KJVC and Minister for Home Affairs (Migration) [2019] AATA 161 (15 February 2019)

Last Updated: 19 February 2019

KJVC and Minister for Home Affairs (Migration) [2019] AATA 161 (15 February 2019)

Division: GENERAL DIVISION

File Number: 2018/7109

Re KJVC

APPLICANT

And Minister for Home Affairs

RESPONDENT

DECISION

Tribunal: Member K Parker

Date: 15 February 2019

Place: Melbourne

The Tribunal affirms the decision made on 23 November 2018 under s 501CA(4) of the Migration Act 1958 (Cth) by a delegate of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of KJVC’s Class XB Subclass 202 Global Special Humanitarian visa.





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

Member K Parker

MIGRATION – application for revocation of mandatory cancellation of visa – applicant a citizen of South Sudan – applicant does not pass character test – whether another reason to revoke decision to cancel visa – extended history of criminal offending – applicant served four separate prison terms – repeated domestic violence and serious driving-related offences – repeated contravention of apprehended violence orders, bail conditions and corrective orders made by the courts – court-ordered rehabilitation programs – whether Australian community would expect non-revocation – risk of the applicant reoffending – consideration of mitigating circumstances – applicant was a child soldier for the Sudan People’s Liberation Army in the late 1980’s – applicant arrived in Australia when he was 25 years old with wife and two eldest children – applicant developed alcohol habit or addiction – criminal offending occurred while under the influence of alcohol – applicant has lived in Australia for the last 15 years – applicant was gainfully employed for some of this time – best interests of applicant’s six children living in Australia – impact on wife – international non-refoulement obligations – extent to which applicant will face impediments settling in South Sudan – decision affirmed

Legislation

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, 12

Migration Act 1958 (Cth) ss 499, 500, 501CA, 501G

Cases

Ali v Minister for Immigration and Border Protection [2015] FCA 650

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513

BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2015) 351 ALR 61

FKP15 v Minister for Immigration and Border Protection [2017] FCA 1555

Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247

Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441

Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197; (1999) 91 FCR 234

NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38; [2014] 220 FCR 1

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 s 501CA, 22 December 2014

REASONS FOR DECISION

Member K Parker



15 February 2019

INTRODUCTION

1. On 23 November 2018, a delegate of the Minister made a decision under s 501CA(4) of the Migration Act 1958 (Vic) (Act) not to revoke the cancellation of a Class XB Subclass 202 Global Special Humanitarian visa (Visa) held by KJVC (Cancellation Decision).^[1] The delegate was not satisfied that KJVC passed the character test or that there was another reason why the cancellation should be revoked.
2. On 30 November 2018, KJVC lodged an application for review of the Cancellation Decision by this Tribunal.^[2] The hearing of this application took place on 5 and 6 February 2018. Both parties were legally represented. They each lodged documentary evidence, statements of facts, issues and contentions, and written submissions. KJVC provided a statutory declaration and gave oral evidence at the hearing; as did his wife, his eldest child and a member of a South Sudanese community organisation. No evidence was presented by any psychologist, psychiatrist or other health practitioner.
3. On 19 December 2018, the Minister lodged a set of documents with the Tribunal that were provided to KJVC with the delegate’s decision, in accordance with s 501G of the Act (G-Documents). Included in the G-Documents is a nine-page submission entitled, “Response to request for further information relating to [KJVC] relating to possible visa cancellation under section 501CA of the Migration Act” authored and submitted to the Department on behalf of KJVC by his solicitor.^[3] The Minister did not call any witnesses at the hearing.
4. At the commencement of the hearing, the Tribunal provided the parties with a set of documents published by the Department of Foreign Affairs and Trade (DFAT) containing information about Sudan and South Sudan and those documents were tendered as exhibits.
5. KJVC conceded that he did not pass the character test under s 501(6) of the Migration Act 1958 (Cth) (Act) because of his substantial criminal record. This meant that the Tribunal was required to consider whether there was another reason why the cancellation of KJVC’s Visa should be revoked. The Tribunal is required to take into account the mandatory primary and other considerations set out in 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 (Direction no.65).^[4]
6. Having closely considered all of the evidence tendered and submissions made by both parties to this review and the primary and other considerations set out in Direction no.65, the Tribunal does not consider there to be another reason why the cancellation of KJVC’s Visa should be revoked.
7. Accordingly, and for the reasons outlined below, the Tribunal affirms the decision of the Minister not to revoke the cancellation of KJVC’s Visa.

BACKGROUND

KJVC’s childhood and family

8. KJVC was born in 1979 in Town X in the Republic of South Sudan (South Sudan).^[5] He is a member of the Dinka ethnic tribe.^[6]
9. As an infant and young child, KJVC was raised by his mother and father and he had two younger sisters. When KJVC was six years old, his family home was set on fire. During the attack, KJVC witnessed his father being shot dead. KJVC, his mother and two sisters managed to escape. KJVC said one of his sisters perished a short time after their escape, as they had no food to eat.
10. At the age of eight (in 1988), KJVC said he left the care of his mother and became a child soldier. He said he did not know who he was representing at the time and could not remember how this came to be. He was based in Abyei.^[7] KJVC said he later came to know that he was a child soldier in the Sudan People’s Liberation Army (SPLA).
11. Between 1983 and 2005, the Second Civil War in Sudan took place between the northern dominated Government of Sudan and the southern dominated Sudan People’s Liberation Movement (SPLM)/SPLA. The SPLA is described as the “armed-wing” of the SPLM. The Second Civil War came to an end as a result of the 2005 Comprehensive Peace Agreement which included a commitment to hold a referendum. South Sudan gained independence and became an independent nation as a result of the referendum.^[8]
12. KJVC said his role as a child soldier was that of a porter, collecting and carrying on his head firewood and boxes of bullets for long distances. KJVC said he was not required to use weapons. He said, “I was trying to, but they were too heavy”. KJVC said that during his time as a child soldier he saw dead people.
13. When KJVC was about 12 or 13 years old, he found his mother and resumed living with her and his younger sister until he was about 15 years old. He said that he attended school when he was a soldier with the SPLA, and also after he resumed living with his mother.
14. KJVC said his spoken language is Arabic. He said he took English lessons as part of his schooling. However, he said that the English he learnt in Sudan was “completely different English”. He said “there are so many words; I can hardly understand it now”. The Tribunal notes that KJVC required an interpreter for almost all of the time when giving evidence at the hearing. It was evident that he could understand English when spoken to him and was able to read English, but had difficulty speaking English fluently.
15. KJVC said when he was about 15 years old he left Abyei and went to live in Khartoum in Sudan. He said he worked there “polishing shoes and serving in houses”. KJVC said he was searching for work and “studying there as well”. KJVC said he lost contact with this mother and sister after this time and to this day, does not know where they are. KJVC says this has affected him psychologically because “life was about motherhood, son and daughter”. He said he had searched, unsuccessfully, to find them.

KJVC fled to a refugee camp in Egypt in 1998 where he met his wife, married and had two children

16. KJVC said he fled to Egypt in 1998 when he was 19 years old. KJVC told the Tribunal he did not drink any alcohol at this time. He said it was difficult to stay living in Khartoum because of the government. KJVC said he wanted to study at university, but he had no support. He said he could not find work there, stating that, “they used to hate us because we were Southerners”. KJVC said he left because of “the volatile state and to find a future”. KJVC said he finished his schooling to Year 12 level. He said he tried for one or two years to get into the “Faculty of Science”, but he “could not keep on” “because of some issues with the government and the union of students”. He said he “was responsible for some public relations with the South Sudanese students”.
17. KJVC said he fled to Egypt because it was close to Sudan and there were plenty of other South Sudanese people in Egypt. He said it was difficult to cross the border but someone had helped him. He said he stayed in a refugee camp in Egypt.
18. In 1999, KJVC said he met his wife (Mrs KJVC) when she was 15 years old. He said Mrs KJVC was also staying at the refugee camp in Egypt. KJVC said Mrs KJVC was in the same tribe as his and that she was a Dinka. He said they were married in about 2000 or 2001. In 2001, Mrs KJVC gave birth to their eldest child (Child 1). In 2002, while still at the refugee camp, Mrs KJVC gave birth to their second child (Child 2).

Migration to Australia in 2004

19. In mid-2004 KJVC, Mrs KJVC and their two eldest children were granted visas and moved to Australia. KJVC said they settled in Sydney and stayed with a person they knew.
20. KJVC said that he chose Australia to raise his children and to find work. He said that the “Australian authorities had helped me, as I was not feeling well”. He said his goal was for his children to lead a different life to the one he had led. He said he wanted to join a university to finish his studies. However, he said he unable to do so, because of his “psychological condition”. KJVC said his psychological condition had not been diagnosed. He gave evidence to the following effect:

In our culture we would be ashamed to see a psychologist or psychiatrist. A friend told me I had to help myself and seek treatment...because of what I faced, and drinking.

21. KJVC said he started drinking alcohol for the first time in about 2005. He said at this time he was not drinking on a daily basis. He said he became intoxicated because he “drank without eating food”. KJVC was adamant that he had never taken drugs.
22. KJVC was asked at the hearing whether something had triggered the commencement of his drinking in 2005. KJVC said that whenever he thought about what he had experienced, he did not feel well. He said he kept experiencing what had happened when he was “little” including witnessing the shooting of his father and seeing other people dead when he was a child soldier.
23. KJVC said he did not want his children to experience what he had experienced. He said he did not feel confident to speak to anyone about it. He said he had experienced “torture and trauma”. At the hearing, KJVC was asked whether he had experienced physical torture or been offered alcohol or drugs when he was a child soldier. He said he had not. He said the torture he had experienced was psychological.

