1. Recent country information concerning Sudan tendered before the Tribunal shows that there is inadequate and insufficient access to primary health care and referral services for 5.75 million internally displaced persons, returnees, refugees and people from affected host communities in Darfur, South Kordofan, Blue Nile and Abyei and east Sudan. There is a low health workforce density in Sudan, particularly in rural areas. Sudan's parliamentary subcommittee on health has stated that 50 per cent of the population has no access to basic drugs, with 79 per cent of people having to pay out of their own pockets to buy medicines due to difficulties facing drug imports.
2. A paper published in May of this year by Ahmed and Ibrahim on the availability of quality health services in government hospitals in Sudan[1] concluded that government hospitals do not offer the necessary supplies for the provision of health services, and do not employ sufficient qualified medical staff, as they prefer to work in the private health sector.
3. A DFAT Country Information Report in relation to Sudan published in April 2016 states at paragraph 5.39 that the main issue facing returnees is the perceived lack of financial support provided for effective reintegration into Sudanese society, particularly in Khartoum. The same document confirms that because of a lack of capacity and resources, Sudanese overall have poor access to health care and poor health outcomes and that seven of Sudan's 18 states are subject to acute malnutrition. The Australian government spent US$4,191 per person on health care and in the same year, Sudan spent US$221 per person. Malaria accounts for 11 per cent of hospital admissions and is the leading cause of morbidity and mortality.
4. It appears from a report published by the Sudan Democracy First Group that Sudan's health and education areas combined were allocated less than 2 per cent of the budget for 2016, compared with 71 per cent allocated to the presidential palace, military expenditures and security.
5. No information is available as to where the applicant would live in Sudan if he is returned there. Up to the year 2000, he lived in a small village on the outskirts of Ad-Damazīn.
6. The applicant has not worked in Australia and presumably could expect to face the same lack of financial support which other returnees experience, as referred to in the DFAT Report. It is clear that, because of his health conditions, there are substantial grounds for believing that there is a real risk of the applicant's death if he were sent back to Sudan.
7. The prospect of the applicant suffering harm if returned to Sudan by reason of the continuing civil unrest in that country is insufficiently proved in the country material tendered before me.

1. Ministerial Direction no. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65) binds the Tribunal under s 499 of the Act and Part C of Direction 65 relates to the manner in which decision-makers should exercise the discretion to revoke cancellation of the visa.
2. The terms of Direction 65 are published and I will not repeat them here. The Principles mentioned in clause 6.3 are to provide a framework within which decision makers (including the Tribunal) should approach their task. Clause 8(4) states that primary considerations should generally be given greater weight than the other considerations. That will obviously not govern every case. Clause 8(5) states that one or more primary considerations may outweigh other primary considerations.
3. Direction 65 is, in relevant respects, similar to Direction 55, which was discussed by Perry J in Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]- [83]; [2014] FCAFC 141; 227 FCR 562. Her Honour concluded that Direction 55 "equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision". The same seems to me to be true of Direction 65.
4. Direction 65 nominates a number of mandatory considerations which must be taken into account when considering the actual circumstances of the case. The Direction does not restrict a decision-maker to those considerations. It is Part C of the Direction which applies in this case. Clause 14(1) states that other considerations must be taken into account where relevant. It lists five such considerations in a non-exhaustive way. As was pointed out by Katzman J in relation to a corresponding clause in the former Direction 55, it is a matter for a decision-maker to determine whether there are any other matters which are relevant, and if so, to take them into account: see SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [86].
5. In this case, the applicant was represented by Ms Burton, solicitor from Salvos Legal Humanitarian, and the respondent was represented by Ms Cannon from Clayton Utz.
6. Ms Burton submitted that in the event that the applicant were returned to Sudan, his life will be at risk. She submitted that if he were returned to Sudan, he would essentially face a death sentence.

