KCCD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5145 (20 November 2020)

Last Updated: 21 December 2020

KCCD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5145 (20 November 2020)

AppID: KCCD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType: Migration

Division: GENERAL DIVISION

File Number(s): 2020/5497

Re: KCCD

APPLICANT

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

RESPONDENT

DECISION

Tribunal: The Hon. Matthew Groom, Senior Member

Date of decision: 20 November 2020

Date of written reasons: 19 December 2020

Place: Melbourne

The Tribunal sets aside the decision made by the delegate of the Respondent dated 2 September 2020 and in substitution decides to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – refusal of visa on character grounds – citizen of South Sudan - Applicant does not pass the character test – whether there is another reason the visa should not be refused on character grounds – consideration of primary and other considerations – decision set aside and substituted – Direction 79 – Class XB Subclass 200 Special Humanitarian Visa – Decision set aside.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185.

Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.

Secondary Materials

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

DFAT Country Information Brief – South Sudan – 27 April 2016 (Department of Foreign Affairs and Trade)

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

INTRODUCTION

1. This is an expedited review of a decision by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Global Special Humanitarian visa (the “visa”).
2. The Applicant’s visa was mandatorily cancelled on 10 March 2017 under section 501(3A) of the Migration Act 1958 (the “Act”).
3. The Applicant subsequently made representations to the Respondent seeking revocation of the visa cancellation decision.
4. On 7 May 2018 the Assistant Minister decided not to revoke the visa cancellation.
5. That decision was then challenged in the Federal Court. On 26 March 2020 Federal Court set aside the Assistant Minister’s decision and remitted the matter back to the Respondent for redetermination.
6. On 2 September 2020 a delegate of the Respondent decided not to revoke the visa cancellation decision. The Applicant then subsequently sought review of the delegate’s decision by this Tribunal.
7. On 17 September 2020 the Tribunal made an order pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AATA’) that the name of the Applicant is not to be published and instead the Applicant be referred to by the acronym “KCCD”.
8. On 20 November 2020 the Tribunal made the decision to set aside the decision under review. Set out below are the reasons for its decision.

BACKGROUND

9. The Applicant is a 30-year-old national of South Sudan.
10. The Applicant contends that he was born in his family’s hometown of Bor, Jonglei, which is a State in what is now known as South Sudan. The Respondent disputes that the Applicant was born in his family’s hometown but accepts that the Applicant was nonetheless born in South Sudan while the family was in transit to Kenya following the death of the Applicant’s father. The circumstance and location of the Applicant’s birth is relevant to questions regarding the nature of the trauma the Applicant was exposed to as a young child as well as general credibility. This issue is dealt with in detail later in these reasons.
11. The Applicant’s family fled their hometown in South Sudan in the early 1990s due to intercommunal violence which occurred at that time. The Applicant’s father was killed during the course of the conflict. The Applicant together with his mother and siblings subsequently settled in the Kakuma Refugee Camp in Kenya, where they lived for approximately 16 years.
12. The Applicant together with his other family members were granted humanitarian visas while resident in Kakuma and the family group then migrated to Australia arriving here on 10 September 2008.
13. The Applicant’s sister, EA, is 33 years of age and lives with her five children in Brisbane. The Applicant’s brother is 36 years of age and lives with his wife and four children in Victoria. The Applicant’s mother lives in Victoria. The Applicant’s partner, LP, is 27 years of age and lives in Victoria. The Applicant and his partner have a four-year-old son, NA.
14. The Applicant had very limited English when he first arrived in Australia. He initially attended English classes and then subsequently commenced vocational studies. The Applicant struggled with his studies as a consequence of his limited English and left his classes after a six-month period. The Applicant also found it difficult to obtain employment. He began socialising with a group of men who were involved in drugs and who introduced him to cannabis and methamphetamine.

CRIMINAL HISTORY

15. The Applicant has committed a significant number of offences spanning back to June 2009, commencing approximately nine months after first arriving in Australia. While much of the Applicant’s offending is at the lower end of seriousness, as reflected in the sentences imposed, the Applicant’s criminal history includes a substantial number of more serious offences. The Applicant’s full criminal history was set out in the National Criminal History Check included in the Tribunal materials.
16. The Applicant’s more serious offending includes the following.
17. On 6 August 2010 the Applicant was convicted in the Dandenong Magistrates Court of possessing and carrying a controlled weapon without excuse and making false reports to police. The Applicant was sentenced to 2 periods of imprisonment of seven days for these offences which were to be served concurrently and were suspended for six months.
18. On 24 January 2011 the Applicant was convicted of making a threat to kill and sentenced to 3 months detention in a Youth Justice Centre. The Applicant was also convicted of breaching his earlier suspended sentence and the seven days of imprisonment was reimposed to also be served at a Youth Justice Centre.
19. On 24 May 2011 the Applicant was convicted of unlawful assault, assault with a weapon, threatening to inflict serious injury, possessing and carrying a controlled weapon without excuse and resisting police. The Applicant was sentenced to 4 months imprisonment with two months suspended. He also had a community-based order (CBO) imposed for 12 months. The Applicant’s offending involved him challenging another man to a fight at Flinders Street Station and in the course of the fight threatening a man with a small pocketknife in full view of the police officers on duty at the station.
20. On 11 July 2011 the Applicant was convicted of making a threat to kill and assault and resist police. For these offences the Applicant was sentenced to a one-month term of imprisonment which was wholly suspended for one month. These offences arose out of interaction the Applicant had with police in November 2010 while the police were attending to deal with a stabbing incident. There was no evidence that the Applicant had been involved in any way in the stabbing incident itself. The Applicant suffered a broken arm during the course of his interaction with police.
21. On 20 March 2012 the Applicant was convicted of intentionally causing serious injury and sentenced to a 2-year term of imprisonment. The sentence was wholly suspended for two years. The Applicant’s offending conduct in this incident involved the stabbing of a 46-year-old man twice in the arm after an altercation on a train (the “stabbing offence”). The stabbing offence caused significant injury to the victim including requiring plastic surgery. This incident occurred on 9 December 2009 approximately 15 months after the Applicant first arrived in Australia.
22. On 31 July 2015 the Applicant was convicted of a number of offences including unlawful assault, assault and resist police, failure to answer bail, receive stolen goods, criminal damage, make threat to kill, contravene family violence intervention order, dealing in property suspected to be the proceeds of crime, unlicensed driving and the use of a prohibited weapon without authority. The Applicant was sentenced to an aggregate period of 120 days imprisonment and in addition a further month in respect of a breach of an earlier suspended sentence.
23. On 26 August 2015 the Applicant was convicted of contravening a Family Violence Intervention Order and sentenced to 7 days imprisonment.
24. On 14 February 2017 the Applicant was convicted of a number of further offences including dealing in property suspected to be the proceeds of crime, prohibited persons carrying an imitation firearm, false imprisonment, possession of cannabis, amphetamine and methamphetamine and contravene Family Violence Intervention Order. The Applicant was sentenced to a 6-month term of imprisonment together with a 12-month Community Corrections Order (CCO) in respect of these offences.
25. On 7 March 2017 Applicant was convicted of robbery and perjury. This incident involved the Applicant robbing a BP petrol station and subsequently giving a false statement to police in relation to the circumstances of the offence (the “robbery offence”). For these offences the Applicant was sentenced to a CCO for 18 months and required to perform 100 hours of unpaid community work.
26. On 31 October 2018 the Applicant was convicted of a number of further offences including unlawful assault, theft, criminal damage, behaving in an insulting matter and possessing cartridge ammunition. The Applicant was fined and sentenced to a term of imprisonment of one month for these offences.
27. In addition, on 18 December 2018 the Applicant was found guilty of contravening a CCO.

ISSUES

28. The Tribunal is satisfied that, on the basis of his offending history, the Applicant has a substantial criminal record for the purpose of section 501(7) and, for that reason, does not pass the character test for the purpose of section 501CA(4)(b)(i).
29. Therefore, the residual issue for the Tribunal to determine is whether it is satisfied that there is another reason why the cancellation of the Applicant’s visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act.

Direction No. 79

30. Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such direction.
31. On 20 December 2018 the then Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 28 February 2019.
32. The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
33. Paragraph 6.1(1) of the Direction states that “[t]he objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.
34. Paragraph 6.2 of the Direction sets out general guidance for decision-makers as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about the future.

(3) The principles provide a framework within which decision-makers should approach this task of deciding whether to refusal or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

35. The Principles referred to are set out in paragraph 6.3 of the Direction 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.

36. Paragraph 7(1)(b) of the Direction requires that a decision-maker, informed by the principles in paragraph 6.3, must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
37. Paragraph 8 of the Direction provides that:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa Applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(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 consideration should generally be given greater weight than other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

38. While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.^[1]

CONSIDERATION

Primary considerations

39. Paragraph 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of the non-citizen’s visa, the following are primary considerations:

(a) Protection of the Australian community from criminal or other serious conduct;

1. The best interests of minor children in Australia;
2. Expectations of the Australian community.

The protection of the Australian community

40. Paragraph 13.1 of the Direction provides that:

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen’s conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct

41. Paragraph 13.1.1 the Direction provides that:

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
   100. 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;
   4. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
   5. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
   6. The cumulative effect of repeated offending;
   7. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
   8. 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);
   9. 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.

42. The Applicant has a lengthy criminal record. While the record includes a substantial number of lower level offences, as reflected in the sentences imposed, there are a significant number of offences that are serious. In addition, the frequency of the Applicant’s offending as well as the cumulative impact of the Applicant’s offending itself is also serious.
43. The Tribunal accepts the Applicant’s contention that there are no offences that involve women, children or other vulnerable members of the public. There is also no offence of a sexual nature.
44. The Applicant has however been convicted of violent offending including knife-based offending. His most serious offence was the stabbing offence. That offence was a result of an altercation between the Applicant and another man at a train station which escalated and ultimately resulted in the Applicant stabbing the victim in the arm which caused serious injury to the victim. The Applicant told the Tribunal that he had been at the train station with a girl and he had been offended by the behaviour of the victim towards the girl. He told the Tribunal that the victim had approached him on the train and a fight had ensued. He admitted that during the altercation he stabbed the victim twice in the arm and caused his injury. The Applicant acknowledged that his response to the situation was wrong and told the Tribunal that he was regretful for his behaviour. He told the Tribunal that he had been shunned by members of his community because of his involvement in the incident.
45. In sentencing comments Her Honour Judge Cotterell accepted that the victim had approached the Applicant on the train following an earlier altercation involving a girl and that a fight ensued which resulted in the Applicant stabbing the victim twice in the arm. Her Honour described the Applicant’s offending as resulting in serious injury to the victim although it was accepted that the injuries were at “the lower end of the spectrum of serious injury”. Her Honour imposed a sentence of 2 years imprisonment but suspended the sentence on the basis of the Applicant’s “obviously difficult background”, “great deal of difficulty in adapting to a life in a completely foreign setting” and “efforts at rehabilitation”.
46. The Applicant was also convicted for a robbery offence. According to the sentencing comments that offence involved the Applicant attending a BP service station and demanding money from the convenience store employee saying words to the effect “Just give me what I want, I do not want to hurt you”... “Give me all the notes”. According to the sentencing comments the Applicant subsequently said to the victim “Do not make me do anything stupid, I know you are a good person”. The Applicant then left with $650 and a $10 phone card. The Applicant then made a statement to police to the effect that he had prearranged to stage the robbery with the employee, a statement the Applicant subsequently retracted. The Applicant was charged with robbery and perjury and pled guilty to the charges. The sentencing Judge, His Honour Judge Bowman, described the offending as “very serious”. His Honour also noted that the Applicant had committed the offences while on bail. His Honour noted that his “initial reaction was that these offences call for a term of imprisonment” but having regard to what his Honour described as the Applicant’s “tragic background” and “reasonable” prospects at rehabilitation a sentence of 18 months Community Corrections Order was imposed.
47. The Applicant has a number of convictions for resist and assault police as well as threats of violence. An example of this type of offending occurred on 2 November 2010 where police attended a stabbing. There was no evidence that the Applicant was involved in the stabbing, but he was present at the general location. The Applicant was convicted of making a threat to kill which, according the police report, involved the Applicant cocking his finger and thumb in the fashion of a pistol and pretending to fire it. A struggle ensued with police which resulted in the Applicant having his arm broken. The Applicant accepted that he had made the gesture although he denied physically assaulting the police. He stated in his evidence that:

The police came out and put everyone on the ground. One of the police threw me on the ground, jammed my face on the concrete, kicked me and snapped my arm back when attempting to handcuff me. This resulted in my arm snapping. I had to have surgery and still have a metal rod in my arm.

48. The Applicant was subsequently sentenced to 1-month imprisonment wholly suspended for these offences. There is no question in the mind of the Tribunal that this type of offending and any offending against police or government officials is particularly serious as acknowledged by paragraph 13.1.1 (1)(c) of the Direction.
49. In addition, the Applicant’s offending includes drug offences, driving offences, dishonesty-based offences, as well as breaches of orders including a family violence order. The scale of seriousness of these types of offences has varied.
50. The Tribunal is satisfied that the family violence order breach is of a more serious nature given that it involves a breach of an order put in place by the Court and for the purpose of ensuring the safety of the Applicant’s family. In his direct evidence the Applicant gave some context to his family violence order breach. He told the Tribunal that it occurred during a period in which his brother and his brother’s wife were living with his mother. He told the Tribunal that he had become frustrated with his brother’s treatment of his mother and that on one occasion his frustration had escalated into a physical altercation where he had punched his brother. He told the Tribunal that following the incident his brother’s wife had contacted the police and that as a consequence the family violence order was put in place. The Applicant told the Tribunal that he had visited his mother’s house on a number of occasions when his brother and his wife were not there. The Applicant stated that on one particular occasion his brother had been there and called the police and he had been asked to leave which he did. On another occasion his brother’s wife had been home and called the police. He left the house and was subsequently charged with a breach of the order. The Applicant told the Tribunal that his brother was now suffering from significant mental health issues and is currently in a psychiatric hospital. He stated that he considered himself to be on better terms with his brother now. While the Tribunal accepts the Applicant’s evidence that there was some context to his initial altercation with his brother and that there is no evidence of him having subsequently harmed his brother or any other member of his family, the fact that the Applicant had intentionally breached the order that had been put in place on more than one occasion is a matter of significant concern. In that context the Tribunal considers the Applicant’s subsequent breaches of that order to be serious.
51. Having had regard to the nature of the Applicant’s offending as described above, as well as the frequency and cumulative impact of the offending the Tribunal is satisfied that the Applicant’s offending is serious.

The risk to the Australian community

52. In considering the risk to the Australian community, the Direction provides that decision-makers must have regard to, cumulatively:
    1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
    2. 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 re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).
53. The Tribunal is satisfied that if offending conduct consistent with the Applicant’s offending history was repeated it has the potential to cause significant physical and psychological harm to members of the Australian community. This is particularly so in respect of the Applicant’s stabbing offence and other violent offences.
54. Before turning to the issue of risk of reoffending it is appropriate to address two more contentious issues that emerged at the hearing.

Applicant witnessing his father’s death

55. During the course of the hearing there was significant contention between the parties in relation to the Applicant’s evidence regarding his presence at the time of his father’s death. The Respondent contends that the Applicant’s evidence in this respect puts at issue his reliability as a witness and is also relevant in the Tribunal’s assessment of risk in a number of different respects.
56. It was not in contention that the Applicant’s father had died a violent death as a consequence of civil conflict in South Sudan in the early 1990s. Nor is it in contention that the Applicant was born on 4 July 1990. In addition, while there was some conjecture on the point, it was ultimately conceded by the Respondent that the Applicant was born within South Sudan.
57. The residual question on this point was whether or not the Applicant had been born prior to his father’s death and what he may have been exposed to at the time of that incident. There is no doubt that the evidence before the Tribunal include inconsistent accounts on the point. They include the following:

(a) The Applicant’s mother’s application for a visa on 15 December 2005 included an account of the circumstances of her leaving South Sudan which describe the family as leaving in 1991 immediately after her husband had been killed by Arab soldiers while attending to cows in the fields near the village. It was noted that the Applicant’s mother had been informed of the shooting death of her husband by her brother-in-law. The account describes the mother as collecting her children and leaving that evening for a displacement camp near the Kenyan border where the family stayed for about six months. The account states the date of arrival at the displacement camp as March 1991 and states that all members were present at that time. The account describes the circumstances at the displacement camp as still being insecure because of aerial bombardment and frequent militia attacks. The account states that the family then travelled between several camps before ultimately settling at the Kakuma refugee camp in Kenya in 1992. The form states the Applicant’s birthdate as being 4 July 1990. The Applicant’s sister’s evidence was that her mother had very limited English at the time of making the application and that the form would have been completed by another person with the benefit of an interpreter. The Tribunal accepts the Applicant’s sister’s evidence in this respect.

(b) In the Applicant’s mother’s subsequent statement to the Department on 10 August 2020 the account was that the family had fled their home village ‘sometime in 1990 when my husband was murdered in an attack. I fled with my four children”. The account describes the Applicant’s mother as having been “heavily pregnant and carrying all of my children across the desert”. The account describes two of the Applicant’s mother’s children dying’. The account describes having given birth to the Applicant “under a tree somewhere in Kenya”. The statement describes life in the Kakuma refugee camp in Kenya as having been very violent and a “bad place for children”. The statement notes that the Applicant “grew up in that environment”.

(c) The Applicant’s older sister, EA, provided a statement to the department dated 19 August 2020 which stated that, based on information provided by her mother, she understood that the family had left South Sudan in “around 1991”. EA stated that she was around 4 when they had left South Sudan. EA described remembering shooting and seeing bodies on the ground. EA stated that her mother told her that her father had been killed in an attack when the family had fled South Sudan. Consistent with the mother’s more recent account the statement goes onto say that the Applicant had be born along the way to Kenya, somewhere in the bush “in around 1990” and arrived at the Kakuma refugee camp in around 1992. EA described life in the refugee camp as being unsafe and that they lived in fear. She stated that there was robbery and that “people could attack you in the middle of the night”. She stated “a lot of people were killed”. EA also provided direct evidence at the hearing. Under cross-examination EA conceded that her recollections of the circumstances of leaving South Sudan were vague and were in significant part based on accounts provided by her mother. EA told the Tribunal that she would defer to her mother’s recollection in relation to the events although she confirmed her personal memory of seeing bodies in South Sudan and also witnessing significant violence at Kakuma.

(d) Two psychiatric reports in relation to the Applicant describe what purport to be accounts from the Applicant in relation to the issue. A 2015 report by psychologist Ms Carla Lechner includes background information in relation to the Applicant’s history. In her report Ms Lechner notes that the Applicant was born in Sudan but moved to a Kenyan refugee camp when the Applicant was 10 years of age after his father was murdered by soldiers. The report states that the Applicant “was a witness to his father’s death and exposed to considerable violence”. The report goes on to state that the Applicant “was exposed to soldiers coming into the village ‘all the time... doing bad things... burn things... I never got touched but saw things around me”. The report states that the Applicant said that his father was “killed in front of me... because he didn’t want to go the soldiers, he wanted to stay with us”. A 2015 psychiatric report from Dr Nina Zimmerman also includes an account of the Applicant’s history purportedly given to the psychiatrist by the Applicant. The report states that the Applicant was born in a small village in South Sudan where his family worked a farm living a subsistence lifestyle. The report states that the Applicant told Dr Zimmerman that he had been very close to his father because he was the youngest. He stated that he recalled several instances where soldiers were coming into the village looting and burning. The report goes on to state that the Applicant had told Dr Zimmerman that “his brother was in his early 20s when soldiers came to the village and wanted to take them away to fight. His brother refused to go so they demanded his father go”. The report goes on to state that the Applicant told Dr Zimmerman that his father refused and was shot in front of the family and that this had changed his whole life and that of his family. The report states that the Applicant said to Dr Zimmerman that he remains “preoccupied” with his father’s death and the memories and emotions that it evokes. The report describes the Applicant as having been 10 at the time of the incident and that the family subsequently fled to a Kenyan refugee camp where they lived for eight years. The report states that the refugee camp was overcrowded, and that the Applicant described it as a “violent and lawless place”.

(e) A letter from the Applicant to the Department dated 4 December 2017 seeking revocation of the cancellation of his visa states that his father “was murdered in front of me when I was just nine years old”.

(f) The Tribunal materials include reference to a note of a Christmas Island Detention Centre (CIDC) mental health nurse who had conducted a consultation with the Applicant. The nurse’s progress notes record that the Applicant’s “parents were born in Sudan, and after father was killed, his siblings and mother who was pregnant with him at the time, moved to Kenya”.

(g) The Applicant’s statement to the Department dated 11 August 2020 states that his father was killed in the civil war in South Sudan noting that his mother “who was pregnant with me at the time” fled the country and that he was “born in the desert”. The statement goes on to describe the sense of aimlessness of growing up in the Kenyan refugee camp “with nothing to do and everyone trying to survive, my memory is the crime. I grew up in a life of hopelessness and violence. It was common to be surrounded by fights, screams and gunshots. There was no one who could protect us, so my brother and I, as males, had to defend the rest of our family”. The statement goes on to say “I’ve always had in my mind that I needed to be strong. My mum would cry all the time, so as a son, I had to be the strong one otherwise we will get walked all over”.

(h) Dr Nathani’s supplementary report of 8 November 2020 states that the Applicant reported to him that the shooting and killing of his father occurred at home when he was about 10 years old. He recalled watching his mother “crying and screaming” and recalled “feeling nothing” and “freezing”.

