MIGRATION - visas - cancellation of visa on character grounds where substantial criminal record - request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) ("the Act")- consideration of Ministerial Direction No. 110 - consideration of ss 501(3A), 501(6) and 501(7) of the Act - violent offending - protection of Australian community - decision under review is affirmed.

Migration Act 1958 (Cth)

AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105.

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.

Minister for Immigration, Citizenship and Multicultural Affairs v HRSN [2023] FCAFC 68.

Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173.

Hands v Minister for Immigration and Border Protection [2018] FCA 662.

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024).

DFAT Country Information Report South Sudan 5 October 2016.

Law No. 26 of 1975 Concerning Egyptian Nationality.

1. Mr Gar was born in a refugee camp in Egypt, and came to Australia when he was six years old on a Subclass 200 (Refugee) visa with his mother and sister. He is now 22 years old. His parents are from what was Sudan, and the Minister for Immigration and Citizenship considers he is a citizen of South Sudan.
2. On 18 December 2023, Mr Gar was convicted of robbery and recklessly causing injury and sentenced to a term of imprisonment of two years. His application for an extension of time to appeal his sentence was refused, with the Court of Appeal finding that no different sentence should be imposed.
3. As a result of his conviction and sentence of imprisonment, Mr Gar's visa was cancelled under s 501(3A) of the Migration Act 1958 ('the Act'). Cancellation under this provision can be revoked if the person can establish either that they meet the character test or because there is another reason the cancellation of the visa should be revoked. Mr Gar sought revocation of the cancellation of his visa, and a delegate of the Minister found that the character test was not met and there was not another reason the cancellation of his visa should be revoked.
4. Mr Gar has applied for a review of the decision not to revoke the cancellation of his visa.

1. Mr Gar is not represented in these proceedings. Between the directions hearing and the hearing of this matter Mr Gar was charged with three counts of causing harm to a Commonwealth public official and one count of threatening to cause serious harm to a Commonwealth public official. He was held at Sunshine Police Station from 16 September 2025 and was transferred to Melbourne Assessment Prison on 30 September 2025, and then to the Metropolitan Remand Centre prior to 17 October 2025. His next court date is 19 December 2025.
2. This caused some difficulty to the Minister in serving on him the hearing book as required by the directions made in this matter. The hearing book and supplementary bundle were provided to Mr Gar prior to the hearing, but as he had a limited opportunity to consider the documents, the hearing was adjourned for a short period to allow him to review the material.
3. It also became apparent that material that had been summonsed from the Department of Justice and Community Safety containing Mr Gar's health records had not been made available. The hearing was further adjourned to 8 October 2025 to allow both the Minister and Mr Gar consider these materials and make further submissions.
4. The Minister had submitted that if Mr Gar were to be removed from Australia, he would be removed to South Sudan, and had provided a reference to the DFAT Country Information Report South Sudan 5 October 2016 ('DFAT report'), which was provided to Mr Gar during the hearing.
5. After the hearing, the Minister obtained further health records from the health provider for immigration detention. These records were provided and a further hearing held on 17 October 2025 for any submissions and further oral evidence on these documents. As Mr Gar had been transferred to the Metropolitan Remand Centre, he had not received these documents. Due to the time frame for the decision, relevant documents were shared on the screen and discussed with Mr Gar at the hearing.

1. Under s 501(3A) of the Act, the Minister must cancel a non-citizen's visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory.
2. The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
3. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This applies no differently to a single sentence in respect of two or more offences than a sentence imposed by a court for a single offence (s 5AB of the Act).
4. A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act.
5. As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa.
6. Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.
7. If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked.

1. Mr Gar has been convicted of four offences on two separate occasions while living in Australia. In May 2023 he was convicted of recklessly cause injury and affray and was sentenced to an aggregate term of 150 days imprisonment. In December 2023 he was convicted of robbery and recklessly causing injury for which he was sentenced to an aggregate term of two years imprisonment.
2. As he has been sentenced to a term of imprisonment of more than 12 months, Mr Gar has a substantial criminal record test as defined in s 501(7)(c) and does not meet the character test in s 501(6)(a) of the Act.
3. The remaining issue is whether there is another reason the cancellation of his visa should be revoked.

1. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.

1. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

(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 measurable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1]

1. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

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

(2) The primary consideration ... (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.[2]

1. The Direction contains five primary considerations, which are:

(1) The 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) The expectations of the Australian community.[3]

2. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
3. The primary and other considerations have been considered in turn.

1. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[4]
2. Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in other serious conduct (clause 8.1(2) of the Direction).
3. Mr Gar's offending is described in the sentencing remarks of Judge Hogan. Mr Gar pleaded guilty to one charge of robbery and one charge of causing injury recklessly. The victim was walking home when approached by Mr Gar and his co-accused, and the co-accused demanded he hand over his phone and wallet. When he refused the co-accused hit him and he fell to the ground. Mr Gar and the co-accused attacked the victim who lost consciousness. Mr Gar and the co-accused took the victim's phone and left him lying unconscious.
4. The attack was recorded on CCTV, and Judge Hogan describes Mr Gar kicking and punching the victim while the victim was motionless and on the ground. While the victim was apparently unconscious, both Mr Gar and the co-accused are recorded going through his pockets.
5. Judge Hogan states at the time this offence occurred Mr Gar was on bail for recklessly causing injury and affray, for which he was later convicted and sentenced to 150 days imprisonment as time served. This involved Mr Gar approaching the victim from behind and without provocation punching him several times. The victim suffered multiple facial fractures.
6. He was also subject to a family violence intervention order following an alleged aggravated assault and threatening to inflict injury to two of his sisters in April 2022. He was not convicted of these offences, and the matter was adjourned. The circumstances were described by Judge Hogan as Mr Gar being angry with his eldest sister for being in the bathroom. His younger sister intervened, and he pushed her to the bed and punched her to the side of the face. He threatened his sisters that he would stab them as he pointed a kitchen knife in their direction. His eldest sister's children, aged three and eight years old witnessed the behaviour before police arrived. On being interviewed by police, Mr Gar said his actions were reasonable and that he had permission from himself to threaten his sisters with a knife.
7. At the hearing Mr Gar maintained his actions towards his sisters was reasonable and acknowledged he had pushed his younger sister and pointed a knife at his sisters however denied punching his younger sister. He said he blacked out because he was intoxicated.
8. Mr Gar has been found guilty of prison offences in assaulting other prisoners. He pleaded guilty to assaulting another prisoner on 30 May 2023. The record of interview records Mr Gar assaulted the other prisoner because he felt like it, but at hearing said he did not make any comments about the assault. He was found guilty of another prisoner assault which occurred on 21 March 2024.
9. Mr Gar is currently remanded in custody having been charged with three counts of causing harm to a Commonwealth public official and one count of threatening to cause serious harm to a Commonwealth public official.

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[5] At clause 8.1.1(1) decision-makers must have regard to a range of factors which are considered below.
2. The first is that, without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
   1. violent and/or sexual crimes;
   2. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
   3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
3. Mr Gar has been convicted of crimes involving violence and acts which could reasonably be considered to cause his sisters fear, and which therefore fall within the definition of family violence in cl 4(1) of the Direction. His offending is viewed very seriously by the Australian government and the Australian community.
4. While he is currently charged with offences which are alleged to have occurred in immigration detention, as there is no outcome of these charges at the date of the hearing, they have not been considered further.

1. The sentence imposed on Mr Gar for recklessly causing injury and affray was an aggregate sentence of imprisonment for 150 days.
2. Mr Gar was sentenced to an aggregate term of two years in prison for robbery and recklessly causing injury. He appealed his sentence, however the sentence was affirmed by the Court of Appeal of the Supreme Court of Victoria who found that no different sentence should be imposed. Mr Gar continues to consider his sentence was unreasonable, stating in his request to revoke the cancellation of his visa:

I believe I have been wronged at my sentencing because I received 3 quarters more jail time than my co-deffendent (sic) who was the main offender even though he had a much more serious criminal history than myself. I am obviously not excluding my guilt but I don't see it as fair to cop 3 times the sentence compared to by co-deffendent (sic).

1. A term of two years of imprisonment at a young age is a significant sentence and displays the gravity of the offending.

1. Mr Gar's offending as an adult is short with convictions commencing in May and December of 2023. Given the short period between these offences and the fact that he was on bail for the first set of offences when he committed the second set of offences and his relative youth, there is an aspect of frequent offending, however this is minimal.

