CHJK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2330 (16 July 2020)

Last Updated: 17 July 2020

CHJK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2330 (16 July 2020)

Division: GENERAL DIVISION

File Number(s): 2019/0149

Re: CHJK

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: The Hon. John Pascoe AC CVO, Deputy President

Date: 16 July 2020

Place: Sydney

The Tribunal sets aside the decision made by the delegate of the Minister dated 3 January 2019 and in substitution decides not to refuse to cancel the applicant’s Class XA-866 Protection visa under section 501CA(4) of the Migration Act 1958 (Cth).

...........................[sgd]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – Mandatory visa cancellation – Class XA-866 Protection visa – multiple convictions – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – non-refoulement obligations – indefinite detention – best interests of the child – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES
CHJK v Minister for Home Affairs [2019] FCA 1330
FYBR v Minister for Home Affairs [2019] FCAFC 185
BAL19 v Minister for Home Affairs [2019] FCA 2189
CGNN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1252
KDSP v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 108

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA

REASONS FOR DECISION

Sydney


16 July 2020

BACKGROUND

1. The applicant is a 52-year-old citizen of South Sudan. He arrived in Australia in June 2006 as the holder of a Class XB-202 Global Special Humanitarian visa.
2. On 17 November 2011, the applicant’s Class XB-202 Global Special Humanitarian visa was cancelled on character grounds.
3. On 12 March 2012, the applicant applied for a Class XA-866 Protection visa. In a notice by the Department dated 2 November 2012, the applicant was informed that the Minister was considering refusal of the application on character grounds.
4. On 11 January 2013, a delegate of the Minister decided not to refuse the protection visa application and the applicant was granted the visa on 12 April 2013.
5. On 27 April 2016, the Department issued a notice to the Applicant that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). On 10 May 2016, the applicant made representations seeking revocation of the cancellation.
6. On 3 January 2019, a delegate of the Minister decided not to revoke the mandatory cancellation under section 501CA(4) of the Act, notifying the applicant of this decision on 7 January 2019.
7. On 8 January 2019, the applicant applied to the Tribunal (differently constituted) for review of the delegate’s decision.⁹ The Tribunal affirmed the delegate’s decision on 28 March 2019.
8. On 28 March 2019, the applicant made an application for review of the Tribunal’s decision to the Federal Court.
9. On 23 August 2019, the Federal Court remitted the matter to the Tribunal for determination in accordance with law (CHJK v Minister for Home Affairs [2019] FCA 1330).
10. The applicant has a long criminal history set out in table below:

Court date	Offence date	Offence	Penalty
25.09.08	26.06.08	Stalk/intimidate intend fear of physical/mental harm	s.9 bond 15 months
08.09.10	04.06.10 04.10.10 07.10.09 28.06.10 27.06.10 16.06.10	Assault occasioning actual bodily harm (DV) Contravene prohibition /restriction in AVO (domestic) Armed with intent commit indictable offence Destroy or damage property Contravene prohibition/ restriction in AVO (domestic) Use carriage service to menace/harass/offend	18 months’ imprisonment, nonparole 8 months with conditions 18 months’ imprisonment, nonparole 8 months with conditions 7 months’ imprisonment s.10a conviction s.9 bond 2 years $800 fine
27.05.11	26.02.11 26.02.11	Stalk/intimidate intend fear physical/mental harm Contravene prohibition/restriction in AVO (domestic)	9 months’ imprisonment, nonparole 3 months with conditions 9 months’ imprisonment, nonparole 3 months with conditions
02.10.15	22.03.14 14.04.14	Common assault Reckless wounding	38 months’ imprisonment (aggregate), non-parole 25 months with conditions

ISSUES

11. As the applicant has been sentenced to a term of imprisonment of more than 12 months, he does not meet the character test set out in section 501(3A) of the Act.
12. Accordingly, the issue before the Tribunal is whether, having regard to Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’), there is any other reason why the mandatory cancellation of the applicant’s visa should be revoked.

