ZTFH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 910
•21 April 2020
ZTFH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 910 (21 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0554
Re:ZTFH
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Eteuati
Date:21 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 is affirmed
Legislation
Crimes Act 1900 (NSW)
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
Al-Kateb v Godwin [2004] HCA 37
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448FYBR 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 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
DFAT Country Information Report: Sudan dated 27 April 2016
DFAT Country Information Report: South Sudan dated 5 October 2016
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
21 April 2020BACKGROUND
This is an application by ZTFH (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 24 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 2004 as the holder of a GSH visa. The Applicant was 15 years old when he first arrived in Australia. The Applicant arrived with his mother, three brothers and three sisters who also held GSH visas. His youngest sister was born in Australia. His elder brother passed away in a motor vehicle accident in 2011.
The Applicant began offending in 2006, some 2 years after he arrived in Australia. He was first sentenced to a period of imprisonment on the 27 November 2014 when he was sentenced to 8 days imprisonment for fail to appear in accordance with bail acknowledgment.
On 16 March 2018 the Applicant was convicted of reckless wounding and on 15 May 2018, he was sentenced to two years and 14 days imprisonment with a non-parole period of one year and 14 days.
The Applicant was convicted of goods in personal custody suspected of being stolen on 3 April 2019 and fined $500. The Applicant was convicted of larceny and goods in personal custody suspected of being stolen on 12 August 2019 and fined $330 for each offence.
On 24 April 2019, while the Applicant was still in prison for the reckless wounding offence, 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 19 May 2019, the Applicant sought that the cancellation decision be revoked.
On 24 January 2020, the Minister refused to revoke the cancellation of the Applicant’s visa.
On 31 January 2020, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 31 March and 1 April 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 documents tendered into evidence by the Applicant and marked as exhibits A1 to A5 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R2. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
A summary of evidence of witnesses is provided below from paragraph 39 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
…
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
…
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 7 August 2019 shows the following offences committed by the Applicant:
Court Court Date Offence Court Result Blacktown Local Court 12 Aug 2019 Goods in personal custody suspected of being stolen
Convicted and fined $330 Larceny
Convicted and fined $330 Blacktown Local Court 3 Apr 2019 Goods in personal custody suspected of being stolen
Convicted and fined $500. Penrith District Court 15 May 2018 Reckless wounding
Convicted and sentenced to imprisonment for 2 years and 14 days with a non-parole period of 1 year and 14 days Parramatta Local Court 27 Nov 2014 Common assault (DV) Convicted and subjected to a 12 month good behaviour bond Fail to appear in accordance with bail acknowledgement
Convicted and sentenced to 8 days imprisonment Blacktown Local Court 9 Jan 2014 Enter inclosed land not prescribed premises without lawful excuse
Fined $400 Parramatta Local Court
1 Oct 2013 Common assault
Convicted and subjected to a 12 month good behaviour bond Brisbane Magistrates Court 27 Jun 2012 Possessing dangerous drugs Convicted and fined $350 Newcastle Local Court 21 Jan 2009 Affray Convicted and subjected to a 9 month good behaviour bond Richlands Magistrates Court 12 Mar 2008 Commit public nuisance Convicted and fined 250
Holland Park Magistrates Court 31 Aug 2006 Unauthorised dealing with shop goods Convicted and fined $400 Brisbane Magistrates Court 19 Jul 2006 Disobey direction to leave train/railway
No conviction recorded Convicted, fined $50
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.
Paragraph 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 of witnesses
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared 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 witnesses at the hearing in response to questions under cross-examination and from the Tribunal.
The Applicant
The Applicant is a 31 year old who was born in Khartoum, Sudan. The Applicant’s ancestral home is in what is now South Sudan as both of his parents are of the Dinka tribe and they were both born in South Sudan.
The Applicant and his older brother were sent to Egypt when he was between six and eight years old. The Applicant’s mother indicated that she sent her two sons to live with her sister in Egypt in order to avoid them being conscripted to fight in the Sudanese civil war. The Applicant indicated that his father had disappeared when he was very young and that his mother had told him that his father had died fighting in the Civil War. The Tribunal notes that this claim appears inconsistent with certain statements made by the sentencing judge in sentencing the Applicant for reckless wounding in 2018 weather sentencing judge stated:
“He and his siblings were basically raised by his mother. His father spent little time with them and there appears to be no relationship there have any significance. In fact, he and his older brother were concerned about coming to Australia if in fact his father was to accompany them.”
However, for the purposes of this decision, the Tribunal is willing to accept that the Applicant’s father died as a combatant in the Sudanese civil war.
The Applicant’s mother, two younger brothers and three of his sisters joined the Applicant and his brother in Egypt in around 2003. There were granted GSH visas and arrived in Australia on 1 November 2004.
The Applicant indicated that he found it difficult to adjust to life in Australia when he first arrived in Australia as he struggled with the English language and was “different (racially)” from most other Australians. The Applicant indicated that he had struggled at school and only completed year nine in Australia. He indicated that he began drinking alcohol as a way of coping. He said that he also started consuming marijuana and methamphetamine as a coping strategy. The Applicant indicated that this led him to commit crime in Australia.
The Applicant indicated that he was also greatly negatively affected by the death of his only older sibling, his brother, in 2011.
The Applicant said that since his older brother passed away, he had been expected to take on responsibilities within the family as the eldest child. He said that he was responsible for helping his mother care for his younger siblings. Initially, the Applicant also indicated that after his brother’s death, he was responsible for caring for his brothers two children. In the personal circumstances form which the Applicant submitted when requesting revocation of the cancellation decision he stated:
“…As per our African culture, I am entitled to be their father and them to be my children. To date, I have neglected this duty, but I am prepared to take this role seriously in honour of my brother who is deceased…”.
The Applicant indicated that the two children of his deceased older brother were currently cared for by the children’s mother and her partner in Melbourne. The Applicant claimed that if he were allowed to remain in Australia, the children would move to Sydney where he would care for them. He later admitted that he had exaggerated his role in these children’s lives and his responsibility for these children according to African culture.
The Applicant indicated that he was very close with his mother, two brothers and four sisters. He indicated that other than one brother, his mother and all of his siblings lived in the same household. The Applicant indicated that he had lived with his mother and siblings prior to his imprisonment.
The Applicant indicated that his family members had visited him twice weekly when he was being held in prison and immigration detention in New South Wales. The Applicant indicated that since he has been relocated to Western Australia he has maintained regular, daily, contact with his mother and his siblings over the telephone.
The Applicant indicated that in addition to his deceased brother’s two children, one of his sisters had a three month old boy. However, the Applicant indicated that he had had very little contact with that child.
