Chol v Minister for Immigration and Border Protection

STATUTORY CONSIDERATIONS 10 Section 501 of the Migration Act relevantly provides: Refusal or cancellation of visa on character grounds Decision of Minister or delegate-natural justice applies (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). (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister-natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (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: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); 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. (3B) Subsection (3A) does not limit subsections (2) and (3). (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A). Character test (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)); or … (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: … (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more … (emphasis added 11 In short, it follows that a person fails the character test if he or she has a 'substantial criminal record' and such record includes prison sentences of 12 months or more. The power of the Minister is enlivened in respect of Mr Chol who received such a sentence in 2012.

THE MINISTER'S REASONS 12 The Minister made clear in his Reasons that he reasonably suspected that Mr Chol did not pass the character test due to the conviction for aggravated assault causing harm in the District Court of South Australia in Adelaide. The Minister assessed the information set out in the Issues Paper and attachments, took into account factors for and against cancelling the visa and said he was mindful that Australia had a sovereign right to determine whether non-citizens who are of 'character concern' are allowed to remain in Australia. 13 The Minister took into consideration that remaining in Australia was a privilege Australia confers on non-citizens in the expectation that they are and had been law abiding. He noted that Mr Chol's older brother had been a participant in the relevant offending. The victim had been a guest who had come to visit Mr Chol and his brother. Some people had been 'somewhat intoxicated' and Mr Chol began to bully and pester the victim to fight him. When the victim sought to leave, Mr Chol and his brother pursued him some several hundred metres. When they caught up to him, Mr Chol struck him on the head with a baseball bat, fracturing his skull. The South Australian District Court judge sentencing Mr Chol described the offending as 'despicable'. He noted that the offence was aggravated because it was committed with another person and an offensive weapon was used. The Minister also concluded that the sentence Mr Chol had received was a further indication of the seriousness of the offending. 14 Apart from that conviction, the Minister noted that Mr Chol had started his offending as a juvenile, aged 15 years, and had received convictions for offences including damage to property, unauthorised motor vehicle driving, giving false and misleading details to officers, disorderly behaviour, loitering, resisting police, failing to comply with a bail agreement, estreatment of bail, throwing a missile to cause injury or damage to property, and various other offences. He also noted that Mr Chol had been subject to a restraining order for six months. On 12 May 2005, at the age of 15 years, he was restrained from attending or being within 50 metres of the West Torrens Library and from possessing a firearm. Notwithstanding this, on 20 February 2006, Mr Chol was found to have breached the restraining order and was ordered to perform 12 hours community service. The Minister concluded that Mr Chol had a history of offending, which commenced as a juvenile, and had increased in seriousness. 15 The Minister took into account that the judge had considered the content of a psychologist's report which was prepared for sentencing purposes, which indicated that Mr Chol had problems with alcohol and anger management. The Minister noted, on the other hand, Mr Chol's refugee background and the difficulties this had caused him. He had regard to Mr Chol's comments on his personal circumstances which led to his past offending, including his alcohol intake, mental health issues and 'endless family problems'. The Minister did concur with the view of the judge and the psychologist that Mr Chol had good prospects of rehabilitation and had made some progress. In that regard, he had considered the contents of a report from the Department of Corrective Services South Australia dated 27 November 2014 showing that Mr Chol was required to provide urine samples when in prison. He tested negative on each occasion and continued to test negative on all results whilst on parole. He had attended scheduled appointments as directed. The Department of Corrective Services South Australia had indicated that Mr Chol was deemed ineligible for the substance abuse program, given his extended period of abstinence and his confidence in his ability to abstain from substances and to manage his cravings. He had continued to attend Alcoholics Anonymous. The Minister noted that while Mr Chol was referred to Relationships Australia to address his anger management issues, he was advised he was also deemed ineligible for anger management courses and had not undertaken any other rehabilitation courses. Prior to his incarceration, he had been attending counselling sessions with a psychiatrist, but had not taken further sessions since his release. 16 The Minister accepted that Mr Chol was remorseful for his past behaviour. He noted that Mr Chol had a family and a partner in Australia, was involved with the Sudanese community and had aspirations for a future which may assist with rehabilitation. However, the Minister also considered that Mr Chol had reoffended in a non-violent manner after being released on parole on 28 January 2014 and breached several judicial orders so as to demonstrate a disregard for Australian law. 17 The Minister gave 'primary consideration' to the best interests of any children under the age of 18, whose best interests would be affected by cancellation of his visa. Mr Chol, however, had no biological children, although he had two siblings who were minors, aged 16 and 14. They are Australian citizens. The Minister considered the history of Mr Chol's immigration to Australia with his mother and four siblings and the fact that he continued to reside with them after release from prison. The siblings had visited him whilst in prison. Mr Chol considered that he acted as a 'father figure' to the younger siblings and that he assisted the family financially and assisted with his younger siblings as his mother was single. He had subsequently moved out of the family residence, but still assisted his mother. The Minister expressly found that it was in the best interests of the siblings for Mr Chol's visa not to be cancelled so that they could maintain their ongoing relationship with him in Australia. As against that, he considered that their mother was the primary carer and, whilst she was single, she also had another adult child (her eldest daughter) who may be able to assist her. The Minister also noted that Mr Chol had ceased employment in December 2014 and had outstanding debts, which may limit his capacity to assist the family financially. 