XDJD and Minister for Immigration and Border Protection (Migration)

[2018] AATA 4226

XDJD and Minister for Immigration and Border Protection (Migration) [2018] AATA 4226 (5 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2887

Re:XDJD

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member R Cameron

Date:5 November 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member R Cameron

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – serious criminal offending – offences involving violence – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending - where Australian community would expect non-revocation – remitted from the Federal Court of Australia - decision affirmed

Legislation

Evidence Act 2008 (Vic)
Migration Act 1958 (Cth)

Sentencing Act 1991 (Vic)

Cases

Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
ReWaits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No.65 - Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014

Stephen Odgers QC, Uniform Evidence Law, 12^th Edition, Thomson Reuters, 24 June 2016

REASONS FOR DECISION

Senior Member R Cameron
5 November 2018

INTRODUCTION

1. On 3 August 2016 the Applicant’s Class XB Subclass 202 (Global Special Humanitarian) visa (“the visa”) was cancelled pursuant to the provisions of section 501(3A) of the Migration Act 1958 (“the Act”). Subsequently, he applied to have the mandatory cancellation of his visa revoked. On 9 May 2017 a delegate of the then Minister for Immigration and Border Protection (“the Respondent”) refused to revoke the cancellation of the visa pursuant to section 501(CA) of the Act.

2. On 11 May 2017 the Applicant applied to the Administrative Appeals Tribunal for review of the decision not to revoke the mandatory cancellation of the visa. On 26 July 2017, the Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant’s visa. The Applicant subsequently appealed to the Federal Court of Australia for a judicial review of the Tribunal’s decision.

3. On 5 February 2018, by consent, the Federal Court of Australia set aside the Tribunal’s decision dated 26 July 2017 and remitted it to the Tribunal for re-determination, according to law.

4. On 16, 18 July and 3 August 2018, the Tribunal (differently constituted) heard the application for review of the Respondent’s refusal to revoke the mandatory cancellation of the Applicant’s visa.

   RELEVANT LAW

   Migration Act 1958

5. With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

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

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

   …; and

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

6. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides that a person a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

7. With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   …

   (3)As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way the Minister considers appropriate in the circumstances:

   (i)        a written notice that sets out the original decision; and

   (ii)       particulars of the relevant information; and

   (b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)       The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)       the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

   (5)If the Minister revokes the original decision, the original decision is taken not to have been made.

   …

8. Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 11 May 2017.

9. Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499, (“the Direction”).

   Direction No. 65

10. It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:

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

    …

    (3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.

11. The principles referred to in paragraph 6.2 are contained in paragraph 6.3:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    …

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their Visa application refused.

12. Part C of the Direction provides guidance for revocation decision-making and contains a number of primary and other considerations. Finally, paragraph 8(4) of the Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

    ISSUES TO BE DECIDED

13. The Applicant has conceded that he does not pass the character test.[1]

    [1] This concession is to be found in paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions prepared by his counsel and filed with the Tribunal. Further, the concession was made by counsel for the Applicant in his opening. In any event the evidence before the Tribunal demonstrates that the Applicant does not pass the character test. It will be recalled that under section 501(7)(c) of the Act a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. Under section 501(6)(a) of the Act a person does not pass the character test if they have a substantial criminal record.

14. Therefore, under section 501CA(4)(b) of the Act, the issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.[2]

    [2] Section 501CA(4)(b)(ii) of the Act.

    THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL

15. The following documentary evidence was tendered before the Tribunal:

    (a)Statement of evidence of the Applicant dated 8 June 2018;

    (b)Statutory declaration of the Applicant’s wife dated 7 June 2018;

    (c)Certified Extract from the Magistrates’ Court of Victoria at Sunshine;

    (d)The Court of Appeal of the Supreme Court of Victoria; decision concerning the Applicant; Intervention Order made by the Sunshine Magistrates’ Court against the Applicant;

    (e)Report of Dr Cathy Civil and attached notes dated 9 March 2018;

    (f)Psychological report of Mr Jeffrey Cummins dated 6 October 2014;

    (g)Health Assessment Summary Report of Ainslie Hannan, Foundation House dated 30 April 2018;

    (h)Statement of Evidence of Witness A dated 8 June 2018;

    (i)The “G” documents.

16. The Applicant filed a Statement of Issues, Facts and Contentions dated 8 June 2018.

17. The Respondent filed a Statement of Facts and Contentions dated 22 June 2018.

18. Viva voce evidence was given by the following persons:

    (a)The Applicant;

    (b)The Applicant’s wife; and

    (c)Witness A.

    THE APPLICANT’S HISTORY OF OFFENDING

19. The Applicant was born in 1980. He first arrived in Australia on 25 June 2006 at the age of 25. His offending, as recorded on the National Police Certificate in evidence before the Tribunal, commenced on 26 October 2010 when he came before the Sunshine Magistrates’ Court on a charge of driving whilst suspended.

20. His record of offending is as follows:

Date	Court	Offence	Result
13 July 2016	Sunshine Magistrates’ Court	Contravene family violence final Intervention Order (2 charges). Unlawful assault. Contravene family violence Intervention Order - intentional harm/fear criminal damage (intentional damage/destroy). Threat to inflict serious injury. Commit indictable offence whilst on bail.	Aggregate 5 months imprisonment to be served concurrently.
4 August 2015	Sunshine Magistrates’ Court	Contravene community correction Order	Proven.
20 July 2015	Supreme Court Melbourne.	Recklessly cause injury	1 month’s imprisonment concurrent with sentence now serving.
17 July 2015	Supreme Court Melbourne.	Recklessly cause serious injury	18 months imprisonment. Convicted community corrections order for 2 years commencing upon completion of imprisonment term.
17 April 2014	Melbourne Magistrates’ Court.	State false name when requested. State false address when requested. Drive whilst disqualified. (2 charges) Fail to answer Bail. Exceed prescribed concentration of alcohol in breath within three hours of driving a vehicle. (2 charges). Drive whilst authorisation suspended	With conviction, fined an aggregate of $500. On each charge: aggregate 4 months imprisonment. Concurrent. Sentence is wholly suspended under s.27 of the Sentencing Act 1991. Operational period is 18 months. Disqualified from driving for 38 months.
29 October 2013	Sunshine Magistrates’ Court	Contravene family violence intervention order (6 charges). Contravene family violence final intervention order. Criminal damage (intentional damage/destroy) unlawful assault.	Convicted and a community correction order for 15 months. Unpaid community work to be performed for 60 hours.
5 April 2012	Sunshine Magistrates’ Court	Failed to answer bail.	With conviction, fined $500.
26 October 2010	Sunshine Magistrates’ Court	Drive whilst authorisation suspended.	Without conviction, adjourned to 27 April 2011.

SOME OBSERVATIONS ON THE APPLICANT’S VIVA VOCE EVIDENCE

1. The Tribunal considers that it is appropriate at the outset to make some general observations on the nature and quality of the Applicant’s viva voce evidence given during the course of the hearing of this matter.

2. The Applicant did not make a very good impression in the witness box.

3. Despite the extraordinary adversity, brutality and deprivation that the Applicant endured and suffered in the earlier part of his life in Sudan, until the conduct leading to his convictions by Australian courts, he had sought to make the most of every opportunity that he encountered.

4. He gave evidence that in his early days in Sudan he had no formal education. However, upon arrival in Kenya, he attended school and applied himself such that he was able to successfully complete primary school and up to four years of secondary school.

5. It was apparent to the Tribunal that he had made the most of these educational opportunities. He presented as reasonably intelligent, articulate and motivated to do the best he could in difficult circumstances.

6. Additionally, he presented as an individual who had acquired a considerable level of acumen when it came to protecting and promoting his own interests. This personal characteristic was indeed demonstrated by the commendable way that he was able to immediately enter the workforce upon arrival in Australia. Utilising his connections in Australia he was employed by Tasman Meats commencing work the day after his arrival. He worked diligently at that concern. From a position where he described having no skills, he quickly obtained a forklift license, learned how all the machinery and freezers were operated and then trained to enter company data into its computer database. Following acquisition of these skills he was rapidly promoted to the position of supervisor. These facts alone provide independent corroboration of the capacity and skills of the Applicant, and reflect what was apparent to the Tribunal from the Applicant’s demeanour in the witness box.

7. Subsequently, the Applicant obtained a position with a well-known drug company where he became a Production Team Leader. In this position, he was responsible for overseeing production of vaccines together with monitoring the production of syringes. Such positions also involved management of a significant workforce. This is a testament to the capacities and skills that the Applicant possessed. It is reasonable to assume that the Applicant would not have been appointed to such a position unless he was a capable and intelligent employee with the capacity to quickly gain the skills, knowledge and experience necessary for rapid workplace advancement.

8. Following a year at the drug company he obtained a job as a supervisor at a multinational transport company. His duties centred around transport, logistics, supplies and storage. He supervised a fleet of trucks, forklift drivers and ordered the priorities for deliveries. This position was demanding and obviously involved the application of significant intelligence and organisational skills. He continued in this position until he was sentenced to a term of imprisonment in November 2014 for the violent crime that subsequently called his character into question.[3]

   [3] The Applicant appealed against the sentence imposed by a County Court Judge to the Supreme Court of Victoria Court of Appeal and was subsequently re-sentenced by that Court to a term of 18 months imprisonment with a 2-year Community Corrections Order.

9. In many instances he gave clear and compelling evidence in some detail concerning various matters. He demonstrated a good capacity for recalling and overall a good memory. For instance, many of his experiences both in Sudan and Kenya from a comparatively young age were recalled with ease, clarity and apparent accuracy.

10. The observations made in previous paragraphs have been recorded because they show attributes that were at times inconsistent with his behaviour in the witness box. On several occasions he purported to have no recollection of some significant events, such as his appearance at the Sunshine Magistrates’ Court in late 2011 when an intervention order was granted against him. A certified extract from that court date was shown to him.  Recording that the Applicant was present at the hearing. He stated that he could not remember this fact. Mr Brown specifically put to him the precise facts (contained in the police brief before the Tribunal) which led to the contravention of the intervention order. The event concerned took place on 3 September 2012 at approximately 8:15 PM[4]. It was alleged that the Applicant picked up a kitchen knife from the drawer in the kitchen and chased his wife outside and then down the street. He specifically denied any recollection of this event. The Tribunal cannot accept the Applicant’s evidence that he was unable to recall both the incident with the kitchen knife and the subsequent appearance at the Sunshine Magistrates’ Court.

    [4] Specific details can be found in the police summary at page 209 of the G documents.

11. This inability to recall was symptomatic of the Applicant’s propensity at times to either avoid or not recall important events that were adverse to him, or otherwise put a gloss over them or engage in some level of reconstruction so as to diminish their impact on his case.

12. Another aspect of his evidence that causes concern is that he gave several different versions of the incident where he stabbed his wife on a morning in January 2014. In his evidence in chief, he stated that his wife was in front of him with a knife and he thought that she was going to stab him. He attempted to take it off her and then she fell on him with the knife which caused her to be stabbed. He did not explain if there were two thrusts of the knife into her or how this occurred.

1. In cross examination he was taken to the version of events given in the police record of interview.[5] In that version he stated that he grabbed a knife and stabbed her. There is no reference in that record of interview to his wife falling on him and being stabbed. There was no evidence of one thrust of the knife causing both an entry and exit wound. In that record of interview[6] he stated he grabbed the knife and stabbed her. (This response would lead any ordinary reader to conclude that he stabbed his wife without her falling upon him or without the knife being thrust once leaving an entry and exit wound.) In response to further questions from Mr Brown, his evidence shifted and he gave yet another version where he said: “I admitted I stabbed her. I had the knife in my hand and she pushed it. That is where I admitted I stabbed her.” (He did not specify whether it was one or two thrusts of the knife into the victim.)

   [5] This interview was recorded at page 459 of the G documents

   [6] page 464 of the G documents

2. In the evidence that he gave at a previous hearing before the Tribunal, differently constituted, he gave another version of these events. In response to a question from Mr Brown, he said he stabbed his wife twice. (He also agreed there were two knife wounds.) In response to a direct question from the Senior Member (who stated that he had heard two different versions), the Applicant said that his wife went to the kitchen, got a kitchen knife and came to him in the bedroom and in direct speech he gave evidence that she said: “If you don’t get up I will stab you.” She kept repeating those words to him. He then stated that he got scared and when she moved towards him he grabbed her hand and she then tackled him. He then grabbed her hand trying to take the knife from her, her hand moved as he continued to hold it and then she fell on him and got stabbed.[7] This evidence that came from the Applicant is indicative of only one thrust of the knife into the victim.

   [7] This version of events was given on page 19 of the transcript of 21 July 2017. He repeated this version of events in cross-examination in particular at page 41 of the transcript.

3. In response to a specific question from the Senior Member who asked the Applicant how it was that his wife was stabbed twice, he said that the knife went in one point and exited the other that. This is contrary to the observations of Judge Quin, who stated at paragraph 5 of her reasons, that a struggle took place and the Applicant’s wife was stabbed in the chest two times with the knife. This means that there were two thrusts of the knife into the victim. A similar conclusion was noted by the Court of Appeal at paragraph 14 of its reasons.

4. There is a material difference between one thrust of the knife leaving an entry and exit wound and two thrusts. Surely, if there was only one thrust of the knife this would have been explained to the court in the Applicant’s plea. His wife, in her statement to the Tribunal in this application, stated clearly and unequivocally that he stabbed her twice in the chest. In the conversation that she had with the 000 operator, the operator asks if there is more than one wound to which she replied no. The operator repeated the question, to which she replied “Yep”. This inconsistency in the Applicant’s wife’s evidence also does not reflect well upon her.

5. Nowhere in his account of the stabbing incident, including in his submissions to the Respondent, witness statement (which contained virtually no account of the incident at all), evidence in chief or cross-examination, did he mention that he had punched his wife in the head.[8] It was only when this matter was put to the Applicant by the Tribunal that he stated he could not recall punching her. However, he conceded that he probably did punch her to the head.

   [8] His wife made statements to this effect to the treating hospital staff when she was admitted after the stabbing and in paragraph 17 of her statement to the police dated 11 February 2014 (page 311 of the G documents).

6. There appears to be no reason why the hospital records taken in the immediate aftermath of the violent incident between the Applicant and his wife, would not be an accurate account of what had occurred in the incident. Her recollection of the number of times she was punched will be touched on later in these reasons. However she stated that she remembers being punched once by the Applicant. When confronted with what was recorded in the hospital notes, she stated that she was pretty sure the hospital had got it wrong. This is of some concern to the Tribunal. What also disturbs the Tribunal is that the Applicant’s wife probably was punched to the head several times during the stabbing incident, yet this fact was never revealed to either the Trial Judge, nor the Court of Appeal.

7. A further matter arising from the Applicant’s evidence about the stabbing incident in 2014 is firstly, precisely who called the 000 operator and secondly, whether there was any lapse of time between when the Applicant’s wife was stabbed and a call being made to 000. As explained below, the evidence of both the Applicant and his wife was inconsistent in many respects.

8. The Applicant’s evidence was that after stabbing her, he grabbed her, told her to sit down, picked up her mobile phone and dialled 000. Then he gave her the phone and she spoke to the operator. He says he panicked, got in the car and left. In cross examination he stated: “I called the ambulance and put the towel on the injury and got scared”. Apart from the glaring inconsistencies between these two versions, it must be recorded that the transcript of the 000 phone call reveals that there was a conversation between the Applicant’s wife and the operator, not the Applicant[9].

   [9] The transcript of the phone conversation between the Applicant's wife and the 000 operator is to be found at pages 416 to 429 of the G documents.

9. In his interview with the police, the Applicant stated that he had his phone which he gave to her and she called the police.[10] Later in the interview, he stated that he told her “Call the ambulance, I’m coming back.”[11] At times throughout the interview, he stated that he gave her the telephone and that she made the call. He gave a different version of events when questioned by the Tribunal. In that version he conceded that he did not give her his phone. This is consistent with the evidence that his wife gave to a question from the Tribunal that the time elapsed between her stabbing and calling the 000 operator was approximately 30 minutes[12]. She stated that the reason for the delay was because she was unable to find her phone.

   [10] The record of interview at page 460 is referred to.

   [11] Page 467 of the G documents question 155

   [12] It should be noted at this juncture that the Applicant's wife gave several different versions of the events concerning the call to the 000 operator which will be touched on later in these reasons. This is most unsatisfactory. It does not reflect well on her.

10. According to the 000 transcript, the Applicant’s wife stated to the 000 operator that she was stabbed at approximately 6:45 AM and did not call until approximately 8:30 AM.[13]

    [13] Page 418 of the G documents.

11. On the preponderance of the evidence, the Tribunal is satisfied that there was a significant delay between the time of the stabbing and the call to the 000 operator. It is most disturbing, given the gravity of the injuries suffered by the Applicant’s wife. The consequences which were already grave could have been far worse.

12. Another example of the Applicant inaccurately recounting events is in the submission to the Respondent dated 24 April 2017 in support of the revocation of the mandatory cancellation of his visa.[14] In that submission the Applicant states:

    20/7/15- Reckless cause injury. I had a party at my home with many people attending and drinking on that night. I was upstairs when an argument ensued downstairs. I came downstairs to calm down the situation when I found a female’s foot was bleeding due to broken glass on the floor. The female was taken to hospital and provided a statement to the police. The trial was set for the incident. The female could not remember the event due to intoxication and was found to have been lying, resulting in the trial being thrown out due to insufficient evidence to prove any guilt by me, other than that the female patron got injured at my property at the time of the party.

    [14] G documents page 140.

13. This account is clearly false. The reasons of the Court of Appeal state that the Applicant was convicted following a trial before a judge and jury. The case was hardly thrown out. Under the heading “Circumstances of the offending”, a very different version of the events is referred to. The Applicant produced a 20 to 25 cm long sharp kitchen knife and swiped it at the victim during which attack she sustained a deep laceration to the back of her right ankle. The Court opined that it probably occurred when she kicked at the Applicant in self-defence.

14. This inconsistency was not put to the Applicant and therefore, the Tribunal will place comparatively little weight upon it. However the failure to explain this discrepancy is a further example of the Applicant’s selective memory in relation to matters adverse to his application. It seems hard to believe that he could have made such a fundamental error by oversight. The Tribunal finds that the purpose for which the Applicant either could not recall or gave varying versions of important events was to advance his case. Overall the Tribunal concludes that the Applicant is an unreliable witness.

    OBSERVATIONS ON THE EVIDENCE OF THE APPLICANT’S WIFE

15. The Tribunal also considers that it is appropriate to make some observations on the evidence of the Applicant’s wife. As noted above a witness statement signed by her was tendered in evidence. She also gave oral evidence at the hearing.

16. Notwithstanding the evidence she gave in support of her husband, her demeanour in the witness box gave the appearance of a hesitant and reluctant witness. The Tribunal notes in this regard with some concern, the sentencing remarks of the trial judge in which Her Honour referred to the fact that she felt pressured by leaders of the Sudanese community to sign a letter in support of his plea before her, even though she had not read the contents of such letter.

17. It was also apparent to the Tribunal that she has had a most difficult life, both prior to and after her arrival in Australia. She did seem a kind woman who probably found the experience of the witness box very difficult. To some extent, this difficulty was compounded by the competing interests: loyalty to her husband notwithstanding what he had done to her and the violence that she has endured from him. She was also very conscious of protecting her children and their interests.

18. There was considerable evidence before the Tribunal that demonstrated she had suffered years of domestic violence (including the incident where she was stabbed by the Applicant in the presence of her children), neglect and the Applicant’s frequent episodes of extreme drunkenness.

19. Following the stabbing in 2014, the Applicant’s wife spent two weeks in hospital, requiring surgery on two occasions. She was stabbed twice in the left chest causing a collapsed lung, a fractured rib, bruising and a cut airway which had to be treated by further surgical intervention subsequent to her initial discharge from hospital.

20. In paragraph 25 of her police statement she stated "The surgeon say I lost a lot of blood and I very lucky to be alive." As was noted by Judge Quin, they were clearly injuries of a very serious nature. Her treating doctor, in a report dated 29 July 2014 which was in evidence before the sentencing Judge stated: "Since the incident, she's been suffering from post-traumatic stress disorder, getting anxiety attacks, sleeplessness, paranoid ideas and feelings of insecurity”.[15] The Applicant’s wife also filed a victim impact statement in which she recorded: "I just have to live with it for the rest of my life, and I really thank God that I'm alive today and to see my kids grow up. All I can think of is that I'm a survivor."[16]

    [15] This extract from the treating doctor’s report of 29 July 2014 was referred to at paragraph 12 of Judge Quin’s reasons.

    [16] This extract from her victim impact statement is referred to at paragraph 14 of Judge Quin’s reasons.

21. The toll that this had taken on her was extreme to the point where she stated that on one occasion after the Applicant had chased her out of the matrimonial home with a knife, she contemplated suicide and even ran to a train line with the intention of jumping into the path of an oncoming train. Fortunately, a friend prevented her from doing so and also convinced her to telephone the police.[17] Intervention Orders had been issued against the Applicant to protect his wife.[18] He has breached those orders for which he was charged and convicted. (Indeed she expressed a desire that the Applicant be charged).[19] However, notwithstanding what she had to endure, she expressed a strong desire to assist her husband.

    [17] The contents of paragraph 7 of her statement made at the Sunshine Police Station on 11 February 2014 are referred to in their entirety concerning this event.

    [18] Certified Extracts of an Intervention Order made in November 2011 at the Sunshine Magistrates' Court are in evidence before the Tribunal at pages 256 – 258. They reveal that an extensive order was made against the Applicant preventing him from engaging in a vast array of conduct towards his wife.

    [19] For instance see the contents of her statement to the police at page 245 of the G documents.

22. There were several inconsistencies in her evidence which force the Tribunal to be wary of her reliability. Several of these inconsistencies arise from the varying account of the facts of the stabbing incident on the morning of 20 January 2014.

23. As noted earlier, there was the inconsistency between her evidence to the Tribunal where she said she was stabbed twice and the transcript of her conversation with the 000 operator where she said she was stabbed just once. Judge Quin and the Court of Appeal found that she was stabbed twice.

24. The Applicant’s wife telephoned 000 at approximately 8:30 AM on 20 January 2014. A transcript of the conversation with the 000 operator was in evidence before the Tribunal.[20] In that conversation she stated that she was stabbed at “Around 6.45”. Not unsurprisingly, the operator asked why she had waited over an hour to call them. She declined to give a response to the operator, despite being asked to do so. The failure to respond to the operator when requested (particularly given that she stated the Applicant had left the house) is puzzling.

    [20] Pages 416 to 443 of the G documents.

25. In her statement to the police, made on 11 February 2014 at the Sunshine Police Station, she stated that after the stabbing she “was bleeding out of control and [she] felt in [her] heart [she] was going to die.”[21] (The Tribunal notes that this is consistent with the injuries recorded in the clinical notes provided by the Royal Melbourne Hospital.) She then stated:

    A short time later I had my mobile again and call 000, XDJD was standing next to me. I speak to the ambulance and XDJD was standing there listening, I tell them that someone stabbed me and they jump out the window, I had to lie because he was standing there, they asked me what time I get stabbed and I tell them 6:45 AM and then they ask why I wait so long it was 8:30 AM and I say because I didn’t have a phone.

    [21] Paragraph 21 of such statement.

26. In paragraph 12 of her witness statement, she stated: “He took my phone for a while because he was worried I would call the police. Eventually, he gave it back so I could call the ambulance and he left”. In the course of her cross-examination and to questions from the Tribunal, she gave a very different version. She said that the time that elapsed between her stabbing and calling the 000 operator was about 30 minutes. She stated that the delay was not because the Applicant had taken her phone but because she had been unable to find it. She said she only found the phone on a table after he had left the house. She further said she did not think that he even tried to stop her ringing the police. There are three different versions of when she called 000 before the Tribunal. When asked why her evidence was different, she explained that it was over five years ago. Such explanation was given somewhat reluctantly and half-heartedly. The Tribunal cannot accept this explanation.

27. Another matter where there was an inconsistency was that in her witness statement filed in this Tribunal proceeding, she made no reference to being punched in the head several times by the Applicant. However, in the patient care records, produced by the hospital to which she was admitted after the stabbing, it records her informing them that she was punched several times to the head and then stabbed with a long-bladed knife. In paragraph 17 of her police statement, she said she was punched in the head. When this was put to the Applicant, he conceded that he did punch his wife several times in the head. Although, he too did not mention it in his witness statement to the Tribunal nor his interview with the police on 21 January 2014. The Applicant’s wife was reluctant to concede that she had been punched in the head and when the contents of the clinical notes were put to her, she was only prepared to concede that she was punched in the head once. Further, her response was: “I am pretty sure the hospital has got it wrong.”

28. When it was put to her that the statement made to the police was a document made shortly after the events concerned and was more likely to be accurate, she stated that she was on medication and drowsy and therefore, might have been more inclined to say something that was not true. This response had an air of reconstruction or half-hearted guesswork to it which the Tribunal cannot accept.

29. The sentencing Judge in paragraph 29 of her Reasons for Sentence of in 2014 observed that the Applicant’s wife had signed a letter in support of the Applicant and the sentencing hearing before her. Further, the learned Judge stated that the Applicant’s Wife was pressured into signing the letter; such pressure being exerted on her by leaders of the Sudanese community and that she had not in fact even read the letter. In her evidence in chief, the Applicant’s wife admitted that the sentencing Judge had made this finding and did not deny that she had been pressured to sign the letter, nor that she had not even read such letter. This is prior conduct that demonstrates a propensity on the part of the Applicant’s wife to succumb to pressure to support her husband when his conduct is under scrutiny during the course of a proceeding. It provides further reason why the Tribunal should view her evidence supporting her husband with some level of caution.

30. Another matter that the Tribunal observes is the manner in which the Applicant’s wife gave her evidence in the witness box compared to the drafting of her witness statement. She was specifically asked whether anyone had put pressure on her to make the witness statement to which she replied: “no”. Further, she said that the statement contained her genuine feelings. However, the way the witness statement is drafted does not to the Tribunal really reflect her manner of speaking. It is possible as is frequently the case, that this statement was drafted in conjunction with a lawyer’s input to the terminology used. However, its overall style does not reflect the grammatical style adopted by her in the witness box.

    THE PRIMARY CONSIDERATIONS

31. Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:

    (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

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

    b)        The best interests of minor children in Australia;

    c)        Expectations of the Australian community.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

1. Paragraph 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:

   (2)       Decision-makers should also give consideration to:

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

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

   Nature and seriousness of the Applicant’s conduct

2. Paragraph 13.1.1 of the Direction relevantly provides that:

   (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

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

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

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

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

   e)        The cumulative effect of repeated offending;

   …

   g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

   Initial observations concerning this consideration

3. In undertaking an application of this paragraph of the Direction, the Tribunal will examine in some detail the facts and circumstances giving rise to the offending concerned. The Tribunal considers it important to make some preliminary observations about the offending and the context in which it occurred. As two of the offences committed were the stabbing of women on 11 March 2013 and 20 January 2014, they resulted in considerable jail terms. On its face therefore, the offending is serious. Indeed, the County Court Judge in her Reasons for Sentence made this observation, as did the Court of Appeal in relation to the 20 January 2014 stabbing incident. Several of the offences arose as a result of the Applicant being in possession of or using a knife. Two of the offences arose as a result of stabbing women. One of the two women he stabbed was his wife. The other victim was an acquaintance who was present at a party held at the Applicant’s residence. This is highly disturbing.

4. On eight occasions he was convicted of contravening family violence intervention orders (“FVIO”). These intervention orders were granted by the Magistrates’ Court to protect the Applicant’s wife. Other convictions that he has include two counts on separate occasions of failing to answer bail, committing an indictable offence whilst on bail and two counts of stating a false name and false address when requested. He also has committed offences of driving whilst suspended (two counts), driving whilst disqualified and two counts of criminal damage. (The criminal damage occurred at premises occupied by his wife.)

5. A further disturbing feature of the Applicant’s offending when he stabbed his wife in January 2014 (as was noted by both the sentencing judge and the Court of Appeal) is that it was committed whilst the Applicant was still subject to a Community Corrections Order (“CCO”) and whilst an existing FVIO, which had been renewed, was fully operative.

6. This pattern of conduct unfortunately has shown that the Applicant on several occasions contravened the terms of bail, intervention orders and community corrections orders imposed by various courts. This shows that he has not been compliant to the legal process imposed by various judicial officers.

7. The pattern of offending relevant to the Tribunal’s consideration encompasses the period from approximately October 2010 until July 2016. The lapse into offending is puzzling to the Tribunal. It has been observed above that upon his arrival in Australia in June 2006 the Applicant immediately found work, and until he was imprisoned many years later, made remarkable progress. This progress was a reflection of his capacity to diligently learn, adapt and work hard. As his counsel referred to it on several occasions throughout the course of the hearing, he then “fell off the rails”. It does seem difficult, notwithstanding much of the evidence before the Tribunal, particularly that of the consultant psychologist Mr Cummins that he is suffering from Complex

   
   

   Post-traumatic Stress Disorder (“PTSD”), to comprehend how this occurred.

8. The Applicant, when probed about this in the course of his evidence, stated that much of it was caused by his excessive consumption of alcohol which had been triggered by his earlier childhood experiences in Sudan. However, he did not fully explain how some of the extraordinarily awful things that happened to him occurred or how they caused him to fall of the rails. The Court of Appeal found it significant that both offences occurred when the Applicant was heavily intoxicated. The court considered it important that the Applicant’s alcohol dependency be addressed, especially because both offences were committed against women.

   The 23 November 2011 Intervention Order

9. On 23 November 2011 the Sunshine Magistrates’ Court granted a “Full Family Intervention Order”. The duration of the order was for 12 months. The order was applied for by the Victoria Police[22]. The “Affected Family Members” identified in the order were the Applicant’s wife and his three children. The terms of the order were extensive and prohibited the Applicant from committing family violence against the protected persons. He was also prohibited from intentionally damaging any property of the protected persons; attempting to locate or follow them; contact or communicate with them by any means; approaching or remaining within 5 metres of the protected persons; going or remaining within 200 metres of his wife’s residence or any other place where those persons lived, worked or attended school or childcare. The order also recorded that the Applicant was present at the hearing before the Magistrates’ Court.

   The 3 September 2012 incident and subsequent court appearance[23]

   [22] A Certified Extract of that Intervention Order is to be found at page 256 of the G documents. The Applicant was Adam Douglas Licastro, presumably a Police Constable. The Applicant at paragraph 80 of his witness statement said that the order was taken out by the police. He said: "I just agreed to them". There is no evidence before the Tribunal to show why the order was granted. Presumably, the Magistrates’ Court was satisfied that there was some risk to the Applicant’s wife and children.

   [23] There are a series of documents which would appear to be part of a police brief concerning this incident found at pages 199 to 221 of the G documents. Other documents concerning this incident will be identified where appropriate in these reasons.

10. On 3 September 2012 at approximately 8:15 PM, in violation of the existing Intervention Order, the Applicant arrived intoxicated at the home his wife occupied. According to police reports, the Applicant became aggressive and intimidated his wife. She then packed a bag and endeavoured to leave the house. The Applicant confronted his wife, continued to argue with her and attempted to prevent her from leaving. It is recorded in the police material that he attempted to strike her. In the course of that confrontation he removed his T-shirt and used the words: “is this what you want”. He then went to the kitchen and picked up a kitchen knife from a drawer, chased his wife through the house outside and down the street. The police were called and the Applicant was arrested. Constable Chatila made a statement[24] that upon attending the premises, he found the Applicant’s wife hiding in some bushes next door. He described her condition as: “distraught, shaking, scared and crying.”

    [24] That statement commences at page 204 of the G documents.

11. The police “Summary of Charges” records that the Applicant was asked what his reasons were for contravening the Intervention Order. The Applicant reportedly said: “I didn’t actually break it; I forgot to change it at court”. When asked what the reason was for committing an assault with a weapon he answered: “I don’t have a comment, it sounds funny”.

12. From these incidents the Applicant was charged with contravention of a FVIO and Assault with Weapon. For reasons that cannot be determined, the charge of Assault with Weapon was struck out or withdrawn[25]. The charges of contravening a FVIO were proven. The Applicant pleaded guilty, was convicted and placed on a CCO for a period of 15 months. The conditions attached to the CCO included 60 hours of unpaid community work and a requirement that the Applicant undergo a treatment and rehabilitation program which included, amongst other things, a mental health assessment together with an anger management program.[26]

    [25] The "Certified Extract" from the Magistrates Court of Victoria at Sunshine showing the disposition of this charge (in which Constable Chatila was the Informant) formed part of exhibit A3.

    [26] A Certified Extract from the Magistrates’ Court of Victoria at Sunshine concerning these charges in which Constable Chatila was the Informant showing these orders also forms part of exhibit A3.

13. There was some debate between Mr Hughan for the Applicant and Mr Brown for the Respondent concerning this incident. The Applicant was not convicted of any assault arising from this incident. The Applicant contends that the Tribunal should not take into account the fact that the Applicant was in possession of and used a knife, during the course of the 3 September 2012 incident, when applying the relevant considerations prescribed by the Direction. Mr. Brown contends that the incident happened and the Tribunal is able to take it into account and look into what did happen on that day.

14. Whilst the Applicant was not convicted of any assault arising from this incident, the Tribunal takes into consideration the fact that he was in possession of a knife, as part of the overall factual matrix giving rise to the contravention of the FVIO. It was a serious and wilful contravention of the order against not only his wife but his children, who were affected family members afforded protection by the terms of the order.

15. There is significant evidence concerning this incident, including the statement of the police Constable and what he observed. The Tribunal has no reason to doubt that the statement is accurate.[27] A police officer has taken an oath of office to uphold the law. The police documents contained in the G documents concerning this incident were no doubt compiled as a result of the investigations conducted by the police. The Police Constable in his statement also notes that he conducted a digitally recorded interview on 4 September 2012 with the Applicant. Unfortunately, we do not have that record of interview before the Tribunal. However, the Tribunal infers that it and other statements made would have been the source of the information contained in those police documents.

    [27] It is appropriate to observe of course that the statement made by Constable Chatila would have been admissible, or perhaps more accurately, could have been used in the proceedings at the Sunshine Magistrates’ Court by reason of the provisions of section 33 - Evidence given by police officers of the Evidence Act 2008 (Vic). (Which is the adaptation in the State of Victoria of what is known as the "Uniform Evidence Law", see also Odgers "Uniform Evidence Law” 12th Edition 2016.) This is a facilitative provision which permits a police officer to give evidence in chief for the prosecution by reading or being led through a written statement previously made by him at the time of or soon after the occurrence of the events to which it refers. Whilst the Tribunal is not bound by the rules of evidence there is no reason why the statement should not be received in this application for all purposes. Additionally, there was not at any time any challenge in the course of this application to the statement being received in evidence, its authenticity or any other aspect of its accuracy.

16. There are some other aspects of the 3 September 2012 incident that should also be recorded. In cross examination, the Applicant could not recall when the relevant FVIO was made. This was even after he was referred specifically to the Certified Extract in the G documents in an attempt to revive his memory. He said he could not recall the date that he was at court. He said that he is mostly at work. This is puzzling, given he states that he believes that that intervention order was taken out by the police in paragraph 80 of his witness statement. He further notes in the statement that he never went to court about the intervention orders, he just agreed to them.

17. Further, he said that he did not really understand the law or how the intervention orders worked. He said he did not understand that being near his wife would be a crime. This is concerning to the Tribunal for several reasons. No doubt at the hearing at the Sunshine Magistrates’ Court on 23 November 2011, if the Applicant was not represented, the presiding Magistrate would have carefully warned the Applicant of the nature and purpose of the FVIO and the very serious consequences arising from any breach. It is standard procedure for such a warning to be given. The police prosecutor who applies for such an order would have also given the Applicant a similar warning. The Tribunal has difficulty accepting this statement from the Applicant.[28]

    [28] Paragraph 80 of the Applicant’s witness statement is referred to.

18. When specifically asked about the 3 September 2012 incident and what happened on that date, he replied “no”. When it was put to him that he went to his wife’s house and a big argument started, he responded: “No I don’t remember. No I don’t remember.” He was specifically referred to the police summary contained at page 209 of the G documents, which recorded that he chased his wife out of the house with a knife. He repeated in fairly robust terms: “I don’t remember the September 2012 incident or any charges at Sunshine Court. No I don’t remember.” As noted previously in these reasons, the Tribunal cannot accept that the Applicant has no memory of either the incident on 3 September 2012 or the subsequent appearance at the Sunshine Magistrates’ Court.

19. The Tribunal’s conclusion is further amplified by the fact that there was a CCO imposed upon him for a term of 15 months which required him to undertake not only unpaid community work but several other remedial or rehabilitation steps. The Applicant’s compliance with the terms of the CCO, being repetitive in nature, would tend to indicate that he ought to have, even if in general terms, had a recollection of the incident on 3 September 2012 and the subsequent appearance in court.

20. Once again, the Applicant’s failure to recall both the incident on 3 September 2012 and the subsequent court appearance does not reflect well upon him. This is also in addition to the circumstances of the incident itself which were very serious.

    The 11 March 2013 stabbing incident

21. This incident was touched on earlier in these reasons. The account of the incident can be derived from the reasons of Maxwell P and Kyrou JA.[29]

    [29] Exhibit A4. The factual details are taken from the portion of the reasons of the Court of Appeal under the heading "Circumstances of the offending".

22. The Applicant was convicted after a trial before Judge Chettle and jury[30]. Therefore, he must have entered a plea of not guilty. Why a plea of not guilty was entered by the Applicant, given his evidence before the Tribunal and other sources concerning this incident, is difficult to fathom. It is of concern that the victim of that crime was obliged, presumably, to give evidence and be subject to cross-examination by counsel. This is troubling given what she had previously suffered.

    [30] This is confirmed in paragraph 3 of the Court of Appeal’s reasons.

23. The Applicant stated to the Tribunal he could not recall what happened on that occasion. Therefore, unless the victim’s evidence was fundamentally implausible (which is unlikely given the stab wound she received), a conviction was almost certain. No doubt it was a factor taken into account by both the trial judge and the Court of Appeal when imposing a sentence. It is of course relevant to observe that the Sentencing Act 1991 (Vic) provides for a discount on a sentence in the event of a guilty plea and, concomitant with that, a larger discount for an early guilty plea.

24. Once again, the offending occurred whilst the Applicant was intoxicated. It occurred whilst a small party was taking place at his home. The Applicant believed that others present, including the victim, were laughing at him which caused him to become angry. He then approached the victim and slapped her in the face with an open hand. He then grabbed her by the neck and pushed her onto a bed. They were separated and the Applicant left the room with the victim remaining on the bed crying. He returned carrying a 20 to 25cm long sharp kitchen knife. He approached the victim. She moved further away from the Applicant and in the process picked up an empty bottle of Jack Daniels, smashing it on a coffee table. She then struck the Applicant with the bottle, causing him some head injuries which he gave evidence of still having to this day. The Applicant then swiped at the victim with a knife and during the attack she sustained a 0.5cm superficial laceration to her wrist and a 15cm long and 5cm wide laceration to the back of her right ankle. She was conveyed to the Sunshine Hospital and then treated there. The Court of Appeal opined that the injury to her ankle probably occurred when she kicked at the Applicant in self-defence. He sustained a bite injury when she bit him and lacerations to the head as a result of being struck by the bottle.

25. In cross-examination, the Applicant stated that he could not remember coming into the room holding a long kitchen knife. He did however concede that the victim might have been frightened for her safety, hence the reason why she struck him with the broken bottle. The Tribunal finds it difficult to accept the Applicant’s evidence that he could not remember being in possession of a knife on that occasion.

26. This offending is serious. There are several disturbing aspects of it which are readily apparent. The quick way in which the Applicant had resort to the use of a knife in a social setting, triggered by a belief that people were laughing at him, cannot be justified. It shows significant uncontrolled anger management problems. Additionally, the Applicant committed an appalling act of violence by using a knife against a woman, who was a vulnerable member of the community. These aspects of the offending reflect extremely badly upon him. This also needs to be considered in the context that he is an individual who, on his own admission, has had extensive military training and was probably physically much stronger than his victim.[31]

    [31] Additionally, the contents of paragraphs 38 above are referred to where the Applicant gave a false version of this incident and its treatment by the Court of Appeal in his submission to the respondent dated 24 April 2017 in support of the revocation of the Mandatory Cancellation of his visa. The Tribunal repeats that this does not reflect well upon him. Particularly, this is so given the gravity of the offence which was stabbing a woman.

    Subsequent breaches of FVIO between July and October 2013

1. As the National Police Certificate and the Certified Extracts from the Sunshine Magistrates’ Court reveal, the Applicant was convicted of further contravention of FVIO on six charges on 29 October 2013, together with criminal damage and unlawful assault.

2. On 10 April 2013 an existing FVIO was extended for a further period of 12 months. The terms of the FVIO made on that day were identical to those of the 23 November 2011 order with respect to Affected Family Members and the prohibitions on the Applicant committing family violence, approaching the Affected Family Members or going within 200m of his wife’s house or any other place where such protected persons, lived, worked or attended school.[32]

   [32] A copy of the Intervention Order made on 10 April 2013 at the Sunshine Magistrates’ Court is to be found at pages 412 to 414 of the G documents. Again, the Applicant for the Intervention Order was Adam Douglas Licastro, the Applicant in the 23 November 2011 Intervention Order referred to above.

3. The evidence concerning these offences is comparatively limited. The Reasons for Sentence of Judge Quin at paragraph 25 provide some detail of that offending. As noted by the sentencing Judge, the offences occurred between 9 July 2013 and 11 October 2013 on several occasions. (This was a period during which the FVIO made on 10 April 2013 at the Sunshine Magistrates’ Court was in effect.) In violation of the terms of the FVIO, the Applicant attended at the home occupied by his wife and children. The facts were that on 10 October 2013, the Applicant threatened to kill his wife and at the time was holding a small knife.

4. In cross-examination the Applicant stated he could not recall the incidents. The denial was unconvincing.

5. Once again there are several disturbing aspects of this offending. Critically, there is the use of a knife yet again. The knife was used against his wife, who was in a position of vulnerability viz a viz the Applicant, who had previously in his life had military training and combat experience.

6. There is also the repeated pattern of breaching the terms of a FVIO which had been extended. It seems difficult to accept that the Applicant did not understand its terms, force and effect. As has been previously addressed in these reasons, the Applicant presented as an articulate and intelligent man who clearly has well-developed skills when it comes to reading and writing in the English language. Further testament to his skills was the very successful employment history he had before his offending commenced. The language of the FVIO is not difficult to read and comprehend, certainly not for someone of his standard of literacy. The Tribunal is also satisfied that the terms of any such order would have been explained to him by the court.

7. Another feature of the Applicant’s offending was that the breaches occurred over several months. The breaches occurred after he appeared in court at the time the FVIO was granted and was charged in the previous year for breaches of its terms. This reveals that the Applicant had not learned his lesson. The Tribunal must weigh his persistent disregard of the law and in particular, specific court orders regulating his behaviour with family members. The breaches of those court orders were blatant and repeated.

8. Finally, in terms of sentence, the Applicant was placed on a CCO for a period of 15 months. The terms of the CCO required the Applicant to perform 60 hours of unpaid community work and undertake a program of treatment and rehabilitation, including a mental health assessment; an offending behaviour program; any other treatment and rehabilitation as directed together with anger management courses.

9. Tellingly, the Magistrate, as he was obliged to under the provisions of the Sentencing Act 1991 (Vic) stated that, but for the Applicant’s plea of guilty, the sentence he otherwise would have imposed was jail. The sentence imposed and the potential jail term reflect the seriousness of the Applicant’s offending.

10. It must have been surely apparent to the Applicant that not only was his offending serious but also that he needed to take stock of himself. The terms of the CCO were a sympathetic and considered opportunity for the Applicant to address the unacceptable conduct for which his character is now called into question. It appears that he either did not do so or that the programs he undertook as required by those Orders did not achieve their intended effect. It is disappointing that someone of obvious intelligence as the Applicant ultimately was unable to avail himself of this excellent opportunity to rehabilitate and put his life back on track. Once again this does not reflect particularly well upon him.

    The 20 January 2014 stabbing of his wife

11. The matters referred to above in these reasons concerning the 20 January 2014 stabbing of the Applicant’s wife are referred to and repeated. In particular, the inconsistencies in the accounts of that incident given by both the Applicant and his wife are reiterated.

12. There are multiple versions of this incident and the significant delay between the stabbing and the time that the victim was able to call 000 and obtain assistance. Coupled with this is the reprehensible behaviour of the Applicant, leaving the scene for his wife and children to fend for themselves. His children observed the results of their mother being stabbed and bleeding profusely. (A matter that the Applicant largely seemed to avoid in his evidence to the Tribunal.)

13. The Applicant’s record of interview gives a chilling account of what his children observed. One of his children, he described as the “little boy”, told them to stop and his daughter was crying as well as his other son.[33] (It should be recalled that his oldest son at the time was 6 years old; the younger was 4 years old and his daughter only 2 years old.)

    [33] The record of interview with the police at pages 459, 460, 464 and 475 are referred to.

14. The Applicant’s 6-year-old son was interviewed by the police on 22 January 2014[34]. He stated (amongst other things):

    My dad jump in the bed and my dad wake my mum up. My dad was trying to talk and my mum was trying to talk to him. My dad get the knife and then he-my mum-my mum was holding it and then stab her and was crying. And then my dad said, “Shut up,” lots of times and my mum listen. And my sister was crying, my brother was crying and my mum was crying.

    [34] The record of interview with the son concerned at pages 322 to 337 of the G documents.

15. The elder son then gave evidence[35] about the amount of blood he saw, his mother crying, blood all over the sheets, the blankets, the pillows, and on her pyjamas. He gave evidence of blood coming from his mother’s mouth. One cannot begin to imagine how a 6-year-old boy could have processed this horrible experience. Then he was required to relive it at an interview at the police station with two detectives. An environment that would for most people be confronting, let alone a 6-year-old boy. No child should have experienced such events, least of all acts caused by his father. One can only speculate as to what long-term effects that this experience will have on him. However, no doubt it is one he is likely to recall for the rest of his life.

    [35] It should be recorded that the Applicant’s eldest son’s responses demonstrated that he was a sensitive, thoughtful and articulate and obviously well-educated young boy despite his comparatively tender years.

16. The injuries suffered by the Applicant’s wife have been referred to above. She is also suffering from ongoing conditions of PTSD, anxiety attacks, sleeplessness paranoid ideas and feelings of insecurity. In her statement to the police[36] she stated that her airway was cut which required further surgery. There was significant blood loss and continuing pain.

    [36] Also found by the Court of Appeal.

17. The Applicant was resentenced by the Court of Appeal to a term of 18 months imprisonment with a 2-year CCO. The Reasons for Sentence of the Court of Appeal are referred to. They record the seriousness of the Applicant’s offending when he stabbed his wife on this occasion. The conditions of the CCO were as follows:

    (a)Conditions requiring assessment and treatment for his alcohol dependence on mental health conditions;

    (b)Conditions requiring participation in offending behaviour program and other treatment and rehabilitation;

    (c)A supervision condition;

    (d)An alcohol exclusion condition; and

    (e)A judicial monitoring condition.

18. The Applicant’s compliance with these conditions will be addressed later in these reasons.

19. The Applicant was released from prison after serving the two sentences imposed by the Court of Appeal in July 2015.

    The 8 December 2015 offences

20. After his release from prison, the Applicant was convicted at the Sunshine Magistrates’ Court (on 13 July 2016) of unlawful assault and contravening a FVIO[37]. A knife was waived around by the Applicant as part of the factual matrix constituting the assault but was not used. He was sentenced to a term of imprisonment of five months as part of an aggregate sentence. The Magistrate noted that he had been held in custody for 117 days, which was included as part of the term of imprisonment imposed by those orders. The circumstances and the gravity of this offending were not referred to by the Applicant in his witness statement. Nor was it touched on in his evidence in chief.

    [37] Particulars of these convictions are to be found in the Certified Extracts of proceedings in the Sunshine Magistrates Court forming part of exhibit A3.

    The 17 March 2016 offences

21. The Applicant was also convicted at the Sunshine Magistrates’ Court on 13 July 2016 of further contraventions of a FVIO. He caused harm and fear, criminal damage (intentional damage and destruction of property), made threats to inflict serious injury and committed an indictable offence on bail.[38] The offences were found to have been committed on 17 March 2016. He was also sentenced to a term of imprisonment of five months as part of an aggregate sentence (with the 8 December 2015 offences which were heard at the same time).

    [38] Particulars of these convictions are also to be found in the Certified Extracts of proceedings in the Sunshine Magistrates Court forming part of exhibit A3.

22. The facts concerning the 17 March 2016 offences in evidence before the Tribunal are limited. The Applicant, in reply to a question from Mr Brown, stated that in March 2016 he was “back in prison”. The Applicant was arrested at the time of his offending on 17 March 2016.[39] In her statement his wife referred to an incident in February 2016 where the Applicant breached an FVIO and was sent “back to prison for the second time”. The offending was said to arise from an argument with his brother that occurred after the brother and some community members tried to organise a meeting with the Applicant and his wife to reconcile their relationship.

    [39] This is because 117 days had elapsed between 17 March 2016 and the date of sentence in the Sunshine Magistrates’ Court on 13 July 2016. The Certified Extract of the Applicant’s appearance in that Court on that day records that he had been held in custody for 117 days.

23. The Applicant does not specifically refer to the date of any incident that led to him being in prison again, other than at paragraph 91 of his statement: “I was arrested and went back to prison for another five months.” The circumstances of that offending given by him were that he and his wife had briefly reconciled at the family home and soon commenced fighting. He then started sleeping in his car for a few weeks and came into the house to change his clothes and have a shower. In the course of gaining entry to the house he came in through the window and accidentally broke the glass. According to his version of the events, his wife was upset about the broken window which led to another argument, police intervention, subsequent arrest and imprisonment.

24. The 8 December 2015 and 17 March 2016 offences were committed whilst the Applicant was subject to the 2-year CCO imposed by the Court of Appeal for the two stabbing offences referred to previously. This offending violated the terms of the CCO which contained conditions to address the specific causes of the Applicant’s previous offending.[40]

    [40] The observations of the Court of Appeal under the heading "Resentencing" at paragraph 42 of its reasons are referred to.

25. These conditions are not uncommon and they are included to assist with an offender’s rehabilitation. They are designed to give him a chance to break a cycle of offending and otherwise reduce the duration of a prison sentence that might be imposed. Regrettably, it is apparent by the Applicant’s conviction for the 8 December 2015 and 17 March 2016 offences that he did not adhere to the conditions of the CCO nor take the opportunity to rehabilitate and gain an insight into what caused his offending.

    Conclusions on the nature and seriousness of the Applicant’s conduct

26. The criteria in paragraph 13.1.1 of the Direction prescribe that violent crimes are viewed very seriously. The offending of the Applicant described above falls within this category. Paragraph 13.1.1 of the Direction also prescribes that crimes committed against vulnerable members of the community are serious. The Applicant committed crimes against vulnerable members of the community, being the two women that he stabbed. In the case of stabbing his wife he did so in the presence of his children. These crimes are objectively serious.

27. The sentences imposed by the courts are also a relevant consideration under paragraph 13.1.1 of the Direction. Significant prison sentences were imposed with respect to three crimes, the stabbing offences, breach of FVIOs and unlawful assault. The prison sentences reflected the conclusion of the courts that the Applicant’s offending was serious.

28. The frequency of the Applicant’s offending is also a relevant consideration under paragraph 13.1.1 of the Direction. There has been a frequency that is disturbing. This frequency has also taken place in the context of the use of knives and breaches of FVIOs and CCOs when the Applicant should have, as an articulate and intelligent man, known better. This conduct is for these reasons extremely serious.

29. The cumulative effect of the Applicant’s repeated offending is another relevant consideration under paragraph 13.1.1 of the Direction. There are several cumulative effects: the serious injuries suffered by his wife, psychological and physical trauma that she is still suffering and the trauma that the Applicant’s children had to endure when they have been present during his offending. Additionally, there was the significant impact on the Applicant’s six year old son who was required to attend a police station and give the videotaped record of interview. There are the physical injuries and the psychological suffering incurred by the victim of the stabbing committed by the Applicant on 11 March 2013. There are also the demands on emergency services including police, ambulance, hospital and nursing staff, courts, together with the prison service. The cumulative effect is significant and serious.

30. Overall, taking into account the considerations prescribed by paragraph 13.1.1 of the Direction, the nature and seriousness of the Applicant’s offending weighs strongly against the revocation of the mandatory cancellation of the Applicant’s visa.

    Risk to the Australian community should the applicant reoffend

31. Paragraph 13.1.2 of the Direction provides that:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

32. On most occasions, the Applicant cooperated with the police and pleaded guilty, usually at the earliest opportunity.

33. However, with respect to the 11 March 2013 stabbing, he was convicted after a jury trial. As noted above in his submission to the Respondent, he asserted that the case was thrown out. This level of indifference to the crime both before and after his conviction reflects poorly upon him.

34. The Applicant submitted that since he has been in immigration detention, he has commenced treatment for his mental illnesses and alcohol addiction. According to the Applicant, this is evidence of insight into his behaviour, remorse and part of a genuine and significant progress towards rehabilitation.

35. The Tribunal, in making this assessment, must take into account all matters in evidence, not merely the past pattern of offending. The Tribunal has difficulty with his assertions of progress towards rehabilitation because he has had the benefit of several CCOs in the past which were designed to address these issues. He has failed to comply with the courts’ corrective penalties or grasp the rehabilitative opportunities offered to meaningfully address his conduct.

36. In so far as the Applicant relies upon the evidence of his wife, the Tribunal finds it difficult, for the reasons articulated above, to accept her evidence, no matter how genuine it may have been given. No doubt it was probably made with the best of intentions but the history of her suffering at the hands of the Applicant and the dominating influence he has had over her limit the weight that can otherwise be placed on her evidence. These concerns are also amplified by the comments made by the sentencing Judge in her Reasons for Sentence that the Applicant’s wife had been pressured to sign a letter of support, exerted on her by leaders of the Sudanese community.

37. As for the Applicant’s uncle Witness A, whilst overall he presented as a genuine witness attempting to do his best, to his absolute credit he acknowledged that he did not have a detailed knowledge of the Applicant’s criminal history or alcohol use. The Tribunal accepts his account of his conversations with the Applicant. However, he does not offer much beyond a belief that there is genuine remorse and change in direction by the Applicant. He does not address the questions of potential relapse or further criminal offending and the potential consequences both for the Applicant’s wife and children and the general community should this occur. He ultimately seemed to speak as a “voice of the community” rather than providing an overall assessment of the capacity of the Applicant to engage in immediate, permanent and genuine long-term change in his approach to obedience to the law. Therefore, whilst this evidence is considered genuine, its weight is considered by the Tribunal to be limited.

38. There is limited evidence before the Tribunal from healthcare professionals. (The Psychological Report of Jeffrey Cummins of 6 October 2014 is referred to and has been considered by the Tribunal). The evidence available supports the conclusion that the Applicant does suffer from some form of PTSD. Undoubtedly, this requires further treatment if reoffending is to be avoided. Were he to be released into the community, the Applicant will need to adhere to the prescribed treatment and be motivated to continue doing whatever is required. There is significant doubt about what obligations would be cast upon him by that treatment and how reliably he would maintain the program of treatment necessary to address his conditions.

1. In addressing this consideration the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4). Paragraph 14.1 of the Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm such that it would trigger Australia’s international non-refoulement obligations.

2. The Applicant has made several contentions which he relies upon to assert that he will suffer significant harm which would therefore constitute another reason within the meaning of section 501CA(4). Those contentions are as follows:

   (a)Risk of harm on the basis of ethnicity;

   (b)Imputed political opinion (perceived pro-government);

   (c)Risk of harm as a former child soldier;

   (d)Risk of harm arising from lack of physical and psychological medical care;

   (e)Risk of harm on account of civil war and humanitarian crisis; and

   (f)Legal consequences of the decision.

