ACHEN DAW and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 70

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5012
Re	ACHEN DAW
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

DECISION

Tribunal	M D Allen, Senior Member
Date	9 February 2012
Place	Sydney

The decision under review is AFFIRMED.

.............[sgd].....................................

M D Allen, Senior Member

Catchwords

Immigration and Citizenship: Deportation of non-citizens. Application of Direction 41 under the Migration Act 1958. Applicant a refugee – consideration of non refoulement obligations. Potential of harm to Australian community outweighing all other considerations.

Legislation

Migration Act 1958, s 91U, 499, 501

Cases

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81
Minister for Immigration and Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 1984
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Toro Martinez and Minister for Immigration and Citizenship [2011) AATA 518

Secondary Materials

REASONS FOR DECISION

M D Allen, Senior Member

In this matter the Applicant sought to set aside a decision by the Respondent to cancel his residency visa on the ground that he did not pass the character test as set out in s 501 of the Migration Act 1958 (MA).
Subsection 501(2) MA states:
“The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Whereas subsection 501(6) MA states:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test .
“Substantial criminal record” is defined by paragraph 501(7)(c) MA is where a person has been sentenced to a term of imprisonment of 12 months or more.
In exercising the discretion whether or not to cancel the Applicant’s visa, I am required pursuant to s 499 MA to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
At the time the Minister’s delegate made the decision in this matter, and currently, the Ministerial Direction in force is No. 41.
Direction No. 41 states as its objective:
“5.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
Further, general guidance is given in clause 5.2(2) of Direction No. 41, namely:
“In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:
(a) the nature of any harm that the person may cause to the Australian community;
(b) the risk of that harm occurring.”
Direction No. 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa, the decision-maker shall take into account four primary considerations and seven other considerations.
The Applicant is a Sudanese Christian of Dinka ethnicity. He entered Australia together with his wife and two children on a subclass 202 Global Special Humanitarian visa on 23 June 2006. The Department of Immigration and Citizenship records indicate that he had been granted refugee status by the UNHCR whilst in Egypt. (See p 86 of the G documents).
On 25 September 2008 the Applicant was convicted of Stalk/Intimidate Intend Fear of Physical/Mental Harm in the Mt Druitt Local Court. The Applicant was ordered to undertake a bond to be of good behaviour for 15 months.
On 8 September 2010 the Applicant was convicted of the following offences in the Mt Druitt Local Court:
oContravene Prohibition/Restriction in Apprehended Violence Order – sentenced to 18 months imprisonment;
oAssault Occasioning Actual Bodily Harm – sentenced to eighteen months imprisonment.
oArmed with Intent to Commit Indictable Offence – sentenced to seven months imprisonment;
oContravene Prohibition/Restriction in Apprehended Violence Order – ordered on a bond to be of good behaviour for two years;
oUse Carriage Service to Menace/Harass/Offend – fined $800; and
oDestroy or damage property – no penalty imposed, ordered to pay compensation of $300.
So far as the sentences imposed on 8 September 2010 are concerned the appeal to the District Court was successful. On 12 October 2010, Colefax DCJ reduced the terms of imprisonment to seven months commencing on 8 October 2009 and expiring on 7 May 2010, and to 18 months commencing on 7 May 2010 expiring on 6 November 2011, with a non-parole period of eight months.
The Applicant was released on parole on 6 January 2011. On 24 March 2011 the Applicant was charged with four new offences alleged to have occurred on two separate dates: the Applicant was alleged to have committed the offences of Stalk/Intimidate Intend Fear of Physical/Mental Harm and Contravene Prohibition/Restriction in Apprehended Violence Order on 28 February 2011; and was alleged to have committed the offences of Stalk/Intimidate Intend Fear of Physical/Mental Harm and Contravene Prohibition/Restriction in Apprehended Violence Order on 3 March 2011.
On 27 May 2011 the Applicant was convicted of Stalk/Intimidate Intend to cause Fear of Physical/Mental Harm and Contravene Prohibition/Restriction in Apprehended Violence Order in the Burwood Local Court. The Applicant was sentenced to terms of imprisonment of nine months for each conviction.
Given that the Applicant was on 12 October 2010 sentenced to a term of 18 months imprisonment, there can be no question as to his failing the character test as set out in Ss 501(6) MA.
The primary considerations in exercising the discretion whether to cancel a visa or not are set out in Direction 41, paragraph 10, namely:
“(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention Protocol Relating to the Status of Refugee (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