1. There are two sets of relevant offences, and there is little cumulative effect of his offending.

1. There is no information before the Tribunal to show the impact on victims, or that Mr Gar has provided false or misleading information or that he reoffended after formally being warned or otherwise becoming aware in writing of the consequences of further offending on his migration status.
2. While the frequency and cumulative effect of Mr Gar's offending is minimal, the overall gravity of the offending as shown by the sentence and the views of the Australian government and Australian community mean that this weighs moderately to heavily in favour of not revoking the cancellation of the visa.

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

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[6]

(1) In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should 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 to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must 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:

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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). ...

1. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[7] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[8]

1. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[9]
2. The risk should Mr Gar engage in similar conduct is physical and psychological injury to general members of the community and to his family members.

Likelihood of the Applicant engaging in further criminal or other serious conduct

1. This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (cl.8.1.2(2) of the Direction)

Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct

1. In sentencing, Judge Hogan quotes from a report of Dr Neilsen, a Senior Clinical Neuropsychology and Forensic Psychologist. As stated by Judge Hogan, Dr Nielsen reports that based on the HCR-20 Mr Gar is a high risk of engaging in future violence, with the most likely risk scenario being largely unprovoked physical violence against people unknown or little known to him. Dr Nielsen also considered he may engage in violence against family members including through use of a weapon. Mr Gar was considered by Dr Neilsen to pose a high risk for serious physical harm. She reports he has violent ideation and fantasies, and this may contribute to violent behaviour when the ambiguous behaviour of others is interpreted as hostile.
2. Mr Gar has been assessed as being a high risk of engaging in future violence against people unknown to him and to his family.

1. Mr Gar was diagnosed with ADHD while in prison and is prescribed medication but is reported by Judge Hogan not to have received much benefit from this treatment. There are varying reports of him experiencing psychosis and being prescribed medication with no effect, and doubt has been expressed about whether he does have any form of psychosis. He has reported ceasing anti-depressant medication while in prison.
2. Mr Gar is reported by consultant psychiatrist Dr Trainor to have symptoms of PTSD and 'overall, he may be better conceptualised as having cPTSD', which I take to mean complex PTSD. Dr Trainor states Mr Gar has psychotic symptoms, but it is unlikely he has a chronic and enduring psychotic disorder, although he has many risk factors.[10]
3. Dr Trainor states Mr Gar's past and present symptoms are consistent with ADHD. Dr Trainor also notes Cluster B personality disorder with impulsivity, self-referential thoughts, mood instability, poor coping skills, interpersonal conflict, easily angered, emotional dysregulation, self-harm, and violence to others.[11]
4. Dr Trainor states that overall Mr Gar has improved, and that nightmares and ADHD symptoms still bother him to a degree, and it is worth optimising treatment. Dr Trainor earlier notes improvement with atomoxetine.
5. Mr Gar is on medication for PTSD and ADHD which he did not have in the community, and this may reduce his risk of further offending. However, in the absence of counselling and rehabilitation programs, I do not consider this will be to a large degree.
6. Mr Gar has completed some educational programs while in prison, and a six hour managing cravings group.[12] Mr Gar was recommended to attend a drug and alcohol rehabilitation course, but states they were not available to him because he was in separation for periods while in prison and could not access courses. He is reported to have failed to complete tests that were preliminary to education courses for which he had applied and refusing to attend the 'Adapt program' and support from the African Visitation and mentoring program.[13]
7. Prison health records show he could not participate in a drug and alcohol program in February 2023 because he was in separation.[14] He completed some units of rehabilitation in February 2023 and February 2025. It was recorded that he was currently separated and not interested in programs, and did not consent to referral for the alcohol and drug program.[15] Mr Gar explained that he could not undertake programs while in separation, and the consent sought was to administer medication to assist with withdrawal which he did not need.
8. Mr Gar has had little involvement in rehabilitation programs, and his involvement with counselling has been to engage in reviews with medical and nursing practitioners. There is no information before me to show he has participated in courses that address anger management or violent behaviour.
9. Judge Hogan states that Mr Gar's time in custody to the date of sentencing had been difficult and onerous due to his aggressive and disrespectful behaviour, which resulted in reduced access to out of cell areas, being placed in a maximum security prison and periods of solitary confinement.
10. Judge Hogan states:

You appear to have burnt your bridges with your family, have no history of engagement in mental health or other rehabilitative treatment in the community, and your attitude of entrenched violence and impulsiveness leads me to assess your prospects of rehabilitation at the current time as being very poor. This does not mean that I am condemning you as a person incapable of rehabilitation. That would be an improper thing for a Court to do especially when you are not yet 21 years old. You have, at times, during your period in custody, undertaken some study and expressed an interest in working. However, you have been behaving in a violent way for a very considerable period of time and, thus far, very little has occurred to address it.[16]

1. Mr Gar in now on medication but has otherwise undertaken little rehabilitation, and the rehabilitation he has completed has not addressed the risk he poses to the safety of others.

1. Mr Gar stated he continues to be in contact with his mother and other family members, however he did not provide any statements from his family members or call them to give evidence. He was vague about his contact with his family generally saying he had contact with his mother and siblings 'a couple of weeks ago', and that he does not have contact with his father or half-siblings on his father's side. In his application for revocation in response to a question about the effect of a negative decision, he said 'I honestly do not know if it would effect (sic) them or have an impact on them even if we are close to each other.'[17]
2. He is reported to have lost contact with his father following living with him for four months and having not spoken to his mother in the year prior to his sentencing while he was in custody.[18] Judge Hogan reports that he is not welcome in his mother's home and has minimal, if any, support in the community.
3. Mr Gar's family is important to him, particularly his mother, however his connection with family members is tenuous and he did not specify any support they could offer to him. His tenuous family connections provide little assurance that this will assist him to manage his behaviour in the community.

Conclusion on the protection of the Australian community

1. Mr Gar has had little rehabilitation due to limited opportunity while in custody, but is receiving medication for ADHD in addition to medication for complex PTSD. Mr Gar has displayed violent behaviour in the short time between turning 18 and being taken into custody. He has continued violent offending in prison and is assessed as being a high risk of engaging in future violence. He has undertaken little rehabilitation.
2. Overall, the high risk to the Australian community of violence and unprovoked conduct result in the protection of the Australian community weighing very heavily in favour of not revoking the cancellation of Mr Gar's visa.

1. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. This is relevant where the Applicant has been convicted of an offence, found guilty of an offence or had charges proven that involve family violence or there is evidence from independent and authoritative sources that he is, or have been involved in the perpetration of family violence, and procedural fairness has been accorded (cl 8.2(2) of the Directions).
3. Mr Gar's criminal records show charges of aggravated assault of a female and two charges of threat to inflict serious injury. The outcome is recorded as without conviction and adjourned to 23 January 2026. [19] The events that led to these charges is the conduct towards his sisters detailed above in the sentencing remarks of Judge Hogan. Mr Gar was ordered to participate in and complete a Men's Behaviour Change program and provide a certificate of completion before the end of the undertaking which was for the period 11 January 2021 to 10 January 2022.
4. Mr Gar said he did not participate or complete this course because he was in custody.
5. This conduct was towards Mr Gar's sisters and can reasonably be inferred to have caused them to be fearful so falls within the definition of family violence in the Direction.
6. This arises from the events on a single day, and there are no other records of conduct that may be family violence. The frequency and cumulative effect are therefore low. However, there is no information before me to show efforts towards rehabilitation for this conduct. Mr Gar maintained at hearing he thought his actions were reasonable, albeit that he did not consider he had punched his sister after he pushed her onto the bed. He does not accept responsibility for his conduct, or the impact it may have had on his sisters or the children who were present at the time.
7. At the time of this conduct, one of his sisters was 16 years old, and that his conduct was directed towards a minor adds to the gravity of his conduct.
8. This factor weighs moderately in favour of not revoking the cancellation of his visa.

THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Clause 8.3 of the Direction requires a consideration of the person's immediate family members who are Australian citizens, permanent residents or who have a right to remain indefinitely in Australia.
2. Clause 8.3 of the Direction provides that:

(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:

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

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

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.

