Migration Act 1958 - s 501 - s 501(3A) - s 501CA(4) - s 501(6) - s 501(7)

Direction No 65 - Migration Act - Direction under section 499 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA - Part C - 6.3 - 7(1) - 8(1) - 13.1(1) - 13.1.1(1) - 13.1.2 - 13.1(2) - 13(2)- 13.2(4) - 13.3(1) - 14(1) - 14.1 - 14.1(4)- 14.2(1)(a)

1. Mr Jal seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister), dated 5 April 2016, refusing revocation of the mandatory cancellation of Mr Jal's Class XB Subclass 200 Refugee and Humanitarian (Permanent) visa pursuant to the discretion in s 501CA(4) of the Migration Act 1958 (the Act). Mr Jal's visa was cancelled pursuant to s 501(3A) of the Act because he does not pass the character test in s 501(6) of the Act because he has a "substantial criminal record" within the meaning of s 501(7) of the Act.

1. Mr Jal is a 22 year old citizen of South Sudan. Following a period spent in a refugee camp in Kenya, Mr Jal arrived in Australia, on 12 April 2006 (then aged 12 years old), on a Class XB Subclass 200 Refugee and Humanitarian (Permanent) visa. Mr Jal has remained in Australia ever since.
2. Mr Jal has a significant criminal history which commenced as a juvenile less than 2 years after his arrival in Australia (on 12 April 2006) and comprises 26 offences committed as a juvenile and 22 offences committed as an adult. His convictions include several offences of violence, burglary and other property offences, attempting to pervert the course of justice, wilful damage and breaches of bail. A table detailing Mr Jal's criminal history is set out in "Attachment 1" to these Reasons for Decision.
3. On 19 October 2012, Mr Jal was sentenced by the Midland Magistrates Court for:
   • Assault occasioning bodily harm - 8 months imprisonment;
   • Without lawful excuse trespassed on a place - 2 months imprisonment; and
   • Wilfully and unlawfully destroy or damage property - 3 months imprisonment to be served concurrently.
4. On 11 June 2013, the Department of Immigration and Citizenship (the Department) decided not to cancel Mr Jal's visa and instead issued him with a formal warning which reads:

Mr Jal's repeated violent offending has been regarded very seriously. While Mr Jal's background as a refugee gives some understanding into the challenges he has faced since arriving in Australia, he needs to be clear that this kind of behaviour is completely unjustified and unacceptable to the Australian community. Mr Jal should also remain aware that his future stay in Australia is a privilege, not a right, and any further criminal convictions could lead to cancellation of his visa in the future.

1. On 23 October 2014, Mr Jal was sentenced by the District Court of Western Australia to 16 months imprisonment for aggravated burglary and commit offence in dwelling and 6 months imprisonment for attempt to pervert justice, to be served concurrently. A few days later, on 27 October 2014, Mr Jal was sentenced by the Perth Magistrates Court, to 12 months imprisonment for assault occasioning bodily harm, 10 months' imprisonment for aggravated burglary and commit offence in place, and 2 terms of 3 months imprisonment for respective convictions of stealing motor vehicle, with all terms of imprisonment imposed on this date to be served concurrently.
2. On 9 September 2015, Mr Jal's visa was cancelled by the Minister under s 501(3A) of the Act. This was a mandatory cancellation as Mr Jal was serving a sentence of imprisonment (the Original Decision).
3. On 25 September 2015, Mr Jal lodged a "Request for Revocation of a Mandatory Visa Cancellation Under S501(3A)" with the Department and, on 6 October 2015, Mr Jal made the following representations to the Department in support of the revocation of the mandatory visa cancellation:

...

Risk Association with Return to Sudan

Tribal war and political unrest still exists in the country today and is still the focused of a significant humanitarian effort by world agencies to protect innocent parties affected by this conflict.

In the small village in which we lived these random killings and other brutal acts of violence were common place among feuding tribal groups.

I witnessed the brutal and senseless killing of my parents and was forced to escape to Kenya to seek asylum with my brothers and sisters.

In Kenya I was processed by the United Nations as a refugee and was some time after relocated to Australia to begin a new life.

If I forcibly returned to Sudan, I would be at risk of harm due to the ongoing war between tribal factions.

I fear that if I was to return I would be most likely kidnapped, tortured and ultimately killed because of my families previous opposition to the policies of the warring parties.

It is my belief that I have a reasonable claim to a non-refoulement obligation under one or more of the following

✓ The refugees Convention

✓ The Convention against Torture and Other Cruel inhuman or Degrading treatment or punishment

✓ The international Convention on Civil and Political Rights.

Thereby by forcibly returning me to Sudan is likely to be inconsistent with international non refoulement obligations.

There are also other significant impediments I would face if removed from Australia which include:

✓ I have no living family member and friend remaining in Sudan,

✓ My village is destroyed and have no alternate accommodation

✓ Limited prospects of ongoing education

✓ Little or No prospects for employment

✓ No prospect of future life.

Improvements in Character Whilst in Custody

I was very very young, scared and without direction when I came to Australia. I became confused and angry that I was placed in such a position and as result made some poor choices.