(i) In the Applicant’s written statement of 9 November 2020, the Applicant stated that he had fled the family’s village in South Sudan after his father was killed. The Applicant stated that he had lived in South Sudan during his early childhood and that the family had fled after the village was attacked and their father was killed. The Applicant described having vague memories of his time in South Sudan. He states that on the day his father was killed he remembers soldiers coming to the village. He states “I saw my mum crying on the ground and there were dead bodies on the ground. My mum was lying on top of my father’s body and crying a lot. I knew my father had been shot and killed. The village was on fire. I remember running non-stop with my mum and siblings. My uncle carried me for part of the way. I remember there were people shooting and fighting on the way while we fled to Kenya”.

58. In his direct evidence at the hearing the Applicant acknowledged the that he had not been an eyewitness to his father’s death but maintained that he did recall his mother crying while lying on his dead father’s body. The Applicant told the Tribunal that his previous statement suggesting that he may have been born in Kenya was wrong and that he had made that earlier statement in an attempt to appease his mother who was very concerned about him being sent back to South Sudan.
59. The Respondent’s contention is that the more recent of the mother’s accounts included in her August 2020 statement should be preferred. Consistent with this the Respondent contends that the Applicant was not born at the time of his father’s death and therefore that his direct evidence to the Tribunal that he had memories of the event and of his mother lying on his father’s body was not truthful. The Respondent maintains that this account should be preferred as it was corroborated by the Applicant’s sister’s account and is further reinforced by the reference in the mental health nurse’s note as well as the Applicant’s statement of August 2020. On the basis of these contentions the Respondent invites the Tribunal to make an adverse finding against the Applicant as an unreliable witness.
60. The Applicant’s counsel submitted that the Tribunal should reject the Respondent’s contentions on this issue. The Applicant’s counsel argues that the Respondent is being selective in preferring the mother’s August 2020 statement given that that statement would suggest that the Applicant was born in Kenya when the Respondent separately had conceded he was in fact born in South Sudan. The Applicant’s counsel also submitted that it was wrong to characterise the sister’s account as being a corroboration of her mother’s August 2020 account when in her evidence she conceded that she did not really have an independent memory of the events and that she would defer to her mother’s memory. It was also the Applicant’s counsel’s contention that the Tribunal should not place great weight on the reference to the mental health nurse notes given that the Tribunal was not able to hear from her directly and it was not clear in what context the notes were taken. He also submitted that the Applicant’s explanation as to why he had suggested in his earlier statement that he had been born on the way to the Kenyan refugee camp was entirely plausible.
61. The Tribunal accepts that genuine caution needs to be exercised in reaching adverse conclusions in relation to the Applicant’s reliability as a witness based on varying accounts of events that occurred almost 30 years ago and also in the context of extreme violence and trauma. This is particularly so when several of the accounts are indirect records of what a person is said to have said and also where some of the accounts have been provided through a translator or in the context of other language and cultural difficulties.
62. In considering this issue the Tribunal did not have the benefit of hearing any direct evidence from the Applicant’s mother regarding which of her two accounts she maintains is the more reliable. The Applicant’s mother was not called by the Applicant to give evidence at the hearing but nor was she called by the Respondent for the purpose of cross-examination. No inference is drawn in this respect.
63. The Tribunal accepts the Applicant’s counsel’s submission that the sister’s evidence is not corroboration of the Applicant’s mother’s August 2020 account and that it is at best a repetition of that account. The Tribunal also accepts that little weight should be given to the mental health nurse notes for the reasons stated.
64. Having considered all of the material before it, including the direct evidence of the Applicant, the Tribunal is satisfied that the Applicant’s direct evidence at the hearing that he was present in the family’s home village at the time of his father’s death should be accepted as a truthful account.
65. Notwithstanding the earlier inconsistency in the Applicant’s account, the Tribunal found the Applicant’s direct evidence at the hearing where he told the Tribunal he was present in his home village at the time of his father’s death to be credible. The Tribunal accepts that the mother’s account in her visa application which was completed in December 2005 is by far the most contemporaneous of the varying accounts which adds significant weight to it being the most reliable. That account clearly states that the family had left their home village in South Sudan in 1991, travelling to a displacement camp and notes the date of arrival at that camp as March 1991. The account clearly states that all members of the family, including Applicant, were present at that time. It is not in dispute between the parties that the Applicant was born in July 1990. This strongly infers that the Applicant was present in the village at the time his father was killed.
66. In addition, while it may be reasonable to infer some level of doubt as to the accuracy of some of the Applicant’s more specific recollections of that time given, by any account, his very young age as well as the potential for his memory to have been contaminated to some degree by stories told to him by others while he was still of a young age, the Tribunal is nonetheless satisfied that the Applicant’s evidence of having a vague recollection of soldiers being present in the village, of bodies on the ground and of his mother crying on top of his father’s body is a recollection the Applicant generally believes to be true.
67. For these reasons, the Tribunal finds that the Applicant’s evidence given at the hearing regarding the circumstances of his father’s death was truthful. More specifically, the Tribunal finds that the Applicant was born in South Sudan and was present in the family’s home village in South Sudan at the time of his father’s violent death. In addition, the Tribunal finds that the Applicant’s account of the having memories of that time, including a memory of his mother crying over the body of his dead father, is a genuinely held belief.
68. The Tribunal also finds that the Applicant’s experience of his father’s death at a very early age, together with his memories of that early period in his life has caused him significant trauma.
69. In addition, the Tribunal is also satisfied on the basis of all of the evidence before it that the Applicant otherwise had an incredibly difficult and traumatic early life more broadly, including being exposed to violence at the Kakuma refugee camp where he grew up and living day-to-day subject to genuine fear for his safety and the safety of the other members of his family.

Dr Nathani’s evidence

70. There was also significant contention between the parties in relation to the weight to be given to the evidence given by the Applicant’s psychiatric expert, Dr Nathani. Dr Nathani prepared two psychiatric reports, the first dated 8 August 2020 and then a supplementary report dated 8 November 2020. Dr Nathani also gave direct evidence at the hearing.
71. Dr Nathani’s evidence was that the Applicant presented a low risk of violent reoffending and a moderate risk of non-violent reoffending. Dr Nathani based his assessment on a combination of the Historical, Clinical and Risk Management – 20 (“HCR-20”) methodology as well as the concept of attachment theory in reaching his conclusions.
72. In addition, Dr Nathani ultimately concluded that a provisional diagnosis of Post Traumatic Stress Disorder (‘PTSD’) was appropriate in the Applicant’s case. In reaching this conclusion Dr Nathani stated that while he was not satisfied that the Applicant meets all of the criteria for PTSD he does suffer PTSD symptoms including poor sleep, vivid dreams, flashbacks, anorexia and low mood. He described the Applicant as having an underlying PTSD condition which was in remission due to him taking medication. Dr Nathani stated that the Applicant is likely to experience a deterioration in his PTSD symptoms if he were to remain in detention for any extended period of time and rapidly so if he was required to return to South Sudan. Dr Nathani stated that the risk of the Applicant developing suicidal thoughts if deported was high.
73. Dr Nathani reached a number of further specific conclusions in respect of the Applicant including the following:

(a) The Applicant presents with an insecure attachment style and features of an anti-social personality structure but does not meet the diagnostic criteria for Antisocial Personality Disorder. Dr Nathani explained that the Applicant has developed these factors as a consequence of his exposure to trauma and his experiences in the Kakuma refugee camp where he felt the need to develop a high level of independence and self-protection at an early age. Dr Nathani told the Tribunal that these factors help explain the Applicant’s history of suspicion and hostility towards authority figures and aggression towards other men in threatening contexts. He noted that the Applicant appeared to have a history of positive engagement with women and also that there was no history of offending against women or children of any kind.

(b) The main factors contributing to the Applicant’s offending are methamphetamine use, which increased disinhibition and precipitated psychotic episodes, and the Applicant’s early exposure to the use of aggression as a means of communication and seeking a sense of belonging to a tribe or peer group.

(c) The Applicant is partially rehabilitated in that he has abstained from substances and has demonstrated insight into the nature and causes of his offending. However, the Applicant would still benefit from ongoing psychiatric counselling in relation to his underlying emotional issues.

(d) Relapsing back into methamphetamine use is “probably the single most important factor which can alter [the Applicant’s] risk profile”. Given that the Applicant has “abstained from substances, described a plan to remain abstinent mainly through exercise and has reportedly gained insight into his anti-authority stance, the main factors which influence his overall risk of re-offending are mainly the static factors. Therefore, in my opinion, [the Applicant’s] risk of reoffending is in the low range for violent offences and in the moderate range for non-violent offences.”

(e) “In my opinion, reducing the risk of non-violent offences through a shift in attachment style from a dismissing (insecure) style towards a more secure attachment style has already commenced, and is being perpetuated by [the Applicant’s] desire to fulfill the role of a good father”.

74. In addition to psychiatric counselling, Dr Nathani made a number of further specific recommendations for follow up if released back into the community including that the Applicant attend a literacy and numeracy program and engage with relevant community-based supports.
75. The Respondent contended that little weight should be given to the conclusions of Dr Nathani for a number of reasons including that Dr Nathani had not fully factored in the detail of the Applicant’s violent offending, that he had dismissed the stabbing offence as being of “low relevance” and that he had not properly followed the HCR-20 methodology and had very little experience in its application. In addition, the Respondent contended that little weight should be given to Dr Nathani’s provisional PTSD diagnosis on the grounds that it was based directly or indirectly on the suggestion that the Applicant had been exposed to trauma as a consequence of witnessing his father’s death which was not in fact true.
76. The Tribunal rejects the contentions of the Respondent in these respects and accepts each of Dr Nathani’s conclusions.
77. While the Tribunal accepts that Dr Nathani has limited experience in the application of the HCR-20 methodology on which his risk assessment was partly based, the Tribunal is nonetheless satisfied that Dr Nathani is appropriately qualified to apply the test methodology and found Dr Nathani’s evidence before the Tribunal to be both professional and credible. The Tribunal found Dr Nathani to be a refreshingly frank witness who freely admitted his limited experience. While Dr Nathani made a number of acknowledgements regarding his limited experience, he made very clear to the Tribunal that he stood by his risk assessments. The Tribunal is satisfied that Dr Nathani took proper account of the Applicant’s offending history, including his violent offending. The Tribunal is satisfied with Dr Nathan’s explanation for how he reached his risk conclusions and does not accept the Respondent’s contention that Dr Nathani applied the HCR-20 methodology incorrectly.
78. The Tribunal accepts that Dr Nathani based his conclusion in relation to both his initial clinical suspicion of PTSD and his subsequent conclusion of provisional diagnosis of PTSD on the basis of the Applicant having witnessed the death of his father. While it is certainly clear that the Applicant did not actually witness his father’s death, for the reasons set out earlier, the Tribunal is satisfied that the Applicant was present in his family’s village at the time of his father’s death and has genuinely held memories of the circumstances surrounding his death. However, the Tribunal does not accept that this in any way undermines Dr Nathani’s conclusion of a provisional diagnosis of PTSD as Dr Nathani made clear in his direct evidence that even if the applicant had not actually witnessed his father’s death he stood by his provisional diagnosis on the basis that he was satisfied the Applicant had in any case been exposed to significant trauma as a child, in particular through his experiences at Kakuma. The Tribunal accepts Dr Nathani’s evidence in this respect. There is no question in the mind of the Tribunal that the Applicant is deeply traumatised by those circumstances, as well as being traumatised as a consequence of his experiences growing up at the Kakuma refugee camp more broadly. To the extent that Dr Nathani’s conclusions are based on the Applicant having otherwise lived a traumatic early life, the Tribunal accepts those conclusions. More specifically, the Tribunal accepts that the applicant is currently suffering mental health issues in the form of PTSD related symptoms as identified by Dr Nathani. In addition, the Tribunal accepts that in the event the Applicant continues to be held in detention for an extended period his symptoms will deteriorate, and in the event he is deported to South Sudan, rapidly so. The Tribunal accepts that in such a scenario there is a genuine risk of the Applicant relapsing into a fully diagnosed PTSD condition and a high risk of suicidal thoughts.
79. In addition, the Tribunal accepts the Applicant’s contention that Dr Nathani did not suggest that the stabbing incident was of low relevance to his risk assessment but rather that it was relevant in establishing a low risk of reoffending on the basis that the offending conduct in the stabbing offence had been impulsive and in response to a very specific set of circumstances and that he had expressed significant regret for the offending.

