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

ZNNP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 867 (14 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0537
Re:ZNNP
APPLICANT

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

DECISION
Tribunal:Member Eteuati
Date:14 April 2020
Place:Brisbane

The decision under review is affirmed.
..................................[sgd]......................................
Member Eteuati
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – Applicant does not pass character test –– whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 –– decision under review affirmed
Legislation
Crimes (Administration of Sentences) Act 1999 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Eteuati
14 March 2020
BACKGROUND

This is an application by ZNNP (“the Applicant”) for review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 15 January 2020 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (“GSH visa”).
The Applicant first arrived in Australia in 2005 as the holder of a GSH visa. The Applicant was 13 years old when he first arrived in Australia.
The Applicant began offending in 2012, some seven years after he arrived in Australia. He was first sentenced to a period of imprisonment in August 2016, when he was convicted of two counts of robbery in company, aggravated assault with intent to rob and assault with intent to rob in company. One of these offences was committed in 2012 and the other three in 2015. The Applicant was sentenced to an aggregate of three years and nine months imprisonment with a non-parole period of two years and three months.
On 2 February 2017, the Applicant’s visa was cancelled under section 501(3A) of the Act. On 17 March 2017 the Applicant applied for revocation of the cancellation of his visa. The Applicant provided letters of support from the chairman of an African community association and a pastor from the Sudanese Church of Christ.
On 24 August 2017, the Minister’s delegate revoked the cancellation of the Applicant’s visa. The letter notifying the Applicant of this decision stated the following:
“Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.”
In February 2019, the Applicant was convicted of affray and sentenced to 8 months imprisonment with a non-parole period of four months. That offence was committed in late December 2018.
On 1 April 2019, a delegate of the Minister cancelled the Applicant’s GSH visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.
On 26 April 2019, the Applicant sought that the cancellation decision be revoked. In addition to the Request for Revocation Form and the Personal Circumstances Form completed by the Applicant, the Applicant provided the Department with material in support of his application including a certificate of completion of the “EQUIPS Aggression Program”, a second letter from the chairman of the African community association, and an email from the mother of the Applicant’s two children, his former partner.
On 15 January 2020, the Minister refused to revoke the cancellation of the Applicant’s visa. The Applicant was notified of this decision on 21 January 2020.
On 30 January 2020, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.
The matter was heard by the Tribunal on 25 and 26 March 2020. For the reasons below, the Tribunal has decided to affirm the decision under review. The Tribunal considers that this is the correct decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act, is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test, or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that ‘may’ in s 501CA(4)(b) means ‘must’.
I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
[Emphasis in original]
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the document tendered into evidence by the Applicant and marked as exhibit A1 and the documents tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout this decision: see “Annexure A” to this decision.
A summary of evidence is provided below from paragraph 40 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
[Emphasis in original]
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
[Emphasis in original]
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 17 May 2019 shows the following offences committed by the Applicant:

Court Court Date Offence Court Result

Mt Druitt Local Court 13 Feb 2019
Affray
Convicted and sentenced to a term of imprisonment for 8 months, with a non-parole period of 4 months.

Downing Centre District Court 18 Aug 2016
Robbery in company (2 counts)

Assault with intent to rob in company

Aggravated assault with intent to rob
Convicted and sentenced to aggregate term of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months.

Blacktown Local Court 27 Mar 2014 Custody of knife in public place - subsequent offence Fined $500.

Mt Druitt Local Court 13 Feb 2014
Assault officer in execution of duty

Intimidate police officer in execution of duty
Convicted and call up good behaviour bond of 12 months

Blacktown Local Court 7 Jun 2013 Resist or hinder police officer in execution of duty Fined $500

Use offensive language in/near public place/school
Fined $100

Refuse/fail to comply with direction under part 14

Fined $100

Intimidate police officer in execution of duty
Subjected to a 12 month good behaviour bond

Assault officer in execution of duty Subjected to an 18 month good behaviour bond

Possess prohibited drug Fined $200

Possess prohibited drug Convicted with no other penalty

Goods in personal custody suspected of being stolen Fined $250

Magistrates Court 7 Nov 2012
Commit public nuisance
No conviction recorded fined $350

Blacktown Local Court 19 Jul 2012 Resist or hinder police officer in execution of duty Fined $400

Blacktown Local Court 21 Jun 2012 Possess prohibited drug Fined $250

Use offensive language in/near public place/school Fined $100

Refuse/fail to comply with direction under part 14 Fined $200

I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months or more.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Subparagraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence before the Tribunal including evidence of the Applicant at the hearing before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the Applicant at the hearing in response to questions under cross-examination and from the Tribunal.
The Applicant
The Applicant is a 27 year old who was born and raised in Khartoum, Sudan. The Applicant claimed that he left Sudan with his family when he was between six and eight years of age. He said that he lived in Egypt for about four years before his family travelled to Australia in 2005.