THE LAW

13. As the applicant does not meet the character test, it is now necessary to consider the evidence in accordance with the Direction in deciding whether or not to exercise the discretion under section 501(1) of the Act.
14. There are also a number of relevant general guidelines contained in paragraph 6.3 in relation to the exercise of discretion set out in the Preamble to the Direction:

(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
(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.

15. The Direction sets out primary and other considerations that must be considered, where relevant, when deciding whether to refuse to grant a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. Those primary considerations pursuant to Part C of the Direction are as follows:

(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.

16. The Direction also sets out other considerations that must be taken into account, which include (but are not limited to):

(d) international non-refoulement obligations;

(e) strength, nature and duration of ties to Australia;

(f) impact on Australian business interests;

(g) impact on victims; and

(h) extent of impediments to the applicant if removed from Australia.

THE EVIDENCE

17. The applicant does not deny his lengthy criminal history, as outlined above.
18. The applicant gave evidence that his father had been killed in front of him when he approximately 25 years old, when his village in South Sudan was attacked during the Sudanese Civil War. During this attack he also lost contact with his mother and siblings and has not heard from them since.
19. The applicant said that he fled into the jungle following the attack and then made his way to a refugee camp, where he was kidnapped and beaten because he identified as Christian. He met his wife at the refugee camp, and they escaped together to a third country.
20. During this time, the applicant started working for the United Nations High Commission on a voluntary basis.
21. Ultimately, he was accepted as a refugee in 2006, along with his wife and two young children.
22. The applicant arrived in Australia in June 2006 when he was 38 along with his wife and two young children. He has been diagnosed with post-traumatic stress disorder (‘PTSD’), depression and anxiety since arriving in Australia, and this diagnosis has been confirmed on a number of occasions as evidenced in the medical reports provided to the Tribunal.
23. The applicant’s first interaction with the police was shortly after he arrived in Australia in November 2006. He accepts his long criminal history, which is primarily associated with violent behaviour or domestic violence, either against his former wife or against other men with whom he believed she had an association.
24. Most of the applicant’s criminal behaviour was related to alcohol abuse. He gave evidence that he may have been drinking up to two litres of wine per day during the period of his offending conduct. The applicant gave evidence that he had been alcohol free for the last six years. During most of this time the applicant has been detained in prison or immigration detention, where he said he was able to “get clean”.
25. The applicant gave evidence regarding a number of behavioural incidents that occurred whilst in detention, including a recorded incident where he punched another detainee in February 2012. He said that the most recent incidents recorded in immigration detention were the result of disputes over access to the computers. Time on the computers in immigration detention was difficult to access, as there were only a few computers and many detainees. The applicant said that these were not acts of random violence, but rather a response to provocation.
26. The applicant gave evidence that whilst in jail and immigration detention he had completed a number of courses, including Alcoholics Anonymous.
27. He gave evidence that although alcohol and drugs were available in detention, he had chosen not to access either. In support of his statement in relation to alcohol and drugs being available at Villawood Immigration Detention Centre, the applicant’s representative produced an extract from Hansard dated 13 September 2017, where the Immigration Minister stated that there’s been an “increasing risk of contraband in [immigration] detention, such as narcotic drugs” and other prohibited items.
28. The applicant acknowledged that he needed further treatment for PTSD and alcohol abuse, which he said he would continue to engage in if he were to be released.
29. It was noted that a previous NSW Prison system report had recommended that the applicant be released on parole as soon as possible.
30. The applicant separated from his wife in approximately 2009 or 2010.
31. The applicant said that he had reconnected with his children since his time in detention, but because of COVID-19 restrictions they had been unable to visit recently. A reference was made to family court orders issued in 2012, which granted the applicant limited physical access to his children. Those orders expired after 12 months and there is no evidence that any orders are currently in place.
32. There was some doubt as to whether the applicant’s former wife supported his release, although the applicant gave evidence that his former wife said she would support his application to the Tribunal. The applicant’s former wife, however, was not present at the Tribunal or subject to cross-examination to confirm this.
33. The applicant’s attention was drawn by the respondent to the NSW District Court sentencing remarks, where Judge Norton considered the victim impact statement of the victim the applicant attacked in 2014. Whilst Judge Norton noted that this incident was “opportunistic”, her Honour stated “the [applicant] did bear a grudge towards the victim” and accepted “that the victim has been left with a scar and the attack has resulted in adverse consequences to him”.
34. The applicant agreed that he had not had any full-time employment since 2008 and relied primarily on Centrelink for income.
35. The applicant had been found to be owed protection and non-refoulement obligations which still apply. The UNHCR has issued its recent updated position at the end of 2019 on returning nationals to South Sudan to the effect that no one should be returned given the grave security and humanitarian situation. Accordingly, given that the applicant is owed protection and non-refoulement obligations and is therefore unable return to South Sudan, the applicant faces the prospect of indefinite detention if his protection visa is cancelled.
36. It is noteworthy that the applicant gave evidence that on several occasions where important documents were either read or sent to him there was never any translation from English to Dinka, so he was unable to understand them.

