Reference to case: RCWV v Minister forImmigration, Citizenship and Multicultural Affairs
Applicant’s Background
The Applicant, a 35-year-old Sudanese man, arrived in Australia in 2009 at the age of 20. His Subclass 202 Global Special Humanitarian visa was cancelled in 2020 due to a significant criminal record and imprisonment. He then applied for a Protection Visa in 2021, which was denied by the Minister for Home Affairs. Despite seeking revocation of the visa cancellation, the Minister decided not to revoke his visa cancellation. The Applicant appealed to the Tribunal, which affirmed the Minister’s decision. Upon seeking judicial review at the Federal Court of Australia, it was remitted back to the Tribunal as it failed to consider a representation made by the Applicant regarding the civil instability in Sudan and the risk of harm upon return.
Key Issues in Visa Cancellation Revocation
The issues to determine are:
(a) Whether the Applicant meets the character test outlined in s501(6) of the Migration Act; and
(b) If the Applicant fails the character test, whether there are other grounds to revoke the visa cancellation Decision under s501CA(4) of the Migration Act.
The Decision to Revoked the Visa Cancellation
Issue (a): Character Test
Due to the Applicant’s substantial criminal record, which resulted in the Applicant serving a full-time custodial sentence of imprisonment, the Applicant failed the character test.
Issue (b): Grounds to Revoke Visa Cancellation
Other grounds to revoke the Applicant’s visa cancellation considering paras 8(1) and 8.1 of Direction No 99
1. Nature and Seriousness of the Conduct
Factors to consider: Nature and Seriousness of the Conduct; The Risk to the Australian Community; Likelihood of engaging in further criminal or other conduct; Family Violence committed by the non-citizen; Expectation of the Australian community:
The nature of the Applicant’s offences ranges from several counts of serious driving offences such as aggravated dangerous driving occasioning grievous bodily harm and driving under the influence to several counts of domestic violence offences causing destruction/damage of property, and assault occasioning actual bodily harm; stalking and intimidation with intent to cause fear and physical harm (domestic &personal); possession of prohibited drugs; resisting police; violation of restraining orders.
The Tribunal considers the nature of the Applicant’s conduct as serious, and the risk to the Australian Community should the Applicant commit further offences as severe; the Tribunal also considers the Applicant to have a moderate likelihood of general reoffending and a low likelihood of family violence offending. However, due to the nature of the offending and the likely harm that could result from reoffending and the risk to the Australian community should the Applicant re-offend, the Tribunal considers the Applicant’s offending as falling very close to the class of offences whereby any risk would be unacceptable, which weighs strongly against revoking the visa cancellation decision. Specifically, the Tribunal highlights the gravity of the Applicant’s conduct, particularly instances of domestic violence, assault occasioning actual bodily harm, and aggravated driving offences. These offences are deemed severe enough that if the Applicant were to re-offend, members of the public could potentially face physical injuries, loss of life, and psychological harm. Hence, the expectation of the Australian community would be that the Applicant’s visa should remain cancelled.
2. Strength, Nature, and Duration of Ties to Australia
Factors to consider: The strength, nature and duration of ties to Australia; Best interest of minor children in Australia; Extent of impediment if the Applicant is removed from Australia; Impact on Victims; The extent of impediments to the Applicant if removed from Australia:
- The Applicant has three minor children who are Australian citizens. The Applicant has one minor daughter with his former partner and two Indigenous sons with his current partner A who is an indigenous woman. The Tribunal affords significant consideration to the impact that separating the Applicant from his children would have, as it would deprive them of having a father figure in their lives.
- The Applicant’s partner A (name redacted) and their two children, along with various family members reside in Australia, indicating strong family ties in Australia.
- The Applicant partner A’s father was part of the Stolen Generations, so she does not want her children to be separated from their father and for history to repeat. The Applicant’s partner A also faces several health challenges including mental health challenges; hence she struggles to care for their children without the applicant’s assistance.
- Moreover, concerned about the children’s potential separation from their father and the lack of familial support, A has already made enquiries with the Sudanese embassy in Australia to obtain information regarding relocating to Sudan if the Applicant is deported. However, such a move would mean being distant from her family and Indigenous roots, facing language barriers, potential discrimination, and inadequate access to healthcare.
- The Applicant’s mother and brothers also expressed that they do not want the Applicant to go back to Sudan. The Applicant’s mother stated that the thought of the Applicant being deported is causing her “severe anguish and grief every day and has had devasting impact on [her] personally and emotionally and has affected [her] quality of life”.
- The applicant’s relationship with A, the support he received from his mother and brothers indicating that the Applicant has very strong ties to the Australian community, and the impact on the Applicant’s children weighed strongly in favour and led the decision for the Applicant’s visa cancellation decision to be revoked.
3. Extent of Impediment if the Applicant is Removed from Australia
Lastly, the Applicant struggles with serious mental health issues and meets the DSM-5 diagnostic criteria for PTSD, persistent depressive disorder, substance use disorder, and alcohol use disorder. He requires four separate medications for his mental health issues, together with ongoing counselling. As is evident from his diagnosis of substance use disorder and alcohol use disorder, he has had a significant history of drug and alcohol addiction. The Applicant has been receiving rehabilitation and mental health treatment and counselling here in Australia. The DFAT Country Information Report which states Sudan has overall poor access to health care, particularly mental health care, supports the Applicant’s concerns regarding being unable to access mental health treatment and counselling in Sudan. Another impediment the Applicant would face is the lack of financial and social support in Sudan as all of the Applicant’s immediate family are in Australia. There is also a risk that the Applicant will be detained and questioned if he returned to Sudan as there is evidence that the Applicant’s family fled the country in 2004 because the Applicant’s father was being accused of being a traitor by rebel groups and that his family is likely to have left the country without valid exit visas.
Visa Cancellation Revoked
Overall, after weighing several considerations including the best interests of the Applicant’s indigenous sons, his ties to Australia and the indigenous community, and the challenges he would face if returned to Sudan, particularly regarding his mental health, these factors strongly supported revoking the Cancellation Decision. Additionally, the impact on victims, such as the Applicant’s partner, weighed heavily in favour of revocation, along with the best interests of his minor daughter and extended family members. Overall, the factors supporting revocation outweighed those against it, including community protection and expectations, as well as considerations of family violence. Therefore, it was determined that the visa cancellation decision should be revoked.