The Applicant indicated that he initially found it difficult adjusting to life in Australia. He did not speak English when he first arrived. He said that he began associating with other boys of Sudanese extraction. He indicated that he started getting into trouble with the law after he began drinking and then smoking marijuana. He indicated that he tried to impress his peers by trying to show that he was not afraid to fight for his friends.
The Applicant indicated that he had been in a relationship with his former partner (“former partner”) since 2010 or 2011. He had two children with his former partner, a daughter born in late 2012 and a son born in early 2014. The Applicant indicated that the couple had separated after the Applicant went to jail in 2015. The Applicant’s former partner and their children relocated to Melbourne in 2016 or 2017. The Applicant indicated that when he was released from jail on parole in mid-2017 he was not in a relationship with his former partner. Instead, he was in relationship with another woman for some 6 to 7 months in 2017. That woman had a son who was the same age as the Applicant’s daughter. The Applicant indicated that he met the boy on one occasion.
The Applicant indicated that after the he was released in mid-2017, his children visited him and stayed with him for about three weeks. This was the last time the Applicant saw the children in person. The Applicant claimed that he and his former partner reconciled for a brief period of time in 2018. He said that they had reformed the relationship shortly before their daughter’s birthday in November 2019.
The Tribunal notes that the Department received an email from the Applicant’s former partner in December 2019. That email stated as follows:
“Hello, my name is [name] the mother of [Applicant’s name]’s kids. I am writing this letter on behalf of my children and I in order to provide some support for [Applicant’s name] to cease his deportation, by keeping [Applicant’s name] in Australia he will be able to provide a support system for my children and I. We have two children together one girl and one boy and they are just starting to become a lot closer to their father it would hurt them deeply if they will no longer be able to have that relationship and connection with their father.”
The Applicant indicated that since he has been in jail or immigration detention he has had regular contact with his children by telephone. The Applicant said that he also has a three-year-old nephew who he has had limited contact with. He said that he thought that his sister may have had a second child but he was unsure.
The Applicant indicated that he had been working for his uncle’s carpentry business for about five months in 2017. He said that during that time he sent $500 a week to support his children. He said that he did so for four months. He said that his only other employment had been when he had worked for KFC for a few months when he was in secondary school. The Applicant indicated that he had one or two years to go to complete his carpentry apprenticeship.
The Respondent’s solicitor took the Applicant to the police fact sheet in relation to the charge of affray for which the Applicant was sentenced to 8 months imprisonment on 13 February 2019. The facts in relation to that crime were summarised by the sentencing Judge as follows:
“…this is a matter where this is a Saturday afternoon where you could have, in Dawson Mall in proximity of Westfields where you can expect there would be families with children in the vicinity.
…
For whatever dispute you had with these gentlemen who were seated, drinking a cask of wine, it is you that approached them. It is you that are aggressive towards them, starting argument with them, attempting to cajole them into having a fight with you, taking their cask away from them, throwing it on the ground and proceeding to involve yourself in physical altercation, then go away and arm yourself and return with a stick to wield a stick. It is not acceptable behaviour in public with other members of the public and as I said, children who would be around at that sort of time of the afternoon and here you are attempting effectively to initiate a brawl with other people who left of their own devices would not have been involved in a physical altercation.
You were the instigator of what ultimately occurs which would, as I indicated on these facts would not have occurred but for you and when one then goes back and looks at your record, you have got a record stretching back some time for violence for the sort of offending that involves you losing your temper and having a problem with your aggression and that is referred to in the pre-sentence report indicating you conceded you are easily annoyed and your aggression is heightened in situations where people do not listen to you or take what you say seriously.”
The Applicant conceded most of the facts as outlined by the sentencing Judge. He said that he had left a friend in a public area and when he returned, the friend was in an argument with two other men. The Applicant indicated that the two other men owed his friend money but were refusing to repay the money. The Applicant indicated that he spilt the wine belonging to the two men. A fight ensued where punches were thrown. The Applicant admitted that he grabbed a stick and threatened to hit the men with the stick. However, he disputed that he went away to grabbed the stick but rather that the stick was lying at his side. The Applicant admitted that he committed the offence of affray on the final day that he was on parole for offences he was sentenced for in August 2016.
The Applicant claimed that he was not under the influence of drugs or alcohol when he committed the affray offence.
The Respondent’s solicitor took the Applicant to the sentencing remarks relating to his convictions on 19 August 2016 for 2 counts of robbery in company, assault with intent to rob in company and aggravated assault with intent to rob. The facts in relation to these offences were summarised by the sentencing Judge as follows:
“So far as the first offence is concerned there is an agreed statement of facts. It notes that the offender was 19 years old at the time of the offence. The victim was 17 years old at the time of the offence. On 18 June 2012 she was seated on a park bench at the Alpha Park in Blacktown at around 9:35 PM. The offender approached the victim, at the time he was wearing a hooded top with the hood up over his head. He asked if she had any money, $2, to which she replied, “No sorry mate I’ve got nothing”. At that time her mobile telephone was in her lap. The offender replied, “Are you sure I’ll just take that then”. He reached for the victim’s mobile phone. She grabbed the phone in her hand and then the offender grabbed her hand and they wrestled over the phone. The victim kicked the offender in the torso while she was still seated and she also screamed out loudly. The offender then lent towards the victim and bit her hand, that is the hand that was holding the telephone. The bike caused a small incision on one finger. The victim felt immediate pain and screamed twice more. A group of males ran towards the victim and the offender fled.
…
The other two offences and the offence set out in the Form 1 occurred on 22 March 2015. In relation to the first of those offences the agreed facts indicate that the victim was sleeping on a bench in the middle of Hyde Park North. He was lying on his back using his backpack as a pillow. Inside the backpack were the following items. A Sony laptop valued at $2600, an AC adapter, an external battery charger, Vodafone Wi-Fi modem and some USB cables. The total value of the property is somewhere in the order of $3000. His wallet contain personal cards, a Commonwealth Bank card, $5 in notes and coins and a memory card valued at about $80. It also contained business cards.
The victim was woken by a male wrapping his arm around his neck and putting him in a headlock. The arm was squeezing tightly. The victim saw one or two other kids around him and possibly an older guy. He heard someone saying “if you go to the police we’ll come back and get you”. This male was in the victim’s peripheral vision. The kids who were part of the group that assaulted him and robbed him searched his pockets and took his wallet from his right front pocket. They searched the wallet and removed the cards. They left most of the cards at his feet. One of the males had the debit card. The male who had his arm around [Victim 2]’s neck then said, “Give me your PIN or I’ll kill you”. [Victim 2] was in shock and could not remember his code. After two or three attempts to remember the code the male punched him in the face making his nose bleed. [Victim 2] then gave his PIN code.
Whilst that was occurring the victim was sitting up and one of the kids took his backpack, turned it upside down and emptied onto the grass. A male took the laptop, the battery charger, Wi-Fi modem, a USB cable and the laptop adapter. When the victim gave the male his PIN code he saw about five or six other males who he thought were going to help. The males said they were friends. One of the males asked him again for his PIN code. The male entered the PIN code into a mobile phone that he was holding. He told [Victim 2] that if he gave him the wrong code he would come back. One of the males kept asking the victim how much money was in his bank account, the victim replied about $40. They kept asking if it was only $40. [Victim2] told them that that was the total because he was homeless. The group of males then left.
As soon as they left [Victim 2] saw an Asian male being pinned down by the same people who robbed him. There were more involved and he saw them circling the male.
…