18 The Minister concluded by recognising the principle that the Australian community would expect that non-citizens who commit serious crimes can and should have their visas cancelled. The aggravated nature of the offence for which he was sentenced for two years and 50 weeks imprisonment were significant factors. He also took into account international non-refoulement obligations and noted that Mr Chol had arrived as the holder of a refugee visa, granted as a dependant of his mother. The Minister noted that Mr Chol had made claims that may give rise to international non-refoulement obligations, namely, fears for his life should he be removed to the RSS. 19 A letter from the Chairperson from the Lakes Community Welfare Association of South Australia raising concerns for Mr Chol's safety should he be returned to the RSS was discussed. The Minister had considered the ITOA Report in relation to Mr Chol and accepted the findings of the report that the cancellation of his visa would not result in a breach of Australia's international treaty obligations. 20 Notwithstanding the findings of the ITOA, should the Minister cancel the visa under s 501(2), Mr Chol would be able to make a valid application for another visa. In particular, the Minister noted that Mr Chol was not prevented by s 48A of the Migration Act from making an application for a protection visa. 21 It was accepted that the visa cancellation would cause Mr Chol's family emotional hardship, although the Minister considered it unlikely to cause significant financial hardship. It was noted that it may cause his girlfriend emotional distress. He recorded his finding that Mr Chol had resided in Australia for over 11 years, had spent some of his formative years in Australia, and had family, school and social ties to Australia. He also noted that he had contributed to the Australian community through his past employment and involvement in the community. He noted, and had regard to the ITOA finding, that Mr Chol would not be accepted as a citizen of Sudan, but was a citizen of the RSS. He also noted that Mr Chol had never lived in the RSS, had no ties to any particular place in the RSS, and, as the whereabouts of the remaining brother in the RSS remained unknown, he could relocate to Juba, the capital of the RSS. 22 The Minister accepted the ITOA finding that there would not be a real risk that Mr Chol would face significant harm in Juba, in the RSS, but he may face, along with other Dinka residents, possible indiscriminate violence or opportunist crimes faced by the population of Juba generally. 23 Mr Chol was unlikely to face any substantial language or cultural barriers if removed to the RSS, being of Dinka ethnicity, which was the largest ethnic group in the RSS. He also noted that Mr Chol spoke English. English is the official language of the RSS. The Minister recorded that Mr Chol's brother, aged 28, had also had his visa cancelled and was awaiting deportation. 24 It was accepted that, if Mr Chol was removed to the RSS, he would suffer hardship in relocating to a country he has never lived in after residing in Australia for over 11 years. The Minister noted that in circumstances of limited support, or in the absence of familiar or social support, he may experience difficulties in securing appropriate accommodation and employment and may experience serious financial hardship. The Minister noted his access to health services and education in Juba, in the RSS, would appear to be limited and he would suffer a significant decline in living standards. The Minister noted that Mr Chol feared for his safety should he be removed to the RSS and that his separation from his Australian family members was likely to cause him emotional hardship. 25 Nonetheless, the Minister concluded that Mr Chol had committed a very serious crime of a violent nature and that he should expect to forfeit the privilege of staying in Australia. The Minister found that the Australian community could be exposed to physical and/or psychological harm should Mr Chol reoffend in a similar fashion. The Minister said he could not rule out the possibility of further offending. The Australian community should not tolerate any further risk of harm. He considered those matters outweighed the countervailing considerations.

THIS APPLICATION 26 The application was supported by affidavits of Mr Chol and Mr Radulovic sworn on 30 November 2015, as well as further affidavits of Mr Chol and Mr Muk each sworn on 5 February 2016. Although objections were taken to parts of the affidavits, in light of my ruling as to the substantive appeal, it is unnecessary to rule on these objections. A draft originating application was also lodged on 4 December 2015. 27 On 23 December 2015, Mr Chol filed and served the amended grounds of Mr Chol's originating application. These grounds were further refined by correspondence received from the solicitors for Mr Chol on 1 March 2016.

Grounds 28 The draft amended grounds of review are as follows (transcribed without amendment): No right of entry and settlement 1.1 At paragraph 50 of the Statement of Reasons (Annexure N to the Applicant's affidavit) ("the Reasons") the Minister said he had "regard to the International Treaties Obligations Assessments ("ITOA") conducted by the Department which determined that (the Applicant) would not be accepted as a citizen of Sudan and found he is a citizen of the Republic of South Sudan. Therefore the ITOA found that (the Applicant) does not have any ties to any particular place in South Sudan and as the whereabouts of his remaining brother in South Sudan remains unknown, he could relocate to Juba, the capital of South Sudan". At paragraph 51 the Minister also accepted the ITOA findings that the Applicant would not face a real risk of significant harm in Juba. 1.2 The ITOA report of 22 January 2015 ("the Report"), upon which the Minister relied, cited country information which said after South Sudan's independence Sudanese people of southern ancestry lost Sudanese citizenship, but the law does not say how they can acquire "de facto" nationality of South Sudan; that the two governments have constantly failed to guarantee southerners basic rights; that South Sudanese who resided outside Sudan were having difficulty in acquiring Southern Sudan citizenship; and that the State authorities denied citizenship to ethnic groups lacking State recognition elsewhere. Nonetheless, since the Applicant is a Dinka Christian, being the largest ethnic group in South Sudan, and these features are common attributes for "many people" who have acquired Southern citizenship, the author of the Report, "is satisfied the Applicant will be accepted as a citizen of the Republic of South Sudan". 1.3 Based upon the country information cited in the Report, it is supposition without any evidential foundation to conclude that the Southern Sudanese government will allow the Applicant a right of entry to South Sudan. Further, even if this eventually occurred the Applicant is likely to spend a protracted time in detention. 1.4 In relying upon the finding of the Report that the Applicant "is a citizen of the Republic of South Sudan", the Minister committed jurisdictional error in that: (a) the issue is whether the Applicant will be allowed a right of entry and settlement in South Sudan and not that the Department finds that the Applicant is a citizen of South Sudan; (b) there is no evidence that the Applicant will be allowed entry and settlement in South Sudan as a citizen; (c) the further finding of the Report that South Sudan will accept him is irrational, illogical and not based upon reasonable inferences especially given the country information referred to in paragraph 1.2. (Re MIMA; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34]). Accordingly the Minister's discretion as to the existence of facts was not based upon a proper self-direction as to whether the Applicant has or will obtain a right of entry to Southern Sudan (MIC v SZMDS 2010 HCA 16 Gummow ACJ and Kiefel J at [21] - [26]); Patto v MIMA 2000 FCA 1554 French J at [38] - [40]). Non adherence to procedural and relocation principles 2.1 The Minister said the Applicant would not be accepted as a citizen of Sudan but found that he is a citizen of South Sudan (Reasons: paragraph 50); conceded that he would be relocated to a country he has never lived in (Reasons: paragraph 54); but that he "could relocate to Juba" the capital of South Sudan. 