1. In his personal circumstances form, Mr Gar lists his parents, six brothers and five sisters. He states he does not know if a negative outcome for his visa would affect them or have an impact on them even if they are close. His evidence at the hearing was that he did not know what impact it would have on his family if his visa remained cancelled.
2. Mr Gar said he has contact with his mother, having spoken to her a couple of days before he was taken into custody. The sentencing remarks and prison records have little record of contact with his mother, and Mr Gar explained he did not like to have contact with his mother while he was in prison.
3. He said he had contact with his brother Joseph one to two months ago, has not had contact recently with Daniel (referred to as Adam on the form). His sisters Hawa, Monica and Anok he has contact 'here and there'.
4. Mr Gar has a younger brother who is 12 years old, and Mr Gar said he has contact with his younger brother when he speaks to his mother.
5. Mr Gar does not have contact with his father and little contact with his half-siblings on his father's side.
6. Mr Gar's family is important to him, however his links with them are variable and tenuous while he is in custody. He is a young man, and this could change in the future. However, at present there is little evidence of the effect on his family members if his visa remains cancelled.

1. Mr Gar has been in Australia since 2009 when he was six years old. He has limited ties to Australia, however he does have a large extended family including nieces and nephews. He lists five minor nieces and nephews in his request for revocation, and says he is the goofy and playful uncle and sees them occasionally.
2. Mr Gar has not been employed, and there is no information before me of other ties to Australia.
3. There is little weight that can be attributed to his other ties to Australia.
4. Overall the strength, nature and duration of Mr Gar's ties to Australia weigh in favour of revoking the cancellation of his visa.

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under clause 8.4, the Tribunal must make a determination of whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
2. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.
3. Common to all the children is that Mr Gar does not have a parental role. Given Mr Gar's current pathway and risk of future offending, the prospects of him playing a positive role for the children in his life in the future are limited. There are no known views of any of the children, and no information on the effect that separation from Mr Gar would have on the children in his life.
4. There is no evidence of physical or emotional trauma suffered or experienced by the children, however it can be inferred that being present while his sisters were threatened by Mr Gar would cause the two children exposed to this behaviour some distress.
5. Mr Gar has a brother who is 12 years old. As a sibling, his interests may differ from Mr Gar's nieces and nephews. Mr Gar said he has contact with his brother when he calls his mother. Mr Gar has not been in the household following the altercation with his sisters and the imposition of a family violence order. He said his brother was present at the time he threatened his sisters and was named as a protected person in the intervention order. Mr Gar said this has now expired. Mr Gar can maintain contact with his brother by electronic means.
6. Mr Gar's brother Joseph has four children, the eldest is nine or 10 years old, the second eldest five or six years old, the third is four years old and the youngest was recently born. There is little information about his contact with these children or his involvement in their lives.
7. His sister Hawa has one child who is 11 years old and his sister Monica has a child who is eight years old. Monica's child was present at the time he made threats to his sisters, and Mr Gar said she was also named as a protected person in the intervention order.
8. It is accepted that it is generally in the best interests of these children to maintain contact with Mr Gar, and to a greater extent for his younger brother. They are all relatively young, and there is a considerable period over which he could play a positive role with the children. However, two of these children have been exposed to family violence conduct and there is limited information on Mr Gar's involvement in their lives.
9. The best interests of minor children weigh somewhat in favour of revoking the cancellation of Mr Gar's visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
2. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns that include acts of family violence.
3. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. It is not for the Tribunal to itself assess the expectations of the Australian community, the expectations are those set out in the Direction.[20] In this case where Mr Gar has committed offences which give rise to serious character concerns, the Australian community expects that his visa is cancelled.
5. This consideration weighs in favour of not revoking the cancellation of Mr Gar's visa. In circumstances where there is a high risk of unprovoked physical violence towards members of the Australian community and where his conduct includes acts of family violence, this attracts significant weight in favour of not revoking the cancellation of Mr Gar's visa.

