Investigations

Mamer came to Australia as a refugee. He committed a violent crime. Can he be deported back to a war-torn country?

Mamer Thuch came to Australia in 2008. Source: SBS News

Exclusive: A South Sudanese refugee. The perpetrator of a violent crime. Mamer Thuch's visa has been cancelled but it's not safe to go back to his homeland, making him one of a growing number of refugees facing indefinite detention in Australia.

Mamer Thuch doesn’t know exactly when he was born but he thinks it was sometime in the early 1980s.

He chose 23 August 1982 as his birthdate for his humanitarian visa application to enter Australia, and that’s what all of his documents now say. 

A Christian from the Dinka tribe, he was born in a village near Bor in Jonglei state, before South Sudan gained its independence.

In 1991, Mamer fled his village after it was invaded by rebel soldiers from the Nuer tribe. The following year, he and his mother joined thousands of others crossing the border into Kenya, to the relative safety of Kakuma refugee camp.

War

During his disrupted childhood, Mamer witnessed extreme acts of violence, including people being tortured and killed.

“When the war broke, we were all separated,” his mother Atiel Ajang Majok tells SBS News.

“Mamer was lost and I found him again with some other people a long distance from our village on the way to Kakuma. When we arrived at the camp, it was a desert. The UNHCR gave us some food and I sent Mamer to school.”

Atiel Ajang Majok still lives in Western Australia.
Atiel Ajang Majok arrived in Australia with her son in 2008.
Aaron Fernandes/SBS News

As the Second Sudanese Civil War continued, Mamer was able to return to his homeland briefly on three occasions, but he and his mother lived at the refugee camp for the next 16 years.

In 2008, the pair were accepted into a UNHCR resettlement program and given humanitarian visas to come to Australia. They flew out of Nairobi on 15 October the same year, resettling near Perth, where his mother still lives.

Mamer was around 26 years old when they arrived and had few job skills. His only work experience had come as a teacher of social studies to other young South Sudanese refugees in the camp. He found a job as a data entry officer at a local licensing centre and worked there for two years.

He left the job to pursue university, but as soon as he became unemployed, his life in Australia spiralled.

Mamer arrived in Australia from a refugee camp in Kenya in 2008.
Mamer's humanitarian visa allowed him to stay in Australia permanently.
Supplied.

Beginning in September 2011, Mamer was convicted of several crimes including assault and multiple counts of disorderly behaviour. By 2013, he was homeless and drinking alcohol excessively.

On some nights he would wake up in hospital or at a police watchhouse without knowing how he got there. He would ask police if he had hurt anyone and they would tell him he was intoxicated and behaving disorderly in public.

Crime

On 6 October 2013, a group of friends asked Mamer to meet them for a drink at a park in the outer-Perth suburb of Midland.

Later that evening, an argument started between Mamer and another South Sudanese man. They began shoving each other and Mamer was struck over the head with a glass bottle that shattered, causing lacerations.

Mamer pursued the man and punched him, knocking him to the ground. He continued to punch him as he lay semi-conscious, and only stopped when others in the group intervened.

Mamer was charged with grievous bodily harm with intent and would later plead guilty. 

His victim suffered permanent injuries that were totally disabling and was placed in a nursing home.

Mamer fled his village during the Second Sudanese Civil War.
Mamer arrived in Australia when he was around 26 years old.
Supplied.

In December 2014, Mamer appeared at Perth District Court for sentencing. 

“The victim’s conduct in striking you with that bottle is relevant. It provides no defence, but it was a provocation,” Justice Peter Martino said.

“But your offending was a totally excessive response to that provocation… [The victim] cannot speak, he cannot care for himself. He is totally and permanently disabled as a result of the injuries that you caused to him in that rage.”

Your offending was a totally excessive response… He is totally and permanently disabled as a result of the injuries. 

- Justice Peter Martino 

Justice Martino said Mamer suffered from depression, anxiety and post-traumatic stress disorder at the time of his offending, which he sought to treat with alcohol, and that he had cooperated with police. 

“You have lived a life of great deprivation...you were abused, you saw a lot of traumatic things, you were tortured, you saw people being killed. This has had a devastating impact upon you, and it continues to affect you,” Justice Martino said.

“These are all matters that are associated with your offending when you caused that grievous bodily harm to the victim.”

Prison

Mamer was given a prison sentence of six years and 10 months. His first year inside involved more violence.

In July 2015, while incarcerated at Hakea Prison, Mamer was convicted of two counts of assaulting a public officer after fighting with prison guards. He was given a six-month concurrent sentence. 

Mamer claims racism from prison guards led to the altercation and says he was pepper-sprayed, his clothes removed, and he was confined to his cell for 28 days as punishment.

The following month he was transferred to Albany Regional Prison on Western Australia’s south coast, which led to an improvement in his conduct. 

Mamer completed mandatory rehabilitation programs through the WA Corrective Services department, designed to address violent behaviour and alcohol abuse.