History of criminal offending in Australia

24. The National Police Certificate issued in March 2016 records a significant number of “disclosable court outcomes” for KJVC for the period 2005 to September 2015.^[9]
25. The Tribunal also notes the New South Wales Police Force Criminal History-Bail Report printed in February 2016 for KJVC, which indicates the offence dates as well as the court dates.^[10]
26. The New South Wales Report recorded as follows:
    • (a) on 16 to 20 July 2005 KJVC committed an offence of “common assault-T2” (Offence 1);
    • (b) on 14 August 2005 KJVC committed the offences of “common assault-T2” (Offence 2) and “breach of bail – application to re-determine” (Offence 3).
    • (c) on 26 August 2005:
      • (i) for Offence 1, the court sentenced KJVC with a s 9 bond^[11] for 12 months “not to assault, molest, harass or otherwise interfere with [Mrs KJVC] or to incite any third party to do so”; and
      • (ii) for Offence 2, the court sentenced KJVC with a s 9 bond for 12 months “not to assault, molest, harass, threaten or interfere with [Mrs KJVC]”; and
      • (iii) for Offence 3, the court made a bail order.
    • (d) on 28 August 2005 KJVC committed an offence of “contravene apprehended domestic violence order” (Offence 3). The same day the court imposed a s 9 bond on KJVC for “2 years supv NSW prob service obey all reasonable directions for counselling, [educational], development including drug and alcohol rehabilitation and domestic violence counselling. Report to [name omitted] probation office within 7 days”;
    • (e) on 29 August 2005 KJVC committed an offence of “breach of bail – application to re-determine”. On the same day, the court made a bail order;
    • (f) on 16 November 2005 KJVC committed the offences of “assault occasioning actual bodily harm – T2” (Offence 4) and “contravene apprehended domestic violence order” (Offence 5);
    • (g) on 27 January 2006 following a “call up”:
      • (i) for Offence 1, KJVC was sentenced to 3 months imprisonment commencing on 16 November 2005; and
      • (ii) for Offence 2, KJVC was sentenced to 3 months imprisonment commencing on 16 November 2005;
      • (iii) for Offence 3, KJVC was sentenced to 4 months imprisonment commencing on 16 November 2005;
      • (iv) for Offence 4, KJVC was sentenced to 12 months imprisonment commencing on 16 November 2005 non parole period with conditions: “6 months release subject to supv”;
      • (v) for Offence 5, KJVC was sentenced to 6 months imprisonment commencing on 16 November 2005;
    • (h) on 4 November 2006 KJVC committed the offences of “not comply with direction given by police officer” (Offence 6) and “use offensive language in/near a public place/school” (Offence 7);
    • (i) on 14 December 2006:
      • (i) for Offence 6 the court imposed a fine on KJVC of $100; and
      • (ii) for Offence 7 the court imposed a fine on KJVC of $300;
    • (j) on 1 May 2007, KJVC committed the offences of “common assault-T2” (Offence 8) and “destroy or damage property” (Offence 9);
    • (k) on 12 July 2007:
      • (i) for Offence 8 the court sentenced KJVC to 10 months imprisonment commencing on 11 May 2007 concluding 10 March 2008 non parole period with conditions: “8 months release subject to supv”;^[12]
      • (ii) for Offence 9 the court sentenced KJVC to 10 months imprisonment commencing on 11 May 2007 concluding 10 March 2008 non parole period with conditions: “8 months release subject to supv”;^[13]
    • (l) on 15 June 2008 KJVC committed the offences of “intimidate police officer in execution of duty w/o ABH-T2” (Offence 10); “resist or hinder police officer in the execution of duty” (Offence 11); “use offensive language in/near public place/school” (Offence 12); “refuse/fail to comply with direction under par 14” (Offence 13); “destroy or damage property” (Offence 14); “wilfully mark premises by chalk/paint etc w/o consent” (Offence 15);
    • (m) on 29 November 2008 KJVC committed the offences of “resist or hinder police officer in the execution of duty” (Offence 16); “contravene prohibition/restriction in AVO (Domestic)” (Offence 17); “fail/refuse to comply with request by police officer” (Offence 15);
    • (n) between 9 and 19 January 2009 KJVC committed an offence of “breach of bail – application to re-determine” (Offence 20) and on 21 January 2009, an offence of “contravene prohibition/restriction in AVO (Domestic)” (Offence 21);
    • (o) on 22 January 2009 in relation to Offence 20, the court made a bail order;
    • (p) on 29 January 2009:
      • (i) for Offence 10, the court imposed a fine on KJVC of $400;
      • (ii) for Offence 11, the court imposed a fine on KJVC of $200;
      • (iii) for Offence 12, the court imposed a fine on KJVC of $200;
      • (iv) for Offence 13, the court imposed a fine on KJVC of $200;
      • (v) for Offence 14, the court imposed a fine on KJVC of $200;
      • (vi) for Offence 15, the court imposed a fine on KJVC of $200;
    • (q) on 12 March 2009, KJVC committed an offence of “breach of bail – application to re-determine” (Offence 22) and the following day the court made a bail order;
    • (r) on 26 March 2009:
      • (i) for Offence 15, the court imposed a fine on KJVC of $200;
      • (ii) for Offence 16, the court sentenced KJVC to 9 months imprisonment suspended on entry of a s 12 bond^[14] “9 months report PPS [name of suburb omitted] within 3 days”;
      • (iii) for Offence 17, the court sentenced KJVC to 9 months imprisonment suspended on entry of a s 12 bond “9 months report PPS [name of suburb omitted] within 3 days”; and
      • (iv) for Offence 21, the court sentenced KJVC to 9 months imprisonment suspended on entry of a s 12 bond “9 months supv nsw prob service”;
    • (s) on 24 June 2009, KJVC committed the offences of “destroy or damage property (DV)” (Offence 22) and “contravene prohibition/restriction in AVO (Domestic)” (Offence 23);
    • (t) on 15 August 2009, following a “call up”:
      • (i) for Offence 16, the court sentenced KJVC to 9 months imprisonment commencing 24 June 2009 concluding 23 March 2010 non parole period with conditions: (“3 months commencing 24/05/2009 concluding 23/09/2009 release subj to supv”);
      • (ii) for Offence 17, the court sentenced KJVC to 9 months imprisonment commencing 24 June 2009 concluding 23 March 2010 non parole period with conditions: (“3 months commencing 24/05/2009 concluding 23/09/2009 release subj to supv”);
    • (u) on 12 July 2010, following a “call up”:
      • (iii) for Offence 22, the court sentenced KJVC to “bond s 9: 2 years supv nsw prob service to participate in domestic violence, drug & alcohol and any other counselling as directed by the probation and parole service”;
      • (iv) for Offence 23, the court sentenced KJVC to ““bond s 9: 2 years supv nsw prob service to participate in domestic violence, drug & alcohol and any other counselling as directed by the probation and parole service”;
    • (v) on 26 October 2010 the Parole Board court executed a warrant;
    • (w) on 21 November 2010, following a “call up” the court issued an arrest warrant in relation to Offence 22 and Offence 23:
    • (x) on 17 April 2010, KJVC committed the offences of “drive high range ...” (Offence 24) and “not comply P2 licence condition no display P plates” (Offence 25);
    • (y) on 13 December 2010, the court executed a warrant in relation to an alleged offence (breach of order) committed by KJVC on 12 November 2010;
    • (z) on 25 December 2010, KJVC committed the offences of “destroy or damage property (DV)” (Offence 26) and “contravene prohibition/restriction in AVO (Domestic)” (Offence 27);
    • (aa) on 22 March 2011, following a “call up”:^[15]
      • (i) for Offence 22, the court sentenced KJVC to 3 months imprisonment commencing on 19 January 2011 and concluding on 15 April 2011; and
      • (ii) for Offence 23, the court sentenced KJVC to 1 month imprisonment commencing on 19 January 2011 and concluding on 15 February 2011;
    • (bb) on 25 March 2011:^[16]
      • (i) for Offence 26, the court sentenced KJVC to 8 months imprisonment commencing on 19 April 2011 and concluding on 15 December 2011; and
      • (ii) for Offence 27, the court sentenced KJVC to 16 months imprisonment commencing on 19 April 2011 and concluding on 15 April 2012 with an 8 month non-parole period concluding on 15 December 2011 with release subject to supervision for as long as considered necessary, obey all reasonable directions or counselling, drug and alcohol rehabilitation and anger management, violence counselling, including attendance at domestic violence program. KJVC was ordered not to assault, molest, harass, threaten or otherwise interfere with [Mrs KJVC] and a domestic violence direction was made;
    • (cc) on 11 November 2012, KJVC committed an offence of “drive with high range ...” (Offence 28);
    • (dd) on 15 February 2013, for Offence 28 the court imposed a fine on KJVC of $1,5000 and disqualified him from driving for a period of two years commencing on 15 February 2013 to 17 February 2015;
    • (ee) on 5 November 2014, KJVC committed the offences of “drive with high range PC – 2^nd+OFF” (Offence 29); and “drive motor vehicle during disqualification period – 2^nd+OFF” (Offence 30);
    • (ff) on 4 February 2015, KJVC committed an offence of “contravene prohibition/restriction I AVO (Domestic)” (Offence 31);
    • (gg) on 20 March 2015:^[17]
      • (i) for Offence 29, the court sentenced KJVC to 12 months imprisonment commencing on 30 July 2015 concluding on 29 July 2106 with a non-parole period of 8 months concluding on 29 March 2016; with KJVC’s release to be subject to supervision and disqualification of his driver’s licence for a period of five years;
      • (ii) for Offence 30, the court sentenced KJVC to 12 months imprisonment commencing on 30 July 2015 concluding on 29 July 2106 with a non-parole period of 8 months concluding on 29 March 2016; with KJVC’s release to be subject to supervision and disqualification of his driver’s licence for a period of two years;
    • (hh) on 28 March 2015, KJVC committed an offence of “contravene prohibition/restriction I AVO (Domestic)” (Offence 32). On the same day, the court entered a s 9 bond for a period of 6 months requiring KJVC to comply with any apprehended violence order or domestic order; and
    • (ii) on 22 July 2015, for Offence 31 the court sentenced KJVC to 9 months imprisonment commencing on 22 July 2015 concluding 21 April 2016, suspended on entry of a s 12 bond of 9 months, supervision by NSW probation service, to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation which may include residential rehabilitation, and relapse prevention, and referral to addictions group programs and report to [name of suburb omitted] within 24 hours.

Time spent in prison

27. KJVC gave evidence at the hearing that he spent time in prison on the following four occasions:
    • (a) between 15 November 2005 and 15 May 2006, for five months (Prison Term 1);
    • (b) “I think” in 2007 “but I can’t remember for how long; maybe six months” (Prison Term 2);
    • (c) “I think” in 2009 for three months (Prison Term 3); and
    • (d) from January to December 2011 for a period of 11 months (Prison Term 4).

Employment history in Australia

28. Upon arriving in Australia in mid-2004, KJVC said he was not able to work straight away because the Australian Government told him he would have to wait for six months and complete 510 hours of an English course. After attending about 20 hours of the English course, KJVC said his level of English was “not that bad”, so he started working. He said this was about one and half months after he arrived. He said he was “keen to go to work”.
29. KJVC and Mrs KJVC had their third child in 2005 (Child 3).
30. KJVC said his first job was in cleaning, for a couple of months. He said he was subsequently involved in building and construction work, for a further nine months. KJVC said he then went to jail (Prison Term 1). He said that to this day, he does not know why he was put in jail. He said he did not have access to an interpreter.
31. When KJVC was released in 2006, he said he returned to live with his family. He said he started work in a scrap metal factory in New South Wales and worked there for about six months until the factory was sold. He worked six days a week. At this time, he said he was only drinking “a little”. He said he would drink when he came home from work, and go to bed.
32. KJVC said he started working at a recycling company “separating metal from rocks and stones”. He did this on a full-time basis for about three months. He said his drinking increased during this time, because of the heavy work he was doing. He said he was still living with his family.
33. KJVC and Mrs KJVC had fourth child in 2007 (Child 4).
34. Subsequently, when KJVC was released from prison in 2007 (Prison Term 2), he worked in a meat factory in New South Wales for about ten months. He said he suffered from “psychological pressure” due to the long hours he was working, being 12 hours per day, 7 days per week. He said he resigned from this job as it was difficult for him to keep working in it, and he searched for another job.
35. KJVC and Mrs KJVC had their fifth child in 2009 (Child 5).
36. KJVC said he then found work at an abattoir. The abattoir was based in regional New South Wales. He said he worked there on a full-time basis from the end of 2009 until early 2011, which is when he was incarcerated (Prison Term 3).
37. Following his release at the end of 2011, KJVC said he returned to work at the “meat factory” and worked there for 12 months. He said he resigned when his wife delivered their [youngest] child who was born in early-2013 (Child 6).
38. Subsequently, KJVC said that he started working for himself as a sub-contractor. He said that in about mid-2013, he registered a company name. He said he employed between 10 to 15 people in this business; some of them casual, some of them full-time. He said they did work in construction and cleaning. KJVC said he was happy during this time. He said that he was still drinking on a daily basis. He said he was not suffering from economic pressure. When KJVC was asked why he was still drinking, he responded to the following effect: “I don’t know – the problem I was suffering”. He said he did not know what he had to do to stop himself from drinking.

Formal warning

39. The Department issued a formal warning to KJVC in December 2007 (2007 Warning Letter).^[18] It was sent to [Address A]. KJVC said that he did not receive this warning. He said he had previously lived in a rental property at Address A, but no longer lived there by the time this warning letter was sent to him. The Minister’s representative lodged a file note attached to its written closing submissions dated 7 February 2019 (Minister’s Closing Submission). The file note was dated 16 September 2009 by a staff member of the National Character Consideration Centre of the Department. It confirms that the 2007 Warning Letter was “returned to sender”. The Tribunal finds that KJVC did not receive the 2007 Warning Letter.
40. KJVC applied for citizenship in 2008. His application was rejected.
41. In September 2012 the Department issued a three-page warning letter addressed to KJVC (2012 Warning Letter).^[19] The third page of this letter was an “acknowledgement of receipt” document which prompted KJVC to sign it. This letter was sent to [Address B] which is in the same town as the abattoir at which KJVC said he was employed. This letter was sent to him by registered post.^[20]
42. At the hearing, KJVC said he did not receive the 2012 Warning Letter. He said he received a telephone call from a woman from the Department with a name starting with “K” who he said told him that she would email to him a document to sign. He said he only received one page from her (i.e. the “acknowledgement of receipt” document). He said a friend put it on the table for him and when he woke up one morning, he saw it and signed it. He said he did not read it before he signed it. He also said that the person had spoken to on the telephone had not explained to him what it was she was going to send to him.
43. The Tribunal does not accept KJVC’s evidence that he did not read the “acknowledgement of receipt” document attached the 2012 Warning Letter before he signed it. It is implausible that he would not do so given the following factors:
    • (a) he was aware from his conversation with “the woman from the Department with the name starting with the letter “K”” that this document was sent to him from the Department and it is unlikely he would not read a document sent to him from the Department;
    • (b) KJVC has given evidence that he is educated and completed a secondary education to Year 12 level. KJVC has been living in an English-speaking country for over a decade and he gave evidence that he can read English. For these, reasons, it is unlikely that he would sign a document from the Department before reading it and it is unlikely that he did not understand it once he read it;
    • (c) KJVC gave evidence that while he lived in Australia that he founded and conducted a business operation in construction and cleaning, employing between 10 to 15 employees, and that this business was economically viable. Given KJVC’s demonstrated business acumen by doing so, the Tribunal considers it unlikely that KJVC would sign a document without reading it first;
    • (d) KJVC was aware that nine months before he signed the “Acknowledgement of Receipt” document from the 2012 Warning Letter, the Department was considering cancelling his Visa. Specifically, on 12 December 2011, the Department emailed KJVC a letter with the heading (in bold print) “Notice of Intention to Consider Cancellation of Your Visa Under Subsection 501(2) of the Migration Act 1958”, providing KJVC with an opportunity to comment on the information to be considered and to submit extra information.^[21] KJVC was incarcerated at this time at a correctional facility in New South Wales. The Tribunal is satisfied that KJVC received this Notice as evidenced by KJVC’s signature on an “Acknowledgement of Notice under Section 501 and Authority to Release Information” form on 12 December 2011. The Tribunal Notes that KJVC did not submit in his Closing Submissions that he did not receive or sign this Notice. Accordingly, the Tribunal is satisfied that after KJVC received this Notice he was aware that consideration was being given to cancelling his visa and when he spoke to “the woman from the Department with the name starting with the letter “K””, he was aware that the outcome of that consideration was that the Department would not proceed to cancel his Visa and instead, he was to be issued with a formal written warning by the Department, which she emailed to him and which KJVC signed and return.
44. For the reasons stated above, the Tribunal finds that KJVC received and understood that he had been issued with a formal warning by the Department on 28 September 2012 as follows:

I, [KJVC] acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.

45. The Tribunal also finds that before signing this acknowledgement, as stated within it, that KJVC read the first two pages of the 2012 Warning Letter and understood what it meant, including the following section of this letter:

On 12 December 2011, the [Department] notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current [Visa] will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning:

“[KJVC]’s criminal history of repeated violence against his former partner is of grave concern. He should understand that the Australian community regards family violence a(sic) wholly unacceptable; the profound damage it causes to the entire family cannot be understated. [KJVC]’s continuing presence in Australia is a privilege which may be revoked if his visa once more comes under consideration.”

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

46. The Tribunal is satisfied that KJVC has been warned and understood that if he continued to offend after receiving this formal warning in 2012, it would put into jeopardy his continued presence in Australia. On that occasion in 2012, the Tribunal considers that KJVC was provided with a “second chance” by a delegate of the Minister to stay in Australia in the hope that he would not reoffend. The Tribunal makes these findings regardless of whether KJVC read all of the 2012 Warning Letter or only the “acknowledge of receipt” document forming page 3 of this letter.

Period of immigration detention – good behaviour record

47. When KJVC completed Prison Term 4 in March 2016, he was placed into immigration detention where he remains. For some of the years he was in detention, he was transferred to Christmas Island. He is presently in a detention centre based in Victoria.
48. KJVC says that he was not involved in any incidents while detained, nor did he consume any alcohol. There was no evidence before the Tribunal to suggest otherwise. Further, the Tribunal notes that in June 2015, detention centre staff invited KJVC to a detention centre barbeque. The invitation for this event indicated that KJVC was invited as a reward for his “ongoing positive attitude and cooperative behaviour”.^[22]
49. The Tribunal finds that KJVC has re-offended or engaged in other serious misconduct while he has been detained over the last three years, and has taken this into account.