1. If the applicant were to be returned to a country where he would be placed in a life-threatening situation, because of the unavailability of medical treatment, that would represent an "other" reason why the reviewable decision should not be affirmed. Also, such a humanitarian concern would significantly affect the expectations of the Australian community (a primary consideration) as to whether the cancellation should be revoked, and would also go to the extent of impediments faced by the applicant if he were removed (an "other" consideration).
2. The findings I have made in paragraphs [2]-[11] above satisfy me that to return the applicant to Sudan would be to expose him to a life-threatening situation. Even in the last six months while he was in detention, he has had three separate hospitalisations of one week's duration or longer. In Sudan he would no doubt face a shortage of money, and public care would reflect what is written in paragraphs above.
3. I turn to the mandatory considerations mentioned in Direction 65.
4. Part C contains a list of primary considerations and a non-exhaustive list of other considerations. Clause 13(1) states that the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Clause 13.1 refers to the consideration of protection of the Australian community, and to the principle that the Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. That involves both the nature and seriousness of the conduct and the risk to the community should the non-citizen commit further offences or engage in other serious conduct.
2. He has a lengthy criminal record. It commences shortly after he arrived here. In the year 2008, he was dealt with for four offences of destroy or damage property, for stalking/intimidate intend fear of physical/mental harm, for two offences of intimidating a police officer in the execution of their duty, and one offence of using offensive language. For those offences he was either fined or given a s 10 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW). In 2009, he was convicted in the Bankstown Local Court of an offence of affray, and was given a s 9 good behaviour bond and put under the supervision of the NSW probation service. In 2010, he was fined for assaulting a police officer in the execution of their duty and for behaving in an offensive manner.
3. In 2011 he was convicted of the offence of affray and sentenced to six months' imprisonment which commenced on 4 January 2011. On 15 March 2012, he pleaded guilty to another charge of affray and sentenced to 12 months imprisonment with a non-parole period expiring on 15 March 2012, so that altogether he then spent 14 months in prison up to that day. The remarks on sentence of Judge Letherbarrow indicate that his affray involved a street fight in the company of another younger person, who attacked the victim with a broken bottle. He was fined later in 2012 for using offensive language.
4. In 2014 he was dealt with by fine for having goods in custody suspected of being stolen and by s 9 bond for stalking and intimidation. This related to an incident in which he intimidated his mother, asking for $200 and threatening to kill her and burn the house down when she refused. That bond was revoked by the magistrate who heard the 2015 proceedings next referred to.
5. In 2015 he was dealt with for five offences committed in 2014 of larceny relating to stolen mail, for dealing with property reasonably suspected of being the proceeds of crime (also being items of mail and a Mastercard), for possessing a prohibited drug, and for having goods in custody suspected of being stolen. His sentence for those offences (aggregated together with the offence involving threatening his mother) was aggregated on appeal to one of 18 months commencing on 20 November 2014, with a non-parole period of nine months, which expired on 19 August 2015.
6. In 2016 he was dealt with for failing to appear in accordance with bail conditions and for common assault, being given a s 9 bond and later in the same year he was found guilty in the Parramatta Local Court of assault occasioning actual bodily harm, and a 12 month sentence of imprisonment was imposed upon him with a non-parole period of six months, which expired in January of this year. The presiding magistrate described the offence as follows:

The incident occurred in a railway carriage. The victim of the assault was sitting in the carriage, the offender approached her. Apparently the victim greeted him because she was acquainted with him, and the accused said to her, "your boyfriend who did the robbery owes me $1,000". The victim at this point is alleged to have said "I don't want to hear about it" and as she said those words the offender swung his arm and struck the victim across the face the force of which caused her to fall backwards. As a consequence she suffered a small cut some 2 centimetres long to the bridge of her nose and police who later attended noticed that she was bruised and there was some blood.