PROTECTION OF THE AUSTRALIAN COMMUNITY

Paragraph 10.1 of Direction 41 reads:
“(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a)The seriousness and nature of the relevant conduct; and
(b)The risk that the conduct may be repeated.”
Paragraph 10.1.1 then goes on:
“The seriousness and nature of the conduct”
(1)Crimes involving violence or the threat of violence are of a special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
(2)The following are examples of offences and conduct that are considered serious:
…
(d)grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
…
(i)ancillary offences in respect of offences and conduct that are considered serious, including:
(i) convictions for attempting to commit an offence;
…”
Of particular relevance in this Applicant’s case is the fact that the offence of assault of occasioning bodily harm was committed against his wife, and at that time there was in existence an apprehended violence order (AVO) taken out by his wife to protect her from the Applicant.
In sentencing the Applicant for this offence the Magistrate said:
“In relation to that matter, that is the assault occasioning actual bodily harm, it is particularly in this Courts view a serious matter. It is certainly a matter which this Court would view as in the upper range of offences of this nature. The Court would assess it as being objectively quite serious, not only because of the physical aspect, but because it involves the victim’s wife.”
The Magistrate in sentencing also referred to the fact that at the time of committing the offence of going armed with intent to commit an indictable offence the Applicant was the subject of a good behaviour bond, and at the time he committed assault occasioning actual bodily harm upon his wife he was on bail for prior offences. Matters which the Magistrate regarded as aggravating factors.
Paragraph 10.1.2 of Direction 41 refers to the risk that the conduct may be repeated.
What is apparent from the Probation and Parole reports before me is that the Applicant has little insight into his behaviour. Reference is made in the reports that the Applicant did not think he had done anything wrong and that “back in Sudan this would happen and that would happen and you people would not get involved”.
During the hearing of this matter the Applicant refused to accept responsibility for his offences, saying that the victim of his offence of being armed with intent to commit an indictable offence had “made it up”, and that his wife was lying when she said he threatened to kill her.
A pre-sentence report by the NSW Probation and Parole Service dated 27 May 2011 and provided to the Burwood Local Court, states inter alia:
“In relation to the matters now before the Court Mr Daw disputed the Police facts. He stated that his estranged partner had lied to Police about the two incidents. The offender further stated he pleaded guilty to these matters at Court upon the advice of his legal representation.”
The report continued:
“The offender has not accepted responsibility for his actions and continues to deny he committed the current offences and minimised his alcohol consumption. He has transferred blame for these matters to his partner and displayed limited insight into his offending behaviour. Mr Daw has not participated in any interventions whilst in custody or the community to address his offending behaviour.”
More disturbing are the contents of a report by the Probation and Parole Service to the Respondent dated 8 September 2011, that report reads inter alia:
“Since his return to custody in March 2011, Mr Daw has been directed to engage in programs designed to address his educational, literacy and criminogenic issues, however, he has failed to do so. … [as does] his ongoing denial that he has “problems” with alcohol, anger management and domestic violence.”
The report adds:
“Whilst Mr Daw has not incurred any charges during the current period in custody, Other Services and Programs staff and Parole unit staff at OMPC, cite Mr Daw’s behaviours as problematic and inappropriate, especially towards female staff members.”
finally concluding under the heading of Assessment:
“The recommendations of the previous Immigration Report date (sic) 16 February 2011, by this author, remains unchanged. Mr Daw continues to show little regard for the Australian way of life and the ordered society in which he now lives, as evidenced by his reoffence, breach of parole and resistance to interventions by this Service. Of concern is that he has reoffended in a similar fashion to his previous offence and that his wife and children are the victims. He continues to deny that he has problems with alcohol, anger management and domestic violence and intimidating behaviours.”
The prior assessment had stated:
“Of extreme concern to this Service is the offender’s attitude to his ex wife and their unresolved domestic issues. As such the community is at risk of he remains in Australia.”
With a further notation by a superior to the officer who prepared the report:
“Unfortunately it would seem that Mr Daw has not learnt from any sentence he has received, his failure to address his offending behaviour is a grave concern and as Ms … mentioned above does place the community at significant risk of his possible re-offending.”
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81 Davies J, sitting as President of this Tribunal said at N133:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to re-offend … and even if the risk of recidivism is not high the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.” (Authorities omitted).
As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198 that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far-fetched or fanciful and that the degree of probability of its occurrence is quantitatively low.
Compare the remarks of Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 51, namely:
“Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.”
Paragraph 10.2 of Direction No. 41 states as a primary consideration whether the person was a minor when they began living in Australia. At the time of his arrival the Applicant was aged 38 and married with two children.
The length of time in Australia prior to engaging in criminal activity is a primary consideration. In Rosson v The Minister for Immigration and Citizenship [2011] FCA 194 Rares J found that the Tribunal is entitled to regard the fact that a person has been present in Australia for a short period prior to engaging in criminal activity as consideration unfavourable to that person. His Honour said (at [23]):
“… common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act.”
The Applicant arrived in Australia on 23 June 2006. His first conviction was on 25 September 2008. This consideration, together with the Probation and Parole reports, mitigates against the Applicant’s continued residence in Australia.

