft from shop and failure to answer bail, and was sentenced to a term of imprisonment for 96 days and to a community corrections order. In terms of the burglary, the applicant’s evidence was to the effect that, while he did not steal anything, he was drunk and “went nuts” after a shopkeeper refused to serve him because he was black.
As for the assaults, the applicant suggested, correctly, that they related to a December 2013 incident involving Ms LM (albeit that it had been submitted on the applicant’s behalf that he had not been convicted of offences involving family violence). This incident is also referred to later in the context of the family violence consideration.[58]
[58] Regard may be had (or, indeed, may be required to be had) in each of multiple considerations to particular material of relevance to each consideration: Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [41]; XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1386 at [123]. There is overlap between the various considerations: Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [23].
A Victoria police incident report at the time[59] states that the applicant and Ms LM had been in an “on and off” relationship for the last two years and that an intervention order had been in place from 26 June 2012 to 31 July 2012. The report went on to state that the applicant had thrown a “bag towards ..[Ms LM] and hitting her…, grabbed …[Ms LM’s] arms and tried to grab down at her shirt causing redness and scratches to her left shoulder area…. at this stage the two young children were present and witnessed the assault... further …[Ms LM] asked the …[applicant] to leave but he refused and then spat towards …[Ms LM], whilst she was holding her young son, the …[applicant] then punched …[Ms LM] to the back of the head causing it to swell up and feel pain. ...[Ms LM] stated she wanted an IVO against the …[applicant] and she felt scared of him and for the safety of the two children... police have great concerns for the safety and welfare of …[Ms LM] and the children.”[60]
[59] SG, p.533.
[60] SG, p.533.
The applicant’s description of what transpired differs markedly from that reflected in the incident report. He says he “lost [his] cool” in December 2013 when he discovered another man next to his children. He said he tried to chase the man but, when Ms LM endeavoured to restrain him, he pushed her away with the back of his hand. He also says that he twisted Ms LM’s hand to retrieve a knife which she was using to try and stab him.
I do not accept the applicant’s description as accurate. It is clearly not consistent with the police incident report. Moreover, it is not consistent with what the applicant is reported as having told a psychologist in May 2015. He then said that “I'd been drinking and when I went to her place there was a guy in bed with her. I didn't know him. I told him to leave. I let him walk. After he walked I lost it at [LM]. She was mouthing off at me. I sort of blacked out because I was so angry.”[61]
[61] SG5, p.344.
On 24 August 2015, the applicant was convicted of breach of the 21 June 2013 community corrections order. The applicant was not taken to this conviction at the hearing. On the material before me, however, it appears that there was a mental health treatment and rehabilitation component to the order and that the applicant had completed that component.[62]
[62] SG5, p.332.
On 22 June 2017, the applicant was convicted of theft from shop. At the hearing, the applicant could not recall the circumstances that led to this conviction.
On 10 February 2019, the applicant was convicted of theft from shop and committing an indictable offence whilst on bail. The applicant was not taken to these convictions at the hearing.
On 9 September 2019, the applicant was convicted of dealing with property suspected to be the proceeds of crime, exceeding prescribed blood alcohol content within three hours of driving, failure to answer bail (two charges), assaulting an emergency worker while on duty, without authorisation or excuse entering a private place, recklessly causing injury and unlawful assault, and was sentenced to a term of imprisonment of 73 days and a community corrections order.

The applicant’s evidence was to the effect that at the time of this offending he had been drinking heavily.[63] At the hearing, he stated that two separate incidents were involved but then he appeared to describe three incidents. The first involved a fight with “random people” in the city around two weeks after he had moved away from Ms LM. The second (which involved assaulting an emergency worker) occurred in 2017 when he was arrested after being stabbed by Ms LM’s brother.
[63] G13, p.199.
The third incident is said to have occurred in April 2019 and resulted in the issue in October 2019 of a final personal intervention safety order against the applicant. In a Victoria police incident report, it is described as having involved a verbal argument which became physical. The applicant is said to have struck a person multiple times with his fists and then twice struck the person over the head with a pot plant. The victim is said to have suffered soft tissue injuries and lacerations across his right eyebrow and pate of his head.[64]
[64] SG, pp.579-580.
In his evidence, the applicant sought to throw a different light on what had transpired. He says a neighbour of Ms LM had been rude to Ms LM after she had asked the neighbour to drive more safely in the court in which she lived. The neighbour had then asked to speak to the applicant. The applicant said a fight had occurred only after he had tried to be nice to the neighbour.
On 27 July 2021, the applicant was convicted of a breach of the 9 September 2019 community corrections order, drive whilst disqualified, assaulting emergency worker whilst on duty, resisting emergency worker whilst on duty, theft of a motor vehicle, reckless conduct endangering serious injury, intentionally damage property, and sentenced to an aggregate term of imprisonment of two years plus concurrent terms of imprisonment of one, three and three months.
This offending related to an incident in February 2020 which involved the applicant driving a stolen vehicle, at speed, into a police garage. Doing so was characterised by the sentencing magistrate as a serious example of the type of offending involved, one which occasioned the use of a vehicle as a lethal weapon.[65] As the garage door was closed at the time, the applicant could not have known whether police were in the garage at the time.
[65] G5, p.58.
On behalf of the applicant, a number of circumstances personal to the applicant were identified as having led to his February 2020 offending. It was submitted that this offending “…followed the suicide of his former partner and mother to his children about five months earlier. [The applicant’s]… intent in his actions was to kill himself. He did not intend to harm anyone else. His poor state of mental health a significant contributing factor.”[66] Ms Gina Cidoni, psychologist, opined that this offending was the culmination of the applicant having suffered a major depressive episode after his release from prison in 2019, an episode triggered by untreated mental illness and exposure to intense stressors.[67]
[66] A SFIC [71].
[67] G2, p.23; G27, p.352.
I make three comments in response to that submission.
First, identifying circumstances personal to a person that may have led to particular offending might be of relevance when assessing moral culpability or the risk of recidivism. As I see it, however, a consideration of such circumstances is not relevant when assessing the seriousness of the person’s offending in the context of an overarching consideration concerned with community protection and a requirement to keep in mind a commitment to that protection.
Second, the submission speaks only to his February 2020 offending and says nothing about his other offending.
Third, I accept that at the time of the February 2020 offending the applicant was mentally disturbed. His evidence, which I accept, is that he wanted to kill himself and, by ramming the police garage, was seeking to have the police shoot him.[68] However, the applicant’s mental health issues were not the only things in play at the time. Indeed, the submission ignores other, potentially related, factors, such as the applicant’s use of substances such as alcohol and illicit drugs (the relevance of which is acknowledged on behalf of the applicant).[69] In this regard, the applicant’s illicit drug use (as well as his use of alcohol) increased in the lead up to the relevant offending.[70] Police at the time of the incident characterised the applicant “as extremely drug affected.”[71]
[68] G13, p.197.
[69] A SFIC [78], where it is said that “…regard should be had to the significant role of his psychological state and the role of drugs and alcohol on his behaviour and decision-making capabilities.”
[70] G23, p.251.
[71] SG, p.516.