The Applicant indicated that two of his sisters were currently under the age of 18. However, it became clear from the evidence given by the Applicant’s family members that he has only one sibling under the age of 18, a sister who was born in Australia and is currently 15 years old.
The Applicant had indicated that he has held various labouring jobs in Australia. He indicated that he had worked in meat works and for fresh produce companies.
The Applicant claimed that he has assisted newly arrived immigrants from Sudan in integrating into the community. He indicated that he would like to be a role model to young Sudanese Australians.
The Applicant indicated that he would be greatly negatively affected if he had to return to Sudan or South Sudan. He claimed he had no family members in either country. He indicated that all of his family members in Australia were Australian citizens. He indicated that he had not become an Australian citizen as he was unable to pass the citizenship test. The Applicant indicated that all of his family members in Australia and especially his immediate family members including his mother would be devastated if he had to return to Sudan or South Sudan.
The Respondent’s solicitor took the Applicant through his criminal record.
The Respondent’s solicitor took the Applicant to police records relating to his most recent offences of larceny and goods in personal custody suspected of being stolen for which he was convicted on 12 August 2019. Those records indicate that the police observed the Applicant exiting a train which arrived at the Blacktown railway station. Police asked the Applicant to produce his Opal card and he failed to do so. Police found on the Applicant’s person a New South Wales provisional drivers licence belonging to someone else. The Applicant indicated that he could not remember the circumstances relating to these two offences. The Applicant was convicted and fined $330 in relation to each offence.
The Respondent’s solicitor took the Applicant to police records relating to his conviction for goods in personal custody suspected of being stolen for which he was convicted on 3 April 2019. Those records indicate that the Applicant was searched by police in February 2019. He was found in possession of a drivers license, Commonwealth Bank debit card, two Medicare cards and a Virgin rewards card all belonging to someone else. The police contacted the owner of these cards who indicated that he had been dispossessed of the cards when his house was broken into some time ago. When questioned about possessing the cards, the police record indicates that the Applicant indicated that someone else must have put the cards in his bag. At the hearing the Applicant indicated that the cards belonged to his brother’s friend.
The Respondent’s solicitor took the Applicant to the sentencing remarks in relation to his most serious offence of reckless wounding for which he was sentenced on 15 May 2018. The sentencing judge described the offending as follows:
“I am satisfied the following facts are consistent with the jury's findings for the purpose of sentencing the offender.
On 4 November 2015 in Doonside the offender was at a party with a number of other young men who are natives and refugees from the Sudan. Included in that group was the victim, [victim’s name], [witness 2] and another man by the name of [witness 1]. There were other persons present but none are relevant in relation to what occurred. It is clear that the group had been drinking alcohol for some considerable time that day and by the time of the offence they were all intoxicated to differing degrees. I am satisfied the accused was quite intoxicated at the time of the offence.
It would appear during the course of the evening a dispute arose between the offender and the victim in relation to some tribal differences that relate back to their native country. There is some suggestion in the material before me that the offender believed the victim had made a derogatory comment about his mother, although the exact nature of that remark(s) is unclear. It has now become apparent as I understand it that the offender has become aware the victim is actually related to him. However, he was not aware of that at the time, which is somewhat surprising.
In any event, during the night there was loud music being played, people were moving from the outside area of the premises into the lounge room, there was dancing occurring at a time when the victim was seated on the lounge. A heated verbal argument commenced between him and the offender apparently based upon the reasons I have referred to previously. The offender struck the victim to the side of the face whilst holding the glass and caused the relevant injury to [victim’s name].
It is clear from the jury's verdict they did not accept the evidence of [witness 1]. I allowed [witness 1]'s evidence to be adduced at the trial pursuant to s 65 of the Evidence Act on the basis I was satisfied he was legally unavailable. His evidence was read to the jury. He gave a version, if accepted, would have formed an appropriate foundation for the offender to be convicted of the more serious offence being count 1 on the Indictment.
He claimed the offender had gone outside the house into the back yard and smashed a beer bottle. His evidence inferentially suggested the offender used that broken bottle to strike the victim. He also gave evidence the offender had thrown a knife over the back fence, although that was not located in a police search of that area. His evidence was clearly assessed as unreliable by the jury on the basis it was apparent in his interview with Police, conducted shortly after their arrival at the party, that he was significantly intoxicated. His version was also not supported by another person at the party, [witness 2] or by the victim. There was broken glass found in the lounge but it was unclear as to its source or whether it was even connected to the assault upon the victim. I am satisfied the victim was struck and sustained the injury from the glass the offender was holding was in his hand, that the offender knew it was in his hand and that consistent with the jury's verdict, he was reckless as to the consequences of what would occur if he struck the victim with it to the extent that he was aware it would have occasioned the victim actual bodily harm or at least considered that was a possibility.
Shortly after the victim was struck it became apparent he was bleeding, police were called and an ambulance attended. The victim was taken to hospital where he was treated for a laceration to his jaw. It is apparent from the evidence and my observations of him that it does not appear to have caused him any longstanding problems. The laceration was about three centimetres in length and located at the area of the right mandible. He was discharged the same day. I am satisfied these facts are consistent with the jury's finding.”
The Applicant admitted that he had offended in the way described by the sentencing judge. He said that he had been consuming alcohol and methamphetamine at the time of the offending.
It is noted that the Tribunal did not have any material, for example police reports, which described the factual circumstances of the Applicant’s offences between 2006 and 2014.
The Applicant committed the reckless wounding offence in November 2015 while he was subject of a 12 month good behaviour bond which was imposed on the Applicant on 27 November 2014 for the offence of common assault (DV).
The Applicant was asked about the circumstances of the common assault offence for which he was convicted in 2014. The Applicant indicated that he was involved in a fight in Guildford, New South Wales. He then said that he was not involved in a fight. Instead, he said that his girlfriend at the time was visiting him from Melbourne. He said that he and his girlfriend were in a pub and that his girlfriend was very drunk to the point where she was starting fights with other people. The Applicant indicated that he was attempting to take his girlfriend home. He said that he was yelling at her and slapped her. He said that undercover police officers were in attendance at the pub and that the Applicant was placed under arrest once he slapped his girlfriend.
The Applicant then denied that he had ever slapped his girlfriend. Instead, he said that he shouted at her and had raised his hand, in an apparent threat to slap her, but that he never actually slapped her. He said that the undercover police officers must have thought that he had in fact slapped his girlfriend.
On the day that the Applicant was sentenced in relation to the assault in November 2014, he was also sentence for fail to appear in accordance with bail acknowledgement and sentenced to eight days imprisonment. The Applicant indicated that this was the first time he had been imprisoned for an offence.