These poor choices led to engaging in criminal activities which ultimately led to my imprisonment

Whilst in prison I have had the opportunity to mature and develop new and significant life skills that have made me better equipped to deal with the circumstance of my life.

My imminent participation in violence and other consequential thinking programs had and will deliver improvements in relation to cognitive behavioral skills, emotional regulation, setting boundaries and assertive communication.

I have maintained excellent prison conduct throughout my incarceration and believe that this will assist me greatly in obtaining parole.

Whilst in prison I have maintained a strong family bond with my brothers and sisters they are vital support network for me.

They are hard working people who have adapted well to life in Australia and they have pledged to support me both financially and emotionally in Australia upon release from prison.

They are keen to give me the guidance needed to live a meaningful and productive life in Australia.

Upon release I will actively pursue full-time work and plan to continue with further education to improve my skills

With significant progress I have made in addressing my offending behavior, the support of my family here in Australia and the salutary impact of my term of imprisonment, i (sic.) strongly believe that I will not present an unacceptable risk to the community with regards to the likelihood of committing further offences.

I was a troubled and immature young and skill less man when I committed my offences and I am deeply remorseful for the pain and suffering that I caused both to my victim, their and my own family.

I kindly ask that the Government consider the dramatic positive change in character I have made since my time in custody and how these change have given me the skills and understanding to respect and obey the law and meet the overall expectation of Australian Society.

I am strongly and deeply remorseful for the behavior that lead to my imprisonment and accept full responsibility for my past mistakes.

It is with the deepest sincerity I now say that I fully understand and respect the tremendous opportunity that exists for me to build a respectable and productive life in this beautiful country, and I wish to do everything possible to seize this opportunity.

1. On 5 April 2016, the Minister affirmed the Original Decision (the Reviewable Decision). The Reviewable Decision states:

1. I considered all relevant matters including (1) Ministerial Direction no. 65 under section 499 of the Migration Act 1958, (2) an assessment of the representations received in relation to the invitation for the purposes of s501CA(4)(a), (3) an assessment against the character test as defined by s501(6) of the Act for the purposes of s501CA(4)(b)(i), (4) an assessment of whether there is another reason why the mandatory visa cancellation decision should be revoked for the purposes of s501CA(4)(b)(ii) and (5) all other evidence available to me, including evidence provided by, or on behalf of Mr JAL.
2. As referred to above, in coming to a decision, I find Mr JAL made representations in accordance with the invitation. In addition, I was not satisfied that Mr JAL passes the character test (as defined in section 501).
3. In considering whether I was satisfied that there is another reason why the decision to cancel Mr JAL's visa should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr JAL, and find that Mr JAL should expect to forfeit the privilege of remaining in Australia.
4. I also find that the Australian community could be exposed to great harm should Mr JAL re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr JAL. The Australian community should not have to accept any risk of further harm.
5. Given the crimes committed by Mr JAL, I am of the view that the Australian community would expect that Mr JAL's visa would remain cancelled and that I would not revoke the mandatory cancellation decision.
6. I have considered the best interests of Mr JAL's stepson, as well as his six nieces and nephews, as a primary consideration and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.
7. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of risk of re-offending by Mr JAL, than I otherwise would, because he has lived in Australia from a very young age.
8. In addition, in making this decision I have considered the ties Mr JAL has formed by reason of his residence in Australia over 10 years, the impediments he will face on return to Sudan and the consequences of my decision for his immediate family in Australia.
9. In reaching my decision l conclude that Mr JAL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations as described above.
10. Having given full consideration to all of these matters, I am not satisfied that there is another reason why the original decision to cancel Mr JAL's Class XB Subclass 200 Refugee and Humanitarian (Permanent) visa should be revoked as required by s501CA(4)(b)(ii).
11. On 9 April 2016, Mr Jal applied to the Tribunal for review of the Reviewable Decision.

1. It is not in dispute that Mr Jal does not pass the "character test" in s 501(6) of the Act as he has a "substantial criminal record" within the meaning of s 501(7) of the Act.
2. Consequently, the sole issue for consideration by the Tribunal in this case is whether the mandatory cancellation of Mr Jal's visa (under s 501(3A) of the Act) should be revoked pursuant to the discretion in s 501CA(4) of the Act.

1. Section 501CA(4) of the Act provides that the Minister "may" revoke the mandatory cancellation of a visa if:

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

(b) the Minister is satisfied:

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

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

1. In considering Mr Jal's request for revocation of the mandatory cancellation of the his visa, the Tribunal must comply with "Direction No 65 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA", which was issued by the Minister of 22 December 2014 (Direction No 65): see s 499(2A) of the Act.
2. Paragraph 6.3 of Direction No 65 sets out a number of principles to be applied, including the following:

6.3 Principles

...

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

...

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1) of Direction No 65 provides guidance on how the discretion in s 501CA(4) of the Act, to revoke the mandatory cancellation of a visa, should be exercised. Paragraph 7(1) states:

7. How to exercise the discretion

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

...