Consideration of risk more broadly

80. The Tribunal accepts the following as factors that mitigate the risk of the Applicant reoffending:

(a) The Applicant’s acknowledgment of his past issues with drug and alcohol abuse, including, in particular, the significant role his previous methamphetamine addiction has played in his offending. The Applicant has ceased using drugs and alcohol. He told the Tribunal that he would never drink again because it just made him sad. He also said that he would never go back to drugs of any kind. He said he realised the damage it had been doing to him and the impact it had on his behaviour. He said he felt ashamed. He said he did not want to go back to that life and that he wanted to be “a good father and to make my mother proud”. He told the Tribunal that he had stopped using marijuana in 2015 and stopped using methamphetamine just prior to going to prison. The Tribunal is satisfied that the Applicant’s stated commitment to avoid a relapse back into alcohol and drug abuse in the future is genuine. The Applicant has maintained abstinence from alcohol and other drug use over the course of the last three years. The Tribunal Materials included a bundle of urinalysis tests during the period the Applicant has been in custody all of which recorded negative indicators to the presence of drugs in the Applicant’s system. Having considered the Applicant’s evidence the Tribunal is satisfied that he has demonstrated a clear understanding of the significant role alcohol and drug abuse and in particular use of methamphetamine has had in his offending. The Applicant told the Tribunal he is committed to staying away from drugs as well as those he had previously associated with who were involved with drugs. He told the Tribunal that drugs have been readily available within prison and detention and that he had taken proactive steps to isolate himself from any form of drug use in that environment. The Applicant told the Tribunal that he had engaged in running and fitness training during his time in prison and detention and stated that he believed his physical fitness was an additional motivating factor in staying away from any form drug use. This was also supported by the evidence of Dr Nathani. In addition, there was evidence that the Applicant had undertaken drug and alcohol counselling and has reaffirmed his commitment to continue with additional counselling with a focus on relapse prevention. The Applicant’s partner and sister both gave evidence of their willingness to help support the Applicant in attending counselling to help avoid relapse. The Applicant noted that he had previously been unable to participate in such courses during his earlier terms of imprisonment due to the shortness of the terms. The Tribunal materials include a letter from a social worker involved in drug and alcohol counselling which stated that the Applicant “has expressed a strong motivation to address previous substance abuse and dependency concerns”. The Applicant has also told the Tribunal that he intends to move away from Melbourne to Brisbane together with his partner and son in order to get a fresh start and disassociate himself from previous contacts involved in drugs. This intent was reaffirmed in the direct evidence of the Applicant’s partner as well as the Applicant’s sister who indicated that she would assist the Applicant and his partner in re-establishing themselves in Brisbane. The Tribunal is satisfied that the Applicant’s stated commitments with respect to avoiding a relapse back into drug and alcohol abuse and continuing with his efforts towards rehabilitation more broadly are both genuine and credible.

(b) The Applicant’s commitment to this family including, in particular, his son, partner and mother. In his direct evidence the Applicant told the Tribunal that he was determined to be a good father and partner and was committed to doing all he could to ensure a positive future for them as a family on his release. In addition, it was very clear that the Applicant has a very close and special relationship with his mother and is genuinely committed to supporting her on his release. There was also evidence of the relationship the Applicant has with his sister which was further reinforced through her evidence to the Tribunal. The Tribunal is satisfied that the Applicant’s commitment to his family is genuine and represents both a motivating factor in avoiding relapse back into drug and alcohol abuse as well as a deterrent against offending given the significant consequences any reoffending would have for his ability to be able to remain in Australia. In his direct evidence the Applicant told the Tribunal that being faced with the very real prospect of deportation has caused him to understand in stark terms what is at stake if he were ever to reoffend again. The Tribunal is also satisfied that the significant level of support for the Applicant from his family including, in particular, his partner and sister is a further protective factor against relapse and reoffending. The Respondent invited the Tribunal to draw an adverse inference from the fact that the Applicant only re-established his relationship with his partner following his most recent incarceration. The Tribunal rejects any such inference. While acknowledging that there was a period of time during which the Applicant and his partner were separated, the clear evidence of the Applicant and his partner was that they have now re-established their relationship and are mutually committed to working together to raise their son. The Tribunal is satisfied that their evidence in this respect was both genuine and credible.

(c) The Tribunal accepts that the Applicant’s positive plans for the future are further mitigating factors against relapse and reoffending. The Applicant stated that he wanted to work further on his English skills in order to improve his employment prospects. He told the Tribunal “I won’t ruin my chance to be with my family. I am happy to do any job – a labourer or a cleaner”. He stated that his ultimate ambition is to become a fitness instructor. He told the Tribunal that he was planning to move to Brisbane with his partner and son to make a fresh start. He told the Tribunal “I want to stay away from the old crowd”. He told the Tribunal that he was determined to be there for his family and also to make the South Sudanese community proud of him by giving back to the community and being a role model for the younger kids so that they don’t make the same mistakes.

(d) The Tribunal accepts the Applicant has taken the opportunity in detention to reflect on his offending and has also taken steps to better understand his behaviours and how to avoid repeating it in the future. There was evidence of the Applicant having maintained active engagement with a number of educational programs and courses while in custody including a 6-week Headspace course titled “Do it”. That course covered drug addiction, steps to changing and avoiding relapse, handling stress anger and trigger points, strategies for developing an appropriate support network and avoiding unhelpful influences. The Applicant also undertook a course in anger management. The Applicant stated to the Tribunal that “It has taken a lot of reflection in detention to learn that accepting people’s help brings positivity to my life. I admit that, for a while, I was too ashamed and had too many negative thoughts of myself to feel worthy of receiving help and positivity”. He told the Tribunal that the courses he has been able to do while in custody have also helped him understand how to better manage his behaviour including the importance of stepping back from a situation and not acting too quickly. The Applicant also told the Tribunal that counselling had helped him a lot including helping him with controlling his emotions. The Applicant’s partner told the Tribunal that she had noticed a significant change in the Applicant since his most recent time in custody. She told the Tribunal that the Applicant was noticeably calmer and understands what he has done wrong and regrets it.

(e) The Applicant’s recognition of the relevance of his mental health issues to his offending and his willingness to continue to address them. The Tribunal accepts Dr Nathani’s evidence that a significant factor in the Applicant’s past offending was his insecure attachment style (together with his methamphetamine addiction). In the Tribunal’s view it is consistent with the Applicant’s history at the Kakuma refugee camp and the difficulties he has had in transitioning into life in Australia. As Dr Nathani explained, it is understandable that given his traumatic experiences growing up at the camp and without the benefit of his father’s protection that the Applicant developed a high level of suspicion of authority figures and of other men whom he considered to be a threat. This is, of course, not an excuse for Applicant’s offending behaviour in Australia but it is important context in understanding what has driven his behaviour. It helps explain, in particular, the difficulty the Applicant has had in his interactions with police. The Tribunal is satisfied that the Applicant demonstrated a developed understanding of these issues and is genuinely committed to further address them on an ongoing basis through further counselling on his release.

81. The Tribunal also acknowledges the Applicant’s various statements of regret and remorse for his offending. The Applicant expressed his regret and remorse for his offending a number of times through the course of his evidence. He said he felt ashamed of what he has done and was determined to be a better person, a better partner and to be a good father to his son and a good son to his mother. However, in the Tribunal’s view these expressions of regret and remorse are qualified to some degree. In the course of his evidence the Applicant challenged some details of his offending that were put to him by the Respondent’s lawyer. For example, in his direct evidence the Applicant denied having physically assaulted police during the incident in which his arm had been broken although he accepted he had made the cocked finger gesture to police which formed the basis of the threat to kill charge. Also, in relation to the family violence order breach, the Applicant denied having threatened to kill his brother although he accepted that he had punched his brother in the initial incident. The Applicant also maintained that the BP station robbery had been an attempt to recover money owed to a friend. The Applicant stated that he had pleaded guilty to a number of his offences despite not accepting some of the details of the charges because he had not understood the system nor what exactly was being said on his behalf and also because he did not appreciate the impact it could have for him.
82. The Tribunal accepts the Respondent’s contention that it would not be appropriate for the Tribunal to look behind the Applicant’s convictions and the Tribunal accepts the Applicant’s counsel’s submission that the Applicant was not inviting the Tribunal to do so. The Tribunal is also satisfied that while the Applicant challenged some of the details of his offending that were put to him in cross-examination he nonetheless expressed very genuine remorse and regret for his history of criminal offending more broadly including, in particular, his stabbing offence. In relation to the stabbing offence the Applicant told the Tribunal “I did the wrong thing. I apologised to his nephew. I sent my apologies to him. I am ashamed of it”. In relation to his offending more broadly the Applicant stated “When I look back on my life I am very ashamed of all of the stupid things I have done and that people have had to deal with my mess and the people I have hurt. I have gone to maximum security prison and I deserve that for everything”.
83. In relation to his interactions with police, the Applicant acknowledged the early difficulties he had in his interactions but made a number of comments during his evidence that were very supportive of the effort police have made with the South Sudanese community in Melbourne. This strongly suggests to the Tribunal that the Applicant has developed a level of acknowledgment of the challenges faced by police and the very important role they play in our community. It also demonstrates insight into his police related offending.
84. The Respondent contends that the Tribunal should exercise caution in relying on the Applicant’s commitment to ongoing counselling given that here has been a history of not following up treatment referrals in the past. The Applicant’s counsel argues that previous examples of the Applicant not pursuing treatment needed to be understood in context. First in relation to cultural and language barriers and then also due to specific circumstances. The Applicant’s counsel cited the example of the Applicant’s case manager not pursuing a treatment referral because the Applicant failed to attend a single appointment and yet there had been no apparent consideration of the reason for the Applicant missing the single appointment. In addition, the Applicant’s counsel contends that on the evidence before the Tribunal there is a clear demonstration of a markedly greater acknowledgement by the Applicant of his mental health issues, issues associated with his dismissive attachment style and his previous addiction to drugs and alcohol and the role they have played in his offending than he has demonstrated previously. In addition, that there is evidence of a commitment to pursuing ongoing counselling to continue to address those issues which was not evident previously; that there is also evidence of other protective factors such as his sense of responsibility as a partner and father to his young child that were not evident previously; and that there also is evidence of the Applicant having been successfully engaged in a number of courses while in detention which demonstrates a level of commitment to an ongoing engagement in self-improvement. The Tribunal accepts the Applicant’s contentions in these respects. This was further reinforced through the evidence of both the Applicant’s partner and sister who both gave evidence about the extent to which they believed the Applicant had changed during his most recent time in custody.
85. The Respondent contends that the Applicant’s involvement in a series of incidents while in custody would suggest that the Applicant has not changed as much as he seeks to represent to the Tribunal and that these incidents are suggestive of heightened risk of reoffending. The Applicant’s counsel contends that the Tribunal should exercise caution in relying on records of incidents while in custody given that details of those incidents have not been put to the Applicant in cross-examination and that while he acknowledged that some incidents had occurred in his evidence in chief the Applicant had challenged some of the details of the reported accounts and also sought to provide context to the two incidents he was taken to. For example, in one of the incidents the Applicant claims to have been effectively denied the opportunity to toilet in private during an extended period of confinement. The Tribunal accepts that details of the reported incidents were not put to the Applicant during cross-examination and therefore the Tribunal makes no specific finding about the accuracy of those reports beyond acknowledging that there have been a number of reported incidents. However, in the Tribunal’s view, the fact that the Applicant may have been involved in a number of incidents involving other detainees or guards while in detention is not inconsistent with the conclusion of Dr Nathani which the Tribunal accepts, that while some real progress has been made, the Applicant has further work to do in fully addressing his mental health and other attachment style issues through ongoing counselling. The Tribunal also accepts that there has been evidence of positive interactions between the Applicant and other detainees and guards which again is consistent with real progress having been made by the Applicant in better managing his behaviour. For example, the Individual Management Plan record dated 14 September 2017 states:

“[The Applicant] appears to be well settled in Blue Two CIDC within the 6 weeks he has been here. He has made a lot of friends and gets along with everybody. In particular he has adhered to CIDC policies and procedures very well”.

86. A further example dated 25 February 2018 states:

“[The Applicant] continues to be respectful and compliant to officers, stakeholders and fellow detainees”.

87. A further example dated 17 June 2018 states:

“[The Applicant] is polite and compliant to officers, stakeholders and fellow detainees”.

88. Having had regard to each of the factors as set out above as well as the conclusions of Dr Nathani, the Tribunal is satisfied that the risk of the Applicant engaging in further serious or violent reoffending again is low. The Tribunal accepts that the Applicant has demonstrated an acknowledgment of the nature and causes of his offending. The Tribunal is satisfied that the Applicant has made significant progress towards rehabilitation but accepts that the Applicant has further work to do.
89. The Tribunal accepts that the Applicant is no longer addicted to alcohol or drugs including methamphetamine, has a clear plan for avoiding relapse, a strong determination not to relapse and substantive protective factors to assist in avoiding a relapse.
90. There is also a clear acknowledgment by the Applicant of some of the broader issues he has had in responding appropriately with authority figures or other men when feeling threatened and a commitment to ongoing counselling in the management of those issues.
91. There has also been demonstrated progress in the better management of the Applicant’s mental health issues and again a commitment to ongoing counselling.
92. The Tribunal also accepts that the Applicant has substantive deterrents against reoffending including, in particular, the impact further offending would have on the Applicant’s ongoing relationship with his partner, sister, mother and young son. The support offered by his family also represents a significant protective factor against reoffending.
93. In addition, the Tribunal accepts the contention put on behalf of the Applicant that the Applicant’s most serious offending including his knife offences occurred a significant number of years ago and that despite the fact the Applicant commenced offending shortly after first arriving in Australia there has not been a demonstrated pattern of increasing seriousness in the Applicant’s offending. In this context and given the other mitigating factors identified above as well as the conclusions of Dr Nathani, the Tribunal considers the risk of the Applicant offending again in a manner similar to his most serious offending, violent offending or offending involving knives or other weapons, is at the low end of the spectrum of risk.
94. The Tribunal also accepts that the Applicant’s offending in relation to the family violence intervention order breach occurred in a very specific set of circumstances. Given this and also recognising the other mitigating factors identified above, the Tribunal is satisfied that the risk of the Applicant offending again in a similar manner is also at the low end.
95. Consistent with this conclusion, the Tribunal does not accept the Respondent’s contention that the risk of further reoffending is so high or the risk of harm so serious that the risk of harm is an unacceptable one. More specifically, the Tribunal does not accept that the risk of harm if the Applicant’s more serious offending were to be repeated is so serious that any risk is unacceptable.
96. On the other hand, the Tribunal does not view the risk of reoffending or the harm that could be caused to be so low that it is insignificant or immaterial such that it can be dismissed entirely. For that reason, the Tribunal is satisfied that this consideration weighs against a revocation of the cancellation of the Applicant’s visa but not to the extent that it is determinative.

The best interests of minor children in Australia

97. Paragraph 13.2(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:
    1. 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);
    2. 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 in the care arrangements;
    100. 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;
    4. 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;
    5. Whether there are other persons who already fulfill a parental role in relation to the child;
    6. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
    7. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
    8. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
98. There was evidence before the Tribunal of the Applicant having a parental relationship with his four-year-old son, NA. The Applicant told the Tribunal that he has a very meaningful relationship with his son and has maintained regular contact with him daily through telephone or video calls. In addition, the Applicant told the Tribunal that prior to restrictions imposed as a consequence of COVID-19, NA had visited him face-to-face up to 3 times a week accompanied by the Applicant’s partner. The Applicant made clear to the Tribunal that he is determined to play a positive role in NA’s life and be a positive role model to him. He told the Tribunal that he is determined to do all he can to provide emotionally and financially for NA and his partner.
99. There was evidence that NA has special needs because of an autism disorder and also a potential diagnosis of attention deficit/hyperactivity disorder. There was also evidence of NA having difficulty with his speech and other behavioural challenges.
100. The Applicant’s partner, LP, told the Tribunal that she has found it very difficult to care for NA in the Applicant’s absence. She told the Tribunal that she expects it to become more difficult as NA grows up and his medical conditions worsen. The Applicant’s partner told the Tribunal that the Applicant has a genuine love and affection for NA and has made significant effort to engage with their son during his time in detention. LP told the Tribunal that NA expresses affection towards his father and regularly asks when he is coming home. LP said that when he speaks to his father NA is noticeably happier. LP said that it has been particularly difficult during the period that NA has been unable to visit his father in person. LP also told the Tribunal that the Applicant has benefited from his engagement with NA and wants to do the right thing by him and be there for him in the future. LP said that she is concerned for NA if the Applicant is required to go back to South Sudan as he needs his father in his life.
101. The strong bond the Applicant has with his son NA was further reinforced through the evidence of the Applicant’s sister, EA, who told the Tribunal that the Applicant genuinely cares for his son.
102. Based on the evidence before it the Tribunal is satisfied that the Applicant has a genuine love and affection for his son. There was no evidence that the Applicant’s offending had adversely impacted NA directly.
103. The Tribunal accepts that the Applicant had an extended period of time where he was separated from his partner and saw less of NA. However, as stated earlier, the Tribunal is satisfied that the Applicant is now reunited with his partner and that they are jointly committed to the ongoing care of NA. While the contribution the Applicant has played in NA’s life has been reduced as a consequence of the Applicant’s absence for a period, as well as his time in custody, the Tribunal is satisfied that the Applicant’s commitment to playing an important and positive parental type role in NA’s life into the future is very genuine.
104. The Tribunal is satisfied that in the event the Applicant’s visa cancellation is not revoked and he is forced to return to South Sudan there is no real prospect that the Applicant’s partner or NA will travel back to South Sudan to live with him there. As a consequence, in those circumstances it is likely that the Applicant’s relationship with NA will be very significantly impacted due to geographic dislocation. In drawing this conclusion the Tribunal acknowledges that the Applicant will be able to maintain some form of ongoing contact through phone or other digital means although the Tribunal accepts that this may be irregular given the likelihood that the Applicant will have limited financial means. Given the medical conditions NA is suffering the Tribunal is satisfied that such a scenario would have a very significant adverse impact on NA as well as the Applicant’s partner given the additional strain she is likely to suffer in caring for NA in the Applicant’s ongoing physical absence. It will also result in NA growing up without the face to face contact and in person support of his father.
105. For these reasons, the Tribunal is satisfied that it would be in the best interests of NA for the Applicant’s visa cancellation to be revoked. The Tribunal gives this significant weight.
106. The Applicant also has 11 nieces and nephews in Australia. The Applicant’s sister has six children under the age of 18 and the Applicant’s brother has five children under the age of 18.
107. It is clear from the evidence that the Applicant has had a varied exposure to each of his nieces and nephews. The Applicant has had limited face-to-face contact with most of his nieces or nephews although there was evidence that the Applicant has maintained regular phone contact with his sister’s children. The Applicant’s sister gave evidence in relation to the relationship the Applicant has with her children including that the Applicant had assisted in caring for her two eldest children, AA and MA, while they lived together at the refugee camp in Kenya. AA and MA have also provided a supporting letter confirming the positive role the Applicant has played in their lives.
108. The Applicant appears to have had very limited contact with his brother’s children although he described his relationship with them as “good”. The Tribunal has been mindful that the Applicant was made the subject of a Family Violence Intervention Order which limited his capacity to have contact with his brother’s children. Nonetheless, the Tribunal is satisfied that the Applicant feels some level of connection to each of his nieces and nephews and that in the event he is forced to relocate back to South Sudan any potential possibility of further development in his relationship with them is likely to be very significantly impacted. As a consequence, the Tribunal is satisfied that it is in the best interests of each of the Applicant’s nieces and nephews that the Applicant’s visa cancellation be revoked although the Tribunal was given this particular aspect very limited weight.
109. For these reasons, the Tribunal finds that this consideration weighs significantly in favour of a decision to revoke the cancellation of the Applicant’s visa. This is very substantially related to the interests of the Applicant’s son, NA.

Expectations of the Australian community

110. Paragraph 13.3(1) of the Direction provides that:

(1) 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.

111. The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection^[2] (YNQY) as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs (FYBR).^[3]
112. In applying this consideration, the Tribunal has had due regard for Government’s stated views as set out in the Direction including those described in paragraph 13.3(1) referred to above as well as the general principles set out in paragraph 6.3 of the Direction.
113. The Tribunal has also been mindful of factors relevant to the Applicant’s specific circumstances including that the Applicant:

(a) has taken positive steps to understand the causes of his offending and to address underlying issues including his alcohol and drug abuse and also, he is mental health and other broader attachment style issues;

(b) has demonstrated a commitment to undertake further counselling to further progress his rehabilitation;

(c) he has demonstrated a commitment to his partner, mother and young son and that a decision to require the Applicant to relocate back to South Sudan is likely to impact them very significantly;

(d) the very significant consequences that would likely flow to the Applicant if he were required to relocate back to South Sudan.