Rehabilitation programs

50. The Tribunal notes that on 26 November 2015, KJVC was awarded a certificate of completion of five modules of the EQUIPS Addiction Program.^[23]
51. Arising from questions by the Tribunal at the hearing, KJVC gave evidence for the first time that when he was in detention at Christmas Island, he received individual counselling once a week for a period of about six months.
52. At the hearing KJVC, was asked whether he had attended any other rehabilitation programs or counselling. He informed the Tribunal about his visits to the Salvation Army. KJVC was asked whether he had received assistance from any community groups previously when he was drinking. KJVC responded by saying that they could not help him as “they had problems of their own”.

RELEVANT LAW

Migration Act 1958

53. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

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

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

(ii) ...; and

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

54. 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, s 501(7)(c) provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. If these pre-conditions are met, the Minister is under an obligation pursuant to s 501(3A) to cancel the person’s visa and does not have a discretion to decide not to consider exercising this power.^[24]
55. Section 501CA 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.

...

(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.

...

Direction no.65

56. Part 6 of Direction no.65 provides a preamble to the directions. Paragraph 6.1(1) of Direction no.65 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. General guidance is provided in paragraph 6.2 of the Direction no.65. Relevantly, paragraph 6.2 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.

57. A set of overarching principles are established in paragraph 6.3 of Direction no.65 as follows (as relevant) (emphasis added):

(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.

58. Paragraph 8 of Direction no.65 requires the Tribunal in deciding whether to revoke the mandatory cancellation of a visa to take into account the primary and other considerations set out in Part C, as relevant to each individual case and also that:
    • (a) the Tribunal should give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations;
    • (b) the primary considerations should generally be given greater weight than the other considerations; and
    • (c) one or more primary considerations may outweigh other primary considerations.

ISSUES TO BE DECIDED

59. The issues to be determined by the Tribunal are:
    • (a) whether KJVC passes the character test as defined by section 501(6) of the Act; and
    • (b) whether there is another reason why the mandatory cancellation of KJVC’s visa should be revoked.

KJVC’S CRIMINAL OFFENCES

60. The Tribunal notes there are some references to KJVC having pled guilty to the convictions. At the hearing, KJVC did not admit to all of the incidents underlying those convictions took place. He said that he had no memory of some of them occurring. When asked whether he would sometimes forget what he had done when he was in a state of intoxication, he agreed that this was the case.
61. It is well established that in assessing this type of application, the Tribunal is not permitted to impugn the convictions entered against KJVC – see Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197; (1999) 91 FCR 234, Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247 (Daniele); Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441.
62. However, that does not mean that the Tribunal should disregard the context and the circumstances surrounding the offending behaviour of KJVC. The Tribunal adopts the approach as outlined in the joint judgment of Fisher and Lockhart JJ in Daniele:

The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.

Context and circumstances of offending behaviour

January 2006 – common assault and damage to property

63. At the hearing, KJVC was asked what he could remember about the common assault and damage to property offence he committed in January 2006. KJVC said he had no memory of those offences. There were no sentencing remarks available in relation to these convictions for the Tribunal to consider.

May 2007 – hitting wife in face while holding new born child

64. The Tribunal was provided with the sentencing remarks in relation to a hearing before a Magistrate in relation to Offences 7 and 8 committed by KJVC in May 2007.^[25] The Magistrate stated:

...[KJVC] faces two counts...He maliciously damaged the property of his wife [name omitted] and that he assaulted her. The acts are a little unusual according to the wife’s version she and he are separated...

...she had recently given birth to a child and he had been invited into the home to assist her – looking after the children she had to have a caesarean operation. They were apparently sleeping separately...

....it was the wife’s evidence that the accused way verbally abusing her, that she wanted him to desist. There were threats about ringing the police. The assault was said to have occurred where she got struck, according to her on the right side of the face...

...it is the wife’s version that the accused was drunk, she gave evidence of making certain telephone calls to the police, going in and out of rooms with him throwing a punch and missing her and striking the wall and pulling the phone out of the socket. There is in court photographs of the hole in the wall and the phone on the floor apparently pulled out of [its] socket, she was able to use her mobile phone to summon the police.

...[the police found KJVC sleeping under the lounge]. He was arrested, the accusation was put simply of assaulting [Mrs KJVC], he said “I didn’t hit her” he was taken to the police station.

....[KJVC] denies that he was affected by alcohol.

It was his evidence there was a dispute between he and his wife about the cousin staying and he raised cultural problems of the man of the house being he handling of the guest a room and the wife said he should sleep on the lounge and there seems to be some truth in that that is with discussion. They verbally argue, it is his evidence that he was sitting down and she grabbed him by the front of his t-shirt which she let go, he had walked out. The evidence is not abundantly clear it was difficult to follow at times.

But eventually she went to sleep or to bed, he said he decided to – he was going to sleep that night on a mattress currently on the floor, the mattress was kept in the lounge room. Next thing he was awoken by a policeman, the rest they say is history.

I find this a fact that he was well affected by alcohol, he is not truthful when he says he was not. She described him as drunk, the police found out evidence of him showing signs of affectation of alcohol. He does understand English I do not know how well he speaks English but I think even if someone is speaking in a foreign language you can get an inkling whether or not they are speech in some way affected by alcohol. Simply put he was put to sleep in the cells it was deemed inappropriate to investigate him because his level of intoxication and he was better in the morning.

Insofar as the hole in the wall is concerned it was put to the wife that the hole that is depicted in the photographs exhibit 2 had been there when she or they moved in. She denied that, that could only have been put on instructions in his evidence I think he settled on the point that he had never seen it before. He certainly had not caused it he said.

The question I ask myself is perhaps as a jury if he had not hit his wife, he had not done anything wrong, if he had not damaged the wall, when he went to bed why is it that he was found and I infer from the evidence hiding – why was he found hiding albeit asleep – sleeping off the drink under the lounge. To my mind he knew he had done something wrong, he knew the police would be on their way. I am more than satisfied of two things, one he is a liar and two he is guilty. I find these two offences proved.

...

[KJVC], I didn’t accept your evidence on oath, I have found that you did assault your wife and damage the phone. It now remains for me to sentence you. The assault itself may not have been in the highest order of magnitude, it nonetheless is an offence carrying two years in goal, 12 months before me. I look to your record to see what benefit I can give you for years of trouble free living and unfortunately your record is littered with offences where I presume the victim is your wife. For a young lady she seems to be a long suffering victim.

You need to do something about alcohol if that is your problem. I don’t know whether it is or whether you’re simply a bully. I don’t know anything about your culture and I don’t know how the males in your culture behave but this court will not put up with that sort of behaviour. I want to send a strong message to you that you should stop doing this and the message might also go out to like-minded people.

65. At the hearing, KJVC was asked to describe what had happened that day. He told the Tribunal that he had “an issue” that day. When asked what the issue was, KJVC said he “had a new born child”. KJVC said the child was four months old. He said he was living at home. He said he had finished working in the garden and had argued with his wife. He said he was not in a good mood that day. He said it happened at about 6.30pm or 7pm. He said he had started drinking at about 4pm or 4.30pm so he had been drinking for about two hours. He said he was intoxicated. He said, “I should not have done it”.
66. KJVC was asked at the hearing why he did not walk away from the family home when he became intoxicated. KJVC’s response was, “I have got no place to go”.
67. KJVC denied that he hit his wife that day. KJVC said that, “he (which the Tribunal understood to be a reference to the Magistrate) was accusing me of assaulting my wife. He was very angry”.
68. KJVC was taken to the remarks of the Magistrate and asked by the Minister’s legal representative whether his evidence was that he did not do it. KJVC responded to the following effect, “No, I haven’t, how could I have done it?” KJVC later said he could not remember. KJVC was asked by the Tribunal whether if his memory was affected if he became intoxicated to which he answered in the positive. KJVC’s then gave evidence to the effect that he did not know if he did it.
69. At the hearing, Mrs KJVC was asked about what happened on this day. Mrs KJVC sought to protect KJVC by answering to the following effect, “All I can say is that he is a good person except when he is drinking. I cannot tolerate the things he says when he is drunk”. When the Tribunal asked Mrs KJVC what he said to her when he was drunk, she evaded answering the question. Instead, Mrs KJVC criticised herself for things she said to KJVC when he was drunk; that is, to question where he got the alcohol problem from and whether it came from his family. Mrs KJVC that this would upset him.
70. Mrs KJVC was asked for a second time by the Tribunal to answer the question whether KJVC had hit her in the face that day. Mrs KJVC said that KJVC punched the wall and that this was when she became angry. She said that she pulled him away and that was when he hit her. She also confirmed that she was holding her baby in her arms at the time and was recovering from a caesarian operation. The Tribunal asked Mrs KJVC whether the hit had injured her and she answered in the affirmative. The Tribunal accepts Mrs KJVC evidence as set out in this paragraph.

November 2008 & January 2009 - contravening AVO’s and resisting or hindering police

71. On 26 March 2009, KJVC appeared before a Magistrate for a penalty hearing in relation to Offences 15, 16, 17 and 21. The Tribunal notes the remarks of the Magistrate at this hearing and the undertakings given by KJVC to the court as follows (emphasis added):

Well so he’s for sentence on one contravene [apprehended violence order], one resist and not comply with direction and then separately contravene [apprehended violence order]

...

HIS HONOUR: Stand up, KJVC. You know why you’re here today don’t you, you know why you are at court today?

ACCUSED: Yeah, I’m here for sentence.

HIS HONOUR: I will deal with it this way. You came to Australia to escape conditions in your home country.

ACCUSED: Yeah.

HIS HONOUR: And you came with a family.

ACCUSED: Yeah.

HIS HONOUR: And you want the same thing for your kids.

ACCUSED: Yeah.



HIS HONOUR: That’s a perfectly understandable aspiration. And this country ahs received you and her you are.

ACCUSED: Thank you for that.

HIS HONOUR: So what it requires you to do is to live the sort of life that is available to you and the sort of life that you came her to live without committing offences because the opportunity has been given to you and you are the one that is ruining it.

ACCUSED: Yeah.

HIS HONOUR: And a substantial part of that it seems to involve alcohol. Many people drink and then behave in ways that they later regret. You may be one of them. But it seems that a lot of your aggression, a lot of your misbehavior has been directed at your wife. And ultimately, of course, your kids too because if they are present when some of these happen they are affected by it too. So you have an obligation to them as their father.

ACCUSED: Yeah.

HIS HONOUR: And I wonder what you that think about how good you have been as a father.

ACCUSED: I think it’s changed my behaviour.

HIS HONOUR: Well, you have been a fair while changing your behavior. You have a long way to go haven’t you? And you have a debt to pay this community, the one you are living in and the best way to do that is to simply behave properly.

And your wife came here looking for a new life and he ability to find one has been made worse by your behaviour.

Now there may be some cultural issues here, I do not know but it is pretty simple really, you simply behave in a civilised way and you do not assault people. Where you are drunk or whether you are sober. And it is not too hard. Because if this continues you are going to spend more and more time in gaol. That means more time away from your family, the distance between you and your family opens up, you become isolated from them and all the things, all the hopes that you had when you came here all go down the tube. All right?

ACCUSED: Okay.

HIS HONOUR: You know that, I do not have to tell you that. You are an adult and it is time to take an adult’s responsibility for your actions.

When I look at your record it is starting to get as I said get very serious and you simply cannot breach these kinds of orders and simply waltz away from them. Courts in Australia, the Australian community, takes violence against women very seriously and when a court says you cannot go there you have to obey it. And you realise that order is made to protect somebody because of what you did in the past.

ACCUSED: I know.

...

HIS HONOUR: What I have done is I have sentenced you to imprisonment for nine months but I have suspended it which means you do not have to go into gaol but if you commit any further offences you will. Any offences at all in the next nine months will see you serve nine months in gaol for these offences. You clearly understand that?

ACCUSED: Yeah.

...

HIS HONOUR: You have just got to make sure you do not come back to court again.

ACCUSED: I will.

June 2009 – incident involving pulling light fitting out of ceiling at family home

72. On 18 August 2009 (six months later), KJVC was charged with further offences and returned to the Magistrates Court. The Tribunal notes the remarks of the Magistrate as follows:

HIS HONOUR: ...Now a breach report was received in respect of your non-attendance at the Probation and Parole office. I certainly would have been prepared to overlook that, given what I am told about difficulties as far as the language is concerned, although I do not see those as being tremendously vigorously confirmed by the contents of the Probation and Parole report.

However, I am not prepared to treat a further breach of the apprehended violence order by pulling the light fitting out of the victim’s ceiling as either trivial or a good reason to excuse you failure to comply with the conditions of the bond.

[The Magistrate revoked the bonds and ordered KJVC to serve a term of imprisonment of nine months with a non-parole period of three months and an additional term of six months. The Magistrates entered convictions for the further offences and required KJVC to enter a good behaviour bond for two years; accept supervision of the probation and parole service and to undertake domestic violence and alcohol and other counselling directed by probation and parole.]

73. At the hearing, Mrs KJVC was asked if she remembered KJVC pulling a light fitting out of the ceiling. She said it was “possible” but that she did not “remember exactly” and that it was “related to drinking”.

December 2010 – punching through window of family home on Christmas day

74. On 25 March 2011, KJVC appeared before the Magistrates Court in relation to an incident that took place on Christmas Day in December 2010. The remarks of the Magistrate sets out a description of what took place as follows:

...

The facts of the present matters are these: the defendant was, at the time of these offences, committed about 2pm on 25 December 2010 at [name omitted] the subject of an apprehended domestic violence order in favour of his wife. One of the prohibitions of the order was that he not engage in conduct that intimidated her. Now in the early afternoon on Christmas Day that defendant attended the premises of the victim as she was about to leave to take their five children to church. At this time the victim sensed the defendant had consumed alcohol. She asked him to leave the premises, an altercation developed, the victim became fearful for her safety, and secured the premises. The defendant commenced yelling and knocking on windows, he wanted to get in. When entry was refused the defendant hit one winder with a closed fist causing the window to break causing an injury to his hand which required surgery.

...

The most recent revocation [of s 9 bonds in January 2011] concerned the defendant’s failure to comply with the supervision condition of the s 9 bonds, he declined to attend drug and alcohol programs and failed to report for a domestic abuse program. In this regard, I refer to the report of [name omitted], a [name of suburb omitted] Probation Officer of 30 September 2010.

Now according to the papers before the Court when the defendant was called up the breach was admitted. He subsequently failed to appear. A warrant was issued for his arrest. He apparently appeared at this court in relation to the warrant in early December 2010, about twelve days before these offences. The bond proceedings were adjourned. The bond was revoked on 19 January 2011...

...

