HDTY v Minister for Immigration, Citizenship and Multicultural Affairs

LEGISLATIVE FRAMEWORK 9 According to s 501(3A) of the Act, the Minister must cancel a visa if he is satisfied that, inter alia, the visa holder does not pass the character test due to having a substantial criminal record and serving a full-time custodial sentence. Pursuant to s 501(7), a person is considered to have a substantial criminal record if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more. 10 The Minister may, pursuant to s 501CA(4) of the Act, revoke a mandatory visa cancellation if the person subject to the mandatory visa cancellation makes representations, and the Minister is satisfied that either the person passes the character test, or there is another reason why the mandatory visa cancellation should be revoked. 11 In considering whether there is another reason why a mandatory visa cancellation should be revoked, Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or the Direction) commenced on 15 April 2021 pursuant to s 499 of the Act to guide decision-makers in performing functions under ss 501 and 501CA of the Act. The Direction provides four "Primary Considerations" and four "Other Considerations" which are to be taken into account when making a decision under s 501CA(4) of the Act. 12 The Primary Considerations include: (1) Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1); (2) Whether the conduct engaged in constituted family violence (Primary Consideration 2); (3) The best interests of minor children in Australia (Primary Consideration 3); and (4) Expectations of the Australian community (Primary Consideration 4). 13 The Other Considerations include: (1) International non-refoulement obligations (Other Consideration 1); (2) Extent of impediments if removed (Other Consideration 2); (3) Impact on victims (Other Consideration 3); and (4) Links to the Australian community (Other Consideration 4), including: (a) strength, nature and duration of ties to Australia; and (b) impact on Australian business interests. TRIBUNAL'S DECISION 14 The hearing before the Tribunal took place on 26, 27 and 28 April 2022, after which the Member affirmed the Non-Revocation Decision with written reasons provided thereafter. 15 The Tribunal set out the background to the application at TD[15]: The Applicant was born in what is now South Sudan. According to him, his father was a militia soldier, and his mother abandoned the family when he was an infant, but he reestablished contact with her in around 2018. When he was six years old, he moved to a refugee camp in Egypt with his father and younger brother. In October 2006, at the age of 13, he moved to Australia with his father, brother and stepmother. They initially lived in Sydney, then moved to Canberra in 2011. (Footnotes omitted) 16 The Tribunal detailed aspects of the applicant's offending and the sentencing judge's remarks in relation to the offence which caused the Cancellation Decision: TD[16]-[42]. 17 The Tribunal viewed the offence committed by the applicant as "extremely serious" and considered that there was "a substantial risk that [he] will engage in further criminal or other serious conduct, including of the kind he engaged in when he committed the kidnapping and GBH offence": TD[43]-[64]. The Tribunal concluded that Primary Consideration 1 weighed very heavily against revoking the Non-Revocation Decision. 18 The Tribunal identified five minor children who were relevant to Primary Consideration 3. It concluded that the combined interests of the children warranted very limited weight in favour of revoking the Non-Revocation Decision as each child had a person fulfilling a parental role in their lives and there was no suggestion that the applicant might be called to do that in the future. The Tribunal found that the applicant had had very limited contact with the children due to prolonged periods of absence while incarcerated, however accepted that he had some positive involvement in their lives: TD[67]-[76]. 19 The Tribunal concluded that Primary Consideration 4 weighed very heavily against revoking the Non-Revocation Decision in circumstances where the offence committed by the applicant is "of a kind that is utterly abhorrent to the Australian community": TD[77]-[85]. 20 The Tribunal acknowledged that the applicant claims a fear of harm if he returns to South Sudan as his father was a child soldier in the Sudanese war and he belongs to a minority ethnic group: TD[90]. At TD[92], the Tribunal noted the following submission made by the applicant: According to the Applicant, he and his parents are of the Azande tribe. He is not aware of that tribe living in a particular location in South Sudan. He did not provide details of why his membership of the Azande tribe would make him a target. When questioned about this, his answers indicated he was afraid of generalised violence in South Sudan. 21 The Tribunal detailed that the applicant gave evidence that the family avoided danger by moving around but did not identify the nature of the danger that they were attempting to evade. The applicant also told the Tribunal that the government and "rebels" would target him: TD[93]. The applicant said that his father warned him that he would be in "grave danger" if he were to return to South Sudan but did not give him any information including regarding which group he fought for in the war, nor why the applicant would be a target as a result of his relationship with his father: TD[93]. The Tribunal noted that the applicant is Catholic. It stated that he did not claim fear of harm due to his religion until asked about it by the lawyer for the Minister during the Tribunal hearing. The Tribunal therefore did not accept that the applicant genuinely feared harm on the basis of religion: TD[94]. The Tribunal noted various family members who resided, or had resided, in South Sudan, including the applicant's mother and half-sisters, his father's brother, until he passed away, his father's sister who lived there for a period of time and a maternal aunt. It observed that the applicant was not aware that any of those family members had been targeted or threatened: TD[95]. 