JYVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3617 (11 October 2024)

Last Updated: 14 October 2024

JYVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3617 (11 October 2024)

Division: GENERAL DIVISION

File Number(s): 2023/0931 and 2023/0933

Re: JYVT

APPLICANT

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

RESPONDENT

DECISION

Tribunal: Deputy President Britten-Jones

Date: 11 October 2024

Place: Melbourne

The Tribunal sets aside the two decisions of the delegate dated 15 February 2023 and substitutes:

1. a decision to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa; and
2. a decision to not exercise the discretion under s 501(1) to refuse the grant of a Protection visa.

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

Deputy President Britten-Jones

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – Subsequent refusal of a Protection (Class XA) visa under
s 501(1) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – whether the discretion under s 501(1) of the Act to refuse to grant the Protection visa should be exercised – applicant has strong ties to Australia because he arrived when eight years old and has lived the majority of his life in Australia – applicant has been living in the community for 10 months and is unlikely to reoffend – decisions under review are set aside

Legislation

Migration Act 1958 (Cth)

Cases

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 17; (2023) 276 CLR 136

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6

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

Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2

RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876

Secondary Materials

Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

REASONS FOR DECISION

Deputy President Britten-Jones

11 October 2024

1. JYVT (the Applicant) seeks a review of decisions by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent).
2. On 7 July 2016, the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the humanitarian visa) was mandatorily cancelled under s 501(3A) of the Migration Act 1958^[1] (the cancellation decision) because he had been convicted of armed robbery and sentenced to 16 months imprisonment.
3. On 26 March 2018, the Applicant applied for a Protection (Class XA) visa (the Protection visa) which was refused on 15 February 2023 under s 501(1).
4. There are two decisions under review. The first decision (the non-revocation decision) was made pursuant to s 501CA(4) to not revoke the mandatory cancellation of the humanitarian visa. The second decision (the refusal decision) was to refuse his application for a Protection visa under s 501(1).
5. The Tribunal affirmed these decisions on 10 May 2023.^[2] The Federal Court set aside the affirmation and remitted the matter for re-hearing to the Tribunal.
6. Sections 501(6)(a) and 501(7)(c) provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to a term of imprisonment of 16 months for armed robbery on 17 May 2016.
7. The Applicant concedes that he does not pass the character test. The issues before the Tribunal are:

(a) whether the Tribunal is satisfied that there is another reason to revoke the cancellation of his humanitarian visa; and

(b) whether the discretion under s 501(1) of the Act to refuse to grant the Protection visa should be exercised.

8. The hearing was held on 9 October 2024. The Applicant was
   represented and gave oral evidence to the Tribunal. The hearing was originally listed for 25 and 26 September 2024 but the Applicant failed to attend. He explained that his lift did not arrive and he did not have any money for public transport. The hearing was adjourned and the Applicant was lucky to be given another chance.
9. The Respondent noted in his statement of facts, issues and contentions that some significant events have occurred since the last Tribunal hearing:

   (a) The High Court handed down judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005, which held that immigration detention under ss 189 and 196 of the Act for the purposes of removal under s 198 of the Act was not constitutionally permissible where there was no realistic prospect of the non-citizen’s removal from Australia becoming practicable in the reasonably foreseeable future;

   (b) subsequently, the applicant was granted a Bridging (Removal Pending) visa (BVR) on 21 November 2023, and has thus spent about ten months in the community;

   (c) the Minister has made a new Ministerial Direction (Direction 110). The new Direction puts a stronger emphasis on the protection of the Australian community, which is now essentially paramount: it is “generally to be given greater weight than other primary considerations”; and

   (d) the High Court’s decisions in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 17; (2023) 276 CLR 136 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475 have the effect that the Tribunal cannot rely upon any “non-conviction” dispositions recorded in the applicant’s criminal record.