I refer to the history of the matter because the history is important in terms of aggravating features associated with the defendant’s offending on this occasion. These offences occurred whilst the defendant was subject to conditional release in relation to the two s 9 bonds, now revoked. He was also the subject of a grant of bail in relation to the warrant that had issued in relation to the defendant’s failure to appear in respect of the breach of proceedings. The offences occurred at the victim’s home, a place where she was entitled to feel safe and the offences were committed in the presence of children.

These factors made the offences more serious. ...

Prospects of rehabilitation were not firm and on the information presently before the Court the defendant was, in my view, at risk of reoffending...

.... KJVC was yet to address the matters that had brought him into conflict with the law on a number of occasions now such as alcohol abuse and anger management violence issues. His response to supervision in the community was superficial and unsatisfactory and this it seemed had been demonstrated on two occasions now. The first in 2009 according to the report of [name omitted] and more recently in 2010 in relation to his response to supervision in relation to the fresh s 9 bonds imposed on 12 July 2010. The defendant’s conviction record demonstrated a poor compliance with a range of community based orders including suspensions of sentences of imprisonment.

...

On my reckoning between 2005 and 2010 the defendant has been convicted of criminal conduct against his wife on eight occasions. He had one prior conviction of assault upon his former partner occasioning actual bodily harm to her, three counts of common assault on his former partner, two counts of damaging his former partner’s property and five counts of contravening the apprehended domestic order imposed to provide her with a measure of protection.

...

The defendant, in my view, is a recidivist domestic violence offender and specific and general deterrence are important factors in sentencing him today as well as denunciation. Rehabilitation is important too though on the evidence adduced in the plea of mitigation. I could not help but entertain some doubt about his prospects of rehabilitation although I did not reach the view that prospects of rehabilitation were so poor that only a lengthy period of imprisonment would improve same.

The evidence demonstrated that the defendant, despite having consumed alcohol, on 25 December knew that he was engaged in wrongdoing on this occasion. In his anger he said to his wife “I don’t give a fuck about the AVO”. I accepted that the defendant might have been upset by the fact that this claimed arrangement to see his children on Christmas Day was not going to be proceeded with however it was always open to the defendant to act other than in this way towards his wife in the presence of their five young children. This was simply unacceptable behaviour, it is not the sort of behaviour that will be tolerated by the courts and I have no doubt, given the defendant’s conviction history for this type of behaviour that he was well aware, at the time of this offending, that his conduct was wrong.

...

75. At the hearing KJVC was asked where his children were at the time of this incident. He said the “little children were in their room” and the older daughter was in the lounge. He said he saw his two daughters inside the house when he punched his arm into the window. When Mrs KJVC was asked about this incident, she gave evidence that the incident took place at night and that “it was all related to alcohol”. Mrs KJVC said that none of the children were in the kitchen at the time KJVC punched the window. She said the youngest child heard it and that she told him that it was okay. Mrs KJVC said she called the police.

November 2014 – driving whilst disqualified and with a blood alcohol reading of 0.317

76. KJVC lodged a severity appeal in relation to the sentence he received for drink-driving offences committed by him in November 2014. At the appeal hearing in September 2015, the Judge made the following remarks:

...Both offences were committed on 5 November last year. One was a high range PCA, the reading was extraordinarily high; it was 0.317. The other offence was driving whilst disqualified. He was detected because he crashed the vehicle he was in when reversing out of an entry to a carpark. Fortunately, responsible citizens got him out of the vehicle and he did await the arrival of the police and entered his guilty plea.

...

On 22 July he was placed on a bond under s 9 and another under s 12 for contravening an AVO that appeared to have been committed after the matter before the Court, which is relevant to his prospects of rehabilitation. In a report dated 27 January, Corrective Services reported that he attended their offices on 8 December but there was no further contact. On 29 May a report indicated that an intensive corrections report could not be prepared because of the failure to contact, or maintain contact. When they visited his home on 27 May, his mother told them that he no longer lived there. The report was finally prepared for the date when the matter was finalised. He was found unsuitable for an ICO because of unresolved alcohol problems and unreliability.

He has been given opportunities in the past, including a great deal of patience on the part of the magistrates from whom the matter came since December, to address his substance abuse problems. He was obviously well-affect by liquor and these events occurred on a Wednesday in the CBD of [name omitted]. He posed a danger to other road users as well to himself.

He has served custodial sentences in the past after breaching bonds and the Court feels it was a very generous outcome that the magistrate found special circumstances, albeit with only a moderate adjustment to the non-parole period compared to the statutory formula in s 44. The Court if of the view that this is no merit in this appeal and that no alternative to fulltime custody would reflect the objective gravity of the offending behaviour. The orders of the Court are that the appeals are dismissed.

CONSIDERATION

Issue 1: does KJVC pass the character test as defined by section 501(6) of the Act?

77. The Tribunal finds that by operation of s 501(6)(a), in conjunction with s 501(7), of the Act, KJVC’s undisputed criminal record establishes that he has a substantial criminal record. KJVC was sentenced to terms of imprisonment of 12 months or more. For this reason, the Tribunal finds that KJVC does not pass the character test as s 501(7)(c) of the Act applies to him. This was not in dispute at the hearing.

Issue 2: is there another reason why the mandatory cancellation of KJVC’s visa should be revoked?

78. The other main issue to be determined was whether there is another reason why the visa cancellation should be revoked under s 501CA of the Act. Whether the discretion to revoke the cancellation was enlivened depended on the specific circumstances of KJVC’s case. Direction no.65 guides the exercise of decision-makers powers under s 501CA of the Act.

PRIMARY CONSIDERATIONS

79. Paragraph 13(2) of Direction no.65 provides for the Primary Considerations which the Tribunal must consider.

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

1. 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

80. Paragraph 13.1 of Direction no.65 provides further detail addressing the concept of the protection of the Australian community:

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

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

1. The nature and seriousness of the non-citizen’s conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct to date

81. In considering the nature and seriousness of KJVC’s criminal offending to date, the Tribunal is required by paragraph 13.1.1 of Direction no.65 to consider the factors set out in the following paragraphs, as relevant to this application.

Violent crimes to be viewed very seriously

82. Specifically, under paragraph 13.1.1(1)(a) of Direction no.65 the Tribunal must consider:

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

83. The domestic violence offences committed by KJVC against his wife repeatedly between 2005 and 2010, and the contraventions of (domestic) apprehended violence orders, are appropriately characterised as “violent” crimes. Consequently, paragraph 13.1.1(1)(a) requires the Tribunal to view those offences by KJVC “very seriously”.

Crimes against vulnerable members of the community

84. Under paragraph 13.1.1(1)(b) of Direction no.65, the Tribunal must consider:

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;...

85. The Tribunal considers that KJVC’s crimes against his wife constituted crimes against a vulnerable member of the community. Mrs KJVC is five years younger than KJVC, without the benefit of an education and not knowing how to read or speak English. Mrs KJVC does not have an easy ability to be able to fend for herself generally and in particular, while carrying the burden of responsibility of raising her many children. She was at the time that KJVC committed the offences against her, heavily dependent on KJVC financially. Mrs KJVC was not, and is still not, easily able to walk away from KJVC given her vulnerable position. The Tribunal considers that KJVC is well aware of this and that he has abused his positon of power within the family unit. Mrs KJVC has done remarkably well to cope with the way she has been treated since 2005 and impressed the Tribunal a strong person despite her present levels of distress. This Tribunal considers that this renders KJVC’s offending “serious” by application of paragraph 13.1.1(1)(b) of Direction no.65. KJVC’s crimes involved resisting police and not following police requests or directions.
86. These matters taken together and separately render KJVC’s offending “serious” by application of paragraph 13.1.1(1)(b).

The sentence imposed by the courts for a crime or crimes

87. Under paragraph 13.1.1(1)(c) of Direction no.65, the Tribunal must consider:

The sentence imposed by the courts for a crime or crimes.

88. The Tribunal considers that the imposition of four terms of imprisonment in total, the shortest being three months and the longest being 16 months, represents the seriousness of KJVC’s history of offending behaviour. In the sentencing hierarchy, a term of imprisonment is the highest level of punishment reserved for the more serious criminal offending in our community.

Frequency of offending; any trend of increasing seriousness and cumulative effect

89. Under paragraph 13.1.1(1)(d) of Direction no.65, the Tribunal must consider:

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

90. Under paragraph 13.1.1(1)(e) of Direction no.65, the Tribunal must consider:

The cumulative effect of repeated offending.

91. KJVC’s criminal record in Australia over his adult life comprised over 32 separate offences for which he was sentenced to four terms of imprisonment, financial penalties, disqualification of his driver’s licence, apprehended violence orders, corrective and supervision orders, and the issuing of warrants for his arrest.
92. It was apparent to the Tribunal that alcohol has become an entrenched and prominent feature in KJVC’s life when he is living in the Australian community. Regrettably, it substantially impaired his judgement in the way he conducted himself and treated his wife and others using the roads, placing them at an unacceptable levels of risk.
93. The Tribunal does not consider that there was any apparent escalation in the seriousness of KJVC’s offending behaviour over time and has taken this into account. Despite this, KJVC has consistently become violent and threatened his wife upon becoming intoxicated.
94. The driving offences committed by KJVC are serious in their own right, and indicated a continued propensity on the part of KJVC for extreme risk-taking behaviour that places members of the Australian community at a significant risk of harm.
95. In terms of the cumulative impact of the repeated offending by KJVC, the Tribunal has taken into account that the impact that repeated offending of this kind has in terms of the cost to the Australian community of policing, enforcement and repeated periods of incarceration.
96. The Tribunal has taken into consideration that KJVC has expressed remorse for his actions but given the gravity of his actions, this does not excuse what he has done and is also hard to reconcile with the frequent repetition of KJVC’s offending over an extended period. Further to this, KJVC has repeatedly said he could not remember his offending, indicating that he has not accepted responsibility for his behavior or appreciates the gravity of it.

Prior warnings or crimes committed while in immigration detention

97. Paragraph 13.1.1(1)(g) of Direction no.65 applies in this case as the Tribunal is satisfied that KJVC received and understood the 2012 Warning Letter issued by the Department.

Paragraph 13.1.1(1)(h) does not apply in KJVC’s case as he has not committed any crimes while in immigration detention. Instead, the Tribunal acknowledges that there was no evidence to suggest that KJVC had breached any regulations relating to conduct while he was held in either the correctional or immigration detention facilities.

Conclusion

98. KJVC has a substantial history of criminal offending from 2005 to 2015, spanning virtually the entire period he was permitted to live freely in the Australian community. This extensive criminal history shows a repeated and blatant disregard for important Australian laws prohibiting domestic violence and designed to protect vulnerable members of the community against it. KJVC’s criminal history also demonstrates a flagrant disregard for Australian road laws intended to protect people from the potential consequences of extreme risk-taking behaviour by individuals on the road.
99. Further, KJVC has demonstrated by his history of criminal offending that he lacked respect for the bodies responsible for undertaking law enforcement activities in Australia and also for observing the requirements of those enforcement and rehabilitation processes that were visited upon KJVC, as a consequence of his offending behaviour.
100. KJVC has done so by breaching multiple apprehended violence orders, good behaviour bonds, his bail conditions and corrective and supervision orders. The Tribunal also notes that some of the offences included not complying with directions given by police (conviction in 2006) and resisting or hindering police in the execution of duty (convictions in March and April 2009). The evidence in relation to the hearing before a Magistrate in July 2007 satisfies the Tribunal that he was not truthful to the court about the degree of his intoxication on the day of the offence, or truthful about whether he had punched a hole in the wall, or whether he had hit his wife. This Tribunal is satisfied on the evidence, as was the Magistrate in the proceeding before him, that all of those things had happened, as well as the telephone being ripped out of the wall. KJVC was not willing to admit to it or take responsibility for it.
101. When the Tribunal considers the repeat nature of this offending, and the risk KJVC has exposed others to in the community as recently as 2015 (only four years ago) by driving whilst disqualified and with a blood alcohol level of 0.317 (six times over the legal limit), the Tribunal is satisfied that KJVC’s crimes are appropriately viewed as very serious. He has repeatedly traumatised his wife and disrupted the peace of his children’s family home by his conduct. No-one is to blame for this other than KJVC. KJVC’s offending behaviour commenced only one year after his arrival in Australia, putting aside a number of minor driving transgressions in 2004 (the year he arrived), while he had his learner’s permit, and which resulted in fines imposed against him.
102. KJVC’s close affiliation with law enforcement processes over the last 14 years, in particular, his long periods of corrective and immigration detention, and subsequent periods of supervision, has cost the Australian community significantly by needing to fund those processes and services in order to bring KJVC to account for his actions.
103. In conclusion, the Tribunal considers that the considerations under paragraph 13.1.1(1)(a), (b), (c), (d), (e) and (g) of Direction no.65 have particular relevance in this case and support the conclusion of the Tribunal that KJVC’s offending behavior for which he was convicted, was very serious and weighs very heavily against the revocation of the decision to cancel his visa.

Risk to the Australian Community should the Applicant reoffend or engage in other serious conduct

104. 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:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. 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).

