FRWH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4071 (1 December 2023)

Last Updated: 7 December 2023

FRWH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4071 (1 December 2023)

Division: GENERAL DIVISION

File Number(s): 2023/6706

Re: FRWH

APPLICANT

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

RESPONDENT

DECISION

Tribunal: Senior Member A Poljak

Date: 1 December 2023

Place: Sydney

The decision under review is set aside and in substitution the Tribunal finds that the discretion to cancel the applicant’s visa under subsection 501(2) of Migration Act 1958 (Cth) should not be exercised.

........................[SGD]................................................

Senior Member A Poljak

Catchwords

MIGRATION – Cancellation of Class BB Subclass 155 - Five Year Resident Return visa under section 501(2) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion under section 501(2) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is set aside and substituted

Legislation

Migration Act 1958 (Cth)

Secondary Materials

Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member A Poljak


1 December 2023

1. FRWH, the applicant, is a citizen of Sudan. The applicant first arrived in Australia on 23 April 2009 as the holder of a Class XB Subclass 200 Refugee Visa. He was granted a Class BB Subclass 155 - Five Year Resident Return visa (visa) on 25 November 2022, which is the subject of these proceedings.
2. The applicant has a substantial criminal record. Since 27 August 2009, he has been convicted of 17 offences. Most recently, on 8 February 2018, in the Fairfield Local Court, the applicant was convicted for Reckless wounding (DV)-T1, for which he was sentenced to an 18-month term of imprisonment to be served by way of an intensive correction order (ICO).
3. On 27 April 2023, the applicant was notified by the Department of Home Affairs that it was intending to consider cancellation of his visa under subsection 501(2) of the Migration Act 1958 (Cth) (the Act) on the basis that it reasonably suspected the applicant did not pass the character test because of his "substantial criminal record". The applicant was invited to comment.
4. On 30 June 2023, the applicant, through his representative, provided written submissions in response to the notice, as well as other documents including a Personal Circumstances Form, witness statements and a psychological report by Dr Jacqui Yoxall (Psychologist) dated 22 June 2023.
5. On 1 September 2023, a delegate of the minister exercised their discretion to cancel the applicant’s visa under subsection 501(2) of the Act (visa cancellation) on the basis that the applicant failed to pass the character test because of his ‘substantial criminal record’. This is the decision under review in these proceedings (decision under review).

Issue

6. It is accepted that the applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the determinative issue for determination is whether to exercise the discretion in subsection 501(2) of the Act to cancel the Applicant's visa, which requires consideration of the primary and relevant other considerations prescribed by Direction 99.

Relevant Legislative Provisions

7. Under subsection 501(2) of the Act, the delegate of a Minister administering the Act may cancel a person’s visa if the delegate of the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the delegate of the Minister that the person passes the character test. Subsection 501(6) defines the character test.
8. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
9. In considering whether to exercise the discretion in subsection 501(2) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
10. The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-makers exercise of discretion:

(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Where the discretion to cancel a visa on character grounds is available, then, informed by the Principles in paragraph 5.2 of Direction 99, the decision-maker must take into account the primary considerations in paragraph 8 of Direction 99, in deciding whether to cancel a non-citizen's visa.
12. Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider. They are (paragraph 8(1)-8(5)):

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

    b) whether the conduct engaged in constituted family violence;

    c) the strength, nature and duration of ties to Australia;

    d) the best interests of minor children in Australia; and

    e) expectations of the Australian community.

13. Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):

    (a) legal consequences of the decision;

    (b) extent of impediments if removed;

    (c) impact on victims; and

    (d) impact on Australian business interests.

Considerations

Protection of the Australian community from criminal or other serious conduct

14. The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:

When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

15. Paragraph 8.1(2) of Direction 99 provides that decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen’s conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the applicant's conduct