The Applicant indicated that he could not recall the offence for which he was fined $400 on 9 January 2014 of enter inclosed land not prescribed premises without lawful excuse.
He indicated that his offence for possessing dangerous drugs, for which he was convicted on 27 June 2012 and fined $350, was for possession of marijuana.
The Applicant indicated that his offence of affray, for which he was convicted on 21 January 2009 and subjected to a nine month good behaviour bond, related to him being present at a fight in Newcastle during which his brother was stabbed in the back with a machete.
The Applicant indicated that he could not remember the circumstances of his offense of commit public nuisance, for which he was convicted in March 2008 and fined $250. Similarly, the Applicant claimed that he could not remember the circumstances relating to his conviction for unauthorised dealing with shop goods for which he was fined $400 in August 2006, or his offence of disobeying direction to leave train/railway, for which he was fined $50 without conviction in July 2006.
The Respondent’s solicitor took the Applicant to records from New South Wales Department of Corrective Services which indicated that the Applicant had been found guilty of two Correctional Centre Offences of possess drug implement and create or possess prohibited goods on 13 February 2018 pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW).
Those records indicate that a search of the Applicant’s cell had resulted in correctional officers locating a syringe and a “spark-up” kit. The Applicant was disciplined by being denied visits for 56 days. The records indicate that the Applicant had denied all knowledge and ownership of the items.
At the hearing the Applicant indicated that he had no knowledge of a syringe being located in his cell. He indicated that the “spark-up” kit was in fact tattooing device which had been left in his cell by its former occupant, a friend of the Applicant.
The Respondent’s solicitor took the Applicant to a report by an immigration detention centre officer dated 10 December 2019. That report indicated that the Applicant was involved in a verbal altercation with another detainee. It was reported that the other detainee called the Applicant “a black dog”. The report indicated that the Applicant then chased the detainee around the courtyard and punched him with a closed fist several times on the left side of his face. As the Applicant had not been charged or convicted in relation to this alleged conduct, the Tribunal gave the Applicant the appropriate warnings in relation to the privilege against self-incrimination. The Applicant admitted that he had punched the fellow detainee several times in the face after being racially vilified by the fellow detainee.
The Minister solicitor also put other reports to the Applicant in relation to misbehaviour or misconduct which were alleged against the Applicant by detention centre staff. The Applicant largely denied these reports. In relation to one such report the Applicant admitted to yelling at detention officers as he was frustrated with his family members not being allowed to visit. As the Applicant was not charged or convicted with any offences in relation to these other reports, and the Applicant largely denied the contents of these reports, the Tribunal will place no weight on those reports against the Applicant.
However, the Tribunal will have regard to the Applicant’s admission that he punched the fellow detainee in the face several times and that he was found guilty of two relatively minor Correctional Centre Offences.
In relation to any harm or hardship that the Applicant fears if he were to be removed to Sudan or South Sudan, in his request for revocation of the cancellation decision form the Applicant stated:
“I realise that my actions are very bad as they have led to this cancellation and I do not have another country to return to because of fear of what might happen if I return. My family is all in Australia and I am asking for a chance to make it right and become a good citizen and set an example for youth share my background.”
In the Personal Circumstances Form which the Applicant submitted with his application for revocation of the cancellation decision the Applicant stated:
“I am afraid of my safety. I would rather die than go back to Sudan.
…
I face certain death if I return.”
In a statement provided to the Department by the Applicant the Applicant stated:
“I want to thank you for taking the time in reading my letter but also I wanted to plead with you one more time don’t send me back overseas it’s like a death sentences to me to separate me from my family”
In another handwritten statement provided by the Applicant to the Department the Applicant stated :
“I want to thank Australia for giving our family, my brothers and sisters, a better life and to do more than we could in the country we came from, which was involved in a lot of war.”
At the hearing the Applicant indicated that he feared returning to Sudan or South Sudan as his father had served in the military and the people who killed him may seek to “take their revenge” on the Applicant.
The Respondent’s solicitor asked the Applicant who he thought would seek to take “revenge” on the Applicant. The Applicant said that he did not know.
The Applicant was asked why he thought people would seek to harm him for his father’s involvement in the military many years ago, and how he would be identified by those people. The Applicant answered that news would spread through the community. The Respondent’s solicitor indicated that this was difficult to believe. The Applicant responded:
“Yes, okay. The most important thing I don’t know anyone, I don’t have relatives back home in Sudan. I don’t know where to go, where to live, what to do. All my relatives are here in Australia.”
The Applicant then repeated that he believed that there was an “imminent threat” to him in Sudan because his father had been in the military and because “the troubles still there”.
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.
In the material the Applicant provided to the Department requesting revocation of the cancellation decision, he indicated that he did not have any ongoing medical or psychological conditions. The Applicant confirmed this during the hearing. However, the Applicant said that his mother was an elderly woman who suffered from a number of illnesses including high blood pressure migraines and that she sometimes lost consciousness. The Applicant reiterated that he wished to remain in Australia so that he could provide care and support to his mother and siblings.
The Applicant indicated that he would not reoffend. The Applicant indicated that his time in prison and immigration detention had had a rehabilitative effect on him. He said that his behaviour in the past been unacceptable to his family. He also said that he wanted to provide support to his deceased brother’s two children.
The Applicant admitted that he had not undertaken any rehabilitation courses. However, he indicated that, if he were allowed to remain in Australia, he would be willing to undertake rehabilitation courses.
The Applicant indicated that before he had been imprisoned he had been undertaking a mechanics course. The Applicant indicated that if he were allowed to remain in Australia he wished to finish that course at TAFE and eventually work as a mechanic.
Applicant’s mother
The Applicant’s mother provided a statement to the Department in support of the Applicant. The Applicant’s mother also provided a statement to the Tribunal in support of the Applicant. The Applicant’s mother gave evidence at the hearing by telephone.
The Applicant’s mother indicated that she was the mother of eight children. Her eldest son had passed away in a car accident in 2011. The Applicant was the second eldest child. She said that she had come to Australia with her children as she had hoped to give her children a better life through the better education system and safer environment available in Australia.
The Applicant’s mother indicated that life had changed for her family since the loss of her eldest son. She indicated that the death of her eldest son had affected the Applicant greatly as he was not just the Applicant’s older brother but his best friend. The Applicant’s mother indicated that the Applicant looked up to his older brother and that is older brother supported the Applicant and showed him right from wrong. The Applicant’s mother indicated that the Applicant’s older brother was a father figure to the Applicant as the Applicant’s father had passed away many years ago.