Nature of harm

105. In the event that KJVC was to reoffend, the Tribunal considers it likely that he would commit similar offences, given the established history of his previous offences. The Tribunal also recognises that it is possible if KJVC relapses and resumes consuming alcohol to excess, the severity of the harm caused by him while in an intoxicated state may potentially lead to serious physical and/or psychological injuries to his wife and also psychological harm to his children who may bear witness to the offences while they are happening or bear witness to any injuries that his wife may sustain as a result of such offending. The Tribunal considers that the problems may escalate as his children become older and increasingly more likely to retaliate against his behaviour.
106. It is evident from KJVC’s past history and Mrs KJVC’s evidence that KJVC lacks self-control when intoxicated, and becomes violent. KJVC’s own evidence at the hearing was that sometimes he does not always remember what he has done while he is intoxicated. This is of grave concern to the Tribunal. It supports a finding that the potential harm to his family if he reoffended could be serious.
107. KJVC’s criminal record which cannot be impugned, sets out a decade-long track record of domestic violence directed at Mrs KJVC and applications made by to the Police for her protection through apprehended violence orders. Those orders were repeatedly ignored by KJVC.
108. Mrs KJVC was asked at the hearing how many times KJVC had hit her. She said she could not remember. Mrs KJVC expressed a view that it was not all KJVC’s fault. Mrs KJVC stated that, “I should have left him alone and not escalated conflict. I rushed by calling the police”. The Tribunal believes that Mrs KJVC acted appropriately to protect herself and her family by calling the police before the violence escalated any further. The Tribunal was concerned by her response and asked Mrs KJVC whether she would be reluctant to call the police in future, if KJVC was released and became violent with her again. Mrs KJVC responded that she would call the police if it happened again, which gave the Tribunal some level of confidence that she would continue to protect herself as she had done in the past, were KJVC to be permitted to remain in Australia; provided that KJVC did not attempt to restrict her access to using a telephone, as he attempted to do during the incident in May 2007.
109. The Tribunal in mindful of the harm that was caused by KJVC to Mrs KJVC during the incident referred to in paragraphs [64] to [70] based on Mrs KJVC’s evidence and the remarks of the Magistrate.
110. The Tribunal considers that the seriousness of the potential harm which KJVC would cause to his wife shifts the risk that KJVC represents to the community to the end of the scale where it is appropriately characterised as unacceptable.
111. Further, if KJVC continues to disobey road laws like he has repeatedly done in the past, and continues to drive while intoxicated, including when he was six times over the legal limit, there is a real risk he may cause injury, serious injury or death on the roads to himself, and/or to his wife and children if they are travelling with him, and/or to other road users. He may also cause incidental damage to vehicles and property in the process. The Tribunal considers the potential harm that KJVC may cause if were to re-offend in relation to driving-related offences is serious in its own right and KJVC represents an unacceptable risk to the community in relation to such offences.

Likelihood of re-offending

112. The Tribunal has been hampered in its assessment by the absence of any medical reports by a psychologist, psychiatrist, social worker or other expert, or by a corrective services officer. As a result, there are no expert opinions as to KJVC’s likelihood of reoffending. Accordingly, it must make this assessment based the other evidence presented to it and after taking into account the remarks of the sentencing judges and magistrates as referred to above.
113. Based on the accounts provided by KJVC of his life, the Tribunal finds that KJVC had an extremely traumatic and disturbing childhood and agrees with KJVC’s own characterization of it, namely, that he “did not have a childhood”. The Tribunal recognises that KJVC lost the support and care of both of his parents and also his siblings by the time he was eight and forced into military service. At a very young age, KJVC witnessed the aftermath of the killing that took place during the Sudanese Second Civil War.
114. The Tribunal considers that KJVC’s problems with alcohol and extensive history of offending revealed that he has struggled for most of his adult life to deal with what must have been the significant psychological impact of his traumatic childhood. Until recently, those psychological impacts were left untreated.
115. The Tribunal notes the evidence about the individual “Torture and Trauma” psychological counselling made available to him more recently on Christmas Island and that he now takes psychotropic medication to assist him (i.e. Avanza). Avanza contains mirtazapine. Mirtazapine is used in the treatment of depression including relapse prevention.^[26] Until KJVC started taking mirtazapine more recently, he has clearly used alcohol has a primary means of coping with the past. This has resulted in KJVC’s previous violent and risk-taking tendencies, even during times when things were going well for KJVC and his family.
116. The Tribunal acknowledges the challenge that KJVC has faced trying to break his habit or addiction to alcohol. Regrettably, until very recently, KJVC has not readily sought or been willing to receive help from professionals or others in the community. Nor did he impress the Tribunal, when he was giving evidence at that hearing, as the type of person who was content to rely on others to help him. The sentencing remarks by the courts included references to reports about KJVC non-compliance with supervision orders and to attend at initiatives designed to rehabilitate him. At the hearing, he tried to explain his non-attendance by saying the office was closed when he attended. The Tribunal does not accept this explanation. It was open to KJVC to have returned to the office the following day or at another time. KJVC also sought to criticise the group counselling sessions that were made available to him by saying that people were coming and leaving during it. The Tribunal considers that this does not excuse why KJVC did not continue to attend those sessions. It demonstrates that KJVC failed to understand why it was he was ordered by the court to attend those sessions; and that it was in lieu of him serving time in prison and that he had entered a bond with the court to promise to do so. KJVC failed to take up the opportunity for rehabilitation that was provided to him and funded by the Australian community.
117. The Tribunal notes the evidence that was given by the Chairman for the South Sudanese Community Association Inc in support of KJVC’s application. This community representative gave evidence about the role that his organisation (resourced by volunteers) played to assist those in a similar position to KJVC. He said that if KJVC was released he would coordinate the provision of services to KJVC including “reconnecting and rehabilitation, including employment pathways, housing, social welfare services, crime free association and other relevant services (community harmony services)”. He said he would provide information to KJVC about his rights and obligations under Australian law and offer him advocacy, support and delivering group work and creative workshops to engage KJVC in the community. At the hearing, the representative said he would organise weekly visits to KJVC by a social worker and put him in touch with an ethnic community housing service. The Tribunal was persuaded that this organisation would assist KJVC as best as they could, bearing in mind its limited resources, if he was released into the Australian community.^[27]
118. The Tribunal acknowledges that KJVC has recently started to make some inroads to address the underlying problems. However, KJVC has not demonstrated that he has the necessary discipline to avail himself of such assistance on a sustained basis. KJVC’s evidence that he considered that he was no longer suffering from mental health issues at the present time, demonstrated a continued lack of self-awareness or insight into what was causing his problems. It diminished the Tribunal’s confidence about KJVC’s chances of being able to abstain from consuming alcohol to excess, once released and not living in a structured environment. KJVC’s evidence about the steps that he was planning to take to prevent relapse upon release, lacked substance and were unconvincing.
119. The Tribunal is satisfied that KJVC has gained some insight into his offending and also into the detrimental effects of continuing to consume alcohol to excess, but overall, is limited. The Tribunal is not satisfied that KJVC had accepted full responsibility for his actions. He sought to downplay the criminal offences he has committed against his wife. For some of the offences, he could not remember them at all. At other times, he denied that he would have done what he was convicted of doing. He said he had only pled guilty because the lawyers had told him to do so, in order to lessen his sentence.
120. KJVC expressed little insight or remorse about repeatedly contravening apprehended violence orders, good behaviour bonds, bail conditions, driving restrictions or not attending court when he had been directed to do so, as evidenced by the warrants executed for his arrest referred to in his criminal record.
121. In KJVC’s Witness Statement, he stated:

When I came to Australia, it was very difficult to transition to a society with such strict rules. I was not provided with any assistance with this transition.

122. The Tribunal acknowledges that KJVC may have been seeking to provide a context to his offending behaviour but does not accept that it provides any excuse for his decade long criminal record. KJVC is an educated man (to the extent of finishing his secondary schooling), and arrived in Australia in his mid-20’s. The Tribunal is satisfied that KJVC had an appreciation at that time that upon migration to another country, he would be required to follow the laws of that nation. The Tribunal also considers that it was up to KJVC to make it his business to find out what those laws were and to follow them.
123. Even after the courts made express and clear warnings to KJVC during the various sentencing hearings about what those laws were and that his offending behaviour was unacceptable to the Australian community, KJVC did not heed those warnings and continued to reoffend.
124. Specifically, KJVC was directed to fix his drinking problem. Despite KJVC’s undertakings to the court that he would do so, no effective steps were taken by him to put this into action. By seeking to explain this by asserting that he could not find an Arabic-speaking doctor (this is an implausible proposition given that Australia is a multicultural society), demonstrates that KJVC had no genuine intent, despite those clear warnings and directions from the courts, to get help to fix his psychological problems so that he could break his alcohol habit or addiction to prevent him from reoffending.
125. KJVC gave strident evidence, both in his witness statement and at the hearing, that he will not drink alcohol in the future. Consequently, KJVC said he will not reoffend, stating that he had changed. KJVC invited the Tribunal to take into account the fact that he had conducted himself without incident since 2015. The Tribunal notes that since 2015 KJVC has been either incarcerated or in immigration detention.
126. There are limited examples where KJVC has demonstrated that outside of a structured environment, such as being in prison or in detention, he was able to abstain from consuming alcohol to excess and re-offending for any significant length of time.
127. The Tribunal notes that during the decade-long period during which KJVC suffered from an alcohol problem, he has been surrounded by a large family. Despite the threat KJVC posed to them and the physical and emotional abuse he inflicted on his wife, he enjoyed their continued love and support. This indicates that having the love and support of a family has not served as a sufficient protective factor to KJVC in the past to prevent him from relapsing and re-offending.
128. The Tribunal is not satisfied that KJVC would be sufficiently motivated to avoid relapsing for the sake of his wife and children, as this motivation was present when he first started drinking and offending in 2005 right through until 2015, upon his incarcerated and detention.^[28] Further, the Tribunal notes that during much of this time there were periods, for instance, when KJVC was gainfully employed or running a small business, where economic pressures were not a stressor bearing down on KJVC. Yet he continued to consume alcohol to excess and engage in criminal offending.
129. The Tribunal is hopeful that KJVC’s priorities have altered in the way that he has described to the Tribunal; namely, that he wants to be closely involved with his children again and to be a good provider and role model to them. The Tribunal acknowledges that the recent short period of individual counselling on Christmas Island and the medication is likely to have increased slightly KJVC’s chances of being able to success in this goal. It is a start; but the Tribunal considers that KJVC has a long way to go.
130. It is difficult for the Tribunal to have confidence in KJVC’s projection that he will not drink or re-offend again. KJVC’s priorities have been tested while he has been in the Australian community over the last 15 years and he has relapsed on four occasions upon being released from prison. The temporary loss of KJVC’s liberty and consequential separation from his family and loss of employment as result of serving those four prison terms has not been a sufficient deterrent in the past, to KJVC to stop drinking and re-offending. Unfortunately, the attempts through the criminal justice system until now to rehabilitate KJVC from alcohol abuse and re-offending have all failed.
131. The Tribunal accepts KJVC’s evidence he has completed the Equips addiction program. In KJVC’s Witness Statement he also stated:

...

4. I have taken courses to control addiction issues, such as attending the SMART program, in addition to having Drug and Alcohol meetings with the Salvation Army whilst living in the Community, and counselling about my alcohol problem in prison.

...

132. However, the Tribunal is unable to accept that KJVC will actively seek out and receive the support he needs when he is released, to prevent him from relapsing. The evidence demonstrates that he has not “taken to” group counselling in the past and the Tribunal considers he is not likely to in the future. The Tribunal gained an impression from KJVC, when he gave evidence at the hearing, that he genuinely thinks that the problem is now fixed and it will no longer be an issue. The Tribunal considers that KJVC’s overconfidence about this is misplaced.
133. At the hearing, KJVC was asked what steps he was planning to take to prevent him from relapsing with respect to alcohol. KJVC struggled to identify any concrete steps he was planning to take. Instead, KJVC assured the Tribunal that he had changed and that it was simply not going to happen. When KJVC was asked by the Tribunal if he was prepared to attend regular meetings at Alcoholics Anonymous (A.A.), he replied in the affirmative. When asked whether he had searched for and identified a particular A.A. meeting near his wife’s home, KJVC said he had not done so. The Tribunal considers that if KJVC was serious about helping himself upon his release not to relapse, he was likely to have such matters mapped out.
134. The Tribunal also considers that KJVC is unlikely to continue with any individual counselling. When asked by the Tribunal whether he thought he presently had any mental health issues, KJVC answered in the negative.
135. KJVC said he had not participated in a rehabilitation program in the past because of the cost involved. KJVC was questioned as to why he had not sought medical treatment or to be placed on a mental health plan so as to receive 10 free sessions of individual counselling to address the underlying problems. One of the reasons provided by KJVC was the stigma he said would attach to him doing so, based on his culture. Another reason proffered was that KJVC said he had been unable to find a doctor who spoke his language to talk to about it.
136. The Tribunal considers it implausible that KJVC was unable to find an Arabic-speaking medical practitioner and does not accept this part of KJVC’s evidence. In relation to the cultural aspects, given the gravity of the consequences that KJVC and his family experienced as a result of him continuing to drink and re-offend, the Tribunal considers that, cultural influences or not, any perceived stigma attaching to individual counselling was a small price to pay for KJVC to act in a way to protect him, his family and the continuation of the privilege to continue living in Australia, by seeking some individual counselling. The Tribunal considers that KJVC could have found such a doctor if he had made a genuine attempt to do so. The Tribunal finds that no such search was undertaken and that in the past KJVC had made no attempt to obtain assistance in the form of individual counselling, prior to being offered such service while he was in detention at Christmas Island.
137. The Tribunal is satisfied that KJVC has shown some signs that he has a greater appreciation now, than he did prior to 2015, of the consequences of his offending behaviour. However, there is significant history of repeated relapses, even at times when things were going well for KJVC, which the Tribunal is unable to ignore.
138. The Tribunal considers that there remains a medium-to-high level risk that despite KJVC’s best efforts he may relapse and in time, commence reoffending in the future if he returns to an unstructured living environment.
139. Given the Tribunal’s findings of the likelihood of KJVC re-offending, and the potential harm he would cause if he re-offended, the Tribunal concludes that KJVC represents an unacceptable risk of harm to his wife (physically and psychologically), his six children (psychologically), and other road users in Australia. The Tribunal also concludes that KJVC is likely to continue to draw significantly on the resources of various government institutions seeking to regulate his criminal behaviour and to periodically supervise and incarcerate him for his criminal offences. KJVC poses an ongoing threat to members of the Australian community, including innocent members of his immediate family who are in a vulnerable position. Given KJVC’s propensity for extreme risk-taking behaviour on the road, thereby putting members of the broader Australian community at risk, the Tribunal finds that this is also an unacceptable risk to the Australian community.
140. The risks that KJVC represents to the Australian community weigh very heavily against the Tribunal revoking the Cancellation Decision.

Best interests of minor children in Australia affected by the decision

141. Paragraph 13.2(1) of Direction no.65 requires that the Tribunal make a determination about whether revocation is, or is not, in the best interests of any minor children in Australia. In making that determination, the Tribunal is required to have regard to the factors set out in paragraphs 13.2(4)(a) to (h).
142. KJVC completed and submitted to the Department a Personal Details Form in March 2015 (PCF) indicating that he had daily contact with his children.^[29] He stated that that this contact was in the form of, “visits” and “phone calls”. KJVC confirmed this at the hearing.
143. In KJVC’s Witness Statement, he stated as follows:

...