114. Against these factors, the Tribunal acknowledges that some of the Applicant’s offending has been serious, repeated and has included violent offences, in particular, one offence that caused significant injury to the victim.
115. Having had regard to the Applicant’s history of offending as well as the Government’s stated views the Tribunal is satisfied that this consideration weighs against revocation. However, in light of the factors as described above, not heavily so.

Other considerations

International non-refoulement obligations

116. It was put on behalf of the Applicant that Australia owes the Applicant international non-refoulement obligations under a variety of international law instruments including the Refugee Convention, the International Covenant on Civil and Political Rights (the “ICCPR”) and the Convention Against Torture (the “CAT”).
117. More specifically the Applicant’s submissions claim that in the event the Applicant is forced to relocate back to South Sudan:

(a) the Applicant faces a well-founded fear of persecution by reason of their race, religion, nationality, political opinion or membership of a particular social group;

(b) that there are substantial grounds for believing that the Applicant would be subjected to torture;

(c) that there are substantial grounds for believing that there is a real risk of irreparable harm to the Applicant.

118. Further, it was claimed that the Applicant has previously been accepted into Australia as a refugee and that his status as a refugee has not ceased. Therefore, Australia continues to owe the Applicant international non-refoulement obligations.
119. The Applicant’s submissions make reference to the following:

(a) The Department of Foreign Affairs and Trade describe the security situation in the South Sudan in its 2016 country information report (the “2016 DFAT Report”) on the country as being “extremely volatile”.

(b) Since then, in April 2019, the United Nations High Commissioner for Refugees (“UNHCR”) stated that, notwithstanding a marked reduction in violence in the country due to an ongoing ceasefire, “egregious human rights violations continue to be perpetrated by parties to the conflict with near complete impunity”. Unlawful killings by the security and opposition forces, militia, and an array of other groups has been observed by the US Department of State (“USDOS”) as widespread. Torture and other cruel, inhumane, or degrading treatment or punishment was noted in the same report as being commonplace, and widely engaged in by the same broad cross-section of active groups across the country. No effective means to investigate or punish such abuse appear to be in place. Police also routinely arrested civilians based on little or no evidence to conducting investigations and often held them for weeks or months without charge or trial.

(c) The overall view of the UNHCR in 2019 was that “[t]he security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of safe and dignified return for any person originating from South Sudan, whether or not the person is found to be in need of international protection”. The official position of the UNHCR flowing from this finding was a clear recommendation against forcible return of nationals or habitual residents of South Sudan to the country.

(d) The South Sudanese government lacks the ability to control or hold to account non-government forces. In 2019, the UNHCR confirmed that civilians remain unable to rely on state authorities for protection, as the government has no effective mechanisms to investigate and punish abuse and;

(e) the South Sudan National Police Service is corrupt and widely distrusted.

120. It was submitted on behalf of the Applicant that on the basis of the country information included in the 2016 DFAT Country Information Report for South Sudan (the “Country Information Report”), there is overwhelming evidence that the security situation in South Sudan is sufficiently volatile as to constitute a high risk that the Applicant would face serious harm if he is forced to return to South Sudan.
121. These submissions were reinforced by the Applicant’s direct evidence as well as the evidence of his sister. Both the Applicant and his sister told the Tribunal that their understanding was that South Sudan continues to be very dangerous and unstable. The Applicant told the Tribunal that he believed if he returned the he would almost certainly be killed. The Applicant’s sister told the Tribunal that she did not believe the Applicant would survive if he was forced to relocate to South Sudan due to the violence that continues to exist there.
122. While recognising the historical volatility in South Sudan the Respondent claims that recent developments have led to a more stabilised political environment which has reduced significantly the general risk faced by a person such as the Applicant if he was to return there. The Respondent’s materials included a number of United Nations News articles which report on more recent developments including the establishment of a new “unity” government and the signing of a peace agreement. The Respondent claims that as a result of such developments there is now an expectation of significant numbers of previously displaced South Sudanese returning to the country.
123. The Applicant told the Tribunal that he does not accept that recent developments have fundamentally changed the situation on the ground in South Sudan. He noted that similar peace deals have been struck in the past but have not lasted and that the political instability and violence has continued to exist.
124. The Tribunal is satisfied that notwithstanding more recent positive developments in South Sudan, the situation there continues to be extremely unstable and uncertain. The Tribunal accepts the Applicant’s contention that caution should be exercised in placing too much weight on the sustainability of the current unity government and its associated peace deal.
125. The Tribunal is satisfied that the information included in the Country Information Report in relation to the ongoing existence of political instability and extreme violence is still generally reflective of the environment on the ground in South Sudan. This conclusion was further reinforced by the information set out in the Australian Government’s Smartraveller Guide for South Sudan dated 12 May 2020 (the “Smartraveller Guide”). The Smartraveller Guide advises “Do not travel to South Sudan, including Juba, due to instability and ongoing conflict”. It goes onto state:
     • Due to COVID-19, there are reports of violent threats against United Nations personnel on social media and an increase in anti-foreign sentiment.
     • Fighting and instability continues across the country. The situation is volatile and can worsen without warning. Border areas are especially dangerous. If you’re in South Sudan, leave as soon as possible.
     • Terrorist attacks could occur without warning. Public places, hotels, restaurants and government buildings are targets. Airports and transport hubs may also be targets. Be alert in public places. Report any suspicious items or activities to police.
     • Kidnapping, murder, shootings, home invasions, armed robbery, carjacking and sexual assault are common throughout South Sudan, including Juba. Get professional security advice.
126. Based on the information before it the Tribunal accepts that South Sudan continues to be extremely volatile and that crime, including violent crime such as kidnapping, murder, shootings, home invasions, armed robbery and carjacking continue to be widespread, including in the capital city of Juba.
127. The Tribunal is satisfied that if forced to relocate back to South Sudan it is likely the Applicant would be exposed to violent crime and that there exists a real risk of the Applicant suffering serious harm, including serious physical harm and possibly death.
128. It was claimed on behalf of the Applicant that the risk he would face of serious harm is further heightened as a consequence of him being identified as:

(a) a person of Dinka ethnicity;

(b) a person having an imputed political opinion due to his Dinka ethnicity;

(c) being a returnee from the West;

(d) a person who is less familiar with local cultural practices and behaviours; and

(e) being a young male with no familial, social or community connections.

129. The Tribunal accepts the Applicant’s submission that if he were to return to South Sudan he would be readily identified as a younger male of Dinka ethnicity with no familial, social or community connections.
130. The Respondent contends that the Applicant is a member of a South Sudanese family and has been exposed to community cultural practices and behaviours through his time at the Kakuma refugee camp and also through the Australian South Sudanese community. The Respondent contends that as a consequence of such exposure the suggestion that the Applicant is less familiar with cultural practices and behaviours should not be accepted.
131. The Tribunal rejects this contention. The Tribunal accepts that the Applicant’s exposure to South Sudanese and Dinka cultural practices and behaviour is likely to have been significantly impacted by the very limited time he has actually lived in South Sudan, his exposure to mixed cultural groups in the Kakuma refugee camp he grew up in and his periods of dislocation from the South Sudanese community during his time in Australia. On this last point the Tribunal accepts that during the period the Applicant was abusing drugs his connection to the South Sudanese community was limited. The Applicant’s own evidence was that his behaviour during this period had caused significant disquiet within the community and that he had been shunned. In addition, the Applicant has spent significant periods of time in prison and detention. The Tribunal also accepts that as a consequence of the extended period of time he has lived in Australia it is likely that his spoken Dinka would be identifiable as not being local.
132. For these reasons, the Tribunal accepts the Applicant’s contention that if relocated back to South Sudan he would readily be identifiable as a returnee from the “West” and a person who is less familiar with local cultural practices and behaviours.
133. The Tribunal also accepts the Applicant’s contention that each of the identifying features and characteristics he has identified are likely to significantly heighten the risk he faces of serious harm should he relocate back to South Sudan above that experienced by the general population.
134. Based on the evidence before it, including the Country Information Report, the Tribunal accepts that, as a person who is readily identifiable as being of Dinka ethnicity, the Applicant is likely to face a significantly heightened risk of societal discrimination and violence if he were to return to any of the conflict affected areas in South Sudan. That would include specifically Jonglei State where the Applicant is from. The Tribunal accepts that this is at least in part due to imputed political opinion connected to his Dinka ethnicity.
135. This is supported by the Country Information Report which states that:

“Dinkas have been targeted by the Sudan People’s Liberation Army-In-Opposition (SPLA-IO) on the basis of their ethnicity, particularly in conflict affected areas. In January 2014, witnesses in the SPLA-IO controlled town of Bor in Jonglei State reported large-scale targeting of Dinka civilians, including attacks against the local hospital where 14 bodies were found including two pregnant women. During the same period, the SPLA-IO killed at least 13 civilians hiding in a church in Bor, including several women. Witnesses reported that the SPLA-IO also raped women seeking refuge in the church. DFAT is aware of reports that incidents of violence directed at Dinkas continue, mainly in conflict affected areas although the Sudan People’s Liberation Movement In Opposition’s capacity has been weakened following the recent escalation of conflict in Juba in July 2016.
Overall, DFAT assesses that Dinka’s living in conflict affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict”.

136. The Respondent contends that it is open to the Applicant to resettle in Juba, the capital city of South Sudan, which it claims to be significantly safer and also a Dinka stronghold. The Respondent contends that the Applicant would not be at a real risk of serious harm living there given that the Applicant is of Dinka ethnicity.
137. The Tribunal rejects the Respondent’s contention in this respect. The Tribunal accepts that as a general statement Juba is majority Dinka and therefore likely to be safer for the Applicant than other parts of South Sudan. However, as stated earlier, the Tribunal is satisfied that Juba is still nonetheless an extremely dangerous city. This conclusion is further supported by the Country Information Report which states that:

While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba (see “Race/Nationality”). Foreigners, non-government organisations (NGOs) and the UN have also reported that the increasing number of incidents targeted at them is limiting their ability to provide assistance within South Sudan.