CONSIDERATION

Nature of the offence

37. Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s behaviour and the risk to the Australian community if he were to engage in similar behaviour in the future.

Nature and seriousness of the crime

38. There is no doubt that the applicant has a long history of serious domestic violence and actual physical harm against third parties whom he believed to have an association with his former wife.
39. As evidenced by the sentencing remarks referred to at paragraph [34], the aggregate sentence imposed and the victim impact statement relating to the applicant’s last offence in 2014, the applicant’s violence fell into the category of serious violence. This is also reflected in the fact that the applicant’s sentences have increased over time. I have considered the entirety of the applicant’s criminal offending, particularly the most recent sentence to imprisonment for 38 months, with a non-parole period of 25 months, in respect of an assault committed in March 2014, together with reckless wounding. On the basis of his criminal record, the applicant does not pass the character test under section 501(6) of the Act and is guilty of serious crimes for which the Australian community has a low level of tolerance.
40. Some of the applicant’s criminal behaviour has occurred whilst he was on bail and there is no doubt that it has had a very serious impact upon his victims, including his former wife, his children and third parties.
41. The applicant ignored warnings from the department, although I note that he claimed that he did not fully understand the warnings because they were not translated from English to Dinka.
42. The fact that the applicant’s criminal behaviour is related to domestic violence offences cannot be overlooked or downplayed as to their seriousness. Direction 79 properly makes clear that such offences are to be treated with the utmost seriousness. Such offences have long-term and serious consequences, particularly for women and children.
43. I give substantial weight to this consideration in favour of non-revocation of the delegate’s decision.