I note that the applicant’s evidence challenged, in effect, essential facts underlying certain of his convictions. Those facts were not immune from challenge given that neither the relevant offences nor the sentences imposed in relation to them constituted a foundation for the Tribunal’s jurisdiction in this proceeding.[72] Nevertheless, given the probative value of each conviction, a heavy burden would need to be met to challenge, successfully, a fact underlying the conviction.[73] That burden has not been met in a context where, given the effluxion of time and the applicant’s acknowledged abuse of alcohol and illicit drugs, the applicant’s evidence was understandably somewhat vague.
[72] HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77]. See the discussion of that case in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72]. See also XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813 at [17] and [19] in relation to findings concerning sentences.
[73] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 per Bromberg J at first instance at [78] cited in Minister for Home Affairs v Sharma [2019] FCA 597 at [20]. See also R v Olbrich (1999) 199 CLR 270 at [01] where it is said that, in passing sentence, “…the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.”
In addition to the convictions and proven charges just mentioned, there is material before me probative of the applicant having engaged in conduct which, under Direction 99, ought to be regarded as very serious. In a May 2023 submission, it is said that the applicant’s “good conduct at [location] Prison in the latter phase of his sentence, and in immigration detention augur well for his return to the community.”[74] Not mentioned is the applicant’s conduct in prison prior to his transfer to that prison. In various Corrections Victoria incident reports, the applicant is said to have, amongst other things, fought with fellow prisoners.[75] To the delegate who decided not to revoke the visa cancellation decision it was submitted that no weight ought to be attributed to those reports on the basis that the allegations in them had not been tested in court.[76] Like the delegate, I reject that submission. First, some of the fighting was admitted by the applicant.[77] Further, the information in the reports is from what I consider to be an independent and authoritative source so that, consistent with Direction 99, “appropriate weight” is to be given to that information.[78] Third, like police reports, as I see it, the reports here in question are probative of, and can and do constitute a logical basis for, a finding that the applicant engaged in conduct while in prison that, in accordance with Direction 99, may properly be regarded as very serious.[79]
[74] G27, p.331.
[75] In 2015 at G10, pp.101-102; 115-116; in 2019 at G10, pp.103-104; in May 2021 at G10, pp.93-94; 117-118.
[76] G2, p.27.
[77] G2, pp.26-27.
[78] Direction 99, cl 7(1).
[79] Lewer v Minister for Home Affairs [2023] FCAFC 121 at [59]-[74].
In any event, the applicant concedes, rightly, that he has been convicted of offences that are very serious.[80] Such a characterisation of at least certain of the applicant’s conduct is consistent with the outcome of an assessment made in light of the factors to which I am required to have regard in the context of this consideration.
[80] A SFIC [72].
I turn now to a consideration of those factors.
Without limiting the range of conduct that may be considered very serious, viewed very seriously by the Australian Government and the Australian community are violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence[81]
[81] Direction 99, cl 8.1.1(1)(a).
A finding that at least some of the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 99 to have. As is apparent from the description earlier of that offending, it involved crimes of violence, such as assault, armed robbery and assault against emergency workers. Further, the applicant has also engaged in acts of family violence (an issue discussed in more detail later).
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against government representatives or officials in the performance of their duties[82]
[82] Direction 99, cl 8.1.1(1)(b).
The applicant’s offending has involved offending against government representatives or officials in the performance of their duties, noting his multiple convictions for assaulting an emergency worker whilst on duty and the circumstances of his conviction in July 2021 for reckless conduct endangering serious injury.
With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[83]
[83] Direction 99, cl 8.1.1(1)(c).
The applicant has been imprisoned on four occasions, from 24 February 2015 to 28 May 2015 (for burglary and theft), from 1 July 2019 to 9 September 2019 (pursuant to an aggregate sentence for a number of offences some of which are excepted from consideration in the context of this factor), from 25 February 2020 to 11 September 2020 (on remand) and from 8 March 2021 to May 2022 (mostly on remand but then pursuant to an aggregate sentence for a number of offences some of which are excepted from consideration in the context of this factor).[84]
[84] G6, pp.66-68.
While the sentences imposed were substantially less than the maximum penalty for the relevant offences, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[85] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[86]
[85] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[86] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
On behalf of the applicant, it was submitted that the presiding Magistrate in respect of the applicant’s July 2021 convictions must have considered the applicant to be a low risk, given that a non-parole period was set which ended shortly after sentencing.
I do not accept that submission. Much can influence the setting of a non-parole period. There is nothing in the material before me which suggests that the formulation of that period in respect of the July 2021 convictions was influenced by an assessment of recidivism risk as being low.
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[87]
[87] Direction 90, cl 8.1.1(1)(d).
On behalf of the applicant, with reference to his conduct in February 2020, it is submitted that the “[t]he seriousness of the conduct and the sentencing disposition, is an aberration in his history rather than representing a trend of increasing seriousness”.[88] While it is accepted that his February 2020 offending was more serious, it is submitted that the applicant was not on a trajectory of more serious offending at the time, but rather, events outside of his control had caused his mental health to sharply decline.[89]
[88] A SFIC [78].
[89] G23, p.257.
I do not accept these submissions. His offending was frequent and reflected a trend of increasing seriousness.
The applicant has been convicted or found guilty of an offence in nine of the 12 years from and including 2010 to and including 2021. While the applicant had engaged in very serious offending before February 2020, his offending at that time was, I find, his most serious. Indeed, in his oral evidence, the applicant said he had then done “something big”. Unlike his previous crimes of violence, his February 2020 conduct involved the use of what was characterised by the presiding Magistrate as a lethal weapon.
The February 2020 offending was not, however, as the applicant would have it, aberrant. While more serious, it did not differ markedly in nature from his prior, violent, offending. Moreover, the cause of the offending engaged in by the applicant in February 2020 does not affect its objective seriousness.
The cumulative effect of repeated offending[90]
[90] Direction 99, cl 8.1.1(1)(e).
The harm caused by the applicant’s offending is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[91]
[91] Direction 99, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[92]
[92] Direction 99, cl 8.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia[93]
[93] Direction 99, cl 8.1.1(1)(h).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should he commit further offences or engage in other serious conduct
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.[94]
[94] Direction 99, cl 8.1.2.
In assessing risk, I am required by Direction 99 to have regard, cumulatively, to:
(a)the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b)the likelihood of him doing so taking into account information and evidence on the risk of him re-offending and evidence of rehabilitation achieved.[95]
[95] Direction 99, cl 8.1.2(2).
I am also required to “…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…”. Indeed, the harm from some conduct may be so serious that any risk of its repetition is unacceptable.[96]
[96] Direction 99, cl 8.1.2(1).
As to the nature of harm to individual members of the Australian community, informed by the applicant’s history of offending, I accept the respondent’s submission that the “potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve physical, financial and psychological harm to members of the Australian community.”[97] Those at risk of such harm include shopkeepers and emergency workers. Should the risk crystallise, the resultant harm could be very significant.
[97] R SFIC [21].
As to the nature of harm to the Australian community were the applicant to engage in further criminal or other serious conduct, again informed by his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.
As for the likelihood of the applicant engaging in further criminal conduct, the applicant submits that the risk of him doing so is low[98] while the respondent submits that the risk is “real”.[99]
[98] A SFIC [86].