In relation to the second robbery in company committed in the early hours of 22 March 2015 the facts indicate that the victim [Victim 3] and his friend [Victim 3’s friend] was sitting on a bench in Hyde Park. Two males sat on the bench on either side of them and the first male said, “Why are you sitting like that?”. The second male asked the same question. [Victim 3] tried to dismiss them by saying, “Don’t worry about it”. One of the males then said to [Victim 3’s friend], “What’s in there?” Pointing to [Victim 3’s friend]’s pocket which contained his phone. [Victim 3’s friend] said, “Why do you want to know?” The male kept pointing at the pocket and [Victim 3’s friend] told him it was a packet of cigarettes. [Victim 3] then stood up and said to his friend, “Hey I think we should go”. He took a few steps and then heard the words “Wallet and phone”. This was repeated several times. One of the males then said to [Victim 3’s friend], “if you don’t pull out your phone and wallet I’m going to punch you in the face”. [Victim 3’s friend] got up and ran away, the male chased him. [Victim 3’s friend] approached some other people and told them that his friend was being robbed.
The events in relation to [Victim 3’s friend] form the basis of the allegation contained on the Form 1. The offender has asked that I take into account when sentencing him in relation to the offence against [Victim 3].
At this time [Victim 3] was by the bench. He looked around and saw about ten males standing in a semicircle around the bench. He turned back around and saw a further four or five males standing near him. He heard again the words “wallet and phone”. [Victim 3] covered his pockets. One of the males then hit him once or twice to the body and then to the face. He moved his hands up to protect his face at which time he fell to the ground. The males grabbed the following property out of his pockets, some earphones, a keyring and a house key, some other smaller items, a wallet containing approximately $40, a receipt for a watch repair, four to five bus passes, his Commonwealth Bank debit card, a student identification card, cinema vouchers and a Greek icon depicting a good Samaritan. It had serial numbers written on it. They also took his iPhone and within it the Optus SIM card.
Whilst he was being punched one of the males had his hand around [Victim 3’s] neck, similar to what had occurred to [Victim 2]. Whilst [Victim 3] was on the ground one of the males asked, “What is your passcode”. The victim did not reply and the male keep repeating the question. While he was being punched and robbed his friend and other people came to assist him. One of the males told [Victim 3] he would leave his house keys and threw them in the bush. The group of males then ran towards Park Street. The males separated into small groups as they ran away.
…
[Victim 3] sustained bruising and swelling around his right eye and upper cheek area. He also sustains scratches to the right side of his neck which hurt when he swallowed. He felt a strain to his neck when he turned his head and discomfort in his eye area.
…
In relation to the offence at Blacktown to which I will refer to as the Blacktown offence the offender gave evidence that he did not recall the event. He accepted that his DNA was detected and admitted that he was hanging around that area at the time. He said that during that period of time he was drinking heavily. He did not dispute the facts that I have already referred to. When ask how he felt about the commission of that offence he again stated that he did not recall but said that he was ashamed and that if he had the opportunity he would apologise to the victim. He understood that his actions would cause the victim to be scared and terrified, in circumstances where she was sitting alone in a park when such an offence was committed against her. He stated she would be devastated and angry.
In relation to the events of the morning of 22 March 2015 which I shall refer to as the Hyde Park offences, the offender readily agreed that he was involved in a joint criminal enterprise with others. He accepted responsibility for the crime stating, “I was there. I did not stop it”. He also stated that there was no planning involved in the commission of these offences. When asked why it was that he was in possession of the items stolen from the first victim he stated that they had been given to him some 10 minutes or so before the police arrived. During the course of cross-examination he stated that he had been at a club till about 2am. He said that he left the club and then met up with the others, two of whom he said were his age and the others younger than him. The offender said that he felt bad for [Victim 2] because he had allowed the offence to occur. He also said he felt sorry for the other two victims as well.”
At the hearing, the Applicant maintained that he had no recollection of the Blacktown offence.
In relation to the Hyde Park offences the Applicant’s evidence departed significantly from his evidence before the court. The Tribunal notes that in his statement of 17 March 2017, which the Applicant provided to the Department in support of his application for revocation of the first cancellation decision, the Applicant admitted to being present during the Hyde Park offences. He stated:
“This is my first and only offence. I was 21 years of age when the incident occurred. The offence did not involve any violence on my part. I met up with a group of people that I know from my area. I knew the reason they were there was to rob people. I watched them rob two people. They would walk up to someone, ask for something, and if the person didn’t give them what they wanted, they got angry and would start hitting them and would steal the person’s belongings.
I wasn’t physically involved with robbing the people but I didn’t say anything to stop the robberies and I am sorry for this. One of the people who did the robbing said to me “hold this for me” and passed me a bag that had been stolen. When the police arrived I didn’t run away because I didn’t rob anyone. I was arrested though because I was holding the stolen bag.”
In addition, early during the hearing the Applicant admitted that he had been present during the Hyde Park offences but that he had not participated physically in the offences.
However, later during the hearing, the Applicant denied that he was present during the Hyde Park offences. This is inconsistent with his convictions for those offences. The Applicant said that he had been at a nightclub in King’s Cross and then decided to go home. He said he travelled to Town Hall station where he met up with a number of acquaintances who asked him to hold a bag. He said that while he was holding the bag he was apprehended by police. He said that he had lied in his previous statements and to the court that he had been present during the robberies. He said that he had done so because his partner’s brother had been present during the robberies and he was trying to protect his former partner’s brother from being implicated in the robberies.
The Tribunal rejects this claim by the Applicant. First of all it makes no sense. That the Applicant admitted to being present during the robberies did not in any way exclude the presence of his former partner’s brother during the robberies. The evidence was that there were over a dozen young men and boys who were involved in the robberies. Secondly, and more significantly, the Applicant pled guilty to the offences, admitted during the criminal proceedings that he was present during the robberies, admitted to the Department that he had been present during the robberies, and initially admitted to the Tribunal at the hearing that he had been present during the robberies. The Tribunal cannot go behind the Applicant’s criminal convictions or the material facts upon which those convictions are founded: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In accordance with the sentencing remarks, the Tribunal finds that the Applicant was present during the offences in Hyde Park. The Tribunal also accepts, as the sentencing Judge did, that the Applicant himself did not perpetrate the violence against the victims during the Hyde Park offence. However, the Tribunal accepts the sentencing Judge’s findings that the Applicant’s presence during the offending aided the perpetration of the violence.
The Applicant was sentenced to three years and nine months imprisonment for the Blacktown and Hyde Park offences. He was given a non-parole period of two years and three months. He was originally held in remand on 23 March 2015. He was granted bail on 19 May 2015 but was taken into custody on 10 June 2015 for breaching bail. The Applicant was released on parole on 29 June 2017 but was taken back into prison on 19 July 2018 for repeated breaches of parole. Those breaches of parole included failing to report as required, failing to live at the approved place of residence, failing to maintain adequate attendance at rehabilitation programs and consuming prohibited drugs.
The Applicant was convicted of custody of knife in public place on 27 March 2014 and fined $500. The Applicant indicated that the circumstances surrounding this offence were that a friend had a machete in his possession which a group of young men including the Applicant had used to harvest sugarcane. The Applicant claimed that the young men were sitting in a public area consuming the sugarcane when they were apprehended by police.
The Applicant was convicted of a number of offences on 7 June 2013 the most serious of which were intimidate police officer in execution of duty and assault officer in execution of duty. The Applicant was subjected to a 12 month good behaviour bond for the intimidate police officer offence. He was subjected to an 18 month good behaviour bond in relation to the assault officer offence.
The facts alleged against the Applicant by the police in relation to these offences were put to the Applicant by the Respondent’s solicitor. They were that on 1 January 2013 the Applicant confronted police in a highly aggressive manner while they were conducting a search of another individual suspected of robbery. The Applicant repeatedly swore at police. The Applicant submitted to a police search during which time the Applicant said to the alleged robbery victim, “we will fucking get you”. No adverse items were located on the Applicant and the police issued him with a formal move on direction. The Applicant refused to comply with a direction on several occasions. The Applicant continued to swear at police officers who told him that a failure to comply with the move on direction may result in his arrest.