Risk to the Australian community

44. In looking at this primary consideration the Tribunal must have regard to 13.1.2. in direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
45. Despite the fact that the applicant does appear to have accepted that his crimes were serious and he has undertaken some rehabilitation, there is risk of serious harm to the applicant’s former wife and any male partner with whom she may form an association if the applicant were to reoffend.
46. In 2010, a doctor examining the applicant considered he had good prospects of recovering from his PTSD and alcohol problems provided he accepted appropriate psychiatric treatment and/or medication. Furthermore, a Psychological Assessment Report prepared by STARTTS (‘Service for the Treatment and Rehabilitation of Torture and Trauma Survivors’) in April 2012 provides that the applicant would benefit from drug and alcohol counsellor to address his reported alcohol dependence. Finally, a report of a clinical neuropsychologist dated September 2015 was provided to the Tribunal, which confirms the condition of PTSD and recommended therapy over a 12-month period. The report noted that the applicant’s alcohol use behaviour would “likely improve with the effective treatment of his Post-Traumatic Stress Disorder”.
47. The applicant has acknowledged that he needs further treatment and has more recently engaged with support programs for substance abuse, aggression and anger management. He also accepts that he will need to continue to engage with support programs in the community, including Alcoholics Anonymous.
48. At the time of both the violent offences the applicant consumed large amounts of alcohol. The applicant said that he has been sober for approximately six years, despite alcohol and drugs being readily available in detention and immigration detention. In addition to his prison time served, the applicant has been in immigration detention in Australia for approximately three and a half years where he has had time to reflect on his past criminal conduct. Given a lack of evidence to the contrary, the evidence would also appear to demonstrate that he has kept clear of alcohol whilst in detention.
49. This does represent an improvement from the situation previously where the applicant appeared to deny that he had a mental health condition and required treatment.
50. It is relevant that the applicant has had a mobile phone in detention for a period of at least two years and that there is no evidence that he has used it for any negative purpose, such as to harass his former wife or third parties. Rather, in his affidavit submitted to the Tribunal, he claimed that he now engages in respectful communication with his former wife about important matters, such as providing information and arranging his signature on the appropriate forms for his children’s Australian citizenship applications.
51. I note that the applicant is likely to face a great deal of stress if he is released into the community after a long time period of time served in prison and immigration detention, and it is not possible to be completely satisfied that the applicant would not seek to alleviate stress by the consumption of alcohol.
52. There is some evidence of the existence of a support structure for the applicant upon his release, namely the applicant’s Church connections demonstrated through the four letters of support of the applicant submitted to the Tribunal. There is also evidence provided by the applicant of his intentions to continue to engage in treatment to address his risk of recidivism.
53. I find that there is some likelihood that the applicant would engage in further criminal or other serious behaviour on release despite the positive signs of improvement. Given his past patterns of behaviour, the Australian community’s tolerance for this risk of harm is lower because of the seriousness of the potential harm that the applicant may cause if he were to reoffend. I therefore place moderate weight on this consideration in favour of non-revocation of the delegate’s decision.

Best interests of minor children

54. The applicant’s children aged approximately 12, 15 and 17 live with their mother, the applicant’s former wife, who has taken care of them for most of their lives.
55. Particularly with the youngest child who was born in Australia, the applicant has spent a considerable period of their lives in detention. He has not played an active parental role in the children’s lives since his incarceration in 2010.
56. The applicant’s 17-year-old child did not give evidence at the hearing or submit any evidence in support of the applicant.
57. The applicant’s criminal offending is also likely to have had a negative effect on his children, who witnessed serious domestic violence and one occasion were forced to flee their home due to fears for their safety. The applicant acknowledges that it is also likely that his three sons have been negatively impacted due to the breakdown of their family unit.
58. It does appear from the applicant’s evidence that he has attempted to re-establish a relationship with his children through technology, despite his limited technological ability, and there was evidence that his children had visited him in detention, as shown by a number of photographs received in evidence.
59. Given that it is well accepted that it is in the best interests of children to have a relationship with both their parents and that the applicant is wanting to engage in re-building this relationship, it would be contrary to the best interests of the three children if the applicant were to be removed from Australia or if their only contact with him was in the artificial surroundings of a detention centre, which would place severe limits on the extent and quality of the time spent together.
60. I give moderate weight to this consideration which weighs in favour of revocation of the delegate’s decision.

Expectations of the Australian community

61. Having regard to the provisions of paragraph 13.3 of the Directions and the applicant’s history of violence and domestic violence, the Australian community would expect that the applicant not be given the privilege of holding an Australian visa.
62. In considering the expectations of the Australian community, the Tribunal is guided by the Direction and the Parliament’s views expressed in legislation as to the expectations of the Australian community; is not for the Tribunal to determine for itself the expectations of the Australian community.^[1]
63. In this case, the applicant has been convicted of domestic violence and violent offences. The impact of domestic violence cannot be downplayed. It has extremely harmful effects on its victims, specifically the applicant’s wife who was vulnerable.
64. Given the seriousness and nature of the applicant’s offences, I give substantial weight to this consideration against revocation of the delegate’s decision.