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

Legal consequences of decision under s 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[21]
2. In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act.
3. Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove a non-citizen does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
4. In the absence of a protection finding, the legal consequences for Mr Gar are that he must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act. He will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) while in the migration zone. Mr Gar will also be subject to special return criteria that provides for permanent exclusion from some types of visas should he apply for those visas.[22]
5. Mr Gar was under the impression that because he held a Subclass 200 (Refugee) visa he could not be removed from Australia because he is a refugee. This is not the case. As explained in AZAFQ v Minister for Immigration and Border Protection[23] the grant of this type of visa does not mean a finding has been made that the person granted is a refugee. Records of the grant of this visa show his visa was granted under the split family provision. While his mother made claims that she faced harm in Sudan (as it then was) these were not assessed, and no findings were made that either she or Mr Gar is a refugee as they met the split family provisions for the grant of the visa.[24]
6. Mr Gar was also under the impression that if he was removed from Australia, he would be removed to Egypt. A person born in Egypt may be granted citizenship by decree of the Minister of Interior to a person if their ordinary residence has been in Egypt on attaining full age if certain conditions are met.[25] Mr Gar left Egypt when he was six years old and does not qualify for citizenship through this pathway. As he also does not have a parent who is a citizen of Egypt, Mr Gar is not a citizen of Egypt and could not be removed from Australia to Egypt.
7. The respondent submits that Mr Gar is a citizen of South Sudan on the basis of the Nationality Act of 2011 (South Sudan). South Sudan did not exist as a country when Mr Gar's parents left or when he was born. Section 8(1) of the Nationality Act 2011 states that a person born before or after the Act entered force shall be considered a South Sudanese national by birth if:

(a) Any parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or > > (b) Such person belongs to one of the indigenous ethnic communities of South Sudan.

8. There is some ambiguity in (a) above, as Mr Gar's mother was born in Sudan in a time South Sudan did not exist as a country. The Respondent submits Mr Gar's mother was born in a region that is now South Sudan, however at the time of her birth was part of Sudan. Alternatively, as Mr Gar identifies as Dinka, the Respondent relies on the DFAT Report that Dinka is an indigenous ethnic community of South Sudan, comprising approximately 35.8% of the population of South Sudan following independence and he meets paragraph (b).
9. While not without some uncertainty, Mr Gar is a citizen of South Sudan.
10. Mr Gar did not make any representations about being owed protection if there was a prospect of him being removed to South Sudan, having only represented that he could not return to Egypt and that he could not otherwise be removed from Australia because he is a refugee.
11. The Minster submitted that as he had not made representations to be owed protection, this did not require further consideration. This does not end the consideration of this matter. Firstly, Mr Gar asserts he cannot be removed from Australia as a refugee, which itself discloses a claim to be owed protection arising from the materials.[26] Secondly a claim for protection reasonably arises in from a consideration of the DFAT report provided by the Minister. In circumstances where Mr Gar is young, is not represented, is currently in custody with limited access to resources, and has been in custody for a lengthy period of time, we should not stand too on much on ceremony in considering the consequences of a decision.[27]
12. While now some time in the past and dated October 2016, the DFAT report states the humanitarian situation in South Sudan is dire and has been aggravated by a recent escalation in conflict.[28] The DFAT report records that ethnicity is a common cause of societal and official discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual's risk of experiencing official and societal discrimination and violence in South Sudan, and that the Dinka are one of the prominent ethnic groups that are at risk.[29] People who are Dinka are considered to face a lower risk in the capital Juba.[30] This gives rise to a potential claim of non-refoulement.
13. Where a non-citizen has not had a protection finding made, cl 9.1.2 of the Directions sets out matters that may be considered.
14. In this case where there is no determinative evidence of citizenship, Mr Gar has not had the opportunity to fully articulate any claims he may have for protection, and where he had indicated he would apply for another visa to remain in Australia it is appropriate to defer any consideration of any non-refoulment claims he may make to an assessment of an application for a protection visa.
15. This has the consequence that Mr Gar may be detained while his claims are considered. Mr Gar is currently remanded in custody for an unknown period of time. If released from remand, he will return to immigration detention, which imposes an additional hardship.
16. Overall, the legal consequences of the decision weigh in favour of revoking the cancellation of Mr Gar's visa.