The Applicant used aggressive gestures and began to advance towards police. The police have deployed capsicum spray against the Applicant and placed him under arrest. The Applicant stated to police “you watch what I will do to you triple 7 when I see you next, your fucked I am going to get you, take these handcuffs off and I will fuck you up”. The Applicant then spat a large amount of saliva at one of the police officers hitting the police officer in the face.
At the hearing the Applicant indicated that he had never acted aggressively towards police officers, had not sworn at them and had not spat at a police officer. Again, the Tribunal accepts the fact of these convictions and the material facts which supported the convictions. The Tribunal rejects the Applicant’s denial of these material facts.
The Applicant has gone on to breach the good behaviour bonds imposed and was resentenced for the assault officer and intimidate police officer offences on 13 February 2014. Further good behaviour bonds for 12 months were imposed.
The Applicant was found guilty of three counts possess prohibited drugs, two on 7 June 2013 and one on 21 June 2012. The Applicant admitted that he was in possession of marijuana on each of these occasions. The Applicant had no recollection of the circumstances surrounding the other minor offences for which he was found guilty in 2012 and 2013 and there was no further evidence relied upon by the Respondent in relation to those offences.
The Applicant has also been found guilty of five Correctional Centre Offences pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW). These offences were for intimidation, fight or other physical combat, possess drug, fail to comply with Correctional Centre routine and failure to attend muster. The most serious of these offences was fight or other physical combat. That offence was committed on 14 February 2019, the day after the Applicant was sentenced for affray on 13 February 2019. The misconduct report in relation to that offending reported that the Applicant gave a fellow inmate a severe beating by hitting and kicking the other inmate numerous times in the head and body. The Applicant admitted to beating the fellow inmate. He said that the fellow inmate had been annoying him and when he confronted the inmate, the inmate attempted to pour coffee on the Applicant. The Applicant admitted that he proceeded to give the fellow inmate a severe beating.
There were also reports of misconduct by the Applicant while he was being held in immigration detention. As the Applicant has not been found guilty of any offences in relation to these reports, the Tribunal has not relied upon these reports other than where the Applicant has admitted wrongdoing. One such report related to misconduct on 1 October 2019. It involved the Applicant taking a mobile telephone owned by another detainee. The Applicant admitted that he took the detainee’s phone. The Applicant said that the detainee damaged the screen of his mobile phone. As a result the Applicant said that he insisted that the detainee keep his damaged mobile phone and that the Applicant would keep the detainee’s mobile phone.
The Tribunal has also taken into account the material which indicates that the Applicant has repeatedly breached conditions of bail, parole and good behaviour bonds.
The Applicant said that he would not reoffend if he were allowed to remain in Australia. He indicated that he had completed the EQUIPS aggression program which consisted of 20 hour-long sessions. The EQUIPS program was completed in early 2017. The Applicant also indicated that he had attended two sessions of a drug and alcohol program.
In relation to any harm or hardship that the Applicant fears if he were to be removed to Sudan, in a statement dated 17 March 2017 in which he requested for the first cancellation decision to be revoked, the Applicant stated:
“If I was deported to Sudan I would be homeless. There are no jobs or welfare system in Sudan. I would not be able to make a living and my family could not afford to support me. I would have no money.
Sudan has been at war for many years. It is a dangerous place. None of my family would be able to visit me. If I go to Sudan my connection to my family will be over. I will no longer have a family.”
In the Applicant’s completed Personal Circumstances Form which he submitted in support of his application to the Department to revoke the most current cancellation decision, the Applicant indicated that he had the following concerns about returning to Sudan:
“…my concerns I grew up in Australia I don’t speak the Sudanese language nor do I have any family in Sudan.
…
There still a civil war in Sudan.”
At the hearing the Applicant indicated that he was concerned about returning to Sudan because there was still civil war in Sudan. He said that while he could speak Arabic he could not read or write Arabic. He said that he had no family in Sudan and would be homeless, “like everyone else”. He said that his only option would be to join the army or the rebels as he would not have any other employment prospects.
The Applicant indicated that he had no ongoing medical conditions.
The Applicant indicated that the pastor that had provided a supporting letter was the Applicant’s first cousin on his mother’s side. He said that the chairman of an African community association was a family friend and that his father must have spoken to the chairman in order to provide a letter of support. The Applicant indicated that where the chairman said that the Applicant regretted committing offences, had shown remorse and expressed that he would not repeat such behaviour in the future, that he had not told the chairman these things. The Applicant indicated that his father must have told the chairman these things.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Subparagraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, subparagraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed a number of violent offences in Australia including two counts of robbery in company, assault with intent to rob in company, aggravated assault with intent to rob, affray, assault officer in execution of duty and intimidate police officer in execution of duty. In addition, the Applicant has admitted to, as recently as last year, severely beating a fellow inmate. The Applicant also took a fellow detainee’s mobile phone late last year.
In sentencing the Applicant for the offences for which is convicted in 2016 the sentencing Judge made the following remarks relevant to the seriousness of the offending:
“In light of the evidence there can be no doubt that each of these offences is objectively serious… Generally offences of this kind, including the Blacktown offence are to be regarded as offences of the utmost gravity…
The victim in the first offence was subjected to actual violence by the offender. There can be no doubt that the offender’s act caused the victim to fear for any repercussions that might possibly arise as a result of him biting her on her and breaking the skin of her hand. Notwithstanding this attack upon her the victim was able to thwart the intentions of the offender. Based upon all of the evidence I am satisfied that the offender intentionally inflicted actual bodily harm on the victim [victim’s name].
The victims in the Hyde Park offences were also subjected to violence as I have set out in the facts. Although this offender is not alleged to be the perpetrator of such violence his presence aided the perpetration of that violence. I am satisfied that the offender fully accepts is culpability for these offences in that regard. In relation to each of these offences whilst I am satisfied that actual violence was used and that it constitutes an aggravation of the offence I am of the view that the violence was towards the lower end of the range of the kind of violence that could have been inflicted. I accept that the victims would have been frightened and shocked by both the number of assailants and by what occurred generally.
…
Bearing in mind all of these matters I am satisfied that each of the offences is a serious example of these kind of offences.”
The Direction prescribes that crimes of violence are to be viewed very seriously. Crimes of violence against women are to be viewed very seriously. The victim of the Blacktown offence was a teenage girl. The Direction also prescribes that crimes of violence against vulnerable members of the community or government officials in the performance of their duties are viewed seriously. The Tribunal considers that the first robbery victim who was a homeless person sleeping in a park, was a vulnerable person. Similarly, the Applicant has offended against police officers in the performance of their duties. The Applicant has been convicted of using aggression and threats against police officers and spitting on one of them.
The Tribunal also considers that the sentences of imprisonment imposed on the Applicant are indicative of the seriousness of the Applicant’s offending. For the offences of robbery in company (two counts), assault with intent to rob in company and aggravated assault with intent to rob, the Applicant was sentenced to an aggregate of three years and nine months imprisonment with a non-parole period of two years and three months. The Applicant was subsequently sentenced to eight months imprisonment with a non-parole period of four months for affray.
The Applicant’s offending has been relatively frequent since he was first sentenced in 2012. His most serious offending occurred in 2015.
The Tribunal has taken into account that some of the Applicant’s offences have been linked to alcohol use and that the Applicant has attributed much of his offending to his use of alcohol. The Tribunal has also taken into account that the psychologist who provided a report for the purpose of sentencing the Applicant in 2016 indicated the Applicant showed symptoms of post-traumatic stress disorder and depression. The Tribunal considers that these matters may provide part of an explanation for the Applicant’s offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant’s offending, or its seriousness.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s violent offending has resulted in many members of the Australian community being subjected to violence with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal has also considered that when the Department decided to revoke the cancellation of his visa in 2017, the Applicant was clearly informed that his visa may be cancelled if he committed further criminal offending. The Applicant went on to commit a further violent offence and has admitted to severely beating a fellow inmate the day after his last conviction.
The Tribunal finds that the Applicant’s violent conduct is very serious. Over a significant period of time the Applicant has committed appalling violent offences against numerous members of the Australian community including a vulnerable member of the community, a young woman and police officers.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no expert evidence before the Tribunal as to the risk that the Applicant will reoffend. In a sentencing assessment report for the Applicant by New South Wales Justice, produced for the purpose of assisting the sentencing Judge in sentencing the Applicant on 13 February 2019, the report indicates that the Applicant “has been assessed at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.
The 2016 sentencing Judge, after noting a psychologist’s recommendation that the Applicant required psychological and counselling services for rehabilitative purposes stated:
“Likewise it is impossible to find that he will not reoffend. Whatever the case he should be given the opportunity to engage with the psychological and counselling services identified so that he can as he said he would try and do something about it. In those regards I accept that he has displayed appropriate remorse for his conduct and that he has displayed insight into his offending both as to why he committed the offences and the impact upon others of his criminal conduct.”
The 2019 sentencing Judge made the following comments relevant to recidivism:
“You are the instigator of what ultimately occurs which would, as I indicated on these facts would not have occurred but for you and when one then goes back and looks at your record, you have got a record stretching back some time for violence for the sort of offending that involves you losing your temper and having a problem with your aggression and that is referred in the pre-sentence report indicating you conceded that you are easily annoyed and your aggression is heightened in situations where people do not listen to you or take what you say seriously.
The report also refers to the fact you have a history for violence both in custody and in a community which a record bears out. All those matters indicate, and your lack of accepting supervision up to date, I now note that you have a willingness to engage in supervision and to address these issues but time will tell whether that’s true or not because the record to date does not suggest that you have been positively addressing the matters that keep bringing you back to court which is your own inability to control your temper and your aggression.”
Indeed, the very day after the sentencing Judge made these comments, the Applicant severely beat a fellow inmate who had “annoyed” him.
The 2016 sentencing Judge took into account the psychologist’s opinion that the Applicant had symptoms consistent with post-traumatic stress disorder and that the Applicant had described to her that he had experienced symptoms of depression since he was about 16 years of age. The symptoms appear to be attributed to the Applicant’s unsettled upbringing. The psychologist indicated that the Applicant resorted to alcohol and drugs as a way of coping. The sentencing Judge indicated that he considered the evidence relating to the Applicant upbringing in Sudan in Egypt was capable of supporting a conclusion that he has a low level of moral culpability for his wrongdoing. The sentencing Judge indicated that he would consequently reduce the sentence that he would otherwise have given to the Applicant.
The Tribunal notes that while the sentencing Judge took that approach in relation to the punishment meted out to the Applicant, it is not the primary function of the Tribunal to determine moral culpability and it is certainly no function of the Tribunal to prescribe punishment. The most important functions of the Tribunal in relation to the Applicant’s previous offending are to look at the seriousness and nature of the offending and to consider the risk that the Applicant will reoffend in a similar manner in the future. These issues are central to the consideration of the protection of the Australian community.
The Tribunal also considers that it is important to note that while the psychologist prepared a report in relation to the 2016 proceedings indicating that the Applicant needed significant psychological assistance to deal with the underlying mental issues which contributed to his offending, the Applicant does not appear to have undertaken any psychological counselling. While the Applicant completed a 20 hour aggression program in March 2017, he went on to commit affray while still on parole for his 2016 offences. As recently as last year the Applicant has severely beaten a fellow inmate.
As noted by the 2019 sentencing Judge, the Applicant has a very poor record of disregarding supervisory orders. He has repeatedly breached conditions of his bail, parole and good behaviour bonds.
The Tribunal has taken into account the letters from the chairman of the African community association and the pastor from the Sudanese Church of Christ in 2017 which both indicated that the authors of those letters would provide support to the Applicant in order to ensure that he would not reoffend. The Applicant has gone on to reoffend since those letters were provided to the Department.