5. I care deeply about the best interests of my children, and have remained in daily contact with them. I would like to be able to take a more active role in their upbringing. I believe it will be detrimental to them to grow up without their father. My wife is not educated, and this has a negative impact on my children. I feel that their educational outcomes improve when they have me around.

...

14. My family visited me both while I was in prison and in when I was in [name omitted] Detention Centre. Having my children stand by me gave me the motivation I needed to seek help, not only for myself, but so I could be a better father to them. I have very strong ties with my children.

...

144. The Tribunal acknowledges that there is a good parental and emotional connection between KJVC and his children. The Tribunal is satisfied the KJVC is a loving father and has the best intentions to be a good father to his children. Mrs KJVC also gave evidence to the effect that she is in a difficult financial situation raising the six children single-handedly. Mrs KJVC gave evidence that she is required to work full-time and to work long hours at a meat packing factory to earn $600 net per week. Mrs KJVC said she receives $900 per week net of tax. Mrs KJVC is required to support her family on $1,500 per week. Mrs KJVC gave evidence that he paid $40 per week per child to send them to a Catholic school but the school was considering reducing this to $40 per fortnight. Mrs KJVC said her weekly expenses were $300 and she was required to pay for food and transport. Her housing has been unstable and she was staying at a friend’s house at the time of the hearing. Mrs KJVC had been living with her mother previously. The Tribunal has little doubt that if KJVC were released back into the community, found work and did not relapse that he would be to assist the family significantly a financial basis, which in turn would serve the interests of each of the six children.
145. The Tribunal is concerned that if KJVC relapses, consumes alcohol to excess and engages in domestic violence offences directed either to Mrs KJVC or in the presence of his children, KJVC may harm his children psychologically. If a relapse occurred, KJVC’s regular presence in their lives is likely to be destabilising force rather than a positive one. The evidence has indicated that Child 2 is presently addressing some drug-related issues and is in a particularly vulnerable state at present. At the very worst, it may result in his children being exposed to criminal behaviour as a way of life.
146. Despite those risks, the Tribunal considers that on balance, it would remain in the best interests of each of KJVC’s children, who are minors, for KJVC to remain in Australia. The Tribunal has reached this conclusion based on an assessment of the individual circumstances of each of the individual minor children, as addressed below beginning at paragraph [150].
147. Mrs KJVC gave evidence that if KJVC became violent again, if she needed to, she would call the Police. This afforded a degree of confidence to the Tribunal that Mrs KJVC would continue to act as a protective force against any future violent approaches that KJVC may make to any member of the family, should KJVC relapse.
148. Until recently, Mrs KJVC and her children have lived with her mother. Mrs KJVC’s mother is 52 years old and evidence was given that she was in good health. Mrs KJVC’s mother has three children who live with her. Two of them were present at the hearing of this application. They were in there early 20’s. They are presently unemployed. They are looking for work and taking English lessons. The Tribunal is satisfied Mrs KJVC’s younger brothers are unlikely to assist her in looking after the children. They had not done so to date.
149. More recently Mrs KJVC has moved herself and the children to live with a friend. Their housing situation is unstable. They have had trouble finding rental accommodation. Mrs KJVC says her rental applications are rejected when the landlord sees that there will be six children living in the rental property.

Child 1

150. Child 1 provided a witness statement which stated:

On behalf of me and my siblings I [Child 1] the oldest of 6 am concerned of my father’s deportation crisis. It is with our deep sadness that there is a possibility of my father getting deported, we beg you to show mercy and not do this because our life would be hard without our father in it, not only emotionally but also financially. Our family would be emotionally unstable because they love him so much and knowing that there is a possibility of them not seeing him every day aches my heart. I know he regrets the wrong doings that he has done and we beg you to give him one more chance we would dearly miss his and we know that we can’t live without him, he is our guidance the person that guides us in life, teacher the person who teaches us what’s wrong and what’s right. It is with our deepest hearts that we beg you not to deport our Father [KJVC].

Yours sincerely, Child 1, Child 2, Child 3, Child 4, Child 5, Child 6

[Unsigned]

151. At the hearing, Child 1 gave evidence that she made this statement and that its contents were true and correct. Child 1 said she had completed schooling to the Year 11 level. Child 1 said she is no longer at school. Child 1 said she had applied for a job in call centre and was accepted, although her employment did not proceed because she was not yet 18 years of age. Child 1 was told to come back to see the prospective employer when she turned 18 (which is in June 2019).
152. Child 1 said she and KJVC were “very well connected”. Child 1 said that she had never witnessed any domestic violence. She said that he was sometimes intoxicated but that KJVC was “never abusive to me”. Child 1 said that if KJVC is deported it will, “not only affect me. It will affect my whole family. Emotionally. Financially. He was working and providing for us. As soon as he was incarcerated my mother has to get up at 3am to go to work and to pay the bills. She does everything”.
153. When asked whether Child 1 had noticed any change in KJVC, she said that he had changed to a completely different man. Child 1 said he had not admitted to her that he had a drinking problem.
154. Child 1 was asked about the difficulties that Child 2 had been experiencing. Child 1 said that Child 2 was being a rebellious teenager. Child 1 said that her father “can only handle that. My mother has tried everything. He would try to help her”. Child 1 was asked whether Child 2’s condition had stabilised. Child 1 confirmed that Child 2 was present outside of the hearing room at the time this application was being heard.
155. Child 1 said that if KJVC is deported it would have a “great impact on the younger children”. She said “they did not understand” and that “they were vulnerable”.
156. At the hearing, KJVC described his relationship with Child 1 as “very good” and that this had always been the case. Somewhat surprisingly, when the Tribunal asked KJVC about Child 1’s studies, KJVC was not sure whether she was still at school. He stated, “I don’t know exactly. I think she is doing Year 12”. KJVC said he spoke to Mrs KJVC about her education. KJVC also said in answer to a question from the Tribunal that he did not know exactly which school she was attending, other than it was a Catholic school. KJVC said he spoke to Child 1 every day for about 15 to 30 minutes. KJVC was asked what job Child 1 had applied for recently and he said he did not know.
157. KJVC said Child 1 was previously interested in sports; specifically, soccer. He said she used to play but does not play any longer. He said he did not know why. KJVC was invited to tell the Tribunal about what else he knew about his daughter. KJVC’s response was, “good in many aspects – she listens to me”. KJVC was asked whether Child 1 had a boyfriend. KJVC said he did not know. KJVC was asked if he knew the names of Child 1’s friends. He said he did not know. KJVC said that Child 1 “like to help people” and that she had her learners driving permit.
158. Child 1 told the Tribunal that presently she was not living with Mrs KJVC, but with her grandmother (i.e. Mrs KJVC’s mother). This had been the case of a few months.
159. The Tribunal considers that KJVC has a reasonably close relation with Child 1, although there was some doubt about that, given that there was a limit to what he knew about her including the fact that she was no longer attending school. It was evident however that it was Child 1’s clear preference that KJVC remain living in Australia to provide their family with financial support and also because she considered that the other children did not listen to their mother, but that they would listen to KJVC if he was in their lives.
160. The Tribunal considers that would be in the best interests of Child 1 if KJVC were to remain living in Australia.

Child 2

161. Mrs KJVC provided evidence that at the moment Child 2 was going through a very difficult time. Mrs KJVC said that Child 2 had been hospitalised a few weeks before the hearing as a result of taking drugs. Mrs KJVC said that it was distressing for her when she went to the hospital to see her. She said there were staff at Child 2’s bed and Child 2 was banging her head against the side of the bed. Mrs KJVC became extremely upset and tearful when giving this evidence at the hearing. Mrs KJVC said that Child 2 refused to go to school. Mrs KJVC said that she considered the underlying problem was that ever since KJVC went to prison that Child 2 changed completely. She said that Child 2 had a strong attachment to KJVC and that Child 2 “thinks I am the reason [KJVC] went to prison”.
162. KJVC gave evidence at the hearing that Child 2 was due to turn 17 in September 2019. He said she was not studying and that she had left school. KJVC said he did not know why she had left school. He said that she leaves the home early in the morning and does not return until late at night. He said that she goes out with her friends.
163. KJVC said he speaks to her on the telephone but sometimes she did not answer or she would say she was “busy”. KJVC said his wife knew about what was going on. He did not think there was conflict between Mrs KJVC and Child 2 but that Mrs KJVC was asking Child 2 to go back to school. KJVC said the last time he spoke with Child 2 was “last week”. KJVC said that Child 2 would like him to stay in Australia.
164. KJVC said Child 2 used to run marathons and win prizes. He said he did not know if Child 2 was still running. KJVC said that he thinks Child 2 is experiencing difficulties because he is not there. When KJVC was asked why he thought this, he responded, “because when I was there I used to help them with their studies and homework”. When KJVC was asked when he last helped his children with their homework, he said, “about two months before he was taken to prison in 2015”.
165. The Tribunal considers that it would be in the best interests of Child 2 if KJVC were to remain living in Australia. KJVC is likely to provide Child 2 with additional parental support and economic stability if he were permitted to remain living in Australia and provided he did not relapse and start behaving in a violent way in the family home.

Child 3

166. KJVC said that Child 3 was 14 years old. He said Child 3 was a “good person”, that he was “very calm” and that they had a “very good relationship”. KJVC said he speaks to the children (including Child 3) every day when he calls Mrs KJVC.
167. KJVC said that Child 3 was going to school. KJVC was asked which school. KJVC responded, “I don’t know”. KJVC said that Child 3 was in Year 9. He said Child 3 liked to play “soccer” and he liked “gaming”. KJVC was asked whether he had seen Child 3’s school report card. KJVC said, “I didn’t have a look at it”. KJVC was asked whether he had asked Mrs KJVC to send it to him. KJVC said, “I asked her once. My wife tends to forget”.
168. KJVC was asked whether he spoke to Mrs KJVC about how Child 3 was going. KJVC said that Mrs KJVC had told him Child 3 was doing okay. KJVC was asked with Mrs KJVC’s brothers helped Child 3 with homework. KJVC said he did not know.
169. The Tribunal considers that would be in the best interests of Child 3 if KJVC were to remain living in Australia. KJVC is likely to provide Child 3 with additional parental support and economic stability, provided he did not relapse and start behaving in a violent way in the family home.

Child 4

170. KJVC gave evidence that Child 4 is 12 years old and he is in Year 7. He said that Child 4 likes going to school and that he speaks to Child 4 every day. KJVC said his relationship with Child 4 was “good” and that he liked to play “basketball” and “aussie rules”.
171. KJVC said that Child 4 was doing okay at school but he would benefit from more assistance. KJVC said he was going to Catholic school. KJVC did not know that name of the school Child 4 attended. KJVC was asked whether school fees were payable for Child 4 to attend the Catholic school. KJVC said he did not know.
172. KJVC said that his eldest daughters helped to look after and care for the younger children, and that Mrs KJVC’s mother helped too, while Mrs KJVC was working.
173. The Tribunal considers that would be in the best interests of Child 4 if KJVC were to remain living in Australia. KJVC is likely to provide Child 4 with additional parental support and economic stability, provided he did not relapse and start behaving in a violent way in the family home.

Child 5

174. KJVC gave evidence that Child 5 was 9 years old. He said he did not know which school Child 5 went to. KJVC described Child 5 as being “good” and that Child 6 was “very religious”. KJVC said that Child 5 had asked him when he was coming home.
175. The Tribunal is satisfied that KJVC is likely to provide Child 5 with additional parental support and economic stability if he were permitted to remain living in Australia and provided he did not relapse and start behaving in a violent way in the family home.

Child 6

176. KJVC gave evidence that Child 6 is six years old. He said he did not know if he was at school or that he had “just started”. KJVC said Child 6 was two years old when he was taken to prison. KJVC says he speaks to him over the telephone. When asked about KJVC’s relationship with Child 6, KJVC told the Tribunal Child 6 was a “good boy”. KJVC said he likes “to play games on the ipad”.
177. The Tribunal considers that would be in the best interests of Child 6 if KJVC were to remain living in Australia, albeit to a lesser extent than Child 1, 2, 3, 4 and 5, given Child 6 is a lot younger and was only two years old when KJVC was incarcerated in 2015 and thereafter detained. Child 6 is presently receiving care from Mrs KJVC, Mrs KJVC’s mother and Child 6’s older siblings, noting that this may diminish with respect to Child 1 and Child 2, as they are busy establishing their own lives.
178. The Tribunal accepts the evidence from Mrs KJVC to the effect that Child 6’s uncles have not shown an interest in the activities of the children, for instance, with soccer. The Tribunal is satisfied that KJVC is likely to provide Child 6 with additional parental support and economic stability, provided he did not relapse and start behaving in a violent way in the family home, and that it would be in the best interest of Child 6 for KJVC to remain in Australia.
179. The finding of the Tribunal is that it would be in the best interests of all six children of KJVC for him to remain in Australia weighs in favour of the Tribunal revoking the Cancellation Decision.

Expectations of the Australian Community

180. Paragraph 13.3(1) of Direction no.65 requires the Tribunal to take into account the following:
     • (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
181. When a person has an extended criminal history of domestic violence and repeated offences indicating a reckless disregard for protective road laws, the Tribunal considers that the Australian community would expect KJVC’s Visa to be cancelled despite the fact that the non-citizen has spent most of their life in, and has a large family including six minors based in Australia.
182. The Tribunal is satisfied that in the circumstances of this case, the Australian community is likely to expect KJVC’s privilege (to remain living in Australia), to be removed, because:
     • (a) KJVC’s history of repeated criminal offending, with convictions for over 32 offences spanning a decade for which he has served four separate terms of imprisonment;
     • (b) the gravity of some of those offences including “common assault” and “assault occasioning bodily harm” in the context of domestic violence against a young mother responsible for the care of a significant number of children; and on one occasion, while she was recovering from a caesarian procedure and holding a new born child, putting her in a particularly vulnerable state;
     • (c) exposing the community to risk of car accidents and harm by driving while intoxicated at six times above the legal limit and also driving while disqualified indicating a blatant disregard of Australian road laws;
     • (d) the harm caused to Mrs KJVC by the offending behaviour, taking into account her particular vulnerabilities; and
     • (e) the cost to the community of policing and enforcing the law and to fund KJVC’s several periods of incarceration and subsequent corrective and supervisory programs.
183. The Tribunal is satisfied that the Australian community would expect that KJVC, having had past opportunities to rehabilitate, with no corresponding reform to his lifestyle and resulting behaviour outside of a structured environment, should not be provided with any further opportunity to change his ways while living within the Australian community. KJVC has already been provided with a “second chance” (i.e. the 2012 Warning Letter) which regrettably, did not deter him from reoffending.

