RCWV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2862

RCWV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2862 (30 August 2023)
Division:GENERAL DIVISION
File Number(s):2023/4055
Re:RCWV
APPLICANT

AndMINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:30 August 2023
Place:Adelaide

The decision under review is affirmed.
......................[Sgnd]..............................
Senior Member J Rau SC

CATCHWORDS
MIGRATION – Jurisdiction of the Tribunal where the Applicant claims to be Aboriginal-application of tripartite test- mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Frugtniet v Migration Agents Registration Authority (2017) 73 AAR 1
FYBR v Minister for Home Affairs [2019] FCA 50
Love v Commonwealth (2020) 270 CLR 152
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
30 August 2023
JURISDICTION- PRELIMINARY POINT

The Applicant’s representatives advised the Tribunal on 24 July 2023 that:
The applicant is a 34-year-old citizen of Sudan. The applicant contends that as an Aboriginal Australian, he is not an ‘alien’ for the purposes of s 51(xix) of the Commonwealth Constitution. This is the case even though the applicant holds foreign citizenship and is not an Australian citizen under the Australian Citizenship Act 2007 (Cth).[1]
[1] Exhibit 5, p 1.
On 24 July 2023, the Applicant lodged a Statement of Facts, Issues and Contentions and a Tender Bundle with the Tribunal.
The Applicant argued that:
1. although he is not biologically descended from indigenous people, he identifies as, and has been recognised as, an Aboriginal Australian;
2. the Applicant is an Aboriginal Australian and is therefore a non-citizen, non-alien;
3. as a consequence of his status as a non-citizen, non-alien:
(i) he is not an unlawful non-citizen;
(ii) he is being unlawfully detained; and
(iii) the Tribunal has no jurisdiction to consider the present application.
This raises two questions;
1. Is the Applicant Aboriginal person?
2. If he is, what does this mean for the Tribunal’s jurisdiction to hear this matter?
CONSIDERATION OF JURISDICTION
In Love v The Commonwealth, the High Court held that, “Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution”.[2]
[2] Love v Commonwealth (2020) 270 CLR 152 [81].
In Mabo v Queensland (No 2)[3] Brennan J stated that Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
[3] Mabo v Queensland (No 2) (1992) 175 CLR 1 [70].
The tripartite test therefore has the following limbs:
1.biological descent from indigenous people;
2.self-identification as a member of an indigenous community; and
3.recognition as such by elders or other persons enjoying traditional authority among those people.
It is necessary to satisfy each of these limbs.
Where a non-citizen does so, they fall within the category of people who are “non-citizen, non-aliens” and are not within the reach of the aliens power conferred by s 51(xix) of the Australian Constitution.
This matter was called on for a telephone direction hearing on 3 August 2023. The Tribunal heard from representatives of the Applicant and the Respondent.
The Tribunal found, that having regard to the fact that the Applicant does not have, or assert that he has, Aboriginal ancestry, he has failed to satisfy the first limb of the tripartite test. It was unnecessary in this jurisdictional context therefore, to consider the second and third limbs of the test.
These second and third limbs were however considered by the Tribunal in the context of Primary Consideration 3. If it were necessary to consider those limbs in this jurisdictional context, the Applicant has also failed to establish them. The Applicant has failed to meet any of the limbs of the tripartite test.
The Tribunal has found that Applicant is, therefore, an alien for the purposes of the Act. The matter is accordingly able proceed in the normal manner.
The Tribunal gave an ex-tempore decision to this effect on 3 August 2023. The Tribunal undertook to provide written reasons if requested. Although no such request has been made, this decision deals with the substance of that matter.
In view of this decision, the issue of jurisdiction, as raised by the Applicant, does not arise.
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 6 June 2023, not to revoke the mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian visa (“the Visa”). The Visa was cancelled on 3 September 2020, under section 501 (3A), on the basis the Applicant did not pass the character test.[4]
[4] Exhibit 3, G3, Attachment 3, p 8.
Sections 501(6)(a) and 501(7)(c) of the Act provides that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more the Applicant fails the character test on account of his conviction on 20 February 2020 of Assault occasioning actual bodily harm and sentence to an 18-month intensive correction order.[5]
[5] Ibid G4, Attachment U, 1128-1129.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 17 and 18 August 2023. The Applicant was represented by Mr Ziya Zarifi of Zarifi Lawyers and the Respondent was represented by Mr Keith Sypott of Australian Government Solicitor.
The Applicant gave evidence by Microsoft Teams from Christmas Island Detention Centre. Initially, the Applicant’s counsel advised the Tribunal that the Applicant needed to give evidence with the aid of an Arabic interpreter. I note from the evidence before the Tribunal that none of his recorded interactions with for example, psychologists or the justice system, make any suggestion that he was unable to communicate effectively in English. The hearing started with the aid of an interpreter as requested, but it quickly became evident that the Applicant was answering questions translated for him into Arabic, in English. The Applicant’s evidence was thereafter given in English, with the interpreter standing by, if so required. His services were not required. The Applicant displayed a very good functional grasp of English.
The Applicant was a very poor historian. He frequently responded to questions in cross-examination by saying that he did not remember. This is perhaps not so surprising, given his chronic abuse of alcohol over a prolonged period. He told the Tribunal that he did not remember things that had happened after 2009, because of his “trauma”. The trauma to which he referred, happened prior to coming to Australia. He could not, for example, recall why his brother and his sister had been in trouble with the law in Australia. Interestingly, he did seem to be able to recall some things which tended to support his case. For example, he recalled that he had never assaulted his brother. He could recall having commenced to identify as an Aboriginal person in 2017. He was at pains to repeatedly ascribe his offending behaviour to the consequences of “trauma” rather than taking responsibility for his actions or accepting that his chronic abuse of drugs/alcohol was a primary cause. He told the Tribunal that he now had “no issue with drugs and alcohol because I have had counselling. I don’t want to touch it.”
The Tribunal’s observation that the Applicant was a poor historian, was consistent with the reported observations of an expert forensic psychologist[6] called by the Applicant. The Applicant’s counsel submitted that this was all a consequence of his trauma, rather than evidence of an attempt to manipulate, or even conceal the truth. Having seen and heard the Applicant, and read all of the evidence, I do not accept this submission.
[6] Ms LV.
The Applicant freely conceded that he had a serious criminal record. He did however seek to minimise the severity of his offending and its impact on others. His remorse was focused on the impact on him, of his incarceration.
There were many instances where the Applicant told the Tribunal things that were untrue, or strongly self-serving. Some examples of this are recounted below.
Overall, the Applicant presented as an unreliable and inconsistent witness. In any material instance where alternative, independent evidence is available, it has been preferred over the Applicant’s account of events, to the extent that he has given any.
The Applicant called Mr W, the father of his partner AW. Mr W gave his evidence in a direct and forthright manner. I accept him as a reliable witness. His evidence in several respects contradicted, or at least shed a totally different light, on evidence given by the Applicant and AW. To the extent of any difference, his evidence is preferred. Details of this are discussed below.
The Applicant called LV, a forensic psychologist. LV prepared a very comprehensive report dated 10 August 2023. This was based on materials provided to her by the Applicant’s legal advisers and a four-hour video interview with the Applicant, conducted in English, on 27 July 2023. She was an impressive witness and provided helpful evidence to the Tribunal.[7]
[7] Exhibit 6.2, pp 1-33.
The Applicant called ES, who is an experienced trauma victim counsellor. She has been seeing the Applicant in that capacity since, November 2022 and has seen him on 15 occasions. She is not a forensic psychologist, and her evidence did not canvass the Applicant’s risk of reoffending. Her report dated 19 July 2023, is primarily focused on explaining the Applicant’s incoherence as an historian, by reference to his history of trauma. Within the limited bounds of her expertise, her report was helpful.[8]
[8] Exhibit 5, pp 284-287.
The Applicant called his partner AW. She provided a statement to the Tribunal dated 24 July 2023.[9]
[9] Ibid pp 42-47.
AW’s evidence presented some difficulties. AW is 38 years of age, and she has multiple health conditions. These include diabetes, sciatic nerve pain, various gynaecological conditions, depression and anxiety. In her oral evidence to the Tribunal, she referred often to her struggles with her mental health. AW is the mother of two young boys, Child B and Child C, with the Applicant. She is a victim of the Applicant’s past family violence offending. She is also now in a precarious financial and socially isolated position, such that any constructive support from the Applicant, especially financially, would potentially be very beneficial to her and to her boys. In this respect she is a vulnerable person.[10] Her evidence must be viewed through this prism. Some of her evidence was difficult to accept, or otherwise unreliable. Where alternative independent evidence was available to the Tribunal, for example from her father, Mr W, her mother Mrs. EW or her friend MF, this has been preferred. This is discussed further below.
[10] This assessment was shared by LV in her Cross-examination.
The Applicant called MF. She is a long-time friend of AW and has had the opportunity of observing AW’s relationship with the Applicant at close quarters from the start. Up until March of 2023, she lived with AW. Her evidence was given in a straightforward manner. I accept her as a generally reliable, independent witness.
The Applicant called Mrs. EW who is AW’s mother and the wife of Mr W. She gave evidence in a straightforward manner. I generally accept her as a reliable witness.
Background Facts
The Applicant was born in Sudan in December 1988. He states that he is a middle child of approximately 10 children born to his parents. He was raised as a Suni Muslim. Two of his siblings have not survived.
The Applicant states that his youth was severely disrupted by civil strife and communal violence. This is not disputed. The exact turn of events, however, is somewhat uncertain. There are numerous inconsistencies in his various accounts. This history was the subject of intense scrutiny by the AAT Migration and Refugee Division, (“MRD”) reported in a detailed decision published on 31 October 2022 (“the Protection Visa decision”).[11]
[11] Exhibit 4, G8, a), pp 1812-1830.
The Tribunal accepts that the Protection Visa decision is and remains, a current and lawful determination, of the matters then before the MRD in that matter.[12]
[12] See Frugtniet v Migration Agents Registration Authority (2017) 73 AAR 1
Despite submissions to the contrary, urged upon the Tribunal by the Applicant’s counsel, I am not persuaded that the circumstances relevant to Australia’s non-refoulement obligations towards the Applicant[13] have materially changed since the Protection Visa decision. Moreover, this Tribunal is entitled to and indeed must accept the Protection Visa decision in its own terms.
[13] i.e. a real chance of serious harm to the Applicant in Sudan due to his race, religion, nationality, membership of a particular social group, or political opinion.
Whatever the antecedent circumstances may have been, the Applicant and his family were granted humanitarian visas by the Australian Government.[14]
[14] Exhibit 5, pp 20-22; Exhibit 6.1.
The Applicant arrived in Australia on 19 May 2009. He was 20 years old.[15]
[15] Exhibit 3, G3, Attachment T, p 1116.
Initially he lived in western Sydney with his parents. He studied English at TAFE and worked in construction as a labourer.
In about 2010, the family moved to Orange. He performed seasonal work as a fruit picker.
Shortly after his arrival in Australia, the Applicant commenced a relationship with AI.[16] AI was also of Sudanese Muslim descent. Their relationship was troubled. He was apparently not accepted by her family. She fell pregnant in 2011 but had an abortion. She fell pregnant again in 2012. The Applicant has had very limited contact with AI since then. They last had contact in 2015. They still have a very poor relationship.[17]
[16] Exhibit 3, G3, Attachment F, pp 67–68.
[17] Exhibit 6.2, [21].
In 2011, the Applicant says that he commenced a relationship with AW.[18] This date is probably not correct. In a personal circumstances form completed by the Applicant on 11 January 2022, in answer to the question “date relationship started ?”, the Applicant has stated “2011”. In answer to the question about AW’s nationality, he has stated “Aboriginal-Australian”.[19]
[18] Exhibit 3, G4, Attachment F, pp 66-90.
[19] Ibid p 66.
In another undated personal circumstances form completed by the Applicant and received by the Respondent on 29 October 2020, in answer to the question “date relationship started ?”, the Applicant has stated “8/12/2012”. In answer to the question about AW’s nationality, he has stated “Australian”.[20]
[20] Ibid p 82.
He told the Tribunal that his relationship with AW started in 2012.
No explanation was offered about the differing dates that the relationship with AW commenced. No explanation was given that on one version of the facts, the Applicant was still with AI in 2011, who was apparently pregnant to him. No explanation was given for AW’s stated change in national identification, between the undated Personal Circumstances Form, received by the Respondent on 29 October 2020, and the second Personal Circumstances Form dated 11 January 2022.
In both of the abovementioned personal circumstances forms the Applicant indicated that he did not “identify as Aboriginal or Torres Strait Islander.”[21] I also note that when interviewed by LV on 27 July 2023, in answer to her question about his cultural identity, he spoke “of his Sudanese ancestry”.[22]
[21] Ibid pp 63, 79.
[22] Exhibit 6.2, p 8 [23].
In about 2012, the Applicant’s family moved back to Sydney.
On 17 August 2012, the Applicant’s daughter Child A was born to AI.[23] The child’s paternity has been the subject of some disputation. The Applicant told the Tribunal that a DNA test had established that he was the father. Exactly how, why and when this test occurred, remains unclear. The Applicant has had very limited contact with Child A and she is, for all practical purposes, a stranger. He told the Tribunal that he last spoke to her in about 2019. It seems that for a time at least, she was thought to be the child of AI’s later partner. Given the non-existent relationship that the Applicant has with AI, the prospect of this situation spontaneously changing before Child A becomes an adult, is extremely remote.
[23] Exhibit 3, G4, Attachment N, p 157.
The Applicant says that if he is returned to the community, he will seek to establish a relationship with Child A. This would almost certainly require the intervention of the Family Court. The course that any such legal process may take, if it were to occur at all, is highly speculative.
In a personal circumstances form completed by the Applicant on 11 January 2022, in answer to the question about Child A “will you live with the child on return to the community?”, the Applicant has stated “shared parenting”.[24]
[24] Ibid G3, Attachment F, p 67.
In answer to the question “describe your relationship with each of your minor children above, including how often you contact/see the children and the role you play in their life” the Applicant stated:
“I and AW are biological parents to two beautiful boys, Child B (6) and Child C (2).
I also have a beautiful daughter of 9 years, Child A, with my ex-partner AI
I enjoy a very close relationship with my children. I regularly call them and speak to them.
We discuss what we get up to in our day and anything new they have been up to.
My children have not been able to visit me due to the current covid restrictions. I miss them dearly and cannot wait to re connect with them in the community. I want to partake in both their happy and sad days. I want to be their role model and guide them to the right path in their life.
I want to be there for everything they need. I want to be there when they need help financially, emotionally and help them with any trouble they come across.”[25]
[25] Ibid p 68.
In answer to the question “describe any current impact on your minor children above, and/or any likely impact on them in the event of a negative s501 decision outcome.” the Applicant stated:
“If the decision for cancellation is not revoked my children will be devastated and lose hope in me - as I have always told them I will be coming to see them in the near future.
Life in Sudan isn’t easy.
Sudan isn’t easy. My children will face a lot of troubles, they will not have the education that is here, healthcare services, nor be safe.”[26]
[26] Ibid.
Inasmuch as any of these responses concern Child A, they are totally untrue. They seek to give the false impression of a paternal connection with Child A, that simply does not exist.

On 3 April 2012, the Applicant was convicted of possession of a prohibited drug and fined $1,000.00.[27]
[27] Ibid G4, Attachment A, p 31.
On 10 February 2014, NSW police records state:
“[…]
The exit side of the driveway has two lanes one lane dedicated for right hand turn and another lane for left turn. This intersection is controlled by a stop sign. Forest Road and the entry into the road surface is in a good state of repair. About 1.38pm on Monday 10/2/2014 vehicle 1 was travel ling along Forest Road in a generally southwest direction towards Orange Base Hospital. Vehicle 1 was being driven by driver 1. As driver 1 approached the entry to the Orange Base Hospital driver 1 failed to negotiate the left turn into the hospital ground and has mounted a concrete median strip. Vehicle 1 has become airborne over the median strip for a short distance before colliding with Vehicle 2 which was stationary in the left-hand turning lane of the hospital exit lanes. Vehicle 1 has collided with vehicle 2 with such force vehicle 2 has been forced over the eastern gutter and completed 1 complete revolution before coming to rest on its side, with the driver’s side of the vehicle on the ground surface and with the under carriage of the vehicle facing in a north westerly direction. Vehicle 1 has come to rest on top of vehicle 2 with both the front wheels of vehicle 1 off the ground. Driver 1 has freed himself from vehicle 1 before leaving the scene of the collision on foot. The passenger in the front passenger’s seat of vehicle 1 and driver 2 received injuries as a result of the collision. Emergency services were contacted and attended a short time later. Driver 1 was located by police running through a nearby golf course and was arrested. Driver 1 was conveyed to Orange Base Hospital for a precautionary check on his welfare. Passenger 1 and Driver 2 were treated both by medical staff from the hospital and ambulance before being taken into the hospital for further treatment. Driver 1 did not sustain any injuries as a result of the collision, blood sample was obtained from driver 1. After being released from the hospital driver 1 was conveyed to Orange Police Station and entered into custody. Both Driver 2 and passenger 1 have been admitted to Orange Base Hospital. Driver 2 has suffered major injuries and has been admitted to ICU. Passenger 2 has only received minor injuries. Driver 1 whilst in custody was introduced to the Custody Manager and informed of his rights under Part 9 of L.E.P.R.A after a time out had been completed to recover from the effects of intoxicating liquor. Driver 1 is a Sudanese National and has been living in Australia for the past four years. Police attempted to contact the Sudanese Consulate without success. Police were able to locate a support person for driver 1 being his cousin who also resides in the Orange area. Driver 1 participated in an electronically recorded interview where Driver 1 made full admissions to being the driver of vehicle 1. Driver 1 also stated that at the time of the collision he was highly intoxicated. Driver 1 stated that Driver 1 and passenger 1 had consumed 8 litres of port between the hours of 9.00am and the time of the collision. Driver 1 stated that he drinks heavily on a daily basis and was unable to remember the last day that driver 1 did not have an alcohol drink. At the conclusion of the interview driver 1 was released from custody pending the results of the blood alcohol tests . Initial investigations indicate that both speed and alcohol are contributing factors of the collision. Both vehicles towed from the scene and secured within Canobalas Lac's Holding Yard.
[…]”[28]
[28] Exhibit 4, G7, e), p 1798.
On 17 July 2014, NSW Police records state:
“[…]
The Accused (the Applicant) and the Victim . .. .. .. .. are mother and son. They currently reside at . ....... . ........ . . .. .. .. ..... .. .. ..... .. .... the Accused sleeps in a granny flat at the rear of the main residence. On the evening of Thursday the 17th of July 2014,[29] the Victim contacted Police as the Accused was well affected by intoxicating liquor and was causing trouble. The Accused was banging on the windows of the main residence and yelling abuse at the Victim. The Victim was unable to calm the Accused and as a result, the Victim contacted Police. Police arrived on scene and spoke with both the Victim and the Accused. The Accused agreed to go to bed and cease his behaviour. Police obtained details and left the location at about 11:15pm. About 11 :30pm on the same day Police again received a phone call from the Victim stating the Accused was smashing property and banging on the house. Police arrived on scene minutes later and found the Accused in the granny flat. Police spoke with the Accused again and explained he needed to go to bed. The Accused was argumentative with Police and the Victim. The Accused again agreed to go to bed and Police went to the main residence to speak with the Victim . Whilst in the main residence the Accused came to the back door and commenced banging before opening it. When asked what he wanted the Accused replied "Food." The Victim began making food for the Accused while Police remained and spoke with both parties. The Accused again began yelling at the Victim although in a different language which Police could not understand. When the food was ready the Accused requested chilli and again began yelling at the Victim in another language. Police informed the Accused he was to leave the house and return to be immediately. The Accused then stated in English words to the affect of ''I'm not eating this shit" and with that pushed the ceramic bowl containing the food from the bench in the kitchen to the floor. This caused the bowl to break and the contents of the bowl to spill onto a rug on the floor. The Accused was immediately handcuffed and placed under arrest. The Accused was led to the rear of a Police caged vehicle. The Accused was searched, all Safeguards under Section 201 of LEPRA 2002 were adhered to. The Accused was then conveyed to Blacktown Charge Room. The Accused was introduced to the Custody Manager .. .... .... Due to the Accused's level of intoxication the Accused was not offered the opportunity to participate in any interviews in relation to the offence. The Accused is now charged with the matter before the court. Victim was unwilling to provide a statement at the time, offence occurred in Police presence. Photo uploaded to View.”[30]
[29] Note the Applicant was living with his mother at this time not AW.
[30] Exhibit 4, G7, e), p 1796.
On 30 July 2014, the Applicant was convicted of destroy or damage property (DV) and fined $500.00.[31]
[31] Exhibit 3, G4, Attachment A, p 31.
On 19 November 2014, NSW police records state:
“[…]
The accused in this matter is (the Applicant). About 3:58pm on Wednesday the 19th November 2014 the accused, (the Applicant) left Orange in motor vehicle, bearing New South Wales registration plates ... ...... , a white Holden Acclaim with the intention of driving to Blayney. He was seated in the driver's seat. In the front passenger seat was a friend, ... . ...... Motor vehicle ......... is currently registered to her father, .......... . ....... and the accused and passenger . .. .. .... were driving to Blayney to collect ......... 's boyfriend from work. The passenger . ... . .... stated she didn't drive the said vehicle as "I'm on my L's and he knew the way as I've never been to Blayney". The passenger .. .. .. ... stated that "(the Applicant) told me he was on his red P's. I had no idea he had been drinking". On route from Orange along the Mitchell Highway the passenger . .. ...... stated that the accused was speeding and that at the intersection of the Mitchell Highway and Millthorpe Road the accused performed a burnout whilst turning. The passenger ........ . said that the accused continued to speed and she asked him to slow down a number of times but he refused. He was overtaking vehicles when it was unsafe and the passenger . .. ...... stated "he overtook so many cars." When the accused was approaching the township of Millthorpe, the passenger .. . ... ... was asking the accused to slow down again as he was trying to overtake a vehicle and was on the other side of the road. The vehicle has lost control and spun and collided with a fence on the western side of the road and became jammed in the fence . Motorists stopped and one included an off duty Police Officer who immediately called for local Police to attend. Witnesses stated that the accused was seen in the drivers seat and he was the person driving the vehicle prior to the collision . Police attended soon alter and it was observed that the accused appeared nervous and agitated. He was uncooperative with Police and refused any directions to remain still whilst Police attempted to speak to him. The accused began to play "chicken" with approaching vehicles by standing on the edge of the road and then walking out in front of approaching vehicles. Police attempted to apprehend the accused when a friend of the accused's arrived and the accused calmed down. The accused repeatedly stated he was not the driver and that the female passenger ....... was. The accused was submitted to a roadside breath test which proved positive. He was informed he was under arrest, searched and placed in the rear of a caged Police vehicle and conveyed to Orange Police Station. At Orange Police Station the accused was submitted to a breath analysis. This analysis returned a result of 0.182 grams of alcohol in 210 litres of breath. Certificate ... . .. ... was issued under Schedule 3 of the Road Transport Act 2013. The accused was offered the services of a doctor for the purpose of taking a sample of blood for analysis. The accused declined this offer. The accused stated he consumed three 7.50ml full strength beers approximately between 2pm and 4pm. No food was consumed. Police are of the opinion that the accused was moderately affected by alcohol. The vehicle the accused was driving, (redacted) sustained front end and wheel damage and will require towing from the scene. The fence the accused collided into sustained minor damage with a hole in the wire fence which will require repairs. At the time of the collision it was daylight, dry sealed bitumen road and there was a moderate flow of traffic. Millthorpe Road Millthorpe is a Road in the State of New South Wales. Police attempted to ask the accused about the status of his licence. When asked if had a driver's licence he replied "No" and said that Police had taken it previously. When Police attempted to ascertain further details the accused would repeat, "but I wasn't the driver". As such, Police have charged the accused with driving whilst suspended as he has not provided any contrary evidence. Police have requested bail conditions on the accused as this is his second high range PCA charge in nine months. Due to the serious nature of the first incident on the 10th February 2014 and that the accused is continuing to behave in the same manner and commit further offences. The accused is charged with the matters before the court.
[…]”[32]
[32] Exhibit 4, G7, e), p 1795.
On 17 December 2014, NSW Police records state:
“About 1330 of Wednesday the 17th of December 2014, the PINOP had driven the Defendant into town so he could attend at meeting to organise rehabilitation for his Alcohol problem. the PINOP has called the Defendant on several occasions enquiring about his whereabouts.
About 1900 the PINOP contacted the Defendant who sounded intoxicated so the PINOP has told the Defendant not to return home intoxicated. about 1910 The PINOP was outside when she saw the Defendant stumbling up Moresby Street towards her location, The PINOP has walked towards the Defendant meeting him down the street saying "You're not welcome, go leave" The Defendant just stood there swaying not communicating with the PINOP. The PINOP has gone inside locking the door to prevent the Defendant from entering the premises. The Defendant has approached the door and has started to argue with the PINOP. Again the PINOP has informed the Defendant he was not welcome at the location. The Defendant has told the PINOP "I'm not leaving, the police will have to take me away". Due to his actions the PINOP has called police. About 1930 police attended the location and observed the Defendant to be out the front of the location with a number of his friends. Police spoke to the PINOP who requested police to remove the Defendant. Police spoke to the Defendant informing him he was not welcome at the location, while speaking to the Defendant police observed the Defendant to be well effected by intoxicating liquor, he was unsteady on his feet, swaying and smelled of intoxicating liquor. The Defendant was argumentative with police but eventually left the are with his friends. About 2030, police were called back to the location due to the Defendant returning, as police arrived they observed the Defendant to be standing out the front of 8 Moresby talking to a Neighbour, the PINOP was also outside in the neighbours yard. The PINOP approached police informing them the Defendant she had told the Defendant to leave, which he refused again walking up close to the PINOP. The PINOP said to the Defendant "Just go, leave, do you want to kill our baby (the Applicant), I am stressed out" The Defendant replied "I don't care, I'll hurt you, I'll kill you, I'll kill anyone" The PINOP has pushed the Defendant away from herself fearing the Defendant could hurt her and their unborn child. The push has caused the Defendant to fall over, The Defendant has gotten up moving towards the PINOP, she has once again pushed the Defendant who then fell over onto the road. The PINOP has moved inside before going next door to the neighbours asking Tash to contact police. While waiting for police, the PINOP's other Neighbour has taken the Defendant a short distance away from the PINOP. About 2040 police returned to the location and obtained a version of events from the PINOP and neighbour. Police spoke to the Defendant, informing him they would be applying for an AVO and he would have to attended Orange Police Station. The Defendant became aggressive towards stating they were racist and only listened to women. When police asked the Defendant to remove any items from his clothing the Defendant aggressively shoved his hands in his pockets removing the items which flew out of his hands onto the ground. Due to the Defendants aggressive nature towards police, police decided to handcuff the Defendant, as police placed the handcuff on the left wrist of the Defendant, the Defendant started to struggle tensing his right arm resisting. Police were forced to utilise a arm bar take down to control the Defendant before placing the other cuff on his right wrist.”[33]
[33] Ibid pp 1792-1793.
On 19 January 2015, the Applicant was served with an ADVO for the protection of AW.[34]
[34] Ibid p 1791.
On 1 February 2015, NSW Police records state:
“About 2:50PM on Sunday 1 February 2015, the accused was at his usual residence of ……………, Orange. The victim arrived home about this time and noticed the accused to be under the influence of alcohol , and subsequently called police. About 3:30PM that day, police attended ... . .. .. . .. .. ..... and spoke with the victim. She informed police that she believed the accused had been drinking alcohol, and stated that an Apprehended Domestic Violence Order (ADVO) was in place, with a condition that the accused could not approach or contact her or be at her house at ......... ..... .. .. Checks conducted by police confirmed this. Police approached the house and observed the front timber door to be open, with a screen door dosed but unlocked. The accused approached police at the front door. Police introduced themselves to the accused in accordance with the provisions under Section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002, and asked if he had consumed any alcohol today. The accused informed police that he had consumed two long necks earlier that day. Police cautioned the accused, and confirmed with the accused that he had consumed two long necks that day. The accused corrected himself, and stated, "No, two schooners, at the pub over there?" Police will allege that the accused was referring to the …………, Orange. The accused stated he had consumed two schooner glasses of Victoria Bitter, a full strength beer. Police asked the accused if he was aware of the ADVO in place between he and the victim, and the condition which he had allegedly breached . At this point, the accused put his hands out in front of him and stated, "Ok, so you need to arrest me then ." The accused was handcuffed, searched and escorted to the police vehicle, where he was placed in the rear caged section . Whilst walking to the police vehicle, police asked the accused if he used any type of drugs, to which the accused stated he used cannabis, and had smoked an amount earlier that day. At the time of speaking and interacting with the accused, police observed the accused to have bloodshot eyes and his movements to be slow and unresponsive. Police noticed a strong smell of intoxicating liquor on the breath and person of the accused, as well as slow and slurred speech. From these observations, police will allege the accused was moderately affected by intoxicating liquor. The accused was conveyed to Orange Police Station, where he was introduced to the Custody Manager and entered into custody. The accused was read and acknowledged his understanding of his rights and responsibilities under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. The accused was afforded the opportunity to speak to a solicitor which he declined. The accused was offered the opportunity to take part in an interview, which he declined. The accused is now charged with the matters before the court.”[35]
[35] Ibid p 1791. See also Exhibit 3, G4. Attachment C, pp 51-54; Exhibit 4, G7. a), p 1753.
On 2 February 2015, the Applicant was convicted of contravene prohibition/restriction in AVO (Domestic) and fined $500.00.[36]
[36] Exhibit 3, G4, Attachment A, p 31.
On 26 February 2015, the Applicant entered the Lydon House Rehabilitation programme. Completion of the programme took 88 days.[37]
[37] Exhibit 4, G6, p 1714.
On 23 April 2015, the Applicant’s son Child B was born to AW.[38]
[38]Exhibit 3, G4, Attachment F, pp 67; Attachment N, p 158.
On 9 July 2015, a NSW Department Of Corrective Services pre-sentence report contains the following information:
“(The Applicant) stated that his parents separated shortly after their relocation to Australia. The offender reported that he has no ongoing contact with his father and described their relationship in negative terms. He reported that he shares a loving and supportive relationship with his mother and siblings and contact with his family has confirmed same.
(The Applicant) reported relocating to Orange in 2010 due to interpersonal issues surrounding the breakdown of a relationship with his then partner and her family in Sydney. The offender revealed that their still appears to be ongoing issues and contact with his ex-partner with regard to the paternity of her child[39] (The Applicant) stated that the ongoing harassment from the family and his ex-partner has caused a great deal of anxiety over a number of years. (The Applicant) alluded to being open to establishing the paternity of the child however; his efforts appear to have been blocked by his ex-partners family.
[39] AI.
The offender currently resides in rented accommodation in Orange with his current
partner of four years. Investigations have confirmed that his partner recently gave birth to their first child. Contact with his partner have confirmed that the child was born prematurely and both the mother and child remain in hospital in Sydney area to manage the child's ongoing medical needs.
The offender's partner described their relationship in fond terms however, alluded to (the Applicant’s) ongoing consumption of alcohol and cannabis as the primary cause of conflict in the relationship. She confirmed that following the offenders successfully completion and discharge from Lyndon House Rehabilitation on 24 May 2015 (the Applicant) has remained abstinent from alcohol and cannabis use and appears focussed on his child's recovery and their return to Orange.
[…]
It is noted that (the Applicant) entered Lyndon House Rehabilitation in Canowindra on 26 February 2015 and completed 88 days of the program.
[…]
Assessment
(The Applicant) is a 26-year-old male that has experienced a fractured upbringing, both with respect to fleeing his home nation as child and the associated issues with respect to his integration into Australian society. The offender's relocation to the Central West appears to have had an adverse impact on (the Applicant), having removed himself from his family and primarily support network in the Sydney region.
Following his relocation to Orange (the Applicant) developed a number negative peer associations and his abuse or cannabis and alcohol spiralled out of control to a point whereby he was drinking to intoxication and consuming cannabis on a daily basis.
During the adjournment period (the Applicant) complied with all assessment protocols and he was able to verbalise a degree of insight into the impact of his offending on his family and the community.
[…]
(The Applicant) appears to have made a great deal of progress to address his substance use issues by way of the successful completion of the Lyndon Rehabilitation Program and appears to have remained abstinent from both alcohol and cannabis. (The Applicant) is future focussed and currently presents as stable at this time from a perspective for suitability for Community Service. The offender is also accessing Lyndon Outreach support post release from Rehabilitation which may also require ongoing monitoring by Community Corrections to achieve his recovery goals of long-term abstinence.”[40]
[40] Exhibit 4, G6, e), pp 1713-1716.

On 27 July 2015, the Applicant was convicted of multiple serious driving offences and resisting an officer in the execution of his duty. Several fines were imposed, and he was sentenced to 12 months imprisonment, commencing on 27 July 2015, which was suspended upon entry into a 12-month supervision bond. He was also disqualified from driving for 2 years.[41]
[41] Exhibit 3, G4, Attachment A, p 31.
On 23 August 2015, NSW Police records state:
“CAR ......... .. .. .. ..... .. .. ..... .. .. .. . .. .. .. ... About 12PM on Sunday 23 August 2015, the PN contacted police regarding the victim allegedly throwing his belongings out on the front lawn after being kicked out of the house. Police arrived at the location about 12 :05PM and spoke with both parties. The PN stated he had called police because the victim had kicked him out of the house and started throwing his bags out onto the front lawn whilst it was raining. The PN and victim were amicable with police, with the victim stating she couldn't live with the PN any more, and the relationship was over. The PN agreed the relationship was over and he would be able stay with friends in Sydney, and that he would leave that afternoon. Both parties were somewhat satisfied with this decision. Police conveyed the PN to the Orange Railway Station to wait for the afternoon bus service to Sydney . No offences or breach of AVO was detected . NFPA . .. . .. .. .. .. .. .. .... . .. .. .. .”[42]
[42] Exhibit 4, G7, e), p 1790.
On 11 January 2016, the Applicant was convicted of negligent driving (occasions grievous bodily harm) offence.[43]
[43] Exhibit 3, G4, Attachment B1, p 32.
On 16 January 2016, NSW Police records state:
“[…]
16th January 2017
The victim ....... .. and the accused (the Applicant) were in an intimate relationship from approximately 2011 until April 2016. They have one child as a result of this relationship .. .. Child B ( 7/5/85) . The residence at .. .. ... ...... .. .... . ... .... is occupied by the victim and her child ... . ..... Child B. It is a single storey residence with the entry to the house located on the southern side of the premises, adjacent to the driveway. Next to the front door is a large glass window, separated into five panes of glass, two larger ones above three smaller and equal sized panes of glass. The victims mothers car, a silver Honda Civic, NSW . .. .. .. .. , was parked out the front of the house. About 6:45pm the accused was at the victim’s house. The accused was intoxicated at the time and the victim did not like the accused being in this state around the child, and as such she has asked the accused to leave and as he has done so has locked the front screen and wooden door. This has caused the accused to become angry. He has begun yelling out to the victim to let him see his son. The accused has continued this behaviour and has put his hand through the smaller pane of glass closest to the door, causing it to smash and for his hands to be cut out of which he began to bleed. The victim has walked to the front door and opened the wooden door, leaving the screen door locked . She has sighted the accused pick up a chair that was situated at the front of the house and throw it at the motor vehicle. This has caused a large dent and paint scratch marks to the boot of the vehicle. The accused has then picked up another chair and thrown it at the middle of the smaller windows causing it to smash. The accused has then thrown the chair at the remaining small pane of glass causing it to smash. The accused has left the chair in the window. During this time the accused continued to call out to the victim inside who was watching his actions. Whilst the accused was walking around he has left a large amount of drops of blood on the pavement. The accused has then walked up to the front screen door and began hitting it with his hands. The victim was standing on the other side of it and this has caused some of the accused's blood to land on the victim. The victim has began to call Police and the accused has left the location. Police attended a short time later and sighted the damage to the windows/doors and vehicle. This was photographed and a Domestic Violence Evidence in Chief statement was recorded from the victim. Police attended .. . .. ............ ... .. .. .. . where the accused presented himself at the front door. The accused was arrested, cautioned and conveyed to Orange Police Station. Upon arresting the accused Police sighted an injury to the accused's right thumb. Upon arriving at Orange Police Station the accused was introduced to the Custody Manager and read his rights under Part 9 of the Law Enforcement Powers and Responsibilities Act. The accused was attended to by the NSW Ambulance Service. The accused participated in an electronically recorded where he made full admissions to smashing the windows, however denied damaging the vehicle or the screen door. He stated the vehicle was damaged when the victim threw a chair at him and missed. When asked why he smashed the windows he stated it was to scare her. The accused is now charged with the matters before the Court.”[44]
[44] Exhibit 4, G7, e), pp 1784-1784.
On 9 October 2016, NSW Police records state:
“[…]
09/10/2016 21:13
[…]
About 06:00 on Sunday the 9th of October 2016 Victim 1 . .. .. .... and Victim 2 ......... were outside their premise's located in ……., Orange. At this time the Accused (the Applicant) was riding his bike in the street. The Accused has seen Victim 2 out the front of his house on the drive way cutting up a goat with a couple of other people. The Accused went over to Victim 2 and asked if he could sit down to which Victim 2 said yes. The Accused asked Victim 2 if he could have some of the meat he was cutting up for his dogs at home. Victim 2 said no and asked the Accused to leave. The Accused got on his bike and rode up for the street for about 50 metres before turning back around and going back to Victim 2's house. The Accused got off his bike and started yelling "I'm going to kill everyone in this street" The Accused then pointed his hand towards Victim 2 and Said " Get your wife inside. I'll kill you and rape your woman the mother fucking slut ". Victim 2 confronted the Accused and told him to fuck off. The Accused swung his right arm towards Victim 2 to which Victim 2 grabbed his arm and pushed him away. Victim 2 said "Just fuck off we don't need dramas here. My kids are in the house". Victim 1 has noticed the confrontation and went over to Victim 2's house. Victim 1 said "Piss off mate. Go home". The Accused got back on his bike and left the sight of both Victim 1 and Victim 2. About 5 minutes later the Accused returned to the area. At this time Victim 1 had returned to his house and was having a cigarette on his front veranda. The Accused rode up to Victim l 's front lawn and got off his bike. The Accused then picked up his bike above his head and threw it on the ground. The Accused has then reached down the front of his pants and retrieved a 20cm knife and pointed it at Victim 1. The Accused said. "I'm going to kill you, you white cunt". The Accused began to walk directly towards Victim 1. Victim 1 felt threatened and feared for his safety so he went inside his house and locked the door. Victim 2's wife Victoria called the Police. Police attended the scene and noticed the Accused to be on his red push bike in the middle of the street. Police stopped the vehicle and the Accused began to walk towards the Police car. Not knowing where the knife was police drew their firearm and pointed it at the Accused and told him to get on the ground. The Accused immediately got on the ground and Police placed him in handcuffs. The Accused was searched and two knives were located in a green punch down the front of his pants. The Accused was placed under arrest and conveyed to the Orange Police station where he was introduced to the custody manager. The Accused was read his right under part 9. Police obtained statements from both Victim 1 and Victim 2. Police booked in the two knives as exhibits. The Accused is charged with the matters before the court.”[45]
[45] Ibid p 1786.
According to AW, she separated from the Applicant on an unspecified date in 2016.[46]
[46] Ibid G6, a), p 1613.
On 7 February 2017, the Applicant is reported in NSW Department Of Corrective Services (Corrections) notes as having said of his relationship with AW “that he had come to the conclusion that the relationship is not in his best interests.”[47]
[47] Ibid p 1652; n) p 1740.
On 15 March 2017, the Applicant was served with an AVO in the following terms:
“The conditions of this order are:
1. You must not do any of the following to (AW) or (Child B) or anyone they have a domestic relationship with: A) assault or threaten them B) stalk, harass or intimidate them, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of (AW) or (Child B).
4. You must not approach or be in the company of (AW) or (Child B) for at least 12 hours after drinking alcohol or taking illicit drugs.
The duration of this order is 12 months from the 15/03/2017.
[…]”[48]
[48] Exhibit 3, G4, Attachment C, p 52.
On 31 March 2017, the Applicant is reported in Corrections notes as having described his relationship with AW as “ex-partner 2012-2016” and his relationship with Child A “no contact.”[49]
[49] Exhibit 4, G6, a), p 1588.
On 1 May 2017, the Applicant was convicted of destroying property<= $2000, custody of a knife in a public place-first offence, stalk/intimidate intend fear physical harm (personal) T2. He was sentenced to imprisonment for 18 months, suspended upon entry into an 18 month bond and fined $500.[50] Relevant passages from the decision of Magistrate Lucas are as follows:
[50] Exhibit 3, G4, Attachment B1, p 32.
“[…]
MONDAY 1 MAY 2017
[…]
HIS HONOUR: WHAT I INTEND TO DO IN RELATION TO TWO INTIMIDATION CHARGES SIR YOU ARE SENTENCED TO IMPRISONMENT FOR EIGHTEEN MONTHS SUSPENDED ON ENTERING A BOND UNDER S 12.
ACCUSED: All right.
HIS HONOUR: CONDITION OF THAT BOND WILL BE TO ACCEPT THE SUPERVISION OF THE PROBATION AND PAROLE SERVICE. They believe that you would benefit from their supervision so you do what they say sir.
ACCUSED: All right.
HIS HONOUR: If you do not they will tell me, I will issue a warrant and you’ll be back here, and you do not want to get out of remand sir.
ACCUSED: Yeah.
HIS HONOUR: Main population of prison is not good.
ACCUSED: All right.
HIS HONOUR: IN RELATION TO THE MALICIOUS DAMAGE AND THE CUSTODY OF A KNIFE THE KNIFE IS FORFEITED TO THE CROWN. IN EACH MATTER SIR YOU ARE FINED $500. I CAN ONLY GIVE YOU 28 DAYS TO PAY THAT. If you have any problems see them in the Court office, they can give you a time to pay.
ACCUSED: All right thank you.
HIS HONOUR: (the Applicant) the best way you can thank me and all your family who has obviously travelled that far, do you know how many people I see in your position that they’re family is willing to travel up from Sydney? About zero. They’ll all come up and why, because you’re here. If you’re going to let them down, well by means do.
ACCUSED: All right.
HIS HONOUR: But I assure you there’d be myself or persons doing this job that will more than happily send you to gaol from this point on.
ACCUSED: Thank you.
HIS HONOUR: No thank you sir, you thank me by just keeping out of trouble. Good luck (the Applicant) I mean that.
ACCUSED: Thank you very much.
HIS HONOUR: Thank you very much for coming ladies and gentlemen, safe trip back.”[51]
[51] Ibid Attachment B4, pp 47-50.
On 30 May 2017, the Applicant is reported in Corrections notes as having said of his relationship with Child A and Child B:
“[…]
(The Applicant) reports 2 major relationships in his life both of which resulted in a child. the first child is a 5 year old girl that lives in Sydney and (the Applicant) has no contact with her. the second Child is a 2 year old boy who lives in Orange and (the Applicant) reports to care for him 3 days a week. There is a Police AVO in place for the protection of the child's mother. (The Applicant) shows little victim empathy.
[…]
(The Applicant) has good English communication skills verbally but indicates that he struggles with written communication.
[…]”[52]
[52] Exhibit 4, G6, a) p 1591.
On 17 August 2017, the Applicant is reported in Corrections notes as having said of his relationship with AW and Child B:
“[…]
Partner: (his first response was "she took my son away from me" - I reminded (the Applicant) that we were looking at the impact upon the victim not himself) - a negative impact upon the victim - she lost her partner (him); she lost financially; she had to move house after the offences
[…]”[53]
[53] Ibid p 1594.
Between 14 and 21 September 2017, the Applicant is reported in Corrections notes as having been admitted to hospital with pancreatitis resulting from alcohol dependence.[54]
[54] Ibid p 1595.
On 31 October 2017, the Applicant is reported in Corrections notes as having said that he now has full time care of Child B.[55]
[55] Ibid p 1596.
On 1 November 2017, a police fact sheet records the following:
“[…]
The conditions of this order are:
1. You must not do any of the following to (AW) or (Child B) or anyone they have a domestic relationship with: A) assault or threaten them B) stalk, harass or intimidate them, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of (AW) or (Child B).
4. You must not approach or be in the company of (AW) or (Child B) for at least 12 hours after drinking alcohol or taking illicit drugs.
The duration of this order is 12 months from the 15/03/2017.
About 10.35am on Wednesday the 1st November, 2017 police attended (address) in Orange to conduct an Apprehended Violence Order (AVO) compliance check on the accused after receiving certain information.
At this time police spoke to the accused who answered the front door. Police explained to the accused they were at the location to conduct an AVO compliance check. Police sighted the victim, (Child B) standing just inside the doorway next to the accused.
Police confirmed with the accused that he was aware of the existence of the AVO and its conditions. The accused stated he was and that his ex-partner AW had explained to him the conditions. Police said to the accused, "You haven't had any alcohol to drink today have you?"
He said, "Yes".
Police replied, "What did you have to drink?"
He replied, "Two Schooners of beer".
Police replied, "When was this?"
He stated, "About 7'Oclock". Police asked where the accused had consumed this alcohol. He stated, "At the Royal". Police confirmed the accused meant the Royal Hotel in Orange and the time of the drink to be 7.00am when the hotel opened.
Police asked the accused when he had picked up the victim. He stated, "About 9". Police replied, "This morning?"
The accused replied, "Yes"
Police said to the accused, "Do you realise your AVO states that you can't go near your child or (AW) within 12 hours of drinking alcohol?"
The accused replied, "Oh no, I thought I just could not be drunk"
While speaking to the accused police could smell intoxicating liquor on his breath. Police formed the opinion the accused was slightly affected by alcohol due to being able to smell it on his breath and observing that his eyes were bloodshot.
Police asked the accused if Police had served a copy of the AVO on him. He replied, "No it was served on me in Custody".
Police made enquiries in relation to the service of the Apprehended Violence Order. These enquiries revealed the accused was present in Orange Local Court on the 15th March, 2017 when the Final Apprehended Violence Order was made.
As a result of these enquiries police advised the accused he was under arrest for a Breach of the Apprehended Violence Order. Police cautioned the accused.
Police made arrangements for the victim to be cared for by a family friend in consultation with the victim's mother.
Police conveyed the accused to Orange Police Station where he was introduced to the Custody Manager and explained his rights under Part 9 of LEPRA.
The accused was placed in contact with Legal Aid and obtained legal advice.
Police offered the accused the opportunity to be interviewed in relation to the matter. The accused stated to police, "No I don't want to be interviewed".
The accused is charged with the matter before court.”[56]
[56] Exhibit 3, G4, Attachment C, pp 52-54.
On 14 November 2017, the Applicant is reported in Corrections notes as follows:
“[…]
He described being happy despite his recent arrest for breach AVO. He is still the full time carer of his 2 year old child (Child B). he admitted that he had slipped up by drinking and forgetting that that is a condition on his final AVO , not to approach his ex partner of child within 12 hours of consuming alcohol or taking illicit drugs.
[…]”[57]
[57] Exhibit 4, G6, a), p 1597.
On 23 November 2017, the Applicant is reported in Corrections notes as follows:
“[…]
(the Applicant) was at home with his 2 year old son (Child B), he apologised for the mix up with the home visit the day before. (The Applicant) had been next door and had not seen us arrive. (The Applicant) said he is feeling well after having his gall bladder removed recently. he said he is enjoying looking after his son full time. He advised that he has a court date on Monday for – Breach AVO after the Police did a compliance check on the AVO involving his ex-partner and child - and he had breached the order by drinking within 12 hours of seeing his child. he said he is hoping to have the AVO varied on Monday. We thanked him for his time and made a NTR as below.
[…]”[58]
[58] Ibid p 1598.
On 27 November 2017, the Applicant was convicted of contravene prohibition/restriction in AVO (Domestic). He was placed on a 12-month bond to participate in alcohol and drug addiction counselling.[59]
[59] Exhibit 3, G4, Attachment A, p 30.
On 5 December 2017, the Applicant is reported in Corrections notes as follows:
“[…]
(The Applicant) stated that he spends a lot of time with his son or alone and this is when he is happiest. (The Applicant) stated that the change he would like to make is to give up alcohol. He is engaged in the DAHL and I suggested that he may need full time rehab again because he was successful last time- he stated that he cannot do this because of his son and having full time custody. . I will explore further with the offender. . He has not had a very happy life so can not think of very happy times other than being with his child. (The Applicant) talked about when he has worked in restaurants as a kitchen hand in the past and that is something that he would like to do again. Talked to offender about how he feels his mental health is and he stated he is doing well
[…]”[60]
[60] Exhibit 4, G6, a), p 1599.
On 14 November 2017, the Applicant is reported in Corrections notes as follows:
“[…]
He described being happy despite his recent arrest for breach AVO. He is still the full time carer of his 2 year old child (Child B). he admitted that he had slipped up by drinking and forgetting that that is a condition on his final AVO , not to approach his ex partner of child within 12 hours of consuming alcohol or taking illicit drugs.
[…]”[61]
[61] Ibid p 1597.
At some unspecified time in 2017, the Applicant claims to have been accepted as an Aboriginal person at a ceremony attended by members of AW’s extended family. This is discussed in more detail below.
In 2018, (according to a report from STARTTS dated 23 July 2021), the Applicant ended his relationship with AW and moved to Sydney. He claimed that his drug use escalated at this time.[62] This timing is not consistent with his other reports of the relationship having ended some time earlier.
[62] Exhibit 3, G4, Attachment I, p 125.
On 24 March 2018, NSW police records state:
“[…]
About 9.20pm on Saturday the 24th of March, 2018, the defendant attended the PINOPS house demanding to see his son. The PINOP refused to open the door to the defendant who continued to plead with the PINOP to let him in for the following 15 minutes. The PINOP stated that she could tell that he was intoxicated from the way that he was speaking, the PINOP stated that due to previous incidents she was worried about letting him in however stated that if he was not intoxicated that she would not have an issue with the defendant attending. A friend has heard the defendant at the location and has called police who attended shortly after. On police arrival the defendant has jumped the side fence to avoid police. Due to this police also have concerns of the defendants behaviour . . The informant was spoken to and it appears that he was only assuming that there was items being smashed. On speaking to the victim at no stage did (the Applicant) enter the house.
[…]”[63]
[63] Exhibit 4, G7, e), p 1778.

On 27 March 2018, the Applicant is reported in Corrections notes as follows:
“[…]
About 9.20pm on Saturday the 24th of March, 2018, the defendant attended the PINOPS house demanding to see his son. The PINOP refused to open the door to the defendant who continued to plead with the PINOP to let him in for the following 15 minutes. The PINOP stated that she could tell that he was intoxicated from the way that he was speaking, the PINOP stated that due to previous incidents she was worried about letting him in however stated that if he was not intoxicated that she would not have an issue with the defendant a attending. A friend has heard the defendant at the location and has called police who attended shortly after. On police arrival the defendant has jumped the side fence to avoid police. Due to this police also have concerns of the defendants behaviour.
Nil charges laid.
A Non Urgent AVO was applied for on 25/03/2018 (E69141587) not received in COPS as yet.
[…]”[64]
[64] Ibid G6, a), p 1604.
On 28 June 2018, NSW police records state:
“[…]
About 9.30pm on the 28th June 2018, the accused attended the victims house at ........ . ......... ... ..... .. The accused knocked on the front door and the victim spoke with him. The pair argued. The victim observed the accused was intoxicated as his eyes were bloodshot and she could smell intoxicating liquor on his breath. The victim contacted her father to attend and take her child away as she and the accused were arguing. As the father arrived, the accused entered the house where he continued to argue with the victim. The victim recently discovered she was pregnant and told the accused of this fact during the argument. Eventually, the victim told the accused to leave but he refused. The victim began to push the accused out of the house with her hands to his chest. During this, one of the victims fingernails was ripped off. The accused was eventually moved out the front door where he sat on the veranda and told the victim to contact police. The victim phoned 000. A short time later, Police arrived . .. .. .. .. . .. .. . . .. . .. .. .. .... ... ... . and observed the accused standing on the front doorstep. The accused walked towards police and spoke with them for a short time. While speaking with police, his eyes were observed to be very bloodshot and he was swaying as he stood and staggering as he was walking up a hill. His breath smelled strongly of intoxicating liquor and police formed the opinion that he was moderately affected by intoxicating liquor. Police entered the house and spoke with the victim for a short time. Police returned to the accused and advised him he was under arrest for breaching condition 4 of the apprehended violence order. The accused was cautioned, and the Law Enforcement (Powers and Responsibilities) Act 2002 safeguards were applied. The accused was placed in the rear caged section of the police vehicle. The victim supplied a DVEC video recorded statement in relation to the incident. The accused was conveyed to Orange Police Station where he was introduced to the custody manager. The accused was read and explained his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. The accused was interviewed electronically and made admissions to consuming two bottles of VB full strength beer around 7pm in the evening of 28th June 2018. The accused is charged with the matter before the court.
[…]”[65]
[65] Ibid p 1776.
The Applicant is reported in Corrections notes that day as follows:
“[…]
Date: 28/06/2018
Offender described being happy with things but worried about his mother - he has applied to NSW housing for a transfer back to Sydney but has heard nothing. he stated that his drinking has been better and I discussed that when he is back from Sydney that i would like him to reengage with AOD - he stated that he understood.
[…]
Phone call from Offenders -ex partner and victim in AVO - AW -. I advised AW that as she has a no contact AVO in place as the PINOP and advised her to contact the DVLO at Orange Police station if she wanted to talk about changing conditions.
[…]”[66]
[66] Exhibit 4, G6, a), p 1609.
On the same date, a NSW police fact sheet records:
“[…]
FULL FACTS
The accused, (the Applicant) and the victim, AW have been in and on again/ off again· defacto relationship for the past seven years. They have one child together who is three years of age and the victim recently discovered she was pregnant with a second child·to the accused.
A final apprehended violence order was made on 29th March 2018 at Orange Local Court. The accused was present in court when this order was made.
The conditions of the order state: 1. You must not do any of the following to <<protected people>>, or anyone <<she/he/they>> <<has/have>> a domestic relationship with: A) assault or threaten <<her/him/them>>, B) stalk, harass or intimidate <<her/him/them>>, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of <<protected people>> 4. You must not approach or be in the company of <<protected people>> for at least 12 hours after drinking alcohol or taking illicit drugs.
During the evening of 29th June 2018, the accused has been consuming a number of alcoholic beverages at his home in Orange which is only a short distance from the victim’s. About 9.30pm on the 28th June 2018, the accused attended the victim’s house at (redacted), Orange. The accused knocked on the front door and the victim spoke with him. The pair argued. The victim observed the accused was intoxicated as his eyes were bloodshot and she could smell intoxicating liquor on his breath.
The victim contacted her father to attend and take her child away as she and the accused were arguing. As the father arrived, the accused entered the house where he continued to argue with the victim. The victim recently discovered she was pregnant and told the accused of this fact during the argument. Eventually, the victim told the accused to leave but he refused. The victim began to push the accused out of the house with her hands to his chest. During this, one of the victim’s fingernails was ripped off.
The accused was eventually moved out the front door where he sat on the veranda and told the victim to contact police. The victim phoned 000.
A short time later, Police arrived at ………… Orange and observed the accused standing on the front doorstep. The accused walked towards police and spoke with them for a short time. While speaking with police, his eyes were observed to be very bloodshot and he was swaying as he stood and staggering as he was walking up a hill. His breath smelled strongly of intoxicating liquor and police formed the opinion that he was moderately effected by intoxicating liquor.
Police entered the house and spoke with the victim for a short time. Police returned to the accused and advised him he was under arrest for breaching condition 4 of the apprehended violence order. The accused was cautioned and the Law Enforcement (Powers and Responsibilities) Act 2002 safeguards were applied. The accused was placed in the rear caged section of the police vehicle. The victim supplied a DVEC video recorded statement in relation to the incident.
The accused was conveyed to Orange Police Station where he was introduced to the custody manager. The accused was read and explained his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. The accused was interviewed electronically and made admissions to consuming two bottles of VB full strength beer around 7pm in the evening of 28th June 2018. The accused is charged with the matter before the court.
[…]”[67]
[67] Ibid d), pp 1710-1711.
On 29 June 2018, NSW Health records note that the Applicant does not claim to be an Aboriginal person.[68]
[68] Exhibit 4, G6, b) p 1686.
On 7 February 2019, the Applicant’s son Child C was born to AW.[69]
[69] Exhibit 3, G4, Attachment F, p. 67; Attachment N, p 159.
On 29 March 2019, a final AVO was made for the protection of AW.[70]
[70] Ibid G7, e), p 1775.
NSW Police records for that date note:
“[…]
T/D: 2 155hrs Friday 29th March 2019 LOC : ……….., Orange . ...... .. ......... . ......... . .. .. ... . ...... .. . ......... ......... ........ . ......... . PN2: (the Applicant): (redacted) 1988 ......... .. ....... .... .. .. ... . . . . ... . About 2155hrs on Friday 29th March 20 19 Police were called to the LOC regarding PN2 allegedly had a baseball bat threatening PN1. Police arrived and found both PNs were in their separate residents and both well intoxicated . PN1 alleged that PN2 chased her with a bat and threw large rocks at her window causing t hem to smash, because she had interfered with his broken relationship. Police observed some rocks by the window which if thrown at a window, would have caused them to smash. There were no smashed windows at the location. PN2 gave Police a conflicting version alleging PN l had come over to his house to steal his cigarettes and that he hadn't used the bat at all, that he had been shouting at PN1 to get away from his house. Due to conflicting versions and no evidence of any offence Police spoke to both parties and asked them to remain inside their residence's. Both parties complied and Police left the location. Record only In attendance ......... .. .. .. .. . .................................... .... .. .. .
[…]”[71]
[71] Exhibit 4, G7, e), p 1775.
On 2 July 2019, NSW Police records note:
“[…]
FACTS: The accused in this matter is (the Applicant) born (redacted) 1988 The victim in this matter is ...................................................... The witness in this matter is .................. The accused and the victim have been in an on and off defacto relationship for over 7 years. They have two children together ................................................................ The relationship has been punctuated by the accused person's addiction to alcohol and more recently drugs. The accused resides at ............................ Since the birth of the couple’s second child the victim would spent periods of time between the accused address and her mother’s address. On the 29th March 2018 Orange Local Court made a final Apprehended Domestic Violence Order listing the accused as the defendant and the victim as the protected person. This order was made for two years in the following terms; 1. You must not do any of the following to .................. or anyone she has a domestic relationship with: a) assault or threaten herb) stalk, harass or intimidate her, and c) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of .................. 4. You must not approach or be in the company of ......... for at least 12 hours after drinking alcohol or taking illicit drugs. The accused was present in court when the order was made. About 12.30pm on Tuesday the 2nd July 2019 the victim drove with the witness to the accused house to deliver dog food. Approaching the accused's house the victim sighted the accused walking down ……… Crescent with his younger brother, .................. and three other males. The victim parked her car on the front lawn of .................. and got out. She began to unload bags of dog food she had purchased to feed dogs she owned with the accused. The accused approached the victim and was immediately abusive towards her. The accused yelled, 'I'm a man, not a boy' and 'Give me a smoke'. The victim said to the witness , who was seated in the front passenger seat to lock the car. The accused attempted to open the driver’s door but was unable to. The victim said, "Move away from the car''. The accused got in the victim’s face so their foreheads were almost touching and pinned the victim up against the driver’s side of her car. The accused said, "I want to slap you, I want to get your eyes'. The accused began slapping the victim across the face countless times. The victim placed her hands over her face to protect herself. The accused continued slapping the victim in the face. The victim punched out towards the accused striking him in the lip. This action stopped the accused from slapping the victim and he backed away. The victim fell to the ground exhausted. At this time the accused brother, .................., tried to intervene and hold the accused back. Meanwhile the witness watching what was happening had called her niece who lived nearby to come to the house and help. Within minutes further people started to arrive and the victim was able to get into her vehicle and drive away. The victim attended Orange Police Station with the witness. The victim was visibly upset, crying and had a swelling under her left eye. The victim provided a Domestic Violence Evidence In Chief recording to police outlining what occurred. A statement was also provided by the witness. Around 8.45am on Wednesday the 3rd of July 2019 the accused was located at his house at .................. in Orange. He was arrested and cautioned before being conveyed to Orange Police Station. He was introduced to the custody manager and read his rights pursuant to Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002. The accused participated in an electronically recorded interview where he admitted to having an argument with the victim, and pushing her but denied causing the injury to the victim and denied any further violence towards her. The accused is charged with the matters before the court.
[…]”[72]
[72] Ibid pp 1772-1773.
The Applicant told the Tribunal that he did not recall slapping AW.
On 28 June 2018, the Applicant was taken into custody.
On 4 July 2018, the Applicant is reported in Corrections notes as follows:
“[…]
Date: 28/06/2018
[…]
Offender described being happy with things but worried about his mother - he has applied to NSW housing for a transfer back to Sydney but has heard nothing. he stated that his drinking has been better and I discussed that when he is back from Sydney that i would like him to reengage with AOD - he stated that he understood.
[…]
Phone call from Offenders -ex partner and victim in AVO - AW -. I advised AW that as she has a no contact AVO in place as the PINOP and advised her to contact the DVLO at Orange Police station if she wanted to talk about changing conditions.
[…]”[73]
[73] Exhibit 4, G6, a), p 1609.
On 11 July 2018, the Applicant was convicted of stalk/intimidate intend fear physical etc harm (personal) T2, (2 counts), contravene prohibition/ restriction in AVO (domestic) (2 counts). He was sentenced to imprisonment for 18 months commencing on 28 June 2018 with a 3-month non-parole period.[74] Relevant passages from the decision of Magistrate Day are as follows:
[74] Exhibit 3, G4, Attachment A, p 30.
“HIS HONOUR: (the Applicant) appears today for sentence for a matter occurring on 28 June this year, involving a contravention of an apprehended domestic violence order. The contravention was not serious but it was an approach within 12 hours of consuming intoxicating liquor. He was at the time subject to bonds to be of good behaviour, suspending sentences of imprisonment pursuant to s 12 of the sentencing legislation and he was on a bond imposed by her Honour magistrate McGlynn late last year for the same offence. That was a conditional discharge bond, section 10(1)(b).
As a matter of law I must deal with the breaches of the bonds and I will deal with those first, which will then determine the course of sentencing him for the fresh offences.
On 1 August last year (the Applicant) was sentenced to 18 months imprisonment for the offences of intimidation. The facts for sentence that were available to his Honour magistrate Lucas support the sentence of imprisonment and supports a sentence of the duration his Honour imposed. It was particularly serious intimidation, bearing in mind that the charge of intimidation carries a maximum sentence on indictment of seven years, the sentence was appropriate.
(The Applicant) has a poor association with alcohol. He successfully navigated his way through s 12 bonds imposed for the very serious offence of dangerous driving occasioning grievous bodily harm, aggravated by a high range concentration of alcohol. The fact that he did not go to gaol for that offence should have caused (the Applicant) to reflect seriously upon his relationship with alcohol and his relationship with the criminal justice system. In my view he should have gone to gaol for that offence. Whether it would have been overturned in the District Court because apparently the District Court does not think that the guideline judgment of White applies to them, that is another matter, that is a different jurisdiction.
However (the Applicant) has not curbed his alcohol consumption. Accordingly, he was sentenced last August to periods of imprisonment subject to a bond, suspending the execution of sentence for him to be of good behaviour. He dodged the bullet back in November before magistrate McGlynn. I think that was artificial myself. I think that the bonds should have been called up and a s 98(3) determination made. But that is within her Honour’s discretion. My views may be different and views often differ.
He is also subject to the bond imposed by magistrate McGlynn for an approach within 12 hours of consuming intoxicating liquor. The subject offence which causes those bonds to be called up is exactly the same offence. During Mr Tedeschi’s useful submissions on sentence I have made some observations about (the Applicant) difficulty in navigating his way through life without a drink. Perhaps he needs a fairly plain-speaking counsellor to tell him what alcohol actually does to the human central nervous system instead of perhaps being told things like ‘well if you work hard you might be able to reduce how much you drink’. Just because you are depressed does not make the problem any better, it makes it worse.
The offence causing the bonds to be called up was while (the Applicant) was on conditional liberty. It will make a complete mockery of the criminal justice system for the bonds to be excused and Mr Tedeschi quite wisely has not urged me to excuse the breach of the s 12 bonds.
ACCORDINGLY THE S 12 BONDS ARE REVOKED AND IN MY VIEW THE S 10 CONDITIONAL DISCHARGE BOND SHOULD ALSO BE REVOKED AND THEY ARE.
I NOTE THAT (the Applicant) HAS BEEN SENTENCED TO 18 MONTHS IMPRISONMENT FOR THE TWO SEQUENCES OF INTIMIDATION. I CANNOT ALTER THAT SENTENCE. HOWEVER I CAN FIX THE NON- PAROLE PERIOD AND THE SENTENCE SHOULD BE EXECUTED AND SERVED BY WAY OF FULL TIME IMPRISONMENT FOR EACH SEQUENCE. THE SENTENCES WILL COMMENCE ON 28 JUNE WHICH IS WHEN HE WENT INTO CUSTODY FOR THE FRESH OFFENCES.
I note there was extensive pre-sentence custody in 2016. I note that it is clear from the sentences that have been imposed on (the Applicant) in the past that he is in crying need for proper community based and rigorous alcohol rehabilitation. Alcohol is a legally sanctioned product in our community. It is not an excuse for criminal behaviour. Special circumstances are the pre- sentence custody and the need for proper community-based rehabilitation.
ACCORDINGLY I FIX A VERY SHORT NON-PAROLE PERIOD, ALMOST OFFENDING THE PRINCIPLES OF SENTENCING, A NON-PAROLE PERIOD OF THREE MONTHS, MAKING HIM ELIGIBLE FOR RELEASE ON 27 SEPTEMBER THIS YEAR WITH SUPERVISED PAROLE FOR THE BREACHES OF THE S 12 BONDS FOR INTIMIDATION.
FOR THE BREACH OF THE CONDITIONAL DISCHARGE BOND THE BOND IS REVOKED. I REPEAT MY REMARKS AND HE SHOULD BE RE-SENTENCED TO A S 9 CONVICTION BOND FOR 18 MONTHS. HE WILL BE SUPERVISED. For the subject offences I repeat my remarks. I note that the offending is low level and I note that (the Applicant) is someone who needs to be dried out and sorted out. He is dried out at the moment, he will be dry when he gets out of prison. He will not be drinking alcohol inside, it is not one of the fringe benefits of being a sentenced prisoner. He is convicted and placed on a s 9 bond for 18 months. He will be supervised.”[75]
[75] Ibid Attachment B3, pp 44-46.