The Applicant’s mother indicated that the Applicant does not speak about his feelings and instead bottles them up. She said that he turned to alcohol as a coping mechanism. She said that when the Applicant was not drinking he was amazing, thoughtful and helpful. She indicated that the Applicant would help her look after his younger siblings. She said that the Applicant had become particularly supportive after the death of his eldest sibling. She said that even during periods where he was imprisoned or in detention he would call her regularly to see how she was doing. She indicated that she would be devastated if the Applicant had to return to Sudan.
The Applicant’s mother indicated that, although the Applicant had been born in Khartoum in Sudan, his ancestral home was what is now known as South Sudan. She said that after the countries split in 2011, people of the Dinka tribe were required to return to their ancestral home in South Sudan. Indeed she said that she has returned to South Sudan on two occasions since migrating to Australia, once in 2006 for the death of her brother, and again in 2016 for the death of her brother’s wife. The Applicant’s mother indicated that she wanted to ensure that her brother’s children were properly cared for in South Sudan. She indicated that her brother’s children were being cared for by her aunt. She indicated that, apart from her aunt, she had no other family in Sudan or South Sudan. The Applicant’s mother did not report that she was harmed or threatened during either visit to South Sudan.
The Applicant’s mother indicated that her eldest son had three children to two women. He had daughters aged 13 and 11 with one woman and a daughter aged 12 with another.
Applicant’s sisters
The Tribunal had before it statements from the elder two of the Applicant’s four sisters. Both sisters gave evidence at the hearing by telephone.
The evidence of both sisters was very similar and consistent. It was also was consistent with much of the evidence of the Applicant’s mother. Both sisters indicated that the family had relocated from Sudan. They both indicated that their brother, the Applicant, was a good person who had always been supportive of their family and had taken on more family responsibility after the death of their eldest brother. They both indicated that the Applicant was very supportive of their mother. They both indicated that the Applicant had been severely adversely affected by the death of their elder brother, the Applicant’s best friend. They indicated that the Applicant had a problem with alcohol and that he had associated with “negative friends”. They believed that the Applicant’s offending was the result of his alcohol consumption and “hanging out with the wrong crowd”. The Applicant’s sisters indicated that the Applicant was an integral part of their family and that they would be devastated if he had to return to Sudan or South Sudan. They indicated that their mother, in particular, would be devastated.
The sisters indicated that their eldest brother had three children. They said that all three daughters lived in Melbourne with their mothers. They said that the daughters aged 13 and 11 continued to have close contact with the family and maintained a relationship with the Applicant. They said that those two sisters had visited the family in Sydney earlier this year. They said that those sisters had visited the Applicant in detention on that occasion. The Applicant sisters indicated that the family had lost contact with the 12-year-old daughter of their eldest brother as her mother had not kept in contact with the family.
The Applicant’s friend
The Applicant’s friend had provided a statement to the Tribunal in support of the Applicant. He also gave evidence by telephone during the hearing.
The Applicant’s friend indicated that he had met the Applicant about four or five years ago just before he was taken into criminal custody. The Applicant’s friend lost contact with the Applicant soon thereafter. The Applicant’s friend indicated that, when he met the Applicant, the Applicant had addictions to drugs and alcohol. He said that he had gone into drug and alcohol rehabilitation and had thought that the Applicant had done the same. The Applicant’s friend said that, unlike his other friends, the Applicant had not tried to influence him to participate in criminal activity or to take prohibited substances and had instead tried to help him better himself.
The Applicant’s friend indicated that he had had his visa cancelled as he had been sentenced a period of imprisonment of over 12 months. He said that he spent 14 months in immigration detention in Villawood. The Applicant’s friend indicated that he reformed his friendship with the Applicant after they met in Villawood in 2018 or 2019.
The Applicant’s friend indicated that he had been to jail three or four times and on the last occasion he went to jail for three years.
The Tribunal raised with the Applicant’s friend whether he believed that it was beneficial to the Applicant to have continued involvement with someone who had previously had drug and alcohol problems and had been to prison on multiple occasions in the past. The Applicant’s friend said that he did because he had changed and he did not intend to influence the Applicant to commit crimes in the future or “doing any crimes together”.
Applicant’s sister’s partner
The Tribunal also had before it a letter of support from one of the Applicant’s sister’s partners. Although the Tribunal made numerous attempts to contact this person by telephone during the hearing, he was not contactable.
In the Applicant’s sister’s partner’s statement he said that the Applicant was a wonderful caring individual. He said that he knew that the Applicant had had a difficult life and that he had previously used alcohol as a coping mechanism. He indicated that the Applicant could have given much to society.
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. Paragraph 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 reckless wounding, two counts of common assault and affray. In addition, the Applicant has admitted to, as recently as last year, hitting a fellow detainee in the face multiple times.
In sentencing the Applicant for the offences for which is convicted in 2018 the sentencing Judge made the following remarks relevant to the seriousness of the offending:
“In assessing this type of offence, I am satisfied it is appropriate to take into account the extent and nature of the injuries and whether they had any serious or significant impact upon the victim. The wound as I have indicated was not life-threatening nor was it likely to cause lasting physical damage. The injuries appeared to have healed satisfactorily and in that regard I am satisfied the impact of that factor upon the seriousness of the offence is towards the lower end.
I also take into account the degree of violence. In doing so, it is appropriate to take into account factors such as the ferocity of attack or the degree of violence used. I am satisfied in respect of this offence that the offender's degree of intoxication and possibly some degree of provocation in relation to what the victim was saying to him, caused him to respond spontaneously in the violent manner that he did and there was only one blow struck. Again I am satisfied that factor would place it towards the lower end of objective seriousness. Here the mental element is that he was reckless when he committed the act. As I have said, I am satisfied it was a spontaneous act.
It was not a situation of gratuitous violence or any premeditation. Clearly, he must have been aware that when he struck the victim with the glass in his hand it was likely to occasion actual bodily harm. Overall I am satisfied, taking into account all those factors, that the offence falls towards to the lower end of objective seriousness in respect of this type of offending.”
The Applicant indicated that one of his two common assault offences involved in a fight. He then changed his evidence and said that the offence involve him slapping his girlfriend. He then changed his evidence again indicated that he did not in fact slap his girlfriend but that the undercover police officers who had been present during the offence had thought that he had slapped his girlfriend. For the purposes of this decision the Tribunal finds that the Applicant assaulted his girlfriend. The Applicant’s claim that he did not assault his girlfriend is inconsistent with his conviction for assault. 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.
The Applicant claimed to have no memory of the circumstances relating to the second charge of common assault for which the Applicant was convicted. The Tribunal has no further information about this offence.
The Applicant indicated that his conviction for affray related to a fight in which the Applicant was present where his brother was stabbed in the back with a machete. The Applicant indicated that he did not participate in any way in the fight.