16. The applicant’s offending conduct is viewed very seriously. Paragraph 8.1.1(1)(a)(i), (ii) and (iii) of Direction 99, provides that crimes of a violent nature, crimes of a violent nature against women and children, and acts of family violence are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed.
17. Almost all of the applicant’s convictions, or the circumstances surrounding them, relate to or involve the presence of violence. Most significantly, are the applicant's convictions on 8 February 2018, 22 June 2016, and 21 May 2013, which involved family violence and a violent unprovoked attack against a child, aged 15 at the time of the offence.
18. The convictions on 8 February 2018 are particularly serious. They include Reckless wounding (DV)- T1 and Stalk/intimidate intend fear physical etc. harm (domestic)- T2. The NSW Police Facts Sheet details the circumstances of the offences. In summary, they involved the applicant grabbing a female's throat, cutting off her oxygen supply and restricting her breathing. The applicant then used his free hand to punch the female victim on the forehead above her left eye, causing her to lose consciousness. Upon arrival, Police observed a significant amount of blood on the floor and walls of the unit and observed that the victim was ‘bleeding profusely’. The victim pointed to the applicant and said, “he did it”. The applicant denied all allegations and stated that the victim fell and hit her head on the wall. As a result of the incident, the victim was taken to hospital. She sustained a 2cm long wound on her forehead that penetrated both the dermis and epidermis of the skin. She required corrective surgery as conventional suturing was not sufficient.
19. As for the convictions on 22 June 2016, they included Common assault-T2 and Affray-T1. The details of the offences are described in the NSW Police Facts Sheet dated 31 May 2016 and provide that outside a 7/11 store, the applicant grabbed the victim (15 years of age) and head butted him to the right side of his face above his right eyebrow. There is no evidence that the applicant knew the victim prior to the incident occurring or that the victim did anything to provoke the attack.
20. The applicant was convicted of the offence of Common assault (DV)-T2, on 21 May 2013 by the Liverpool Local Court. The offence is described in NSW Police Facts Sheet dated 26 September 2012 and provides that the applicant had an argument with his ex-partner over her smoking a cigarette whilst being three months pregnant with their child. The applicant is reported to have approached the victim, raised his right hand over his left shoulder and slapped her on the right side of her face in a back handed motion. He repeated this, and then punched a television, such that it was damaged. When NSW Police arrived at the scene about an hour later, they observed slight redness and swelling around the affected area of the victim’s face.
21. On 1 July 2011, the applicant was convicted of six offences in relation to an assault against NSW Police Officers in the execution of their duties. The assault involved, amongst other things, the applicant barging at a Constable such that his right eye collided into a brick wall, followed by him pushing the Constable with his left shoulder causing injuries. Paragraph 8.1.1(1)(b)(ii) of Direction 99, provides that crimes against officials due to the position they hold, or in the performance of their duties, are viewed by the Australian Government and the Australian community as serious.
22. The applicant is a repeat offender with an extensive criminal record. Since 27 August 2009, he has been convicted of 17 offences. His offending conduct is all of a similar nature, in that it involves violence, and there appears to be a trend of increasing seriousness.
23. Since his most recent conviction in February 2018, narrations by NSW Police, indicate that the applicant has continued to have numerous interactions with NSW Police. Noting here that although charges have been placed in some instances, no further convictions have resulted.
24. The applicant concedes that his offending conduct should be viewed very seriously.

Risk of Reoffending

25. For the following reasons, I am of the view that there is a real risk of the applicant engaging in further criminal or other serious conduct. Through the repeated nature of the applicant’s conduct, he has shown an inherent disregard for the laws of Australia and the judicial system and has not been deterred from reoffending by his past convictions and sentences. However, I do note that the applicant’s last criminal conviction was in February 2018. This is prior to him taking parental responsibility for his son in October 2021, and prior to his wife and daughter arriving in Australia from Sudan in early 2023. It would be reasonable to assume that these factors could potentially act as a future deterrent for the applicant to engage in further criminal conduct, however as already stated, the evidence demonstrates that the applicant has not been deterred in the past.
26. The applicant has not expressed remorse and insight into his criminal offending. At hearing, he denied his involvement in any of his criminal offending. He further stated that the Liverpool Police were out to get him and that the NSW Police fact sheets were all made up. The applicant even went so far as to say that in regard to his offending in 2018, he was a hero, and that the female victim was a troublemaker.
27. There is a connection between the applicant’s criminal history and alcohol. At hearing, he reiterated that alcohol was the main contributor. There does also appear to be some mention of substance abuse in the evidence in relation to his offending conduct over the years however, the applicant claims to have never used drugs despite the contradicting evidence.
28. Following a psychological assessment of the applicant, Dr Jacqui Yoxall, psychologist, provided a report dated 22 June 2023. Dr Yoxall opined that the applicant suffered from undiagnosed and untreated complex post-traumatic stress disorder and required ongoing psychological intervention including a relapse prevention plan for continued abstinence from alcohol.
29. There is no evidence before the Tribunal of the applicant engaging in any form of rehabilitation to address his alcohol and/or other substance abuse issues. Other than attending two counselling sessions in 2018 as part of his ICO and undergoing an assessment with Dr Yoxall, the applicant has not sought professional help. Despite being offered treatment and professional intervention in the past, the applicant has refused to engage with professionals to address his issues with alcohol, substance abuse, anger management and mental health issues. The ICOA Report dated 5 February 2019 confirms that the applicant has a history of non-compliance with previous community supervision, including a failure to engage in a multi-disciplinary service for alcohol abuse counselling and an anger management program. This is despite him being referred to the program by Community Corrections as part of the supervision component of his good behaviour bond.
30. Whilst the applicant previously claimed to have abstained from alcohol since 21 August 2018, he has not sought any professional assistance to develop relapse prevention strategies, identify triggers and build resilience for long-term abstinence. At hearing he stated that there was nothing wrong with him and that he did not need any help. He maintained this position even in light of the extensive treatment recommendations of Dr Yoxall.
31. The applicant's repeated crimes of a violent and/or dangerous nature are very serious and any likelihood that they may be repeated is unacceptable; and the potential harm caused by further acts of criminal or other serious conduct committed by the applicant could involve significant harm to members of the Australian community.
32. This primary consideration significantly favours the exercise of the discretion to cancel the applicant’s visa.