22 There were four pieces of evidence before the Tribunal that informed its decision making, namely a map sourced from the United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA) titled "Distribution of Ethnic Groups in Southern Sudan" dated 24 December 2009 (OCHA Map), a report from the Department of Foreign Affairs and Trade titled "DFAT Country Information Report South Sudan" dated 5 October 2016 (DFAT Report), a report sourced from the United Nations Security Council titled "Situation in South Sudan - Report of the Secretary-General" dated 26 February 2020 (UNSC Report) and an article by Mike Sanderson titled "Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law" published in the Northwestern Journal of International Human Rights in 2014 (Statelessness Article). 23 The Tribunal set out information from the DFAT Report, the OCHA Map and UNSC Report and other documents relating to the historical and current circumstances in South Sudan: TD[96]-[99]. The Tribunal noted that conflict tends to occur between or within political or ethnic organisations, however, was not satisfied that the applicant's ethnicity would make him a target as he expressed no desire to be involved in any such organisations: TD[100]. The Tribunal considered that on the evidence before it, there does not appear to be a real chance that the applicant would be harmed due to his ethnicity, religion, connection to his father or for any other relevant reason: TD[101]. The Tribunal noted that it was open to the applicant to apply for a protection visa, however, was not convinced that the application would be successful due to the seriousness of the crime committed by the applicant: TD[102]. The Tribunal noted that if a "protection finding" was made, the applicant could not be removed to South Sudan but similarly would not likely qualify for a protection visa, therefore he would be detained unless he asked to be removed to South Sudan, or if he could be removed to a third country, or if the Minister used personal powers to grant him a visa or reside in the community: TD[103]. Ultimately, the Tribunal considered the risk of harm and hardship which would be faced by the applicant due to the unstable security situation in South Sudan and assigned "some weight in favour of revocation": TD[104]. 24 The Tribunal also referred to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 and considered the extent of the decision-maker's obligation to consider protection claims. As stated above, the Tribunal noted that the applicant's criminal offending makes it unlikely that he would be able to obtain a protection visa. In those circumstances, the Tribunal considered that it has accordingly engaged with the applicant's protection claims and allocated the appropriate weight to Other Consideration 1: TD[105] - [107]. 25 In relation to the applicant's citizenship, the Tribunal said the following at TD[108]-[110]: The Applicant claims that he is not a citizen of South Sudan. South Sudan did not exist when the Applicant was born and residing in the area that is now within South Sudan. He has not applied for citizenship since South Sudan came into being. According to an article entitled "Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law," Article 8(1) of the South Sudan Nationality Act 2011 provides that a person shall be considered a South Sudanese national by birth where, among several other grounds, "such a person belongs to one of the indigenous ethnic communities of South Sudan." Therefore, it appears that the Applicant's Azande ethnicity automatically qualifies him for South Sudanese citizenship. According to the DFAT report, certificates of nationality can be issued to an individual of any age, and they are issued on the basis of information provided, with no supporting documentation required at the time of application. The Applicant's parents are both still alive and presumably able to provide information about his ethnicity. I am satisfied that the Applicant is a citizen of South Sudan and that he would not have difficulty establishing that. (Footnotes omitted) 26 The Tribunal found that Other Consideration 2 weighed heavily in favour of revocation of the Non-Revocation Decision, noting that the challenges faced by the applicant would not prevent him from establishing himself in South Sudan and meeting basic living standards, but accepted that life in South Sudan itself would be "very difficult": TD[111]-[128]. 27 The Tribunal considered that Other Consideration 4 weighed moderately in favour of revoking the Non-Revocation Decision by reason of his connection to Australia: TD[130]-[138]. 28 Primary Consideration 2 and Other Consideration 3 were not relevant to the determination of the application. 29 The Tribunal concluded that the considerations weighing in favour of revocation did not, even in a combined sense, sufficiently outweigh Primary Consideration 1 and 4. Therefore, the Non-Revocation Decision was affirmed: TD[139].

