Galuak and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 674 (29 March 2021)

Last Updated: 30 March 2021

Galuak and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 674 (29 March 2021)

Division: GENERAL DIVISION

File Number: 2021/0142

Re: Jal Michael Galuak

APPLICANT

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

RESPONDENT

DECISION

Tribunal: Dr Stewart Fenwick, Senior Member

Date: 29 March 2021

Place: Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – Mandatory visa cancellation – national of South Sudan – ex-citizen visa – failure to pass character test – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

Legislation

Migration Act 1958

Cases

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456

DPP v Galuak [2015] VCC 874

FYBR v Minister for Home Affairs [2019] FCA 500

Galuak v The Queen [2015] VSCA 300

Galuak and Minister of Immigration and Border Protection, Re [2018] AATA 2301

Omar v Minister for Home Affairs [2019] FCA 279

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

DFAT Country Information Report South Sudan, 5 October 2016

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

UNHCR, Handbook on Protection of Stateless Persons (Geneva, 2014)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member


29 March 2021

BACKGROUND

1. Mr Galuak applied to the Tribunal on 12 January 2021 for review of a decision of a delegate of the Respondent Minister dated 31 December 2020 not to revoke, under s 501CA(4) of the Migration Act 1958 (the Act), the mandatory cancellation of his ex-citizen’s visa under s 501(3A) of the Act.
2. Mr Galuak was the holder of an ex-citizen visa at the time of the mandatory cancellation as his citizenship by conferral was revoked in 2017 under s 34(2) of the Act, a decision upheld in a separate decision of the Tribunal (differently constituted).^[1] Mr Galuak obtained citizenship following as a result of the grant of citizenship to his mother in 2007. Mr Galuak and his family arrived in Australia in 2005 from Egypt when his mother was granted a humanitarian visa. The family had left Sudan in 2000 as a result of conflict and are of Nuer ethnicity.
3. The mandatory cancellation decision in this matter arose from Mr Galuak’s history of criminal offending which meant he did not pass the ‘character test’ (s 501(3A)(a) of the Act). That is, Mr Galuak had a substantial criminal record (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), and was at the time serving a term of imprisonment (s 501(3A)(b)).
4. The offending that satisfied the operation of these provisions was a rape committed by Mr Galuak in 2007 when he was under the age of 18 years old. Mr Galuak was not arrested and charged for some years until being identified from the results of a DNA test taken at the time of the offence. He was sentenced in the County Court of Victoria on 26 June 2015 to a term of imprisonment of five years, with a non-parole period of three years and six months. Mr Galuak also has a longer history of offending as a minor, with convictions running back to 2006.
5. I consider it helpful to add to this brief background a short chronology to assist with context, addressing some key dates only:

1/8/1993	Born Sudan
19/5/2005	Arrived Australia
8/04/2007	Rape offence
14/11/2007	Citizenship acquired
19/9/2012	Imprisoned on an unrelated charge
29/9/2014	Charged with rape
26/6/2015	Sentenced for rape offence
19/7/2018	Tribunal affirms decision to revoke citizenship
30/7/2018	Mandatory cancellation decision
25/6/2020	Enters immigration detention from prison

6. Mr Galuak was self-represented at the hearing and appeared by video link from immigration detention. A Nuer language interpreter assisted at the hearing. Two directions hearings were held, and at the first, standard directions were issued, and the provisions guiding the conduct of matters under s 500 of the Act were explained (specifically, the ‘two-day’ rule (ss 500(6H), (6J), and the ‘84-day rule’ (s 500(6L)). The second directions hearing was conducted to discuss with Mr Galuak the provision of statements and availability of witnesses in the light of these provisions.
7. An extensive body of material has been lodged in this matter. The Respondent lodged a consolidated set of G documents, including two bundles of supplementary documents, and a Statement of Facts, Issues and Contentions (SFIC). Mr Galuak lodged a statement, dated 9 March 2021, and two letters in support: Reverend Peter Deng, dated 30 January 2021; and Ms Marie Dureau, dated 9 March 2021. Both writers appeared as witnesses at the hearing, along with Mr Galuak’s mother, Ms Angelina Theb (on the basis that the G documents contained a letter in support from Ms Theb).
8. I note that at the first directions hearing in this matter, a discussion was held about the date on which Mr Galuak was notified of the decision under review. This was because, at that time, he had not signed an acknowledgment of receipt (G3, p 607). There was, however, email confirmation that Mr Galuak had been informed of the decision on 4 January 2021, including a report that he had refused to sign the receipt (G4). He subsequently signed another receipt on 12 January 2021 (G6, p 620), however I consider that the original timetable set for the hearing was appropriate.

LEGISLATION

9. Under s 501(3A) of the Act the Minister must cancel a visa granted to a person if the person does not pass the character test because they have a substantial criminal record and are serving a sentence of imprisonment. A substantial criminal record includes (by operation of ss 501(6) and (7)) where the person has been sentenced to a term of imprisonment of 12 months or more.
10. A mandatory cancellation decision under s 501(3A) of the Act, may be revoked under s 501CA(4) if the Minister is satisfied that either the person passes the character test, or is satisfied that ‘there is another reason why the original decision should be revoked’. Under s 499(2A) of the Act, a decision-maker must comply with Direction No. 79, made under s 499, ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (the Direction).
11. The Direction contains in its Preamble statements of Objectives, General Guidance and Principles which elaborate on the Direction, its interpretation and application. The Direction also contains guidance on how to exercise the discretion with respect to a revocation decision, and how to take the considerations set out in the Direction into account. These considerations are described as ‘primary’ and ‘other’ considerations and are found, in the case of revocation requests, in Part C of the Direction. I note that the Act requires an ‘other’ reason why a mandatory cancellation should be revoked, and that the considerations contained in the Direction are therefore not an exclusive or exhaustive list of potential reasons why a revocation decision might be made.
12. I will set out, or summarise, the specified considerations in another section of these reasons, below. The Direction states (paragraph 8) that: information and evidence from authoritative sources should be given appropriate weight; both primary and other considerations may weigh in favour, of, or against, revocation; primary considerations should generally be given greater weight than other considerations; and, one or more primary considerations may outweigh other primary considerations.
13. The Direction states (paragraph 6.2) that the Government is committed to protecting the Australian community from harm as a result of criminal activity, and the principles set out in the Direction ‘are of critical importance’ in furthering this objective. These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’.
14. The principles are as follows (paragraph 6.3):

(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.

OFFENDING

15. Mr Galuak’s history of offending has been addressed in prior published decisions of Courts and the Tribunal.^[2] I was provided with the sentencing remarks of Her Honour Judge Wilmoth on the sentencing of Mr Galuak on 26 June 2015 in respect of the rape (G2/B, p 24). I also have the result of a national criminal history check in respect of the Applicant (G2/A, p 21). The first recorded outcome in the criminal history check is a conviction in the Country Court at Melbourne on 8 June 2006 for a series of offences resulting in a 40-week probation order. The final outcome is the rape offence.
16. With respect to the rape offence, I summarise here from the remarks of the sentencing judge:

(a) Mr Galuak pleaded guilty to one charge of rape which occurred on 8 April 2007. He accosted a 17-year-old girl near a railway station, followed her into a park, threatened her with a cricket bat and raped her in ‘a violent and terrifying attack’. It was reported to police three days later and swabs were taken;

(b) Mr Galuak and an associate approached the complainant asking for a light after which the Applicant followed her, held the cricket bat as if to strike her, and the complainant offered her iPod, phone and anything else he could find;

(c) the Applicant searched the complainant, squeezed her breasts and felt her vagina inside her underpants, told her ‘shut the fuck up bitch’, put her in a headlock and dragged her further into the park, when his associate left the scene having exhorted Mr Galuak not to rape her;

(d) Mr Galuak made the complainant strip after suggesting he carried a gun, inspected her intimately with a mobile phone light, and raped her with his penis, continuing to penetrate her in various ways for about 20 minutes, and making her perform oral sex;

(e) when a person walked nearby during the attack Mr Galuak told the complainant he would kill the person if they came too close. My Galuak turned the complainant’s phone off when it rang, and after telling her to get dressed, threatened to kill her and her friends if he saw them, and said that he would follow her to find out where she lived;

(f) Mr Galuak provided a DNA sample in 2011 when arrested for drink driving, the sample was placed on a database and in January 2012 a match was found with the profile from the sample of the complainant’s clothing;

(g) when located by police Mr Galuak refused to surrender, but was interviewed about the rape offence when arrested a week later on an unrelated matter. A new swab was taken and a strong match was found, but Mr Galuak was not ultimately charged until September 2014. He was serving a sentence of imprisonment at the time of sentencing for the rape offence;

(h) Mr Galuak was placed in Year 9 at school after arriving in Australia, which the Applicant said was based on his size. A psychologist’s report from 2006 reported Mr Galuak as aged 12 at that time, one year after arrival in Australia, although he was considered to be possibly 14, and himself advised that he was 17;

(i) sentencing proceeded on the basis that Mr Galuak was aged 21 at the time of sentencing and 13 at the time of the rape;

(j) a separate psychologist’s report from 2015 indicated that a diagnosis of Post-Traumatic Stress Disorder (PTSD) was likely, and while not verified, reports also indicate that Mr Galuak had been tortured while in Sudan, had suppressed memories of this, and had also been badly mistreated while in Egypt;

(k) sentencing took into account the reports of exposure to trauma and the strong likelihood that Mr Galuak was adversely affected by this, and that it contributed to an intellectual disability which was described as ‘severe’;^[3]

(l) the effects of the accepted condition of PTSD played a limited role in the sentence, and it was not submitted on Mr Galuak’s behalf that there was any nexus between his mental health conditions and the offence;

(m) other than having completed courses in prison, Mr Galuak had ‘not demonstrated there are any chances of rehabilitation and it must be said that [his] prospects are poor’;^[4]

(n) the report of a consultant psychologist stated that Mr Galuak was at low to moderate risk of further offending;

(o) it was conceded by Mr Galuak’s representative that the offence was a serious example of a serious offence, carrying a maximum penalty of 25 years’ imprisonment; and

(p) the attack on a young woman was ‘humiliating, degrading and terrifying and caused lasting effect upon her’,^[5] and the Court sternly denounced the crime.