Section 93C of the Crimes Act 1900 (NSW) provides for the offence of affray. It relevantly provides:
“(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section, a threat cannot be made by the use of words alone.
…”
Again, the Tribunal finds that the Applicant’s description of the circumstances of his offence for affray is inconsistent with his conviction for the offence. For the Applicant to have been convicted of the offence he, or he and others, would have had to have used or threatened unlawful violence towards another and his conduct would have had to have been such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. At very least, the Applicant would have had to have pleaded guilty and thus admitting to satisfying the elements of the offence.
The Direction prescribes that crimes of violence are to be viewed very seriously. Crimes of violence against women are to be viewed very seriously. One of the common assault offences involved the Applicant assaulting his former girlfriend.
The Tribunal also considers that the sentence of imprisonment imposed on the Applicant for his reckless wounding offence is indicative of the seriousness of the Applicant’s offending, notwithstanding that the sentencing judge found that “the offence falls towards to the lower end of objective seriousness in respect of this type of offending.”
For the offence of reckless wounding the Applicant was sentenced to two years and 14 days imprisonment with a non-parole period of one year and 14 days.
For the offence of affray the Applicant was subjected to a nine month good behaviour bond and he was subjected to a 12 month good behaviour bond for each of the subsequent common assault offences. The Tribunal has noted that the Applicant was subject to a good behaviour bond for common assault when he committed the offence of reckless wounding.
It does not appear that the Applicant has provided false or misleading information to the Department, such as to justify any significant increase in an assessment of the seriousness of the offending or its nature.
The Applicant has not been convicted of an offence after being given a warning in writing about the consequences of further offending in terms of his migration status.
The Applicant has not been convicted of committing a crime while in immigration detention; during an escape from immigration detention; or after an escape from immigration detention.
The Tribunal has taken into account that some of the Applicant’s offences have been linked to alcohol and drug 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 2018 indicated the Applicant had been exposed to a history of multiple traumas and substantial adversities. 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 a number of members of the Australian community being subjected to violence with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal finds that the Applicant’s violent conduct is serious and his offence of reckless wounding is very serious. The Applicant has committed violent offences against a number of members of the Australian community including a former girlfriend.
In addition to the Applicant’s violent offences the Applicant has committed a number of offences of dishonesty including larceny, two counts of goods in personal custody suspected of being stolen, and unauthorised dealing with shop goods. These offences were far less serious than the Applicant’s violent offences and that is reflected by the punishment meted out to the Applicant in the form of fines.
The Applicant’s remaining offences of fail to appear in accordance with bail acknowledgement, enter inclosed land not prescribed premises without lawful excuse, commit public nuisance, disobey direction to leave train/railway and possess dangerous drugs tend to show a general disregard for the law but are by no means as serious as the Applicant’s violent offending.
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.
If the Applicant were to re-engage in criminal conduct similar to his crimes of dishonesty, members of the community may be dispossessed of their belongings. However, the Tribunal notes that these offences were relatively minor.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In the sentencing remarks for the Applicant’s offence of reckless wounding for which he was convicted in 2018, the sentencing judge referred extensively to reports produced by a psychologist, Dr Bennett and a pre-sentence report by Ms McMillen. Under the heading “Prospects of Rehabilitation and Likelihood of Reoffending” the sentencing judge made the following remarks:
“Ms McMillen assesses him as a medium risk of reoffending. She identifies a number of factors that need to be addressed. Not surprisingly, one is furthering his education particularly in relation to becoming literate in English that would be a significant factor to militate against him offending in the future. It would appear in view of some of the skills he has learnt whilst in custody, that employment in a specific skilled field may be a prospect in the future, in contrast to his unskilled work in the past. He will need to be careful about his companions and needs to deal with his alcohol and drug issues. I suspect in view of his traumatic background the foundation for that abuse lies in the emotional trauma he suffered as a child and young man.
Dr Bennett says at p 8,
"In order to avoid reoffending, [Applicant’s name] would greatly benefit from psychological counselling for anger management, where he can learn skills such identify and regulating emotions, problem solving and inter personal situations and using non-violent and assertive strategies. Psychological counselling for anger management is particularly important for [Applicant’s name] because he has multiple offences for assault and made reference to using violence, in response to situations where he feels someone has offended him".
She also says that he would need to address his alcohol and Ice abuse. She opines that through his exposure to community violence he has internalised violence as a coping strategy for dealing with conflict. The fact that he had a meagre exposure to formal education where he could have learnt more complex communication strategies, including assertive communication and problem solving and inter personal situations, has no doubt underlined his offending in a violent manner.
She says,
"It is my opinion that [Applicant’s name]'s culture and experiences in his younger years, have shaped many aspects of his functioning and he does display behaviours consistent with traumatised individuals, including being avoidant of thinking about trauma and avoidance of thinking too deeply about emotions, which likely served as a survival mechanism for him in his earlier years".
She further notes, "That he found alcohol assisted him in avoiding memories of past traumas and out of that developed a pattern of alcohol abuse".
I am satisfied that his background is a particularly deprived and for him a disturbing one which has had a significant impact upon his behaviour and is causally connected to the commission of this type of offending reinforcing the resolution of conflict in a violent matter. He would fall within a category of deprived individuals that the High Court has recognised (Bugmy 2013 HCA 37) entitles them to a greater degree of leniency than would otherwise be extended to those committing offences of this nature.
On the material before me I am satisfied there is some hope that his prospects for rehabilitation may be able to be achieved. Ms McMillen says he has articulated insight into his impact upon the victim and he appears motivated to address his criminogenic factors. She says he appears to be motivated to address these factors through participating in targeted interventions. She has identified his extensive alcohol and drug use issues as obvious factors to be addressed. The fact that he has taken responsibility for his offending behaviour and articulated insight into the impact on the victim indicates there is some hope he will engage in rehabilitation in the future.
That is certainly consistent with the manner in which he has addressed me in the letter which is exhibit 2 in these proceedings. Dr Bennett also endorses the fact that he appears, at this stage of his life, to be prepared to commence to address his underlying criminogenic factors. I am therefore prepared to make a cautious positive assessment that if he undertakes the treatment programs which are identified in some particular detail in Dr Bennett's report and Ms McMillen's report, that he has reasonable prospects for rehabilitating in the future and not reoffending. The sentence I intend to impose upon him will give him the opportunity to demonstrate that for a considerable period of time within the community. I have taken into account his mental health issues. I do not propose to reiterate them other than to indicate they are factors that I have identified as relevant in relation to his subjective background and the mitigating factors that I have taken into account.”