(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.

8. Taking the relevant considerations in account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case...

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

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

(4) Primary considerations should generally be given more weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. Part C of Direction No 65 sets out considerations that are relevant in exercising the discretion in s 501CA(4) of the Act.

1. Pursuant to paragraph 13 of Direction No 65, the following primary considerations "must" be taken into account in deciding whether to revoke the mandatory cancellation of a visa:

PART C

13. Primary considerations - revocation requests

...

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

(a) Protection of the Australian community from criminal or other serious conduct;

(b) The best interests of minor children in Australia;

(c) Expectations of the Australian community.

1. Paragraph 13.1(1) of Direction No 65 provides that decision-makers considering protection of the Australian community should have regard to the principle in paragraph 6.2(1) set out above, and paragraph 13.1(2) identifies the following two factors to which consideration should also be given:

(a) The nature and seriousness of the person's conduct to date; and

(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.

1. Paragraph 13.1.1(1) of Direction No 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct, as follows:

13.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:

(a) The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;

(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

(c) The sentence imposed by the courts for a crime or crimes;

(d) The frequency of the person's offending and whether there is any trend of increasing seriousness;

(e) The cumulative effect of repeat offending;

(f) Whether the non-citizen has provided false or misleading information to the department, including not disclosing prior criminal offending;

(g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

(h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

1. Pursuant to paragraph 13.1.1(1)(a) of Direction No 65, violent crimes are viewed as "serious".
2. Much of Mr Jal's offending, as set out in Attachment 1, can be viewed as "serious". Mr Jal has convictions for violent offences including assault occasioning bodily harm, common assault, carrying an article with intent to injure, assault public officer and deprivation of liberty. Mr Jal has further convictions for non-violent offences that are also "serious", including aggravated burglary, stealing motor vehicle, attempt to pervert justice and aggravated robbery.
3. Some indication of the circumstances surrounding the offending, and how seriously the offending was viewed by the courts, is reflected in the sentencing remarks. Imprisonment is a sentence of last resort, generally reserved for conduct which is considered to be serious. As an adult, Mr Jal has been sentenced to terms of imprisonment totalling 63 months for 9 separate offences (although he only ended up serving 36 months (3 years) in prison): refer to Attachment 1.
4. In sentencing Mr Jal on 19 October 2012, Magistrate Benn, of the Magistrates Court of Western Australia, said:

You'd made a decision to drink a huge amount of alcohol and then behaved in a manner that just had no regard to the welfare, the interests, the wellbeing of anyone else in either of these situations and you're lucky you're not coming before the court for other assaults arising out of the incident at Midland Gate. Again at a time when it would be reasonable to suspect other people to be out and about in the shopping centre at that time. You were drunk, you were behaving without any regard for anyone else and it's only the fact that these other three people didn't want to file any charges, make any complaints, that that has ended up as a disorderly conduct...

There's nothing before me to suggest that there was any actual provocation by Mr McIntosh. You've come along in your drunken state not really having any idea what was going on, gone up to this man, assaulted him, assaulted him in a serious manner, leaving him with an injury to his head that required stitches and then continued that rampage by throwing items at the glass doors of these premises, smashing the glass doors and it was only when the police came and eventually arrested you that brought an end to the situation, it seems. Then you were released on bail and a week later in the face of that you were smashing into another premises, again heavily affected by alcohol and your record doesn't help you, Mr Jal.

...

You've reached a point, and it's tragic to say so, Mr Jal, wherein my view the overriding consideration now is the protection of the community even if, as I've said, that's for a limited period of time. These are serious matters. They require a punishment that properly reflects the seriousness of these matters and you haven't done anything until now to indicate that you are ready or willing to take advantage of rehabilitation within the community and in my view, the only appropriate penalty is imprisonment and turning my mind to all the factors I've considered in regard to whether that sentence should be suspended, in my view it should not be suspended. Just too serious.

You present as too much of a danger to the public and no (indistinct) yet of any willingness by you to address the problems that would lead you to stop offending...

...

1. In sentencing Mr Jal on 23 October 2014, Staude DCJ, of the District Court of Western Australia, described the circumstances of the offending as follows:

... Both offences, by their nature, are so serious that they are ordinarily punished by terms of immediate imprisonment.

...

...on 18 July last year, you and a number of others unlawfully entered the home of the Burns family where the two parents and their children were asleep. The offence occurred at about 4.35 am.

You and the others located alcohol which you put into a laundry basket and a number of other items of value were found and taken and they included electronic devices, including a laptop computer, an iPad, an iPhone and a number of games and related items, all very valuable and valued by the owners.

The adult male occupant, Mr Burns, woke up having heard a noise that he thought might have been made by one of the children and he confronted you and your co-offenders. He was dazzled by a torchlight that was shone in his face and he was then struck with an object on the arm causing him to suffer pain and discomfort. There was a struggle before you and the others ran from the house. It is not alleged that you were the person that struck Mr Burns and I'm not going to deal with you as if you were but you are liable for the harm that he suffered by reason of your involvement in this offence.