17. The Court of Appeal dismissed a challenge to the sentence. In the course of doing so, the Court noted (at [24]) that, had it not been for Mr Galuak’s youth, his plea of guilty, and the various mitigating factors, the sentence imposed would be regarded as inadequate. I also quote here the summary of Mr Galuak’s offending history (at [9]):

... on 12 May 2006, when he was aged 12 years, the appellant was sentenced to detention in a youth residential centre for serious driving and other offences, such sentence being substituted with probation by the County Court on 8 June 2006. Some six months or so later, on 18 January 2007, the appellant was sentenced to detention in a youth residential centre for dishonesty and serious violence offences. The sentencing judge noted that the appellant subsequently had “frequent appearances” in the Children’s Court, including for “a number of serious charges of violence” which resulted in sentences of detention. Indeed, between 2008 and 2012 the appellant was sentenced on various occasions for offences including breach of family violence orders, alcohol-related offending, violent offences, dishonesty and a raft of driving offences, culminating in the imposition of a sentence of three years and six months’ imprisonment, with a non-parole period of 20 months, on 19 September 2012. That offending included intentionally causing injury, false imprisonment, contravention of a family violence intervention order, affray and robbery, and the judge noted that the offences “were not dissimilar” to the instant offences. The appellant was undergoing that sentence when sentenced for the present offence.

18. I will not elaborate further on the rape or Mr Galuak’s prior history, both of which were addressed in the course of evidence at the hearing. Further specific elements of Mr Galuak’s offending history, including details of particular incidents based on the record, were put to him in evidence and will be dealt with below.

EVIDENCE

Applicant

19. Mr Galuak’s evidence was taken with the assistance of the Respondent’s representative. The Applicant confirmed that he was born in Sudan. He stated he was not sure if he was born in Bentiu, where his mother was born, stating he was born in another town, where he attended primary school. Mr Galuak stated he is of Nuer ethnicity, and speaks this language which is found in South Sudan. He does not know how to write Nuer but also speaks English and some Arabic. Mr Galuak stated he does not speak Dinka. Mr Galuak could not recall how long he attended primary school. He does not remember much about Sudan.
20. Asked if he remembered the experience of being in rebel hands as a child, as described in a psychologist’s report, Mr Galuak recalled his mother ‘trying to get me off them’. Mr Galuak stated he was tortured on his leg and was whipped, and that he sometimes has nightmares about this, when similar issues come up in social media. He agreed that he had a ‘hard time’ also in Egypt.
21. Mr Galuak stated that in Australia he attended language school, possibly for a couple of months, and that he did well there. He then moved to high school which he found ‘very hard’. Mr Galuak stated that he was suspended in his first term and never returned. He agreed he had studied some English, mathematics and computing in prison. Mr Galuak stated that he undertook Victorian Certificate of Applied Learning courses including at Year 10 level. He stated he would definitely continue to study if he returned to the community as he ‘loves to learn’. He would like to qualify as a mechanic.
22. In relation to his work history, Mr Galuak agreed he had three month’s experience in a factory and stated he received a certificate from Mission Australia in job-seeking skills. Mr Galuak stated that he had also worked for approximately four months in removals. He had worked in a number of ‘billets’ in prison including as a cleaner and greeting new prisoners. Asked what work he might undertake in the community, Mr Galuak replied ‘any job to help the family and myself’. Mr Galuak stated that he wanted to keep busy and stay away from those who got him in trouble.
23. Mr Galuak stated that he had a few friends waiting for him to be released who would help him obtain work. He also stated that he wished to help youth in the community to learn from his experience, something he already does via Facebook and with family. Mr Galuak explained that he had wasted a lot of his life in jail and it had been a big wake up call.
24. In relation to his health, Mr Galuak stated that his experience of headaches had reduced somewhat. He could not recall all of his medications but stated he was on anti-depressants and methadone. Mr Galuak stated the methadone treatment arose not from prior heroin use but because of a period in prison where he used ‘bupe’ to deal with his stress, something he had obtained from other prisoners.^[6]
25. With the assistance of the interpreter Mr Galuak was able to acknowledge a history of PTSD, described in evidence as involving high levels of arousal and bad dreams. Mr Galuak stated that he was still receiving treatment for depression and anxiety, and that his medication relieves his stress. He acknowledged a suicide attempt in prison, which was because he was stressing about his mother.^[7] Mr Galuak stated that he wears an ankle brace and has been receiving physiotherapy, a condition he has been told is related to his weight. I noted that there were references in Mr Galuak’s records (SG12) to obesity, metabolic syndrome and a diet supplement.^[8] He stated that he had been on a diet plan ‘for a bit’ and was unable to exercise due to his ankle.
26. Mr Galuak stated he had in the past had weekly consultations with Foundation House, and this was now sometimes taking place fortnightly. He had seen a psychologist prior to this, and had also received drug and alcohol counselling. Mr Galuak stated he had been a smoker and stopped for a period in prison before recommencing. He acknowledged his prior cannabis use, but stated that he did not go looking for it. Mr Galuak stated that he commenced drinking alcohol in 2008 at the time he was suspended from school. He stated that he drank ‘a lot’ and would stop when he had had enough, or to the point of passing out. Mr Galuak accepted he was affected by alcohol during his criminal offending and that it had ‘got [him] into a lot of situations’.
27. Mr Galuak confirmed that his family comprises his mother, and three brothers. He previously lived with his mother. Mr Galuak stated his older brother is married to an Australian citizen and they have a daughter. He stated that he left his family when she was very young, and he has no idea how old his niece is. Mr Galuak has seen her on video when his mother introduced him as an Uncle. He also stated that his girlfriend in the past used to play with his niece and would bring her to play with the Applicant. If permitted to stay in Australia, Mr Galuak would ‘definitely’ look after his niece and ‘show her what an Uncle does’.
28. Mr Galuak stated he does not know where his older brother lives as he has moved from Frankston. His younger brothers both live with his mother. Mr Galuak stated, after I raised the issue, that his older brother was too busy to give evidence, but they had a good relationship, and that his younger brothers were too young to know the situation he was in. Mr Galuak stated that he speaks with his brothers about how to do the right thing but forgot to mention this hearing to them because he did not know it was coming.
29. Mr Galuak stated that he currently speaks with his mother every day. He has some email contact with his brothers who forward paperwork for him to discuss with his mother. Mr Galuak stated that his includes discussing her contact with a lawyer who was assisting with her situation after a police assault at home in which she suffered a serious eye injury. He stated that his mother was punched in the head during a police search and later lost an eye.
30. Asked to describe his mother’s health Mr Galuak stated it is ‘very hard’. He stated she has dialysis three times a week, has headaches from the assault and was in hospital for three days last week due to her headaches, and spent four days in hospital last month. Mr Galuak stated that his mother is suffering a lot and ‘needs us to be there’. She has stopped cooking and cleaning at home and has difficulty getting about due to her eye problem and needs to take taxis to her appointments. Mr Galuak was not sure if his mother has a psychological condition. He does not think she is receiving social security benefits.
31. Mr Galuak stated his older brother tries to provide money for his mother’s taxi fares. Another brother has a car but needs it for work. Mr Galuak stated that all of his brothers provide some form of assistance to his mother. His younger brothers have gone to hospital with her, but they ‘think it’s normal and don’t understand how hard it is’. Members of the community sometimes help her, but they are busy and have other things to focus on.
32. Asked what effect Mr Galuak’s return to South Sudan would have on his mother, the Applicant stated that this ‘would destroy her a lot’. Mr Galuak stated that if there are two-to-three sons there will be one who visits more; his mother and community know him and he ‘will do a lot for her’. Asked about the effect of return on himself, Mr Galuak stated that he could not see a reason to go there. When asked if he is worried that he would be identified as Nuer if returned to South Sudan, Mr Galuak stated it would be clear from his look, language and name. Asked to explain who would have a problem with his ethnicity, he responded that Sudan is divided now and ‘I don’t have anybody, don’t know anybody’.
33. Mr Galuak stated his knowledge of South Sudan politics was based on watching the news sometimes. He stated that ‘the war is still going on’ and that the Nuer and Dinka are ‘still in war’. Mr Galuak also stated the United Nations is trying to leave South Sudan. Asked to describe what would happen personally if he returned, Mr Galuak responded that he would be forced to be a soldier and could easily be killed. Mr Galuak stated that he could be recruited by either side. He stated that the Dinka are now the army and government; there is no government for the Nuer. Mr Galuak stated that he considered Nuer were at risk from the Dinka in government, referring to a town that he saw captured on the news, and he has also seen killing in posts on Facebook. Mr Galuak stated further that he had recently been told about deaths by a Nuer community contact and that he did not know how to navigate to where the Nuer are in hiding. Mr Galuak acknowledged that his mother had made claims about risk based on the killing of his father and considered that he could be at risk from this historical association.
34. I asked Mr Galuak to clarify his understanding of his nationality status. He responded that he ‘absolutely’ considered he was stateless. Mr Galuak stated that when the previous war happened Sudan ‘finished’ and with the creation of South Sudan ongoing connection with family was ‘shattered’. He further stated, with the interpreter’s assistance, that most of the Nuer community is in the ‘unionist’ camp and many escaped to neighbouring countries. There are also Nuer internally displaced persons and rely on security from the Dinka-dominated government. He has nowhere to call home, and calls Australia home.
35. In relation to his criminal record Mr Galuak stated that he was aware of it from a discussion with a previous legal representative, describing it as ‘pretty bad’, and that he was shocked. He agreed he committed driving offences shortly after arrival in Australia. Mr Galuak stated that he blamed himself and that he was with the wrong people when asked why he had then committed stealing offences. He acknowledged that he had also committed indecent assaults, which he ‘really regrets’, and said were a result of immaturity.
36. Mr Galuak was then asked about charges of assault. He acknowledged an incident in 2007 but stated that he did not commit an assault, as alleged. Asked if he had assaulted Police or resisted arrest in 2008 and 2011, Mr Galuak denied ever assaulting Police. He added that the Police were probably wrestling him and ‘going hard’ and that he took responsibility for his actions. When pressed on assaults and resist arrest charges Mr Galuak stated that ‘I believe it happened’ and that he was probably drinking so cannot say they did not take place.
37. Mr Galuak stated that he had a girlfriend between 2008 and 2011 or 2012. The relationship ended when they had a big fight and he agreed it was a violent relationship, describing it as ‘toxic’. Mr Galuak stated that they used to drink together a lot and that this became a problem, also agreeing that he had been subject to a number of Intervention Orders. Mr Galuak remembered an incident of offending put to him from late 2011 involving false imprisonment and threat to kill. He thought this involved punching his girlfriend but disputed that he also kicked her four times, stating it was once or twice. Mr Galuak also disputed the report that she fell down unconscious, stating that he thought his girlfriend was assisted to a seat by observers. He remembered that capsicum spray was used during the arrest but did not remember spitting at the arresting officers.
38. Mr Galuak agreed that he was convicted to 12 months imprisonment in May 2012, and received a further sentence of three-and-a-half years’ imprisonment in August 2012. He accepted that he hit his girlfriend in the head but disputed some of the other circumstances of this latter offending. Rather than strangling her with a belt, as contended, he stated that he whipped her with it. Mr Galuak stated he drank a lot and did not know he had that bad a temper, and the event could have happened as described to him. He further admitted to cutting her neck with broken glass, although denied that this was a deliberate act, explaining that it occurred when he was trying to scare her away and a friend intervened.
39. At this point in his evidence Mr Galuak used a phrase to describe a statement attributed to his former girlfriend. With the assistance of the interpreter Mr Galuak explained that they would have periods of calm in their relationship and his girlfriend ‘used to say “I miss starting you”’. That is, after these periods, his girlfriend indicated she enjoyed their arguments. Mr Galuak stated that he told her that ‘you can’t say that’ and also that he told her ‘look what you make me do’. Mr Galuak stated that he preferred to go for a longer period of time in peace. Mr Galuak agreed that he broke up with his girlfriend a little while after the assault in which she was cut.
40. It was put to Mr Galuak that some two years later in 2014, his girlfriend reported that he made harassing phone calls on 27 occasions from prison, including a threat to set her alight. Mr Galuak denied this. He stated that his girlfriend had given her phone number to his mother and said that the Applicant should call her. Mr Galuak stated he did call her, to give her an apology and say it was better that they were separated.
41. Mr Galuak stated that he recalled an incident in a carpark in 2007 which led to a charge of indecent assault. He denied that he grabbed a woman on the breast as alleged. Mr Galuak stated that he had taken a knife of an associate who was arguing with another associate at the time. He stated that when a couple came to intervene, he used the knife when instructing them not to call the Police. While he had the knife when searched later by Police, he stated it was another person who assaulted the woman. Mr Galuak believed the Police had his description only in relation to this incident because he held the knife.
42. Mr Galuak was somewhat reluctant to discuss aspects of his primary offending, being the rape in 2007, for which he was charged in 2014. Mr Galuak was taken through the elements of the offence found in the sentencing remarks and accepted the description provided, which was broken down in an extended passage of questioning which I will not detail here. He was asked why he was carrying a cricket bat at the time of the rape. Mr Galuak stated that he and his friend were holding the bat to protect themselves. He stated that his friend knew karate and suggested that Mr Galuak hold the bat. Mr Galuak also stated that his friend was a bully and made him do the robbing, and told him that he wanted an iPod and ‘told me to be with him’. Asked what he was thinking during the attack on the victim Mr Galuak responded ‘not much’ and that he ‘was not thinking anything’. Asked why he used a phone light to inspect the victim naked prior to the rape he answered he was ‘trying to look’. Asked why he offered the victim money after the attack he stated ‘I think I realised what I had done was wrong’ and tried ‘to make her happy’. Mr Galuak denied saying that he threatened to kill the victim or her friends if he saw them again, stating that he said he will know where they live.
43. Mr Galuak was asked when he first knew what he had done was wrong. He responded that it was the next day when a friend saw the news and pointed to him saying that what he had done was wrong. I asked how his friend knew the incident reported involved the Applicant and Mr Galuak stated this was because he had seen the Applicant and his associate get on the train at Dandenong talking about obtaining an iPod. Mr Galuak stated that when confronted by his friend he knew straight away what he had done was wrong. He lived with the shame and knew that it would catch up with him. Asked why he did not go to the Police, Mr Galuak described this as a mistake.
44. Mr Galuak was asked if he understood the causes of his offending. He stated in reply that in his periods of juvenile detention he learned about violence, and drug and alcohol use. He was also able to access counselling services. Mr Galuak stated that he spent a period of four-and-a-half years in the community after release and continued to access counselling and the employment program by Mission Australia, but that this support in the community was ‘not enough to help me’. Asked what would be different if he were released into the community now, Mr Galuak stated that he did not have enough support previously. He stated that ‘before’, when he was in juvenile detention, that ‘they’ did not know his situation which was now known to include PTSD.
45. When asked if his perspective had changed since his time in prison, Mr Galuak responded that he had matured and grown wiser. He knew about law enforcement, understands the impact on the community, and has more chance to tap into support and would take all the opportunities provided. He stated that he had attended all the prescribed sessions of a High Intensity Violence Program and this had taught him a lot about communication and respect for the community. Mr Galuak stated that he had learned to calm himself instead of engaging in aggressive behaviour, that he would think about the consequences and it was better to walk away.
46. Asked if he could provide a specific example of this learning, Mr Galuak used the example of a time he had been threatened with stabbing while in prison. This incident arose out of a dispute around borrowing a cigarette. When he learned that a prisoner wished to stab him, Mr Galuak stated that he armed himself with scissors but rather than use them in self-defence, he was able to talk to the other prisoner and discuss the situation instead. Mr Galuak also acknowledged an incident of aggression in prison records when in 2013 he slammed a door on an officer wanting to take away his television.
47. Mr Galuak agreed that being in the community was different to being in detention and was asked whether he had a plan for not committing acts of violence. He responded that ‘I believe violence got me to this situation’ and the only way to solve a problem was to walk away. Asked about alcohol and smoking, Mr Galuak stated that drinking has cost him a lot and is ‘not important to me’ and that he needs to focus on his family.
48. Mr Galuak stated he planned to live with his family if released, would continue his counselling with Foundation House and would attend Church. With the assistance of the interpreter, Mr Galuak was asked his view about the previous risk assessment that he was a low-to-moderate risk of further sex offending. He responded that he had not previously planned or thought about attacking people. He was now informed about the law and is ‘not the kind of person to be influenced like that’. With respect to the assessment of moderate risk of aggressive behaviour while his trauma and alcohol abuse not addressed, Mr Galuak stated that the help he received in jail has given him a perspective on society. He knows what supports to tap into now.