Non-refoulement obligations

65. The applicant was granted a Class XA-866 Protection visa in Australia, due to the serious risk of harm he would face if he were returned to South Sudan. It is noted that Australia has accepted that it does owe protection and non-refoulement obligations to the applicant. Accordingly, the Minister has stated that the applicant would not currently be returned to South Sudan.
66. There is no doubt that from the evidence referred to by the applicant from the UNHCR and as accepted by the Minister, there is a serious risk of harm to the applicant if he were to be returned to South Sudan, particularly given the volatile security and humanitarian situation throughout the country.
67. Counsel for the applicant and for the respondent addressed the Tribunal in relation to the recent decision of BAL19 v Minister for Home Affairs [2019] FCA 2189 (‘BAL19’) and the effect of this judgement on the applicant’s current decision under review by the Tribunal. Counsel for the Applicant also drew the Tribunal’s attention to a number of Tribunal decisions including the recent decision in CGNN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1252. I have had regard to those decisions but note that in the decision of this Tribunal each case turns on its own circumstances.
68. The decision of BAL19 was recently considered in the Full Federal Court in KDSP v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 108 (‘KDSP’). Notably, in their joint reasons in KDSP, O’Callaghan and Steward JJ disagreed with Rare J’s conclusion in BAL19 that section 501(1) cannot be applied to refuse to grant a protection visa. Rather, at [277] they held that “there were a number of reasons” to conclude that the legislature did not intend section 36(1C) to apply an exhaustive test for the refusal of a protection visa on character grounds. Furthermore, Rares J’s reasoning in BAL19 did not specifically consider the mandatory cancellation provisions under the Act and the non-discretionary power pursuant to section 501(3A) of the Act, which is relevant to this case. For these reasons, I have had limited regard to the reasoning of BAL19 in considering the present case.
69. Clearly Australia has protection obligations towards the applicant as was acknowledged by the Minister. However, on the current state of the law, it is not a foregone conclusion that the possibility of a breach of Australia’s non-refoulement obligations or indefinite detention itself outweighs all other considerations. Rather, it is a matter to be carefully weighed in light of all of the other relevant considerations pertinent to the particular case.

The prospect of indefinite detention

70. In its recent decision DQM18 v Minister for Home Affairs [2020] FCAFC 110 the Full Federal Court determined that the Tribunal must have regard to the prospect of an applicant facing a period of indefinite detention when determining whether or not a visa should be cancelled. Bromberg, Mortimer and Snaden at [109] stated as follows:

We do not accept that the Assistant Minister was entitled to ignore the realities of the appellant’s circumstances in the way he did. In the absence of any ITOA, in the absence of any decision about the appellant’s nationality and which of Sudan or South Sudan would accept him, the prospect of indefinite detention was real...The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia’s international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.

71. In the current case, the applicant’s circumstances have already been assessed by ITOA as engaging Australia’s protection obligations and he is already barred from making a further application for a protection visa in Australia, as noted in the respondent’s submissions.
72. It was put on behalf of the respondent that the applicant would be subject only to a fixed period of detention whilst the Minister considered alternative management options under section 195A of the Act, or until removal became ‘reasonably practicable’. There was no timeframe suggested. When questioned at the hearing, the Minister’s representatives spoke about the possibility of resettlement in a third country and was unable to give any indication as to what options the Minister might consider appropriate or how much longer the applicant might spend in immigration detention.
73. Given the history of South Sudan and ongoing conflict within the country, it is highly unlikely the applicant could be forcibly sent there at any time in the foreseeable future, even if other impediments to relocation did not exist.
74. The likelihood of a third country accepting the applicant also appears remote. In any event, there may be significant impediments to the applicant being resettled in a third country, which the Tribunal is simply unable to assess at this time.
75. It is understandable that the Minister’s representative may not wish to bind the Minister in any way or to fetter the Minister’s unlimited discretion. However, in the absence of clear evidence as to what the Minister might do and a timetable however imprecise, the Tribunal has no other option but to assume the applicant is likely to face a period of indefinite detention.
76. In this context it is relevant that the maximum sentence the applicant has received under the criminal justice system is an aggregate of 38 months’ imprisonment with a non-parole period of 25 months. During his most recent period of imprisonment, it was determined that the applicant should be granted parole as soon as possible.
77. In addition to his time in prison, the applicant has already spent approximately three and a half years in immigration detention awaiting an outcome of his protection visa application and legal appeals. This is quite disproportionate to the sentences imposed for his criminal behaviour through the criminal justice system, which he has already served. The applicant’s age is also relevant. He is now 52 years of age and at such an age it is now not impossible that he could die in immigration detention. Furthermore, it can reasonably be assumed that the longer he spends in detention the less chance there is of him easily transitioning to life outside detention in any community.
78. I give very significant weight to this consideration and Australia’s non-refoulement obligations, which weigh in favour of revocation.