The Tribunal largely accepts the sentencing judge’s remarks in relation to the Applicant’s risk of reoffending and his prospects of rehabilitation. However, the Tribunal still has some real concerns that the Applicant will continue to reoffend.
The psychologist’s report which was relied heavily upon by the sentencing judge indicated that the Applicant required much assistance in order to reduce the risk that he would reoffend. That assistance included undertaking further English-language courses, that the Applicant would have to be careful of the company which he kept, that he would have to address his drug and alcohol problems that he should undertake psychological counselling for anger management, where he can learn skills such identify and regulating emotions, problem solving and inter personal situations and using non-violent and assertive strategies. The report indicated that psychological counselling for anger management was particularly important for the Applicant as he has multiple offences for assault and made reference to using violence, in response to situations where he feels someone has offended him.
The Applicant was released on parole on 5 November 2018. As the Respondent’s solicitor submitted, the Applicant has not undertaken any rehabilitative courses. While it is accepted that the Applicant has had limited opportunity to undertake any rehabilitative courses, the fact remains that the Applicant has yet to undertake the type of rehabilitative courses suggested by the psychologist, and as such, it is likely that the Applicant’s risk of reoffending remains at a medium level. Indeed, rather than undertake any rehabilitative courses, the Applicant went on to reoffend shortly after his release on parole. He committed the offence of goods in personal custody suspected of being stolen in February 2019 and then went on to commit the offences of larceny and goods in personal custody suspected of being stolen in March 2019. Those offences resulted in the Applicant breaching parole and he was re-imprisoned on 21 March 2019. As recently as December 2019, the Applicant admitted to punching a fellow detainee with a close fist several times to the side of the face. The Tribunal accepts that the Applicant reacted in this way after the detainee racially vilified him. The Tribunal accepts that there was no excuse for the fellow detainee doing so. However, while the Tribunal accepts that the Applicant was provoked by the fellow detainee he responded by physically beating him.
Against this evidence which supports the view that the Applicant continues to present a real risk of reoffending, there are a number of matters which support the view that the Applicant has some prospects of rehabilitation. They include that the Applicant has said that he has not used illegal drugs since being imprisoned in relation to his reckless wounding offence in mid-2017. The Applicant also claims that he has not consumed alcohol since last being detained in March 2019.
The Tribunal has considered the statements of the Applicant’s friends and family members in support of the Applicant. The Tribunal accepts that the Applicant has a supportive family who will try their hardest to ensure that the Applicant does not reoffend. The Applicant has had a history of employment in Australia and wishes to complete his mechanics course of that he can work as a mechanic.
The Respondent’s solicitor pointed out that the Applicant was not deterred from reoffending by the sentences handed down by the courts in the past and has continued to reoffend notwithstanding the support that he has always had from his family.
The Tribunal accepts the sentencing judge’s remarks that the Applicant has had a traumatic and unfortunate past including having to flee a war-torn country and losing his father and brother. The Tribunal accepts that these matters, and the Applicant’s use of drugs and alcohol as a method of coping with his past, provide a partial explanation for the Applicant’s offending. The Tribunal understands that these matters were taken into account in mitigation by the sentencing judge. However, for the purposes of determining the risk that the Applicant presents to the Australian community, his reduced moral culpability for his offending owing to his traumatic past is not the most relevant or important consideration. Rather, the fact that the Applicant has unresolved and untreated mental issues owing to the trauma that he has faced in the past is a factor which would tend to suggest that a real risk of reoffending remains. 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 is unconvinced by the Applicant’s claim that his time in jail and immigration detention and his desire to remain in Australia to care for his mother and siblings and their children have removed the real chance that the Applicant will reoffend. As mentioned above, the Applicant has admitted to violently beating a fellow detainee as recently as December 2019.
The Tribunal accepts that if the Applicant were to undertake the various prescribe rehabilitative courses and actions suggested by the psychologist that the risk presented by the Applicant of reoffending may be reduced. However, as matters stand, the Applicant has not undertaken any of those courses and it is unclear whether the Applicant is likely to take any such courses in the future.
After taking all these matters into account, the Tribunal is willing to accept the only determination of risk of re-offending which is before the Tribunal in relation to the Applicant’s risk of reoffending. That is the determination in the pre-sentence report by Ms McMillen prepared for sentencing for the offence of reckless wounding for which the Applicant was sentenced in 2018. That determination was that the Applicant presents a medium risk of reoffending.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent offending conduct is serious and that his reckless wounding offence was very serious. The Tribunal considers that the Applicant’s other offences, are by comparison, far less serious. The nature of the Applicant’s offending, and in particular his violent offending, have been described in detail above.
The Tribunal has found 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 Tribunal has found that if the Applicant were to re-engage in criminal conduct similar to his crimes of dishonesty, members of the community may be dispossessed of their belongings. However, the Tribunal notes that these offences were relatively minor.
The Tribunal has found there is medium likelihood that the Applicant will reoffend 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 13.2(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 does not have any children of his own in Australia.
The Applicant has three nieces aged 13, 12 and 11 who live in Australia. They are the daughters of the Applicant’s deceased brother. The Applicant also has a three-month-old nephew who is the son of one of his sisters. In addition, the Applicant’s youngest sibling, a sister, is 15 years old.
Initially, the Applicant also indicated that after his brother’s death, he was responsible for caring for his brother’s two children. The Tribunal notes that evidence of the Applicant’s mother and his sisters is that the Applicant’s deceased brother had three children from two mothers. A 13-year-old and an 11-year-old with one woman, and a 12-year-old with another woman. The Applicant appeared to be unaware of his 12-year-old niece.
In the personal circumstances form which the Applicant submitted when requesting revocation of the cancellation decision he stated:
“…As per our African culture, I am entitled to be their father and them to be my children. To date, I have neglected this duty, but I am prepared to take this role seriously in honour of my brother who is deceased…”.
The Applicant indicated that the two children of his deceased older brother were currently cared for by the children’s mother and her partner in Melbourne. The Applicant claimed that if he were allowed to remain in Australia, the children would move to Sydney where he would care for them. He later admitted that he had exaggerated his role in these children’s lives and his responsibility for these children according to African culture. The Tribunal accepts the Applicant’s evidence that he exaggerated his role in these children’s lives. None of the other witnesses including his mother and two sisters indicated that the Applicant was responsible for his deceased brother’s children. In addition, he did not appear to be aware of the 11-year-old’s real name.
It appears that the 13-year-old and 11-year-old have been raised by their mother and her partner and that they have lived in Melbourne for a number of years now. The Tribunal does not accept the Applicant’s initial claim that the mother of the children would give up custody of those children to the Applicant if the Applicant were to remain in Australia. It appears that the 12-year-old lost contact with the rest of the family some time ago. The Tribunal considers that the best interests of that child will not be affected by the Applicant’s departure from Australia.