Other evidence

49. Mr Galuak submitted a statement dated 4 February 2019 in respect of the revocation decision under review (G2/F1, p 438). I will summarise material that augments issues raised in the summary of oral evidence:

(a) Mr Galuak states that when growing up in Sudan he was exposed to ‘deep trauma and horrific experiences’;

(b) having watched many young Sudanese men enter the prison system he has developed a ‘great passion’ for engaging with them and that if he were to remain in Australia and become qualified in the relevant field he ‘could make a significant impact’;

(c) Mr Galuak feels ‘deep regret’ that he is unable to care for his mother, and for the pain she is going through; and

(d) undertaking numerous educational programs demonstrates his strong desire ‘to change and reintegrate back into Australian society as an adult. He is a young man who is ‘highly motivated and capable’.

50. A further statement, dated 17 November 2020, is included in the record (G2/Q, p 569) and was prepared with the assistance of Mr Galuak’s then legal advisers. It was submitted to the Department in respect of his revocation request. I summarise matters raised and not otherwise addressed in the summary of oral evidence above:

(a) Mr Galuak understands that the Tribunal found there was a substantial risk of him reoffending^[9] and is sorry that he was ‘unable to properly explain why [he] believe[s] that is not the case’;

(b) that his trauma made it very hard to succeed in Australia and contributed to his difficulty in making good choices and developing positive relationships;

(c) from arrival in Australia aged 11, Mr Galuak thought his mother was dying from her illnesses and was fearful of losing her and being powerless to help, and drank alcohol to relieve his pain and frustration;

(d) he did not have a father or positive male role model in his life, something that is very important in his culture, and he copied the behaviour of the people he was hanging around with after being suspended from school;

(e) he states he is ‘especially ashamed of his offences against women’ and the rape was a terrible crime, and that ‘sexual violence is shameful, cowardly and wrong’;

(f) if released into the community he would like to find a partner and have a family of his own;

(g) if he encounters problems with his attitude to women, he would approach an Uncle, his father’s cousin, for advice and he has discussed issues with him since being in prison. He is attending bible studies with the Reverend Peter Deng and is ‘determined to be a good Christian’;

(h) counselling with Foundation House has helped with his mental issues;

(i) he accepts that as a former alcoholic he will need help to remain sober, and he intends to rely on the Reverend and a friend who is a social worker to access services;

(j) he will pursue adult literacy training to help improve his employment prospects, and his successful completion of courses proves that he is motivated to learn; and

(k) Mr Galuak considers that he faces the prospect of either death in South Sudan or indefinite detention.

51. The statement dated 9 March 2021 submitted in this matter, and prepared with the assistance of legal representatives, comprises factual statements and also submissions with respect to the Direction. I will summarise relevant factual material here — other statements made are consistent with Mr Galuak’s oral evidence. Mr Galuak repeats his submission that he faces indefinite detention if his visa is not returned. Mr Galuak states he has completed the following courses:

(a) “Quitters are Winners” smoking management program, 2013;

(b) Exploring Change course, 2013 and 2014;

(c) Parole Readiness Program, 2014;

(d) 40-hour substance abuse program, 2015;

(e) High Intensity Violence Intervention Program, 2015 and 2016; and

(f) Healthy Relationships Program, 2018–2020.

52. In addition to these courses, I note the attachments to a submission made to the Department on the Applicant’s behalf dated 17 September 2018 (G2/D1) refer to the following additional programs:

(a) completion of units towards Certificate II in Asset Maintenance (Cleaning Operations), 2012;

(b) attendance at TAFE-level English and Maths classes, and completion of units in a course in General Education for Adults, 2013;

(c) Relapse Prevention Program, 2015; and

(d) Certificate II in Cleaning Operations, 2015.

53. In light of the oral evidence with respect to Mr Galuak’s health, I include some additional material from clinical records. Through 2020 Mr Galuak has been prescribed (SG12, p 707): analgesics (Panadol and Ibuprofen); a range of creams for skin conditions; Propranolol, which I understand is a beta blocker that can be prescribed for anxiety or migraine, but the reason for prescription is not recorded; Mirtazapine, which I understand is an antidepressant, and was prescribed for ‘stress and adjustment reaction disorder’; and, Methadone.
54. There are numerous further records which include reference to Methadone. The earliest appears to be dates 22 March 2013 (SG9, p 335) indicating the dosage as 50 mg, and the latest from 15 October 2020 (SG12, p 664) indicating a dosage of 85 mg. Another record (SG12, p 683) confirms that the Methadone has been prescribed due to Mr Galuak’s prior use of ‘bupe’.
55. Among these clinical records is material relevant to Mr Galuak’s weight. A record dated 27 June 2020 (SG12, p 699) describes Mr Galuak as ‘morbidly obese’ and states that his weight has increased from 75 kg nine years ago, to 152 kg at the time of the report. The record of 15 October 2020 states that Mr Galuak’s weight increased by 9 kg in two months. For completeness I note Mr Galuak has several missing teeth and a number of dental procedures have been recommended, according to dental records (SG13, pp 728–729).