2.2 The Applicant was notified in a letter dated 23 July 2013 of consideration of possible cancellation of the visa. He was subsequently sent letters by the Immigration Department; and on 15 May 2015 interviewed by telephone prior to the Minister making the decision of 23 June 2015. At no time was the Applicant asked to consider or given the opportunity to comment upon whether relocation to Juba would be reasonable (in the sense of practicable). He has no family, property, residence, education or employment connection within South Sudan. 2.3 S.501(2) of the Act states the rules of natural justice apply to the exercise of the Minister's discretion. Firstly, in failing to notify the Applicant of the proposal to send him to Juba and to give the Applicant an opportunity to comment upon whether it was reasonable, in the sense of practicable, for the Applicant to relocate to a new country and area in which the Applicant had never lived, nor to invite him to comment upon country information used by the Department in that regard, there was a breach of the rules of natural justice and the Minister thereby committed jurisdictional error. 2.4 Secondly, in the light of the Minister's recognition that the Applicant has no ties to Juba (Reasons: 50) the Minister misdirected himself in failing to consider what was "reasonable", in the sense of "practicable", the particular circumstances of the Applicant and what would be "the impact upon that person of relocation" (SZATV v MIC 2007 233 CLR 18 at 27 cited in MIC v SZSCA 2014 HCA 45 at [27] - [32]; Plaintiff M13 - 2011 v MIC 2011 HCA 23 at [22]). Breach of international treaty obligations 3.1 The Minister accepted the findings of ITOA in its Report that cancellation of the Visa would not result in a breach of Australia's International Treaty obligations (Reasons: paragraph 39). 3.2 The Report acknowledged that Australia had non-refouler obligations to the Applicant under article 32 and 33(1) of the Refugee Convention (paragraph 7 of the Report). First, the Report wrongly assessed the Applicant in relation to article 33(1) against South Sudan of which he was not a citizen instead of the Republic of Sudan where he was born and was his habitual residence prior to Australia. Secondly, the Report presumed his acceptance in South Sudan and then did not consider whether it was reasonable and practical for the Applicant to go and live in Juba in the absence of any ties of any kind with that place. 3.3 In adopting the Report's findings that the Applicant's life and freedom was not at risk for a convention reason under article 33(1) of the Refugee Convention without considering: (a) that the Applicant's former place of origin and residence was the Republic of the Sudan in respect of which he would be at risk if he was to be returned there; (b) the reasonableness and practicality of the Applicant being sent instead to Juba; and (c) evidence from the Applicant to explain why he may or would be at risk for a convention reason, if sent to Juba; As to 3.3(a) the Minister misdirected himself, as to 3.3(b) and 3.3(c) the Minister could not fairly without hearing the Applicant "reach a state of non- satisfaction….whether there was an answer to the information" contained in the findings of the Report upon which the Minister relied (Saeed v MIC 2010 HCA 23 at [54]) and thereby jurisdictional error was committed. Risk of reoffending 4.1 The Minister found that the Applicant had committed a very serious crime of a violent nature and should expect to forfeit staying in Australia (paragraph 56). He said he could not rule out the possibility of further offending in a similar fashion (paragraph 57); and that he concluded the Applicant represents "an unacceptable risk" of harm to the Australian community (paragraph 60). 4.2 In examining this risk the Minister recounted the previous criminal history and the Applicant's personal characteristics (paragraphs 19 - 20); and then concluded that if the Applicant reoffended in a similar manner to the aggravated assault it would cause harm to the Australian community (paragraph 29). In so finding the Minister relied upon: (a) A perceived omission by the Applicant to address formally "anger management issues"; and (b) Comments made in 2012 by the sentencing Judge in relation to the aggravated assault. 4.3 Risk of harm is a mandatory consideration in the exercise of the Minister's powers pursuant to s.501(2) (Tanielu v MIBP 2014 FCA 673 at [8]) and also mandatory under the delegates' directions (Direction no. 65 pursuant to s.499 of the Act at Rule 9.1.1 and 9.1.2). Therefore assessing risk of harm required a prognosis as to the likelihood of repetition of prior conduct (Tanielu at [101] - [104]). 4.4 The Minister considered the seriousness of future harm by forming a view about the gravity of past criminal history, but he did not evaluate, by reference to accepted legal principles, the likelihood of the Applicant reoffending in the same way as had occurred in the past. 4.5 In this regard the Minister failed to consider significant rehabilitation factors relevant to the question of risk: (a) That the aggravated assault for which the Applicant was sentenced to imprisonment was committed in 2010 when he was 19, albeit he was not sentenced until 2012; (b) That on 28 January 2014 he was released on parole, and has committed only one relatively minor offence of a non-violent nature since that time which does not support a finding that his offending "has increased in seriousness" (paragraph 17 of Reasons); (c) That the Applicant explained in his letter of 9 February 2015 to the department that it is only as he got older he understood what it meant to be Australian; that he had taken responsibility for his earlier criminal wrong doing; and the past offending is attributable to factors which are no longer applicable; (d) That even in 2012 the sentencing Judge accepted the evidence of a psychologist which showed the Applicant was genuinely trying to adjust and had worthy goals and ambitions. 4.6 In stating he "could not rule out the possibility of further offending" (paragraph 57 of Reasons) the Minister applied the wrong test. 4.7 That the Minister received from his department and therefore relied upon inaccuracies as to the nature and extent of the applicant's criminal record in making his decision. 4.8 That by reason of the matters referred to in paragraphs 4.4, 4.5 and 4.6 the Minister misapplied the relevant legal principles applicable; and by reason of paragraph 4.7 proceeded to make his decision based upon incorrect information as to the applicant's record; and thereby jurisdictional errors were committed. Relief sought 5.1 That the Minister's determination cancelling the Applicant's visa be quashed; 5.2 That the matter be remitted to the Department to determine the matter according to law. 29 Ground 2.2 and ground 2.3, which advanced procedural rather than substantive contentions as to the opportunity to be heard, were withdrawn prior to the oral hearing.