1. In January of this year he was taken into immigration detention. He is still at Villawood at this time. In February of this year he was convicted of a further offence of larceny and was given a s 9 bond.
2. As is apparent, there has been a degree of violence associated with some of the offences.
3. The incident with his mother has not led to a lasting breakdown in their relationship. His mother has visited him at Villawood and the applicant intends, if released, to return to his mother's apartment and look after her needs. She is suffering from a terminal case of cancer.
4. The applicant's state of recollection seems very poor about the earlier offences, and I have treated his record and the findings made by judicial officers as the only reliable evidence concerning his offending.
5. The number of offences committed by him suggest recidivism. He said in evidence that he ceased using cannabis and alcohol after his imprisonment referred to in paragraph [36] above. If so, the later offences cannot be explained on that basis.
6. There is documentary evidence from Villawood in February 2017 that the applicant was stopped from smoking and spoke abusively and aggressively to the Facilities Operations Manager. In June in hospital he threatened self-harm when stopped from smoking. He is recorded as having told Serco staff he "could kill them if he wanted". Later in June he and another detainee were involved in an altercation in the internet room at Villawood. In July he was reported to have behaved in an aggressive manner in the presence of two immigration officers by grabbing paperwork, ripping it up, waving his hands in the air and walking out of the room. Later in July he was involved in an altercation with other detainees about computer use, but no person was hurt or injured. In June, cigarette lighters were found in his room and smoking implements were also found in his room in May.
7. Most of those incidents were described in the reports as "minor". Anger characterises most of the incidents. If the cause is psychiatric in nature, it has not yet been treated.
8. As noted above at paragraph [12], a clinical psychologist who interviewed him in March 2017 stated that he gave a "diagnostic impression of Depression, Anxiety and Post Traumatic Stress Disorder".
9. The possibility that the applicant has a psychiatric condition exists, particularly in the light of the traumatic experiences which he suffered in Sudan, and the loss of his lower legs in Egypt. The remark in that report does not purport to be a diagnosis and was not made after a detailed examination. If he has "Depression, Anxiety and Post Traumatic Stress Disorder", it has not been treated. Whether he has that condition, and if so, whether the anger often associated with it might be treated in some way which might affect his prospects of rehabilitation can only be the subject of speculation as the evidence stands. If he had been assessed by a psychiatrist after the psychologist's report was sent to Villawood in March 2017, more reliable information would be to hand, not only about his condition, but perhaps also about the circumstances which led to his offending.
10. The repeated nature of the offending suffices to show that there is a risk to the community that he will offend in the future. The nature of the offending is not such as to suggest that the risk he poses is of such seriousness that he must be removed from Australia even if such removal means he will face life-threatening consequences because of his state of health.

1. The applicant has no children within the jurisdiction and is not in contact with any children in the jurisdiction, so the primary consideration mentioned in clause 13.2 does not arise.

1. The next primary consideration is the expectations of the Australian community, mentioned in clause 13.3. Notwithstanding his record, it appears to me that our community would not expect that a man who arrived here with a refugee visa, and who is a disability pensioner with the health problems mentioned above, regularly requiring good health care, and who has been dealt with for his crimes, were now to be sent to a country where the level of health care is minimal, and whose life would thereby be threatened.