[99] R SFIC [28].
I am not satisfied that it is likely that he would again engage in criminal conduct should he be released into the community. The risk of him doing so is not, however, low. Nor do I characterise that risk as real given that at “…best it is a statement of the obvious but without any meaningful qualitative content.”[100] Instead, I find that there is a moderate risk of the applicant re-offending.
[100] WAD230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [62] per Gilmour J.
Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a significant risk of him doing so again.[101]
[101] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[102] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[103] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[104] Included within that “more” are facts about the relevant person’s circumstances, or about the nature and circumstances of the person’s past conduct, that rationally support the assessment of the person’s risk of engaging in the relevant conduct.[105]
[102] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[103] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.
[104] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
[105] In Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 at 574, it was said that 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 Splendido at [78], it was said that the “…nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.” In Hughes v R [2017] HCA 20 at [174], Nettle J (albeit in dissent) stated that “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

As I see it, facts concerning the applicant’s circumstances and the nature and circumstances of his past conduct[106] are supportive of an assessment of his risk of recidivism as being moderate
[106] The task of assessing risk involves the consideration of future possibilities which “proceeds by drawing inferences from known facts”, and is based on “reasonable conjecture within the parameters set by the historical facts”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [38]-[39].
We are not here dealing with a singular offence or conduct so aberrant that there ought to be no expectation of its repetition. In this regard, in a different but analogous context, the plurality in DMQ20 noted that criminal “…behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender—for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.”[107]
[107] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 at [141].
Here, as mentioned earlier, the applicant has been convicted or found guilty of an offence in nine of the 12 years from and including 2010 to and including 2021. Moreover, much of the applicant’s offending suggests a lack of respect for Australia’s law enforcement framework. As is apparent from the earlier outline of his offending, it has included multiple assaults on emergency workers, multiple failures to answer bail and breaches of multiple community based and corrections orders. While in November 2022, a psychologist stated that the applicant “does not present with a criminal mindset,”[108] irrespective of how he presents, the foregoing is indicative of some character trait or condition that renders the applicant prone to disregard lawful requirements. Indeed, I note that in May 2015 another psychologist opined in relation to the applicant that “...if he does not change his ways in the near future, he is at risk of developing a personality disorder - most probably an Antisocial Personality Disorder.”[109]
[108] G27, p.353.
[109] SG5, p.345.
As is reflected in the submission made on his behalf in relation to his February 2020 offending, to a large extent, the applicant’s past conduct has been attributed to his mental health issues. Insofar as there is a causal nexus between those issues and his offending, however, I am not satisfied that those issues are now addressed, or will be addressed if the applicant is free in the community, so as to ameliorate substantially the risk of recidivism.
On his behalf, it was submitted that “through intensive psychological treatment and medical intervention while serving his prison sentence, …[the applicant’s] mental health has significantly improved.”[110]
[110] A SFIC [71].
While in prison and detention since 2020 the applicant has been prescribed, and taken, medication for depression. Moreover, he would appear to have undertaken around 14 sessions with a psychologist while on remand[111] and had treatment in prison provided by Forensicare. These things alone are, however, unlikely to have addressed his mental health issues. In this regard, I note that:
(a)Rather than the submitted significant improvement in the applicant’s mental health and despite his anti-depressant medication, in May 2023 the applicant was said to have experienced a severe psychological decline as a result of him being re-detained in March 2023.[112]
(b)In November 2022, a psychologist, Ms Cidoni, opined that the applicant “should attend upon a psychiatrist and accept treatment and attend upon a psychologist for regular professional counselling. He should also attend for substance abuse treatment and testing.”[113] On the material before me it would not appear that all this recommended treatment is taking place (albeit that it is asserted that the applicant completed, online, drug and alcohol programs while in prison[114]).
(c)As for plans to obtain treatment if released into the community, little is specified as to the nature and extent of that treatment. The applicant says he will see an unidentified psychologist in the area where his mother lives (to the extent funded by Medicare) and that he will “be having drug and alcohol counselling.”[115] This is in a context where past offers of support and treatment for his mental health issues when free in the community have not been taken up by the applicant.[116] I note that it is not suggested that the applicant attended a psychologist or obtained any counselling in the December 2022 to March 2023 period in which he was free in the community.
(d)Prior to his incarceration in 2020, the applicant had some treatment for his mental health issues but it clearly did not prove to be effective in preventing him from offending. In this regard, I note that the applicant attended a psychologist in 2010, 2015 and 2019[117] and court ordered counselling in 2011. In the course of the hearing the applicant mentioned that he had also received mental health treatment in 2013.
[111] G13, p.200.
[112] G27, p.329.
[113] G27, p.354.
[114] A SFIC [24]; G13, p.200; G27, p.350.
[115] G13, p.201.
[116] In October 2022, it was said that the applicant had not previously taken up offers of mental health support under corrections orders as he did not feel ready: G23, p.257.
[117] Ms Cidoni states that the applicant attended Mr Cummins in 2010 and 2015 and her in 2019 and that he attended court-ordered counselling on three or four occasions in 2011: see G27, pp.348, 350.
As suggested earlier, factors other than the applicant’s mental health issues are of relevance to his offending. Indeed, according to the applicant, in addition to having mental health treatment, not reverting to drugs and alcohol was the key. On his behalf, it was submitted that the majority of his offending before the February 2020 incident was “… related to his alcohol and substance use,”[118] while in the lead-up to that incident the applicant’s illicit drug use (as well as his use of alcohol) increased.[119]
[118] A SFIC [79].
[119] G23, p.251.
I find that the applicant’s expressions of intent to not relapse into excessive alcohol consumption and illicit drug use to be sincere. In this regard, the applicant stated in October 2022 that he had not used drugs or alcohol since being remanded in February 2020, despite what he said was the widespread availability of illicit drugs in prison and detention.[120]
[120] G13, p.198-199.
Aspects of the applicant’s history, however, suggest that there is at least a moderate risk of him not being able to maintain sobriety if released into the community.
In this regard I note that:
(a)While the applicant says he completed five or six sessions with a drug and alcohol counsellor while on remand and in prison since 2020,[121] previous drug and alcohol counselling[122] had not been successful in preventing him from continuing to abuse alcohol and take illicit drugs.
(b)The applicant’s use of illicit drugs reflects a habit of long standing, starting with cannabis in around 2008 and graduating to methamphetamine in late 2016 (according to the applicant) but more likely in early 2015.[123]
(c)While not referred to by either the respondent or the applicant at the hearing, material before me suggests that the applicant might have been involved in the use of illicit substances while in prison in 2020. According to Corrections Victoria incident reports, in June 2020, there occurred an incident suggestive of the applicant taking medication provided to another inmate[124] and in July 2020, the applicant refused to take a urine test.[125]
(d)After the applicant was released from detention in December 2022, he was re-detained in March 2023. At the time of his re-detention he “…was at a pub early one morning… police arrived due to an altercation at the pub, and they unexpectedly questioned me and discovered a small amount of cannabis on me.”[126] At the hearing the applicant stated that on the evening in question he had only one drink and that the cannabis had been purchased for a friend (the latter part of that statement being corroborated by Mr AF3). Nevertheless, for a person professing an intention to stay away from alcohol and illicit drugs, the circumstances of that re-detention are troubling.