Strength, nature and duration of ties

79. The applicant has lived in Australia for approximately 14 years. However, much of his time in Australia has been spent in jail or detention.
80. There is little evidence that the applicant has made any significant contribution to the Australian community, either through work or involvement with other community activities.
81. Of more recent times he does appear to have developed relationships with a wider religious community, and there were four letters of support filed by religious connections the applicant had formed.
82. The applicant has also had some contact with his three biological sons, and I accept the evidence that he is seeking to build those ties, including them coming to visit him in Villawood Immigration Detention Centre.
83. The applicant’s cousin also provided a character reference to the Tribunal in support of the applicant’s stay in Australia. He could not attend the hearing due to family issues that arose.
84. Whilst there is limited direct evidence before the Tribunal of the impact of the applicant’s removal on these family members, I am of the opinion there will be emotional hardship suffered as a result of the cancelation.
85. This consideration weighs in favour of revocation, however, I give it only limited weight due to the long period of time the applicant has spent in Australia in jail or detention.

Impact of victims

86. There is no doubt that the applicant’s behaviour has had a very deleterious effect on his victims.
87. This is illustrated by the nature of the crimes themselves, being violent and serious in nature. For instance, in relation to the applicant’s behaviour to his former wife, Magistrate Burdett of the Local Court in Mount Druitt on 8 September 2010 in sentencing considered that the applicant had said to the victim “I will kill you and kill myself”, picking up a ball point pen and lunging towards her, striking her in the head and causing a small laceration. The impact of his behaviour on other victims is further illustrated by the impact statement of the victim in 2014 incident where the applicant attacked the victim with a broken bottle.
88. The applicant’s violent behaviour also no doubt had a serious and detrimental effect on his children, although there was no evidence as to any lasting trauma they may have suffered.
89. There is no current evidence before the Tribunal which suggests that any victim will be advantaged nor disadvantaged by non-revocation of the applicant’s visa, however given the nature of these violent offences I give moderate weight to this consideration, which weighs against revocation of the delegate’s decision.

Extent of impediments

90. It was argued on behalf of the respondent that the applicant would be able to re-establish himself in South Sudan given that he had spent time previously working in agriculture. It was also claimed that the applicant would have access to whatever health services were available in South Sudan.
91. For the reasons more fully explained below, I do not accept these submissions. It is unlikely that the applicant would be able to find work in South Sudan, especially as there is ongoing conflict in that country and a dire humanitarian situation, as well as large amounts of internal and external human displacement.
92. If returned, the applicant has no supports, no means of earning a living and limited access to proper medical treatment for his underlying mental health conditions including PTSD, anxiety and depression.
93. The applicant has experienced significant trauma in his life. In his statutory declaration submitted to the Tribunal, the applicant noted that when he was previously living in South Sudan, he not only witnessed the murder of his father and was shot himself, but people would regularly be “killed, disappeared, tortured or sexually abused. There was a common practice of cutting off people’s limbs. I saw children killed.”
94. The Applicant is 52 years of age and suffers from several serious mental health issues. In particular, PTSD is known to be extremely debilitating and can be very difficult to treat, requiring long periods of medical intervention. There was no evidence of medical support, particularly mental health support, being available in South Sudan.
95. The applicant’s father is deceased, and he does not know what has happened to his mother or other relatives. It is highly unlikely that they could provide him with any support, even if he were able to find them.
96. The applicant is quite fluent in the Dinka language so he would at least be able to interact with that community in South Sudan but has a limited ability to read Dinka and is unable to write in Dinka.
97. After an approximately fourteen-year absence in which time conflict and civil war has raged, it is highly unlikely that the applicant will have basic social, medical and economic supports if he were to return to South Sudan. In fact, all the evidence would indicate the opposite.
98. This consideration weighs heavily in favour of revocation.