1. The first "other" consideration mentioned in clause 14 is the non-refoulement obligations which Australia owes by the treaties mentioned in clause 14.1(1).[2]
2. That is a duty owed by this country under treaties, and is not enforceable by the persons whom Australia has undertaken to protect. It appears amongst a list of discretionary considerations as one of the matters which it is mandatory to take into account.
3. Whether a non-refoulement obligation is owed in respect of the applicant at the present time has not been investigated by the Minister.
4. Clause 14.1(2) states that Australia will not remove a non-citizen to a country in respect of which a non-refoulement obligation exists. This means, it seems to me, that Australia will never do so.
5. The advice given in clause 14.1(2) is not consistent with s 197C of the Act as interpreted by North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448. In that case, a person to whom non-refoulement obligations were found to be owed was refused a protection visa. The Minister decided that such a person would not be removed from Australia and, like Direction 65, contemplated that they may face indefinite immigration detention. North ACJ held that contrary to the reasoning of the Minister, unless the Minister elected to grant him another visa, under s 195A of the Act, there would be a duty arising under s 197C to remove him to Syria. In other words, that which clause 14.1(2) says will never occur (a proposition repeated in clause 14.1(6)) was held to be contrary to the dictates of s 197C.
6. The Minister submits that because of the possibility that the Minister might grant a protection visa to the applicant, it is not necessarily the case that the applicant will be returned to Sudan if the decision to refuse to revoke the cancellation of his refugee visa is affirmed. North ACJ did not decide anything to the contrary of that proposition.
7. Therefore the Minister submits, it is not necessary for the Tribunal to decide whether non-refoulement obligations are owed in respect of the applicant, because the existence or otherwise of non-refoulement obligations will then be tested. That raises the decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96.
8. It was there pointed out that a protection visa might be refused even if a non-refoulement obligation were owed in respect of the applicant. Taken together with the decision of North ACJ in DMH16, that would mean that the duty of removal in s 197C would be enlivened, even if a non-refoulement obligation were owed in respect of the non-citizen if the protection visa were rejected.
9. The respondent submits that BCR16 was wrongly decided. As I understand it the submission is based upon alleged inconsistency between earlier Full Court decisions and BCR16.
10. It is wholly inappropriate for this Tribunal to be considering such a matter. If an intermediate appellate court resolves to depart from one or more of its earlier decisions, it will be the later decision which binds. The Full Court in BCR16 itself gave consideration to the earlier decisions in the Minister's submissions and to the extent thought necessary and appropriate, departed from them.
11. Before Jagot J in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131, the submission that BCR16 was wrong was not made, but rather an attempt was made to distinguish it. The Minister has now sought to go further before the Tribunal.
12. The advice in clause 14.1(6) about indefinite immigration detention may also be incorrect in law, because indefinite executive detention would raise questions of constitutionality discussed by the High Court in cases such as Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; 110 ALR 97. See also the discussion in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 at [25]- [26]; [2014] HCA 34; 253 CLR 219; 312 ALR 537.
13. Similarly, indefinite detention may be illegal under the Act. Compare Plaintiff S4/2014 at [27]-[35].
14. If, as is envisaged by clause 14.1(6), indefinite immigration detention were the consequence of refusing to revoke a visa cancellation, that would raise questions of double punishment, and in many or perhaps all cases, itself suggest a discretionary reason to revoke the visa cancellation.
15. Clause 14(1) proceeds on the basis that if non-refoulement obligations were owed by this country under treaties in respect of the non-citizen, then Australia would not act in breach of those treaties.
16. No Ministerial determination has been made about whether non-refoulement obligations are owed in respect of the applicant, and it is impracticable for any such determination to be made either by the Tribunal or by the Department at this stage of these proceedings. The case has to be decided by 26 October 2017 and neither party has put before me submissions about the applicable principles of international law. I have been provided by the applicant with an advisory opinion on the extraterritorial application of non-refoulement obligations published by the UNHCR,[3] which contains material suggesting that such obligations may well be owed in respect of the applicant, but in response to the tender of that document the Minister has made submissions about the possibility of the grant of another visa, rather than making any submissions about the international law questions which arise.
17. If non-refoulement obligations were owed in respect of the applicant, and if he were to fail to obtain another visa, and given that s 197C should be interpreted consistently with the decision in DMH16, a decision-maker may have no choice but to revoke the cancellation.
18. This is a case where it only became apparent earlier this month, that by reason of his health condition, it would be submitted that the applicant's life would be placed at risk if he were sent back to Sudan. It is not practicable to give consideration to Australia's treaty obligations in the present circumstances.

1. In any event, the matters I have set out at paragraphs [3]-[12] above as to the applicant's health and the information known about health care in Sudan show that the applicant would, if returned to Sudan, face a life-threatening situation by reason of his medical conditions, such that there is a very strong discretionary reason to set the reviewable decision aside. That would make it unnecessary to consider any non-refoulement obligations, if they exist.

1. Clause 14.2 refers to the strength, nature and duration of ties. That raises the question of the applicant's ties to his mother, who is now dying of cancer. She has no other relatives in Australia. She is an Australian citizen. Those circumstances also favour setting aside the reviewable decision.

1. Clause 14.5 refers to the extent of impediments facing the applicant if he were removed. Those considerations also favour setting the reviewable decision aside. His state of health and the paucity of medical support which would be available to him in Sudan make that clear.

1. Applying all of the considerations to all of the circumstances of the case, the reviewable decision will be set aside and in substitution, the Tribunal decides the cancellation of the applicant's visa is revoked under section 501CA(4) of the Migration Act 1958.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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[1] Ahmed M.E. and Ibrahim A.O., 'The Availability of Quality Health Service Dimensions in Government Hospitals in Sudan (A Case Study of Teaching Hospitals in Sudan)' (2017), International Journal of Business and Management.

[2] Convention Relating to the Status of Refugees (the 1951 Refugee Convention), as amended by the 1967 Protocol; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights (and its Second Optional Protocol).

[3] Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Published 26 January 2007).