Applicant’s mother

56. Ms Theb stated that she lives in government housing in Langwarrin with two of her sons. It is a three-bedroom house and the sons share a room and Ms Theb reserves another room for Mr Glauak and it contains his possessions. She stated her older son has moved away from the area and lives with his family, and travels interstate for work. Ms Theb does not visit her older son, but he occasionally visits her. She stated that her granddaughter is nine years old.
57. Ms Theb stated that both her other sons have medical conditions, one with asthma, the other with a mental condition which she was unable to identify, possibly related to a car accident when he was younger. One of these sons has lost his driving licence, the other is fearful of driving. Ms Theb stated that the two sons ‘are no help at all, to be honest’ and gave the example of passing out one day while at home and her sons not noticing. The younger son completed Year 12 last year and the other did not complete school, but had been working in building prior to the COVID-19 pandemic and is currently unemployed.
58. Asked about her income, Ms Theb stated that she is on Centrelink payments which covers her rent and dialysis, with one of her sons looking after the other bills. Ms Theb stated she has no one to help with her appointments or take her to hospital, or to help with medications and read their labels. Ms Theb stated she injects herself with her diabetes medication but had caused a bruise. The hospital, she stated, has arranged for support every three weeks with house cleaning and taking out the rubbish. Ms Theb stated that ‘Jal is the hard worker in the house’.
59. Ms Theb agreed that she has kidney disease requiring dialysis which she undergoes at Frankston Hospital. She stated that she regularly passes out as a result of this condition and was recently hospitalised as a result. Ms Theb also agreed that she has Lupus, which she said weakens her a lot and that she cannot get up, meaning that she gets fatigued. She agreed that she has hypertension which is managed by medication. Ms Theb also suffers from abdominal pain which she stated was a result of a beating by rebels back home. She agreed that she also experiences pain from a historical incident when needles were left in her abdomen after surgery. Ms Theb accepted that she experiences chronic headaches and that she has had an eye damaged and removed. Ms Theb stated this injury occurred when she was hit in the face by a Police officer during a raid on her home involving 15–20 male and female uniformed officers. She stated that she has an ongoing legal matter from this incident and is trying to find another lawyer to help.
60. Ms Theb stated that the Applicant lived with her prior to going to prison. Mr Galuak used to cook and had a job, so her financial situation was better then. She stated he also helped with cleaning and he did not like living in a mess.
61. Asked about her knowledge of his criminal offending, Ms Theb stated that she knew the Applicant had a criminal record. She knew he spent time in juvenile detention, but they never discussed his offences. Ms Theb stated she would talk to him and tell him to do the right thing, stating that ‘something evil made him do wrong’. She was aware that Mr Galuak had the assistance of a case worker at one time.
62. Ms Theb stated that while he was in prison Mr Galuak provided emotional support and helped by providing translation while she was in hospital. She stated that they spoke once a week and continue to do so, and sometimes they speak a lot. Ms Theb confirmed that the intention is that Mr Galuak would live with her if returned to the community. Depending on her medical condition he could be her carer or he could work and support the family: ‘now I have a man and not the son that left my house’.
63. Ms Theb was asked to describe her current appointments and in addition to her dialysis, she attends physiotherapy once a week and counselling. She has difficulty getting into and out of taxis. Asked if she could walk freely, Ms Theb described herself as ‘crawling’. For example, she stated that when obtaining water during a brief adjournment she held a chair to open the fridge and used a stick walker to move about.
64. In relation to Sudan, Ms Theb stated that her husband and older children were killed there. She stated Mr Galuak was taken with some older children and was beaten on the back and he was then able to get away. Asked about the impact of Mr Galuak returning, Ms Theb stated that she would die as her other children do not function well. She stated further that Mr Galuak would not survive as the people who previously harmed the family still exist.
65. In response to a question from myself, Ms Theb stated that on arrival in Australia the only support they had was from ‘the Church’. She stated that Mr Galuak was in the Church choir and used the Church a lot. She stated that he now carries the bible and talks the word of God to family members.
66. A written statement from Ms Theb dated 2 February 2019 is included in the documents (G2/G, p 440). It was transcribed in English by a third party. Ms Theb states that her husband and other children were killed in South Sudan and that Mr Galuak’s shoulder was dislocated during their escape. She states he does not have any family in South Sudan. Ms Theb describes her health situation, consistent with her oral evidence, and states that she has no one to look after her. She states that the Applicant considers Australia his home.
67. A series of medical reports are attached to this statement:

(a) a report from the Alfred dated 25 October 2018 (G2/G1, p 442) from her treating rheumatology team states she has ‘a number of complex medical issues and she will require a carer to look after her needs when she is discharged back into the community’;

(b) a Peninsula Health discharge summary dated 22 January 2019 (G2/G2, p 443) confirms prior medical history as: Lupus; Stage 5 (advanced) chronic kidney disease; chronic hepatitis B; portal hypertension due to chronic portal vein thrombosis; previous pulmonary embolism and deep vein thrombosis; hypertension; chronic abdominal pain; gall bladder removed; multiple abdominal procedures; and, resolved cardiomyopathy. Thirteen medications were prescribed (but not necessarily dispensed) upon discharge as at 25 January 2019; and

(c) an ophthalmologist’s report dated 21 July 2016 (G2/G3, p 453) reports reduced vision in the right eye following an injury, but describes the cause as glaucoma and cataract surgery was recommended.

68. The report of a counsellor dated 15 September 2017 (G2/D6, p 97) confirms that Ms Theb attended four sessions after referral from her doctor. It describes her referral as being for support in relation to symptoms of depression, anxiety and PTSD. The report states that she is preoccupied with Mr Galuak’s immigration status and that this situation was contributing to a re-triggering of PTSD symptoms.

Ms Dureau

69. Ms Dureau adopted her statement of 9 March 2021. She stated that she knows Mr Galuak through her former partner, who was also from the Nuer community. Ms Dureau stated that she knew him for ten years including prior to his time in prison. She had reunited with the Applicant via Facebook only since he had been in immigration detention.
70. Ms Dureau stated that she was aware of an incident of offending involving Mr Galuak cutting his girlfriend. Presently they talk about Mr Galuak’s time in jail and he has related to her his plans to assist youth in the community in a volunteer capacity.
71. If Mr Galuak were to return to South Sudan, Ms Dureau stated that she would feel really let down for him. She was unable to comment on his mother’s health having only seen her once but stated that he had told her about his mother’s condition.
72. In her statement Ms Dureau relates something of Mr Galuak’s background and his mother’s circumstances. She states that ‘he deeply regrets his past choices’ and that young members of the community call on him daily to ask for his guidance and support’.

Reverend Deng

73. Reverend Deng adopted his statement of 30 January 2021. He stated that he has known Mr Galuak since his arrival in Australia when he became a member of the Church congregation and choir, attending regularly.
74. The Reverend acknowledged that, as described in his statements, he was aware of Mr Galuak’s time in juvenile detention and prison. He stated that he considered Mr Galuak a future leader because of this personal history. The Reverend was not familiar with the details of Mr Galuak’s offending. He stated that he had spoken fortnightly with Mr Galuak in prison, but sometimes up to twice a week.
75. The Reverend stated that they are normally in contact because of his role in assisting and visiting the Applicant’s mother. He visits Ms Theb sometimes twice a week when she is unwell and, when she is in hospital, he may give his phone number to the hospital so that he can pick her up. He stated that Mr Galuak is very close to his mother and never says ‘no’ to her.
76. The Reverend stated that he considered Mr Galuak would attend Church regularly if he returned to the community. He also considered that Mr Galuak would have the support of three different community groups: the Sudanese; the Nuer; and, the Church. Asked whether he was familiar with the situation back home, the Reverend stated that ‘we know who is alive or not alive’ and that most of the community was similarly affected. He knows some members of the Nuer community in South Sudan, but communications can be difficult in rural areas.
77. The Reverend stated that he understood the security situation was ‘still the same; no change’. By this, he explained that it is a ‘bad situation’ and that the Nuer are targeted in general and they have been targeted since 2013.
78. The statement of 30 January 2021 is consistent with this evidence. In addition, the Reverend describes Mr Galuak as ‘a good Christian man’. He also states that because of Mr Galuak’s ‘good behaviour’ he would like to see him involved in Church activities in the future. He notes that Mr Galuak cited a passage of scripture [“when I was a child I talked like a child ...”] and that he considers he has changed.
79. The Reverend previously provided statements in support dated 13 November 2018 (G2/G5, p 455), and 17 March 2019 (G2/I1, p 466). These statements are largely similar in form and content to the most recent statement. I note that in the 2019 statement the Reverend states that he is aware that Mr Galuak has been convicted of a number of ‘very serious offences, most seriously, the offence of rape’. He further states that the Church will support the Applicant as he believes Mr Galuak ‘is a good man, and he will not reoffend’.

Foundation House

80. A letter, dated 11 November 2020, was provided by Ms Christine Nathan, a Senior Practitioner Counsellor of The Victorian Foundation for Survivors of Torture and Trauma (Foundation House) (G2/R, p 580). It states that Mr Galuak was referred for torture and trauma counselling on 16 July 2020 by clinical staff at immigration detention.
81. Ms Nathan states that she has ‘begun an assessment’ of Mr Galuak and undertaken four teleconference sessions with him. The letter relates a number of biographical facts about Mr Galuak consistent with his background as set out in the material above. It goes on to state that ‘Mr Galuak impresses as suffering symptoms of depression, anxiety and post-traumatic stress, which include low mood, significant sleep disturbance, excessive rumination, guilt and shame’.
82. Ms Nathan concludes that Mr Galuak will continue to receive ‘assessment and psychological support from Foundation House and, in the event that he is released into the community, access to our services could continue’.

SUBMISSIONS

83. Mr Galuak made opening remarks at the hearing. His statements are broadly captured in the summary of oral evidence and I add the following brief additional summary statements:

(a) Mr Galuak did not go back to school after his suspension and at that moment, his life changed;

(b) after periods of juvenile detention, he tried to stay away from bad people and remained in the community for four and a half years with the help of a social worker, who ‘saved’ him;

(c) he has spent a total of nine and half years in prison and detention and his offending has caused a lot of pain for his mother and their community;

(d) Mr Galuak is aware the rape impacted the victim, and was very hard for her and her family;

(e) the family came from war to Australia and lived a better life;

(f) he has signed immigration related paperwork in the past and did not know what he was doing, and cannot afford a lawyer to help him;

(g) his citizenship has been taken away, leaving him with nothing, and if he knew a protection visa was available, he would have written to the Government; and

(h) Mr Galuak would like the opportunity to prove to the Government he is a good person, and he will continue to get help in the community, as he has grown up and learned to speak up.