The Tribunal has also considered the 2019 letter from the chairman of the African community association which indicated that the Applicant regretted committing his offences, has shown remorse and expressed that he would not repeat such behaviour in the future. The Tribunal has also considered that the chairman indicated that the community would do what it could to assist the Applicant in changing his behaviour to become a more productive member of society. However, the Tribunal places minimal weight on this letter as the Applicant admitted that he has never spoken to the chairman about his offending. He admitted that he had not expressed regret to the chairman and had not told the chairman that he would not repeat his criminal behaviour in the future.
The Tribunal has also considered the email of 5 December 2019 from the Applicant’s former partner in which she expressed that she wished for the Applicant to be able to remain in Australia to support their children. However, that email is of little assistance to the Tribunal in relation to the Applicant’s risk of reoffending as there is nothing in that email which indicates that the Applicant’s partner believes that the Applicant will not reoffend.
The Tribunal is willing to accept that, even though none of his immediate family members provided letters in support of the Applicant, he will have some support from his immediate family if he is allowed to remain in Australia. The Tribunal accepts that there are some prospects of the Applicant securing employment with his uncle’s carpentry business and of completing his carpentry apprenticeship with his uncle. However, the Tribunal considers that the weight that it can give to these considerations is limited considering that the Applicant has had the support of his family in the past and has previously been employed by his uncle, only to go on to reoffend.
The Applicant previously had his visa cancelled and wrote to the Department indicating that he would never reoffend. The Applicant indicated that since he had been convicted in 2016 he had undertaken an aggression program which would prevent him from reoffending. He indicated that he had the support of his family and friends and had good education and employment prospects. He indicated that he would not reoffend as his children would be devastated if he were not able to remain in Australia. On that occasion, the Applicant was given another opportunity to live a lawful life in Australia. As mentioned above, the Applicant was sent a letter indicating that any further offending could result in the cancellation of his visa. Despite all of that, the Applicant went on to breach the conditions of his parole on numerous occasions, to commit the offence of affray and then to severely beat a fellow inmate the day after he was sentenced for affray.
After considering all of the evidence before the Tribunal, the Tribunal considers that there is a high likelihood that the Applicant will continue to engage in violent conduct if he is allowed to remain in Australia.
Indeed, the Tribunal is satisfied that given the Applicant’s intensive criminal history and his failure to cease offending despite the many opportunities that he has been given to rehabilitate himself, and despite the Applicant knowing full well after receiving the warning from the Department that future offending could result in his separation from his family and his removal to Sudan, that it is almost certain that the Applicant will continue to commit violent offences against members of the Australian community if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent conduct is very serious. The nature of the Applicant’s offending involves repeated violent conduct against numerous members of the Australian community.
The Tribunal has found that, if the Applicant were to reoffend in Australia, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences and possibly death.
The Tribunal has found there is high likelihood that the Applicant will engage in violent crime in the future if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Subparagraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by the cancellation of the Applicant’s visa. Subparagraphs 13.2(2) and (3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two children in Australia. A daughter born in November 2012 who is currently seven years of age and a son born in March 2014 was currently six years of age. Although the Applicant claimed at the hearing that he spent three weeks with the children on 2017, there is a report from the New South Wales Department of Corrective Services dated January 2019 which reported that the Applicant told a corrections officer that he had not seen his children since 2015. At the hearing the Applicant indicated that this was incorrect and that he had seen them in 2017. The Applicant admitted that he had only lived with his partner for a period of time in 2013 and that she had moved to Melbourne with the children in 2016 while the Applicant was in jail. The Applicant said that he had never lived in the same household with his son who was born in March 2014. However, the Tribunal is willing to accept that the Applicant last saw both of his children in 2017.
It is not particularly clear how strong the relationship is between the Applicant and his children. The Applicant said that the children visited him while he was in jail. He said that he has maintained regular telephone contact with the children. However, when asked when he last spoke to the children he said he spoke to them on 23 March 2020, and before that he had not spoken to them for about a month. In addition, the Applicant did not know what school the children attended or what their mother’s occupation was. Indeed, the Tribunal has found that the Applicant is not currently in a relationship with his former partner, the children’s mother. In the Applicant’s former partner’s email to the Department dated 5 December 2019, she describes herself as the mother of the Applicant’s children. She did not say that she is the Applicant’s partner. The Applicant’s former partner stated the children “are just starting to become a lot closer to their father”. That statement appears to indicate that the children were not as close to their father prior to December 2019.
In addition, in 2018, the Applicant applied to serve his parole in the ACT. That was where his girlfriend (not his former partner) was living at the time. At that time the Applicant’s former partner and his two children were living in Melbourne. At the hearing the Applicant explained that he did not want to live in the ACT but rather that his girlfriend had made the application. Nonetheless, the Applicant indicated that he had not applied to serve his parole in Melbourne, so that he could be with his former partner and children, as he did not like Melbourne because he had been stabbed there in his youth.
It is clear that the Applicant has not had a parental role in the children’s life for many years. His former partner and her mother provide that role for his children. The Tribunal is willing to accept that more recently the Applicant has established a close relationship with his children and that he speaks with them regularly by telephone.
The Applicant indicated that for a four-month period in 2017 he provided the children with some financial assistance. However, the Tribunal finds that there has been little other financial assistance provided by the Applicant to his children during their lives. Since the children have been born the Applicant has only been employed for some five months (in 2017).
At the hearing, the Applicant indicated that he intended for the Applicant’s mother and the children to relocate to Sydney or Brisbane so that they could all live together. The Tribunal is not willing to accept this claim in the absence of evidence from his former partner to this effect. The Applicant’s former partner is employed in Melbourne, her mother lives in Melbourne, and the children attend school in Melbourne.
The Tribunal finds that if the Applicant is allowed to remain in Australia, he will remain in Sydney, near his parents and siblings. The Tribunal accepts the Applicant’s claim that he is unwilling to move to Melbourne to live with the children there.
The Tribunal accepts that while the Applicant is unlikely to live with his children if he is allowed to remain here, he would be able to visit the children or have the children visit him in Sydney. The Tribunal also considers that, although it is not confident that the Applicant will enter into employment if he remains in Australia, it is more likely that he will provide some financial assistance for his partner and children if he remains here than if he returns to Sudan.
The Tribunal accepts that if the Applicant is removed from Australia it is likely that he will never see his children again in person. It is unclear from the evidence whether he would be able to maintain contact with his children by telephone or other electronic means.
The Tribunal accepts the Applicant’s partner’s evidence that she believes that the children have just started becoming closer to their father and that it would hurt them deeply if they were no longer able to have a relationship with their father. The Tribunal accepts that each of the children would be better off emotionally and perhaps financially if the Applicant is allowed to remain in Australia. The Tribunal considers that this would benefit the Applicant’s children.
The Tribunal accepts that the children will be upset if their father is removed from Australia.
The Tribunal is not convinced that the Applicant will undertake an in person parental role with the children if he is allowed to remain in Australia. As I have said the Tribunal considers that it is most likely that the children will remain with their mother in Melbourne and that the Applicant will remain in Sydney. Whether any role that the Applicant plays in his children’s life will be a positive one will depend in large part on whether the Applicant reoffends. As mentioned previously, the Tribunal considers that there is a high risk that the Applicant will reoffend.
The Tribunal considers that it is in the best interests of the Applicant’s two children for the Tribunal to revoke the cancellation of the Applicant’s visa so that they can maintain some contact with him in Australia. The Tribunal also considers that there is some prospect that the Applicant may help provide for the children financially. The Tribunal considers that the best interests of the Applicant’s children weigh in favour of revocation of the cancellation decision. However, given that the role that the Applicant will play in the children’s lives is likely to continue to be limited, and that if he remained in Australia it appears that it is likely that he will reoffend, the Tribunal has only placed moderate weight on this consideration in the Applicant’s favour.
The Applicant has a three–year-old nephew who lives in Australia. He also said that that three-year-old may have a younger sibling but he is unsure. The nephew is the son of the Applicant’s sister.
The Applicant admits that he has only had very limited contact with his nephew but that he saw him when he was born. He said that they sometimes speak on the telephone when he is speaking with his sister.
While it appears that there is no particularly strong relationship between the Applicant and his nephew, the Tribunal is willing to accept that it is in the Applicant’s nephew’s best interests (and the best interests of the nephew’s sibling if he or she exists) that the Applicant be able to remain in Australia. That is primarily because, the Applicant’s nephew’s mother, the Applicant’s sister, is likely to be upset if the Applicant is removed from Australia. This in turn would be likely to have a negative impact on the Applicant’s nephew. However, the Tribunal places only low weight in the Applicant’s favour on this consideration as it relates to the Applicant’s nephew.
There was also some evidence before the Tribunal that the Applicant has a former girlfriend who has a seven year old son. The Applicant admitted that he is not close to this boy and only met him on one occasion. The Tribunal considers that it is irrelevant to the best interests of that child whether the Applicant remains in Australia.
Conclusion: Primary Consideration B
Overall, the Tribunal accepts that it is in the best interests of each of the Applicant’s children and his nephew for the Tribunal to revoke the cancellation of the Applicant’s visa.
The Tribunal places moderate weight on this consideration as it relates to the best interests of the Applicant’s children. The Tribunal places only low weight on this consideration as it relates to the best interests of the Applicant’s nephew.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed numerous offences between 2012 and 2018.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
Against these factors, the Tribunal has considered that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age (see subparagraph 6.3(5) of the Direction). In circumstances where the Applicant has lived most of his life in Australia, and has lived here since he was 13 years old, the Tribunal considers that the Applicant is to be afforded a higher level of tolerance.
There is no strong evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community (see subparagraph 6.3(7) of the Direction). There is evidence that he completed year 12 in Australia and that he participated in sporting and language classes held by the African community association. He also attended a Sudanese church in Australia. There is also some evidence that he completed two years of a carpentry apprenticeship in Australia.