Family Violence

33. Direction 99 provides that 'family violence' means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The definition also includes examples of behaviour that may constitute family violence; paragraph 4(1) of Direction 99.
34. The principles providing the framework within which decision-makers should approach their task of deciding whether a cancellation should be exercised provide that 'the inherent nature of certain conduct such as family violence ... is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community'; paragraph 5.2(6) of Direction 99. Direction 99 provides that acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed, are viewed 'very seriously'; paragraph 8.1.1(1)(a)(iii) of Direction 99. Further, the primary consideration about family violence is relevant where the applicant has been convicted of an offence and/or there is information or evidence from independent and authoritative sources indicating that the applicant has been involved in the perpetration of family violence; paragraph 8.2(2)(a), 8.2(2)(b) of Direction 99.
35. The applicant's ex-partners are 'member of the person's family' for the purposes of paragraph 8.2 of Direction 99, which specifically defines 'member of the person’s family', for the purposes of the definition of family violence to include a person who has, or has had, an intimate personal relationship with the relevant person.
36. Instances of domestic related violence have been detailed above at paragraph [20] and [18]. The instances constituted threatening behaviour causing the victim’s to be fearful, and therefore were acts of family violence.
37. This primary consideration strongly favours the exercise of the discretion to cancel the applicant’s visa.

Strength, nature and duration of ties to Australia

38. Paragraph 8.3(4) of Direction 99 requires that, in assessing this consideration, decision-makers must have regard to:

    a) the length of tie the non-citizen has resided in the Australian community, noting that:

    1. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
    2. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
    3. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

39. The applicant spent his formative years in Sudan. He has resided in Australia from the age of 19 (since 23 April 2009) and began offending within a few months of his arrival in Australia. His positive contribution to Australia is limited. He has extensive family links to Australian citizens or permanent residents, including his son, mother, father, three sisters, a brother and other extended family members. Many of whom attended the hearing to support the applicant.
40. The applicant described himself as the backbone of the family. He explained, culturally, as the oldest son, he was the second father. The applicant explained that his mother and father rely on him every day, particularly given his father’s recent open-heart surgery and mental health issues from past traumas. He stated that he takes his mother to the shops, to the doctors, and to the Mosque. As she does not speak English, the applicant said he helps her with all things requiring interpretation. With his father, the applicant explained that since his surgery, he has been supporting his father with his mobility, taking him to the mosque, community gatherings and social events. Should the applicant’s visa not be restored, the applicant said his whole family would collapse and it would be very hard for his parents.
41. In addition to the applicant’s significant role in his parents’ lives, the applicant also supports his siblings and sees them every day. He described how he is there for them when they need him, drives them around, shops with them and plays an important role as a second father.
42. The strength and nature of the applicant’s ties to his Australian family members was corroborated by the evidence of his mother (Mother X), who gave evidence orally at hearing and in a written statement dated 15 November 2023; and the evidence of the applicant’s wife (Wife X) who also appeared at hearing to give evidence and has provided a written statement dated 15 November 2023.
43. Mother X said that should the applicant’s visa not be reinstated; she could die, and his father could die. She described the emotional affect that the applicant’s visa cancellation has had on her. She said that was unwell and couldn’t sleep or eat because the applicant has young children, and their home country has war.
44. The applicant also has a minor biological son in Australia, 10 years of age, for whom the applicant has parental responsibility (Child X). This is in circumstances where the Department of Communities & Justice has placed the child into the applicant's care on 13 October 2021, removing him from the care of his biological mother. Further details about the impact on Child X are considered under para 8.4(1). However, I do note that this is a significant tie to Australia for the applicant.
45. This primary consideration favours against the discretion being exercised to cancel the applicant’s visa.