...

Now, in respect of count 2, on 7 April this year you were arrested and dealt with under the name of your brother, John Jal, You entered a bail undertaking in that name before being released from custody. You did so because there was a warrant out for your arrest. You were later found to have given your brother's name and accordingly you are prosecuted on the basis that you're giving a false name in those circumstances and entering to a bail undertaking on that basis interfered with the proper administration of justice and that is always regarded as a very serious offence.

1. In sentencing Mr Jal on 27 October 2014, Magistrate Pontifex, of the Magistrates Court of Western Australia, described Mr Jal's offending as follows:

... I think the most serious matter before me, Mr Jal, is the assault occasioning bodily harm and in which you were part of a group of people who set upon the victim, punching to the face and head, resulting in the victim being knocked unconscious and, indeed, suffering fractures to the face and a slight bleed to the brain. My view is that that's a serious assault, Mr Jal, that you took part in. ...

Also there is the dishonesty offences of burglary and stealing the motor vehicles, which I understand that in respect of all of these matters you were intoxicated...My view is that, in particular for the assault occasioning bodily harm, that a sentence of imprisonment is appropriate and, indeed, for the burglary.

1. Mr Jal's representative submits that the Tribunal should give weight to the following:
   • Mr Jal's traumatic childhood is a significant contributing factor in his offending. Mr Jal grew up in South Sudan in a war zone without his parents. Mr Jal's father went missing before he was born and his mother was murdered when he was aged 10. From the age of 10, Mr Jal resided with his remaining family members in a refugee camp in Kenya and he came to Australia (aged 12) as a UNHCR mandated refugee. From the age of 10, Mr Jal was raised by his older sister Ms Chol John Jal;
   • Mr Jal's young age. Mr Jal is currently only 22 years old and most of his offending occurred before he turned 20 years old. Mr Jal has matured, reflected upon his offending, returned to his catholic faith and is rehabilitated;
   • None of Mr Jal's offending was pre-meditated but, rather, opportunistic or random. It was fuelled by alcohol (and to a lesser extent drugs) and occurred at a time when Mr Jal was involved with the "wrong crowd" who had a negative influence on him.
2. As submitted by the Minister's representative, the above mitigating factors were taken into account by the relevant judges in Mr Jal's sentencing: refer to paragraphs 25-27 above.
3. Although much of Mr Jal's offending can be viewed as serious, there appears to have been an escalation in the seriousness (or a trend of increasing seriousness) of Mr Jal's offending in 2013 and 2014, with the majority of his offences that have attracted custodial sentences occurring in 2014: refer to Attachment 1.
4. Further, when the sheer number of offences committed by Mr Jal, and the cumulative effect of Mr Jal's offending is taken into account, Mr Jal's conduct can be viewed as additionally "serious". Mr Jal arrived in Australia on 12 April 2006 (aged 12) and committed his first offence in Australia on 9 March 2008. Since then, Mr Jal has committed over 40 further offences. Even if the Tribunal were to focus only on Mr Jal's conduct as an adult, Mr Jal has 22 convictions in a 2 ½ year period, prior to his incarceration in 2014.
5. Mr Jal was issued with a formal warning in writing from the Department on 11 June 2013: refer to paragraph 5 above. The warning put Mr Jal on notice that further criminal conduct could result in his visa being cancelled. Mr Jal's next offence after this warning was on 6 July 2013, less than 1 month after the warning was issued, with further criminal conduct occurring on 14 July 2013, 18 July 2013, 19 July 2013, 20 February 2014, 21 February 2014, 24 February 2014, 18 March 2014, 7 April 2014, 8 April 2014 and 10 April 2014. The warning issued by the Department, and the prospect of losing the privilege of remaining in Australia, does not appear to have had any deterrent effect on Mr Jal.
6. Taking into account all of the considerations outlined above in paragraph 21, the Tribunal finds that the nature and seriousness of Mr Jal's conduct is a significant consideration that weighs heavily in favour of it affirming the Reviewable Decision.