Background Facts[3]

10. The Applicant is a 26-year-old man of Nuer ethnicity, who was born on 6 September 1997. His family are from an area that is now part of South Sudan, the region of Nasir, and are Christians. He has been separated from his mother since he was around five years old. She went to Ethiopia, but the applicant is now concerned about her welfare and is preparing himself for the worst because he has not heard from her for some time. The applicant had no father figure as a child, and eventually discovered, when he was later told by his sister, that his father had died.
11. The Applicant arrived in Australia on 8 December 2005, when he was eight years old. He was accompanied by his older sister and three other siblings.
12. The Applicant’s criminal history is detailed in the police certificate. The Applicant’s visa was mandatorily cancelled on 7 July 2016 on the basis that he was convicted on one count of armed robbery and one count of carrying a firearm as a prohibited person. The Applicant completed his sentence of 16 months’ detention in a Youth Justice Centre and was transferred to immigration detention.
13. In accordance with the High Court of Australia decision in NZYQ, the Applicant was released from immigration detention in November 2023 and was granted a BVR. The last BVR issued to the Applicant on 17 July 2024 did not require the Applicant to wear a monitoring device or to abide by a specified curfew.

Evidence from the applicant

14. The Applicant had a traumatic childhood due to the Sudanese Civil War. He fled Sudan and went to Egypt in 2002, where he also witnessed violence. He came to Australia with his siblings who have all adopted Australia as their home. The Applicant’s older sister, has been his primary carer and he lives with her to this day. The applicant found it very difficult to adjust to life in Australia in particular because of the language barrier and he soon got himself into trouble. However, the applicant was good at soccer and he became a house captain at primary school. From about the age of 13 he started smoking marijuana and then proceeded to alcohol and ice. His sister knew about the alcohol and told him he was drinking too much but she was busy with six children of her own. He was expelled from school at the end of year 10 when they found marijuana in his locker. At that time, he was smoking marijuana every day. He attended TAFE at Dandenong but by that stage he had started smoking ice daily and committing crimes.
15. The Applicant has been outside of the community since late 2015 when he was put into juvenile detention, serving three months in an adult prison before returning to juvenile detention, after which he went into immigration detention from which he was released in November 2023. Upon his release he went to live with his older sister. His BVR had conditions which included a nightly curfew and a requirement to report every day and an ankle monitor. These conditions have been relaxed so that he no longer has an ankle monitor, reports once a week and has no curfew. He has not been able to find any paid employment since he was released but he has been helping a friend with landscaping on a regular basis for experience. More recently he has done some rendering for another friend. He was receiving Centrelink payments up until about a month ago which should resume soon.
16. The Applicant was in a relationship immediately after his release from detention but that ended about two months ago because she cheated on him. He has tried to reach out to her again because she may be pregnant, although the Applicant is not sure about this.

LEGISLATIVE FRAMEWORK

17. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

18. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.^[4]
19. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

    501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

    (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

20. Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6)

...

(6) For the purposes of this section, a person does not pass the character test if:

(a) The person has a substantial criminal record (as defined by subsection (7))

21. Where the cancellation decision is not revoked or a visa is refused, the right to have that decision reviewed by the Tribunal is enlivened.
22. The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
23. For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
24. The principles that are found in paragraph 5.2 of the Direction are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) 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.

(4) 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 measureable risk of causing physical harm to the Australian community.

(5) 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.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.

(7) 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.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

25. Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
26. The primary considerations are:^[5]

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

(2) whether the conduct engaged in constituted family violence;

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

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

27. The other considerations are:^[6]

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on Australian business interest.

28. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.^[7]

CONSIDERATION

Protection of the Australian community – 8.1 of Direction 110

29. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.^[8] As required by paragraph 8.1(2) of the Direction, I give consideration below to:

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

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

The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110

30. The Applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.^[9] The four earliest entries can be disregarded because they proceeded without conviction.
31. The first offences for the purposes of this application were convictions on 4 November 2015 for possession and use of cannabis and stating a false name. The Applicant was discharged without penalty. The Applicant was unable to remember details of this offending, but it is consistent with his evidence about smoking marijuana regularly from an early age.
32. Next there were a series of offences for which the Applicant was convicted on 8 December 2015. These offences involved theft, damaging property, causing injury, resisting a police officer and a series of bail offences. He was ordered to be detained in a Youth Justice Centre for a period of at least six months. The Applicant was unable to remember details of this offending.
33. On 17 May 2016, he was convicted of armed robbery and of carrying a firearm as a prohibited person. These offences took place on 5 November 2015 when the Applicant was 18 years old and affected by drugs. In respect of the charge of armed robbery, the Applicant was sentenced to 16 months’ detention in a Youth Justice Centre. In respect of the charge of carrying a firearm as a prohibited person, the Applicant was sentenced to 4 months’ detention in a Youth Justice Centre, concurrent with the sentence imposed on the charge of armed robbery. The total effective sentence was 16 months’ detention in a Youth Justice Centre. The sentencing judge considered his offending serious and alarming. He described how the Applicant walked up to the victim and pointed a sawn-off shot gun at his head and asked for the keys to his car. This had a traumatic effect on the victim who later took his own life.
34. The Applicant recalled the armed robbery. He was using drugs and alcohol at the time. He recalls pointing the shot gun at the head of the victim and stealing his car. He understands how scary that would have been and he feels disgusted that he acted in that way.
35. The Applicant was subsequently convicted on two counts of theft of a motor vehicle in July 2016 for which he was sentenced to 30 days’ detention in a Youth Training Centre on each charge.
36. On 4 May 2017, the Applicant was convicted of criminal damage by fire (arson) and sentenced to three months’ imprisonment. He was 19 years old at this time and in youth detention where there was a riot. In sentencing the Applicant, the magistrate took into account his guilty plea, that he was still a teenager and that in spite of a very difficult life he was considered to have reasonable prospects of rehabilitation. The magistrate noted that the Applicant was not one of the instigators and that his role in the episode was fairly small but that the offence of arson was extremely serious and setting fire to any premises is a very dangerous act that can risk life and limb.
37. The Applicant is recorded as having been involved in what were described as two minor incidents at Villawood immigration detention centre in 2020.^[10] Further, he was issued with a seizure notice at the Christmas Island detention centre in relation to goods seized on 2 November 2020.^[11]
38. The offending involved violence and damage to property which is very serious. The custodial sentences reflect the seriousness of the offending. The offending was frequent with a significant cumulative effect but I note the relevant offending was limited to a two year period when the Applicant was still a teenager. The last offence occurred in 2017 when the Applicant was 19 years old. The most serious offence was the threatening behaviour with a sawn-off shotgun but otherwise the criminal conduct is less serious.
39. I conclude as to the nature and seriousness of the Applicant’s conduct that it was serious but should be seen in the context of the age of the Applicant, his drug and alcohol abuse and the limited period of offending. Nevertheless, it is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision or whether I should refuse to grant a visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110

40. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.^[12] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:

    (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i) information and evidence on the risk of the non­ citizen re-offending; and

    (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    (c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

41. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.^[13] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110

42. If the Applicant were to engage in further similar criminal offending, the nature of the harm would be serious. By committing acts of violence and arson, the Applicant has caused significant trauma and damage to property. If the Applicant continued to engage in similar conduct it would have serious consequences.

Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110

43. The Applicant has expressed remorse for his offending and has shown in the last 10 months that he is capable of behaving appropriately whilst in the community.
44. A report from the Department of Health and Human Services dated 9 March 2017 was provided to the sentencing magistrate with respect to the arson offence. The report noted that the Applicant adhered to unit rules and expectations without any issues and often proactively refrains from antisocial incidents during his sentence at the Youth Justice Centre. Further, the Applicant had utilised his time well attending all programs that have been offered to him such as psychological, drug and alcohol counselling, hospitality and vocational training unit where he was participating in ground maintenance duties. In summary it was noted:^[14]

[The applicant] is a young man who has recently turned 19 years of age with a significant trauma history. [The applicant] presents as an intelligent and insightful young man who is still processing the loss of his parents and his traumatic childhood experiences. [The applicant] appears motivated to want to make significant life changes and has evidently demonstrated these changes through predominantly prosocial behaviour during his sentence at MYJC, despite his alleged involvement in the matter that comes before the Court today.