The Applicant claims to identify as an Aboriginal Australian by reason of his association with AW who identifies as such. He claims to have been accepted into the “Bl……… tribe”.[149] This is said to be an important element of his links to the Australian community.
[149] Exhibit 6.2, p 8, [23].
The evidence of Mr W was very illuminating on this point.
“Mr W, now RCWV. Has he been accepted into your family?---
Yes. We’ve got more photos of it, you know. He’s fine. And now, as far as I’m concerned, I tolerate people, and he’s never done nothing wrong to me. He’s always said ‘I respect you,’ and I took it for that. I’ve never had an argument with him. He’s always smiling more than I do, and yes. He’s been accepted into the family.
Right. Now, in your statement, and I’ll just quote from your statement, you say: ‘In 2017, while at a family reunion, RCWV and children was accepted into the tribe/Blacklock family by smoking ceremony’?---
Yes.
What do you mean by that?—
-Well, they talked to him, they looked at him, and because we don’t keep much - we don’t have much to do with them over the hundred years or so, right? And when you don’t see people for a while, right, there’s so many white people out there that say they’re Aboriginal, and they’re not. And the real Aboriginals get the shits with them and us, and they’ve got to be careful who they shepherd into the families or not. But, you know, when he told one of me cousins here one day, up at the same thing that day, he said ‘I’m African,’ and me cousin said ‘Yes, we’re black’. And RCWV said, ‘No, you’re not black, I’m black,’ because you can’t see him in the dark, right? And he was playing - trying to do the digeridoo and having a go at it, and to me, that’s acceptance. You know, they tolerate him, so they probably tolerate a lot of white people too.”
"Is RCWV - your daughter’s partner - an Indigenous man?---
He’s South African/Sudanese, yes. Of course he’d be.
But he’s not, in your eyes, an - he’s not an Australian Aboriginal or Torres Strait Islander in your eyes?---
No, no, no.
While RCWV is - - -?---(Indistinct.)
Sorry. Please continue?---
No. To that question, too, even though we’ve all got this Aboriginalness, I’m as white as it goes, right, and the real, real Aboriginals up north, right, they know better and they classified us as creamies and coconuts, right? So we’re not real, real Aboriginal in any way; we’re only whitefella stuff, you know? Bits of - it’s crazy. It’s crazy. You can’t keep up to it.
Do you know if RCWV thinks of himself as an Australian Aboriginal?—
-No. I’ve never asked him the question, because if you don’t ask questions, you get told no lies.”[150]
[150] Evidence of Mr W.
It is important to put more context around this claim. The Applicant claims to have been accepted into the “Bl……… Tribe” at a smoking ceremony held in 2016 or 2017. He suggests or implies, that this was a formal ceremony, conducted for the explicit purpose of legitimising his acceptance. He also mentioned having played a digeridoo. There are several problems with this assertion.
There is no “Bl….. Tribe” as such. There are however, a number of people who are able to trace their ancestry to a Thomas John Bl……… (1851-1923)[151] A genealogy has been complied by interested descendants. According to Mr W, on at least two occasions, there has been a general get together for those living descendants and their spouses, who are inclined to attend.
[151] Exhibit 5, pp 54-206.
Although the evidence was unclear, it seems that Mr Bl……… married an Aboriginal woman. Their descendants over the years, both living and dead, together with their spouses, now number more than 1200 people. AW is a great-great-granddaughter of Mr Bl………..
The evidence establishes that AW’s parents have accepted that although not married to AW, the Applicant has been her partner, and is the father of their grandchildren. He has been included in some family gatherings, and been accepted on that basis.
One such gathering was a reunion of the living descendants of Mr Bl……..in about 2017. There was apparently a smoking ceremony during this event. This is not an unusual occurrence in contemporary Australia. Such events occur, just like a “Welcome to Country”, in all sorts of contexts, few of which necessarily have any immediate or direct association with formal Aboriginal conferral of recognition. The suggestion that this was a formal recognition and acceptance of anyone, particularly the Applicant, by any authority with the capacity to do so, is totally unsupported by the evidence.
The evidence co-incidentally also suggests that the Applicant and AW may well have been living apart at around this time.
Neither of AW’s parents regard the Applicant as an Aboriginal person by any definition. Even if they did, there is no evidence to suggest that Mr W, who is a descendant of Mr Bl………, has the authority of the Aniwan Local Aboriginal Council, or anyone else, to confer such recognition.
There is evidence that AW was accepted as Aboriginal by the Anaiwan Local Aboriginal Council on 11 November 2016.[152]
[152] Exhibit 3, G4, Attachment AA1, p 1231.
There is no evidence to support any suggestion that the Applicant has been so recognised.
Until these proceedings, none of the considerable documentation regarding the Applicant, including material generated from 2017 onwards, suggests that he has been accepted as, or identifies as, Aboriginal.
The Tribunal finds that the Applicant’s claims to be an Aboriginal, are both false and of recent invention. They seem to have been contrived, in an attempt to influence the determination of this Tribunal, in his favour.
The Applicant came to this country as an adult in 2009. He has worked in various unskilled or labouring jobs on an intermittent basis. He has done some voluntary work. His positive contribution to the Australian community, such as it is, is dwarfed by his criminal and anti-social behaviour.
Having regard to all of the above this consideration weighs at best only moderately in favour of the Applicant.
Conclusion: Primary Consideration 3
This consideration weighs moderately in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     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;
·     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;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are as follows:
Child A is the Applicant’s daughter with AI. As previously discussed, the Applicant has no relationship with Child A. He told the Tribunal that he last spoke with her in about 2019. The Applicant would like this to change, but it is unclear how this could happen. The prospect of a relationship being established looks remote, even if the Applicant were to remain in Australia.
The Applicant does not and never has, performed a parental role. If the Applicant were to return to Sudan, there would be minimal, if any impact on Child A. There would still be an opportunity to communicate electronically in the apparently unlikely event that Child A wanted to have contact the Applicant.
If the Applicant remained in Australia, and if Child A and AI were inclined to agree, he may be of some slight benefit to Child A. If he resumed his past behaviour, his only influence would be negative.
Child B is the Applicant’s son with AW. He is 8 years old. Child B has been cared for by the Applicant for periods of time in the past. The Applicant has performed a parental role, albeit an intermittent and unstable one. The evidence suggests that the Applicant was not a consistent part of the household in which Child B lived, even prior the time of his incarceration.
Child B has spent some time with the Applicant, especially when he was very young. For the last few years contact has been by electronic means. The Applicant says that this contact is frequent, and that Child B misses him. This electronic contact could continue if the Applicant returned to Sudan.
If the Applicant were to remain in Australia and not to relapse into drug/ alcohol abuse, Child B would benefit significantly from the Applicant’s presence in his life. The Applicant could provide parental support, assistance to AW and financial support.
If the Applicant were to return to drug/ alcohol abuse, he would add to instability in Child B’s life, possibly inflict physical or emotional trauma, and be a negative role model. As previously observed, there is a significant risk of this happening.
Child C is the Applicant’s son with AW. He is 4 years old. His position is similar to that of Child B, but he has had much less interaction with the Applicant, who has been imprisoned or detained for much of his life. For the last few years contact has been by electronic means. The Applicant says that this contact is frequent, and that Child B misses him. This electronic contact could continue if the Applicant returned to Sudan.
Like Child B, Child C would benefit from the Applicant remaining in Australia, if the Applicant did not return to drug/ alcohol abuse. As previously observed, there is however a significant risk of a relapse happening.
The Applicant’s relationship with AW has been very complex and unstable over the years. If he were to remain in Australia, it is unclear whether their relationship would be ongoing or stable. This may in turn impact on his interaction with the boys.
The Applicant told the Tribunal that if he had to return to Sudan, he would take Child B and Child C with him. He would do this whether AW accompanied him or not. AW told the Tribunal that she agreed with this plan.
The Applicant says that unless his visa is returned, he plans to take his 2 young sons, who have only known the relative safety of Australia, where all of their friends and relatives live, to a troubled country, with a totally different culture and languages. It is difficult to imagine a more irresponsible and dangerous thing for a parent to inflict on their young children.
Leaving aside the question of the Applicant’s means to make good on this threat, it is a plan that may attract the interest of Australian Child Protection authorities.
This plan demonstrates a disturbing disregard for the safety, indeed the lives, of his 2 young boys.
Paradoxically for the Applicant perhaps, if he were to succeed in returning to Sudan with Child B and Child C, they would at that point in time, cease to be “ minor children in Australia” with whom Primary Consideration 4 of Direction 99 is concerned.
It is in the best interests of Child B and Child C that they remain in Australia where they have extended family connections and have lived all their lives. The Applicant’s promise to take them with him to Sudan if his application is not successful, is in my opinion, a cynical attempt to intimidate the Tribunal into granting the Applicant a visa, using their welfare and safety, as a bargaining chip. This reflects poorly on the Applicant.
Child D and Child E are AW’s niece and nephew. They are aged 4 and 2 years respectively. The Applicant has never performed a parental role and is unlikely to ever be called upon to do so. The Applicant has been incarcerated for most of their lives. Such contact as he has had with them has been primarily electronic. This could continue if he were in Sudan.
If the Applicant were to remain in Australia and not to relapse into drug/ alcohol abuse, Child D and Child E may benefit slightly from the Applicant’s presence in their lives. As previously observed, there is a significant risk of a relapse.
Child F is the Applicant’s nephew, the son of his sister. He says of Child F,
“My ongoing detention has also had a negative emotional impact on my sister M and her minor son (Child F) (12). I speak regularly to M, (Child F) and J (my brother in-law J) via a video call on regular basis. I would say that I have a close and loving relationship with M, Child F and my brother-in-law J... I would like to be given an opportunity to be a part of and play a positive and productive uncle-role in Child F's life. My children also have close relationship with Child F and they would be emotionally affected if we all return to Sudan.”
Child F is about 12 years of age. In contrast to the statement above, in the Applicant’s personal circumstances received by the Respondent on 29 October 2021 the Applicant says:
“[…]
As am Uncle I’m close with my sister’s child. Around about everyday because (sister) lives with my mum I’m also a fatherly figure because (Child F) does not have a father.
[…]
(Child F) would have lost a fatherly figure & also would mentally hurt his upbringing.”[153]
[153] Ibid Attachment F, p 88.
This is contradictory. He claims both to be close to his brother-in -law , J (Child F’s father) and that Child F needs him in his life as a father figure, because J is absent. He gave no evidence further to explain this.
Such contact as he has had with Child F for the last few years has been primarily electronic. This could continue if he were in Sudan. If the Applicant were to remain in Australia and not to relapse into drug/ alcohol abuse, Child F may benefit from the Applicant’s presence in this life. As previously observed, there is a significant risk of a relapse.
The Applicant also said:
“I have close and loving relationship with my three cousins, who are all married and have families of their own in Australia. I continue to remain in contact with them on a weekly basis. I also have a close and loving relationship with all of them. All of my cousins have minor children, and their children also have a close and loving relationship with me. I would like me and my children to remain a part of their lives and would like my children to grow up with their cousins in the safety of Australia.”[154]
[154] Ibid Attachment Z1, p 1170.
No further evidence was given about these unspecified and unidentified minor children.
Having regard to all of the above, and assuming in the Applicant’s favour that he does not return to drug/ alcohol abuse, primary consideration 4 weighs slightly in favour of revocation of the Applicant’s visa cancellation
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[155]
[155] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5

Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(d)the Applicant’s criminal record as set out in Annexure B.
(e)The other matters set out above
(f)The Applicant’s history of family violence.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision;
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
As discussed above, the Tribunal does not find that the Applicant is owed non-refoulment obligations. There is therefore no reason why he cannot be lawfully returned to Sudan.
No issue of indeterminate detention arises. This consideration is neutral.

(b) Extent of impediments if removed

Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 32 year old man. He suffers from mental health issues as discussed above. These require ongoing support and medication to ensure effective management.
The Applicant is familiar with the language and culture of Sudan, having spent most of his formative years there.
If the Applicant were to return to Sudan, he would undoubtedly face great difficulties in establishing himself and obtaining employment. The Applicant says that he has no family or friends in Sudan.
There is no compelling evidence to suggest that he would receive any different access to social, medical and/ or economic support than any other citizen of Sudan. The standard of such supports in Sudan however, especially for mental health, would be vastly inferior to those available in Australia.
This consideration is weighs heavily in favour of revocation.

(c) Impact on victims

Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
AW, who is a victim of the Applicant’s conduct, is strongly supportive of him. She told the Tribunal that she wants to resume her relationship with the Applicant and that she is not afraid of him. The Tribunal is mindful that this relationship has been highly unstable in the past and that AW is in a particularly vulnerable position. Her evidence must be treated with caution.
The Applicant’s brother, who was also a victim of family violence, is also supportive and has forgiven the Applicant. The Applicant’s mother is supportive.
These views were considered in the context of assessing the Applicant’s links to the Australian community.
This Other Consideration (c) is neutral.
If I am wrong is this assessment, I would still only give minimal weight to the supportive opinions of the Applicant’s victims. It would make no difference to the final determination of the Tribunal.
(g) Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant’s counsel suggested that weight should be given towards revocation of the visa cancellation by reason of the Applicant’s potential to do work for Mr W. His evidence on this point was as follows:
“All right. Now you’ve got a small - from the statement it appears that you’ve got a small cleaning business. Is that right?---
Yes. I do have, but I’ve retired.
Right.
But I’m just staying on one job.
Right.
It’s a private job. I get paid for it and it’s under the tax bracket. I’m not ripping the taxpayer off or the government, and it keeps me away from the television and the computer and it keeps me going. You know what I mean? I’m not a couch potato.
I see. Now has RCWV, in the past, helped you with your work?---
Yes. And I was really mad that he went - you know, had all this trouble because we could’ve done so good work here because there’s so much work for workers and cleaners that nobody wants to work. But he’s a good worker and I’d have him here tomorrow if I could.”
I reject the submission by the Applicant’s counsel that the possibility of the Applicant doing some part time work for Mr W, is sufficient to weigh in his favour under this Other Consideration.
This Other Consideration (d), paragraph 9.4 of the Direction, is neutral.
Again, if I am wrong is this assessment, I would still only give minimal weight to this other consideration. It would make no difference to the final determination of the Tribunal.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a).Legal consequence of decision under s501 or s501CA of the Act: neutral.
(b). Extent of impediments if removed: weighs heavily in favour of revocation
(c).Impact on victims: neutral.
(d). The impact on Australian business interests: neutral
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
The Applicant has been a serious and chronic offender for most of the time that he has been in Australia. His offending is directly linked to his abuse of drugs/ alcohol.
On all of the evidence, the probability is high that he will relapse into drug/ alcohol abuse. If he does, the risk of him reoffending and causing very serious harm is moderate to high.
It is necessary to weigh the primary and other considerations.
In this case, Primary Considerations 1, 2 and 5 weigh heavily against revoking the cancellation of the Applicant’s visa.
The strength, nature and duration of ties weighs moderately in favour of revoking the cancellation of the visa, and the bests interests of minor children weigh slightly in favour of revoking the visa cancellation.
Of the other considerations, the extent of impediments if removed, weighs heavily in favour of revoking the cancellation of the visa.
In the circumstances of this case, Primary Considerations 1,2 and 5 substantially outweigh the Primary Considerations 3 and 4 and the Other Considerations, including the significant weight given to the extent of impediments if removed.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding three hundred and twenty one (321) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

..............................[Sgnd].....................................
Legal Associate
Dated: 30 August 2023

Date of hearing: 17 & 18 August 2023

Advocate for the Applicant:

Ziya Zarifi
Zarifi Lawyers

Advocate for the Respondent:
Keith Sypott
Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions

2

Respondent

Statement of Facts, Issues and Contentions

3

Respondent

G-Documents

4

Respondent

Supplementary G-Documents

5

Applicant

Tender Bundle

6.1

Applicant

Statement of (Applicant’s brother) (11.07.2023)

6.2

Applicant

Report prepared by (LV) (10.08.2023)

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Orange Local Court

03/04/2012

Possess prohibited drug

H 48192153 Fine: $1,000 Drug to be destroyed

Blacktown Local Court

30/07/2014

Destroy or damage property (DV)

H 54169710: Fine $500

Orange Local Court

02/02/2015

Contravention prohibition restriction in AVO (Domestic)

H 57155246 Fine: $500

Orange Local Court

27/05/2015

Drive with high range PCA – 2^nd + off

H 56252945: Community Service Order: 200 hours disqualification – driver: 2 years

Orange Local Court

27/05/2015

Drive, licence suspended under s 66 Fines Act – 1^st off

H 56252945: Fine $500 disqualification – driver: 6 months

Orange Local Court

27/05/2015

Dangerous driving occ GBH – drive under the influence – T1

H 55531459: Fine $100 disqualification – driver – 2 years

Orange Local Court

27/05/2015

Learner not accompanied by driver/police officer/tester

H 55531459: Fine $100

Orange Local Court

27/05/2015

Learner driver not display “L” plates as required

H 55531459: Fine $100

Orange Local Court

27/05/2015

Aggravated dangerous driving occ GBH – PCA – T1

H 55531459: Imprisonment: 12 months

Orange Local Court

27/05/2015

Drive with high range PCA – 1^st + off

H 55531459: Fine $1,000

Orange Local Court

27/05/2015

Take & drive conveyance w/o consent of owner – T2

H 55531459: Imprisonment: 12 months

Orange Local Court

27/05/2015

Fail to stop and assist after vehicle impact causing gbh – T1

H 55531459: Fine $100

Orange Local Court

27/05/2015

Negligent driving (occasions grievous bodily harm) – 1^st off

H 55531459: Imprisonment: 12 months

Orange Local Court

27/05/2015

Resist officer in execution of duty – T2

H 109210801: Fine $500

Orange Local Court

11/06/2016

Negligent driving (occasions grievous bodily harm) – 1^st off

H 55531459: Imprisonment: 12 months

Orange Local Court

01/05/2017

Destroy or damage property <=$2000-T2

H 65568989: Fine $500

Orange Local Court

01/05/2017

Custody of knife in public place – first offence

H 375507392: Fine: $500

Orange Local Court

01/05/2017

Stalk/intimidate intend fear physical etc harm (personal)- T2

H 375507392: Imprisonment: 18 months suspended on enter bond S12

Orange Local Court

01/05/2017

Stalk/intimidate intend fear physical etc harm (personal)- T2

H 375507392: Imprisonment: 18 months suspended on enter bond S12

Orange Local Court

27/11/2017

Contravene prohibition/restriction in AVO (Domestic)

H 65896126: Bond S10

Orange Local Court

11/07/2018

Contravene prohibition/restriction in AVO (Domestic)

H 67324109: Bond S10

Parramatta Local Court

20/02/2020

Contravene prohibition/restriction in AVO (Domestic)

H 72315908: Intensive Correction Order: 18 months

Parramatta Local Court

20/02/2020

Assault occasioning actual bodily harm (DV)-T2

H 72315908: Intensive Correction Order: 18 months

Mt Druitt Local Court

22/12/2020

Possess prohibited drug

H 294577896: S10A Conviction with no other penalty

Mt Druitt Local Court

22/12/2020

Stalk/intimidate intend fear physical etc harm (domestic)- T2

H 294577896: Imprisonment (Aggregate) 13 months

Mt Druitt Local Court

22/12/2020

Destroy or damage property <=$2000 (DV)-T2

H 294577896: Imprisonment (Aggregate) 13 months

Mt Druitt Local Court

22/12/2020

Destroy or damage property >$2000 <=$5000 (DV)-T2

H 294577896: Imprisonment (Aggregate) 13 months

Date of hearing:	17 & 18 August 2023
Advocate for the Applicant:	Ziya Zarifi Zarifi Lawyers
Advocate for the Respondent:	Keith Sypott Australian Government Solicitor

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions
2	Respondent	Statement of Facts, Issues and Contentions
3	Respondent	G-Documents
4	Respondent	Supplementary G-Documents
5	Applicant	Tender Bundle
6.1	Applicant	Statement of (Applicant’s brother) (11.07.2023)
6.2	Applicant	Report prepared by (LV) (10.08.2023)

Court	Court Date	Offence	Court Result
Orange Local Court	03/04/2012	Possess prohibited drug	H 48192153 Fine: $1,000 Drug to be destroyed
Blacktown Local Court	30/07/2014	Destroy or damage property (DV)	H 54169710: Fine $500
Orange Local Court	02/02/2015	Contravention prohibition restriction in AVO (Domestic)	H 57155246 Fine: $500
Orange Local Court	27/05/2015	Drive with high range PCA – 2^nd + off	H 56252945: Community Service Order: 200 hours disqualification – driver: 2 years
Orange Local Court	27/05/2015	Drive, licence suspended under s 66 Fines Act – 1^st off	H 56252945: Fine $500 disqualification – driver: 6 months
Orange Local Court	27/05/2015	Dangerous driving occ GBH – drive under the influence – T1	H 55531459: Fine $100 disqualification – driver – 2 years
Orange Local Court	27/05/2015	Learner not accompanied by driver/police officer/tester	H 55531459: Fine $100
Orange Local Court	27/05/2015	Learner driver not display “L” plates as required	H 55531459: Fine $100
Orange Local Court	27/05/2015	Aggravated dangerous driving occ GBH – PCA – T1	H 55531459: Imprisonment: 12 months
Orange Local Court	27/05/2015	Drive with high range PCA – 1^st + off	H 55531459: Fine $1,000
Orange Local Court	27/05/2015	Take & drive conveyance w/o consent of owner – T2	H 55531459: Imprisonment: 12 months
Orange Local Court	27/05/2015	Fail to stop and assist after vehicle impact causing gbh – T1	H 55531459: Fine $100
Orange Local Court	27/05/2015	Negligent driving (occasions grievous bodily harm) – 1^st off	H 55531459: Imprisonment: 12 months
Orange Local Court	27/05/2015	Resist officer in execution of duty – T2	H 109210801: Fine $500
Orange Local Court	11/06/2016	Negligent driving (occasions grievous bodily harm) – 1^st off	H 55531459: Imprisonment: 12 months
Orange Local Court	01/05/2017	Destroy or damage property <=$2000-T2	H 65568989: Fine $500
Orange Local Court	01/05/2017	Custody of knife in public place – first offence	H 375507392: Fine: $500
Orange Local Court	01/05/2017	Stalk/intimidate intend fear physical etc harm (personal)- T2	H 375507392: Imprisonment: 18 months suspended on enter bond S12
Orange Local Court	01/05/2017	Stalk/intimidate intend fear physical etc harm (personal)- T2	H 375507392: Imprisonment: 18 months suspended on enter bond S12
Orange Local Court	27/11/2017	Contravene prohibition/restriction in AVO (Domestic)	H 65896126: Bond S10
Orange Local Court	11/07/2018	Contravene prohibition/restriction in AVO (Domestic)	H 67324109: Bond S10
Parramatta Local Court	20/02/2020	Contravene prohibition/restriction in AVO (Domestic)	H 72315908: Intensive Correction Order: 18 months
Parramatta Local Court	20/02/2020	Assault occasioning actual bodily harm (DV)-T2	H 72315908: Intensive Correction Order: 18 months
Mt Druitt Local Court	22/12/2020	Possess prohibited drug	H 294577896: S10A Conviction with no other penalty
Mt Druitt Local Court	22/12/2020	Stalk/intimidate intend fear physical etc harm (domestic)- T2	H 294577896: Imprisonment (Aggregate) 13 months
Mt Druitt Local Court	22/12/2020	Destroy or damage property <=$2000 (DV)-T2	H 294577896: Imprisonment (Aggregate) 13 months
Mt Druitt Local Court	22/12/2020	Destroy or damage property >$2000 <=$5000 (DV)-T2	H 294577896: Imprisonment (Aggregate) 13 months