84. While not represented at the hearing itself, Mr Galuak has had the assistance of two different legal teams to date, and there are four submissions in the record from legal representatives in relation to the revocation decision under review.
85. The first legal advisers made three submissions dated 17 September 2018 (G2/D1, p 53), 4 February 2019 (G2/E1, p 140), and 18 March 2019 (G2/H1, p 457), which include extensive supporting material. The first submission is framed to address the considerations in Direction No. 65, now replaced by Direction No. 79. The second submission addresses the issue of Mr Galuak’s nationality. The third submission deals briefly with the issue of crimes against women under Direction No. 79, as well as updating information with respect to participation in courses. I set out here key issues raised in the submissions, with emphasis on matters not already raised above in the summary of evidence:^[10]

(a) Mr Galuak acknowledged the seriousness of the rape, pleaded guilty and did not minimise its seriousness, and his risk of re-offending was considered low-to-moderate. He was not placed on the Victorian Sex Offender’s Register;

(b) Mr Galuak poses no risk of engaging in criminal conduct if permitted to return to the community based on his remorse, and having received appropriate education and support while detained ‘which has mitigated any risk of reoffending’, thus demonstrating strong prospects for rehabilitation;

(c) Mr Galuak’s return to South Sudan would breach Australia’s non-refoulement obligations given the situation is extremely volatile due to ongoing conflict;

(d) furthermore, Mr Galuak will be considered as having a strong association with foreigners which will expose him to risk, and he lacks any significant connections which makes him vulnerable;

(e) in deciding to revoke Mr Galuak’s citizenship on 22 June 2017, the Minister was satisfied that the Applicant was considered a national of South Sudan under the relevant legislation as there was no information to suggest it had been revoked;

(f) the Tribunal, on review of this decision, found the Mr Galuak’s nationality is based on his eligibility for citizenship of South Sudan;

(g) nonetheless, Mr Galuak should be considered stateless ‘as he has not obtained South Sudanese citizenship and based on the available country information, it appears that he would not be able to’. His forcible removal would therefore breach Australia’s non-refoulement obligations;

(h) there are practical difficulties that prevent Mr Galuak from satisfying legal requirements for eligibility for South Sudanese nationality, being lack of documentation and inability to obtain relevant family or tribal testimony;

(i) there is a risk Mr Galuak will be subject to indefinite detention^[11] in Australia as he will be unable to obtain proof of nationality and, regardless, the security situation, unresolved conflict and his Nuer ethnicity mean he ‘can demonstrate a reasonable and well-founded fear of persecution’;

(j) a decision not to revoke the mandatory cancellation would be detrimental to his siblings and chronically ill mother; and

(k) Mr Galuak would not be able to survive on his own if returned to South Sudan due to his personal vulnerability arising from PTSD, intellectual and behavioural disorders, and lack of social supports.

86. Mr Galuak’s second legal advisers made a submission dated 19 November 2020 (G2/S, p 582) which I summarise, with particular focus on matters not raised elsewhere in submissions or evidence:

(a) it is conceded that significant time has been spent in prison and immigration detention, but eight years have passed without an offence and offending behaviour ceased in the 12–18 months following Mr Galuak’s 18^th birthday in 2011;

(b) his most serious offence was committed as a child and the Australian Institute of Criminology has emphasised that most juveniles ‘grow out’ of offending, and Mr Galuak did not receive psychological help on arrival in Australia;

(c) he has developed coping mechanisms as a result of assistance provided and programs undertaken to ensure he does not re-offend or return to a cycle of substance abuse, and he ‘represents an acceptable risk to the Australian community’ (p 586);

(d) the Primary Consideration Expectations of the Australian community requires a fair decision maker to ‘fully weigh the other considerations’ in the Direction and assess the ‘appropriateness’ of revoking or not revoking the mandatory cancellation;^[12]

(e) this consideration should also be understood as requiring compassion for and acknowledgment of Mr Galuak’s particular circumstances;

(f) ‘representations advanced in relation to non-refoulement obligations should be taken into consideration by the decision-maker, even if there is legal scope for a protection visa application to be made at a later time’ (p 589);

(g) Mr Galuak has the following relevant claims:

(i) as a refugee, arising from:

(A) imputed political opinion due to his Nuer ethnicity and having fled to Australia via Egypt; and/or

(B) as a member of groups including men at risk of recruitment by armed groups, persons perceived to be wealthy or foreign, and returnees from Australia, and his ethnicity; and

(ii) facing the prospect of arbitrary deprivation of life, torture, cruel or degrading treatment, or punishment;

(h) the Tribunal’s decision with respect to Mr Galuak’s eligibility for South Sudanese nationality is correct, however, documentary evidence and attestation are required by an applicant for citizenship;

(i) Mr Galuak has a well-founded fear of persecution based on ethnicity and imputed political affiliation, there is ongoing instability and generalised insecurity in South Sudan, including food insecurity, and such considerations weigh in favour of revocation;^[13]

(j) should Mr Galuak remain in Australia without a visa he remains at risk of indefinite detention, which would have a detrimental impact on him;

(k) the strength, nature and duration of Mr Galuak’s ties to Australia should be given significant weight in his favour;

(l) if returned to South Sudan Mr Galuak will face poverty and destitution, will be isolated from his central social supports, and it will have a negative impact on his mental health as he will be unable to receive treatment there; and

(m) ‘[t]o not revoke the cancellation of Mr Galuak’s visa given his traumatic personal history, the length of time he has lived in Australia, the strength of his family ties in Australia and lack of any social ties in South Sudan, would only serve to provide an additional and unwarranted punishment for him’ (p 600).

87. Submissions were made at the hearing by the Respondent’s representative. In summary, it was submitted that Mr Galuak’s offending ceased with his incarceration, but that risk of future reoffending was difficult to assess due to the absence of recent objective evaluation. The Primary Considerations, it was submitted, weigh against revocation, noting that the victim of the principal offending was a woman. The Other Considerations all weigh in favour of revocation, some to a significant degree, however, overall, greater weight should be afforded to the Primary Considerations.

88. It was submitted that Mr Galuak had accepted, almost without challenge, the range and gravity of his criminal offending, but that this does not undermine its seriousness. The real issue was his conduct since offending and whether he could personally withstand the pressures of life in the community. It was submitted he demonstrated limited reflection on his offending, but that this should be understood in the light of his educational background and that he was overall a credible witness. The question remains, however, as to what an objective assessment of future risk is in this case.
89. With respect to the consideration Protection of the Australian community, it was submitted that there was a pattern of frequent serious offending. There were multiple offences involving women, but no pattern of sexual offending. It was submitted that risk should be understood in relation to the harm to the Australian community of any reoffending with consideration given to the likelihood of further offending, and its consequences (citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424). While there is some independent evidence regarding risk of reoffending, it is old. However, the risk at the time of sentencing was considered low to moderate.
90. It was further submitted there are issues of violence and alcohol abuse to take into consideration. There is evidence to indicate the Applicant may have addressed these issues to some extent, however this remains untested in the community. Mr Galuak demonstrates some genuine but high-level reflection on his offending but it is of concern that none of the witnesses appeared to be aware of the full nature and extent of his offending history. This reflects, it was submitted, on the Applicant’s approach to his offending in that greater honesty on his part might lead to different behaviour.
91. Mr Galuak’s commitment to ongoing assistance from Foundation House shows a level of engagement with services, it was submitted, but this particular intervention appeared to be directed more at trauma than clinical rehabilitation. In summary, it was submitted that even if the likelihood of further offending were assessed as moderate, the harm of any offending would be serious.
92. The submission in the Respondent’s SFIC with respect to the consideration Best interests of minor children affected by the decision, was withdrawn given the evidence received at the hearing about Mr Galuak’s niece. It was submitted, however, that the evidence indicated that he did not have a parental relationship with this minor child. Furthermore, given the evidence of her age, Mr Galuak had spent almost the entirety of her life in prison or detention and they had a very limited form of relationship. It was submitted that this consideration should be given quite limited weight in favour of revocation.
93. With regard to the consideration Expectations of the Australian community, it was submitted that this should reflect the finding with respect to Protection of the Australian community. If there is a finding of any risk of future offending, then some weight must be given to the Expectations consideration against the Applicant.
94. It was submitted that the primary task in considering the issue of non-refoulement was to engage with the factual claims being advanced (citing Omar v Minister for Home Affairs [2019] FCA 279). It is not necessary, it was submitted, to actually assess any protection claims arising under international or domestic law, but to take them into consideration. It was submitted that there is in this matter a real overlap between a number of claims being the non-refoulement claim, the risk of serious harm and also the consideration of Extent of impediments if removed. While the generalised fear of harm was itself a realistic claim, it was not typically considered a protection claim in itself.
95. More specifically, it was submitted that Mr Galuak’s evidence emphasised that he identified as of Nuer ethnicity. Country information^[14] is evidence of the existence of day-to-day discrimination against Nuer and this would have an effect on the Applicant. The claims with respect to more serious harm such as detention and torture were also credible, based on country information, albeit group based. While there was a likelihood of some serious harm should Mr Galuak return to South Sudan, it was submitted that the evidence did not support claims with respect to the targeting of returnees, nor the claim with respect to recruitment to an armed group.
96. It was submitted that there was evidence of a number of really severe impediments arising under the consideration Extent of impediments if returned, including: food security; employment prospects; and mental health care. While Mr Galuak has lived in Sudan previously and faces no linguistic or cultural barriers, his prospects could be described as dire, particularly given his physical and mental health situation and lack of contacts.
97. Mr Galuak’s mother is his main connection to Australia. His brothers can also be considered important connections, but did not give evidence. The weight of evidence favours the view that Mr Galuak is the closest in the family to his mother and she will suffer if he were to leave Australia. It would also have a practical impact on his mother although his capacity to provide direct support might be affected by his efforts to rebuild a life in the community. His other friendships, it was submitted, would not be materially affected by his removal.
98. In addition to these submissions, I note the following additional points from the Respondent’s SFIC:

(a) prior to Mr Galuak being sentenced in respect of the rape, he was sentenced to three years and six months imprisonment for a number of aggravated and violent offences against his former girlfriend;

(b) the potential harm to the community is so significant that even a low risk is unacceptable, and notwithstanding this, several factors indicate Mr Galuak presents a high risk of recidivism (based on the remarks of the sentencing judge, the absence of current objective clinical assessment, and the fact his rehabilitation is untested);

(c) the Tribunal is required to turn its mind to Mr Galuak’s fear of harm if returned to South Sudan (citing BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456);

(d) there is authority for the proposition that it is not necessary to make a finding that non-refoulement obligations are owed, because it is open to Mr Galuak to make a protection visa application, being mindful of the difference between Australia’s protection obligations and international non-refoulement obligations;

(e) meaningful consideration needs to be given to a significant claim about risk of harm, independent of a claim concerning non-refoulement obligations;

(f) the consequences of affirming the decision under review should be taken into account. These include: Mr Galuak being restricted to making a protection visa application; him being liable for removal from Australia as soon as is reasonably practicable; and, that certain personal powers remain with the Minister, albeit their exercise may be speculative;

(g) the question of Mr Galuak’s nationality was dealt with by the Tribunal in considering the cancellation of his citizenship and it was determined that the Applicant was a South Sudanese citizen. On this basis the Respondent submits that submissions that Mr Galuak is stateless should not be accepted, and the matter should be determined by reference to Mr Galuak’s potential return to South Sudan;

(h) the UNHCR’s Position on Returns to South Sudan – Update II (SG17, p 144) indicates that the humanitarian situation in South Sudan is dire, there is widespread internal and external displacement and that ‘the security, rule of law and human rights situation that prevails [in 2018] in South Sudan stands in the way of safe and dignified return for any person originating from South Sudan’ (p 947);

(i) a December 2020 United Nations Security Council report (SG19, p 966) identifies food insecurity persists in South Sudan, and that intercommunal conflict remains, and has deepened throughout the country;

(j) the Tribunal would be entitled to give significant weight to the non-refoulement claims; and

(k) there is no evidence Ms Theb’s care has been compromised while Mr Galuak has been in prison or detention.