EXTENSION OF TIME 30 The Tribunal affirmed the Non-Revocation Decision on 11 May 2022 and provided its written reasons on 1 June 2022. The applicant filed his application for an extension of time on 23 August 2023, therefore requiring an extension of over 13 months. According to s 477A(1) of the Act, an application for review of a migration decision to this Court must be made within 35 days of the date the decision is made. Pursuant to s 477A(2), the Court may extend that 35 day period if it is satisfied that it is necessary in the interests of the administration of justice to do so. 31 In considering whether the Court ought exercise a discretion to extend the 35-day time limit, the Court looks at the extent of the delay, the explanation provided for the delay, whether any prejudice would be occasioned to the respondent if an extension were granted, and the merit of the proposed grounds of review: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at 348 - 349. The Court must be satisfied that it is in the interests of the administration of justice that an extension be granted, which often involves an impressionistic assessment of the merits of the proposed grounds of review: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [17]. In some circumstances, it is necessary for the Court to go beyond an impressionistic assessment of the merits of the case where, for example, there is a lengthy delay in bringing the application which is unexplained: Katoa at [18]. In those circumstances, the applicant may be required to show that he has a "strong" or "exceptional" case, and the Court's consideration of the merits need not be confined to what is "reasonably arguable": Katoa at [18]. 32 The applicant has offered no explanation for why he did not file his application within the prescribed time limit, or what caused the delay in the filing of the application. Counsel for the applicant made no contentions regarding these issues but submitted that the ground of review has sufficient merit to warrant the Court exercising its discretion to extend time in this case. 33 For the reasons below, I consider the applicant's case to be sufficiently strong so as to justify granting an extension of time in this matter, notwithstanding the lack of an explanation from the applicant as to the delay. I am satisfied that the Minister will suffer no prejudice if the extension of time is granted. 34 Accordingly, the application for an extension of time is allowed.