138. Further, the Tribunal is satisfied that even as a person who would be identifiable as being of Dinka ethnicity the Applicant would be at significant higher risk than the general population due to his other identifiable characteristics including that he is someone who has recently returned from the West, has less familiarity with local cultural practices and behaviours and with no established familial, social or community networks. Given these distinguishing characteristics the Tribunal is satisfied that even in Juba the Applicant is likely to be at a heightened risk of societal discrimination and violence. As a consequence, the Applicant is at a higher risk of being the target of crime, including violent crime, compared to the general population. Given that serious crime, including violent crime, is common in Juba, the Tribunal is satisfied that even if the Applicant elected to resettle in Juba he is still likely to be at real risk of serious harm.
139. It was also submitted on behalf of the Applicant that he is at higher risk of serious harm if he were to relocate to South Sudan as a consequence of his mental health issues. It was put on behalf of the Applicant that South Sudan has an overwhelming lack of mental health treatment facilities and that as a consequence of poor resourcing together with local misconceptions, mental health issues are frequently very poorly managed.
140. The Applicant’s submissions also claim that in South Sudan there continues to be significant stigma as a result of being diagnosed with a mental illness. The Applicant’s submissions also referred to a report from Amnesty International dated 22 February 2017 that states:

Although levels of post-traumatic stress disorder and depression among the population remained high, the availability and accessibility of mental health and psychosocial support services remained limited. Juba Teaching Hospital is the only public medical facility that provided psychiatric care but still only had 12 beds in the psychiatric ward. The availability of psychotropic drugs was inconsistent and limited. There were only two practising psychiatrists in the country, both of whom were in Juba. Neither of them saw patients on a full-time basis. Due to the lack of appropriate services and facilities, people with mental health conditions continued to be routinely housed in prisons, even if they have not committed any crime. In prison, mental health patients continue to receive insufficient medical care and were sometimes charged or held in solitary confinement for long periods”.

141. The Respondent contends that while the quality of health services in South Sudan is generally very poor, if the Applicant were to resettle in Juba he would have a better prospect of accessing healthcare. In addition, the Respondent has invited the Tribunal to reject Dr Nathani’s opinion that the Applicant’s mental health issues are likely to be exacerbated significantly if he were to return to South Sudan as being “simply speculative”.
142. The Tribunal rejects this. As already explained, the Tribunal accepts Dr Nathani’s opinion that the Applicant is suffering from symptoms associated with PTSD and that it is likely that his mental health will deteriorate rapidly if he were to be deported to South Sudan as a consequence of the increased stress he will experience as a result.
143. The Tribunal is also satisfied that in the event he relocates to South Sudan the Applicant’s capacity to access to the mental health services he is likely to need to effectively manage his mental health issues will be extremely unlikely. This is likely to significantly further exacerbate the Applicant’s PTSD symptoms and also increase his risk of suicidal thoughts. The Tribunal also accepts that an exacerbation of the Applicant’s mental health issues is also likely to cause the Applicant to be at even greater risk of targeting for crime or other violence and further increase his risk of facing serious harm in that sense also.
144. The Applicant’s submissions also include the claim that the Applicant is likely to be at increased risk of harm due to being a relatively young male. The Applicant told the Tribunal that young men are often targeted for recruitment into the army or other militia forces. He told the Tribunal that he did not want to fight and feared that if he was forced to engage in conflict he would be at serious risk of being killed. He also said he did not want to go onto the front line and have to kill people. While the Tribunal accepts that there was some evidence in the Tribunal materials of younger men being disproportionately targeted for violence or recruitment into the militia and armed forces in some parts of the country, there was limited evidence that this risk is high within other parts of the country, including Juba. Accordingly, the Tribunal has given this issue less weight.
145. The Applicant has also claimed that if he is forced to relocate to South Sudan he fears harm at the hands of the Arab tribes who killed his father. There was no substantive independent evidence of any real risk of reprisal against the Applicant in this way. Accordingly, the Tribunal does not accept the Applicant’s claim in this respect.
146. The Applicant’s submissions also claim that the Applicant is likely to be a serious risk of arbitrary arrest or unlawful detention in South Sudan. The Tribunal accepts the evidence before it that there continues to be a heightened issue with respect to arbitrary arrest and unlawful detention in South Sudan. This is supported by the Country Information Report which states that:

“While the Transitional constitution of the Republic of South Sudan established the National Police Service is the only enforcement authority in South Sudan, the controversial National Security Service (NSS) Law provided the NSS with increased powers to arbitrarily arrest and detain individuals.
DFAT assesses as credible reports that individuals have been arbitrarily arrested and detained.
... Following an April 2015 mission to South Sudan, Human Rights Watch documented numerous examples of civilians being arbitrarily arrested and detained, including the detention of 16 individuals by the [Sudan People’s Liberation Army] and 20 individuals by the NSS. Detainees reported being held without charge for up to 10 months, being kept in poor conditions and, in some cases, brutally beaten and tortured. DFAT understands that the cases documented by Human Rights Watch, the UN Mission in South Sudan and the UN Office for the High Commissioner for Human Rights likely represent a small proportion of the total number of individuals who have been arbitrarily arrested and detained in South Sudan”.

147. It was also further supported by the Report of the Commission on Human Rights in South Sudan presented to the 43^rd session of the Human Rights Council. That report states:

Today in South Sudan, civilians are deliberately starved, systematically surveilled and silenced, arbitrarily arrested and detained and denied meaningful access to justice.

148. The Tribunal accepts that there remains a heightened risk of arbitrary arrest and detention in South Sudan. While it would appear that many of the examples cited in the materials were politically motivated the Tribunal accepts that there exists a generalised risk of arbitrary arrest and detention in South Sudan. As a consequence, if the Applicant were to relocate back to South Sudan he will be exposed to such a risk. However, in the Tribunal’s view there is insufficient independent evidence to support a conclusion that the Applicant’s risk in this respect would be any greater than that which exists for the population more generally.
149. Having regard to the evidence before it, the Tribunal is satisfied that the Applicant is at real risk of serious harm if returned to South Sudan by virtue of his Dinka ethnicity and extending to an imputed political opinion due to his Dinka ethnicity. This risk would be particularly significant if the Applicant were to resettle in his home State of Jonglei or other conflict affected areas. In addition, the Tribunal is satisfied that the Applicant is also at a real risk of serious harm if he were returned to South Sudan including if he were to resettle in the capital city of Juba, as a consequence of general violence and crime within South Sudan and including Juba. The Tribunal is satisfied that the risk of the Applicant suffering real harm is further increased above that of the general population as a consequence of a number of distinguishing characteristics that would make the Applicant more likely to be a target of violent crime or otherwise more vulnerable to it. Those characteristics include being identified as a recent returnee from the ‘West”, a person who is less familiar with local cultural practices and behaviour, including those within the Dinka community itself, and also as someone who lacks familial, social or community networks. In addition, the Tribunal is satisfied that if the Applicant is forced to return to South Sudan it is likely that his mental health issues will worsen significantly and that given the very limited nature of mental health facilities and services available in South Sudan as well as the stigma associated with mental health that is still prevalent, it is likely that the Applicant will not get the help he needs to effectively manage his mental health issues. The Tribunal is satisfied that a deterioration in the Applicant’s mental health in this way will also increase his risk of serious harm.
150. Having regard to all of the Tribunal’s conclusions above, the Tribunal finds that there are substantial grounds for believing that if the Applicant is returned to South Sudan there is a real risk of him suffering serious harm.
151. For these reasons, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia owes international non-refoulement obligations under the Refugees Convention as well as the ICCPR.
152. In light of these conclusions, the Tribunal is mindful of the consequences of a decision to not revoke the mandatory cancellation of the Applicant’s visa including that:

(a) The Applicant would be subject to removal from Australia as soon as it is reasonably practicable for that to occur, and consequently could be exposed to the risk of harm identified above in breach of Australia’s international non-refoulement obligations;

(b) Given the uncertainty surrounding the Applicant being able to secure citizenship papers to be able to return to South Sudan it is likely that he would be exposed to an extended period of immigration detention. The Tribunal accepts that this is likely to cause his mental health to deteriorate further.

(c) It would be open to the Minister to consider alternative management options such as the possibility of granting a visa under section 195A of the Act but again the Applicant would be exposed to ongoing immigration detention during the period in which such options are being considered; and

(d) The Applicant would not be subject to immediate removal from Australia if he applied for and was granted a protection visa but that should he make such an application he is also likely to spend an extended period in immigration detention pending the outcome of the application.

153. For these reasons, the Tribunal is satisfied that this consideration weighs very heavily in favour of a revocation of the mandatory cancellation of the Applicant’s visa.

Strength, nature and duration of ties

154. Paragraph 14.2 of the Direction provides that:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
   2. 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 non-revocation 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).

155. The Applicant has lived in Australia for approximately 12 years having arrived here in 2008 as an 18-year-old. The Applicant has a significant number of family members living in Australia including his partner and four-year-old son, his mother, his brother and 11 nieces and nephews.
156. The Tribunal accepts that the Applicant has genuine ongoing relationship with his partner, LP, and that they are together committed to raising their four-year-old son, NA. It was clear from LP’s evidence that she will be very significantly and adversely impacted if the Applicant’s visa cancellation is not revoked. It was clear from the evidence that she is struggling to be able to care for NA in the absence of the Applicant. LP told the Tribunal that she has no other practical support available to her. The Tribunal accepts that NA has special needs and that those needs are likely to increase as he gets older. There was also evidence of the Applicant’s partner herself suffering from health issues. She told Tribunal that the Applicant had been of assistance to her in raising NA before he was incarcerated and that she was relying on him being able to maintain his support both emotionally and financially on his release in order to be able to cope with her caring responsibilities for NA. LP told the Tribunal that in the event the Applicant is required to return to South Sudan it would devastate her and destroy their family. The Tribunal accepts that there is no real prospect that the Applicant’s partner or his son will travel back to South Sudan with him if he was required to relocate there. There is no question in the mind of the Tribunal that in that scenario the capacity for the Applicant to maintain his relationship with his partner and provide meaningful assistance to her in the raising of their son would be extremely limited. In reaching this conclusion the Tribunal accepts that it would be theoretically possible for the Applicant to maintain some level of connection to his partner and his son via phone or other electronic means although this capacity is likely to be itself constrained given the likelihood that the Applicant will have very limited financial means in South Sudan.
157. The Tribunal accepts the Applicant has a very strong emotional connection to his mother who is advancing in years and requires assistance on a day-to-day basis. The Applicant told the Tribunal that he feels a very special obligation towards his mother because he is the youngest. He said, “I am supposed to support her and her health is not good”. The Applicant’s sister told the Tribunal that the Applicant’s mother relies on the Applicant for support and that in the event the Applicant’s visa cancellation is not revoked and he was required to relocate back to South Sudan she would be devastated but also very significantly adversely impacted from a support perspective. She told the Tribunal that she feared if the Applicant were sent back to South Sudan her mother would lose the will to live and that her love for him is “very big”. The Tribunal accepts that a decision to return the Applicant to South Sudan would be devastating for the Applicant’s mother and have a significant adverse impact on her from an emotional support perspective. In reaching this conclusion again it is acknowledged that there is the capacity for the Applicant to maintain some level of communication with his mother in the event he relocates to South Sudan but there is no question that such an outcome would significantly adversely impact the quality of the support the Applicant is able to provide her.
158. The Applicant’s sister also spoke of her loving relationship with the Applicant and made clear her very strong support for him and her desire to assist him in his transition back into the community. It was clear from the evidence that the Applicant’s sister has had little face to face contact with the Applicant in recent years but there has been regular telephone contact. She told the Tribunal that if the Applicant were to be required to relocate back to South Sudan she did not believe he would survive and that she would be personally devastated by such an outcome. The Tribunal found EA to be a very impressive and frank witness and accepts her evidence in this respect.
159. The evidence before the Tribunal was that the Applicant’s relationship with his brother has been historically more difficult and obviously impacted by the incident that occurred between them. Nonetheless the Tribunal accepts the Applicant’s evidence that more recently his relationship with his brother has improved to a degree. There was also evidence that the Applicant’s brother is currently experiencing serious mental health issues and is presently residing in a psychiatric hospital. The Tribunal is satisfied that in the event the Applicant relocates back to South Sudan his capacity to be able to further develop his relationship with his brother would be extremely limited.
160. The Tribunal has already addressed the potential impact for NA as well as the Applicant’s nieces and nephews earlier in these reasons.
161. There was very little evidence of any substantive broader contribution the Applicant has made to the Australian community. There is little evidence of any substantive employment or other involvement in community or sporting groups.
162. Having had regard to the Applicant’s established ties to Australia and particular regard to the likely impact the Applicant’s deportation would have on his partner, mother and sister, the Tribunal is satisfied that this consideration weighs significantly in favour of a revocation of the Applicant’s visa.