THE BEST INTERESTS OF THE CHILD

Paragraph 10(1)(d)(i) states a primary consideration is the best interests of the child.
The Applicant has four children. The eldest two being born overseas and the youngest two in Australia. They are aged approximately 9, 7, 4 and three months. As I understood the Applicant’s evidence he disputes paternity of the youngest child, but is prepared to accept her as part of his family.
Paragraph 10.4.1(4) of Direction 41 reads:
“Under Australian law, it is generally presumed that a child’s best interests would be served if the child remains with his parents. Factors which may indicate that the child’s bests interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
The Applicant has expressed a strong desire to maintain conduct with his children. In his submission to the Tribunal he said:
“The bests interest of my children will be best served growing up in a family where there is a father and mother especially in there (sic) formative years. They need me there father to be with them. My culture dictates that a child should grow up in a family of a father and mother. I love my wife and children very dearly. They are the only family that I have on the planet Earth. Separating me from my family forcefully and permanently will have a diverstating (sic) negative effect on my children who look to me as there protector, father and role model. An effect that they will never recover from for ever.”
Despite the above protestations of love for his wife there exists an AVO against him taken out on behalf of his wife. Further, the circumstances of his assault against his wife on 27 June 2010 was witnessed by his children. The facts presented to the Court stated:
“About 9:50pm on Sunday the 27^th of June 2010, the Accused Achen DAW climbed through the upstairs bedroom window entering the victim Achan DAW’s premises.
The Accused walked up to the victim and woke her by yelling, “I’m sleeping here. This is my house.” … The victim grabbed their three children and ran out of the house to her neighbours house, as she felt scared she would be assaulted or worse. The victim called Police.”
The Facts Sheet also pointed out that the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.
Notwithstanding the desirability of the children maintaining contact with the Applicant, a factor which may be taken into account in regard to the best interests of the child is that domestic violence has occurred between the applicant and his wife, some of which was in the presence of the children. As Rares J said in Rosson supra:
“A child who witnesses violent behaviour by one parent, or member of the household, to another has been placed in a situation by that violence that is relevant for the purposes of a decision-maker considering the impact on a person’s claim for an entitlement to retain his or her visa for the purposes of Direction 41. That would appear to be a matter, among others, that goes to the best interests of the child in this case …”.