CONSIDERATIONS

99. Two preliminary issues were raised at the commencement of the hearing. First, the Respondent’s representative noted that a new Direction has been instituted and will take effect from 15 April 2021 and, on this basis, should not affect the conduct of this review. Second, it was noted that in documents relating to the mandatory cancellation decision, Mr Galuak’s visa was misdescribed (see also Respondent SFIC at [7] fn 3). Mr Galuak was in possession of an ex-citizen’s visa, whereas his visa was described as a category of former citizen visa.^[15] It was submitted that this error was immaterial, that Mr Galuak’s visa was validly cancelled, and, at the hearing, that accepted principles of administrative review meant that the decision under review could properly be addressed in this matter. In relation to this latter issue, I do not consider that the Tribunal’s jurisdiction is under question.
100. The first substantive consideration in this matter is the character test. Due to Mr Galuak’s principal offending, for which he was sentenced to a term of imprisonment of five years, I am satisfied that he fails the character test under s 501(3) of the Act. It is therefore necessary to consider whether there is another reason why the automatic cancellation of his visa should be revoked.

Primary considerations

Protection of the Australian community

101. Under this consideration (paragraph 13.1(1)), I am required to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Direction states further that remaining in Australia is a privilege conferred in the expectation that non-citizens are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the community.
102. Specifically, I am required to consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences (paragraph 13.1(2)).

The nature and seriousness of the conduct

103. The Direction requires (paragraph 13.1.1(1)) that I give consideration to factors that include, relevantly:

(a) the principle that violent and/or sexual crimes are viewed very seriously;

(b) the principle that crimes of a violent nature against women are viewed very seriously;

(c) the principle that crimes against vulnerable members of the community and government officials due to their position or in the performance of their duties are serious;

(d) the sentence imposed by the courts;

(e) the frequency of offending and any trend of increasing seriousness; and

(f) the cumulative effect of repeated offending.

104. I have set out above the evidence with respect to Mr Galuak’s offending. His rape offence, together with the offences committed against his former girlfriend, demonstrate that he has a clear history of very serious offending against women. He has received multiple sentences of extended period of imprisonment. His record does not demonstrate a trend of increasing seriousness, but rather an extended period of violent and anti-social conduct, including offences of resisting Police. I consider the cumulative effect of his offending should be viewed very seriously.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

105. The Direction specifies (paragraph 13.1.2(1)) that under this consideration I 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; and
     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 ...
106. The most relevant clinical assessment of Mr Galuak is that referred to above in the summary of the sentencing remarks. It is the report of a clinical psychologist, dated 15 June 2015, some ten days prior to sentencing in the County Court (G2/D3, p 80). It states that Mr Galuak was assessed using a sexual violence risk instrument that takes into account psycho-social adjustment, sexual offending and future plans. I note that the report states that Mr Galuak’s rating was ‘low/moderate’, but was ‘high’ at the time of the principal offending. It appears to have reduced to a lower rating as a result of no known similar offending in the eight years since 2007, and the fact it was confined to a period he was under the influence of an older male. It was recommended that Mr Galuak would benefit from treatment services specifically to deal with post-trauma symptoms and substance abuse.
107. I accept that the criminal record does not disclose any other sexual offending after 2007. Mr Galuak denied responsibility for the actions that led to his conviction for indecent assault, also in 2007. While I accept the proposition put on the Respondent’s behalf that there is no current, objective, assessment of the risk of recidivism, I consider it appropriate to give some weight to the above report. That said, it does not contain a relevant assessment of the likelihood of recidivism in relation to the wider range of offending that makes up Mr Galuak’s extensive criminal record.
108. In this respect I have noted the somewhat pessimistic remarks at the time of sentencing. Against this, I need to take into account the evidence that Mr Galuak has taken some tangible steps to address key issues, including those identified in the 2015 report. I think it reasonable to conclude that Mr Galuak has at least a framework in place which was absent during his period of offending. These efforts are, in some respects, modest. Trauma counselling has not been underway for long, and Mr Galuak is, or has recently been, on a methadone program which I understand is to manage substance abuse issues.
109. I do not accept the submission that Mr Galuak presents no risk to the community as a result of his efforts at rehabilitation. Mr Galuak’s own evidence and submissions reflect the more nuanced position put on his behalf in the second set of submissions by legal representatives, which is that his offending occurred almost entirely when he was at or under 18 years. This submission, while worthy of consideration, avoids the reality that many incidents of very serious offending occurred while he was of an age of criminal responsibility.
110. Reflecting on Mr Galuak’s responses to a series of specific questions in evidence about particular incidents of offending, I am of the view that he repeatedly qualified, challenged or otherwise excused details put about serious offending behaviour. This included demonstrating possibly limited insight into the existence of violence in his admittedly volatile personal relationship. I accept that alcohol was acknowledged to be a factor, and this may have had an impact on Mr Galuak’s recollections or capacity to demonstrate deeper insight. However, I consider that his evidence overall does not demonstrate a clear acceptance of responsibility, despite Mr Galuak’s statements that he does accept responsibility for this offending.
111. I note that Mr Galuak has served the full term of the five years sentence for the rape offence. I have been unable to identify in the extensive material before me anything clearly stating what Mr Galuak may, or may not have, done in relation to probation, and the matter was not explored in evidence.
112. During the hearing, when Mr Galuak’s conduct in prison was raised in evidence, the Respondent’s representative indicated that the record indicated that the Applicant’s conduct in prison appeared to be have been good. I noted in my summary of evidence the episode with scissors. I have not found a reference to this incident in the record, but there is a report of a Sentence Management Panel meeting with Mr Galuak, dated 12 November 2019 (SG9, p 273) which records a fight with another inmate, during which Mr Galuak allegedly punched the other inmate in self-defence. My reading of the record, otherwise, generally reinforces the observation as to Mr Galuak’s generally good conduct. I noted above that Mr Galuak’s Methadone treatment commenced as a result of his use of drugs while in prison, which is reinforced by his own evidence.
113. No evidence was led by either party about the nature of Mr Galuak’s Methadone use or treatment, and no submissions were made about this issue. However, I consider it relevant to note, at the least, that Mr Galuak has been receiving Methadone consistently for a lengthy period of time. I think it reasonable to assume that were he released into the community, ongoing treatment and addiction management would be available. Equally, the fact of prolonged Methadone use suggests that Mr Galuak has not made significant progress toward dealing with what appears to be an underlying addiction issue. I consider it reasonable to conclude that this may have some implications for the risk of reoffending.
114. I consider that Mr Galuak presented as a relatively considered young man, taking into account his relative educational and intellectual limitations. He has advanced, throughout, intentions that reflect that he now has a purpose which he previously lacked. That is, if released into the community he has the motivation now to play a major role in his mother’s life and wishes to mentor youth in his community. Mr Galuak and witnesses attest to an expanded role for religion in his life.
115. It is to Mr Galuak’s credit that he was able to have witnesses give evidence on his behalf. In particular Reverend Deng has been prepared to give a number of statements over a period of time expressing confidence in the Applicant. While the Reverend did state knowledge of the rape offence, I was not confident that those speaking in support of Mr Galuak were well informed about his criminal history, and this includes the Applicant’s mother with whom he intends to live on release.

Conclusion

116. I accept that the likelihood of Mr Galuak committing acts of sexual violence has been assessed as low to moderate. However, Mr Galuak has a prolonged history of violence, including very serious acts of violence against a female partner. He has a substantial criminal history overall. I consider there to be a risk to the Australian community Mr Galuak engaging, in particular, in crimes of violence, with some risk of sexual violence.
117. His efforts at rehabilitation, in combination with his apparent motivation to change and lead a good life, are commendable. However, there is no contemporary professional clinical assessment of Mr Galuak, and it appears that no assessment has been made in the past about the risk of recidivism for his more frequent acts of violent offending, including against his female partner. As I have noted, the sentencing judge was pessimistic about the Applicant’s prospects for rehabilitation, notwithstanding the report of the clinical psychologist. Accordingly, I consider that there is a realistic risk of Mr Galuak reoffending.
118. Overall, under this Primary Consideration, I find that the nature and seriousness of Mr Galuak’s conduct to date must be considered very seriously indeed. His principal offending was considered a serious example of a serious offence, and Mr Galuak has a record of repeated acts of violence against a female partner.
119. There are, in the terms of the Principles under the Direction, some countervailing considerations. In this case, they include Mr Galuak’s young age at the time of the principal offence, and much of his other offending. They also include the rehabilitation issues discussed above, and Mr Galuak’s expressed desire to reform. However, I consider that a risk does exist of repeated offending, and that this risk is unacceptable such that it cannot be ignored even given these countervailing considerations.
120. I also take account of the Principles which express a low tolerance for persons who participated in, or contributed to, the Australian community for a short period of time. Mr Galuak referred in his evidence to a period of some years when he was employed but this stands in contrast to his criminal record which reveals convictions in every year except 2014 between 2006 (a year after his arrival) and 2015.
121. Accordingly, I find that this first Primary Consideration weighs heavily against revocation.

Best interests of minor children in Australia affected by the decision

122. Under this Primary Consideration (paragraph 13.2) I must consider whether revocation is in the best interests of any minor child and consider in particular:

(a) the nature and duration of the relationship, with less weight generally to be given to non-parental relationships, long periods of absence, and/or limited meaningful contact;

(b) the extent to which the non-citizen is likely to play a positive parental role in the future;

(c) the impact of the non-citizen’s prior conduct and any likely future conduct may have on the child;

(d) the likely effect of separation from the non-citizen on the child given their ability to maintain contact in other ways;

(e) whether other persons already fulfil a parental role; and

(f) any known views of the child.