CONSIDERATION 35 I am prepared to grant leave to the applicant to rely on the draft amended originating application in the form annexed to the affidavit of Joel McComber affirmed on 24 October 2023. 36 In that application, the applicant advances a single ground of review, being that the Tribunal's finding that the applicant is a citizen of South Sudan is illogical or irrational. This is because the finding was based upon the premise that the Azande people are an "indigenous ethnic community of South Sudan". The applicant contends that there was no evidence to support such a finding. 37 The respondent characterised the error sought to be relied upon as illogicality and irrationality in the sense referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. 38 The applicant's contention was that illogicality based on a finding of fact, in the Li sense, was distinguishable from illogicality in the process of reaching a state of mind. This distinction was discussed in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [84]: The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. In other words, Parliament can be taken to have required that the person who may be affected by the exercise of power founded upon the subjective jurisdictional fact is only to be so affected where the exercise is preceded by the formation of a state of mind in the manner required. It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository's engagement in a process that is not illogical or irrational. Even where the application of logic and rationality might permit of diverse outcomes, it is difficult to accept the Parliament intended that the pre-requisite to the exercise of power could be satisfied through a capricious process. In simple terms, if the state of mind is reached by the toss of a coin, it will not satisfy the subjective jurisdictional fact even if, through a proper evaluation of the evidence and appropriate reasoning, the same conclusion could be reached. The process by which the subjective jurisdictional fact is reached is important. That is especially so in provisions such as s 65 of the Act where the formation of a state of mind actually dictates the exercise of statutory power. 39 It was illogicality and irrationality in this sense that forms the substance of the applicant's argument. 40 The applicant submitted that the process adopted by the Tribunal in reaching the conclusion that the applicant is a citizen of South Sudan was illogical. Whether or not the same conclusion could be reached by a reasoning process not tainted with illogicality or irrationality is irrelevant, as a jurisdictional fact error occurs if the process by which the Tribunal reached its state of mind was illogical or irrational. 41 The applicant submitted that the reasoning process undertaken by the Tribunal to reach the conclusion that the applicant is a citizen of South Sudan was: first, that a person shall be considered a South Sudanese national by birth where such person belongs to one of the indigenous communities of South Sudan; second, that the applicant belonged to the Azande ethnic group; and third, by reason of those two facts the applicant automatically qualified for South Sudanese citizenship. The applicant submitted that belonging to an ethnic group that resides in South Sudan does not necessarily equate to being indigenous to South Sudan, and emphasised the lack of evidence before the Tribunal that went to whether the Azande ethnic group was indigenous to South Sudan. The applicant further submitted that in fact the evidence before the Tribunal, and upon which it relied in its reasons, made it clear that it was uncertain as to which ethnic groups, including the Azende, were indigenous to South Sudan under either "art[icle] 8(1) of the South Sudan Nationality Act 2011 or otherwise within the ordinary meaning of the word". In particular, the applicant referred to the following extract from the Statelessness Article: No guidance is provided with respect to either which ethnic groups are to be classed as "indigenous" for the purposes of Article 8(1)(b) of the South Sudanese law or how membership in a particular ethnic group is to be assessed. 42 Accordingly, the applicant submitted, there is no logical connection between the fact that the Azande ethnic group resides in South Sudan, and the conclusion that Azande is indigenous to South Sudan. The conclusion reached by the Tribunal was simply not open to it upon the evidence, nor was it one to which the Tribunal could come, given its incomplete reasoning process. Therefore, the applicant submitted, the Tribunal's reasoning process was vitiated by illogicality and irrationality. 43 Further, the applicant submitted, from this flows the possibility that he could be stateless and unable to be removed to South Sudan, and thus susceptible to indefinite detention, which is an important issue which was not considered by the Tribunal due to its illogical and irrational finding. 44 The Minister submitted that the following findings based on evidence led the Tribunal to its finding that the applicant is a citizen of South Sudan: The applicant was born in what is now South Sudan: T[15]; He and his parents are of the Azande ethnic group: T[92]; His mother, seven sisters and possibly an aunt live in South Sudan: T[95], [120]; South Sudan was established in 2011: T[96]; Following its independence, the population of South Sudan has been ethnically diverse and included the Azande ethnic group: T[96]; The Azande ethnic group were, prior to the establishment of South Sudan, predominately located in the Western Equatoria region of what is now South Sudan, not far from South Sudan's capital, Juba: T[98]. 