He was sentenced to prison in Western Australia.
Mamer spent nearly five years in prison in Western Australia.
AAP

In July 2018, the Prisoners Review Board of Western Australia wrote to Mamer to advise his application for release on parole had been conditionally approved, having assessed him as being an "acceptable" risk to the community.

“Your notable improved prison conduct, especially since the completion of your mandatory programmes, indicates an ability to change and to use the skill and strategies learnt in the programmes,” the review board said.

The only condition was that Mamer found stable accommodation, which with the support of WA’s South Sudanese community he assured the review board he could do. But it wouldn’t matter. 

Only days after being approved for conditional release, Mamer was called to the prison’s administration office and given documents from the Australian Department of Immigration. Those papers advised that on 25 July 2018 his humanitarian visa, which allowed him to stay permanently in Australia, had been cancelled by the Minister for Immigration David Coleman.

Instead of being released from prison, Mamer was told he would be transferred straight to the Yongah Hill Immigration Detention Centre, east of Perth.

In December 2014, the Australian Government had introduced legislative amendments to Section 501 of the Migration Act 1958, introducing a mandatory cancellation power for the first time.

Under the changes to Section 501, the Minister for Immigration must cancel a visa if a person is sentenced to a term of imprisonment of 12 months or more, is convicted of a sexual crime against a child, and is serving a sentence of imprisonment on a full-time basis. 

Where previously the minister had the power to review on a case-by-case basis, the changes largely removed that discretionary power.

Mandatory cancellations meant the number of visas cancelled under Section 501 rose from 76 in 2013-14 to 983 in 2015-16.

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Refugee advocates say mandatory visa cancellations unfairly punish a person twice for a single crime. In the same circumstances, an Australian citizen would simply be released back into the community after completing a prison sentence. But for non-citizens, even those who held a 'permanent' Australian visa, it means facing detention and deportation.

Visa cancelled

His visa cancelled under Section 501, Mamer made an appeal to the minister to have the visa cancellation revoked. He argued he should be allowed to stay in Australia because he would face harm if sent to what is now South Sudan. 

“I have not been to [South Sudan] since I was 10 years old. Everyone knows it’s a war-torn country, a place no government would expect to send somebody to,” Mamer says. 

I have not been to [South Sudan] since I was 10 years old ... [It's] a place no government would expect to send somebody to.

- Mamer Thuch

In making his appeal, Mamer listed five ways he believed he would come to harm if forcibly returned to South Sudan, including from general insecurity in the country as well as direct threats to his life. 

Mamer’s lawyer Hamish Glenister says Australian authorities would find it very difficult to deport him.

Hamish Glenister is Mamer's lawyer.
Perth barrister Hamsih Glenister says Mamer would be harmed if returned to South Sudan.
Aaron Fernandes/SBS News

“There are certain procedures that would need to be in place, he would have to be escorted and it would probably be a danger to whoever was escorting him … there are reports of people being executed inside the airport,” he says.   

Since 2014, visa cancellations under Section 501 have overwhelmingly affected citizens from New Zealand. Between 1 July 2012 and 30 April 2020, New Zealand citizens comprised nearly two-thirds of the 2,802 total visas cancelled.

But a cohort of people from refugee backgrounds also had their visas cancelled, including those from South Sudan, Iraq, Syria, Afghanistan and some listed as ‘stateless’. 

The Department of Home Affairs refused to confirm how many citizens of South Sudan have had their Australian visas cancelled. SBS News understands the number could be between 50 and 100 since 2014.

But between 2018 and 2020, fewer than 10 have actually been removed from Australia, including those who have returned to South Sudan both voluntarily and involuntarily.

Graph showing character cancellations and refusals since the 2012-13 financial year
Graph showing character cancellations and refusals since the 2012-13 financial year
Supplied: Department of Home Affairs

"The Australian Government takes seriously its responsibility to protect the community from the risk of harm arising from non-citizens who choose to engage in criminal activity or serious conduct of concern," a statement from the department read. 

The department says it will not return refugees to their home country if it would breach Australia's protection obligations, but migration lawyers say it is a necessary consequence of mandatory cancellations under Section 501.

"The reality of the law is that if someone has their visa cancelled, they must be detained, and then as soon as practicable, removed from Australia,” Asylum Seeker Resource Centre senior lawyer Noosheen Mogadam says. 

“There is a real tension now, because under mandatory cancellations, [deporting refugees] is exactly what the Australian Government is required to do”.

Detention

The Department of Home Affairs declined to say how many people from refugee backgrounds are currently in immigration detention after having their visas cancelled under Section 501.

Statistics released by the department under the Freedom of Information Act show in January this year there were 175 people in detention following the cancellation of a permanent refugee visa.

Ms Mogadam says that number has likely grown since, with many facing an indefinite stay in immigration detention.

“They cannot be returned, they aren't being released, and in most cases, there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations,” she says.