The risk should further offences be committed

1. Paragraph 13.1.2(1) of Direction No 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:

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

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The nature of the harm if Mr Jal engages in further violent offences is physical injury to other persons. Mr Jal has also previously engaged in conduct that results in loss of and damage to property. In all cases, the potential costs to the Australian community in the event that Mr Jal reoffends would be significant and is an "unacceptable risk".
2. Mr Jal claims that he has learned his lesson and that he is at low risk of reoffending and it is submitted on his behalf that his "risk of recidivism is low if he stays clear of drugs, alcohol and his former associates": "Statement of Facts and Contentions of the Applicant", dated 22 July 2016 (Mr Jal's SFC), at [16].
3. In support of his statements that he is of low risk of reoffending, Mr Jal relies on the Immigration Report provided by Acacia Prison to the Department on 19 March 2013 (the Immigration Report). The Immigration Report states that Mr Jal "states he has attended several sessions of AA" and this is relied on to support a contention that Mr Jal has shown signs of reform and rehabilitation. The Immigration Report also lists a number of minor infractions committed by Mr Jal while in prison which lead to the conclusion that Mr Jal "does not always comply with the rules and regulations of the block". Mr Jal submits that this shows that he is generally well-behaved and that this good behaviour is likely to continue upon his release into the community.
4. Mr Jal's evidence was that he attended five "AA" meetings, some anger management courses and a vocational course (i.e. a "White Card" in building and construction) whilst in prison. Mr Jal told the Tribunal that he now exercises and prays regularly. Accordingly, Mr Jal is rehabilitated and at low risk of reoffending. Mr Jal said that if his visa was reinstated and he was released into the community he would join a boxing club, keep busy, enrol in a TAFE course (such as a Certificate in Bricklaying), try to get a job, get involved with the local Sudanese community and attend church. Mr Jal also said that if his visa was reinstated and he was released into the community he would either initially stay with his younger sister in Clarkson, Western Australia or his older sister (Ms Chol John Jal) in Melbourne, until he could afford a place of his own.
5. There is no evidence from which the Tribunal can conclude that the risk of Mr Jal reoffending is low. The evidence before the Tribunal is that Mr Jal has been drinking excessively since the age of 14, he is now 22. The only time he has had a break from drinking is during his time in prison and in detention. On his own evidence, the only alcohol related rehabilitation Mr Jal has undertaken is five "AA" meetings in prison. The Tribunal considers that this is insufficient to break an excessive drinking habit which has spanned some eight years. Mr Jal's representative submitted that if Mr Jal "doesn't drink, he doesn't offend", noting that Mr Jal has turned down offers of alcohol made from fruit by prisoners whilst in prison and detainees whilst in detention and that Mr Jal has not been in any fights or trouble whilst in prison or detention (other than some minor infringements relating to being found "out of bounds" whilst in prison). He argues that Mr Jal has learned to walk away from such situations.
6. The Immigration Report relied on by Mr Jal was provided by Acacia Prison on 19 March 2013. Following his release from Acacia Prison, Mr Jal committed further, and arguably more serious offences, which also involved excessive alcohol consumption, and therefore any attempts at rehabilitation made by Mr Jal during his time in Acacia Prison have clearly been ineffective. This offending occurred despite the warning given to Mr Jal by the Department: refer to paragraph 5 above.
7. Mr Jal told the Tribunal that he has always had the support of his family in Australia, being his two sisters and his two brothers. This support did not prevent Mr Jal from offending in the past and there is nothing to prove that this support will not prevent him from reoffending in the future.
8. The Tribunal notes the following concerns expressed by Staude DCJ in sentencing Mr Jal on 23 October 2014:

You appear to have, at least potentially, a number of possible psychiatric problems requiring professional intervention and that's remarked upon in the pre-sentence report. You have used cannabis and methylamphetamine in the past and seem to be vulnerable to serious drug abuse if the underlying personal problems that you have are not adequately dealt with.

...

I am concerned about what support you will have upon your release. I'm told that you may be able to find accommodation in Narrogin and work there but it seems to me that you probably require some intervention in terms of social support upon your release because it seems to me that you are at great risk of reoffending and being brought back to court in the future if your behavioural problems are not dealt with. And they can't be dealt with until some of those underlying emotional and psychological issues are dealt with.

...

Alcohol abuse, it seems to me in your case, and other substance abuse is merely a symptom of the unresolved emotional and psychological problems that clearly have the origins in your traumatic past. If those matters are not addressed properly then it's unlikely that you'll be able to remain abstinent from alcohol and drugs. So yours is a case requiring special and careful attention if there is to be any real prospect of rehabilitation. You are capable of having a meaningful and productive life in the community but you need to accept help in order to do so.

1. Mr Jal gave evidence that since he has been in detention on Christmas Island he has seen a counsellor weekly to address some of the concerns raised by Staude DCJ in the above passage. Mr Jal's older sister (Ms Chol John Jal) gave evidence that Mr Jal's demeanour has changed and he has matured since being in detention and has "put god in his life". Mr Jal's older brother (Mr Jal John Jal) also gave evidence about Mr Jal's remorse and rehabilitation and said that he noticed a change in his brother's demeanour between his two prison stays. Both Mr Jal's older sister and older brother acknowledged in evidence that their knowledge of Mr Jal's offending was based purely on what Mr Jal had told them about it. It can be inferred from the fact that Mr Jal did not seek counselling until he went into detention that he did not become serious about rehabilitating himself until the actual cancellation of his visa. This weighs heavily against the reinstatement of Mr Jal's visa.
2. Mr James Row, an elder in the "Nuer (South Sudanese) Community" in Western Australia gave evidence at the hearing that if Mr Jal were able to remain in Australia he would be welcomed into his community and join his community's "youth forum" which offers counselling and support to young South Sudanese people. Mr Row said that Mr Jal had good prospects of rehabilitating himself like many other young South Sudanese men he had counselled. Mr Row explained that he is qualified as a social worker in South Sudan but not in Australia. Mr Row's views on Mr Jal's prospects of rehabilitation are based on a plan for his rehabilitation in the future and not on whether Mr Jal is presently rehabilitated. Further, Mr Row's evidence was that he had not seen or spoken to Mr Jal since 2010 and that his knowledge of Mr Jal is based on conversations he has had with Mr Jal's older brother and sister. In such circumstances, the Tribunal affords little weight to Mr Row's evidence concerning Mr Jal's risk to the Australian community.
3. As contended by the Minister, in the light of the extensive history of offending by Mr Jal over a lengthy period, and in the absence of any meaningful rehabilitation by Mr Jal, including the absence of any evidence to show that Mr Jal has addressed any underlying psychological and emotional issues, Mr Jal cannot be seen to be of low risk of reoffending. Consequently, Mr Jal poses a significant and unacceptable risk to the Australian community.