[121] G13, p.200.
[122] G13, p.195: the applicant acknowledges he saw a drug and alcohol counsellor in 2011. Moreover, he acknowledged that community based orders had him involved in “some drug and alcohol counselling”: G24, p.315.
[123] SG5, p.344.
[124] G10, p.99-100.
[125] G10, pp.89-90; 105-106.
[126] Exhibit A1 [31].
The applicant has a number of pro-social plans. If released into the community, he intends initially to live with his mother and brothers, obtain employment (possibly at a “meat factory” where some of his brothers work and noting material before the Tribunal suggestive of him being able to obtain employment with a scaffolding company[127]), seek support from Jesuit Social Services in engaging with a psychologist and drug and alcohol counselling, and reunite with his children with the intent that the older two and, ultimately, all four come to live with him.[128]
[127] Exhibit A8.
[128] G13, p.201; G23, p.261; the applicant’s oral evidence at the hearing.
These plans are commendable and I find the applicant to have been sincere in his intent to implement them (particularly the plan involving his children). Generally, however, I do not consider that a person’s aspirational plans formulated when detained to be of significance in assessing the risk of the person re-offending when free in the community. In this matter, however, there is some evidence that suggests that, should he be free in the community, the applicant will, in fact, seek to give at least some effect to his plans.
In particular, on behalf of the applicant, it was submitted that his conduct while unexpectedly free in the community for around three months from December 2022 to March 2023 provided “…a strong basis to conclude that …[the applicant] has made great progress toward rehabilitation, notwithstanding his substantial difficulties.”[129]
[129] A SFIC [85].
I accept that the applicant’s conduct in that three-month period supports an assessment of his re-offending risk that is lower than it otherwise might have been.
In that period, the applicant did not re-offend and did conduct himself in a manner which, to an extent, was consistent with his plans. He visited and spent time with his children (in particular, the older two), assisted his mother and obtained full-time employment with a scaffolding company[130] where he was said to have worked well.[131]
[130] Albeit the period of that full-time employment is unclear. See Mr SM’s statement in Exhibit A8 and at G27, p.356. See also email from Western Scaffolding at G27, p.355: at the hearing, the applicant’s evidence was that he worked full time for around a month.
[131] Exhibit A8.
The applicant’s conduct in that three-month period, however, is not supportive of a conclusion that he will, if free in the community, give effect to some aspects of his plans. As indicated earlier, it is not suggested that, in that period, the applicant attended a psychologist or obtained any counselling and, rather than living with his mother and brothers, the applicant ended up living with a friend, Mr AF3. Moreover, I note that the applicant has in the past (in particular, in the 2015 to 2017 period) assisted his mother, had contact with his children and maintained employment and then gone on to re-offend.
If free in the community, the applicant will have access to supports that, if availed of, ought to ameliorate the risk of his re-offending. I have in mind here the:
(a)Muslim Connect program provided by the Islamic Council of Victoria which assists in the reintegration of Victorian Muslims exiting the prison system; and[132]
(b)African Visitation and Mentoring Program provided by Jesuit Social Services which also assists in community reintegration.[133]
[132] G19, pp.225-226.
[133] G18, pp.223-224.
While supports such as these are pro-social, the extent to which they serve to ameliorate the risk of recidivism is unclear. Moreover, they would only do so insofar as advantage is taken of them. In this regard, I note that in the material before me it is not suggested that the applicant utilised those supports when free in the community in December 2022 to March 2023.
In addition, the applicant has the support of his mother, Mrs AM,[134] at least one of his brothers, Mr SB,[135] his girlfriend, Ms AGF,[136] and of various other friends.[137] While supports such as these ought to ameliorate the risk of the applicant re-offending, I note that they were not such as to prevent him from offending in the past (noting that, apart from Ms AGF, all of them have had a longstanding association with the applicant).
[134] Exhibit A6.
[135] See the statement of 18 August 2023 from Mr SB.
[136] Ms AGF: see Exhibit A3.
[137] Ms AF1 (Exhibit A7), Ms AF2 (Exhibit A4), Mr AF3 (Exhibit A5): see also another friend’s statement at G17, p.221.
The applicant has undertaken some, but not extensive, training and programs while in prison and detention. He was part way through a construction course in prison[138] when transferred to detention in May 2022 and, in March 2022, completed a “Take Stock A” course.[139] A prisoner education summary report of February 2022 indicated that since March 2021, the applicant had enrolled in five courses, had achieved competency in one of them (a one-day course) and had withdrawn from two of them, with two of them then being in progress.[140] Moreover, while in prison, the applicant was said to have been an active participant in the Jesuit Social Services African Visitation and Mentoring Program.[141]
[138] The applicant recalls having completed about nine out of 16 sessions.
[139] G20, p.277.
[140] G20, p.228-229.
[141] G18, pp.223-224.
On behalf of the applicant, it was submitted that he regrets his offending and has developed insight into it.[142]
[142] A SFIC [71].
While I do not doubt that the applicant greatly regrets the position that he now finds himself in, I query the depth of his insight into how he got there. At the hearing of this proceeding the applicant seemed to accept personal responsibility for what he had done. Certain of the material before the Tribunal, however, suggests that the extent of that acceptance was limited. For instance, little acceptance by the applicant of personal responsibility for his conduct in February 2020 is evident in the submission made on his behalf to the effect that the precipitating factor for that conduct was a decline in mental health caused by factors outside his control[143] or in the submission that Ms SD “leaving upset me again. I was not getting the support I needed in the community…”.[144]
[143] G23, p.257.
[144] G13, p.197.
In any event, remorse and insight are likely only to play a positive role in changing behaviour when the behaviour is not impulsive, and the person concerned is able to think through the likely impact and consequences of behaviour. In circumstances where the applicant’s offending has largely occurred in the context of mental health issues and abuse of alcohol and illicit drugs, they are less likely to operate as protective factors of significance. This, perhaps, is why the remorse and insight which the applicant was said to have in 2010[145] and 2015[146] did not operate to prevent further offending.
[145] SG5, pp.396-403.
[146] SG5, pp.341-345.
Protection of the Australian community: conclusion
The applicant has engaged in very serious offending. If he were to re-offend, the resultant harm could be very significant. I find there to be a moderate risk that he will do so.
In these circumstances, the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, and it does so to a significant extent.
FAMILY VIOLENCE
The second of the primary considerations concerns family violence.
The applicant initially submitted that this consideration was not relevant in this proceeding. He denied having engaged in family violence, submitting that he had not been convicted of any family violence offences and that there was no independent and authoritative material indicating that the applicant had been involved in family violence.[147]
[147] A SFIC [88], on the assumption that there is a missing word [“not”] in the second sentence of that paragraph.
At the hearing of this proceeding, however, the applicant admitted to having engaged in family violence once. It was said to have taken place in December 2013 and to have involved Ms LM. As noted earlier, the applicant’s two assault convictions in May 2015 relate to the relevant incident.