CONCLUSION

99. This is a very difficult case given the lack of certainty as to the applicant’s future time in immigration detention. Parliament has given the Minister a discretionary power to consider whether to refuse or revoke the applicant’s protection visa, which is not within the remit of the Tribunal to question or seek to limit. The Parliament has however entrusted the Tribunal with the responsibility to consider every case individually and on its own facts, having regard to the existing state of the law and weighing all the considerations in Direction 79 to come to the correct and preferable decision based on the evidence. In other words, Direction 79 is there for a reason and that reason is, in my opinion, to ensure that decisions are not made arbitrarily and that all relevant issues are considered and given appropriate weight.
100. In the current case, on the one hand there is significant weight in favour of non-revocation given the applicant’s long criminal history, most of it involving violence, particularly domestic violence. On the other hand, the applicant faces indefinite detention having already served a jail sentence and a long period of detention. The applicant is 52 years old. It is highly unlikely that the conflict and humanitarian situation in South Sudan is going to end any time soon, even if there were no other impediments to his removal.
101. It is also, in my opinion, unlikely that any third country is going to accept the applicant in the foreseeable future. At his age, it must be considered highly likely that he could spend the majority if not all his remaining life in immigration detention. This possibility must be weighed against his criminal record, the sentences imposed and his personal circumstances.
102. The evidence demonstrates clearly that the applicant suffered terrible deprivations in the period before he arrived in Australia which lead him to be diagnosed with PTSD, anxiety and depression, which does not appear to have been consistently treated. It may at least partially explain his alcohol abuse and subsequent domestic and other violence.
103. I accept the evidence that unlike the situation in 2017 he now accepts that he has problems and that he needs help. He also accepts that he needs to address these issues to have a relationship with his three minor children.
104. There is no evidence that the applicant has used any means of communication to harass his former wife or any other person since detainees in Villawood Immigration Detention Centre were able to use mobile phones freely. The evidence would also appear to demonstrate that he has kept clear of alcohol whilst in immigration detention and has engaged in support programs to address his offending behaviour.
105. The applicant would appear to have at least some support in the community and is starting to re-establish his relationship with his three minor children.
106. The applicant expressed contrition for his criminal behaviour and in my view is well aware of the enormous consequences that would flow from any reoffending.
107. In summary, the applicant’s criminal history, his impact on his victims and potential risk of reoffending cannot be underestimated. However, in my opinion, these factors are outweighed in this case by other factors, particularly the prospect of indefinite detention, given the age of the applicant, his background, the illnesses from which he suffers, and the sentences imposed by the criminal courts in NSW.

DECISION

108. In considering all the evidence presented by both parties as outlined above and the relevant law and Directions, I am of the view that the correct and preferable decision is to set aside the decision of the delegate to revoke the applicant’s protection visa.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

.....................[sgd]..............................

Associate

Dated: 16 July 2020

Date of hearing:	25 and 26 June 2020
Respondent’s representative	Mr M Hawker
Applicant’s representative:	Ms A Battisson

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^[1] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (per Charlesworth J) and [92]-[93],[100]‑[104] per (Stewart J).