1. The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia to their home country, in establishing themselves and maintaining basic living standards taking into account the Applicant's:
   • Age and health;
   • Whether there are substantial language or cultural barriers; and
   • Any social, medical and/or economic support available to them in that country.
2. It is assumed for this assessment that Mr Gar would be removed to South Sudan as this is the country which he most likely a citizen.
3. Mr Gar is 22 years old. He has ADHD, complex PTSD and some inconclusive indications of a psychotic illness. He also complains of pains in his neck but has not seen a doctor about this complaint. The Respondent does not dispute he has ADHD but disputes that Mr Gar has complained of a neck injury as there is no record of this complaint. The Respondent also disputes that he has complex PTSD.
4. Little turns on whether Mr Gar has an injury to his head or neck, and pain being a subjective experience, do not exclude this from consideration. Given Mr Gar's history of physical altercation in prison and immigration detention, it is not unlikely he has an injury. There is little information on the effect of this on Mr Gar, but he could sit, stand and walk with no apparent effort during the hearing.
5. In relation to the diagnosis of complex PTSD, I do not accept the submission that a lack of reported symptoms at a particular point in time results in a conclusion that he does not suffer this condition given the opinion of psychiatrist Dr Trainor.
6. In relation to all conditions the Respondent states that as there are records of Mr Gar missing medication and appointments on occasion, any impediment to him resulting from the lack of health services in South Sudan would not materialise.
7. While Mr Gar's compliance with treatment and appointments is patchy, he has generally continued to engage with health services and take medication, and I do not accept that he would not continue to access health service and take medication if these were available to him. This is unlikely if he is removed to South Sudan.
8. Mr Gar has never been to or lived in South Sudan and while he speaks Dinka with his mother, he will have significant cultural barriers if removed from Australia to South Sudan. He would not have any social or economic support in South Sudan.
9. The DFAT report states South Sudan's economy is weak and underdeveloped[31] that its population has extremely poor access to health care,[32] and health care is deteriorating following worsening conflict and economic situation.[33]
10. The Respondent relies on Mr Gar having had some education in Australia to year 10. In circumstances where it is reported that 76% of households in South Sudan survive on subsistence activities and informal trade[34] it is difficult to see how this education will assist him.
11. There are significant health, cultural and employment barriers to Mr Gar if he is removed to South Sudan, and his factor weighs heavily in favour of revoking the cancellation of his visa.

1. Clause 9.3 provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. There is no information before me of any impact on Australian business interests, and this factor does not weigh for or against revoking the cancellation of Mr Gar's visa.

1. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs_[35]_ ('CRNL') said '[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.'[36]
2. In undertaking this exercise, greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[37]
3. Mr Gar has been in Australia since he was six years old and is still a young man at 22 years of age. He is a citizen of South Sudan but has never lived in South Sudan and was born in Egypt. His circumstances should he be removed to South Sudan would be poor due to the economic conditions, lack of health services and potential violence, and the impediments should he be removed attract heavy weight in favour of revoking the cancellation of this visa. His family are in Australia, and his ties to Australia weigh in favour of revoking the cancellation of his visa. His younger brother is a minor, and he has minor nieces and nephews, and their interests weigh somewhat in favour of revoking the cancellation of his visa. The legal consequences of the decision weigh in favour of revoking the cancellation of the visa as if he is released from remand he will be detained and removed from Australia unless he applies for a protection visa, which he has indicated he will do. If he applies for a protection visa, he faces continued detention until a decision is made on his application, and the legal consequences weigh somewhat in favour of revoking the cancellation of his visa.
4. Mr Gar has been convicted of violent offences and remains a high risk of violent offending, and the Direction states that the protection of the community is the highest priority of the Australian government. Given the high risk of Mr Gar reoffending and the nature of the harm should he reoffend, this weighs very heavily in favour of not revoking the cancellation of his visa. The Australian community would expect his visa to be cancelled, and attracts significant weight in favour of not revoking the cancellation of his visa. Mr Gar's conduct towards his sister, being acts of family violence, also weighs in favour of not revoking the cancellation of his visa.
5. In this case, the primary considerations and in particular the protection of the community are given greater weight, and I do not consider there is a reason that general approach should not be adopted. Overall, the factors that weigh in favour of not revoking the cancellation of Mr Gar's visa outweigh those in favour of revoking. As a result, another reason the cancellation of his visa should be revoked has not been established, and the decision under review is affirmed.

[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 ('the Direction').

[6] See also the Direction, cl 8.1(2)(b).

[20] Minister for Immigration, Citizenship and Multicultural Affairs v HRSN [2023] FCAFC 68.

[22] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.

[23] [2016] FCAFC 105.

[25] UNHCR The UN Refugee Agency, Law No. 26 of 1975 Concerning Egyptian Nationality, (English Translation of Law No.26 of 1975 Concerning Egyptian Nationality, 29 May 1975), Art. 4 .

[26] Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 [63] - [68].

[27] Hands v Minister for Immigration and Border Protection [2018] FCA 662.

[35] [2023] FCAFC 138.