The Applicant has not played a part in his children’s lives since the institution of an AVO against him sometime in June 2010 when he offended by breaching it. There is no record of his being visited by his wife and family whilst in gaol, although he gave evidence that his wife and children recently sought to visit him at Villawood Immigration Detention Centre, but he refused to see them because of the existence of the AVO.
Notwithstanding the AVO, I have no doubt that if the Applicant were to initiate proceedings in the Family Court he would be granted some degree of access to his children, even if subject to supervision.
No evidence was received from the Applicant’s wife as to her or the likely attitude of the children to the cancellation of the Applicant’s visa, however, given that there exists an AVO against the Applicant, and he has at all times been in custody, the lack of this information does not point to a reluctance of the wife to assist the Applicant, but is a neutral factor.
By cancelling the Applicant’s visa the children who are young will be deprived of the chance to become further acquainted with their father. Against this is the fact they have witnessed violence by their father against their mother, and he has since 2008 played no real part in their lives. All-in-all I am satisfied that the protection of the Australian community outweighs this factor.

NON REFOULEMENT OBLIGATIONS

Paragraph 10.4.2 of Direction No. 41 states:
“Convention and the Protocol Relating to the Status of Refugees
(1)In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.”
(2)If Article 33(1) of the Refugees Convention applies, consideration is to be given to whether the benefit of that provisions may not be claimed by the person because of Article 33(2) of the Refugees Convention.”
Article 33 of the Refugees Convention provides as follows:
“1. 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.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Section 91U of the Act relevantly provides as follows:
“(1)For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:
(a)       a serious Australian offence (as defined by subsection (2)); or
(b)       a serious foreign offence (as defined by subsection (3)).”
(2) For the purposes of this section, a serious Australian offence is an offence against a law in force in Australia where:
“(a)     the offence:
(i)        involves violence against a person; or
… and
(b)       the offence is punishable by:
(i)        imprisonment for life; or
(ii)       imprisonment for a fixed term of not less than 3 years; or
(iii)      imprisonment for a maximum term of not less than 3 years.”
Subsection 59(1) of the Crimes Act 1900 (NSW) provides that:
“Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.”
I find that the Applicant’s conviction on 8 September 2010 for Assault Occasioning Actual Bodily Harm, is an offence that involves violence against a person contrary to subparagraph 91U(2)(a)(i) MA, and is punishable by imprisonment for a maximum term of not less than three years. It is thus a ‘serious Australian offence’ for the purposes of paragraph 91U(1)(a) MA. It follows therefore that as a result of the Applicant’s conviction for a ‘serious Australian offence’, the Applicant has been convicted of a ‘particularly serious crime’ for the purposes of Article 33(2) of the Refugees Convention.
I further find that having been convicted of a particularly serious crime the Applicant does constitute a danger to the Australian community, and therefore cannot claim the benefit of Article 33(1) of the Refugees Convention.

OTHER RELEVANT INTERNATIONAL OBLIGATIONS

Paragraph 10.4.3(1)(a) of Direction 41 reads:
“Other relevant international obligations
(1) The following are to be considered:
(a)The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);
(b)The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subject to torture; and
(c)The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.” (Note: ICCPR and CAT are defined in paragraph 10(1)(d) of Direction No. 41).
A humanitarian report with regard to the Applicant and the Sudan was prepared by the Refugee and Humanitarian Branch of the Respondent’s Department and dated 25 July 2011.
I am satisfied having read that report that there is no evidence that the Applicant would face a violation of his rights either under the ICCPR or be in danger of being tortured, thus breaching the CAT.
So far as the general conditions in South Sudan are concerned, these are more properly addressed as “other considerations”. See Toro Martinez and Minister for Immigration and Citizenship [2011] AATA 518 at para 46.