The Tribunal is willing to accept that is in the best interest of the 13-year-old and the 11-year-old for the Applicant to remain in Australia. Although there is no evidence that the Applicant has ever provided financially for these children, or has ever had a parental role in relation to them, the evidence before the Tribunal is that those children continue to have contact with the Applicant. The Tribunal accepts that the children have some telephone contact with the Applicant and that they visited the Applicant in Villawood while visiting Sydney earlier this year. The Tribunal considers that because these children have some relationship with the Applicant, it would be in their best interests if he remained in Australia so that that relationship could continue. The Tribunal accepts that each of the children may be upset if the Applicant was removed from Australia. In addition, the Tribunal accepts that each of the Applicant’s immediate family members would be distraught if the Applicant were to be removed from Australia. This may in turn have a negative impact on, not only the Applicant’s 13-year-old and the 11-year-old nieces, but also on his three-month-old nephew. In that way, the Tribunal accepts that it is also in the best interests of the Applicant’s three-year-old nephew that he be allowed to remain in Australia.
The Tribunal also accepts that it is in the best interests of the Applicant’s youngest sibling, his 15-year-old sister, that he be allowed to remain in Australia. The Tribunal accepts that the Applicant is very close to his sister and that she would be significantly adversely affected by his removal from Australia. The Tribunal accepts that the Applicant’s mother would be particularly distraught if the Applicant were to be removed from Australia. This would be likely to cause further distress to the Applicant’s 15-year-old sister.
The Tribunal has also considered that there is some prospect that if the Applicant were allowed to remain in Australia that he would provide emotional and possibly financial support to his immediate family members. This would also be in the best interests of the Applicant’s 15-year-old sister and possibly his three-month-old nephew.
There is no evidence that the Applicant has ever abused any of these children in any way. Indeed the evidence before the Tribunal is that the Applicant has been a supportive and integral member of his family. There is no evidence of any of the children suffering any trauma arising from the Applicant’s conduct.
Conclusion: Primary Consideration B
For the purposes of this decision, the Tribunal is willing to accept that, with the exception of the Applicants 12-year-old niece, it is in the best interests of each of the children mentioned above for the Tribunal to revoke the cancellation of the Applicant’s visa.
As the Applicant does not play a parental role in the lives of any of these children, and is unlikely to do so in the future, the Tribunal places only moderate weight in the Applicant’s favour on this consideration.
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 2006 and 2019.
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 15 years old, the Tribunal considers that the Applicant is to be afforded a higher level of tolerance.
There is some 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 has had some employment in Australia. The Applicant has also claimed that he has provided some assistance to immigrants from Sudan or South Sudan in adjusting to life in Australia. The Tribunal is willing to accept this claim. The Tribunal also considers that the Applicant has provided support to his mother and his siblings, especially since his eldest sibling died in 2011.
The Tribunal has also considered that if the cancellation of his visa is not revoked this will have a negative impact on his mother, his siblings and his other family members in Australia. The Applicant claimed, and the Tribunal accepts, that his family members are all Australian citizens (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 medium risk that he will reoffend, and notwithstanding the negative effects on the Applicant’s 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” (“Sudan DFAT Report”) which was tendered by the Respondent’s representative. Similarly, the only evidence about South Sudan which is before the Tribunal is a “DFAT Country Information Report: South Sudan dated 5 October 2016” (“South Sudan DFAT Report”).
The Applicant has not made any express claims that his return to Sudan or South Sudan will be in breach of Australia’s international non-refoulement obligations.
In relation to any harm or hardship that the Applicant fears if he were to be removed to Sudan or South Sudan, in his request for revocation of the cancellation decision form the Applicant stated:
“I realise that my actions are very bad as they have led to this cancellation and I do not have another country to return to because of fear of what might happen if I return. My family is all in Australia and I am asking for a chance to make it right and become a good citizen and set an example for youth share my background.”
In the Personal Circumstances Form which the Applicant submitted with his application for revocation of the cancellation decision the Applicant stated:
“I am afraid of my safety. I would rather die than go back to Sudan.
…
I face certain death if I return.”
In a statement provided to the Department by the Applicant the Applicant stated:
“I want to thank you for taking the time in reading my letter but also I wanted to plead with you one more time don’t send me back overseas it’s like a death sentences to me to separate me from my family”
In another handwritten statement provided by the Applicant to the Department the Applicant stated :
“I want to thank Australia for giving our family, my brothers and sisters, a better life and to do more than we could in the country we came from, which was involved in a lot of war.”
At the hearing the Applicant indicated that he feared returning to Sudan or South Sudan as his father had served in the military and the people who killed him may seek to “take their revenge” on the Applicant.
The Respondent’s solicitor asked the Applicant who he thought would seek to take “revenge” on the Applicant. The Applicant said that he did not know.
The Applicant was asked why people would seek to harm him for his father’s involvement in the military many years ago, and how he would be identified by those people. The Applicant answered that news would spread through the community. The Respondent’s solicitor indicated that this was difficult to believe. The Applicant responded:
“Yes, okay. The most important thing I don’t know anyone, I don’t have relatives back home in Sudan. I don’t know where to go, where to live, what to do. All my relatives are here in Australia.”
The Applicant then repeated that he believed that there was an “imminent threat” to him in Sudan because his father had been in the military and because “the troubles still there”.
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 accepts that the Applicant speaks English, Arabic and Dinka. 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 or South Sudan other than his mother’s aunt who lives in South Sudan. The Tribunal accepts that the Applicant’s family members in Australia are unlikely to visit him in Sudan or South Sudan. Given the Applicant’s low level of education, his employment experience as a labourer, and given the information in the DFAT reports about the low levels of economic opportunity available in Sudan and South Sudan, and the high unemployment rates there, the Tribunal accepts that the Applicant may not be able to find employment in Sudan or South 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 either Sudan or South Sudan.
The Tribunal does not accept the Applicant’s claims that he fears “revenge” by the people that killed his father or that the Applicant would be targeted as a family member of a person that fought in the Sudanese Civil War. The Applicant could not identify who he thought would harm him or why anyone would want to harm him because his father fought in the Sudanese Civil War over 15 years ago. There is no evidence before the Tribunal that family members of those who took part in the Sudanese Civil War are currently targeted in the way suggested by the Applicant. Indeed, the Tribunal does not accept that the Applicant has any subjective fear that he will be harmed because his father fought in the Civil War. He did not raise this claim prior to the hearing. In addition, his mother, the wife of his father, has returned twice to South Sudan and did not report that she was harmed or threatened because her husband was a combatant in the Sudanese Civil War.