The best interests of minor children in Australia affected by the decision

46. Paragraph 8.4(1) of Direction 99 requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.
47. Documents produced under summons from NSW Children and Family Services reports on the “very high-risk case” regarding Child X while he was in the care of his mother and also briefly reports on Child X while in the care of the applicant.
48. In Notes dated 23 November 2021, it is recorded that Child X was settling in ok at school after being placed with the applicant. Child X attends school every day and is on time, has his own lunch, always in school uniform and that the applicant is always at the gate to collect [Child X] of an afternoon.
49. In a Risk Assessment Report dated 17 December 2021, it is noted that the mother of Child X was homeless and transient and suffered from mental health issues and substance/alcohol abuse issues. It was recorded that the mother of Child X was not able to meet his physical care needs and was unable to provide food on a constant basis. If the applicant did not take the role of caring for Child X, he would still be homeless. It is recorded that Child X reported his mother would not allow him to attend school and would not hep him get to school. He also reported that his mother “choked him”, “put glue in his hair”, and “would always hurt him”. Child X reported “mum does not love me and does not want me”. The mother of Child X said she had enough of looking after him and that he now needs to live with the applicant. It is recorded that she did not display any emotion of comfort towards Child X during the assessment.
50. It is noted in the Risk Assessment Report that the applicant demonstrated an understanding of how to meet the needs of Child X, had enrolled him in school and is wrapping supports from the school around him to get him assessed by a [doctor], and the school is working in partnership with [the applicant] to gain an assessment to create a plan on how to support him. Noting here that it appears the school had been observing Child X and noticed he was displaying signs of ADHD and trauma.
51. At hearing the applicant described how he became the carer of Child X. He stated that he was unaware of the conditions in which his son was living, until he received a phone call from child protective services in October 2021. The applicant explained that he wanted to have a relationship with his son from when he was born but his mother made it very difficult and eventually moved away to Wagga Wagga. He described that when he collected his son in October 2021, his son was very skinny and unwell. He said he suffered from a lot of traumas, still had nightmares and that the applicant was trying everything he could to help Child X, including taking him to doctors. The applicant said he had adjusted his working hours (prior to his visa cancellation) to be there for his son, to take him to school, pick him up and take him to sport and other activities such as to the movies. He said he also takes Child X to community events to help him learn about his culture and food. Since being in his care, the applicant said Child X was much healthier but was still emotionally hurt.
52. Mother X stated that when Child X first came into the applicant’s care he was not well and used to scream at night-time. She described the applicant’s relationship with Child X and stated that since being in the applicant’s care he has enrolled Child X in school, makes him lunch, takes him to school, picks him up, encourages him to participate in sports and takes him to the park regularly. Mother X said that the applicant also included Child X in the community by taking him to events.
53. Wife X described that the applicant had a nice relationship with Child X. She said the applicant was a father, friend, and mother for Child X and that he is everything. Wife X said the applicant looks after him by picking him up and dropping him off at school, preparing food that he likes, taking him to football, swimming and bowling. She said that if the applicant’s visa was not restored, she could not imagine the attitude of Child X and said he will not tolerate it as he is attached to him [the applicant] totally.
54. It is plain that it is in the best interests of Child X that the applicant’s visa is restored. Child X suffered a traumatic childhood with his biological mother and the applicant has taken over his care. The applicant appears to be meeting the needs of Child X who is healthy and doing well. While the applicant’s family may be able to step in to care for Child X, if necessary, the evidence strongly indicates that Child X has a strong bond with his father. While Child X’s mother may legally have the right to resume care in the future, there is no available evidence to demonstrate that she is capable or willing to take over care from the applicant should he be removed. Given the child’s traumatic history, and having already lost his mother, any changes to his environment and the stability created while being in care of the applicant, would no doubt affect Child X negatively.
55. The applicant also has a minor biological brother in Australia, 16 years of age, with whom the applicant has a close relationship. The evidence indicates that the applicant cares for his younger brother greatly and tries his best to be a father for him. He said he wants to teach his younger brother to do the right thing and not make the same mistakes he did. The applicant said he was teaching his younger brother to focus on his education. The applicant’s mother stated that the applicant looks after his younger brother by staying close by when he is out with friends and making sure his brother is not spending time with bad influences.
56. The respondent contends that the applicant will not necessarily play a positive role in his minor children's lives in the future given his history of violent offending, including against his biological son's mother, and untreated alcohol use, mental health issues and suspected substance abuse. The evidence however demonstrates that the applicant has being a positive influence on both Child X and his younger brother.
57. This primary consideration significantly favours against the discretion being exercised to cancel the applicant’s visa.