Descriptions of the incident are found at paragraphs [70]-[72]. Whichever description is adopted, it entailed family violence. In particular, it involved violent behaviour that coerced or controlled a person, Ms LM, who was, in relation to the applicant, a family member, given that she had been in an intimate personal relationship with the applicant.[148] In terms of Direction 99, the incident is of relevance when considering family violence because it resulted in the applicant being convicted of assault.
[148] Direction 99, cl 4(1): see definitions of “family violence” and “member of the person’s family”.
I find that the applicant also engaged in two other incidents of family violence. In terms of Direction 99, each such incident is of relevance because information from sources which I regard as being independent and authoritative indicates that the incident involved the perpetration of family violence by the applicant, being information in respect of which the applicant was afforded procedural fairness.
As I see it, it is not incorrect to characterise police records as independent and authoritative sources of information.[149] The police are independent and their records are generally (and in this case are) relatively contemporaneous with the events described in them. There is no reason to expect that the information provided by the police in relation to the incident reflects anything other than the understanding of the officers involved as to what transpired. I am entitled to treat the police reports as probative of the information in them,[150] and I do so. Contrary to submissions made on behalf of the applicant, the fact that charges were not laid or pursued in respect of the information in a report does not operate to deny that information independent and authoritative status.[151]
[149] Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43 at [38], a decision concerning the use of police records in the context of the family violence consideration.
[150] Lewer v Minister for Home Affairs [2023] FCAFC 121 at [9], [59]
[151] Ryan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 701 at [30].
In a March 2012 Victoria police incident report, it is suggested that the applicant and Ms LM had been arguing over access to their daughter, Ms D1, and that Ms LM was planning to go and live with her mother, Mrs MIL. The applicant was said to have then slapped Ms LM to the back of the head a couple of times, and possibly punched her to the face.[152]
[152] SG, p.574.
In a March 2017 police incident report, the applicant was said to have been staying at Ms LM’s house. After arguing with Ms LM, the applicant is said to have pushed her and slapped her once in the face.[153] The applicant’s two older children were said to be present in the house at the time.
[153] SG, p.528.

South Sudan is identified as the country the applicant’s removal to which would, it is said, result in a breach of Australia’s non-refoulement obligations. This is because he is a citizen of South Sudan.
Under the Nationality Act 2011 of South Sudan:
(a)A “South Sudanese National” is defined to be a person who satisfies the eligibility criteria provided under Chapters III and IV of the Act (s 5).
(b)While Chapter IV of the Act deals with nationality by naturalisation, Chapter III deals with nationality by birth.
(c)Under a provision of Chapter III (s 8) a person “shall be considered a South Sudanese National by birth” if, amongst other things, any of the person’s parents was born in South Sudan or the person belongs to one of the indigenous ethnic communities of South Sudan.
(d)The Minister of the Interior is obliged to issue a certificate of nationality to an applicant who is a South Sudanese National by birth (s 9).
As I construe that Act, under its nationality by birth provisions, a person need not apply for citizenship to be a citizen. If the person satisfies the relevant eligibility criteria, the person is declared to be a citizen. The person “shall be considered a South Sudanese National” and the executive has an obligation (not discretion) to issue a certificate of nationality if applied for. I note that this construction is consistent with that adopted in other Tribunal decisions.[252]
[252] 1910307 (Refugee) [2019] AATA 4673 at [44]-[45]; VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3502 at [167]-[168].
The applicant satisfies the relevant eligibility criteria. Each of his parents was born in South Sudan[253] which, as defined in the Act, would appear to constitute certain territory rather than the nation state (noting that South Sudan only acquired nationhood in 2011).[254] Additionally, it might be that the applicant belongs to one of the indigenous ethnic communities of South Sudan, the Dinka (as acknowledged on behalf of the applicant[255]).
[253] G13, p.205.
[254] Nationality Act 2011 (South Sudan) at s 5 defines “South Sudan” to mean “the territory, including airspace and territorial waters, of the South Sudan…”.
[255] G13, p.205.
As the applicant satisfies those eligibility criteria, he is a South Sudanese national under the law of South Sudan. (I note that both parties accepted this[256] and the hearing was conducted, and submissions were made, on that basis. Immediately before closing, however, the respondent’s counsel suggested that the applicant might have been, in addition or possibly instead, a citizen of Sudan. Counsel was invited to identify the precise submission he wanted to make on the matter but declined to do so.)
[256] See, for example, R SFIC [9].
Given the description outlined earlier of Australia’s non-refoulement obligations, without seeking to be exhaustive, the applicant’s forcible removal to South Sudan would result in a breach of those obligations if it would:
(a)threaten the applicant’s life or freedom on account of his or her race, religion, nationality, membership of a particular social group or political opinion; or
(b)give rise to a necessary and foreseeable risk of irreparable harm (such as harm to the inherent right to life and harm by way of torture or by way of cruel, inhuman or degrading treatment or punishment).
In this regard, on behalf of the applicant it is submitted that, if removed to South Sudan, “there is a real risk that he will face physical assault, threats to his life, kidnapping, harassment, arbitrary detention, forced recruitment to a militia, torture, death, severe discrimination and denial of basic services threatening his capacity to subsist…” because of:
(a)Imputed political opinion on account of his Dinka ethnicity;
(b)His race on account of his Dinka ethnicity; and
(c)His membership of particular social groups being persons suffering mental ill-health; young men at risk of forcible recruitment by armed groups; military aged Dinka without tribal support; returnees to South Sudan without connection or tribal support; persons perceived to belong to the Nuer ethnicity; persons perceived to be wealthy in South Sudan; persons perceived to be foreign; and returnees from Australia.[257]
[257] G23, p.277.
It was also submitted that the applicant would, on removal to South Sudan, face a real risk of suffering significant harm “…in the form of arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment…”.
Factors suggestive of him facing a risk of harm on removal to South Sudan were described so as to include:
(a)“Having no connections in South Sudan or knowledge of the country or local custom”;
(b)“A lack of tribal affiliation for protection and support”
(c)“Not speaking the Dinka Language”;
(d)“Being a military aged Dinka without tribal support”;
(e)“Being perceived as Nuer”;
(f)“Being perceived as belonging to a family who abandoned the country at the time of conflict”;
(g)“Being perceived as westernized/wealthy coming from Australia”;
(h)“Returning with no resources or employment or other support”; and
(i)“Having mental health issues and a background of suicidality related to past trauma and needing ongoing treatment and support.”[258]
[258] G23, p.278.
In considering the applicability of those factors, it is said that the applicant would be perceived to be wealthy or foreign given his dress, accent and attitudes, and because he cannot read or speak Dinka and lacks knowledge of the South Sudanese culture.[259] Reference was made to returnees being forced to join armed militias.[260] Those with mental health issues were said to face “…stigma, marginalisation, inadequate treatment and are frequently imprisoned”[261] in a context where there is very little in terms of mental health treatment facilities.[262]
[259] G23, p.295.
[260] G23, p.299.
[261] G23, p.300.
[262] G23, pp.300-301.