The extension of time application 30 The Minister opposes the application for an extension of time given the delay of four months, but primarily on the basis that the grounds themselves have no prospects of success. The affidavit evidence shows that following notification to Mr Chol on 14 July 2015 that the revocation application was invalid, Mr Chol's solicitors became involved. They accepted a Law Access referral on 30 July 2015. It was assigned to one of the solicitors in the firm who only returned from leave on 24 August 2015. The solicitor then prepared an application to the Administrative Appeals Tribunal (AAT) believing on limited paperwork to hand that it had been a decision of the delegate and not of the Minister. When the full set of papers was provided to the solicitors, further difficulties arose because of Mr Chol's changing offshore detention locations and in finding counsel able to accept a brief in the matter. The difficulty in securing adequate instructions from Mr Chol in offshore institutions was not inconsiderable. Counsel was engaged in mid-November and finalisation and lodgement of the necessary materials occurred on 4 December 2015. 31 There was a delay (which was not particularly lengthy), but it has been explained. I would not refuse the application for extension of time on the grounds of delay alone. Whether I grant the application for the extension will depend on the merits of the grounds of appeal sought to be advanced.

Ground 1 - Admission and settlement in the RSS 32 The Minister explained that he had considered the ITOA Report which determined that Mr Chol 'would not be accepted as a citizen of Sudan'. The Report found instead that he was a citizen of the RSS. Mr Chol appears to contend that the Minister's conclusion that Mr Chol was a citizen of the RSS constituted jurisdictional error in that: (a) the issue was whether Mr Chol would be allowed a right of entry and settlement in the RSS and not whether or not the Department had found that Mr Chol was a citizen of the RSS; (b) there was no evidence that Mr Chol would be allowed entry and settlement in the RSS as a citizen; and (c) the further finding of the report that the RSS will accept him was irrational and not based upon a reasonable inference especially given country information. 33 Specifically, the Department had acknowledged that because Mr Chol was a Dinka Christian and Dinka Christians are the largest ethnic and religious group in the RSS, he would be accepted as a citizen in the RSS. That conclusion was based on information taken from the 2003 family application for refugee visas, together with country information. 34 Mr Chol says a proper reading of the 2012 report constituting the country information in the ITOA Report, 'The Right to a Nationality and the Secession of South Sudan' by Bronwen Manby (the 2012 Report), lends no support to a finding that Mr Chol will be accepted for settlement in the RSS. I note that the 2012 Report referred to in the ITOA Report was a substantially smaller paper dated April 2012, rather than the 2012 Report of the same name and by the same author annexed to the affidavit of the solicitor and the basis of argument for Mr Chol. Mr Chol complains that it follows from the 2012 Report that: it is very difficult for people who have left Sudan to prove entitlement for RSS nationality; following the independence of the RSS in 2011, negotiations between the two governments failed to reach agreement on nationality of those who might have a claim to either State; he does not know whether his relatives have documentation to prove Dinka ancestry and residency; it is particularly difficult for people who left Sudan to prove RSS nationality, and the RSS is yet to establish documentation procedures in any third country; and persons who may be of mixed ancestry will have difficulty in establishing RSS nationality and may be rendered stateless. 35 Although the ITOA Report asserts that Mr Chol is a Dinka Christian, Mr Chol claims there is no analysis of his father or other family member's likely ethnicity. Mr Chol, himself, says he is unsure whether he is pure Dinka Christian. 36 In any event, Mr Chol asserts that, in reliance upon the ITOA Report which found him to be a citizen of the RSS, the Minister misdirected himself as to the correct legal issue, which was whether Mr Chol would be accepted for settlement by the RSS. In merely relying upon the ITOA Report, Mr Chol says the Minister ignored relevant considerations relating to his particular circumstances as to why he would not be accepted and jurisdictional error occurred. He also complains that no consideration was given by the Minister or the Department, nor any inquiry made of Mr Chol, as to whether or not he was of pure Dinka ancestry and, if so, whether documentation was sufficient to satisfy the RSS authority to grant him citizenship. 37 In my view, most of these points actually raise merit review issues on the non-refoulement obligations. As to the supposed wrong legal question, it is clear that the ITOA considered both questions - that is, citizenship and likely acceptance for settlement. In my view, it was open to the ITOA assessor to be satisfied that the RSS will accept Mr Chol as a citizen. This finding has not been shown to be irrational, illogical or based upon unreasonable inferences. The country information referred to in the ITOA Report provided a proper and reasonable basis for the finding by the ITOA assessor of Mr Chol's citizenship of the RSS and for the assessor's satisfaction that Sudan will no longer accept Mr Chol as a citizen of that country. Mr Chol relies upon Patto v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 119 (at [38]-[40]). But that case dealt with the return of a person to a safe third country, rather than to their country of nationality or citizenship. It is implicit in the ITOA Report that if Mr Chol is a citizen of the RSS, he would be allowed entry and settlement in that country. 38 It is not apparent, in any event, how this ground of appeal and the arguments in support can establish jurisdictional error, having regard to the statutory framework of matters for consideration by the Minister, which are quite limited. An erroneous factual conclusion that Mr Chol would be accepted for settlement and citizenship in the RSS in the ITOA Report would not (taken alone) impeach the Minister's findings that cancellation of his visa would not result in a breach of Australia's international treaty obligations. 