OTHER CONSIDERATIONS

Family Ties:

It is difficult to ascertain what family ties the Applicant has both in Australia and in the Sudan.
Currently the Applicant is estranged from his wife and children. There is no evidence before me, and I considered it most unlikely that they would accompany the Applicant back to the Sudan.
Evidence is contradictory as to the Applicant’s siblings and his mother. In his personal details form prepared for the purposes of the Respondent’s consideration whether to cancel his visa or not, the Applicant refers to his mother and a brother and a sister whose whereabouts are “unknown”. He does not list any cousins or uncles or aunts in Australia, finally stating “I don’t know I have anyone in Sudan that I could be with”.
Further details are given in a history obtained by psychiatrist Dr Furst. In his report of 3 September 2010 he writes:
“Mr Daw is the youngest of four siblings, with three brothers and one sister, however all of his brothers were killed in 2000 during the civil war affecting the Darfur region of Sudan. He does is not certain about the welfare of his parents because he had to flee his homeland, however he believes that his father was also killed in 2002.”
A pre-sentence report dated 27 May 2011 states in relation to the Applicant:
“Mr Daw stated that he is one of three children to his parents union. He claimed that his father was killed as a result of the civil war in 1995. He further stated that his mother is still alive in Sudan and he has had irregular telephone contact with her since arriving in Australia. The offender further claimed that his brother died in 2009 from natural causes and he has not had any contact with his two sisters after leaving Sudan.
This Service was able to verify this information with the offender’s cousin who further stated the offender does offer financial support to his mother, brother’s wife and children whenever he is able to do so.”
Also, a record by the NSW Department of Corrective Services welfare case note report drafted 10/08/2011 reads inter alia:
“Have given Achen a phone call to his brother Michael 043451194 in regards to a death of family member. Phone call appeared to go okay.”
I note that the mobile telephone number quoted is an Australian number.
A case note by the NSW Department Corrective Services headed “Chaplaincy” and dated 09/09/2010 reads inter alia:
“… Sought refugee status through Australian Embassy in Egypt. It would seem that both parents are dead. Sister and brother (s)? still living overseas? … Expectation from siblings he would be working and sending money to them. Is concerned about immigration and possible deportation. …”
The information obtained is contradictory, but there is strong reason to believe that the Applicant still has family or extended family in Southern Sudan. For example, a prison welfare officer noted on 23 November 2009:
“Inmate wanted me to place him on the telephone to Sudan.”
As discussed above, the Applicant’s relationship with his wife seems to have broken down irretrievably. There is no indication that she or the children would accompany him to Sudan, particularly South Sudan.

Age:

The Applicant is still of an age where he could readily adapt to Southern Sudan where it is proposed that he would go.

Health:

The Applicant has been diagnosed as suffering from Post Traumatic Stress Disorder (PTSD). The Applicant denies that he has any mental health issues.
On 7 January 2011 having been admitted to Parole the Applicant was interviewed by a staff member at Bundaleer Community Offenders Support Programme. At that time he denied that he had ever had any mental health issues.
Even if Dr Furst’s diagnosis of PTSD could be sustained, given the differing histories in this matter, it seems given his rejection of any mental health issues that he would not avail himself of any treatment regime in Australia, so that the lack of any facilities for treatment in Southern Sudan is immaterial to the decision before me.
In passing, I note that apart from the issue of siblings and his mother there are other discrepancies in the history taken by Dr Furst and other records pertaining to the Applicant’s history in Australia. In diagnosing anxiety spectrum illnesses such as PTSD, where there is no florid psychosis involved, any diagnosis is only as good as the history taken.

Links to the country to which the Applicant will be removed:

Generally this has been discussed above. There is no doubt that life in Southern Sudan will be less pleasant for the Applicant than in Australia, however, as the most recent humanitarian report states:
“Mr Daw is a Christian from the Dinka tribe. …
Mr Daw is unlikely to face discrimination on the basis of his religion or ethnicity if he returned to Republic of South Sudan. Mr Daw is an ethnic Dinka. The Dinka tribe is one of the major tribes in Republic of South Sudan. …”
That report concluded by stating:
“While there are no non refoulement obligations in relation to Republic of South Sudan, it should be noted that the general security situation continues to be a problem. There is no reason, however, to believe that Mr Daw would be targeted should he return to Republic of South Sudan. He can reduce his exposure to tribal conflict by living in an urban area. His mental health issues raise concerns of a humanitarian nature which are exacerbated by his claim to have no family members left in Republic of South Sudan.”
The question of what family the Applicant does in fact have in Republic of South Sudan, including extended family, has been discussed above.

Hardship likely to be experienced by the Applicant or his family:

There is no evidence that the Applicant’s wife and children will experience any additional hardship if he was deported. They have been without the Applicant’s support for a considerable period of time and as refugees are entitled to the receipt of social security benefits. In addition the need for an AVO to protect the wife would be obviated if the Applicant was no longer resident in Australia.
Given his age, background and physical health I can see no evidence that the Applicant would experience exceptional hardship upon his return to Southern Sudan. As indicated above, I am not convinced that he does not have family who might be of some assistance upon his return.

Level of education:

The Applicant has a lack of formal education qualifications, but I do not see this as a factor affecting any decision to cancel his visa.

Whether the Applicant was previously advised regarding his conduct and liability to deportation:

The Applicant was not formally advised, prior to the conduct giving rise to the decision to cancel his visa, that any future bad conduct might endanger his visa status.
Although the Applicant was never formally notified of possible visa cancellation I note that on 9 September 2010, that is to say before the commission of the offences leading to visa cancellation, the NSW Department of Corrective Services noted that the Applicant was “concerned about immigration and possible deportation”. The Applicant therefore cannot be said to have been under any misapprehension as to the fact that continuing criminal behaviour could place his ongoing residence in Australia in jeopardy. This he then ignored.
The Applicant submitted that he was not a risk to the Australian community as his offending behaviour was directed towards his wife.
Apart from the fact that the Applicant’s wife (and children) are part of the Australian community, the submission is otherwise flawed in that the offence of being armed with intend to commit an indictable offence was committed against another person, not his wife, against whom he had a grudge.
I have considered the matters raised by the Applicant and the material placed before me by the Respondent. Of relevance is the history of the Applicant’s offending as recorded by the NSW Probation and Parole Service. In a report dated 9 June 2011 it is stated:
“On the 12 October 2010 the Parolee received an 18 month custodial sentence at Parramatta District Court for the offences of ‘Assault Occasioning actual Bodily harm’ and ‘Contravene prohibition/restriction in AVO (Domestic) with a non parole period of 8 months’.
The Parolee was released to Parole on the 06/01/2011. His response to supervision was considered unsatisfactory. When he was first released he was residing at Bundaleer COSP. Due to repeated breaches of the COSP centre rules he was given notice to leave on the 8 February 2011. The offender moved to the Blacktown area where his supervision was taken over by Blacktown District Office. The offender’s response to supervision was superficial, he attended appointments on a regular basis however he failed to attend any interviews to address his underlying issues. On 24 March 2011 offender attended Blacktown police station where he was charged with new offences of Stalk/intimidate intend fear of physical harm and contravene prohibition/restriction in AVO. The offender was subsequently Breached and his Parole Order was revoked by the State Parole Authority. On the new charges the offender was found guilty and sentenced to a further term of imprisonment 9 months to date from 24/03/2011 with a non parole period of 3 months.”
I am particularly conscious of the fact that by cancelling the Applicant’s visa in all likelihood all contact with his children will be lost, and that Southern Sudan is not the most desirable place in the world in which to reside. Notwithstanding this, given the seriousness of the Applicant’s offences and his inability to recognise the gravity of his offending, I am satisfied that there is a real risk of him reoffending and that he presents as an unacceptable risk of harm to the Australian community.
In particular I am concerned that the Applicant, apart from not recognising his culpability, has a propensity to use everyday items as weapons for example a pen against his wife, resulting in actual bodily harm, and arming himself with a hammer with the intent to commit an indictable offence. These offences show the Applicant has a propensity to cause significant harm by the use of objects readily available to him, and were he to reoffend in this way, more serious harm could be occasioned and a more serious offence committed.
The protection of the Australian community outweighs all other considerations and the decision under review is affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

..............[sgd]..........................................................

Associate

Dated

Date of hearing	24 January 2012
Applicant	In person
Solicitors for the Respondent	Mr D McLean, Sparke Helmore

[2012] AATA 70

9 February 2012