According to the applicant there is a:
“…lot of tribal conflict in South Sudan and that this makes it very dangerous for someone like me going there now. I have no Dinka tribal connections in South Sudan. Although I am Dinka I only speak Sudanese Arabic and English not Dinka. This would be a problem in being accepted in the Dinka community. People would be suspicious about me. They would say that I ran away and wonder why am I now coming back. I know there is civil war that is ongoing – I fear that I would not be protected by the Dinka people because I would not be accepted by them. I have lived most of my life in Australia – I have an Australian accent, I have an Australian/western way of living that will make me stand out. Because I don’t know the country I will not know who to trust or where to go for help.”[263]
[263] G13, p.205.
The risks faced by the applicant are described as ones that could not be described as remote, far-fetched or fanciful.
Those risks arise in a context where it is said[264] that:
(a)In 2022, 72% of the South Sudanese population required urgent humanitarian assistance;
(b)Two thirds of that population were expected to face extreme levels of food insecurity;
(c)Two million people were internally displaced;
(d)There is ongoing inter-ethnic violence; “80 percent of civilian casualties in the country were attributed to intercommunal violence and community-based militias.”
(e)There is wide-spread ethnic discrimination in employment; and
(f)There are numerous arbitrary killings.
[264] Citing various reports: see G23, pp.279-310.
The applicant cites extensively a 2021 Tribunal decision to the effect that:
(a)The then peace in South Sudan was fragile;
(b)People of Dinka ethnicity have been targeted by opposition groups; and
(c)There is in South Sudan a real chance of persecution, one which relates to all areas of the country, including the capital, Juba.
Much of what has just been said reflects submissions made on behalf of the applicant in October 2022. Since then, the situation in South Sudan has, it is said, become even more dire. In a May 2023 submission, reference is made to two reports[265] in which it is said that:
(a)“It is estimated that some 9.4 million people, approximately 2/3 of South Sudan’s population, will require urgent humanitarian assistance in 2023…7.8 million people continue to experience high levels of acute food insecurity, with thousands living in famine-like conditions… The security situation is deteriorating, with increased sub-national violence resulting in civilian casualties, new displacements and a very insecure environment for aid workers…”
(b)“Despite widespread post-traumatic stress disorder among the population, the availability and accessibility of mental health and psychosocial support services remained extremely limited.”
[265] G27, pp.341-342.
The consequences of a breach of Australia’s non-refoulement obligations in that context would, it is submitted, be devastating for the applicant, Australia’s reputation and its national interest.
Response to representations
Given that the applicant remains free to apply for a protection visa, I am not obliged to make a finding in response to the applicant’s submissions concerning non-refoulement, and I do not do so.[266] As the applicant is able to apply for a protection visa, it is open to the Tribunal “to defer consideration of representations concerning” the effect of Australia’s non-refoulement obligations.[267] Indeed, that course of action is specifically permitted by Direction 99.[268]
[266] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [34]. That he has a right to apply for a protection visa is accepted by the applicant: A SFIC [113].
[267] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [142].
[268] Direction 99, cl 9.1.2(2).
In particular, I make no finding as to whether non-refoulement obligations are owed by Australia with respect to the applicant, whether removing the applicant to South Sudan would be in breach of those obligations or as to the consequences for the applicant or Australia of breaching such obligations.
The applicant contended that the Tribunal should make findings in response to his submissions concerning non-refoulement. It was said, in essence, to be inappropriate in his case to defer assessment of the claims underlying those submissions. Several reasons were advanced in support of that proposition.[269]
[269] G27, p.337.
First, there was said to be no good reason for the Tribunal not to address now the applicant’s claims to fear persecution in South Sudan as they are clear and do not require specialist expertise.
As I see it, however, it is not inappropriate to seek to have issues concerning non-refoulement addressed in the context of the Act’s protection visa provisions. It is those provisions which reflect the “the domestic implementation of” Australia’s non-refoulement obligations[270] and contain the “specific mechanism chosen by Parliament for responding to protection claims”,[271] with the scope of the non-refoulement obligations to which Australia is committed to implementing being reflected in the Act’s concept of “protection obligations.”[272] Insofar as Australia’s non-refoulement obligations are not encompassed within the Act’s protection visa provisions, they are not something which I must consider.[273] In this regard, the legal consequences of a decision “…are to be understood to be the consequences visited by Australian law on the persons whom the decision affects.”[274]
[270] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [37].
[271] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [38].
[272] Direction 99, cl 9.1(2)
[273] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [29]; AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 at [51]; HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133 at [60].
[274] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [150].
Second, it is said that, unless the relevant claims of the applicant are assessed now, there will be no later opportunity for those claims “to be balanced as part of a broad discretionary assessment of whether he should have a visa.”
It is the case that, in the context of this proceeding, there is a discretion that would allow the applicant to hold a visa despite his failure to satisfy the character provisions of s 501 of the Act whereas, in the context of a protection visa proceeding, a failure to satisfy the equivalent to the character provisions there applicable leaves no discretion to allow the applicant to hold a visa.[275] Why this difference renders it inappropriate to defer consideration of the applicant’s non-refoulement claims, however, is unclear.
[275] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW 20 by his Litigation Representative BFW20A [2020] FCAFC 121 at [129]-130].
Third, it is said that deferral would be likely to significantly and unnecessarily prolong the applicant’s detention in circumstances where his mental health will deteriorate.
This aspect of the applicant’s submission is speculative. It pre-supposes that the applicant would succeed in these proceedings were findings with respect to his non-refoulement claims now to be made. Moreover, it ignores the potential benefit that even an unsuccessful application for a protection visa might have. In this regard, removal of the applicant to South Sudan will be neither required nor authorised if the applicant makes a valid application for a protection visa and, in the course of considering that application, a “protection finding” is made in relation to the applicant with respect to South Sudan.[276] Deferral will simply result in the applicant’s claims with respect to non-refoulement being assessed in the context of those provisions of Australia’s domestic law intended to express Australia’s non-refoulement obligations. [277]
[276] Act, s 197C(3).
[277] Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 at [43].
In this context, it was submitted that the prospects of a protection visa being granted must be considered, and that those prospects were infinitesimal.[278]
[278] G27, p.338-339.
If it is thought to be unlikely that the applicant would succeed in being granted a protection visa, that might be because it is thought that Australia’s non-refoulement obligations (to the extent reflected in domestic law) are not engaged in his case. Moreover, for the reasons just outlined, proceedings for the grant of a protection visa might in any event be considered to be a “success” even if a protection visa was not granted if a protection finding were to be made in the course of the proceedings.
I note that there is authority for the proposition that the Tribunal need not consider the prospects of a successful protection visa application, being a matter of speculation: “Future exercises of discretion and statutory power are to be resolved when they arise.”[279] The Tribunal is “not required to speculate about future possibilities about future visa applications…”.[280] In the recent decision CRRN,[281] however, Stewart J concluded that the Tribunal was in error in failing to consider the prospects of success of a potential protection visa application where it had been submitted that the application had no realistic possibility of success.
[279] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [19].
[280] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32].
[281] CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 at [61].
In any event, as I see it, the appropriateness or otherwise of the Tribunal’s decision to defer consideration of the applicant’s representations concerning non-refoulement is not affected by an assessment of the prospects of success of a potential protection visa application by the applicant. Those prospects might, however, have an effect when considering another legal consequence of a decision not to revoke the visa cancellation decision, detention.