The expectations of the Australian community

58. Paragraph 8.5 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

...

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

59. The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration favours the exercise of the discretion to cancel the applicant’s visa.

Other Considerations

60. Other considerations are set out in Direction 99, at paragraph 9(1). The considerations that are relevant in this case are the legal consequences of the Tribunal's decision and the extent of impediments if removed.

Legal Consequences

61. Having regard to sections 189, 196, and 198 of the Act, along with paragraph 9.1(1) of Direction 99, the legal consequence of cancellation is that the applicant will be liable for removal to Sudan, being detained in immigration detention in the meantime.
62. The applicant is not currently covered by a protection finding, as defined by section 197C of the Act. It is open to the applicant to apply for a protection visa. However, the applicant has raised non-refoulement claims. In particular that "Sudan is going through a civil war. I will be arrested as soon as I enter the Sudanese airport. I will be taken in for interrogations which will also involve torture and other inhumane means of interrogation".
63. The respondent contends that the applicant's claims are contrary to the fact that he returned to Sudan on two occasions since his arrival in Australia including for approximately two months between March and May 2013, and for approximately 10 months between May 2015 and March 2016 and the applicant's parents in Australia returned to Sudan as recently December 2021/January 2022. However, these trips to Sudan occurred prior to the recent civil war, so these contentions have little force.
64. The travel advice from Smartraveller.gov.au for Sudan, current as of 29 October 2023, is Do not travel due to armed conflict, civil unrest, and volatile security situation. The safety advice states that the security situation remains volatile, and violence could escalate with short notice. Overland travel is dangerous, and people should continue to shelter in a safe place. Assaults, home invasions and looting has occurred...there is a threat of terrorism...kidnapping is a serious risk...Medical facilities are basic in Khartoum and inadequate elsewhere.
65. Wife X arrived in Australia in March 2023. She described that the conditions in Sudan were dangerous and that she had to walk for days, with her young daughter, to get safely to the Port so that she could travel to Australia. She gave evidence that her “country no longer exists” and that she had not heard from her family members in Sudan (mother, father, brothers, and sisters) since she left. She has no idea where they are or if they are alive.
66. Considering the claims made by the applicant, wife X and the available country information, there is a possibility that Australia's international non-refoulement obligations apply to the applicant. If the applicant was forced to return to Sudan, he might face significant harm.
67. This consideration favours against the exercise of the discretion to cancel the applicant’s visa.

Extent of impediments if removed from Australia

68. Direction 99 provides, at paragraph 9.2, that:

    (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a) the non-citizen’s age and health;

    b) whether there are substantial language or cultural barriers; and

    c) any social, medical and/or economic support available to them in that country.

69. The applicant is a citizen of Sudan and as such, the relevant country the applicant would be removed to is Sudan. There are no evident language or cultural barriers for the applicant. However, as already stated, there is currently civil unrest in Sudan. Despite the applicant having extended family members in Sudan, and his wife having family in Sudan, it appears that the location and wellbeing of these family members are unknown. They have not been in contact for approximately 6 months.
70. Additionally, the applicant is an adult and suffers from untreated issues with alcohol, anger management and mental health conditions. The DFAT Country Report and the Advice from Smartraveller.gov.au indicates that the health/medical facilities available in Sudan are limited to Khartoum are likely inadequate, particularly in light of the civil unrest.
71. As already detailed in these reasons, the applicant could possibly face serious harm if returned to Sudan.
72. I consider that this factor weighs strongly against the discretion being exercised to cancel the applicant’s visa.

Decision

73. The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of exercising the discretion under subsection 501(2) to cancel the applicant’s visa. I am not persuaded, however, that these considerations outweigh the best interests of minor children in Australia, particularly the applicant’s son, and the applicant’s strength, nature, and duration of ties to Australia. Significantly, in this case, the extent of impediments if removed and non-refoulement issues raised also weigh strongly in favour against exercising the discretion.
74. The decision under review is set aside and in substitution the Tribunal finds that the discretion to cancel the applicant’s visa under subsection 501(2) of the Act should not be exercised.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................
Associate

Dated: 1 December 2023

Dates of hearing:	20 and 21 November 2023
Counsel for the Applicant: Solicitor for the Applicant:	Mr M Morgan Mr E Jahanandish, Legalsy
Solicitor for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers