Deng Mabior and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1155

Deng Mabior and Minister for Immigration and Border Protection (Migration) [2017] AATA 1155 (26 July 2017)

Division:GENERAL DIVISION

File Number:           2017/2887

Re:Emmanuel Amoul Deng Mabior

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC 

Date:26 July 2017

Place:Melbourne

The decision under review is affirmed

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

Senior Member A. Nikolic AM CSC 

MIGRATION – application for revocation of mandatory visa cancellation – cancellation of visa on character grounds under section 501 – substantial criminal record – consideration of principles under Ministerial Direction 65 – decision affirmed.

Legislation

Migration Act 1958 (Cth); ss 36, 499, 501(3A), 501(6)(a), 501(7)(c), 501CA(4)

Cases

Deng Mabior v The Queen [2015] VSCA 179
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463

Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Secondary Materials

Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014

Department of Foreign Affairs and Trade, South Sudan (14 June 2017) Smart Traveller < align="left">Department of Foreign Affairs and Trade, Sudan (14 June 2017) Smart Traveller < FOR DECISION

Senior Member A. Nikolic AM CSC

26 July 2017

1. On 3 August 2016 a delegate of the Minister for Immigration and Border Protection made a Mandatory Visa Cancellation Decision (the original decision) under section 501(3A) of the Migration Act 1958 (the Act), cancelling Mr Emmanuel Deng Mabior’s Class XB Subclass 202 Global Special Humanitarian Visa (the visa). The decision-maker was satisfied that Mr Deng Mabior did not pass the character test because he had a substantial criminal record and was serving a term of imprisonment of 12 months or more.

2. On 9 May 2017, after considering Mr Deng Mabior’s representations, another delegate of the Minister decided not to revoke the original decision. On 16 May 2017, Mr Deng Mabior asked the Tribunal to review this decision.

3. For the reasons that follow, the decision under review is affirmed.

   BACKGROUND

4. Mr Deng Mabior is a 36 year-old Sudanese national who fled to a Kenyan refugee camp in 2000 because of the civil war. Mr Deng Mabior submits that he was married with two children at the time, but became separated from his family who continue to reside in Sudan to the present day. He contends that his first wife has since moved on to a new relationship.

5. Mr Deng Mabior met a woman who was to become his second wife in the Kenyan refugee camp in 2002. Consistent with the Victorian Court of Appeal’s approach in Deng Mabior v The Queen [2015] VSCA 179, I will refer to his second wife as [R]. Mr Deng Mabior arrived in Australia on 25 June 2006 under the Refugee and Humanitarian Program. He recommenced his relationship with [R], who had arrived in Australia in 2003. They were married in 2007 and have three children, all born in Australia. In these reasons, Mr Deng Mabior’s children are referred to as [Child 1], [Child 2] and [Child 3], in descending order of age.

6. Between October 2010 and July 2016, Mr Deng Mabior was convicted of a number of offences, including recklessly causing serious injury to [R], for which he was imprisoned. At the time of his visa cancellation, Mr Deng Mabior was serving a sentence of full-time imprisonment for a criminal conviction. Based upon a National Police Certificate dated 27 July 2016, Mr Deng Mabior’s  convictions and sentences are as follows:

COURT	COURT DATE	OFFENCE	COURT RESULT
Sunshine Magistrates Court	13 July 2016	1.     Contravene Family Violence Final Intervention Order (2 charges). 2.     Unlawful assault. 3.     Contravene Family Violence Intervention Order Intending to Cause Harm or Fear for Safety. 4.     Criminal Damage With Intent to Destroy / Damage. 5.     Threat to Inflict Serious Injury. 6.     Commit Indictable Offence whilst on Bail.	Convicted. Aggregate 5 months imprisonment concurrent.
Sunshine Magistrates Court	4 August 2015	1.     Contravene Community Correction Order.	Proven.
Melbourne Supreme Court	20 July 2015	1.     Recklessly Cause Injury.	1 month imprisonment concurrent with sentence now serving.
Melbourne Supreme Court	17 July 2015	1.     Recklessly Cause Serious Injury.	Convicted. 18 months imprisonment. Community corrections order for 2 years commencing upon completion of imprisonment term.
Melbourne Magistrates Court	17 April 2014	1.     State False Name When Requested. 2.     State False Address When Requested. 3.     Drive Whilst Disqualified (2 charges). 4.     Fail to Answer Bail Granted (4 charges). 5.     Exceed Prescribed Concentration of Alcohol 3 Hours Breath Drive Vehicle (2 charges). 6.     Drive Whilst Authorisation Suspended.	On each charge aggregate 4 months imprisonment concurrent. Sentence is wholly suspended under s.27 of the Sentencing Act 1991. Operational period is 18 months. Disqualified from driving for 38 months.
Sunshine Magistrates Court	29 October 2013	1.     Contravene Family Violence Intervention Order (6 charges). 2.     Contravene Family Violence Final Intervention Order. 3.     Criminal Damage with Intent to Destroy / Damage. 4.     Unlawful Assault.	Convicted and a community correction order for 15 months. Unpaid community work perform 60 hours of community work.
Sunshine Magistrates Court	5 April 2012	1.     Fail to answer bail.	With conviction, fined $500.
Sunshine Magistrates Court	26 October 2010	1.     Drive whilst Authorisation Suspended.	Without conviction, adjourned to 27/04/2011. To pay $300 to the court fund.

LEGISLATIVE FRAMEWORK

1. Section 501(3A) of the Act is a mandatory cancellation power, requiring that:

   (3A)The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)…; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

2. Section 501(6) of the Act sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out at section 501(6)(a), is where a person has a substantial criminal record. In Mr Deng Mabior’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act. Mr Deng Mabior does not contest the convictions in his National Police Certificate, or that he does not pass the character test.

3. Section 501CA is relevant if the Minister has made a decision, known as the ‘original decision’, under section 501(3A) to cancel a visa that has previously been granted to a person. Section 501CA(4) provides that:

   (4)The Minister may revoke the original decision 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.

4. On 30 August 2016, responding to an invitation extended to him under section 501CA(3)(b) of the Act, Mr Deng Mabior made representations through his migration agent, Ms Arnela Tolic, seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act.

   Issues Before the Tribunal

5. As it is clear that Mr Deng Mabior does not pass the character test, the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under section 501CA(4)(b)(ii) of the Act, ‘… there is another reason why the original decision should be revoked’. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ elaborated on how to approach this discretion (at 345):

   “The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”

6. The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.

   DIRECTION NO. 65

7. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).

8. The Minister has made a direction under section 499, known as Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). The Direction applies to the visa cancellation decision affecting Mr Deng Mabior. 

9. Paragraph 6.1 of the Direction sets out the objectives of the Act, with the following relevant to Mr Deng Mabior’s case:

   6.1Objectives

   (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   (2)…

   (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

   (4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.

10. By way of general guidance, Paragraph 6.2 of the Direction provides:

    6.2General Guidance

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

11. The principles referred to in the General Guidance follow:

    6.3Principles

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (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 a 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.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (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.

12. Paragraph 7(1) sets out how the discretion under section 501CA is to be exercised:

    “Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)…

    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.”

13. Paragraph 8 of the Direction sets out how the considerations are to be applied, requiring decision-makers to take into account the primary and other considerations relevant to the individual case.  The considerations differ for reasons explained at paragraph 8(1):

    “… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”

14. In applying the considerations, paragraph 8(2) of the Direction requires decision-makers to give appropriate weight to information and evidence from independent and authoritative sources.  Paragraph 8(3) provides that: ‘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 a visa’. Paragraph 8(4) of the Direction states: ‘Primary considerations should generally be given more weight than the other considerations’. Paragraph 8(5) states: ‘One or more primary considerations may outweigh other primary considerations’.

    CONSIDERATION

15. In order to determine if there is another reason why the original decision should be revoked, I must apply the following primary considerations in Part C of the Direction to the specific circumstances of Mr Deng Mabior’s case (paragraph 13(2)):

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

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

    c)Expectations of the Australian community.

16. Other considerations under Part C that must be taken into account, where relevant to the specific circumstances of Mr Deng Mabior’s case, include (but are not limited to) (paragraph 14(1)):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims; and

    e)Extent of impediments if removed.

    Protection of the Australian community from criminal or other serious conduct

17. In relation to the first primary consideration regarding the protection of the Australian community, Paragraph 13.1(1) of the Direction states:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

18. Paragraph 13.1(2) of the Direction states:

    Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”

    The nature and seriousness of Mr Deng Mabior’s conduct

19. Paragraph 13.1.1 sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date:

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

    b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;

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

    d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    e)The cumulative effect of repeated offending;

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

    g)Whether the non-citizen has reoffended 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.

    The evidence

1. The circumstances of Mr Deng Mabior’s criminal conduct are drawn from the National Police Certificate dated 27 July 2016, sentencing remarks from Judge Quin dated 24 November 2014, and the appeal court remarks in Deng Mabior v The Queen [2015] VSCA 179. I have also taken into consideration Mr Deng Mabior’s written and oral evidence and the submissions made on his behalf.

2. The evidence shows that Mr Deng Mabior’s offences traverse approximately six years of his 11 year stay in Australia, encompassing offences that are violent in nature, that reflect an increasing seriousness over time, and in most cases, have been repeated:

   (a)Although no conviction was recorded for his 2010 offence of Drive Whilst Authorisation Suspended, he was subsequently convicted of the same offence in April 2014, in addition to two charges of Drive Whilst Disqualified, two charges of Exceed Prescribed Concentration of Alcohol, and one charge each of State False Name and State False Address;

   (b)He was convicted in 2012 and again in 2014 for Failure to Answer Bail, the latter conviction encompassed four charges of the same offence. He was also convicted in 2016 for Commit Indictable Offence Whilst on Bail;

   (c)He was convicted in October 2013 of a number of offences including Unlawful Assault. He was convicted of Recklessly Cause Injury and Recklessly Cause Serious Injury in July 2015, which is elaborated upon in paragraph 28. He was convicted of further offences in 2016 including Unlawful Assault;

   (d)He was convicted in 2013 and again in 2016 for Criminal Damage (Intent Damage / Destroy); and

   (e)He was convicted in 2013 on six charges of Contravene Family Violence Intervention Order and Contravene Family Violence Final Intervention Order. He was convicted of the same offences in 2016, in addition to Threat to Inflict Serious Injury. I note that a Family Violence Final Intervention Order is only made by a magistrate once a matter has been heard in court and the magistrate is satisfied that the defendant has committed domestic violence against a family member, and is likely to do so again.

3. The most serious offence that Mr Deng Mabior has been convicted of is Recklessly Cause Serious Injury, which relates to an incident on 19 January 2014, when he twice stabbed his wife in the chest during an argument. In sentencing remarks dated 24 November 2014, Judge Quin states that the injuries inflicted and its circumstances were ‘very serious'. If Mr Deng Mabior had not pleaded to the matter, Her Honour stated she ‘would have sentenced [him] to a period of imprisonment of five years, with a minimum term of three years’. Her Honour’s sentencing remarks include the following comments:

   ‘…you have pleaded guilty to an indictment containing one charge of recklessly causing serious injury. The maximum penalty for this offence is 15 years.

   …

   Your relationship with the victim has been intermittent since you arrived in Australia, although you had been living in her home with the children for about a month leading up to this incident.

   On Sunday 19 January 2014, [R] was asleep in her bedroom with [Child 3], whilst [Child 1 and Child 2] were asleep in the room opposite. You were at the house, clearly affected by alcohol and at about 6:45 am, you and [R] had an argument in the bedroom.

   She was frightened and went to the kitchen and took a knife, returning to the bedroom. A struggle took place and you stabbed her in the chest two times with a knife. You called triple zero and then handed the phone to her, for her to speak to emergency services. This triple zero call conversation is included in the depositions.

   After handing her the phone, you immediately left her house and drove away. An ambulance arrived and she was taken to Royal Melbourne Hospital…

   …

   She spent approximately two weeks in hospital and was required to undergo surgery on two occasions. She received two stab wounds to the left chest and suffered a collapsed lung, a fractured rib, bruising, and a cut airway which required further surgery. These were clearly injuries of a very serious nature.

   The most recent report of Dr [Z]… dated 29 July this year sets out those injuries and states:

   “Since the incident, she’s been suffering from post-traumatic stress disorder, getting anxiety attacks, sleeplessness, paranoid ideas and feelings of insecurity”.

   In her victim impact she states:

   “I just have to live with it for the rest of my life, and I really thank God that I’m alive today and to see my kids grow up. All I can think of is that I’m a survivor.”

   …

   … The more significant priors relate to your most recent court appearance on 29 October 2013 at Sunshine Magistrates’ Court.

   You were before the court on that occasion, on six charges of contravention of a family violence intervention order, criminal damage and unlawful assault. A family violence intervention order was made on 10 April 2013 on application of the police who had attended at the house on an incident where you threatened to kill [R].

   The breaches of this family intervention order, and the other charges also related to [R] and your attendance at the home between 9 July 2013 and 11 October 2013. In respect of the assault charge, this occurred on 10 October 2013, when you threatened to kill her, and at the time you were holding a small knife.

   You were convicted and placed on a community-based order for a period of 15 months with various conditions I note these offences took place prior to the time you had reported a resumption of nightmares and resorted to alcohol for self-medication.

   This offence was committed whilst you are on a community-based order, and whilst the family violence intervention order was current…

   …

   The sentences must convey the unmistakable message that male partners have no right to subject their female partners to threats of violence. The sentences must be of such an order as to strongly denounce violence in a domestic relationship… As to specific deterrence, as previously noted, your conduct breached an intervention order which had been taken out on behalf of the victim to protect her.

   …

   In respect of the charge of recklessly cause serious injury, you are convicted and sentenced to a period of imprisonment of two years. At the expiration of the period of imprisonment, you are to be placed on a community corrections order for a period of two years…

4. Mr Deng Mabior appealed his sentence based on a failure to fix a non-parole period, with the appeal being heard in Victoria’s Court of Appeal in April 2015. His appeal on this ground was upheld and his original sentence of two years imprisonment, followed by a two-year Community Correction Order (CCO), was reduced to 18 months imprisonment, followed by a two-year CCO.

5. After being released from prison in July 2015, Mr Deng Mabior again breached a Family Violence Final Protection Order and committed other violent offences, resulting in his re-imprisonment. Although not detailed in his national Police Certificate, Mr Deng Mabior agreed during the hearing that he had attended court in October 2016 in relation to contravention of his CCO and received a further term of imprisonment. He completed his sentence in April 2017, before being taken into immigration detention where he currently remains.

6. In his Statutory Declaration dated 20 June 2017, Mr Deng Mabior describes his criminal history as ‘unbelievable’ and that he has chosen to ‘do the wrong things and not abiding by law’. In his oral evidence, Mr Deng Mabior agreed that he had a ‘very bad criminal history’ but submitted that he had learned from his mistakes and was now ‘a totally different man’. His evidence focussed particularly on concerns for his children, stating that prior to his imprisonment and immigration detention, he contributed to his children’s lives by playing with them, taking them to school, helping with homework, putting them to bed, taking them to hospital when sick, and encouraging their participation in sports like soccer and basketball. His key concern was that, in the absence of paternal supervision, his children could follow the path of other troubled African youth in Australia. He contended that ‘a lot of the problems with African youth is because their father is not present…I want my children to be next to me, to discipline them’. He also wanted to alleviate financial pressure on [R], submitting that she was ‘financially struggling a lot’, particularly after having to borrow $3000 to pay for the services of a migration agent after his visa had been cancelled. He said that when he was at home, his wife ‘never had to work’.

7. In relation to the link between alcohol and offending, Mr Deng Mabior submitted that he was forcefully conscripted as a child soldier in 1990 and given alcohol, stating: ‘they gave us alcohol, we got drunk and then we killed people’. He said that he had seen his own father killed during an armed engagement and that after this time, ‘killing or being killed meant nothing’ to him. He said there was no counselling available during his time in Kenya and that after arriving in Australia, he tried his best to stay away from alcohol, but it was hard for him because he had to ‘drink alcohol to sleep’. He said that the counselling he had received and attending drug, alcohol, anger-management, and conflict-solving courses had made him a ‘better person’ than he was.

8. During cross-examination, Mr Deng Mabior was taken through his criminal convictions in detail, and agreed that his situation worsened from 2011 onwards due to excessive consumption of alcohol. He submitted that alcohol was ‘not an issue’ between 2006-2011, but became an increasingly significant problem after this time. Key aspects of Mr Deng Mabior’s evidence during cross-examination follow:

   (a)In relation to a Family Violence Intervention Order taken out to protect [R] in November 2011, he stated ‘maybe I got drunk, we had a fight and police got involved’. When asked ‘did you hit her?’, Mr Deng Mabior responded that he was drunk and could only ‘assume that, but I can’t remember what happened’.

   (b)In response to questions about another police callout on 3 September 2012, when [R] made an emergency call about being threatened with a knife’, Mr Deng Mabior stated ‘no – I didn’t have a knife at all’. On being reminded that he had pleaded guilty to unlawful assault with evidence presented of him holding a knife, Mr Deng Mabior contended that he only pleaded guilty because of the advice of his lawyer, in preference to a long, drawn-out legal process.

   (c)In response to questions about a further police callout on 16 November 2012, Mr Deng Mabior stated that following another argument with [R], he had thrown a television through the window and drove [R]’s car into the garage door, submitting that he did so by inadvertently choosing the wrong gear. For these offences, he was convicted and placed on a CCO for 15 months. Within a few months of this CCO being put in place, the stabbing incident involving his wife occurred. 

9. In relation to the stabbing incident in January 2014, Mr Deng Mabior submitted ‘I was having a lot of trauma and didn’t know what I was doing’. He contends that he had been drinking heavily the day before after learning that two former colleagues from Sudan had been killed. He said he had been woken up by his wife and was ‘really angry’. Mr Deng Mabior’s oral evidence at the hearing contradicted the factual basis of his account of this incident to police, on which Judge Quin sentenced him. Mr Deng Mabior contended that ‘as she fell, the knife fell into her chest…I tried to take the knife off her and as she fell the knife stabbed her’. I reminded Mr Deng Mabior that it was not open to him to dispute the essential facts found by Judge Quin. This was so because, as was noted in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (at 244):

   ... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal.

10. Mr Deng Mabior said that he was very drunk, had given his wife the phone after calling 000, and then left to resume drinking. He stated that he didn’t talk to the 000 operator because he ‘panicked’, but now acknowledges ‘it wasn’t the right thing to do’. He said it was his intent to hand himself in, but he was intercepted by Police before he could act on that intention. He submitted that he did not have communication with his wife until released from prison in July 2015, but continued to talk to his children via his brother’s phone each week. He said that while in prison he saw a counselor and undertook a drug and alcohol relapse prevention program of four weeks duration, attending two days a week. He submitted that he found the program helpful, contending that if he had done it earlier, he never would have offended. He claimed to have learned strategies about managing his anger by ‘walking away and calming down’, by ‘knowing your limit…being able to control’, and by avoiding alcohol and ‘bad friends’. Mr Deng Mabior also felt he had benefitted from counseling undertaken with Foundation House, but contends he did not continue with the counseling because of his re-imprisonment after an incident in March 2016.

11. Mr Deng Mabior agreed that he had only spent approximately eight months in the community after his release in July 2015, before being re-imprisoned in March 2016 following further violent offences in February 2016. He agreed these latter offences occurred after counseling, the courses he had participated in during his initial term of imprisonment, and seven sessions with a psychologist. He contextualized the February 2016 offences as resulting from feeling ‘angry’ because his brother had coordinated a meeting with community leaders, and his wife [R], which Mr Deng Mabior felt he hadn’t been consulted about. He said he didn’t want to participate in a forced reconciliation process because he ‘was drunk’. When asked why he was drunk, Mr Deng Mabior said ‘we were just having fun, me and my friends…a couple of shots of whiskey’. He denied that he had assaulted his brother, who had called the police, and claimed that he again pleaded guilty to the assault on the advice of his lawyer in preference to a drawn-out legal process. Mr Deng Mabior was convicted of these offences in July 2016 and sentenced to a period of imprisonment of 5 months.

12. In relation to his contribution to the Sudanese community, Mr Deng Mabior submitted that this included volunteering as a shooting and fitness coach for youth basketball teams, and in helping to raise money through activities like cooking sausages at the Braybrook Community Centre. He said he wanted an opportunity to show that he could value the opportunities given to him in Australia and would do ‘whatever it takes to make a difference’. He contended that he was ‘devoted to church now’ and attended ‘Bible studies’ and that [R] was also a ‘better woman now’ and was ‘not so argumentative anymore’. He said that he would use the Sudanese community hierarchy to help him not re-offend in the future, by giving his ‘respect to the community elders’, and by ‘getting in touch with them all the time’.    

13. In relation to his risk of re-offending, Mr Deng Mabior was given a number of opportunities to respond to this issue. He stated in response to a question from his solicitor: ‘the future is not controlled by me, I’m not saying I won’t do anything, I’ll try my best’. When I gave him an additional opportunity to explain, Mr Deng Mabior stated: ‘I don’t want to put up your hope that I won’t do this or that and then re-appear before you – I’ll try my best’. During re-examination by his solicitor, Mr Deng Mabior was again asked to respond to this issue, but was unwilling to provide a 100% assurance that he would not re-offend, stating: ’99.9% - I don’t want to say 100%’.

    Consideration

14. In weighing the nature and seriousness of Mr Deng Mabior’s conduct, I have had regard to all of the available evidence. I have also considered the Statements of Facts and Contentions of both the Applicant and the Respondent. I do not accept the submission by Mr Deng Mabior’s former migration agent that Mr Deng Mabior ‘has not caused or threatened harm to any individuals or the Australian community’, or that his convictions between 2010-2016 are ‘not of a serious nature or…against vulnerable members of the community’.  That submission is entirely inconsistent with the available evidence.

15. Although I have noted that Mr Deng Mabior entered an early plea of guilt prior to his committal on 19 June 2014, and that this was considered reflective of his remorse, Her Honour also noted that he had ‘blamed the alcohol for what had happened, and also [R] for arguing with [him]’. At the hearing, he submitted that his criminal offending is triggered by too much consumption of alcohol, which underpins Mr Deng Mabior’s explanations for most of his offending. This issue is further addressed later in these reasons when considering the risk he poses to the Australian community.

16. It is of significant concern that, after being released from prison after serving an 18-month sentence, Mr Deng Mabior again breached a Family Violence Final Intervention Order put in place to protect his partner, committed other offences, and was returned to prison. I acknowledge that in his representations, Mr Deng Mabior expresses contrition, stating ‘there are no words that can describe how much I have regretted all my actions’. But the evidence shows that Mr Deng Mabior’s regret has often been short-lived as evidenced by the repetitive nature of convictions for the same offences.

17. I note that orders have regularly been required to protect Mr Deng Mabior’s wife since 2008. Despite those orders Mr Deng Mabior has, on different occasions, threatened to kill his wife while armed with a knife and stabbed her while their children were present in the house, inflicting serious injuries. These include a collapsed lung, fractured rib, and a cut in her airway requiring further surgery. His actions reflect a wilful disregard for orders put in place to protect a vulnerable member of the community, who had been a victim of repeated acts of domestic violence, In that regard I consider his wife to be a vulnerable member of the community within the meaning of 13.1.1(b) of the Direction.

18. Mr Deng Mabior has also committed offences while on remand, breached his CCO, and his National Police Certificate reflects a cumulative effect of repeat and increasingly serious offences.

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

19. Paragraphs 13.1.2 of Direction No. 65 states:

    (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 likelihood 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).

    The Evidence

20. In the Applicant’s Statement of Facts and Contentions, Mr Deng Mabior’s former Migration Agent, Ms Tolic (who ceased to be his representative prior to hearing for medical reasons), contends that Mr Deng Mabior ‘did not cause harm [to his wife] that if it were repeated, may be so serious that any risk of similar conduct in the future is unacceptable’. In an earlier submission dated 16 May 2017, Ms Tolic, contends that he was a ‘good resident of Australia up until 4 January 2015, when [he] was imprisoned’. Ms Tolic also contends he ‘is not posing a danger to the Australian community…or the victim namely his spouse [R]…it is unlikely that he will reoffend or be a risk to the Australian community’.

1. Ms Tolic submits that at the time of his offending, Mr Deng Mabior ‘had not been receiving the appropriate counselling and treatment for his alcohol abuse’, and his ‘disregard to the judicial orders…does not demonstrate that he has no prospect/potential of rehabilitation’. In his evidence, Mr Deng Mabior submits that revocation of his visa cancellation will allow him to complete additional counselling and rehabilitation courses to further prove he is a changed man. He submits that he has ‘done some programms in prison that have helped me mentally and to realized who I am and what I am, eg. Angry management, conflict solving, drug and alchol cancelling and all the drug and alchol’s relaps programm’s (sic)’.  At the hearing, Mr Deng Mabior’s solicitor, Mr Monoah, submitted that ‘he is a person who is reformed and rehabilitated and poses no risk to Australia’. 

2. In her sentencing remarks relating to Mr Deng Mabior’s conviction for Recklessly Cause Serious Injury, Her Honour noted that ‘protection of the community’ was a relevant principle in sentencing him, particularly given his violent conduct while under the influence of alcohol. She also noted his consumption of alcohol had increased significantly at about the time of his commission of this offence, which Mr Deng Mabior submitted was caused by his discovery in December 2013 that two former colleagues in Sudan had been killed. He says this revived memories of the horrors of war he had experienced. Judge Quin accepted evidence from forensic psychologist Jeffrey Cummins to the effect that, at the time of this offence, it was ‘very probable’ that Mr Deng Mabior was suffering from a complex post-traumatic stress disorder and that, on the day of the incident, his judgement would have been impaired as a result of his intoxication. I have also had regard to submissions highlighting Mr Deng Mabior’s personal circumstances as a child soldier in Sudan and the evidence relating to his traumatic experiences and early exposure to alcohol.

3. Mr Deng Mabior’s excessive consumption of alcohol, which according to his evidence commenced in 2011, is a recurring feature in his offending and gives rise to concerns regarding his risk of re-offending. He contends that he no longer consumes alcohol and is confident it won’t be a catalyst for inappropriate behaviour in the future. I note a Statutory Declaration from [R] dated 31 August 2016, however, that ‘he tried many time to stop taking alcohol but has not been able to stop until he was sent to prison’. Having heard Mr Deng Mabior’s evidence and the supportive statements of his wife and others, I accept that his stated intention not to excessively consume alcohol and ‘be a better person’ is genuine and that he has developed some insight into his previous unacceptable behaviour. However, I also note his consumption of alcohol ceased due to imprisonment and subsequent placement in immigration detention. His intention to consume alcohol responsibly in the future and not to re-offend, has not been tested in the community or subjected to the stress of further bad news relating to former colleagues in Sudan. Based on his history to date, there is no reliable basis on which to base a judgement that he will achieve his intention.

4. I am particularly concerned about Mr Deng Mabior’s responses at the hearing regarding his risk of re-offending, which were less than reassuring. He stated variously in response to questions about his risk of re-offending: ‘the future is not controlled by me, I’m not saying I won’t do anything, I’ll try my best…I don’t want to put up your hope that I won’t do this or that and then re-appear before you – I’ll try my best…I don’t want to say 100%’.

5. I have had regard to a number of letters and statements tendered in support of Mr Deng Mabior, including:

   (a)Letter from Mr Michael Apout, Chairman of the Yirol Community Association of Victoria Inc., dated 29 August 2016;

   (b)Letter from Mr Mador Thou Pech, Chair-person of the Tonj Community in Victoria Inc., dated 24 August 2016;

   (c)Letter from Foundation House, the Victorian Foundation for Survivors of Torture Inc., dated 18 July 2017;

   (d)Letter from Mr Richard Deng, Public Relations Officer for the South Sudanese Community in Victoria Inc., dated 18 July 2017; and

   (e)Letter from Mr Bol Aweeng Machar Maduot, President of the Dinka Community Union of Victoria Inc., dated 18 July 2017.

   Consideration

6. My assessment of Mr Deng Mabior’s risk of committing further offences or engaging in other serious conduct is informed by paragraph 8(2) of the Direction, which requires decision-makers to give appropriate weight to information and evidence from independent and authoritative sources. No evidence was tendered at the hearing from independent and authoritative sources on the likelihood of Mr Deng Mabior re-offending or on which to base judgements that he had reliably broken the nexus between excessive consumption of alcohol and his violent criminal conduct. Mr Deng Mabior refers to counselling undertaken in prison and with Foundation House, but beyond a letter from Foundation House dated 18 July 2017, which states ‘…it is not clear why our contact did not continue’, there is no independent evidence before me of what counselling or rehabilitation courses Mr Deng Mabior has completed, or how this might influence his future risk of reoffending.   

7. I note that Mr Deng Mabior has been convicted of further violent offences despite the beneficial effects he says have resulted from counselling and courses undertaken during his first term of imprisonment and its immediate aftermath. Were he to repeat his violent criminal conduct, the nature of harm to his wife, the police, and other community members would be very serious. The Australian community’s tolerance for the risk of such future harm is understandably low.

8. Mr Deng Mabior contends, through Ms Tolic’s submission dated 16 May 2017, that he has ‘attended classes prior to being incarnated, which have assisted him in rehabilitation from his alcohol abuse….during his time in prison and detention centre Mr Mabior Deng has utilised all available resources to get further assistance as required to re-enter the community as a rehabilitated person…(sic)’. I note, however, that Mr Deng Mabior’s involvement in rehabilitative opportunities coincides with his incarceration and that his re-offending over a six year period is not reflective of someone who has sought to change their ways. It has been submitted that the Sudanese community would be a valuable resource for Mr Deng Mabior in the future, given their experience in assisting people with similar backgrounds who require counselling and support to deal with the psychological consequences of the civil war. It is of concern, however, that Mr Deng Mabior appears not to have taken advantage of that community expertise during his eleven year stay in Australia. The evidence shows that, despite the efforts of his own family and Sudanese community leaders to intervene and provide support, Mr Deng Mabior resisted their approaches and continued his criminal offending.

9. The available evidence does not support a finding that Mr Deng Mabior has taken advantage of the rehabilitative opportunities and community support available to him, by moderating his criminal conduct. Moreover, given his imprisonment, followed by re-imprisonment, and then immigration detention, I find that the results of any claimed rehabilitation benefits are yet to be tested in the community.

10. Ms Tolic contended that Mr Deng Mabior has shown ‘remorse of his actions, (sic) which should be given high weight as it is unlikely that he will reoffend of be a risk to the Australian community (sic)’. At the hearing Mr Deng Mabior repeatedly expressed his contrition and remorse, stating that he would ‘try his best’ not to re-offend in the future. For the reasons previously adduced, that intent is less than convincing, particularly when his positive aspirations are balanced against the realities of his offending over a six-year period. His increasingly serious offences have been directed at his own wife and brother. He has clearly failed to learn from initial offences by repeating them. In the case of his contravention of a CCO in 2015, he has failed to comply with corrective penalties. Of most concern is Mr Deng Mabior’s repeated breaches of a family violence intervention order, assault offences, a previous threat to kill [R], and attempts to deflect blame for the reckless and serious injuries he inflicted on her.

11. In response to Ms Tolic’s contention that Mr Deng Mabior’s ‘disregard to the judicial orders…does not demonstrate that he has no prospect, potential of rehabilitation’, I accept that proposition. But disregard of judicial orders and the repeat nature of his offences is also indicative of someone who has very little respect for Australia’s laws, heightening concerns about his future risk of re-offending.    

12. I accept that Mr Deng Mabior’s traumatic childhood has resulted in residual problems that remain unresolved, but the evidence shows that even after receiving counselling and other assistance, he has chosen to re-offend. The evidence shows that he has not been law-abiding for much of his stay in Australia, has demonstrated disrespect for Australia’s laws by repeating offences, and through his actions, has caused harm and threatened harm to individuals and the Australian community.

13. I have placed all of these factors in the balance in assessing the risk Mr Deng Mabior poses. Having regard in particular to the violent nature of his past offending, the serious harm that would result from it being repeated, and the fact that the underlying circumstances Mr Deng Mabior would return to in the community have not substantially changed, I consider that his risk of re-offending and committing further serious crimes is unacceptable.

14. Mindful of the framework principles and after considering the nature and seriousness of his conduct, coupled with an assessment of the risk he poses to the Australian community, I find that the primary consideration of protection of the Australian community weighs heavily against revoking the cancellation of Mr Deng Mabior’s visa.

    Best interests of minor children in Australia affected by the decision

15. Paragraph 13.2(1) of the Direction requires that I must determine whether revocation is, or is not, in the best interests of Mr Deng Mabior’s children. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.  In considering the best interests of the child, paragraph 13.2(4) provides:

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    a) The nature and the 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 no 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 conduct 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 the non-citizen’s ability to maintain contact in other ways;

    e)Whether there are 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; and

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

    The evidence

16. Mr Deng Mabior submits though his Migration Agent, Ms Tolic, that:

    The delegate for the minister has not applied the law correctly, namely Article 3 of the United Nations Convention on the Rights of the Child, as Mr Deng Mabior has 3 children, their best interest must be the primary consideration…The delegate stated in decision record (sic) that best interest of the children (sic) is for their father to returned (sic) back to South Sudan and be permanently separated from him’.

17. Ms Tolic submits that Deng Mabior ‘plays a major role’ in his children’s lives, speaks to them on ‘a daily basis and advises them and educates them on their best interests’. She submits they are ‘not eating properly, sleeping or concentrating at school as they miss their father dearly’. Ms Tolic states there is ‘currently no court order in place for Mr Deng in terms of his children access (sic)’, and no ‘evidence of any physical / emotional trauma that children have suffered from their father’. Consistent with the evidence of [R], I accept that Mr Deng Mabior’s children miss him, talk to him regularly and visit him when they can. I also accept there is no evidence about whether the children have been affected by their exposure to Mr Deng Mabior’s stabbing attack on [R]. Based on the fact that the children have been previously exposed to volatile arguments, violence and abuse that Mr Deng Mabior directed at his wife, I do not discount the possibility that the children may have experienced emotional trauma as a result of Mr Deng Mabior’s conduct in their presence.

18. Mr Deng Mabior submits that prior to his imprisonment he was heavily involved in his children’s lives, sharing his passion for basketball with them. As noted above, Ms Tolic submitted that as a result of Mr Deng Mabior’s separation from his children, ‘they are not eating properly, sleeping or concentrating at school as they miss their father dearly’. During her oral evidence, [R] stated all three of her children were showing worrying signs in the absence of their father and his extended absence was ‘really hurting’ them and [Child 3] in particular, who ‘can’t eat and has lost a lot of weight’. In his Statutory Declaration dated 20 June 2017, Mr Deng Mabior highlights the love he has for his children and the impact on them if he is unable to remain in Australia. He submits that he doesn’t want his children to ‘turn out to be bad kids on the street because of lack of their father’s disciples (sic)’. By remaining in Australia, Mr Deng Mabior wants to help guide his children in avoiding the mistakes that he and others of Sudanese origin have made. Mr Deng Mabior also contends that the financial and emotional pressure on [R] would be significant if she had to raise three children on her own as ‘a single mom’. He states that his wife still loves and misses him and that the children ‘can’t wait’ for him ‘to come back home’.

19. I have had regard to the Statutory Declarations from [R] in the T-documents and those dated 15 June 2017 and 20 June 2017, which were tendered into evidence. [R] contends that regardless of their ‘ups and downs’ as a couple, Mr Deng Mabior is an ‘excellent father’, and that the children are his ‘priority’. She contends that the children visit him whenever possible or talk to him on the phone. She contends that he dedicates his time to washing, dressing, feeding and playing with them and helping with their school work, picking them up and dropping them off from school and extracurricular activities. She describes him as an ‘idol hero’ in their children’s eyes, who miss him so much that they cry themselves to sleep every night because their father doesn’t get to tuck them in bed and read them a bed time story. [R] also highlights the difficulties she would face as a mother of three children if required to raise them by herself. In that regard she shares Mr Deng Mabior’s view that many young Sudanese are getting into trouble because they lack fatherly discipline. She states that she loves Mr Deng Mabior, who was ‘very remorseful’ and had apologised to her about the stabbing incident, contending that he will reside with her and the children in the future, and pleads that he be given a ‘second chance’. 

20. [R] agrees that Mr Deng Mabior has physically assaulted her, but that ‘it wasn’t his fault’ but a problem with alcohol, and that ‘when he has no alcohol in his system he’s a normal person’. She said he hadn’t physically laid a hand on her prior to the stabbing incident, agreeing however, that he had directed verbal abuse at her. Initially [R] submitted that ‘we were struggling and I think I fell on the knife’, but after further questioning did not contest the findings of Judge Quin. She contended that Mr Deng Mabior is ‘a changed man now’, with significant support available to ensure he doesn’t re-offend. She states that ‘he’s more focussed and knows what he did was wrong…he’s never going to touch alcohol and he’ll seek help, and I will help him go to community leaders’. [R] submitted that she would value his financial contribution to the household, because even though she holds down two jobs, ‘financially it’s getting hard to pay my bills’, and ‘I also have a family to support back home (South Sudan)’.

21. I note the letter from [R]’s general practitioner dated 5 June 2017, stating that [R] is ‘slowly recovering’ from the physical and mental consequences of the violent attack on her by Mr Deng Mabior, including that she has been diagnosed with Post Traumatic Stress Disorder. He describes [R] as a ‘very caring and responsible mum’, whose mental and physical conditions are currently ‘stable’. He states that she is ‘worried about the raising of her children without the presence of their father’ and supports such a role for Mr Deng Mabior, conditional on his having ‘done a psychological rehabilitation program’ and being ‘deemed safe to get direct contact with her’.  I note also Mr Monoah’s submission that the children are struggling emotionally without the presence of Mr Deng Mabior, who could otherwise contribute financially, to their emotional well-being, to support their extra-curricular activities and to be an ‘extra hand’ for [R] in the raising of their children. Mr Monoah acknowledges that [Child 1] is ‘aware’ of what is happening, including the stabbing incident, but contends that the consequences of Mr Deng Mabior being removed are greater than the consequences of dealing with the children’s knowledge of past events.

    Consideration

22. Ms Tolic’s submission misrepresents the delegate’s reasons dated 9 May 2017. Those reasons do not reveal that the delegate determined ‘the best interests of the children is to…be permanently separated from him’ as Ms Tolic contends. The interests of Mr Deng Mabior’s children were treated by the delegate as a primary consideration, who acknowledged the requirement to act in conformity with Article 3 of the United Nations Convention on the Rights of the Child. Moreover, after considering the available evidence, the delegate concluded that the children’s best interests were served by the mandatory visa cancellation being revoked.

23. I note from the material obtained under summons from Victoria Police and contained in the G-documents, that there were a number of incidents where Mr Deng Mabior was drunk, aggressive, and intimidating to [R] in the presence of their children. These incidents involved assaults against [R] and numerous breaches of Family Violence Intervention Orders and Final Intervention Orders. One statement taken by Victoria Police from Mr Deng Mabior’s eldest child, who was six years of age at the time of the statement, provides an insight into his conduct in their presence:

    My dad woke my mum…and then my dad, he wants to talk to my mum but my mum said no, then my dad get the knife and then my mum was crying and my sister was crying and my mother was crying, and my dad said take [Child 3] to the sitting room and then… stab her and was crying. And then my dad said, “Shut up,” lots of times and my mum listen…And I heard my dad saying a bad word…And there was blood on the pillow, in the bed and the blanket….And my dad said the f-word and the b-word…and the sex word and s-word…I saw my mum get stab…and I saw her blood…and my mum and the police and the ambulance trying to take her to the ambulance cars and get her fix so probably take us park…the knife was really sharp and really more bigger…it’s for cutting food, not for cutting people…He said he got a surprise and he stabbed her…I went to my mum’s room and saw my dad stabbed her and I just smelled the blood…And my mum spit on the ground and there was blood.”

1. I again note there is no independent evidence before me about the effect on these children of being in such close proximity to such a violent incident. While I accept that Mr Deng Mabior feels he shares a close relationship with his three children and wants to be a part of their lives into the future, the evidence before me is of great concern, particularly given the occasions where Mr Deng Mabior has acted in an aggressive, intimidating and violent way towards [R] in the presence of their children. I accept his intent to play a positive role in the lives of his children in the future is genuine. But in light of his criminal history and actions in the presence of his children in the past, it is difficult to assess the extent to which Mr Deng Mabior is likely to play that positive parental role if allowed to remain in Australia.  I note [R]’s strong support in her Statutory Declarations and at the hearing of her husband’s application. In that regard I also note Judge Quin’s sentencing remarks on 24 November 2014, which included this reference to [R]’s letter in support of Mr Deng Mabior prior to his sentencing:

   I note however that [R] signed the letter…dated 7 April 2014, and at the time of the plea, your counsel was unable to assist me in ascertaining how that circumstance arose. I have been informed today by the prosecutor, that the victim felt pressured to sign the letter, pressure being exerted on her by leaders of the Sudanese community in relation to it, and that she had not in fact even read the letter.

   During the course of the psychiatric assessment on 25 September 2014, you informed Mr [C] that you had reconciled with her, but I am now informed the contact with her is to facilitate you seeing the children, and you are no longer together. You have arranged to live with your brother and his wife on your release from custody.

2. I therefore find that the supportive comments of [R], who is a victim of Mr Deng Mabior’s violent offending, must be treated with caution. I also do not accept the submission of Ms Tolic that [R] ‘…will not be able to cope on her own…’. The facts in this case reveal that [R] has coped despite the intermittent nature of her relationship with Mr Deng Mabior, which encompasses numerous Family Violence Protection Orders and periods of imprisonment. It is to her credit that she has been able to hold down two jobs and provide an independent source of income for her children for approximately five years.

3. Should Mr Deng Mabior not be permitted to remain in Australia, I accept his children will find it difficult to travel and see him due to the costs involved and the difficult circumstances of travel within South Sudan. There is a likelihood he will not be a prominent part of their lives as they grow up, which would be very difficult for him and his children. That may have an adverse emotional impact on them, depriving them of the opportunity to easily continue their relationship with their father. They might be able to maintain contact utilising phones and the internet, although this is a poor substitute for direct contact. However, I also note Mr Deng Mabior has not been a consistent presence in their young lives and notwithstanding the lack of expert medical advice, I remain concerned about the longer-term effects of their exposure to the repeated aggression and violence in the family home. I find that there have been long periods of absence, or limited meaningful contact between Mr Deng Mabior, [R] and their children, including when Family Violence Protection Orders have been in place, during his imprisonment, and on other occasions. I note that [R] has fulfilled the predominant parental role for extended periods and accept the evidence of her GP and others that she is a caring, hardworking and responsible mother.

4. Having considered all of the available evidence, I find that the best interests of Mr Deng Mabior’s children weigh in favour of revoking the decision to cancel his visa.

   Expectations of the Australian community

5. Paragraph 13.3(1) of the Direction states:

   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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

   The evidence

6. Although paragraph 13.3(1) is explicit about the Australian community’s expectation that non‑citizens will obey Australia’s laws, it is less prescriptive about what constitutes an ‘unacceptable risk’ when it comes to breaching that expectation, or the specific nature of convictions that might justify non-revocation of a visa cancellation decision. Paragraph 6 of the Direction and particularly the Principles in paragraph 6.3 help inform decision-makers about the ‘…community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’ (paragraph 6.2(1)).

7. Although ultimately a matter of judgement for each decision-maker, the facts on which that judgement is based must be drawn from the available evidence. That evidence extends beyond sentencing remarks and the decision-maker’s judgment must be able to be explained (Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72]). I have noted Mr Deng Mabior’s volunteering efforts as a member of Victoria’s Sudanese community and in particular the valued role he performed as a basketball coach. I have also had regard to the evidence about his work ethic since arrival in Australia and the letters of support provided by Mr Bol, Mr Deng and others, which contend that the needs of Mr Deng Mabior’s children require his continued presence in their lives. I note the Direction’s acknowledgement that the Australian community accepts some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.

   Consideration

8. Deputy President Frost has elaborated on the difficulty of distilling the expectations of the Australian community in Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81]:

   …[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.

9. Given the specific circumstances of Mr Deng Mabior’s case, the evidence shows he has repeatedly breached the trust of the Australian people through his criminal conduct and by committing most of his offences more than once. That is not reflective of a person who is respectful of Australia’s law enforcement framework. Moreover, the evidence shows that Mr Deng Mabior has previously shown little inclination to change his behaviour until confronted with the prospect of removal. The evidence also does not support a reliable finding that he is unlikely to repeat his criminal conduct in the future. Indeed the frequency, seriousness and repeat nature of his offences justify a finding that he represents an unacceptable risk of re-offending and again breaching the trust of the Australian people. In reaching that conclusion, I have had regard to the objectives of the Direction and its principles, the guidance on how to apply the concept of ‘expectations of the Australian community’, and the available evidence, including the favourable written references. I consider that the specific circumstances of Mr Deng Mabior’s case and the risk that his record of criminal offending poses, are such that the Australian community would not expect the Minister to revoke his visa cancellation.

10. While many Australians would sympathise with Mr Deng Mabior’s circumstances prior to arrival in Australia, I am satisfied that the expectations of the Australian community weigh strongly in favour of not revoking his visa cancellation.

    OTHER CONSIDERATIONS

11. The five other considerations at paragraph 14(1) of the Direction that I must take into account where relevant include (but are 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.

    International non-refoulement obligations

12. Paragraph 14.1(1) of the Direction requires consideration of whether an obligation exists ‘not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’.   

13. I have taken into account the submissions from Mr Deng Mabior’s migration agent that it is too dangerous for him to return to Sudan, that his life would be in danger, and that he would ‘undergo all the terrible things going on which had forced [him] to escaped (sic) from there and will obviously be Torture, Abuse and prosecuted (sic)’. Mr Monoah also submitted that if returned to South Sudan, Mr Deng Mabior ‘faces the risk of his life being threatened’. He acknowledged that Mr Deng Mabior’s wife had visited South Sudan in 2015, but contended that the capital Juba ‘had no hospital or significant infrastructure’. As for Mr Deng Mabior’s brother, who currently works for an international company in South Sudan, Mr Monoah submitted that his brother is on a limited tenure contract and is likely to return to Australia at some stage, which would leave Mr Deng Mabior isolated from family.

14. Mr Brown for the Respondent acknowledged the generally unstable situation in South Sudan and that if returned there, Mr Deng Mabior faces circumstances – most notably in relation to access to health services - that are not of the quality found in Australia. But he submitted there was no evidence to support the contention that any violence in South Sudan would be specifically directed at the Applicant. He pointed to [R]’s visit to South Sudan in 2015 and the fact that Mr Deng Mabior’s brother currently worked there for a foreign company. Mr Brown stated that [R] was of the same tribal group as Mr Deng Mabior, had similarly fled to Kenya during the civil war, but that the situation in South Sudan had changed significantly during the last 15 years to the point where she was able to visit and return safely to Australia. While acknowledging there were risks to anyone travelling to South Sudan as detailed in the federal Government’s Smart Traveller website, Mr Brown contended that the available evidence did not support a finding that the risk of harm Mr Deng Mabior may be exposed to rose to a level enlivening Australia’s non-refoulement obligations. Moreover, he stated it was open to Mr Deng Mabior to apply for protection under section 36 of the Act, where any such claims could be formally tested. Mr Brown noted during the hearing that Mr Deng Mabior has not yet made such an application, but it remains open for him to do so if he fears harm from a return to South Sudan.

15. I accept that South Sudan and Sudan (if Mr Deng Mabior were to cross the border, as a number of South Sudanese do) remain dangerous places for travellers and note in this regard the Federal Government’s Smart Traveller advisory for these countries, both dated 14 June 2017. The advice for South Sudan states: ‘Do not travel to South Sudan, including Juba, because of instability, ongoing conflict and deterioration of law and order’. The advice for Sudan states: ‘Reconsider your need to travel to Sudan due to the possibility of violent civil unrest and the threat of terrorist attack’. Consular services in both countries are limited, with the services in South Sudan described as extremely limited.

16. Paragraph 14.1(4) of the Direction makes clear that where a non-citizen makes claims which may give rise to international non-refoulement 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.  

17. I have considered Mr Deng Mabior’s submissions about the risks he may face in Sudan, noting that they are general in nature and lack probative value. I also find it is open to him to make a claim for another visa, particularly a Protection Visa under section 36 of the Act and to have his claims assessed and tested.

18. I therefore find it is not necessary to determine whether non-refoulement obligations are owed to Mr Deng Mabior for the purposes of this decision.

    Strength, nature and duration of ties

19. Paragraph 14.2(1) of Direction No. 65 states:

    … Reflecting the principles at 6.3, decision-makers must have regard to:

    a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:

    i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

20. I have taken into account that Mr Deng Mabior arrived in Australia in 2006 aged 25 and has lived here for 11 years. Mr Monoah submits that he has a strong connection to Australia through family, work and social groups, including with [R], their children, his mother and brother. Another brother is currently working in Sudan.

21. Mr Monoah submits that Deng Mabior has made a positive contribution to Australia, through his basketball coaching and as a supervisor at work. He contends that through his basketball coaching in particular, Mr Deng Mabior has helped integrate multiple ethnic groups in the Sudanese community, which helps divert their energies into positive pursuits.  Mr Deng Mabior contends that he has worked in three jobs for approximately eight years while in Australia and has gained post-graduate qualifications from Swinburne University while in Loddon Prison. I have not been provided with any documentary evidence, however, in relation to any academic qualifications, courses, or training completed by Mr Deng Mabior.

22. I have noted a number of witness statements attesting to Mr Deng Mabior’s valued contribution to the South Sudanese community, volunteering and basketball coaching to help keep ‘youth out of trouble’ – including his contention that three of the children he trained have been drafted into the National Basketball Association of the United States. Mr Deng Mabior submits that he has ‘contributed so much to the Australian community’ and looks forward to helping ‘those whom are still in need’.

23. I have taken into account the evidence of Mr Deng Mabior’s positive contribution and balanced it against the fact that his criminal offences commenced within four years of his arrival and encompass approximately six years of his stay in Australia. I find that this consideration weighs marginally in favour of revoking the cancellation of his visa.   

    Impact on Australian business interests

24. Paragraph 14.3(1) of Direction No. 65 states:

    Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

25. There is no evidence before me that Australian business interests will be affected by a decision not to revoke Mr Deng Mabior’s visa cancellation. No weight is therefore placed on this consideration.

    Impact on victims

26. At paragraph 14.4(1), Direction No. 65 states:

    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

27. Mr Monoah submitted that this was a complex issue, but that weight should be placed on the evidence of [R], who, as the victim of Mr Deng Mabior’s most serious offending, nevertheless states that she needs him back. He contends that [R] knows the applicant better than anyone and gave evidence that he is a remorseful, changed man. Mr Monoah contends that refusing to revoke the cancellation of Mr Deng Mabior’s visa would be akin to ‘punishing the victim twice’. In that circumstance, he says [R] would struggle financially and emotionally in holding down two jobs, while concurrently raising three children on her own.

28. Mr Brown submitted that [R] was not only the victim of a serious past attack, but the potential victim of a future attack if Mr Deng Mabior repeated his violent behaviour. He contends that it is [R]’s family circumstances that give rise to her request that Mr Deng Mabior be given another chance, to alleviate financial pressure and to help raise their children. In that regard, he contends that [R] is not in the best position to determine her own best interests.

29. Having considered the available evidence and relying substantially on the very strong evidence of [R] that Mr Deng Mabior be given another chance, I find that this consideration weighs marginally in favour of revoking the cancellation of Mr Deng Mabior’s visa.  

    Extent of impediments if removed

30. Direction No. 65 also states in paragraph 14.5(1) that:

    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)The non-citizen’s age and health;

    b)Whether there are substantial language or cultural barriers; and

    c)Any social, medical and/or economic support available to them in that country.

31. Mr Deng Mabior was 25 on arrival in Australia and it was submitted he would face substantial impediments if returned to South Sudan, including homelessness, an absence of family or social support, an inability to obtain adequate medical treatment, and potentially cultural and language barriers, given the extent of displacement suffered by the country’s 64 ethnic groups. In a submission to the Tribunal from Ms Tolic dated 16 May 2017, she states he would have to seek help from the Office of the United Nations High Commissioner for Refugees for protection and several 2016 articles were provided from the Guardian and Al Jazeera in relation to continued fighting in Juba. Mr Monoah also highlighted the difficulties Mr Deng Mabior would experience in relation to finding work, accommodation and medical support for the conditions he currently suffers from.

32. Ms Tolic submits that the conditions in South Sudan are of a ‘country in war (sic)…where people are being slaughtered on a daily basis…that number of those killed in South Sudan is increasing daily, with cut of water and food people are being starved to death (sic)’. She contends that Mr Deng Mabior will be exposed to ‘…violence and imminent harm, meaning high risk of death…if forced to return to South Sudan’. There is no evidence before me, however, that enables a reliable conclusion to be drawn about any specific risks Mr Deng Mabior may be confronted by, noting it still remains open to him to apply for a Protection Visa and to have any risks formally assessed.

1. Written submissions highlight that Mr Deng Mabior ‘suffers from several medical conditions’ requiring ‘daily medication for pain, depression and anxiety’ and that ‘he suffers from severe bilateral hip and lumbar sacral arthritis…’, for which he may find it difficult to access medical assistance if returned to South Sudan. A Clinical Handover Summary from International Health and Medical Services dated 26 August 2016 refers to CT results that show he does suffer arthritis of acetabular joints. In terms of medications, I accept Mr Deng Mabior’s evidence that he takes Voltaren for pain, Avanza for anxiety, and Tramadol / Lyrica for arthritis.

2. Mr Monoah submits that Mr Deng Mabior has no social or family ties in South Sudan or neighbouring countries and that it would be very difficult for him to re-establish himself. I accept from the available evidence that Mr Deng Mabior’s brother is currently working in South Sudan, and that his wife [R] visited South Sudan (Juba) in 2015. In terms of submissions relating to language and cultural barriers, I note that Mr Deng Mabior speaks the Dinka language and did not arrive in Australia until he was 25.

3. Mr Brown accepted that Mr Deng Mabior has a number of health issues and that his access to medical treatment if returned to South Sudan would be nowhere near as good as in Australia. He submits, however, that Mr Deng Mabior’s access to medical treatment would be the same as that available to other South Sudanese citizens. He agrees that South Sudan’s economy has been adversely affected by the civil war, resulting in limited job prospects, but that Mr Deng Mabior worked hard prior to his imprisonment and may be able to get some assistance from his brother who currently works in Sudan. That said, Mr Brown concedes that Mr Deng Mabior would find it difficult to re-establish himself if removed from Australia and that ‘separation from his wife and children in Australia will also involve considerable hardship’. 

4. I accept that Mr Deng Mabior has a number of medical conditions for which he takes medications. No specific evidence was tendered on the availability of medical services in various regions of South Sudan, including in support of the submission that the capital ‘Juba has no hospital’. But based on publicly-available information, I accept that the availability of services to treat any conditions Mr Deng Mabior may have, would be far less than those available in Australia. Any available services are unlikely to be government-subsidised and his medical conditions would likely deteriorate. I also accept that his job prospects would be limited and re-establishing himself would be difficult. The separation from [R], his children, his mother and brother in Australia would also add to feelings of isolation.

5. I find that Mr Deng Mabior would likely face significant difficulties in establishing himself in South Sudan after an 11-year absence, which weighs in favour of revoking the original decision to cancel his visa.

   Other Considerations

6. I have not identified any additional ‘other considerations’ relevant to this case as allowed for at paragraph 14 of the Direction.   

   CONCLUSION

7. Mr Deng Mabior has a substantial criminal record as defined at section 501(7)(c) of the Act, because he was sentenced by the Supreme Court of Victoria to 18 months of imprisonment. Notwithstanding Mr Deng Mabior’s early plea of guilt following the stabbing incident in January 2014, a custodial sentence was nevertheless ordered. Were it not for his early plea, Her Honour had intended to sentence him to a period of imprisonment of five years, with a minimum term of three years.

8. Following his release from prison in July 2015, Mr Deng Mabior was subsequently re-imprisoned for further violent offences. Having received a sentence of a term of imprisonment exceeding 12 months, I am satisfied that Mr Deng Mabior has a ‘substantial criminal record’ and as a consequence, does not pass the character test as defined at section 501(6) of the Act.

9. In determining whether there is another reason why the decision to cancel Mr Deng Mabior’s visa should be revoked, I have examined the specific circumstances of his case against the primary and other considerations in the Direction. I have attached significant weight to the violent nature of his offending, much of which has been directed against his own wife, who has been a victim of repeated acts of domestic violence.

10. I find that there is an unacceptable risk of Mr Deng Mabior re-offending.  The evidence shows that he has not been law-abiding for much of his stay in Australia and his criminal record reflects increasingly serious offences over time. He has demonstrated disrespect for Australia’s laws by repeating most offences, and through his actions, has caused harm and threatened harm to individuals and the Australian community. His prospects of re-offending are highly dependent on his ability to cease his excessive consumption of alcohol, which is not apparent from his re-imprisonment – even after receiving drug, alcohol and anger-management counselling during his first term of imprisonment. Given the nature and seriousness of his crimes and the unacceptable risk of his re-offending, I am of the view that the Australian community would expect Mr Deng Mabior’s visa to remain cancelled.

11. There are considerations, as detailed earlier in these reasons, which weigh in favour of revocation – most notably the interests of Mr Deng Mabior’s children and the significant difficulties he would have in establishing himself in South Sudan after an 11-year absence.

12. I have placed all of these factors in the balance and am not satisfied there is another reason why the original decision should be revoked. The primary considerations of ‘protecting the Australian community’ and ‘expectations of the Australian community’ outweigh the primary consideration of ‘best interests of minor children in Australia’ and any ‘other’ considerations favouring revocation.

    DECISION

13. It therefore follows that the decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 26 July 2017

Dates of hearing:	21 & 24 July 2017
Solicitor for the Applicant:	Mr K. Monoah
Solicitor for the Respondent:	Mr D. Brown Australian Government Solicitor