Detention
As noted earlier, Direction 99 requires that decision-makers such as the Tribunal be mindful that unlawful non-citizens are liable to detention pending removal from Australia, whether or not non-refoulement obligations are owed in respect of the non-citizen.
As a person who is not an Australian citizen but who is in Australia without a visa, the applicant is an “unlawful non-citizen”. The result is that officers of the respondent are obliged to detain the applicant[282] and his removal from Australia is required, but only when it is reasonably practicable.[283]
[282] Act, ss 189 and 196.
[283] Act, s 198(2B).
In this regard, the applicant sees “the prospect of indefinite detention as the most likely practical consequence of a decision to affirm the Reviewable Decision.”[284] Absent any submission to the effect that it is not reasonably practicable to remove the applicant to South Sudan, implicit in this is a contention that, if the visa cancellation decision is not revoked, the applicant will apply for a protection visa.
[284] G27, p.339.
If application is made for a protection visa, the applicant would not be liable to be removed from Australia while his application is being processed and determined.[285]
[285] Act, s 198(5A).
Given my findings concerning the nature and seriousness of the applicant’s past conduct and his risk of recidivism, on the material before me, I find that it is more likely than not that any application by him for a protection visa will be unsuccessful. It is likely that he would be found to have been convicted by a final judgment of a particularly serious crime and to be a danger to the Australian community.[286]
[286] See Act, s 36(1C).
In these circumstances, if the applicant makes an application for a protection visa (as it is implicitly suggested that he would if the visa cancellation decision is not revoked), he will remain in detention until the application is processed and determined and will continue thereafter to be detained until:
(a)absent a “protection finding” being made in the course of his protection visa application with respect to South Sudan, removal of the applicant to South Sudan is reasonably practicable;
(b)another country is found that is willing to receive him;
(c)a court finally determines his detention to be unlawful;[287]
(d)the respondent grants him another visa in exercise of a personal power;[288]
(e)the respondent makes a residence determination[289] in exercise of a personal power;[290]
(f)he is invited to apply for a Bridging R (Class WR) visa; or
(g)the applicant asks to be removed.[291]
[287] Act, s 196.
[288] Act, s 195A: contrary to submissions made by the applicant (G27, p.340), it is not unreasonable or irrational to contemplate the exercise of the respondent’s personal powers: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [112].
[289] Act, s 197AB.
[290] Act, s 197AF.
[291] Act, s 197C(3)(c)(iii).
In light of submissions made as to the circumstances applicable in South Sudan, it might be thought that removal of anyone to that country is unlikely to be currently reasonably practicable (and noting, in any event, the potential for protection findings to be made in the context of any protection visa application).
None of the other reasons for ending the applicant’s detention currently apply. Moreover, on the material before me and absent the applicant asking for removal, I am not satisfied that any of these other reasons are likely to come to apply soon, within any particular period or at any particular time.[292] As to the chances of the applicant asking to be removed, on his behalf it is simply said that “it is possible” that he will do so.[293]
[292] See a similar conclusion arrived at in LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [149].
[293] G27, p.340.

Accordingly, if the visa cancellation decision is not revoked and the applicant makes (as is suggested on his behalf that he would) a protection visa application, the applicant would face the prospect of a prolonged period in detention, a period of detention that may be characterised as indefinite. His “… removal from Australia is likely to occur on an uncertain date beyond the foreseeable future (for reasons other than the pursuit of that person’s rights in respect of a visa application).”[294] It will be detention which has “… no fixed end point by reference either to a specific event or time’”[295] or “…in the sense of there being no way of knowing when it might end, but also that it might in effect continue without end.”[296]
[294] Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [39].
[295] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [84] but cf Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [37] where detention in pursuit of a visa application is said not to constitute indefinite detention
[296] CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 at [61].
As was said by the Tribunal in XTLP,[297] “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights.” Generally, in detention, the applicant would continue to be denied freedom of movement. His capacity to liaise with third parties such as his children would be constrained, as would his capacity to implement plans he might have had for his future. He would not be at liberty. As such, he would be denied “one of the most basic human rights and fundamental freedoms known to the common law”.[298]
[297] XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357 at [109].
[298] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
at [123].
On the applicant’s behalf it is submitted that the harm to him resultant from prolonged and indefinite detention would see Australia in breach of obligations it owes under the ICCPR and CAT.[299]
[299] G23, p.307; G27, p.339.
I do not accept that submission.
First, without finding that it is so, it might be the case that Australia will be in breach of at least certain of the obligations identified by the applicant as a result of the applicant being detained (or facing the prospect of being detained) for an indefinite period. Whether that is the case, however, is contestable. An arguable or possible legal consequence of a decision to refuse to grant the applicant a visa is not one that that the Tribunal is required to take into account.[300]
[300] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [83].
Second, having regard to the High Court’s decision in Plaintiff M1,[301] I am not required to make, and do not make, any findings in relation to the relevant submissions. International obligations unenacted in Australian law are not mandatory relevant considerations.[302] Indeed, in this regard, as mentioned earlier, the legal consequences of a decision “…are to be understood to be the consequences visited by Australian law on the persons whom the decision affects.”[303]
[301] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17.
[302] While in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, the provision of the Act of particular concern was that found in s 501CA(4), it is “closely analogous” to that now addressed (s 501(1)) so that statements made in Plaintiff M1 are “equally applicable”: see XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646 at [47].
[303] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [150].
I do accept, however, that prolonged, indefinite, detention is likely to affect the applicant’s mental health adversely.
The applicant has stated that detention without an end date “…is something that is so terrible I can’t really think about it. I have a lot of struggles with my mental health-- I will be very depressed. I will be worried about my kids and family. I don’t think I would survive it.”[304]
[304] G13, p.206.
In submissions made on the applicant’s behalf, references are made to a 2013 report of the Commonwealth Ombudsman.[305] In it, the Ombudsman had this to say about detention for lengthy periods:
(a)“The international and Australian evidence demonstrates that immigration detention in a closed environment for longer than six months has a significant, negative impact on mental health”; and
(b)the evidence “…shows that length of time in detention is directly associated, not only with poor mental health, but also with the incidence of self-harm.”[306]
[305] See, for example, G23, p.307.
[306] Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (No 02/2013, May 2013) <December-2013-Suicide-and-self-harm-in-the-Immigration-Detention-Network.pdf (ombudsman.gov.au)>.
The ombudsman reported on:
(a)a study which “…identified that those detained for longer periods reportedly had a significantly larger number of both mental and physical health problems.”
(b)research which suggested that “…prolonged immigration detention can both intensify existing mental disorders, such as post-traumatic stress disorder, and can itself cause a newly identified form of disorder.”
These statements and reports of the Ombudsman lend credence to the opinion expressed by a psychologist, Ms Cidoni, in a November 2022 report in relation to the applicant. She concluded, and I accept, that the prospect of indefinite immigration detention “will have a severe impact on his mental health”.[307]
[307] G27, p.353.
Other consequences
I note that consequent upon a decision not to revoke the visa cancellation decision is that the applicant will continue to be precluded from applying for any other visa, other than a protection visa and a Bridging R (Class WR) visa.[308]
[308] Act, s 501E and Migration Regulations 1994, reg 2.12AA.