123. I accept that the evidence demonstrates that Mr Galuak has one minor child relative, being a niece. The evidence indicates this is not a parental relationship as Mr Galuak appears to have not only had limited contact with his brother’s daughter, he has been incarcerated for most of her life. I accept that they appear to have had some limited ongoing contact.
124. Mr Galuak expressed some enthusiasm for playing a role in the life of his niece in the future. I take into account here that none of Mr Galuak’s brothers, including the father of this child, gave evidence at the hearing which raises some questions about the strength of the family ties. There is no evidence about the child’s views. I do not consider the evidence to demonstrate that Mr Galuak’s niece would be directly affected by any future offending.
125. I am satisfied, overall, that it is appropriate to place some weight on this consideration in favour of revocation. However, I consider it only weighs very slightly in Mr Galuak’s favour.

Expectations of the Australian community

126. The Direction provides the following guidance (paragraph 13.3(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 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.

127. It is common to the submissions that this consideration should be read in the light of the clarification provided in FYBR; in short, this consideration should not be constructed by me, but is a deemed statement of expectations. The second submission on Mr Galuak’s behalf, in particular, highlighted aspects of that decision emphasising that revocation may be appropriate, that is, the decision-maker retains a discretion. The Respondent submitted that the consideration is linked to the protection of the Australian community.^[16]
128. I have found that the nature of Mr Galuak’s offences should be considered very serious, noting again his history of violence against women. I have also found that the nature of the future risk of offending is unacceptable. I consider that I must give these findings due weight in the context of this consideration.
129. Accordingly, I find that in the circumstances of this matter, the expectation expressed in the Direction is activated. In the light of my findings with respect to the consideration Protection of the Australian community, I consider it appropriate in this case that this consideration weighs heavily against revocation.

Other considerations

130. The Direction sets out a non-exclusive list of other considerations. These are (paragraph 14(1)):

(a) International non-refoulement obligations;

(b) Strength, nature and duration of ties;

(c) Impact on Australian business interests;

(d) Impact on victims; and

(e) Extent of impediments if removed.

131. Taking into account the submissions made, and in the light of the evidence overall, I do not consider that it is necessary to address the third and fourth stated considerations, Impact on Australian business interests and Impact on victims.

International non-refoulement obligations

132. The Direction describes this consideration (paragraph 14.1(1)) as an obligation arising under several international conventions, and states that, where relevant, decision-makers should follow the tests enunciated in the Act. The Direction states further, relevantly:

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may arise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4) Where a non-citizen makes a claim which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulment obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

133. International non-refoulement claims have been raised in this matter and they cover a range of separate issues. As I understand the Direction, it is not necessary to determine whether any non-refoulement obligation is in fact owed where, as in Mr Galuak’s case, he may be in a position to apply for a protection visa. However, it is necessary to consider the basis of the claims in order to make a finding on facts in order to determine what weight to place on this consideration.
134. It has been submitted that Mr Galuak should be considered a stateless person. In one submission on his behalf it is stated that his return would be in breach of non-refoulement obligations because of his statelessness. Otherwise, the submissions overall do not expand greatly on the nexus between the question of statelessness and the non-refoulement consideration. I will therefore address this issue below, after dealing with the other claims made.
135. I note that the claims are described in slightly different ways in the submissions, and that the potential overlap with the Other consideration, Extent of impediments if removed, has been identified both in submissions on behalf of the Respondent and the Applicant. I also note that in the submission by the Applicant’s second legal advisers (G2/S, p 582) the claims are grounded by reference to both individual and group claims for protection as a refugee, and the risk of being subject to torture. I will address the claims under broad subheadings.

Ethnicity

136. This claim arises from the fact of Mr Galuak’s Nuer ethnicity. This fact colours, to some extent, some or perhaps all of the claims under this consideration. I do not consider that it is contested in this matter that Mr Galuak would be easily identified as a member of this ethnic group. The claim, broadly, is that membership of this ethnic group carries certain consequences for Mr Galuak. Accordingly, this subheading also embraces claims regarding imputed political affiliation or opinion.
137. Mr Galuak himself did not articulate in any particular detail the nature or extent of his concerns. However, I am satisfied that he expressed a view gained from, it appears, general knowledge including the media, that there are ethnic tensions in South Sudan and that he would be affected by them if he returned. He did not identify any specific political opinions, but did indicate that he considered the Nuer to be not adequately represented in government.
138. The Respondent produced a range of country information in Supplementary G Documents (SG16–22) and in its written submissions references a number of sources including those identified by Mr Galuak’s representatives. A United States Department of State Country Report (G16) refers repeatedly to ethnicity as a source of conflict across all domains of life. At least one positive association with Nuer ethnicity arises in an observation that Dinka and Nuer occupy ‘most leadership positions within the national government’ (SG16, p 942). Equally, I note the statement in a United Nations Security Council report (G18, p 950), and dating from late 2020, that political and ethnic fractures ‘continue to drive subnational conflict’ and that there are ‘complex conflicts emerging among ethnic groups’. Furthermore, the DFAT Country Information Report South Sudan, 5 October 2016, states that Nuer in Juba, the capital of South Sudan, may be at risk by ethnic affiliation (at [5.20]).
139. On balance, I consider it reasonable to conclude that there is some substance to Mr Galuak’s claims of risk as a result of his ethnicity.

Targeting

140. Here I take into account claims made with respect to the potential that Mr Galuak may be specifically at risk because he would be identified as a returnee from overseas, or in some way due to him not being considered South Sudanese. Submissions on his behalf identified the perception that Mr Galuak is wealthy or in some way foreign as raising risks for him.
141. This claim is, to some extent, in contradiction to the preceding claims under ethnicity, and Mr Galuak’s own evidence that his appearance, language and name would identify him as Nuer. However, I accept that there may well be a relevant distinction, to a degree obvious to South Sudanese residents, between a generally familiar appearance, and the capacity of a returnee to integrate after living for an extended period in Australia. In any event, it would become apparent from daily interactions that Mr Galuak had resided overseas.
142. Having considered the written submission on this issue I am of the view that it overlaps to a significant extent with the issue of overall stability, which I will address below. Furthermore, I am unable to find any obvious support for the submission in the extensive country information.

General instability

143. There are a number of claims I address here including the fact of ongoing instability in South Sudan, which includes conflict, security and rule of law issues, as well as generalised violence. It has also been submitted that Mr Galuak is at risk of recruitment to an armed group. Both parties have made submissions highlighting that food security is also a significant issue.
144. As noted above, Mr Galuak was able to identify in his evidence that he considered conflict to be an ongoing problem in South Sudan. He also stated that he believed he would be recruited to an armed group, also referring to recruitment by ‘either side’. I take this as evidence that he would be recruited against his will, and that this would put him at risk of significant danger should he be forced to engage in armed conflict, or conversely, should he resist.
145. There are a number of references in the country information to forced recruitment, with many of these relating specifically to the practice of abducting or recruiting child soldiers. The Respondent submitted that there was insufficient objective evidence that this claim was realistic. In light of my reading of the country information I cannot reach the same conclusion and must give it some, albeit slight, weight.
146. Outside of the issue of recruitment, I am satisfied that the information before me easily substantiates the claims made that Mr Galuak is at risk of harm in South Sudan as a result of what is widely considered to be a situation of general instability. I have cited some specific references in the country information above, which I consider apply equally to consideration of this broad claim.
147. I consider that the claims relating to a risk arising from generalised instability do not easily map to the specific concerns being addressed under the consideration of non-refoulement. That is because I am unable to clearly identify a specific risk based, for example, in persecution from the material before me. However, I do not rule out the potential for Mr Galuak’s claims which I have placed under ‘ethnicity’, to play a reinforcing role with respect to risks arising in relation to general instability. That is, risk I have found arising from ethnicity may be experienced or enhanced as a result of general instability, and a weak security situation characterised by ethnic tensions.
148. I accept the submission that there is overlap between this aspect of this consideration and the Extent of impediments if removed.

Statelessness

149. Before concluding consideration of non-refoulement it is necessary to address the question of Mr Galuak’s nationality. I raised a question above about the nexus between statelessness and non-refoulement, and stress that this question was not addressed to the parties at the hearing. However, it appears that there is an assumed relevance to this claim which requires some brief exploration. I note that the statement in submissions on the Applicant’s behalf that returning him as a stateless person to South Sudan is a breach of non-refoulement obligations is not repeated in the submissions from Mr Galuak’s second legal advisers.
150. Put simply, it is perhaps a preferable view that a stateless person may also be a refugee, but would need to make out protection obligations independent of their statelessness.^[17] That is, Mr Galuak’s purported statelessness is not of itself, unambiguously, a claim under the consideration of non-refoulement.
151. The distinction that emerges from the submission on statelessness is, essentially, what weight to put on the fulfilment in practice of a legal right. The various submissions for the Applicant acknowledge that Mr Galuak is eligible for citizenship of South Sudan but identify a range of practical difficulties in what are said to be steps in formalising this entitlement. A UNHCR report A Study of Statelessness in South Sudan 2017 is included in the materials (G2/E2, pp 188–260). This report substantiates (G2/E2, p 212, 223) that there are a range of administrative and logistical problems with obtaining proof of nationality. Perhaps more pertinent, is the observation in the report that while lack of documentation does not equate to statelessness, the impact in reality in South Sudan is often synonymous (G2/E2, pp 195–197).
152. This issue was not overlooked by the Tribunal, differently constituted, when Mr Galuak’s citizenship was revoked. The Tribunal distinguished (at [30]–[31]) the declarative force of the relevant law and the (mere) proof of this fact offered by a certificate.
153. I do not consider that I am able to accept the argument that Mr Galuak is stateless. On this basis, I take the issue of statelessness no further in addressing non-refoulement. However, in light of the country information, I accept the submission that Mr Galuak may well experience practical difficulties in demonstrating citizenship, which I consider bear on the consideration Extent of impediments if removed.

Conclusion

154. In addressing matters raised under this consideration I take account of the fact that Mr Galuak has the option of applying for a protection visa, and that any protection claims may be considered as part of any such application (and in priority to his potential ineligibility), and that there may be a difference in the scope of non-refoulement and protection obligations. I also take account of the fact that a non-revocation decision means that Mr Galuak may be subject to further detention until removal as soon as practicable under s 198 of the Act. The outcome of any further decision-making process, including any exercise of Ministerial power, I understand, is not a factor about which I should speculate, nor should I speculate about the length of any further period of detention.
155. I have addressed here four categories of claim. I have found that it is reasonable to find that Mr Galuak is likely to face risk if returned to South Sudan, on the basis of his ethnicity, and also due to the general instability prevalent there. Accordingly, I find that the consideration International non-refoulement obligations weighs in favour of revocation.