39 Before leaving this discussion, I should note that judgment in this matter was specifically deferred pending the decision of the Full Court in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105, which at least at a factual level raised questions similar to the questions raised in this case. Judgment was recently given in AZAFQ with the appeal being dismissed. I invited the parties to make submissions if they wished in relation to any effect that AZAFQ may have had. 40 In my view, for the reasons indicated below, there is nothing in AZAFQ that gives rise to a conclusion different from that which I would reach in this matter and nothing in that case which compels me to do otherwise. Indeed, the conclusion reached in this case would appear to be consistent with the conclusion of the Full Court. 41 In AZAFQ, the appellant was born in the north of Sudan. In that case, the Department that conducted the ITOAs concluded that it was satisfied that the RSS would accept the appellant as a citizen if he was returned there and that it was reasonable for him to relocate to Juba, the capital of the RSS. The amended notice of appeal in AZAFQ raised three grounds. The first being that the Court below had erred in finding that the Minister's decision was reasonable in a legal sense, both on the basis of the circumstances of the appellant, including that there was no evidence that the appellant would be granted citizenship of the RSS or be allowed to enter the RSS, and on the basis that there was no evidence that people in the position of the appellant had been removed successfully to the RSS or could be in the future removed successfully and that it was a realistic possibility that the appellant would be required to spend an indefinite period of time in immigration detention due to the inability of his being practically removed to the RSS. 42 The second ground of appeal was that the primary judge had erred in finding that the Minister had considered the specific claim that the appellant was at risk of being detained indefinitely in accordance with ss 189, 196 and 198 of the Migration Act. The third ground of appeal was that the Minister failed to consider the interaction between the appellant's pre-existing status as a refugee and the manner in which the Minister was required to deal with that status in exercising his discretion under s 501(2) of the Migration Act. 43 The appeal in AZAFQ was dismissed, as noted, the Full Court concluding (at [45]) that it was open to the Minister to rely upon the ITOAs regarding Australia's protection obligations to the appellant and to reject his contention that he might remain in immigration detention indefinitely if he could not be returned to the RSS. The Full Court agreed with the finding of the primary judge that the Department's ITOA assessments set out a rational basis for the conclusion that the appellant could be returned to Juba in the RSS. 44 As to the possibility of indefinite migration detention, the Full Court (at [59]) did not accept that the Minister failed to make a finding on the issue of whether or not the RSS would physically accept the appellant were he to be returned to that country and that there was consequently risk that he would be detained indefinitely in Australia in immigration detention. It was noted (at [59]) that the author of the two ITOAs had stated that he was satisfied that the RSS would accept the appellant as a citizen and stated that these findings were made in the context of a detailed analysis and discussion of Australia's non-refoulement obligations, which focused on countries to which the appellant might physically be returned. The Department officer had concluded that the appellant was a citizen of the RSS and that that country would accept him as a citizen. Properly understood, that finding meant that the Full Court held that the Departmental officer was satisfied that the appellant could physically be returned to the RSS. 45 In this instance, Mr Chol asserts in ground 1 that there was no evidential foundation to conclude that the RSS government would allow Mr Chol right of entry to the RSS and that even if this eventually occurred, Mr Chol was likely to spend a protracted time in detention. He also contends by ground 1 that in relying upon the finding in the ITOA Report that Mr Chol 'is a citizen of [the RSS]', the Minister committed jurisdictional error in that the issue is whether the appellant would be allowed a right of entry and settlement in the RSS and not that the Department found that Mr Chol was a citizen of the RSS. This ground also asserts that there is no evidence that he would be allowed entry and settlement in the RSS as a citizen, as well as that the finding of the ITOA Report that the RSS would accept him was irrational, illogical and not based upon reasonable inferences. Accordingly, Mr Chol contends that the Minister's discretion as to the existence of fact was not based upon a proper self-direction as to whether Mr Chol has or will obtain a right of entry into the RSS. 46 The claim in ground 1.4 is then, that in relying upon the finding that Mr Chol 'is a citizen of [the RSS]' the Minister committed jurisdictional error. This ground is misconceived as it ignores the earlier finding of the Department officer that 'I am satisfied that the [RSS] will accept Mr Chol as a citizen' (emphasis added). This is the same finding that was reached following similar analysis by the Department officer in the two ITOAs underlying the appeal in AZAFQ. I am bound by the reasoning in AZAFQ. When viewed in context, it is clear that the finding by the author of the ITOA Report that he was satisfied that the RSS would accept Mr Chol as a citizen went further than merely stating that the RSS would view Mr Chol to be a citizen of that country. Properly understood, that finding meant that the Departmental officer was satisfied that Mr Chol could physically be returned to the RSS. I have also concluded, as in AZAFQ, that it was open to the Minister to rely upon the ITOA Report in this matter regarding Australia's protection obligations to Mr Chol and that the ITOA Report set out a rational basis for the conclusion that Mr Chol could be returned to Juba in the RSS. 47 I have considered the supplementary submissions for Mr Chol in relation to AZAFQ. Those submissions seek to distinguish the conclusions of the Full Court in AZAFQ on the basis that the Full Court said (at [43]) (citation omitted): The appellant's case appeared to depend upon the limb of legal unreasonableness relating to the outcome of the exercise of the power, as opposed to the limb which focuses on an examination of the reasoning process by which a decision-maker arrives at the exercise of power. 48 However, similar to the appeal in AZAFQ, ground 1 in the present case seeks review of the evidential foundation for the finding in the ITOA Report, the conclusion that Mr Chol would be accepted as a citizen, and the rationality, logicality and reasonableness of the finding. That is arguably encompassed within the conclusion of the Full Court, particularly that in [45] and [59]. The Full Court's reference to the limbs of legal unreasonableness is not a relevant distinguishing factor. 49 In my view, ground 1 cannot succeed.