Conclusions on protection of the Australian community

1. Taking into account the nature and seriousness of Mr Jal's conduct, and the risks to the Australian community if he reoffends, the Tribunal finds that the protection of the Australian community is a consideration that weighs heavily in favour of it affirming the Reviewable Decision.

Best interest of minor children in Australia affected by the decision

1. The second primary consideration listed in Direction No 65 is the best interests of any minor children in Australia affected by the Reviewable Decision (i.e. the decision refusing revocation of the mandatory cancellation of Mr Jal's visa), and paragraph 13.2(1) requires decision-makers to make a determination about whether the refusal is, or is not, in the best interests of the child.
2. Pursuant to paragraph 13.2(4) of Direction No 65, in considering the best interests of a child, the following factors should be considered, where relevant:

(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

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

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

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

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

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

(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

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

1. Mr Jal does not have any biological children, but claims to have a close relationship with the son of his partner. The partner's son, Mathew, is presently 2 years old. Mathew is not Mr Jal's biological child and Mr Jal has not adopted Mathew.
2. Mr Jal has provided a witness statement from his partner, Ms Tameka Lee Oliver, dated 8 February 2016, which states:

I Tameka lee Oliver can see my whole future with buai jal.

This man is kind, nonviolent toward me.

We really communicate well**.** I have a son which is 2 years old buai is really good with him. Buai makes a great father figure. My son Mathew has really taken a shine to buai.

I met buai in 2012 on Australia day fire works

Buai has never raised his voice or done no harm to me or my son. Buai is a beautiful man we have spent some great times together and a lot more to come**.**

We started dating in January 2014 never have I looked back**.** Buai and I are so happy together my son and l have really missed buai since he has been away.

Our plans are when buai gets out he will come to live at my home in Bunbury with me and my son.

I will support him in anyway l can.

Buai is so caring towards everyone he is a loving peaceful human bein (sic.)

Buai also determinds (sic.) to succeed in life.

Buai is very peaceful and a perfect step dad to my son Mathew

Buai past is not the best he has hung around the wrong people which he does regret and wish he chose a better path.

I'm going to help him when he gets out to take the right path to our future. We have plans for a bright happy future together

If buai was removed from Australia I would be so heart broken**,** devastated for our future plans together for not just me and buai but also my son Mathew.

Buai is the man of my dreams he means the world to me and my son if he was to go back to Africa it would destroy me.

When he gets out I really feel he has a lot to offer the community**.**

1. The content of Ms Oliver's statement suggests that it may be adverse to Mathew's interests for Mr Jal's visa to remain cancelled. However, the Tribunal finds that any adverse impact on Mathew is not significant in the present case and is clearly outweighed by other factors.
2. Although there is limited evidence available of Mathew's circumstances, it would appear that he is in the primary care of his mother, Ms Oliver. Mathew was 2 years old as at the date of Ms Oliver's statement (dated 8 February 2016). Mr Jal told the Tribunal that he started dating Ms Oliver while he was in prison, when Mathew was a baby. When asked how much time he had spent with Mathew, Mr Jal said that he saw Mathew about once a week, while he that he was out of prison for a month. It follows that Mr Jal has only ever met Mathew about four times. Mr Jal said that Mathew has never visited him in prison or detention (as Mr Oliver did not want her son going into a prison or detention facility) but that since Mr Jal has been in detention he spoke to Mathew every day. The Tribunal also notes that Ms Oliver was not called to give oral evidence in support of Mr Jal. Mr Jal told the Tribunal that Ms Oliver lives in Bunbury but was currently in Tasmania visiting a sick family member. Mr Jal said that if his visa was reinstated and he was released into the community it was his intention to continue his relationship with Ms Oliver. Based on the evidence, the Tribunal finds that Mr Jal has played a very limited role in Mathew's life and that little weight should be given to Ms Oliver's evidence.
3. The Tribunal further notes that witness statements were provided by Ms Oliver's mother (Ms Hampton) and Ms Oliver's friend (Ms Brown). However, both of these witness statements support for the relationship between Mr Jal and Ms Oliver rather than the relationship between Mr Jal and Mathew. As such, the Tribunal gives little weight to these statements.