The Tribunal has also considered that if the cancellation of his visa is not revoked this will have a negative impact on his former partner, his children, and his other immediate family members. The Tribunal finds that there would also be some negative effect, although limited, on his nephew and extended family members. The Applicant claimed, and the Tribunal accepts, that his family members are either all Australian citizens or permanent residents (see subparagraph 6.3(7) of the Direction).
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending, the high risk that he will reoffend, and notwithstanding the negative effects on the Applicant’s children and other immediate family members in Australia if the cancellation of his visa is not revoked and the lengthy time the Applicant has spent in Australia, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under subparagraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
(a) International non-refoulement obligations (and claims of harm or hardship)
Paragraph 14.1 of the Direction provides:
“(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”
As matters stand, there are currently conflicting authorities in the Federal Court as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa. It was thought that this issue would be settled by a five-member bench of the appellate jurisdiction of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”).
In the Omar appeal, a Full Bench of the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) found that they did not need to decide the issue. However, the result of the Full Court decision appears to be that the answer to the question as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa, appears to be of less significance than may have previously been thought.
In short, this is because the Full Court in Omar has found that a decision-maker must give meaningful consideration to clearly articulated claims of harm made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. This will include a decision-maker making findings of fact as to whether the feared harm is likely to eventuate by addressing the claims in the way they have been expressed by the Applicant.
The Full Court emphasised the distinction between the harm, or the risk of harm and hardship that a person claims and the assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations. The assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations will depend on a decision-maker’s findings in relation to the harm or hardship that an Applicant may face if returned.
The Full Court found that a decision-maker must give meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm claimed, independently of a claim concerning Australia’s non-refoulement obligations. There has to be active intellectual engagement with the Applicant’s claims relating to the risk of harm. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
The Full Court found that a decision-maker must do more than simply acknowledge or note that claims of harm that have been made. Depending on the nature and content of the representations, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations.
The Tribunal considers that the result of the Full Court decision in the Omar appeal is that decision-makers must engage properly with, and consider all claims of harm made by an Applicant, including those claims which, if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. Engaging properly with claims of harm made by an Applicant may require a decision-maker to make specific findings of fact including, whether the feared harm is likely to eventuate. The claims of harm must be addressed in accordance with the way that they have been expressed by the Applicant.
If the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon the established facts, this can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[1] The Tribunal must have regard to the representations put as a matter of substance.[2]
[1] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
[2] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Rares and Robertson JJ at [45])
The only evidence about Sudan which is before the Tribunal is a “DFAT Country Information Report: Sudan dated 27 April 2016” (“DFAT Report”) which was tendered by the Respondent’s representative.
The Applicant has not made any express claims that his return to Sudan will be in breach of Australia’s international non-refoulement obligations. In his application for revocation of the cancellation decision the Applicant indicated that he had the following concerns about returning to Sudan:
“…my concerns I grew up in Australia I don’t speak the Sudanese language nor do I have any family in Sudan.
…
There is still a civil war in Sudan.”
In relation to any harm or hardship that the Applicant fears if he were to be removed to Sudan, in a statement dated 17 March 2017 in which he requested for the first cancellation decision to be revoked, the Applicant stated:
“If I was deported to Sudan I would be homeless. There are no jobs or welfare system in Sudan. I would not be able to make a living and my family could not afford to support me. I would have no money.
Sudan has been a war for many years. It is a dangerous place. None of my family would be able to visit me. If I go to Sudan my connection to my family will be over. I will no longer have a family.”
At the hearing the Applicant indicated that he was concerned about returning to Sudan because there was still civil war in Sudan. He said that while he could speak Arabic he could not read or write in Arabic. He said that he had no family there and would be homeless, “like everyone else”. He said that his only option would be to join the army or the rebels as he would not have any other employment prospects.
The Tribunal accepts that the Applicant speaks Arabic but does not read or write in Arabic. The Tribunal does not accept the Applicant’s initial claim that he does not speak Arabic. In the absence of any evidence to the contrary, the Tribunal is willing to accept that the Applicant does not have any known family members living in Sudan. The Tribunal accepts that the Applicant’s family members in Australia are unlikely to visit him in Sudan. Given the Applicant’s relatively low level of education, his lack of employment experience, and given the information in the DFAT report about the low levels of economic opportunity available in Sudan and the high unemployment rate there, the Tribunal accepts that the Applicant may not be able to find employment in Sudan. The Tribunal accepts that in the absence of employment and family support, the Applicant may well end up homeless. There is no evidence before the Tribunal that there is an effective social security system in Sudan.
In relation to the Applicant’s claims of an ongoing civil war, the DFAT report indicates that there is still armed conflict between the Sudanese government and various rebel groups primarily in South Kordofan and the Blue Nile. Khartoum, where the Applicant was born and raised is controlled by the Sudanese government.
The DFAT report also supports the Applicant’s assertion that Sudan is a dangerous place. Under the hearing heading “Security Situation” the DFAT report provides:
“Conflict continues in Darfur as well as South Kordofan and Blue Nile (often referred to as the ‘Two Areas’). The contested region of Abyei is relatively stable, due to the internal preoccupations of both Sudan and South Sudan and successful interventions by the UN Interim Security Force for Abyei. While other areas of Sudan have historically experienced instability, DFAT assesses that the current situation outside of conflict-affected areas (including Khartoum) is relatively stable. This is despite general lawlessness and possible violence throughout Sudan, likely attributable to the proliferation of weapons and the deteriorating humanitarian situation, including increased food insecurity. A further complicating factor is the current conflict in South Sudan, which has resulted in over 220,000 South Sudanese fleeing to safety in Sudan, including eastern areas of Darfur.”
However, the Tribunal is not convinced that the Applicant’s claims to fear harm in Sudan owing to the armed conflict armed conflict there are likely to give rise to international non-refoulement obligations. The Applicant’s claims in relation to “civil war” in the Sudan appear to be put on two bases.
The first is the Applicant fears generalised violence in Sudan owing to the conflict. The second is that in order to support himself, the Applicant will have no choice but to fight for the Sudanese government or the rebels.
Both claims are bound to fail as claims under the Refugees Convention as the Applicant has not identified a Convention reason for the feared persecution. The claims would also fail as complementary protection claims (ones giving rise to non-refoulement obligations under the ICCPR or the CAT) because there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister (or the Tribunal) is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal considers that any risk of harm of generalized violence or joining an army that the Applicant may face as a result of the armed conflict in Sudan are risks faced by the population of the country generally and not faced by the non-citizen personally. The Tribunal considers that there is insufficient evidence before the Tribunal to find that the Applicant’s particular circumstances are such as to differentiate the risk faced by the Applicant owing to armed conflict in Sudan, from that faced by the population of Sudan generally.
While the Tribunal is not satisfied that the non-revocation of the cancellation decision will result in a breach of Australia’s international non-refoulement obligations, the Tribunal has accepted the Applicant’s claims that his removal to Sudan will result in great hardship and possible harm to the Applicant. That hardship could include the Applicant being homeless and unemployed, being harmed as a result of the generalised violence in Sudan or his joining the armed conflict in Sudan resulting in possible injury or death.
Therefore, the Tribunal places significant weight on the harm or hardship that the Applicant is likely to suffer if he is removed from Australia to Sudan.
The Tribunal notes that although it has considered the risk that Australia will breach its international non-refoulement obligations if the Applicant’s visa remains cancelled, there is no legal prohibition on the Applicant applying for a Protection visa. During the hearing the Applicant indicated that he understood the nature of Protection visas and that he would apply for a Protection visa if he was unsuccessful in these proceedings.
The Tribunal also notes that any future Protection visa decision maker will not be bound by my findings in this case. There was a distinct lack of evidence before the Tribunal in this case and the claims that the Applicant made were brief and vague. If the Applicant applies for a Protection visa, which the Tribunal finds is very likely if he is unsuccessful in this application, the Applicant will have the opportunity to put on more detailed claims and evidence to support those claims.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2005 when he was a 13 years old. He has lived in Australia ever since. The Applicant began offending 7 years after his arrival when he was 19 or 20 years old. The Applicant did not begin offending soon after arriving in Australia.
There is no strong evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community. There is evidence that he completed year 12 in Australia and that he participated in sporting and language classes held by the African community association. He also attended a Sudanese church in Australia. There is also some evidence that he completed two years of a carpentry apprenticeship in Australia. The Applicant has also provided some limited financial assistance to his children.
Other than a letter from his cousin who is a pastor, and a short email from his former partner, none of the Applicant’s family members have provided the Department or the Tribunal with a statement in support of the Applicant. The Tribunal accepts that the Applicant’s parents, five sisters and two brothers are Australian citizens or permanent residents. The Tribunal also accepts that the Applicant has a number of extended family members in Australia. Notwithstanding that none of his family members (apart from his pastor cousin) have provided statements in support of the Applicant, the Tribunal is willing to accept that they would wish for the Applicant to remain in Australia. The Tribunal is willing to accept that the Applicant’s family members would be upset and adversely affected if the Applicant were removed from Australia to Sudan. This is especially so given they would have some understanding of the difficulties faced by those in Sudan at present. The Tribunal is willing to accept that they would be worried for the health and safety of the Applicant in Sudan.
The Tribunal does not accept that the Applicant is currently in a relationship with his former partner. The Tribunal accepts the Applicant’s evidence that that relationship ended after the Applicant was imprisoned in 2015. However, the Tribunal does not accept that the couple has reconciled. The Tribunal accepts that there is some contact between the Applicant and his former partner but the Tribunal finds that that contact has been re-established to allow the Applicant have contact with his children. As mentioned previously in the Applicant’s former partner’s email to the Department dated 5 December 2019 there is no mention that the Applicant’s former partner is in a relationship with the Applicant. Only that she is the mother of his children. She also mentioned that her children “…are just starting to become a lot closer to their father…”. In addition, the Applicant does not know where his former partner works or what she does for a living. He does not know where the children attend school.
The Tribunal accepts that the Applicant’s former partner wishes for the Applicant to remain in Australia so that he can provide some support for her children and so that the Applicant and his children can have a relationship. The Tribunal is willing to accept that if the Applicant is removed from Australia to Sudan it will negatively affect his former partner in that it will remove any chance that the Applicant will provide any financial support to his children and probably result of the children never seeing their father again.