OTHER CONSIDERATIONS

184. There are other considerations relevant to this application that should be considered in revocation matters, which are identified in paragraph 14(1) of the Direction. It provides that:

(1) ... These considerations include (but are not limited to):

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interest;

d) Impact on victims;

e) Extent of impediments if removed.

International non-refoulement obligations

185. Paragraph 14.1 of the Direction no. 65 provides as follows:

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 159 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

186. The Tribunal has taken into account the principles set out by North J in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, particularly with respect to the second sentences of subparagraphs (2) and (6).
187. The Tribunal notes a reference in the Minster’s Statement of Facts, Issues and Contentions that KJVC has made an application for a protection visa, which is currently before “a separately constituted Tribunal”.
188. Consistent with the decision of the Full Court of the Federal Court of Australia decision in BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96, the Tribunal considers that where a person affected by a mandatory cancellation raises, as a reason in favour of revocation of the visa cancellation, a fear of harm in her or his country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country.^[30] In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.^[31]
189. The conventions referred to in Direction no.65 are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality. The Tribunal is required to assess whether KJVC has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.^[32] The Tribunal will also assess whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of KJVC being removed to South Sudan, there is a real risk that he will suffer significant harm.
190. Significant harm is defined in s 36 of the Migration Act as follows:

...

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

...

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

191. The Tribunal notes the observations of Allsop CJ and Katzmann J held in NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38; [2014] 220 FCR 1 at [22], that the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant:

[22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances.

192. KJVC asserted that he was concerned about returning to South Sudan because he says, “I will be kill”.^[33] In KJVC’s Witness Statement, he stated that, “I will be persecuted, tortured or killed if I am returned there”.^[34]
193. At the hearing, KJVC was asked by the Tribunal if he could expand upon the basis of those fears. KJVC said that he would have no access to health care and that would “have no safety”. He said there was “no stability there” and “no basic services”. He said it would be a “death sentence”. KJVC said he knew that a person who was in detention with him on Christmas Island who had returned to South Sudan after he had his visa cancelled and three weeks later, he was “burned alive”. KJVC said he knew this based on “a report his friends had put on Facebook”.
194. The Tribunal accepts that South Sudan is an impoverished and insecure place to live. The Tribunal has taken into account certain information about South Sudan extracted from the South Sudan Country Report issued by DFAT on 5 October 2016:

2.6 The humanitarian situation in South Sudan is dire and has been aggravated by the recent escalation in conflict. As of August 2016, 1.6 million people were internally displaced, including 190,000 people in Protection of Civilian camps run by the UN Mission in South Sudan, and a further 818,950 South Sudanese people seeking refuge in surrounding countries. The Government accepted the deployment of a 4,000 ‘Regional Protection Force’ in early September 2016, in addition to the roughly 12,000 UN Mission in South Sudan personnel already serving in South Sudan.

...

2.12 South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy. In 2015, South Sudan had an estimated GDP of USD19.05billion and per capita income of approximately USD790.

...

2.14 Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015, contributing to increasing levels of crime.

...

2.17 South Sudan’s population has extremely poor access to health care. Accurate data prepared by the Government on health indicators is often non-existent or outdated. According to data collected prior to the outbreak of conflict in December 2013, South Sudan ranked 169th out of a total of 187 countries on the UN Development Programme’s 2015 Human Development Index. South Sudan has an average life expectancy at birth of 56.7 years for women and 54.7 years for men... Only 55 per cent of the population has access to improved sources of drinking water (ie. a drinking-water source that is protected from outside contamination) and around 38 per cent of the population walk more than 30 minutes one way to collect drinking water. Eighty per cent of the population do not have access to toilet facilities. DFAT understands that the health situation has deteriorated further as a result of the worsening conflict and economic situation.

...

2.19 Data collected prior to the outbreak of conflict in December 2013 found that 76 per cent of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12 per cent of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However, as at 2016, DFAT assesses that as the security and economic situation has deteriorated, employment opportunities (both in the formal and informal sectors) have also worsened.

...

2.26 Continuing and escalating instability within South Sudan has meant that both the Transitional Constitution of the Republic of South Sudan and the ARC have had little tangible impact on the day-to-day lives of the population of South Sudan. Following the escalation of conflict in July 2016, it is difficult to ascertain to what extent the TGNU is functioning as per the specifications of the ARC.

...

SECURITY SITUATION

2.29 The Ceasefire Transitional Security Arrangements Monitoring Mechanism, established by the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARC), has been largely prevented from monitoring compliance of the permanent ceasefire committed to under the ARC. Coupled with the fluid nature of the conflict in South Sudan and the frequency of inter-tribal conflict throughout the country, it is difficult to provide an accurate overview of the current security situation. Overall, DFAT assesses that the security situation in South Sudan remains extremely volatile.

2.30 Conflict continues between the Government’s Sudan People’s Liberation Army and the Sudan People’s Liberation Movement-in-Opposition’s SPLA-IO in Upper Nile State, Unity State and Jonglei State. Incidents of conflict in Central Equatoria State and Eastern Equatoria State are also rising, particularly following the recent escalation of conflict in Juba in July 2016. As a result, there are significant numbers of internally displaced people throughout South Sudan.

2.31 While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba (see ‘Race/Nationality’). Foreigners, non-government organisations (NGOs) and the UN have also reported that the increasing number of incidents targeted at them is limiting their ability to provide assistance within South Sudan (see ‘Civil Society Organisations’).

...

RACE/NATIONALITY

3.1 The Transitional Constitution of the Republic of South Sudan states that all ethnic and cultural communities have the right to freely enjoy and develop their cultures and practice their beliefs and customs. South Sudan, however, remains a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual’s risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.

3.2 Official and societal discrimination and violence linked to an individual’s ethnicity occurs in two distinct ways – as a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. Tensions between the Dinka and Nuer ethnic groups have been historically common in South Sudan, with relations between them being punctuated by informal inter-tribal conflict, and now direct and open conflict. The dynamics within the Dinka and Nuer ethnic groups, however, are also complex – for example, a number of Nuer sub-ethnic groups remained loyal to the Dinka-linked Government following the outbreak of conflict in December 2013. While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.

...

Dinka

3.5 The Dinka are a large group of several closely related sub-ethnic groups. Dinka are a branch of Nilotic people, who are indigenous to the Nile Valley and speak Nilotic languages. Nilotics are the majority of the population in South Sudan and are also present in northern Uganda and western Kenya. Dinka are the largest ethnic group in South Sudan accounting for an estimated 35.8 per cent of the population, and have traditionally dominated South Sudanese society. Dinka are predominantly pastoralists located in the central and northern areas of South Sudan. There are a number of sub-ethnic groups, including the Abiliang, Agar, Aliab, Atwot, Bor, Ciec, Gok, Hol, Malual, Nyarweng, Padang, Rek, Ruweng, Twic-JS and Twic-WS. Dinka males are often distinguishable by facial scarification consisting of three parallel lines across the forehead, although different Dinka sub-ethnic groups use different patterns.

3.6 Dinkas have been targeted by the Sudan People’s Liberation Army-In-Opposition (SPLA-IO) on the basis of their ethnicity, particularly in conflict-affected areas. In January 2014, witnesses in the SPLA-IO-controlled town of Bor in Jonglei State reported large-scale targeting of Dinka civilians, including attacks against the local hospital where 14 bodies were found including two pregnant women. During the same period, the SPLA-IO killed at least 13 civilians hiding in a church in Bor, including several women. Witnesses reported that the SPLA-IO also raped women seeking refuge in the church. DFAT is aware of reports that incidents of violence directed at Dinkas continue, mainly in conflict-affected areas although the Sudan People’s Liberation Movement-In-Opposition’s capacity has been weakened following the recent escalation of conflict in Juba in July 2016.

3.7 Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.

...

Sudan People’s Liberation Movement

3.24 The current leader of the Sudan People’s Liberation Movement (SPLM) is President Salva Kiir who assumed the position of First Vice President of Sudan in July 2005 following the death of John Garang. Kiir was re-elected as First Vice President of Sudan in 2010 and became President of South Sudan at independence.

3.25 Individuals associated with the SPLM are unlikely to be targeted on the basis of their political opinion in areas controlled by the Government, given the Government is dominated by the SPLM. However, the SPLM is extremely fractious internally, and individuals associated with the SPLM who express alternate political opinions may be targeted. DFAT assesses that within areas controlled by the Sudan People’s Liberation Movement-In-Opposition, individuals associated with or perceived to be associated with the SPLM, face a high risk of discrimination and violence.

...

ARBITRARY DEPRIVATION OF LIFE

Extra-Judicial Killings

4.1 While it is difficult to obtain accurate data to quantify extra-judicial killings in South Sudan, DFAT assesses that such killings continue to occur, particularly in conflict-affected areas. Human Rights Watch reported that during an April 2015 attack led by the Sudan People’s Liberation Army (and the aligned Bul Nuer sub-ethnic group) in Unity State, at least 60 unlawful killings of women, men and children occurred. Witnesses reported that victims were hung, shot and burned alive. The December 2015 State of Human Rights in the Protracted Conflict in South Sudan report by UN Mission in South Sudan and the UN Office of the High Commissioner for Human Rights indicated that at least eight men were extra-judicially killed in October 2014 by the Sudan People’s Liberation Movement-In-Opposition / Sudan People’s Liberation Army-In-Opposition after being captured from a church in Bentiu where civilians were sheltering. Reports also suggest that local militias have participated in extra-judicial killings; the December 2015 State of Human Rights in the Protracted Conflict in South Sudan stated that an unknown number of civilians were stopped and killed in May 2015 at a checkpoint outside the Malakal Protection of Civilian Camp by Shilluk militia.

...

TORTURE

4.6 The Transitional Constitution of the Republic of South Sudan states that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

...

4.8 DFAT assesses that individuals who are perceived to threaten the authority of or be associated with the Sudan People’s Liberation Movement or SPLM-IO are at risk of torture. DFAT is unable to prescribe a particular risk to an individual’s potential to experience torture or comment on the general incidence of torture, but agrees with the views of in-country contacts that it remains widespread.

...

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Arbitrary Arrest and Detention

4.10 DFAT assesses as credible reports that individuals have been arbitrarily arrested and detained. The December 2015 State of Human Rights in the Protracted Conflict in South Sudan report by UN Mission in South Sudan and the UN Office of the High Commissioner for Human Rights confirmed that both the Sudan People’s Liberation Army (SPLA) and NSS continue to arbitrarily arrest and detain individuals, often for long periods of time, and without judicial oversight.

...

STATE PROTECTION

5.1 Several areas in South Sudan are not under effective state control, owing to the broader security situation. These include areas under the control of the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and Shilluk forces, particularly in Upper Nile State and Unity State...

5.2 DFAT also understands that the Government’s ability to maintain effective control and provide adequate state protection is weak. The Government’s control over the Sudan People’s Liberation Army, National Police Service and National Security Service is limited with these groups often acting with impunity and without adequate oversight.

...

Sudan People’s Liberation Army

5.3 At independence, the Sudan People’s Liberation Army (SPLA) became the armed forces of South Sudan... The strong link between the Sudan People’s Liberation Movement (SPLM) and SPLA, which has been described as the armed-wing of the SPLM, remains highly politicised and problematic...

5.4 The SPLA has been accused of perpetrating significant abuses of power both as part of the broader conflict and at a more localised level. In conflict-affected areas, the SPLA has been accused of significant human rights abuses. In April 2015, the SPLA began an offensive in Greater Upper Nile State. Human rights organisations reported rampant human rights violations by the SPLA including torture, rape, burning of victims alive, crushing victims under tanks and destroying whole villages. In non-conflict-affected areas, SPLA soldiers beat to death a Nuer civilian in May 2014 who refused to give them cattle. In October 2014, six men including two SPLA soldiers reportedly gang-raped a 15 year old girl in Central Equatoria. DFAT is also aware of unconfirmed reports of the SPLA committing human rights abuses against civilians following the escalation of violence in Juba in July 2016.

5.5 The poor economic situation has led to soldiers not receiving their salaries and to an increase in abuses of power by the SPLA. DFAT understands that the SPLA is often able to act with impunity and without adequate oversight.

...

Conditions for Returnees

5.20 Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. ...

195. The current travel warning issued by DFAT in relation to travel to South Sudan indicates as follows:

“South Sudan overall, do not travel.

...

Armed conflict, including attacks on civilians could break out with little warning (see Safety and Security). The level of our advice has not changed. Do not travel to South Sudan.

...

Do not travel to South Sudan, including Juba, because of instability, ongoing conflict and a deterioration of law and order.

...

Further civil unrest and military action in South Sudan – Sudan border area is likely. There have been direct military confrontations between South Sudan and Sudan in border regions since early 2012.

Safety and Security

Armed conflict, civil unrest and political tension

Many thousands of people have been killed since violence began in December 2013. Fighting between armed groups across the country is ongoing. There is a serious risk of attacks on civilians by armed groups. The security situation is volatile and could deteriorate further with little warning.

High levels of intercommunal violence, cattle raids, banditry and general lack of law and order across South Sudan also threaten travellers' security. National or international events could see attacks targeting foreigners.

The border areas with South Sudan’s neighbouring countries, Sudan, Ethiopia, Kenya, Uganda, Democratic Republic of the Congo and the Central African Republic, remain particularly dangerous owing to armed conflict, military activity, tribal and other violence.

Local authorities can impose curfews, roadblocks and other security measures with little or no warning.

196. The Tribunal notes that DFAT has published the following information about South Sudan on its website:^[35]

Fighting again broke out in Juba in July 2016 after a clash between rival military factions. Riek Machar fled the country and Taban Deng Gai took the position of First Vice President, with the support of Salva Kiir. A tenuous ceasefire is holding in Juba but fighting continues in various other regions. The Intergovernmental Authority on Development, an East African bloc, has taken the lead on encouraging parties to find a lasting solution to the ongoing conflict through its High Level Revitalisation Forum process as well as bilaterally. On 5 August 2018, parties to the conflict signed the Agreement on Outstanding Issues on Governance and Security Arrangements in Khartoum, Sudan. in Khartoum, Sudan.