45. The Applicant has been diagnosed with PTSD and has abused drugs. These are factors that contributed significantly to his past offending, but the Applicant has expressed insight about this and has started to address these issues by attending relevant programs and receiving counselling. In youth detention the Applicant went to school and attended classes and he has tried to rehabilitate himself by doing courses. He has avoided drugs since 2015 and since his release from detention he only drinks socially.
46. In his most recent written statement, the Applicant said that spending time in youth detention and immigration detention was hard but helped him to break the pattern of bad behaviour that he had settled into prior to his arrest. He said that at the time of his offending he was using drugs and spending time with the wrong people, but he had started to address these issues and now had a support network of positive people around him. Those people include his sister with whom he is living. She is providing the support and stability which has helped the Applicant transition into the community. She has provided a statutory declaration in support of the Applicant which provides details of the difficult life in Sudan and Egypt and when the family first arrived in Australia. The Applicant said that family is extremely important to him and is a huge motivator for him going forward. He knows what it was like to grow up without parents and he does not want that for his own children. Further, he is a religious person which helps him to understand the world and his place in it. He says that he is determined to show that he is no longer a risk to anyone in the community.
47. There are letters from the Ulang Community Association, the All Nations Presbyterian Church and the Youth Support Service in Victoria which speak positively about the Applicant’s engagement with them and offer support to him in the community. In his oral evidence the Applicant said he goes to church and has a good relationship with the priest. He is trying to organise some 5 on 5 soccer games through the church.
48. I consider that the Applicant has commenced taking appropriate steps towards rehabilitation through his activities whilst in detention and through his behaviour in the community. The Applicant has shown maturity and insight into his previous conduct and has support from his family and community groups. The Applicant has proved that he can live in the community without engaging in crime over the last 10 months. During that period in the community, the BVR conditions have been relaxed because of his good behaviour. The Applicant explained how he no longer associates with people from his past and he avoids drugs and only drinks alcohol on special occasions. He has also had the benefit of weekly or fortnightly meetings with a support worker and he has conducted about seven sessions over the phone with a psychologist. He knows that if he relapses into alcohol and drug abuse that his sister would call the police. He understands how important his sister is to him and he wants to maintain is good relationship with her and not let her down. This is a particularly strong motivation for him which suggests that he is unlikely to reoffend, particularly in circumstances where he has avoided problems in the community since November 2023 and his last offending was in January 2017.

Conclusion as to protection of the Australian community – 8.1 of Direction 110

49. The Respondent says that, irrespective of my decision, the Applicant will remain in the community. However, the Respondent submits that the protection of the Australian community is best served by the Applicant remaining in the community but subject to strict visa conditions designed to ensure community safety.
50. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.^[15] The Applicant has committed serious crimes but he has not been convicted of any further criminal offending since his 2017 matter and he has shown himself able to behave in the community for the last 10 months. It is my view that the Applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.^[16] In the circumstances where there remains some risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs against the Applicant but only moderately so.

Family Violence – 8.2 of Direction 110

51. The Applicant has not committed family violence. The Respondent accepts that this factor is neutral.

Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110

52. This primary consideration provides at paragraph 8.3 of Direction 110:

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

53. The Applicant has lived in Australia since he was eight years old. The Applicant experienced difficulties as a youth in Australia but he went to school and did well, becoming a house captain in primary school. He has been in Australia for 18 years which represents the majority of his life. He has no family left in South Sudan, but he has siblings, nieces and nephews in Australia. His sisters have provided statements in support of the Applicant. It is clear that he has a strong relationship with all members of his family who will be very disappointed if the Applicant is not successful on these applications. He maintains strong connections to his family and religious communities. Less weight would be given to these factors because, whatever decision is made, he will remain in the community and be able to continue to develop and enjoy these relationships.
54. In conclusion with respect to ties to Australia, I place significant weight on the fact that the Applicant has spent 18 years in Australia which is almost three quarters of his life. The Applicant has all his family in Australia and has made a contribution to the Australian community through his attendance at school. I conclude that the Applicant’s ties to Australia is a factor that weighs heavily in favour of the Applicant.