1. The third primary consideration listed in Direction No 65 is the expectations of the Australian Community. Paragraph 13.3(1) of Direction provides that:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. The Tribunal notes the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia: refer to paragraph 15 above.
2. Having regard to those principles, the Tribunal finds that the seriousness of Mr Jal's conduct, including the number of offences and their cumulative effect, is such that the Australian community would expect that Mr Jal's visa be cancelled, notwithstanding the that he is young and has faced a lot of difficulties in his life. Mr Jal has been offending in Australia both as a juvenile and as an adult over an extended period and the Australian community should not be expected to tolerate this.

1. Paragraph 14(1) of Direction No 65 provides that in deciding whether to revoke the mandatory cancellation of a person's visa, other considerations must be taken into account where relevant, including, but not limited to:

(a) International non-refoulement obligations;

(b) Strength, nature and duration of ties;

(c) Impact on Australian business interests;

(d) Impact on victims;

(e) Extent of impediments if removed.

1. Paragraph 14.1 of Direction No 65 provides guidance on considerations of international non-refoulement obligations and provides:

14.1 International non-refoulement obligations

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention)...

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operations of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

1. Mr Jal arrived in Australia as the holder of a Class XB Subclass 200 Refugee and Humanitarian (Permanent) visa, and it is likely that Australia owes Mr Jal non-refoulement obligations.
2. However, if the mandatory cancellation of Mr Jal's visa is not revoked, Mr Jal will retain the option of applying for a protection visa. In such circumstances, the Tribunal is not required to determine, for the purposes of this application, whether Australia owes non-refoulement obligations to Mr Jal: paragraph 14.1(4) of Direction No 65.
3. However, for completeness, the Tribunal makes the following observations in response to Mr Jal's submissions (in Mr Jal's SFC) regarding Australia's non-refoulement obligations to him.
4. Mr Jal's SFC states:

1. Mr Jal is likely to be the subject of any non-refoulement obligations should his visa not be reinstated.

25. According to Article 33(1) of the Refugee Convention (1951):

No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

1. Given the extreme and deteriorating geopolitical situation in Sudan and South Sudan, it would be practically a death sentence for Mr Jal to be sent back. This is clearly a contravention of the Article 33(1).

Supporting evidence: UN Office for the Coordination of Humanitarian Affairs Report.

...

Conclusion

38. ...

(a) Mr Jal cannot be removed anywhere. He is stateless and cannot prove nor gain foreign citizenship or travel documents.

(b) His country of birth (Sudan - now South Sudan) is a more dangerous place than when he left it as a refugee. This is likely to trigger non-refoulement obligations preventing his removal.

(c) Further protection visa applications are likely to be protracted only to be refused due to character concern provisions.

(d) Because of items (a), (b) and (c) above, Mr Jal faces the very real prospect of indefinite detention. This kind of situation would be unacceptable to the Australian community. Mr Jal has repaid his debts to society through time served in prison due to his custodial sentences. It is in the interests of justice that he not be left in a state of limbo in incarceration with nowhere to go for years to come.

1. The Tribunal acknowledges that, if Mr Jal applies for and is not granted a protection visa, he will face the prospect of indefinite detention as he is a stateless person with nowhere to be removed to which would be a relevant factor for consideration by the Tribunal. However, as submitted by the Minister, the fact that Mr Jal may be required to spend some further time in detention while a protection visa application is processed is not a consideration that should, in the context of the decision that the Tribunal needs to make in this matter, be given any significant weight. Further, it defies logic to exercise a discretion to revoke the mandatory cancellation of Mr Jal's visa on character grounds for the reason that the Minister may refuse to grant Mr Jal a protection visa because of concerns regarding his character, in circumstances where Mr Jal may be found to have committed a "particularly serious crime" or a "serious Australian offence".
2. In any event, as submitted by the Minister, the Minister will not return a non-citizen to a country in circumstances where a non-refoulement obligation is owed. Consequently, a decision by the Tribunal affirming a decision refusing the revocation of the mandatory cancellation of Mr Jal's visa will not result in the removal of Mr Jal from Australia in breach of Australia's current non-refoulement obligations.
3. Further, having regard to the nature of Mr Jal's sustained/repeated and often serious offending, the risk of Mr Jal re-offending, and the nature of the harm to individuals and property should Mr Jal re-offend, the Tribunal finds that, on balance, Mr Jal presents an unacceptable risk to the Australian community. This risk weighs overwhelmingly in favour of the Tribunal refusing to revoke the mandatory cancellation of Mr Jal's visa and, outweighs countervailing factors, including Australia's non-refoulement obligations and the prospect of prolonged detention.

1. As stated, Mr Jal arrived in Australia at the age of 12 years and has now resided in Australia for more than 10 years. Mr Jal began offending in March 2008, less than 2 years after his arrival. Although Mr Jal has lived in Australia for over 10 years, this should be given less weight in circumstances where Mr Jal began offending shortly after arriving in Australia: paragraph 14.2(1)(a) of Direction No 65.
2. Mr Jal has a number of family members in Australia, including 2 sisters and 2 brothers. Various family members and friends, including Mr Jal's brother, brother-in-law, girlfriend (Ms Oliver), girlfriend's mother and friend have provided witness statements in support of Mr Jal. Based on this evidence, the Tribunal finds that Mr Jal has family ties in Australia and social ties with people who have a right to reside permanently in Australia. However, this consideration does not outweigh the primary considerations in Mr Jal's case.