The Tribunal accepts that there are still armed conflicts in both Sudan and South Sudan and that both countries are particularly dangerous places for the populations of both countries.
However, the Tribunal is not convinced that the Applicant’s claims to fear harm in Sudan owing to the armed conflict there are likely to give rise to international non-refoulement obligations. To the extent that the Applicant claims to fear generalised violence in Sudan owing to the conflict, that claim is bound to fail as a claim 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 that the Applicant may face as a result of armed conflict in Sudan or South Sudan are risks faced by the populations of those countries 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 or South Sudan, from that faced by the populations of those countries 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 or South Sudan will result in great hardship and possible harm to the Applicant. That hardship could include the Applicant being homeless and unemployed and being harmed as a result of the generalised violence in Sudan or South Sudan.
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 or South 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.
There is however another issue relating to hardship to the Applicant which arises on the material before the Tribunal which may potentially seriously adversely affect the Applicant if his visa remains cancelled. That is the prospect of prolonged detention in Australia. That possibility arises as there has been no definitive assessment by the Department as to the Applicant’s country of nationality, or indeed whether he has one. The Minister’s delegate, in their decision not to revoke the cancellation of the Applicants visa refers to both Sudan and South Sudan interchangeably as if they were the same country. The Respondent’s written submissions do the same.
In the Applicant’s request for revocation of the cancellation decision he claims to be a citizen of Sudan and that both his parents were Sudanese at birth. In fact, prior to the hearing it does not appear that the Applicant ever claimed to be a citizen of South Sudan or to be entitled to citizenship of South Sudan. That is unsurprising as the state of South Sudan did not exist when the Applicant departed Sudan. During the hearing both the Applicant and his mother indicated that while the Applicant was born in Khartoum, in Sudan, that the Applicant’s ancestral home was in what is now known as South Sudan. The Applicant’s mother indicated that members of the Dinka tribe returned to South Sudan when it became an independent nation in 2011.
There is no evidence that, as a matter of practicality, either of these countries would accept the Applicant as a national of that country. There is no evidence of how long it may take to establish that the Applicant was a national of either of these countries. Even if one of these countries accepted that the Applicant was a national of that country, there is no evidence before the Tribunal that either country would accept removal of the Applicant to either country.
As the result of this lack of certainty as to the Applicant’s country of nationality, it is not clear how long it would take, if ever, for Sudan or South Sudan to accept removal by Australia of the Applicant to one of those countries.
Circumstances may arise in cases where, from a practical perspective, irrespective of any non-refoulement obligations, it is not possible or reasonably practicable to remove an Applicant from Australia: see for example the circumstances in Al-Kateb v Godwin [2004] HCA 37. In circumstances where it is not reasonably practicable to remove a non-citizen, because, for example, the proposed receiving country will not accept the non-citizen, that person will not be able to be removed, not because of Australia’s non-refoulement obligations, but because the proposed receiving country will not accept them. This conclusion is in no way at odds with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, where his Honour found, that as a matter of law, a person in respect of whom international non-refoulement obligations was owed could not be detained indefinitely because of the effect of section 198 when read with section 197C of the Act. That is, those provisions make it clear that the fact that a person is owed non-refoulement obligations does not make it reasonably impracticable to remove an applicant. Indeed, holding a person in detention in Australia cannot be a breach of Australia’s international non-refoulement obligations.
Prolonged detention is however a real possibility for the current Applicant, and this would obviously result in significant harm or hardship to him. The Tribunal considers that the possible prolonged detention of the Applicant, along with the other hardships that have been already identified in these reasons weigh significantly in the Applicant’s favour.
(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 2004 when he was a 15 years old. He has lived in Australia ever since. The Applicant began offending 2 years after his arrival when he was about 17 years old.
There is some evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community. There is evidence that he has had some employment in Australia. The Applicant has also claimed that he has provided some assistance to immigrants from Sudan or South Sudan in adjusting to life in Australia. The Tribunal is willing to accept this claim. The Tribunal also considers that the Applicant has provided support to his mother and his siblings, especially since his eldest sibling died in 2011.
The Tribunal accepts that all of the Applicant’s family members in Australia are Australian citizens. The Tribunal accepts that his mother and each of his siblings would be devastated if the Applicant was removed from Australia. This is especially so given they would have some understanding of the difficulties faced by those in Sudan and South Sudan at present. The Tribunal is willing to accept that they would be worried for the health and safety of the Applicant in Africa.
The Tribunal is also willing to accept that if the Applicant were to remain in Australia, he would be likely to provide emotional and other support to his family members, especially his ailing mother. The Tribunal has taken into account that his family members, including his mother, have had to make do without the Applicant’s direct support for some time as a result of his imprisonment and detention.
Overall, the Tribunal finds that the Applicant has lived here for a significant amount of time since he was 15. The Tribunal accepts 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 31 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 a mental health issues which require treatment as a result of his traumatic past.
While it is doubtful that the Applicant would have access to psychological treatment in Sudan or South 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, Arabic and Dinka, which would assist him if he is removed to Africa. The Tribunal considers that there would be significant cultural barriers which would act as impediments to the Applicant establishing himself in Sudan or South 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 15.
The Applicant has only completed education to year nine. The Applicant has some work experience as a labourer in Australia. The Applicant would have no family support or community network in Sudan or South Sudan. He would be without any obvious means to support himself. There is no evidence that the Applicant would be supported by the Governments of Sudan or South 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 has 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 serious, that there would be great harm to members of the Australian community if they were repeated and that there is a medium 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 15-year-old sister, two of his nieces and a 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 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 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
................................[sgd].......................................
Associate
Dated: 21 April 2020
Date of hearing:
31 March and 1 April 2020
Applicant:
Self-represented by video link
Solicitor for the Respondent:
D Mak, Clayton Utz by video link
Attachment A
EXHIBIT REGISTER
File No: 2020/0554................................................................................................................
Between: ZTFH...................................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)
Heard on: 29 March and 1 April 2020
At: Brisbane..................................................................................................................
Exhibit Number Description of Evidence A1
Letter of Support from Applicant’s friend dated 7 March 2020
A2
Letter of support from Applicant’s sister received 7 March 2020
A3
Letter of support from Applicant’s sister received 7 March 2020
A4
Letter of Support from Applicant’s mother received 7 March 2020
A5
Letter of Support from Applicant’s sister’s partner received 7 March 2020
G1
Section 501G Documents received 17 February 2020 (Paged 1 to 199)
R1
Respondent’s Tender Bundle received 19 March 2020 (Paged 1 to 79)
R2
DFAT Country Information Report: Sudan
1
13
0