Ground 2 - breach of natural justice 50 The Minister recognised that Mr Chol had never lived in the RSS. He was born in Khartoum (the capital of Sudan). He had left during the civil war. Mr Chol maintained that he was stateless. Mr Chol contended that, while it was for him to satisfy the Minister that his visa should not be cancelled, 'the decision-maker bears the burden of proof of establishing that an analysis of relocation is relevant to the particular case. If considered relevant, it is up to the party asserting this to identify the proposed area of relocation and provide evidence establishing that it is a reasonable alternative for the individual concerned' (citing UNHCR, Guidelines on International Protection No. 4: "Internal Flight or Relocation Alternative" within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees UN Documents. HCR/GIP/03/04 (Jul.23, 2003) at 8 [34]). Mr Chol argued that, as the Department had failed to inform him what was proposed and to allow him to comment upon the reasonableness of a possible relocation to Juba, there was procedural unfairness and jurisdictional error. It is further argued that nowhere in the ITOA Report on which the Minister relied was there an assessment of the reasonableness or harshness of Mr Chol being sent to Juba. Mr Chol refers to M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740 where Hayne J said (at [21]-[22]) that it 'must be considered' whether it is reasonable (in the sense of being practicable) to be relocated, depending on the particular circumstances of the applicant. I note that, more precisely, Hayne J said (at [21]) that '[c]onsideration may be given' to the above (emphasis added). Mr Chol also referred to Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (at [22] and [25]) and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. 51 In Januzi v Secretary of State [2006] 2 AC 426, Lord Bingham said (at [21]): The decision-maker, taking into account of all the circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the client to relocate or whether it would be unduly harsh to expect him to do so. 52 It was clear from the comments made by the Minister that he was aware that Mr Chol contended that relocation would be unduly harsh. Mr Chol also complains that no consideration was given by the Minister to Mr Chol's age, health, his quality of skills relevant to employment prospects or more generally what capacity he had to subsist in Juba. 53 The denial of procedural fairness claim is without merit, in my respectful view. Clearly, Mr Chol's return to Juba in the RSS and its consequences was raised in the ITOA Report on 30 January 2015. Mr Chol was provided with a copy of the ITOA Report by letter dated 3 February 2015 and invited to provide any response within 14 days of receipt of the letter. 54 Mr Chol's response included an email from him to the case officer at the National Character Consideration Centre dated 9 February 2015, and the letter from the Lakes Community Welfare Association of South Australia, which claimed that he was at real risk of being indiscriminately killed or tortured by rival ethnic groups if returned to the RSS. Mr Chol had the opportunity, but made no claim in the email, letter or any other avenue for submissions that it was not reasonable in the sense of practicable for him to relocate to Juba. 55 The High Court authorities referred to above are all concerned with 'internal relocation' in the context of decisions refusing to grant protections visas. They are quite different and have limited, if any, relevance to the circumstances of this case and to the Minister's decision to cancel Mr Chol's visa, due to the unusual situation that Mr Chol's visa was a visa granted on a refugee basis as the Minister was well aware. 56 While the Minister did consider Australia's international non-refoulement obligations, he was not obliged to assess the entitlement of Mr Chol to refugee status applying the principles of internal relocation. This is not a case where it was established that an applicant faced a real chance of persecution in the area of their country of nationality where they had previously lived, but it was reasonable to expect them to relocate within their country of nationality. 57 As with ground 1, Mr Chol's supplementary submissions as to ground 2 largely repeat written and oral submissions previously made on his behalf. The contention in the supplementary submissions that 'regardless of whether the particular visa being cancelled is a protection visa or refugee visa … [Mr Chol's family circumstances] answer the definition of 'refugee' under Art 1A(2) of the Refugees Convention', which is seemingly directed at an argument that the Minister was required to consider relocation principles, should be rejected. As the Full Court in AZAFQ noted (at [65]-[67]) in analogous circumstances: 65 The appellant's contention that he held the status of a refugee was based principally upon the fact that his visa used that term. Reliance was also placed on the fact that his visa had been granted to him on the basis of him being a member of his mother's family unit and that she had been assessed as a refugee. These contentions should be rejected. That is because, as the Minister submitted, there is no evidence that there has ever been a determination that the appellant is a refugee within the meaning of Art 1A of the Refugees Convention or, indeed, under the Migration Act. Nor is there any evidence to substantiate the claim that the appellant's mother had been assessed as a refugee within the meaning of the Refugees Convention, other than an assertion to that effect in one of the submissions made to the Department on the appellant's behalf in opposing the cancellation of his visa. 66 At first glance, it might seem reasonable to assume that the appellant did have that status, having regard to the particular type of visa granted to him, which included the word "refugee" in its title. The same might be said with respect to his mother, assuming that the same visa had been granted to her (which is not entirely clear on the evidence). Not only does the word "refugee" appear twice in the name of the Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa, but one of the primary criteria which needed to be satisfied, both at the time of application and at the time of decision, required an assessment as to whether the primary applicant (in this case, the appellant's mother) was subject to "persecution" in her home country. 