45 The Minister submitted that the evidence before the Tribunal was sufficient to at least draw an inference that the Azande ethnic group is indigenous to South Sudan. Therefore, the argument that there was no evidence before the Tribunal upon which it could reach its conclusion, and that there is no logical connection between the evidence and the conclusion drawn cannot be sustained. This is in circumstances where the evidence before the Tribunal rationally supported a conclusion that the Azande ethnic group originated in an area that is now located in South Sudan. Further, the Minister submitted that even if some of the evidence before the Tribunal was uncertain as to whether the Azande ethnic group is indigenous to South Sudan, that does not necessarily mean that irrationality or illogicality occurred in the Tribunal's decision-making process. The Minister also submitted that while it may be accepted that a different decision maker may have made a different decision, it was not the role of the Court to substitute its decision for that of the Tribunal. 46 The Statelessness Article relevantly provides the following information on pages 79-80 and 88: The revised Sudanese law is particularly notable for the dramatic effects of its denationalization provisions. Article 10(2) of the revised Sudanese Nationality Act now provides that "[a] person will automatically lose his Sudanese nationality if he has acquired, de jure or de facto, the nationality of South Sudan." This is particularly significant given what I have suggested elsewhere is the extraordinary breadth of the South Sudanese nationality provisions. Of particular note in this context is Article 8(1) of the South Sudanese Act, which provides that a person shall be considered a South Sudanese national by birth where, among several other grounds, "such a person belongs to one of the indigenous ethnic communities of South Sudan." The striking result of Article 8(1)(b) is that every Dinka and Nuer inside or outside South Sudan will automatically acquire South Sudanese citizenship by operation of law. … While implementing regulations for the South Sudanese law have been promulgated, these remain at a comparatively high level of generality. No guidance is provided with respect to either which ethnic groups are to be classed as "indigenous" for the purposes of Article 8(1)(b) of the South Sudanese law or how membership in a particular ethnic group is to be assessed. The regulations do provide for the use of oral evidence where documentary evidence is either unavailable or inadequate. However, it remains unclear what standards of admissibility will apply with respect to such evidence or the standards of proof that will apply in the context of determination proceedings more generally. This is particularly significant in the context of South Sudan where the history of civil disorder, mass displacement and on-going conflict in the border regions between Sudan and South Sudan mean that many individuals of South Sudanese extraction will have either lost or been unable to obtain appropriate civil documentation. (Footnotes omitted) (Emphasis added) 47 The DFAT Report provides very limited information or reference to the Azande ethnic group, and provides at paragraph 2.9: Following independence, it was estimated that the population was approximately 35.8 per cent Dinka and 15.6 per cent Nuer, with the remainder belonging to smaller ethnic and sub-ethnic groups including Acholi, Anuak, Azande, Bari, Bongo, Bviri, Didinga, Dungotona, Kakwa, Kuku, Lango, Lndi, Mandari, Murle, Ndogo and Shilluk. 48 The OCHA Map is a map of South Sudan which identifies the location and names of ethnic groups residing in South Sudan. It shows the Azande ethnic group located on the south-west border of South Sudan, touching the border of Central African Republic and the Democratic Republic of Congo. 49 As can be seen, the evidence before the Tribunal was limited. Notably, the Statelessness Article states that there is no guidance on which ethnic groups are regarded as indigenous or how one might assess membership of those groups. The DFAT report and the OCHA Map do no more than list the Azande ethnic group as a population located in South Sudan. The evidence of the applicant included that he and his parents are of the Azande ethnic group, and that some family members are living in South Sudan. There is no positive statement from the applicant, or in any of the evidence before the Tribunal that the Azande ethnic group is indigenous to South Sudan. Accordingly, I consider that the process of reasoning adopted by the Tribunal was irrational and unreasonable such as to amount to a jurisdictional error. 50 The Minister conceded that, if error were found to have occurred, materiality of the error is implicit and therefore no further threshold is required to be met: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [33]. I am satisfied that the error was material and the applicant's ground of review is made out.

CONCLUSION 51 For those reasons, the applicant's application is allowed. The Tribunal's Decision will be quashed, and mandamus will be ordered with a direction that the Tribunal re-determine the application according to law. In relation to costs, I note that the applicant's counsel appeared pro-bono. In those circumstances, I will ask that the parties provide the Court a proposed minute of orders in relation to costs within 7 days. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.