1. There is no evidence to suggest that this is a relevant consideration in Mr Jal's case.

1. There is no evidence to suggest that this is a relevant consideration in Mr Jal's case.

1. Based on the evidence before the Tribunal, the Tribunal finds that Mr Jal would face significant impediments if removed from Australia, given that his remaining family is in Australia, he has lived in Australia for 10 years and does not have any support in South Sudan. However, Mr Jal may apply for a protection visa.

1. The Tribunal acknowledges that Mr Jal had an unfortunate and traumatic upbringing and that he may have ongoing issues associated with that upbringing. However, as stated above, these mitigating factors were taken into account by the relevant judges in sentencing Mr Jal. The Tribunal finds that the need to protect the Australian community and the expectations of the Australian community both weigh heavily in favour of refusing to revoke the mandatory cancellation of Mr Jal's visa and outweigh other considerations that may be more favourable to Mr Jal. Mr Jal has an extensive criminal record, both as a juvenile and as an adult, with several of the offences committed by Mr Jal being serious in nature. Further, the evidence shows a trend of increasing seriousness in his offending. The length of Mr Jal's record along with the lack of evidence of meaningful rehabilitation by Mr Jal, suggest that Mr Jal is at significant risk of reoffending and he poses an unacceptable risk to the Australian community.
2. Having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65, and the evidence and material presently before the Tribunal, the Tribunal finds that the correct and preferable decision is that the Reviewable Decision (i.e. being the Minister's decision refusing revocation of the mandatory cancellation of Mr Jal's visa) should be affirmed.

1. For the above reasons, the Tribunal affirms the Reviewable Decision.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

........[Sgd]................................................................

Breach of Bail Undertaking; Bail Act 1982; S 51(1)

Give False Personal Details to Police; Criminal Investigation (Identifying People) Act 2002; S 16(8)

Give False Personal Details to Police; Criminal Investigation (Identifying People) Act 2002; S 16(8)

Obstructing public officers; Criminal Code; S 17292

Possessing stolen or unlawfully obtained property; Criminal Code; S 428(1)

Threats to injure, endanger or harm any person; Criminal Code (WA); 338B(b)A

Aggravated Burglary and Commit Offence in Dwelling; Criminal Code (WA); 401(2)(a)L

Demanding Property by Oral Threats; Criminal Code (WA); 397(2)

Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)

Final hearing following JJT, from appearance on 14 Jan 2010

Final hearing following JJT, from appearance on 14 Jan 2010

(Att) Stealing from Person of another; Criminal Code (WA); 378(5)(a)A

Breach of Bail Undertaking; Bail Act (WA) 1982; 51(1)

NO PUNISH - S 67; Time spent on remand in custody

Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a)

Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)

Possess a Prohibited Plant; Misuse of Drugs Act (WA) 1981; 7(2)(G)

Possess a Smoking Utensil used for smoking prohibited drug; Misuse of Drugs Act (WA) 1981; 5(1)(d)(i)

Without lawful excuse trespassed on a place; Criminal Code (WA) 70A(2)

Carried an article with intent to injure (disable); Weapons Act 1999; 8(1)(a)B

Disorderly behaviour in public place; Criminal Code: S 74A(2)(a)

Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)

Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)

Without lawful excuse trespassed on a place; Criminal Code (WA); 70A(2)

Possessing stolen or unlawfully obtained property; Criminal Code (WA); 428(1)

Disorderly behaviour in public place; Criminal Code: S 74A(2)(a)

Possess a Prohibited Drug (Cannabis); Misuse of Drugs Act (WA) 1981; 6(2)B

Aggravated Burglary and Commit Offence in Place: Criminal Code (WA); 401(2)(a)

IMPRISONMENT: 6 MTHS CUM TOTAL: 22 MNTHS IMP FROM 22.12.13

Aggravated Burglary and Commit Offence in Place: Criminal Code (WA); 401(2)(a)M

IMPRISONMENT: 10 Months CONCURRENT FROM 27 Oct 2014 - Concurrent

Assault Occasioning Bodily Harm: Criminal Code (WA); 317(1)

IMPRISONMENT: 12 Months CONCURRENT FROM 27 Oct 2014 - Concurrent

Breach of Bail Undertaking: Bail Act (WA) 1982: 51(1)

Breach of Bail Undertaking: Bail Act (WA) 1982: 51(1)

Steal Motor Vehicle (as defined in section 371A Criminal Code): Criminal Code (WA): 378 A

IMPRISONMENT: 3 Months CONCURRENT FROM 27 Oct 2014 - Concurrent

Steal Motor Vehicle (as defined in section 371A Criminal Code): Criminal Code (WA): 378 A

IMPRISONMENT: 3 Months CONCURRENT FROM 27 Oct 2014 - Concurrent