Strength, nature and duration of ties

156. Under this consideration the Direction states that I must have regard to (paragraph14.2(1)):
     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 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).
157. In relation to the first elements of this consideration, the evidence demonstrates clearly both that Mr Galuak arrived in Australia at a relatively young age, and that he commenced offending within a very short space of time. I referred above to Mr Galuak’s evidence about his work history, however, I contrasted this with the countervailing evidence about the frequency of his offending. That is, I am not satisfied that, in the terms of this element of the consideration, Mr Galuak has spent any significant time contributing positively to the Australian community.
158. The evidence demonstrates that Mr Galuak has a particularly strong link with his mother who is an Australian citizen. I accept that it is likely his brothers have the right to remain in Australia indefinitely, and that there is at least some familial tie in place, albeit not strongly made out in evidence. I have also addressed above the relationship with his niece.
159. There is no substantive evidence about the impact non-revocation would have on Mr Galuak’s brothers and niece. There is, however, some evidence that Mr Galuak’s return to South Sudan would have a potentially serious impact on Ms Theb’s health and wellbeing. I accept that Mr Galuak is strongly motivated to provide assistance to his mother in the future, and that he provides some practical assistance, remotely, at the moment. I also need to give appropriate consideration to the fact that Ms Theb has lived without the immediate physical presence of Mr Galuak for many years. I cannot equate a desire to help and be helped, with an evident impact were Mr Galuak to be removed, certainly in the absence of stronger evidence to that effect.
160. Overall, I am persuaded that Mr Galuak has a small family, and that his mother appears to be somewhat reliant upon him, and would possibly benefit from him remaining in Australia. Accordingly, I find that some weight should be given to this consideration in favour of revocation, but only slight weight.

Extent of impediments if removed

161. This consideration (paragraph 14.5(1)) requires that I address the extent of any impediments to the non-citizen ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: their age and health; whether there are substantial language or cultural barriers; and, any social, medical and/or economic support available to them in that country.’
162. Mr Galuak is a relatively young man, but he is not a well man. The evidence demonstrates that Mr Galuak is on medication for his mental health and addiction management issues. The evidence at the hearing also revealed that Mr Galuak has an identifiable vulnerability being his obesity, which has in turn, it seems, caused him to experience problems with his ankle. His weight situation is substantiated by reference to his vital statistics contained in detention records (SG13, p 721), and the description in clinical records, noted above. Clinical records indicate that Mr Galuak has been wearing an ankle and knee brace since prior to his time in immigration detention, and has reported pain in these joints on several occasions (SG13).
163. The evidence indicates that Mr Galuak is unlikely to face language or cultural barriers that can be considered ‘substantial’. He was born and grew up for some years in Sudan and remains in active contact with the Nuer community in Australia. I consider that he would be in a position, if returned, to engage effectively in life in South Sudan. I note also the Respondent’s submission that the official language of South Sudan is English, and Mr Galuak gave the vast majority of his evidence without difficulty in English. The evidence is, otherwise, that Mr Galuak appears to lack any family or other contact in South Sudan who might offer emotional or practical support.
164. Submissions were consistent on the likelihood that Mr Galuak would be in need of ongoing medical support in South Sudan. They were also consistent as to the poor quality of health services, and the DFAT Country Information Report states that there is extremely poor access to health services in South Sudan (at [2.17]). This is of importance not only because of Mr Galuak’s physical state, but also his need, and his stated wish, to continue to obtain psychological or counselling services related to trauma, and possibly substance abuse. The consequences for Mr Galuak’s Methadone use was not addressed at the hearing or in submissions.
165. As noted above, I accept that there is an overlap between the claims raised in relation to non-refoulement and statelessness, and this consideration. I do not accept the submission in relation to statelessness, but have identified evidence that appears to reinforce and support the submission about the practical difficulty of demonstrating citizenship in South Sudan. These difficulties might also be considered a subset, or a consequence of, the issue of generalised instability.
166. I consider it appropriate to take into account the likelihood that this generalised instability in South Sudan is, at the least, a complicating factor with regard to Mr Galuak’s capacity to function in South Sudan. This consideration sets a relatively modest bar by specifying that the living standard a non-citizen might maintain is that available to other citizens. Nonetheless, the consistent picture obtained from the country information, some of which was identified in more detail above, is that living conditions in South Sudan are poor.
167. Overall, and particularly given what the evidence indicates about Mr Galuak’s health and medication, I am satisfied that it is appropriate to find that this consideration weighs heavily in favour of revocation.

CONCLUSION

168. I noted above that, at the hearing, Mr Galuak submitted that he had experienced some confusion in the past about ‘immigration paperwork’. Whatever the cause of the confusion he was referring to, it is the fact that Mr Galuak has a relatively complex immigration history. I have not cited in these reasons one other step in this journey which was an earlier Ministerial-level intervention in 2020, which was quashed in consent orders by the Federal Court on 6 May 2020 (G2/P, p 556).
169. Mr Galuak’s citizenship status changed in July 2018, and shortly thereafter his visa was mandatorily cancelled, and this itself adds a layer of complexity to the review process. The term non-citizen is used in the Direction and Mr Galuak’s current status is that of a non-citizen. The brief chronology shows that the offending and imprisonment forming the basis of the cancellation, occurred prior to Mr Galuak obtaining citizenship on the basis of the grant of citizenship to his mother. His offending continued after this point, including some of his violent offending involving his then partner.
170. To the extent that considerations involve a backward looking assessment, the Direction requires evaluation of past criminal conduct, there being no distinction identified that covers circumstances such as these, where a non-citizen’s legal status has (at a later point) changed substantively. In other respects, the Direction requires a forward looking risk assessment, in which case consideration of Mr Galuak’s future conduct as a non-citizen is informed by all of his actions, whatever his status at a point in time. In short, the circumstances of Mr Galuak’s review are possibly somewhat unusual, but that does not, as I see it, alter the nature and purpose of the decision-making process.
171. I have made the following findings with respect to the considerations. Of the Primary considerations I have found that Protection of the Australian community weighs very heavily against revocation and that Expectations of the Australian community weighs strongly against revocation. I have also found that the consideration Best interests of minor children affected by the decision weighs very slightly in favour of revocation.
172. Of the Other considerations I have found that two are not engaged, Impact on Australian business interests and Impact on victims, and therefore weigh neutrally. I have found that the considerations: International non-refoulement obligations weighs in favour of revocation; and Strength, nature and duration of ties weigh slightly in favour of revocation. I have also found that Extent of impediments if removed weighs heavily in favour of revocation.
173. Primary considerations are generally to be given more weight than other considerations, and one or more primary considerations may outweigh other primary considerations. I have found that two primary considerations weigh very heavily and strongly against revocation and I consider that together they outweigh the Best interests of minor children consideration, which in the context of the evidence overall in this matter, is not a significant consideration. Two of the other considerations weigh in favour of revocation, but one of these, Strength, nature and duration of ties only slightly. I consider that the primary considerations against revocation outweigh these other considerations. While I considered that Mr Galuak’s claims to risk of harm based on ethnicity were he to return to South Sudan appear to have some substance, such claims may be examined more fully in any protection visa application he is entitled to make.
174. The consideration of the impediments Mr Galuak faces on return was complicated by the fact that at the hearing there was not a thoroughgoing engagement with the nature and extent of, in particular, Mr Galuak’s weight, nor his Methadone treatment. Nonetheless, I consider it was quite readily conceded by the Respondent that Mr Galuak was likely to experience significant impediments if returned to South Sudan.
175. The impediments extend beyond the specific matter of health, to safety and wellbeing due to generalised instability. Under these conditions it is reasonable to conclude that his particular needs may render him vulnerable, but it would be speculation to ascribe any more importance to these matters in the absence of robust evidence about Mr Galuak’s health condition and treatment needs.
176. The consideration Extent of impediments if removed needs to be weighed against the two primary considerations that I have found weigh against revocation, and which are generally to be given greater weight than other considerations. I am also able to take into account the Principles, which include that a non-citizen who has committed serious violent or sexual crimes should generally be expected to forfeit the privilege of remaining in Australia, and that in some circumstances the risk of similar conduct in the future may be considered unacceptable. These are both relevant to findings that I have made in respect of Mr Galuak.
177. Accordingly, taking the totality of evidence in account, I consider that the primary considerations that weigh against revocation in this instance outweigh the consideration Extent of impediments if removed. As a consequence, I consider that there is not another reason why the mandatory cancellation decision in Mr Galuak’s case should be revoked.

DECISION

178. For the reasons given above, the Tribunal affirms the decision under review, which means that the decision not to revoke the cancellation of Mr Galuak’s ex-citizen visa remains in place.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Dated: 29 March 2021

Dates of hearing:	18–19 March 2021
Applicant:	By videoconference
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor

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^[1] Re Galuak and Minister of Immigration and Border Protection [2018] AATA 2301.

^[2] Galuak v The Queen [2015] VSCA 300; DPP v Galuak [2015] VCC 874; Re Galuak and Minister of Immigration and Border Protection [2018] AATA 2301.

^[3] The report of psychologist Susan Whitelaw (SG11, p 631) referred to here was based on tests conducted on 29 March 2006. Her report took into account analysis of results for a recognised children’s intelligence scale given different possible ages for Mr Galuak. The report concludes that he possessed at that time a severe behaviour disorder, exacerbated to some degree by a significant intellectual disability.

^[4] DPP v Galuak [2015] VCC 874, [24].

^[5] Ibid [32].

^[6] A reference to the prescription drug Buprenorphine.

^[7] The record states the issue was identified as stress related to racism, and feeling abandoned by staff (SG12, p 674).

^[8] The Respondent’s representative observed that Mr Galuak’s clinical records are current as at mid-November 2020.

^[9] Re Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301: in relation to cancellation of Mr Galuak’s citizenship.

^[10] I note that the submissions were provided prior to the decision in FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’), and, accordingly, I do not set out the submissions in respect of the Primary Consideration: Expectations of the Australian community.

^[11] When addressed in the first submissions, indefinite detention is linked explicitly to paragraph 14.1(6) of the Direction. This element of the Direction cannot apply to Mr Galuak as it arises in the circumstances of the cancellation of a Protection visa, as a result of the terms of paragraph 14.1(5), which is not the case with the Applicant.

^[12] Citing the decision of His Honour Stewart J in FYBR [2019] FCA 500, at [97].

^[13] I note that there are extensive references to other material in this submission which I have not reproduced.

^[14] When used in the Respondent SFIC this term is usually used in a generic sense, sometimes accompanied with reference to more specific sources.

^[15] I note the error is replicated in material submitted by Mr Galuak’s first legal advisers (G2/D1). Ex-citizen visas are created under s 35 of the Act.

^[16] Citing, in this respect, YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.

^[17] See, for example, UNHCR, Handbook on Protection of Stateless Persons (Geneva, 2014)t 46 [127]–[128].