“Some give up and go home, others continue to appeal because they cannot return home because of the fears that they have, and it means that we have people in our detention centres, some for many years”.

Some give up and go home, others continue to appeal ... and it means that we have people in our detention centres, some for many years.

- Noosheen Mogadam, Lawyer

A spokesperson for the Department of Home Affairs said anyone who wishes to return to their home country or a country where they have a right of residence are able to do so, and assistance is available for those that choose to return home voluntarily. 

The spokesperson said if a person is found to be a refugee but is not granted a visa to remain in Australia they will not be returned to their home country if there is a risk of harm. 

"The Australian Government takes its international obligations seriously and will not forcibly remove an unlawful non-citizen in breach of Australia’s non-refoulement and international obligations," the spokesperson said.

Mama was taken directly from prison to Yongah Hill immigration detention centre.
Mamer has been held in immigration detention for more than two years.
Supplied.

The department said "other options" will be considered to resolve the person's status, but refused to specify what those options are and if they have been used.

As of 31 August, the average period of time for people to be held in detention facilities was 564 days, but migration layers say the duration can be far longer for Section 501 cancellations.

Mamer remained in detention at Yongah Hill for more than nine months awaiting a reply from Mr Coleman. In May 2019, he received a letter to say that the request to have his visa cancellation revoked had been denied. 

Mamer successfully appealed that decision in the Federal Court and won, with the court ruling his fears of persecution if deported had not been properly considered.

"The decision meant that Mamer was given another opportunity to ask for revocation of his visa cancellation and the minister has to consider that material more closely than he did the first time,” Mr Glenister says.

“Essentially, the process starts from square one again. Whether a different decision will be made is another question.”

Appeal

Seven years since the crime that saw him imprisoned, Mamer has now been in immigration detention for more than two years and is still awaiting a new decision by the minister after the Federal Court ordered his case to be reviewed. 

“I don’t know why it takes so much longer than I expected,” Mamer says.

"They don't consider time a refugee spent behind bars and within detention centres … The Department of Home Affairs focuses only on the character test, that 'this person is a risk to the community'.

"They focus on refugees' negative side of the story, [and don’t] see the other side of the coin.”

On 18 October 2019, Mamer separately applied for a protection visa in the hope that, one way or another, he would be allowed to stay in Australia.  

The assessment by the Department for Immigration took nearly a year to complete and included interviews with Mamer, transcripts from his sentencing at the Perth District Court, the assessment by the WA Prisoners Review Board and information about South Sudan. 

It determined his fears of harm if deported to South Sudan are well-founded and that he is owed protection obligations by Australia.

“There are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Sudan, there is a real risk Mamer Thuch will suffer significant harm,” the assessment reads.

Department of Home Affairs table
Department of Home Affairs

Mamer was also found to be effectively ‘stateless’, with no right to enter or reside in any country other than South Sudan.

But the Department of Home Affairs says that a refugee will not be granted a protection visa if they are considered, on reasonable grounds, to be a danger to Australia's security, or having been convicted of a particularly serious crime, are a danger to the Australian community.

The assessment found Mamer is not a threat to Australian security but with limited community support in Western Australia, there is a likelihood he would re-offend and relapse into crime. 

It also said because he has been held in corrections and detention facilities for so long, there is no way of knowing how he would respond if he were able to access alcohol.

As a result, despite being a refugee, his application for protection was rejected. 

South Sudan map
Mamer does not want to return to South Sudan.
Google Maps

“While I am satisfied that Mamer is a person in respect of whom Australia has protection obligations … having been convicted by a final judgement of a particularly serious crime, [he] is a danger to the Australian community,” the assessment reads.

Mamer and his lawyer are preparing to appeal the decision at the Administrative Appeals Tribunal, but that is still months away.

Limbo

On 1 September, Mamer was among a group of around 100 detainees transferred from Yongah Hill to Christmas Island during the COVID-19 pandemic, despite the government claiming no refugees would be sent there. 

Mamer was among a group of detainees transferred to Christmas Island.
Mamer is now in detention on Christmas Island.
Supplied.

In 2019-2020, 702 applications to have a visa cancellation revoked were completed, with 252 people successfully regaining their visa. But the process can take years before an outcome is reached, and under Australian law, there is no maximum time limit for holding a person in immigration detention.

"Australia has a very funny legal system where it permits indefinite detention," says Sarah Dale, the director of the Refugee Advice & Casework Service. 

"Ultimately, the government needs to have a purpose for detention. They argue that for many people, they are in the process of removing them, and where there are barriers to removing someone, they use that to justify that person's continued detention.”

"In many other jurisdictions around the world, to continue to detain someone for a great length of time requires the intervention of a court seeking permission of a legal system. Australia is one of the jurisdictions that does not have those protections, which is why we have people in detention for an unacceptably long time.” 

Mamer says he has served his time and is not a danger to the Australian community.

“I don’t see why I’m any different to an Australian person that commits a crime and is allowed to leave prison after their sentence,” he says.

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