Best interests of minor children – 8.4 of Direction 110

55. I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:^[17]

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

56. The Applicant said he has eight or nine nieces and nephews who are minors. In his most recent statement he said that he lived with his sister and her six children (three of whom are minors). He has a strong relationship with them as well as the children of his other siblings. The Respondent accepts that it would be in the best interests of the Applicant’s nieces and nephew to have access to him in the Australian community and for the Applicant to be able to assist his siblings with their children’s development.
57. I consider that it would be in the best interests of these children for the cancellation decision to be revoked and for the visa to be granted, although I note that, irrespective of my decision, the Applicant will remain in the community with access to these children. Consequently, I find that the interests of minor children is a factor that weighs in favour of revocation and grant of the visa but overall I do not give it significant weight.

Expectations of the Australian community – 8.5 of Direction 110

58. 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 remain in Australia.^[18] The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious but at the lower end of the spectrum and I do not consider there is an unacceptable risk of further re-offending. I take into account that the Australian community may afford a higher level of tolerance of the Applicant’s criminal past because he has lived in Australia for most of his life and from a very young age.^[19]
59. Paragraph 8.5(4) of Direction 110 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. In this regard, the High Court recently stated in Ismail v Minister for Immigration, Citizenship & Multicultural Affairs (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) in relation to the equivalent paragraph in an earlier version of the Direction:^[20]

Paragraph 8.4 (“Expectations of the Australian community”) involves an assessment in which the decision-maker is required to consider that the Australian community, as a norm, expects the Australian Government not to allow a non-citizen who has engaged in serious conduct in breach of Australian law to enter or remain in Australia. This assessment under para 8.4 thus focuses on the expectations that Direction 90 itself (by para 8.4(1)-(3), applied as required by para 8.4(4)) instructs the decision-maker that the Australian community holds about the response of the Australian Government to a non-citizen seeking to enter or remain in Australia if they have committed serious breaches of Australian law.

60. Later in its reasons, the Court said (at [51]–[52]):

Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government’s views as set out in para 8.4 “without independently assessing the community’s expectations in the particular case”.

61. In the recent Federal Court decision of RCLN v Minister for Immigration, Citizenship and Multicultural Affairs, Horan J after considering the High Court’s decision in Ismail said:^[21]

The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] –[67] , [74] –[75] (Charlesworth J), [91]–[93], [103]–[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] –[30] (Moshinsky, O’Bryan and Cheeseman JJ). The “degrees of tolerance” referred to elsewhere in the Direction “are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion” (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and “in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences”: FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

62. The Applicant in his statement of facts, issues and contentions at [40] outlined seven factors but these factors are more appropriately dealt with under elsewhere by reference to primary and other considerations.
63. The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious and I find that the Australian community expects that the Australian government should cancel the humanitarian visa and not grant the Protection visa. However, Australia may afford him a higher level of tolerance because he has lived in the Australian community for the majority of his life.
64. This is a factor that weighs in favour of non-revocation of the cancellation decision and not granting a Protection visa, but only moderately so.

Other Considerations

65. In deciding whether to exercise the discretion to refuse to grant a Protection visa or whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 110, but these are not exhaustive.^[22]

Legal Consequences of Decision – 9.1 of Direction 110

66. The Applicant was found by a delegate of the Minister to be owed protection. Therefore paragraph 9.1.1 of the Direction is engaged and non-refoulement obligations are engaged in relation to the Applicant.^[23]
67. Paragraph 9.1.1 of Direction 110 provides:

(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations

68. The provisions of s 197C(3) of the Act and paragraph 9.1.1(2) of the Direction are engaged because the Applicant has made a valid application for a Protection visa that has been finally determined and because a protection finding has been made with respect to the Applicant’s country of nationality. Section 197C(3) applies whether or not either of the two visas have been refused and/or cancelled. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been made by the Applicant. It follows that no weight would be given to any risk of harm that would arise if returned to South Sudan.
69. Bearing in mind the protection finding, were this Tribunal to not restore the Applicant’s humanitarian visa status or, in the alternative, were to exercise its discretion to refuse the Protection visa, the Applicant would not be removed to South Sudan and would remain in the community subject to his BVR.
70. This is not a case where removal or detention is a consequence of affirming the decisions under review. The Applicant will stay in the community if the decisions are affirmed but he will remain subject to the conditions of his BVR. These conditions were recently relaxed, but conditions remain. By contrast, if I find in favour of the Applicant, he will regain his humanitarian visa which will allow him to remain in Australia permanently without the conditions of a BVR. The preferable outcome for the Applicant is a humanitarian visa or potentially a Protection visa (as opposed to a BVR). The legal consequence of potentially remaining subject to a BVR is a factor that weighs in favour of the Applicant, but with limited weight given that the differences in potential outcomes are not as significant as they used to be when removal or further detention were potential outcomes.