Conclusion
Absent any relevant finding in response to the applicant’s representations with respect to non-refoulement obligations, I attribute no weight to the consideration insofar as it has potential application to issues concerning refoulement.
As mentioned earlier, however, if the visa cancellation decision is not revoked and the applicant makes (as is suggested on his behalf that he would) a protection visa application, the applicant would face the prospect of a prolonged period in detention, a period of detention that may be characterised as indefinite.
Indefinite detention has a significant adverse impact on the person detained by cutting across basic human rights and fundamental freedoms.
That impact is likely to be exacerbated in the case of the applicant given the adverse effect indefinite detention is likely to have on his currently fragile mental health.
In these circumstances, the legal consequences of the decision consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision and it does so to a significant extent.
Extent of impediments if removed[309]
[309] Direction 90, cl. 9.2.
If relevant, Direction 99 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of South Sudan), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in South Sudan.
I find that the applicant is likely to face significant difficulties in establishing himself and maintaining basic living standards were he to be removed to South Sudan.
This is so despite neither his age nor, subject to my comments later concerning his mental health disorders, his health being a material contributor to those difficulties. He is 32 years old and, as such, young enough to be able to continue to work in the areas in which he had found work in the past, noting that it is said that he is skilled in scaffolding work.[310]
[310] Exhibit A8.
The difficulties are, instead, likely to be a result of “substantial language or cultural barriers” and a lack of “social, medical and/or economic support” available to the applicant in South Sudan.
It is clear from the comments made earlier concerning circumstances applicable in South Sudan that a large part of the South Sudanese population struggles to survive, with high levels of food insecurity and rampant ethnic discrimination and violence.
The impediments that any resident of South Sudan has to face in maintaining basic living standards by reason of those circumstances would likely be significantly enlarged in the case of the applicant. In this regard, I refer to and repeat the comments made earlier concerning the risks of the applicant suffering harm if removed to South Sudan. He cannot speak or read Dinka. He left Sudan aged 11 and has lived in Australia for most of his life. He will lack familiarity with the local culture. He has no family in South Sudan and no support network, albeit that friends of the applicant might be able provide a link to others in South Sudan. It was submitted on his behalf, and I accept, that in South Sudan “…he would have an extremely difficult life. He has no close family there, no support, and would be re-traumatised by the return. He does not speak Dinka. He would have no access to the physical and mental health care he needs.”[311]
[311] A SFIC [117].
Further exacerbating the impediments he would face on removal to South Sudan are the applicant’s mental health issues. Those with such issues are said to face “…stigma, marginalisation, inadequate treatment and are frequently imprisoned.”[312]
[312] G23, p.300.
Moreover, I accept that there is a significant risk that the applicant’s metal health issues will worsen on removal to South Sudan in a context where there is very little in terms of mental health treatment facilities.[313] As submitted, I accept that the applicant’s “…poor mental health with past suicidality which will be exacerbated with a lack of treatment services, his return after years of confinement with no resources, no place to live, no income and his past substance use disorder and vulnerability to relapse under such overwhelming stress in South Sudan…”.[314]
[313] G23, pp.300-301.
[314] G27, p.341.
That the applicant’s mental health will likely worsen on return to South Sudan is reflected in an opinion expressed by a psychologist, Ms Cidoni, in November 2022. According to her, the applicant’s “…return to South Sudan would likely exacerbate his clinical conditions and worsen his prognosis. He will be unable to access an adequate level of mental health and alcohol counselling, and assistance from support services in this third-world country. Further, the gains he has made at present are likely to diminish. He will likely return to what he knows (substance abuse) …”.[315]
[315] G27, p.353.
Conclusion
This consideration concerning impediments to be faced by the applicant on removal to South Sudan weighs in favour of there being another reason to revoke the visa cancellation decision. It does so to a significant extent.
Impact On Victims[316]
[316] Direction 99, cl 9.3.
If relevant in the circumstances, Direction 99 requires that consideration be given to the impact of the s 501 decision on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
Neither party has submitted that this consideration is of relevance in this proceeding.
Impact on Australian business interests
If relevant in the circumstances, Direction 99 requires that consideration be given to any impact on Australian business interests if the applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 of the Act would significantly compromise the delivery of a major project or important service in Australia.[317]
[317] Direction 99, cl 9.4(1).
Neither party has submitted that this consideration is of relevance in this proceeding.
Another “other” consideration
In a May 2023 submission, it was contended that the Tribunal ought to have regard to the psychological impact on the applicant of being released from detention without notice in December 2022 and then being re-detained in March 2023.[318]
[318] G27, pp.343-344.
That impact is characterised as profound.
With respect to the applicant, his re-detention is said to appear to have exacerbated his depression. Since then, the applicant is said to be struggling very badly. He says that “Life in detention has been incredibly challenging, both mentally and emotionally. To be honest, it is hell in here.”[319]
[319] Exhibit A1.
It is also submitted that that the applicant’s children would have been negatively affected. It would, it is said, have left them confused and disappointed and been another very damaging emotional experience for them.
No weight is attributed to this consideration.
Largely, the submissions with respect to it are unsupported assertions. While the Tribunal is asked to look to the psychological impact of re-detention, there is nothing before me from anyone who, by reason of qualifications or experience, is qualified to express an opinion on that impact. Moreover, even if the Tribunal were to accept that the temporary release and then re-detention of the applicant had the profound affect claimed, it is unclear why the fact of that impact would make revocation of the visa cancellation decision preferable to non-revocation.
Conclusion as to Other Reasons for Revocation
In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 99 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or to weigh neutrally:
(a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct (to a significant extent), family violence (to a moderate extent) and expectations of the Australian community (to a moderate extent).
(b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary considerations concerning the strength nature and duration of the applicant’s ties to Australia (to a moderate extent) and the best interests of minor children in Australia (to a significant extent), and other considerations concerning legal consequences (to a significant extent) and the extent of impediments if removed from Australia (to a significant extent).
It is clear from what has just been said that the decision in this proceeding is finely balanced. Overall, however, I am satisfied that there is another reason to revoke the visa cancellation decision. The three primary considerations that weigh against being so satisfied (only one of which is attributed significant weight) are overborne by the combination of the considerations that weigh in favour of being so satisfied, being two primary considerations and two of the other considerations. This is in a context where the applicant has four young children in Australia in relation to two of whom he is the only surviving parent.
DECISION
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
I am not satisfied that the applicant passes the character test.
I am, however, satisfied that that there is another reason why the visa cancellation decision should be revoked.
Hence, the Tribunal sets aside the respondent’s delegate’s decision in June 2023 not to revoke the visa cancellation decision. In substitution, the Tribunal decides to revoke that decision.

I certify that the preceding 354 (three hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

...........................[SGD].............................................
Associate
Dated: 12 September 2023

Dates of hearing: 23, 24 and 25 August 2023

Counsel for the Applicant: Greg Hughan and James Penny

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Nicolas Dour

Solicitors for the Respondent: HWL Ebsworth Lawyers

Dates of hearing:	23, 24 and 25 August 2023
Counsel for the Applicant:	Greg Hughan and James Penny
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Nicolas Dour
Solicitors for the Respondent:	HWL Ebsworth Lawyers