Impact of Australian business interests

163. There was no evidence before the Tribunal that Australian business interests would be impacted in the sense contemplated by the Direction if the cancellation of the Applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of visa.

Impact on victims

164. There was no evidence before the Tribunal as to impact a revocation of the cancellation of the Applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against the revocation of the mandatory cancellation of the visa.

Extent of impediments if removed

165. Paragraph 14.5(1) of the Direction provides that:

(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:

1. The non-citizen’s age and health;
2. Whether there are substantial language or cultural barriers; and
   100. Any social, medical and/or economic support available to them in that country.

166. The Applicant’s evidence to the Tribunal was that if he is forced to return to South Sudan, he did not believe he would survive. He stated that he feared for his safety and that he does not know anyone there, has nowhere to go and that he “wouldn’t know where to start”. He told the Tribunal that based on the experience of a friend who went back to South Sudan in 2018 the situation is still very bad. He said “If you have no family and no one in Government you are no one. You need networks”. He also said that people there don’t have enough money to live off and that “people are starving”. He told the Tribunal he feared he would be forced into the army and made to fight. He said he did not want to be with the President, or the rebels and he was concerned he could get caught in the crossfire. He told the Tribunal his life “would be shattered. There would be no point living. There are no jobs there. It is full of corruption and tribalism”. He stated that he has limited education and no technical skills. He stated, “I have no family or friends who could help me in South Sudan and I have no connection to lands or tribes in South Sudan”. He also stated that he needs his medication for his mental health and that he does not think he can access medication or other mental health support services in South Sudan.
167. The Tribunal is satisfied that the Applicant is likely to face a number of very significant impediments on his return to South Sudan.
168. For the reasons set out in the section addressing international non-refoulement obligations, the Tribunal is satisfied that the Applicant would face a real risk of serious harm if required to relocate back to South Sudan. The Tribunal accepts that the risk the Applicant would face in this respect is exacerbated as a consequence of his broader profile including that he is of Dinka ethnicity, a young male, would be recognised as a western returnee, is likely to be recognised as not culturally assimilated, has no family or other social support networks, is not familiar with the country and has mental health concerns that are likely to be exacerbated as a consequence of stress associated with his relocation. These factors are also relevant to the impediments the Applicant is likely to face on his return more broadly.
169. The Tribunal is satisfied that the Applicant would face very significant difficulty obtaining appropriate accommodation, securing employment, accessing government services and securing health services necessary to effectively manage his mental health. Given the absence of family, social or community connections, as well as the other identifying characteristics identified earlier, the Tribunal is satisfied that the Applicant’s capacity to be able to meet his basic needs in South Sudan would be more limited than the general population.
170. The general economic conditions in South Sudan continue to be extremely challenging which impact significantly on the capacity of the government to provide basic support services to citizens generally. There was no evidence of substantive support services that the Applicant would reasonably expect to receive on his return to South Sudan although there was evidence of very basic and ad hoc health and education services and also the presence of a number of NGOs are providing assistance to citizens, refugees and other returnees in South Sudan.
171. The Tribunal accepts that the Applicant’s employment prospects in the short to medium term are poor. In reaching this conclusion the Tribunal acknowledges that the Applicant is relatively young and in generally good physical health although there was evidence of the Applicant having difficulty with his eyesight and also having a metal rod in his arm as a consequence of his broken arm injury. While the Applicant’s English has improved significantly it is still limited and the absence of advanced educational qualifications together with no established employment history while at the same time having a criminal record and significant mental health challenges will make securing good, reliable employment extremely difficult. This is particularly so given the very difficult economic circumstances in South Sudan.
172. The Country Information Report describes South Sudan’s formal economy as extremely weak and underdeveloped. In 2015 South Sudan was reported as a having an annual per capital income of approximately US$790. There is very limited accurate and reliable information on unemployment rates in South Sudan due to the very high proportion of subsistence living and informal work patterns. The Country Information Report notes that 85% of the population engage in unpaid work mainly in agriculture and that as at 2015 57.2% of the population are at or below the poverty threshold. The Country Information Report also acknowledges that the impact of internal conflict as well as systemic corruption within government is significantly affecting South Sudan’s ongoing economic performance. The Country Information Report states that “low levels of economic opportunity may act as a push factor for external migration”.
173. The Respondent’s materials included a more up to date economic outlook for the country which noted an estimated real GDP growth in 2019 for South Sudan of 5.8% but with the country still experiencing significant debt distress due to extra-budgetary spending and with an inflation rate of 24.5%.
174. The majority of government spending is on infrastructure or “organized forces” including military and police (collectively approximately 68%) with very limited allocation for basic social services and only 1% of the annual government budget spent on health.
175. The Tribunal accepts that there is a likelihood the Applicant could secure a position in the army however the Tribunal accepts as reasonable the Applicant’s strong resistance to the idea of joining the army given that it seems reasonable to infer such an occupation would involve a significantly heightened risk of serious harm and possibly death.
176. It is clear that South Sudan offers extremely poor health services to its population generally but especially so in mental health. The evidence before the Tribunal made clear that the services available to address mental health issues is extremely limited. In addition, for the reasons already set out the Tribunal is satisfied that the Applicant’s capacity to secure employment in the short to medium term is likely to be very difficult therefore it is likely that the Applicant will also be significantly constrained from a financial perspective in obtaining necessary health services including mental health services. The Tribunal accepts that given the difficulty the Applicant will have in securing the mental health services he needs in South Sudan it is very likely that his mental health issues, including his attachment style issues, will be exacerbated, potentially significantly. This will in turn further impact the Applicant’s capacity to secure employment or otherwise meet his basic needs.
177. The Tribunal is also satisfied that the Applicant would be required to undertake his transition back into life in South Sudan without the support of his immediate family. As already indicated, the Tribunal accepts that there is no real prospect that the Applicant’s partner or son would return to South Sudan with him. In the absence of any established family or other social or community support networks in South Sudan the Applicant is likely to experience very significant emotional hardship in his transition back into day-to-day life in South Sudan.
178. For these reasons, the Tribunal is satisfied that the Applicant would face very significant impediments on his return to South Sudan. Accordingly, this consideration weighs very heavily in favour of revocation of the cancellation of the Applicant’s visa.

CONCLUSION

179. The Tribunal is satisfied that the Applicant does not pass the character test as set out in section 501(6)(a) by reason of his substantial criminal record. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the Applicant’s visa for “another reason”.
180. The Tribunal is satisfied that the Applicant’s offending history is significant and involves a number of serious offences including violent offences. In assessing the risk of reoffending the Tribunal has been particularly mindful of the Applicant’s acknowledgement of the role his mental health issues and his attachment style issues have played in his offending, the progress the Applicant has made in addressing those issues and his commitment to ongoing counselling. The Tribunal is also satisfied that the Applicant is no longer addicted to alcohol and drugs including methamphetamine and has a very clear plan for ensuring that he avoids a relapse back into drug and alcohol abuse on his release. The Tribunal is satisfied that in light of the Applicant’s extended abstinence from drugs and alcohol, the efforts he has made in rehabilitating, as well as the protective measures that are in place, that the risk of him reoffending again in a serious or violent manner is at the low end of the risk spectrum. In all the circumstances the Tribunal is satisfied that the risk of harm to the community is not an unacceptable one.
181. The Tribunal accepts that the expectations of the Australian community consideration weighs against revocation however the weighting to be given to this consideration is tempered as a consequence of a number of factors including the Applicant’s efforts at rehabilitation as well as the impact on his family and also the potential consequences he would be likely to suffer if he were forced to relocate to South Sudan.
182. It is clear from the evidence that the Applicant’s love and affection for his son and his commitment to play an important parental role in his future is genuine. There is no question in the mind of Tribunal that it is in the best interests of the Applicant’s son for the Applicant’s visa cancellation to be revoked. This is a very significant consideration in the mind of the Tribunal. The Tribunal also acknowledges that the best interests of the Applicant’s nieces and nephews will also be served by revocation although for the reasons set out the Tribunal has given this significantly less weight. The Tribunal also accepts that a decision not to revoke the cancellation of the Applicant’s visa would have a significant adverse impact on his broader family including in particular his partner and mother. Again, the Tribunal has given this significant weight.
183. However, in the view of the Tribunal, the determinative considerations in the circumstances of this case are the international non-refoulement consideration together with the impediments on return consideration. For the reasons set out above, the Tribunal is satisfied that Australia owes the Applicant international non-refoulement obligations as a consequence of the real risk of serious harm he would face if he were required to relocate back to South Sudan. In addition, for the reasons set out, the Tribunal is satisfied that the Applicant will face very significant impediments on his return to South Sudan and is likely to have real difficulty in securing employment in the short term and maintaining a basic standard of living. In addition, the Tribunal is satisfied that if forced to return to South Sudan the Applicant is likely to find it difficult to address his mental health and underlying attachment issues effectively and that as a consequence those issues are likely to be exacerbated, potentially significantly. The Tribunal is satisfied these considerations weigh very heavily in favour of revocation.
184. For these reasons, the Tribunal is satisfied that the correct and preferable decision in the circumstances of this case is that the decision under review be set aside and that it be substituted with the decision to revoke the cancellation of the Applicant’s visa.

DECISION

185. The Tribunal sets aside the decision made by the delegate of the Respondent dated 2 September 2020 and in substitution decides to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

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

Associate

Dated: 19 December 2020

Date of hearing:	12 and 13 November 2020
Counsel for the Applicant:	Mr. J Lessing
Solicitor for the Applicant:	Asylum Seeker Resource Centre
Advocate for the Respondent:	Mr D. Brown
Solicitors for the Respondent:	Australian Government Solicitor

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^[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.

^[2] [2017] FCA 1466.

^[3] [2019] FCAFC 185.