Extent of impediments if removed – 9.2 of Direction 110

71. Direction 110 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a) the applicant’s age and health;

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

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

72. The Applicant is 26 years old and in good physical health. He has been diagnosed with PTSD and had a drug problem in the past. He left Sudan as a child and has no close family there. There would be substantial language and cultural barriers if he returned to South Sudan and the support needed for his mental health would be limited.
73. The Respondent accepts that if removed the Applicant would face very significant impediments but submits (correctly in my view) that if there is no prospect of removal, then no weight would be given to this consideration. The Applicant is subject to a protection finding and therefore does not face the prospect of removal to South Sudan. It follows that no or neutral weight would be given to this consideration.

Impact on Australian business interests – 9.3 of Direction 110

74. There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.

CONCLUSION

75. I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision or to exercise the power under s 501(1) to refuse to grant the Protection visa to the Applicant.
76. The primary considerations of the protection and expectations of the Australian community weigh against the Applicant, but only moderately so. The Applicant last offended in 2017 and has proved himself capable of behaving by avoiding further offending in the community over the last 10 months. His good behaviour in the community has been recognised because he is no longer required to wear a monitoring device or comply with a specified curfew. The Applicant had a traumatic childhood. He has stopped taking drugs and has engaged in appropriate rehabilitative programs when in custody so as to address his past trauma and drugs and alcohol abuse. He has good support from his family who are providing a stable environment for him. He has shown that he can reintegrate into society without any issues. In these circumstances, it is unlikely that he will reoffend and he poses very little risk to the community. Whilst the primary consideration of expectations of the Australian community is generally to be given greater weight than other primary considerations, I consider this to be a case where it is outweighed by the Applicant’s strength, nature and duration of ties to Australia which primarily arises from the fact that all his family is in Australia and because he has lived in Australia for the majority of his life from the age of eight.
77. I note that the best interests of minor children and the legal consequences of the decisions are two further factors that weigh in favour of the Applicant, but I have given them very little weight.
78. Having weighed the considerations, the Tribunal sets aside the two decisions of the delegate and substitutes a decision to revoke the cancellation decision and a decision to not exercise the discretion to refuse the grant of a Protection visa.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

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

Dated: 11 October 2024

Date(s) of hearing:	9 October 2024
Counsel for the Applicant:	Dylan Ioannou-Booth
Solicitors for the Applicant:	Refugee Legal
Counsel for the Respondent:	Jonathan Barrington
Solicitors for the Respondent:	Australian Government Solicitor

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^[1] All references to legislation are to the Migration Act unless otherwise specified

^[2] JYVT and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1135

^[3] The background facts are sourced from the applicant’s SOFIC dated 3 September 2024

^[4] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).

^[5] Direction 110 at 8.

^[6] Ibid 9(1).

^[7] Ibid 7(2)

^[8] Ibid 8.1(1).

^[9] Remittal Bundle pages 41 to 43

^[10] Remittal Bundle pages 363 to 370.

^[11] Ibid 407.

^[12] Direction 110 at 8.1.2(1).

^[13] [2014] FCAFC 673; (2014) 225 FCR 424.

^[14] Remittal Bundle 215.

^[15] Direction 110 at 8.1(1).

^[16] Ibid 8.1.2(1).

^[17] Ibid 8.4(4).

^[18] Direction 110 at 8.5(1).

^[19] Ibid 5.2(6).

^[20] [2024] HCA 2, 13 [38].

^[21] [2024] FCA 876, 16 [56].

^[22] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303, 258 [86].

^[23] Paragraph 9.1.1(1) of the Direction.