3. Prior to considering each of the contentions relied upon by the Applicant to establish whether he would be at risk of a specific type of harm as contemplated by paragraph 14.1(1), the Tribunal notes that there is limited evidence before it as to the current state of affairs in South Sudan concerning these matters. Indeed, some of the evidence before the Tribunal such as the DFAT Country Information Report is not recent. There is also the issue that the state of affairs in South Sudan appears to be regularly changing.

4. A “peace agreement” was signed in July of this year between the President of South Sudan Salva Kirr and Deputy President Riek Machar. It has led to a cessation of hostilities. It remains to be seen whether this agreement will last.

5. In this proceeding the Applicant gave evidence of his early life in South Sudan. He spoke of village life working with his family on a farm. He gave an account of being kidnapped by the SPLA. He gave evidence both in his witness statement and from the witness box of the deprivations that he suffered throughout those years and his ultimate training as a child soldier. He was separated from his father. Between the time of his kidnapping and the age of 15 years when they were reunited, his father had also joined the SPLA. After fighting some battles with his father, his father was killed in a rocket attack in his presence. This event had a significantly detrimental effect upon him. He stated that he started losing his mind and having nightmares which often led to shooting in the dark even though there was no enemy present. Eventually, he managed with others to escape to Kenya and was transferred to a refugee camp. It was whilst present in this camp that he was able to go to school and eventually was resettled in Australia.

6. The Applicant’s concerns are that if he returns to South Sudan he will be remembered as an escapee. Escapees, he says, are killed for trying to run away. They are treated as deserters. Additionally, he is concerned that others in the country might seek revenge against him because they have lost family members during the war that he participated in. He also raises concerns about his mixed ethnicity, being half Dinka and half Nuer. Alternatively, even if he is not killed because of his ethnicity or for being a former child soldier he would probably be killed in the conflict anyway. (Although no evidentiary basis for this last assertion is offered.)

7. The account given by the Applicant of his history as a child soldier in South Sudan in this proceeding was significantly more detailed, or as the Respondent contended, elaborate compared to the evidence given by him to the previous Tribunal proceeding. In the previous proceeding, there was very little said about this aspect of the Applicant’s history. There was a brief summary of this background in the Reasons for Sentence of Judge Quin but it was nowhere near as detailed as contained in the Applicant’s witness statement filed in this proceeding, nor his viva voce evidence. The Tribunal notes the observations made above about the reliability of any evidence given by the Applicant. The Tribunal has serious concerns about the different versions given in both proceedings and has taken this into account when assessing the weight it applies to this consideration.

   Risk of harm on the basis of ethnicity

8. On the available evidence, the Tribunal concludes that there certainly has been considerable risk of discrimination or violence on the grounds of a person’s ethnic background. The risk is obviously heightened where a person of Dinka ethnicity is present in those parts of South Sudan which have higher rates of conflict. For instance as mentioned in the Applicant’s contentions this has occurred in the Jonglei Province.

9. The Applicant contends that he is in fact both Neur and Dinka. The Respondent contends that at the first hearing of this matter, there was no mention of him being of dual ethnicity. This is another matter that gives rise to concerns about the accuracy of his evidence. His father was of Dinka background. He apparently has knowledge of that language and appears to have identified as Dinka in most respects. It is not clear to the Tribunal how he would be specifically identified as Nuer. However, the Tribunal does not rule out this possibility completely.

10. On the other hand (according to the DFAT Country Information Report), Dinkas face relatively low risk of being targeted on the basis of their ethnicity if they are in the major city of Juba. According to this report, they would likely be able to return to Juba without facing discrimination, violence or other risk of harm. This is because the Dinka-dominated government currently has almost unencumbered control over Juba which is the nation’s capital city. As Dinka the Applicant would be seen as pro-government.

11. There is also the question of the recently signed peace treaty.  One can only speculate on what effect this may have on the risk of harm to the Applicant.

    Imputed political opinion (perceived pro-government)

12. To some extent similar considerations apply. The Applicant refers to the contents of the DFAT Country Information Report which acknowledges that individuals associated with the SPLM are unlikely to be targeted on the basis of their political opinion, given that the government is dominated by them. However, if someone from the rival faction were to be present in an area co-controlled by them there would be a higher risk of discrimination and violence. This, coupled with his ethnicity, is said to give rise to the risk in the relevant sense. Once again, the Tribunal has limited updated information in relation to this matter. The observations made above concerning the Applicant’s ethnicity are referred to and repeated. Provided he stays within the areas controlled by Dinkas such as Juba, such risks of harm appear to be relatively low, particularly if the current peace treaty continues to hold.

    Risk of harm as a former child soldier

13. It is not readily apparent to the Tribunal how the Applicant would be identified as a former child soldier. Similarly, the Tribunal has to question how it will be determined by those wishing to cause him harm that he was an escapee from military service. Reference was made to what is known as the Sudan People’s Liberation Army Act 2009. It was contended that a previous version of that Act allowed for the death penalty for the crime of desertion. The Tribunal does not know what the current version of the Act provides for concerning desertion. The Act was not in evidence before the Tribunal.

14. There is also a contention that the Applicant may face forced recruitment or be in some way “press-ganged” into the armed forces due to his previous training and association with the SPLA. Once again the evidence is just too limited. It is also some years old (mostly between 2013 and 2016) and therefore its current application to the situation in South Sudan, given the peace treaty, makes it difficult for the Tribunal to reach a conclusion that the Applicant faces a real risk of harm as he contends.

15. On the other hand, the Tribunal is mindful of the fact that there has been a history of punishment and forced recruitment of individuals who have participated in the conflict as soldiers from time to time. This does to a limited degree weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    Risk of harm arising from lack of physical and psychological medical care

16. There is evidence of the various physical and mental conditions from which the Applicant suffers before the Tribunal[46]. The DFAT report indicates that South Sudan’s population has extremely poor access to health care. It further notes that accurate data prepared by the government on health indicators is often non-existent or outdated. It seems more probable than not that were the Applicant to return to South Sudan these conditions would not be treated. This does weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    [46] For instance see the report of Dr Cathy Civil of 9 March 2018. Dr Civil has apparently examined the Applicant whilst he has been in detention in Christmas Island. There is also the Psychological Report of Mr Jeffrey Cummins of 6 October 2014 which has been previously referred to.

    Risk of harm on account of civil war and humanitarian crisis

17. Some of the matters relied upon by the Applicant under this heading have already been addressed. Additionally, it is contended that since the outbreak of the conflict in December 2013, almost 4 million of the South Sudanese population have been displaced. Over 2 million refugees have fled the country and that there has been continuing conflict, killings torture, arbitrary arrest and detention. There is also the question of food insecurity and basic essentials of life being very hard to come by. Whilst this has occurred it is not apparent to what extent this will continue to be the case by reason of the peace treaty.

18. The Applicant contends further he would be exposed to greater risk of harm due to generalised violence arising from his lack of mobility. This presupposes that generalised violence will continue, which is not altogether certain given the peace treaty and if he were in Juba where the government apparently has almost unencumbered control. The Tribunal notes that his brother is living there and appears to be doing reasonably well. Presumably, he could assist the Applicant in resettling and adapting to life there. Whilst not determinative it is a factor that cannot be ignored.

19. However, the Tribunal is prepared to accept on the material before it that there is a risk of harm to the Applicant due to the potential for conflict and the humanitarian crisis. This does to some extent weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    Legal consequences of the decision

20. The legal consequences of the decision are said to be that if the mandatory cancellation of his visa is not revoked, it would be incumbent upon the Minister to remove him as soon as reasonably practicable. Therefore, he is likely to be returned to a country in which he faces a real risk of harm. Additionally, he may be stateless. It is then contended that it may not be practicable to remove the Applicant and in that case the legal consequences of a decision not to revoke the mandatory cancellation of the Applicant’s visa is indefinite immigration detention.

21. Acceptance of this contention would also require a finding that there is a risk of a specific type of harm referred to in the Direction. On the limited evidence before the Tribunal this is problematic.

22. It is not altogether apparent to the Tribunal that the Applicant would become stateless. The Respondent submitted that the Applicant would be entitled to have issued to him a National Identity Card by the South Sudanese government. Reference to this practice is also made in the DFAT Country Information Report for South Sudan.

    Conclusion on international non-refoulement obligations

23. Based on the limited evidence before the Tribunal, as noted in the sub-paragraphs above, it accepts that the Applicant faces some risk of harm as asserted by him if returned to South Sudan. Therefore, on the limited evidence before it, this finding weighs to some degree in favour of revoking the mandatory cancellation of the Applicant’s visa.

24. Accordingly, the Tribunal is required to decide whether this finding outweighs its conclusions in relation to the primary considerations contained in the Direction that have been considered earlier in these reasons.

25. The Tribunal finds that this consideration does not outweigh the conclusions reached with respect to the primary considerations referred to above being the Protection of the Australian Community and the Expectations of the Australian Community which weigh strongly against him. (The other primary consideration the Best Interests of Minor Children which weigh marginally in his favour.) The Tribunal accepts the contentions of the Respondent that the seriousness of the Applicant’s crimes, the pattern of offending against vulnerable members of the community including women, the risk of further offending and its consequences for the Australian community must outweigh the finding that non-refoulement obligations weigh in his favour.

    STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

26. The Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:

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

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

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

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

27. The Applicant has lived in Australia since 2006. He was approximately 25 years of age upon his arrival. As noted earlier he and his wife have three children. They were born in Australia and are Australian citizens.

28. His mother and one brother, reside in Australia. His other brother, who is an Australian citizen, currently resides in South Sudan and works for an oil company as well as a United Nations agency. There is an auntie, the wife of one of his brothers and two cousins also present in Australia.

29. The Tribunal notes that he has considerable support from the South Sudanese community. In addition to the evidence of Witness A, there are several statements of support for him in the evidence before the Tribunal.[47]

    [47] The submissions from Michael Apout, Chairman of Yirol Community dated 29 August 2016, Kot Monoah, Chairman, South Sudanese Community Association in Victoria dated 29 August 2016, Mador Pech, Chair Person, Tonj Community Association in Victoria undated are referred to. There is limited use that the Tribunal can place upon these submissions because the authors of them do not refer to the actual offending of the Applicant. It is not apparent to the Tribunal whether they were in fact informed of all or any of, the offences committed by the Applicant other than perhaps in a general sense. Had they given an accurate account of the Applicant's history of offending and then stated that he was not likely to reoffend they would be of more value to the Tribunal and of greater assistance to him.

30. As observed earlier in these reasons, prior to him “falling off the rails”, he worked hard and made a positive contribution to the Australian society. There is evidence that he contributed to his children’s welfare because he was the family’s sole breadwinner. Additionally, the evidence indicates that he was involved in the South Sudanese community with respect to various social and sporting events. It was a very impressive start to his life in Australia and must be recognised.

31. The Respondent accepts that the Applicant has significant emotional ties to his family in Australia and it would be difficult for them if the mandatory cancellation of his visa is not revoked. It would also be difficult for him to maintain contact with his relatives in Australia if he were to return to South Sudan. The Tribunal agrees with this contention.

32. Overall, save for his brother currently residing in South Sudan, he has few ties in that nation.

33. Taking into consideration all the evidence concerning this factor, the Tribunal considers that the strength, nature and duration of the Applicant’s ties to Australia should be given some weight in favour of revocation of the mandatory cancellation of his visa.

    IMPACT ON VICTIMS

34. Paragraph 14.4 of the Direction provides as follows in relation to impact on victims:

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

35. The Tribunal considers that there is a tension between the evidence given by the Applicant’s wife, who is one of the victims of the Applicant’s offending, at the Tribunal hearing and the known facts of his repeated offending against her. The Tribunal also considers that the impact of the Applicant’s offending on his children, who have been present during the commission of several offences by him, should be taken into account. The details of the exposure of the Applicant’s children to his offending referred to previously in these reasons are repeated.

36. His wife gave evidence of her preference for him to be released and remain in Australia. She explained how he has made a contribution to the upbringing of his children both in terms of financial support as well as his interaction with them. She gave evidence about the difficulties that will confront her if the Applicant is removed from Australia and she has to raise the children on her own in future years. Additionally, it would be difficult for her children to not have their father present in the future[48]. She gave evidence of the Applicant being a good provider for his family before he started offending. This is borne out by the evidence and accepted by the Tribunal. However, given that he has been in extended custody for many years and subject to FVIO’s preventing him going near his wife and children his contact and involvement with them has been minimal during that time. Also, due to the fact of custody and attention his capacity to earn a living and make a financial contribution to support his family has been very limited indeed. Therefore, the immediate impact of a decision not to revoke the mandatory cancellation of his Visa would not have the effect on his victim such as to cause “undue hardship” to her as he has contended.

    [48] The Applicant also contended in similar terms that, although the Applicant’s offending had caused his wife serious harm, it was a case where non-revocation of the cancellation of the visa may cause further undue hardship to the victim.

37. The Respondent referred to the sentencing remarks of the trial Judge which indicate that his wife had felt pressured to sign a letter of support for his hearing in the County Court. It is described by The Respondent as a “dilemma” faced by her in that she expressed a preference for her children to have their father present and the benefits that would be provided to them if he was there as a breadwinner providing financial and other support. However, the dilemma for her arises from the fact that he has committed some appalling acts of violence against her over an extended period and there must be real apprehension that if he is released into the community he might reoffend in the future; including against her.

1. The Tribunal repeats that it has some doubts about the Applicant’s wife’s evidence. The Tribunal accepts the Respondent’s contention that limited weight should be given to this consideration.

2. Nothing is known about the potential impact on the victim of the 11 March 2013 incident. Therefore, no weight can be attached to this consideration.

   EXTENT OF IMPEDIMENTS IF RETURNED TO SOUTH SUDAN

3. Paragraph 14.5(1) of the Direction requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia:

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

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

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

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

4. The Applicant contends that he will face a number of impediments were he to be returned to South Sudan. Some of those potential impediments have already been considered earlier in these reasons.

5. Both the Applicant and the Respondent acknowledge that he suffers from a number of health conditions. These conditions include PTSD, anxiety and depression, severe bilateral hip and lumbar sacral arthritis, together with a possible heart condition. There are limited medical facilities available in South Sudan for treatment of those conditions. The Respondent contended that he would be in no different position to any other South Sudanese national in that he would have the same access to whatever medical facilities may be available. There is no evidence to suggest otherwise. However, the Applicant disagrees with this contention and contends that he would have an extremely difficult life with no access to the physical and mental health care he needs. The evidence before the Tribunal does not establish that he would be in a different position to any other South Sudanese national concerning access to these facilities.  

6. The Respondent also acknowledged that the Applicant would face considerable difficulty finding employment and accommodation. The economy of South Sudan is largely agricultural based which also limits the Applicant’s prospects, given his various conditions. Employment opportunities and economic progress have been significantly impaired by the continuing conflict, drought and relative lack of good governance. There is also the reality that there are extreme levels of poverty in that nation.

7. The risk of violence and conflict is also an impediment that the Applicant may face as has been canvassed earlier. The Respondent contends and the Tribunal accepts that were he to live in the city of Juba, his overall exposure to harm would be no greater than that of the general population in Juba.

8. The separation from his wife, children and other relatives would also cause him severe emotional hardship and cannot be underestimated.

9. However, as noted earlier, his brother is living in South Sudan and has a productive job. Presumably, he would be in a position to provide some assistance for the Applicant which may place him in a slightly better position than other nationals of South Sudan.

10. The Tribunal considers that this factor should be given some weight in favour of revoking the mandatory decision to cancel the Applicant’s visa.

    CONCLUSION

11. The Tribunal has taken into account the following factors identified in paragraph 13.1.1 of the Direction:

    (a)The convictions for violent crimes, particularly those of using knives against women, render his offending very serious;

    (b)The crimes were committed against vulnerable members of the community, bearing in mind that he had been trained in the military and is a physically imposing man;

    (c)The sentences imposed by several courts were relatively lengthy custodial sentences;

    (d)Some of his offending occurred in the presence of his children which must have caused them immense distress;

    (e)The disturbing frequency of offending together with continuing breaches of FVIOs and CCOs showed a characteristic on the part of the Applicant of disobedience to the law when he knew full well what the consequences of those breaches were;

    (f)His breaches of CCOs were in the context of those orders being made to give him a second chance and to address his mental health, anger and alcohol problems. He did not take the second chances that he was given on several occasions;

    (g)The cumulative effect of his repeated offending was serious injury to his wife and another woman, years of emotional and mental damage to his wife and probably his children.

12. His offending was appalling and weighs extremely heavily in favour of non-revocation of the mandatory cancellation of the Applicant’s visa.

13. The Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Accordingly, the Tribunal finds that there remains an unacceptable risk that the Applicant may engage in further criminal conduct if he were to remain in Australia.

14. The Applicant has given evidence of his commitment to rehabilitation. In particular he has given some evidence that the cause of his problems were excessive consumption of alcohol. His evidence was to the effect that if he stopped drinking the likelihood of him reoffending would be very low. The Tribunal is not convinced that if the Applicant is released into the community, outside the structured environment of either prison or immigration detention, that this commitment would continue to be adhered to. The observations made previously that the Applicant has not complied with the terms of CCOs which contained specific provisions to deal with his alcohol issues are relied upon. He offended again after his release and in breach of such orders.

15. It is in this setting that the Tribunal finds that the protection of the Australian community is a consideration that weighs heavily in favour of refusing to revoke the mandatory cancellation of the visa.

16. The Tribunal acknowledges that there are several factors that weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa. Those factors have been dealt with above under the headings of the Best interests of minor children in Australia; International non-refoulement obligations; Strength, nature and duration of ties; Impact on victims and Extent of impediments if removed. The analysis of those considerations above are referred to and repeated.

17. The Tribunal also acknowledges that many in the community would have genuine sympathy for the Applicant’s history prior to arrival in Australia. That sympathy was reflected in the opportunities that this nation has given the Applicant since his arrival.

18. However, the Applicant’s history of offending is extremely serious and the risk of reoffending have tested the boundaries of how far a nation’s generosity and sympathy will extend. The Australian community would expect someone with an extensive criminal record involving violence against women with knives to forfeit the privilege of remaining in Australia. These considerations overall outweigh the considerations in his favour.

    DECISION

19. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron.

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

Associate

Dated: 5 November 2018

Date(s) of hearing:	16, 18 July and 3 August 2018
Counsel for the Applicant:	Greg Hughan
Solicitors for the Applicant:	Asylum Seeker Resource Centre (ASRC)
Solicitors for the Respondent:	David Brown – Australian Government Solicitor