Overall, the Tribunal finds that the Applicant has lived here for a significant amount of time since he was 13. The Tribunal is willing to accept that the Applicant has strong ties with his family members in Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
Subparagraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is now 27 years of age and claims that he has no ongoing medical conditions which require treatment. However, the Tribunal has taken into account that a psychologist has previously indicated that the Applicant has shown symptoms of post-traumatic stress disorder and depression which required treatment.
While it is doubtful that the Applicant would have access to psychological treatment in Sudan, the Tribunal considers that this is probably irrelevant as the Applicant is unlikely to seek any psychological treatment in the future, whether in Australia or Sudan, as he has failed to seek such treatment in Australia to date.
The Applicant speaks English and Arabic, which would assist him if he is removed to Sudan. The Tribunal considers that there would be significant cultural barriers which would act as impediments to the Applicant establishing himself in Sudan as he has not lived there since he was between six and eight years old. He has been raised in Australia since the age of 13.
The Applicant has a high school education. The Applicant has almost no work experience in Australia. The Applicant would have no family support or community network in Sudan. He would be without any obvious means to support himself. There is no evidence that the Applicant would be supported by the Government in Sudan as he has been in Australia. As the Applicant has claimed, and the Tribunal has accepted, there is a very real chance that the Applicant will be homeless and destitute.
The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour. The Tribunal notes that it is already made very similar findings in relation to the hardship or harm to the Applicant. To the extent that these considerations overlap, the Tribunal has not doubled up on the weight that it has afforded these types of hardship considerations.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a high risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant’s family that non-revocation would cause and the length of time that the Applicant has spent in Australia since he was a child.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, his two children, and to a far lesser degree his nephew, weighs moderately in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations is a neutral consideration in this case.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal understands that this decision is a harsh one for the Applicant. However, there is a point at which the Australian community can no longer tolerate repeated acts of violence against members of the Australian community by a non-citizen, notwithstanding the potential harm or hardship to the non-citizen or those who care for them which may result from the removal of the non-citizen from Australia. That point has been reached in this case.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