67 We accept the Minister's contention that the words "refugee" and "persecution" which appear in the provisions relating to subclass 200 (Refugee) visas should be given their ordinary meanings and not be confined to the particular and narrower meanings of those words as used in the Refugees Convention. It is important to note in this regard that the class of visas known as "protection visas" was, at the relevant time, the subject of s 36 of the Migration Act. At that time, one of the criteria for such a visa was that the applicant be a non-citizen in Australia in respect of whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended. It is plain that the visa which was granted to the appellant was not a "protection visa" within the meaning of s 36 of the Migration Act. As noted above, cl 1402 in Pt 4 of Sch 1 to the Migration Regulations made clear that requirements for the grant of a Refugee and Humanitarian (Class XB) visa were that both the visa application and the visa applicant must be outside Australia when the application is made. This is to be contrasted with a protection visa under s 36 of the Migration Act. 58 The Minister also noted in the Reasons that notwithstanding the findings of the ITOA, Mr Chol was nevertheless able to make a valid application for a protection visa in the event that his visa was cancelled. Mr Chol is still entitled to apply for a protection visa, at which stage consideration of relocation principles would arise. As the Full Court in AZAFQ observed (at [70]): The further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant's visa do not necessarily include removal from Australia or indefinite detention. 59 For these reasons, ground 2 would not succeed if an extension of time were granted.

Ground 3 - breach of international treaty obligation 60 On this topic, Mr Chol notes that while the ITOA Report accepted Australia had non-refoulement obligations not to forcibly return, deport or expel a person to a place where that person is at risk of harm, the Department was not satisfied that Mr Chol had a real chance of being subjected to significant harm 'should he return to [the RSS]'. This is irrational, Mr Chol complains, as he was born in the north (in Khartoum), was raised there, and had never been to any part of what is now known as the RSS. As a person who is of a Dinka Christian origin, his ancestors came from the RSS, but his family fled Khartoum (being in the Arab north) for Egypt, following attempted arrests by the Sudanese authorities. It is evident, therefore, Mr Chol says, that he would not be accepted in Sudan, which was his former place of habitual residence and nationality, and would be at risk of serious harm if it was attempted to return him there. Mr Chol submits that the Minister, in relying upon the ITOA Report, adopted the erroneous view in assessing internal relocation against the RSS, which is neither Mr Chol's former place of habitual residence nor of his nationality. 61 Mr Chol relies on the definition of the term 'refugee' in Art 1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention) which now finds expression in s 5H of the Migration Act. Again, Mr Chol relies upon internal relocation principles, such as those discussed by the High Court in SZATV. Mr Chol argues that the Minister misunderstood the statutory provisions relating to refoulement. The risk of serious harm should have been assessed against Sudan and not the RSS. There had been no proper examination of whether it was reasonable and practicable for him to be sent to Juba for the reason that he would be exposed to a risk of a generalised form of serious harm, not directly linked to a Convention ground. This, Mr Chol says, may engage the doctrine of indirect or constructive refoulement, contrary to Art 33 of the Refugees Convention. 62 Section 36(2B)(c) of the Migration Act did not exclude, Mr Chol says, consideration of serious harm to Mr Chol in Juba for the RSS is not his 'country'. Even if that provision did apply, as the Minister and the Department contend, there would be no reason to assume that Mr Chol would be able to subsist in Juba without recourse to any other part of the RSS, where it is recognised that ethnic conflict would endanger him. 63 Mr Chol's arguments in support of ground 3 overlap with many of the arguments advanced in support of ground 2 and fail for similar reasons. First, it was open to the ITOA assessor to find that the RSS was the relevant country for the purpose of assessing non-refoulement obligations in relation to Mr Chol based upon the country information that was before the assessor. If there was a failure to make an assessment in the ITOA in relation to Sudan, that would not establish jurisdictional error in the Minister's decision, having regard to the fact that: Mr Chol appeared to accept that he is not a citizen of Sudan (saying he was stateless) and could be returned to the RSS; the opportunity had been given to Mr Chol to respond to the ITOA and, in doing so, he did not challenge findings that he was a citizen of the RSS and that non-refoulement obligations would be assessed against that country; Mr Chol failed to make any specific claims that he faced persecution if returned to the RSS; and Mr Chol was able to make a valid application for a protection visa if the Minister chose to cancel his visa. 64 Once again, notwithstanding the fact that Mr Chol had protection under a refugee visa, the Minister was acting under a different statutory provision, being s 501. He was not making a decision in relation to an application for a protection visa, which would require consideration of whether Australia owes protection obligations under s 36(2)(a) and (aa) of the Migration Act. 65 There is a different analysis required in determining whether to cancel a visa under s 501 of the Migration Act: see the discussion in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 per Flick, Griffiths and Perry JJ (at [28]-[29]) where their Honours said: 28 An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia's "non-refoulement obligations". It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub's visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa. 29 As to the latter of the two difficulties, namely an identification of those tasks which remained to be discharged if a "complete" analysis of Australia's "non-refoulement obligations" was to be undertaken, the appellant was unable to identify any information he had advanced for consideration which was not taken into account. And, short of requiring the Minister to make further inquiries and possibly to make further findings of fact by reference to materials not presently placed before him, the Minister had "completed" the tasks presently required of him. For this Court to require the Minister to do more would have the very real potential of propelling the Court impermissibly into merits review and inviting potentially different factual conclusions to be reached upon the basis of different facts. 66 For the same reasons as explained in Ayoub, and for similar reasons as set out in relation to ground 2, ground 3 could not succeed.