............................[sgd]...........................................
Associate
Dated: 14 April 2020

Date of hearing:

25 and 26 March 2020

Applicant:

Self-represented by video-link

Solicitor for the Respondent:

Ms Grace Ng, Australian Government Solicitor

By video-link

Annexure A
File No: 2019/8601................................................................................................................
Between: ZNNP..................................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)

Heard on: 25 and 26 March 2020………………………………………………………………..
At: Brisbane .................................................................................................................

Exhibit Number Description of Evidence

A1

Applicant’s email dated 20 March 2020

G1

Section 501G Documents

R1

Tender bundle including extracts of summonsed material and DFAT report on Sudan

[2020] AATA 867

14 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Court	Court Date	Offence	Court Result
Mt Druitt Local Court	13 Feb 2019	Affray	Convicted and sentenced to a term of imprisonment for 8 months, with a non-parole period of 4 months.
Downing Centre District Court	18 Aug 2016	Robbery in company (2 counts) Assault with intent to rob in company Aggravated assault with intent to rob	Convicted and sentenced to aggregate term of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months.
Blacktown Local Court	27 Mar 2014	Custody of knife in public place - subsequent offence	Fined $500.
Mt Druitt Local Court	13 Feb 2014	Assault officer in execution of duty Intimidate police officer in execution of duty	Convicted and call up good behaviour bond of 12 months
Blacktown Local Court	7 Jun 2013	Resist or hinder police officer in execution of duty	Fined $500
Use offensive language in/near public place/school	Fined $100
Refuse/fail to comply with direction under part 14	Fined $100
Intimidate police officer in execution of duty	Subjected to a 12 month good behaviour bond
Assault officer in execution of duty	Subjected to an 18 month good behaviour bond
Possess prohibited drug	Fined $200
Possess prohibited drug	Convicted with no other penalty
Goods in personal custody suspected of being stolen	Fined $250
Magistrates Court	7 Nov 2012	Commit public nuisance	No conviction recorded fined $350
Blacktown Local Court	19 Jul 2012	Resist or hinder police officer in execution of duty	Fined $400
Blacktown Local Court	21 Jun 2012	Possess prohibited drug	Fined $250
Use offensive language in/near public place/school	Fined $100
Refuse/fail to comply with direction under part 14	Fined $200

Exhibit Number	Description of Evidence
A1	Applicant’s email dated 20 March 2020
G1	Section 501G Documents
R1	Tender bundle including extracts of summonsed material and DFAT report on Sudan