Ground 4 - risk of re-offending 67 Mr Chol embarks on the challenging argument that the Minister erred in his assessment of what was an unacceptable risk to the Australian community. The Minister found that Mr Chol had committed a very serious crime of a violent nature and that he could not rule out the possibility of further offending of a similar fashion and that Mr Chol represented an 'unacceptable risk' to the Australian community. 68 By s 499(1) of the Migration Act, the Minister may give written directions to a delegate about the performance of the functions and powers, provided the directions are not inconsistent with the Migration Act. The Minister's discretion is also constrained by reason of the subject, scope and purpose of the Migration Act and certain considerations may need to be taken into account, and, if not mentioned, it may be inferred that these were not considered: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 per Allsop CJ, Buchanan and Katzmann JJ (at [6] and [16]). 69 Mr Chol relies on Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, where Mortimer J considered the nature of the Minister's discretion under s 501(2) and the operation of the predecessor to Ministerial Direction 65 where such direction was used as a guide to ministerial decision-making, as Direction 65 does presently. Mr Chol noted that it was held in Tanielu that the Minister failed to understand properly what was involved under Australian law in assessing risk of harm and that this was a central feature of the Ministerial Direction (see [88]), where her Honour said: In my opinion, the Minister's submission should be rejected. The risk of harm to the Australian community is a relevant consideration in the exercise of the power pursuant to s 501(2). Further, even if I am wrong on the construction of s 501(2), in this particular decision the Minister chose to take risk of harm to the Australian community into account. It is a central feature of the ministerial Direction and it is self-evidently at least a permissible consideration in the exercise of the power under s 501(2). The Minister's reasons for this decision show that he used the Direction as, in reality, the only guide to his decision-making. That being the case, the Minister was required to understand what was involved under Australian law in assessing risk of harm, and to adopt that approach in his decision. He failed to do that and his exercise of power in cancelling the applicant's visa was without jurisdiction for that reason. 70 It is true, as her Honour said (at [90]), that the assessment of risk of future harm is an integral part of the decision, which has a protective aspect. It requires consideration of whether an assessment of risk will come to fruition, and involves assessing the future likelihood of such conduct by reference to both static and dynamic factors. It must be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute. 71 The Minister concluded that Mr Chol had committed a very serious crime of aggravated assault and could not rule out the possibility of further offending. The offending which commenced as a juvenile had increased in seriousness. Mr Chol emphasised the factors favourable to him, which had been identified by the Minister, all of which have been collected in the summary of the Reasons above. But Mr Chol submits that the Minister must have overlooked or misunderstood or failed to consider the following matters: the District Court judge overstated the gravity of Mr Chol's record. Mr Chol did not have 25 previous convictions, nor convictions for assaults against the police, which the District Court judge attributed to him. This was also cited in the Issues Paper before the Minister; the most serious offence was committed in March 2010 when Mr Chol was 19 years old, not 2012 when he was sentenced. There was six years in which there had been no violent offending; and important features characterising his past offending had receded or disappeared, in that there had been a lowering or removal of drug or alcohol dependence, a possibility that anxiety and depression was not continuing and he was ineligible for anger management courses. 72 As observed by the Full Court in AZAFQ (at [49]), although Mortimer J's finding in Tanielu was approved by a majority in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367, the majority there notably did not go so far as to say that the decision-maker was also bound to evaluate the likelihood of a visa holder engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2). In Moana, Rangiah J (with whom North J agreed) said (at [71]) that, while the Minister must consider the risk of harm, 'it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way'. 73 It is unnecessary to consider the 'unresolved tension' discussed in AZAFQ at [49]-[55]) between the majority view in Moana and the observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, as the Minister's Reasons reveal that he did take into account the risk of harm to the Australian community. 74 As to the first point above (at [70]), what is clear, and is important, is that while those errors did occur in the sentencing remarks that was in turn quoted in the Issues Paper, they did not occur in the Minister's analysis of Mr Chol's record. No such error was made in the summary by the Minister in his Reasons. 75 In short, Mr Chol complains that the Minister has been misinformed and misled about the character and extent of the previous offending. Mr Chol notes that the failure by the Minister to take into account an accurate statement of a visa holder's criminal record was held to be jurisdictional error in Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 per Sackville J, Black CJ agreeing. 76 This ground may be disposed of immediately. As indicated above, it is expressly clear from the Reasons that the Minister himself did not rely upon incorrect information as to the criminal record. 77 It is clear that all matters which Mr Chol now seeks to raise were brought to the attention of the Minister and were evaluated and weighed by him. No error is demonstrated. This ground cannot be made out.

CONCLUSION 78 As the review application would have no prospects of success, the application pursuant to s 476A of the Migration Act for an extension of time within which to pursue the review application should not be granted. 79 The application for an extension of time must be refused. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.