The humanitarian situation in South Sudan is dire. There are over four million people internally displaced or seeking refuge in neighbouring countries (Kenya, Ethiopia, Sudan and Uganda). The UN estimates that almost half of the population is facing food insecurity and in need of humanitarian assistance. Australia worked as a non-permanent member of the UN Security Council in 2013 and 2014 to mitigate the humanitarian crisis in South Sudan. This included supporting a revised mandate for the UN Mission in South Sudan (UNMISS), and prioritising protection of civilians, humanitarian assistance and human rights monitoring.

197. Based on the evidence before it, the Tribunal considers that any person living in South Sudan at the present time is at risk in terms of their personal safety. KJVC is part of a particular ethnic group, Dinka, which would make him a target with respect to the SPLM-IO. However, the Dinka are the dominant ethnic group in South Sudan and KJVC shares this ethnicity with 35.8 per cent of the South Sudanese population. The Tribunal also notes from the report that the Dinka ethnic group risk is reduced in particular areas of South Sudan, for instance in Juba where the SPLM has control and the Dinka enjoy supremacy over the other Dinka groups. The Tribunal also notes the information provided by DFAT in [5.20] of the South Sudan Country Information Report.
198. KJVC does not have any other personal attributes that are likely to make him a particular target, cause him to be singled out or make him more likely than others in the community in South Sudan of being at risk of having harm inflicted upon him. There is no evidence that any person in South Sudan would be aware that he previously served as a child soldier in the SPLA, unless KJVC chose to inform them. KJVC’s evidence is that he has no connections in South Sudan. If he returns to South Sudan, he will return as an unknown person. Further, the risks appear to increase where there is an affiliation with the SPLA-IO. There was no evidence that KJVC has ever had any such affiliation. South Sudan is presently governed by the SPLM and its President is a Dinka.
199. This is not to downplay the extreme levels of risk that exist generally at the present time in South Sudan warranting the Australian Government to warn against travel to this country. The information extracted from the South Sudan Country Report indicates the extremely high levels of dysfunction of this country and the absence of infrastructure. The report speaks of the prevalence of human rights abuses, arbitrary killings and torture that any person present in the country is exposed to. The Tribunal is conscious that KJVC would be unlikely to have access to his current psychotropic medications, which have assisted him with respect to his apparent mental health issues and to prevent relapse. He is also unlikely to have access to any psychological counselling.
200. The Tribunal considers that KJVC could greatly reduce this risk by being selective about where in South Sudan he settled. For instance, Juba would seem to be the only safe place for him to go. At the hearing, KJVC gave evidence that if he had to return, he would return to Abyei. When asked why, KJVC said he would return there “because it was his homelands”. This evidence was hard to reconcile with KJVC’s other evidence that he “no longer had any connections in South Sudan”. The Tribunal considered that there was no evidence before it indicating any reason that would prevent KJVC from returning to a part of South Sudan that was, at least in relative terms, more stable and away from certain reported regions of conflict within South Sudan at the present time, even if he was unfamiliar with such parts of South Sudan. If KJVC’s no longer has any connections in South Sudan it would seem that he is free to select the safest area to return to.
201. However, the Tribunal is satisfied that no region or city of South Sudan is safe for a person to be in at the present time. The Tribunal is satisfied for the purpose of the present application that there is a real risk of KJVC would experience Convention-based harm if he was returned to South Sudan. Accordingly, the Tribunal is satisfied that there is basis upon which to conclude that KJVC would be at risk of a specific type of harm that would trigger an international non-refoulement obligation within the meaning of paragraph 14.1 of Direction no.65, if he were to be deported to South Sudan. This weighs in favour of the Tribunal revoking the Cancellation Decision.

The strength, nature and duration of ties to Australia

202. The Ministerial 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:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. 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).

203. KJVC arrived in Australia at the age of 25 and has lived in Australia for 15 years of his life. At various times, KJVC has been employed in Australia. He has a large family living in Australia. His wife and six children, all minors, are based in Australia and do not intend to leave Australia, even if KJVC is not released back into the Australian community.
204. The Tribunal accepts from the evidence given by KJVC and Mrs KJVC that they maintain a familial relationship, despite the conflictual history that remains between them; although there is some doubt that they would cohabitate should KJVC be permitted to remain in Australia. When Mrs KJVC gave evidence at the hearing, she stated that Child 2 had hoped to live with KJVC upon his release, because she was not happy living with Mrs KJVC. For this statement to make sense, the Tribunal infers that it is not planned that Mrs KJVC will live with KJVC. The Tribunal considers that nothing turns on this as KJVC is expected to have close contact with his immediate family members whether or not he resided with them. The Tribunal accepts that Mrs KJVC would gladly receive support from KJVC as a father to her children and financial provider to their family, should KJVC be permitted to remain in Australia. Mrs KJVC is at the end of her tether needing to work long hours to provide for her many children. The Tribunal considers that it is primarily those considerations that have motivated Mrs KJVC to support KJVC’s application.
205. The Tribunal considers that KJVC has stayed in frequent contact with his children by telephone since 2015 when he was incarcerated and subsequently, held in detention. The Tribunal considers that of all of his six children, he is closest to the eldest two (Child 1 and Child 2). KJVC stated that “they know him”. Mrs KJVC also gave evidence that after KJVC speak to the children by telephone while he has been in detention that Child 1 and Child 2 will go to their room afterwards and speak about it. Mrs KJVC said that she believes that they might blame Mrs KJVC for the KJVC being in detention. In paragraphs [150] to [177], the Tribunal has referred to other evidence given about the relationships between KJVC and each his children.
206. The Tribunal considers that despite this family’s history, the children of KJVC love their father and he loves them. The Tribunal considers they have a reasonably close relationship with him and accepts that he has maintained frequent contact with them since 2015 by telephone. The Tribunal accepts that he has previously been involved with assisting them with their homework; although when KJVC was asked at the hearing the name of the school his children were attending, he was unable to say. At a general level, he was able to describe each of his children’s particular interests.
207. Child 1 gave evidence at the hearing that she “did not care” what KJVC had done and that she wanted him to be permitted to remain in Australia so he could help her mother.
208. The Tribunal acknowledges that if KJVC is returned to South Sudan, he would be without the immediate support of his only family members. KJVC may be able to maintain communication with his wife and children by telephone or video calls if KJVC is able to find employment in South Sudan and has the resources to afford a mobile phone and plan. The Tribunal has considered that it would be virtually impossible for him to provide the same level of financial support for his family members he would be able to provide if he remained in Australia.
209. The Tribunal has taken into account that it is not feasible for KJVC’s family members to visit South Sudan if he was to return there. The Tribunal considers it unlikely, both for financial reasons and also because it may present a significant personal risk to KJVC’s family members.
210. In terms of the other elements of paragraph 14.2 of Direction no.65 (for instance, paragraph 14.2(1)(a)(i)), the Tribunal notes that KJVC’s criminal offending commenced the year after he arrived in Australia. KJVC’s criminal records consists of 32 offences recorded spanning a period of ten years (from 2005 to 2015).
211. For a number of years of KJVC’s adult life, he was gainfully employed in Australia, albeit on an intermittent basis due to the interruptions caused by the four separate periods of incarceration. The Tribunal affords recognition for the work in Australia that KJVC has performed. The Tribunal accepts this evidence and considers that paragraph 14.2(1)(a)(ii) of Direction no.65 applies in this application.
212. The Tribunal concludes that the consideration under paragraph 14.2 of Direction no.65 weighs in favour of revocation of KJVC’s visa cancellation, on account of the length of time he has spent living in Australia, the contribution he has made through his years of gainful employment in Australia and his significant ties with the members of his immediate family, all living in Australia on an indefinite basis.

Impact on Australian business interests

213. KJVC gave evidence that he was not involved directly or indirectly in any business undertaking in Australia. This factor is not a relevant consideration in this application.

Impact on victims

214. Paragraph 14.4 of Direction no.65 provides that the Tribunal should consider the impact of a decision not to revoke the cancellation decision on members of the Australian community, including victims on the non-citizen’s criminal behaviour and the family members of those victims. The Tribunal considers that it is self-evident that the reference to “not” in this paragraph before the phrase “to revoke” is a typographical error and the assessment that the Minister intended is that the decision-maker consider the impact of a decision to revoke the cancellation decision on members of the Australia community including victims and their family members. If the Tribunal is wrong about this, the impact on members of the Australia community of a decision not to revoke the cancellation decision is that there will be none, as KJVC will not be released into the Australian community.
215. The Tribunal has found that there is a medium to high level risk that KJVC will re-offend. If he is released back into the Australian community, his immediate family members and other members of the Australian community, in particular road users, will be exposed to this risk and be gravely impacted by KJVC’s inability to regulate his behaviour and to control his risk-taking behaviour while his under the influence of alcohol, in the event that he suffers a relapse as he has done repeatedly in past when living in an unstructured environment. The Tribunal is aware of the impact that KJVC has had on Mrs KJVC in the past by placing her at grave risk, and by disturbing the peace within the family unit.
216. The Tribunal considers that this factor weighs against revoking the decision to cancel KJVC’s visa. If the Tribunal is wrong about its interpretation of this part of the Direction, by taking into account the typographic error referred to in paragraph [214], based on all other primary and other considerations (i.e. putting this particular consideration aside), the Tribunal would nevertheless have affirmed the decision under review.

Extent of impediments if returned to South Sudan

217. Paragraph 14.5 of Direction no.65 requires the Tribunal to consider the extent of any impediments that the Applicant may face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the Applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
218. KJVC spent all of his childhood in Sudan or the region now forming South Sudan. The Tribunal considers that there is no language barrier or cultural differences that would apply with respect to KJVC settling back into South Sudan. KJVC gave evidence that Arabic is the language used in South Sudan. KJVC speaks fluent Arabic and used an Arabic interpreter at the hearing. The Tribunal is satisfied that KJVC is intimately familiar with and in fact, continues to live by, various aspects of South Sudanese culture. This was demonstrated by KJVC when he explained why he had not sought or received counselling by a psychologist or psychiatrist earlier than he did because of the stigma attached to doing so “in his culture”.
219. It is no doubt the case that KJVC will face many significant challenges and risks if he was to return to his home country. The South Sudan Country Report and DFAT’s current travel warnings indicate some improvement in the security levels in some areas. However, it is still an extremely volatile and dangerous place to visit and live in. It remains a country riddled with conflict and ongoing tensions between the current government and government in opposition, and between the various ethnic groups. Massacres, including arbitrary killing, and human rights abuses are common place. Life does not seem to hold much value. Many community members struggle to afford a home, to eat and to drink fresh water. The welfare system is virtually non-existent and health services poor or not available.
220. The Tribunal considers that KJVC prospects of finding employment in South Sudan to support himself are poor because of the high rate of unemployment and because KJVC says he has no existing connections in South Sudan. However, the Tribunal considers KJVC’s prospects are not hopeless, for the following reasons:
     • (a) while KJVC is middle-aged, he is not old and presently enjoys good health by his own admission, provided he does not relapse; and
     • (b) KJVC is fortunate to have gained the experience of running a successful small business and by working in the construction and cleaning industry and at an abattoir. He has completed Year 12. There is no language barrier and in fact, his English is much improved by comparison to others living in South Sudan, given that he has been living in an English-speaking country for the previous 15 years. This should also stand KJVC in good stead to find employment. His previous work experience arms him with a solid skill-base from which he is likely to be competitive in his search for employment in South Sudan compared to other less experienced candidates. It was not evident from observing KJVC give evidence at the hearing, that he lacked the necessary interpersonal skills to enable him to impress prospective employers or to establish new personal and employment networks in South Sudan.
221. If KJVC is returned to South Sudan involving a physical separation from his family, the Tribunal recognises that this may result in a deterioration of KJVC’s mental state. In turn, this may result in KJVC relapsing and the resumption of KJVC consuming alcohol to excess. The Tribunal acknowledges that KJVC would not have available to him rehabilitation options, continuing medications and counselling services to assist him. In this regard, the Tribunal recognises that it is a potential and siginifcant impediment that KJVC in particular may face, when attempting to settle in South Sudan.
222. The Tribunal has taken into account all of the matters above and recognises that on balance, KJVC will face significant impediments if he returns to South Sudan, primarily due to a lack of personal networks and the likely absence of appropriate rehabilitation or medical support, in establishing himself and maintaining basic living standards in South Sudan. For this reason, the Tribunal considers that his factor weighs in favour of the Tribunal revoking the Cancellation Decision.

CONCLUSION

223. Regrettably, KJVC has not succeeded, until recently, to abstain from his alcohol habit or addiction. This has resulted in entrenched violent criminal behaviour towards Mrs KJVC and in placing road users in the Australian community at an unacceptable risk of harm. When opportunities were provided to KJVC in his life to make changes, they were not sufficiently taken up or put into practice by him on a sustainable basis. The Tribunal does not accept the evidence presented that he was not provided with such assistance. Australian laws and specific orders directed at KJVC for the protection of others in the Australian community, have been have been repeated ignored and contravened by KJVC.
224. The Tribunal has not reached its decision in this application without considerable deliberation, given that:
     • (a) KJVC’s six children and wife are and will continue to live in Australia indefinitely and the impact the decision will have on them;
     • (b) KJVC has spent the last 15 years living in Australia as an adult;
     • (c) KJVC has spent many years working in Australia and made a contribution in that regard;
     • (d) the Tribunal has found Australia owes non-refoulement obligations to KJVC; and
     • (e) KJVC will face significant impediments if returned to South Sudan.
225. The Tribunal is also mindful that if KJVC is deported, he will be without the emotional support of his family and they are unlikely to visit him. KJVC will be required to build a life from no base or connections upon his return to South Sudan. KJVC has experienced significant issues with alcohol abuse which also makes him vulnerable, should he suffer a relapse.
226. KJVC contends that he has changed and that he will no longer offend. The Tribunal hopes this proves to be correct. The Tribunal acknowledges that KJVC has shown in recent times, a successful and commendable abstinence from alcohol or from engaging on criminal or other serious conduct while in prison/detention. However, it is still untested as to whether he will be able to maintain this in the absence of living in a structured setting. KJVC has experienced a number of relapses following four previous periods of incarceration, after he had a lengthy time to reflect.
227. However, there was insufficient evidence before the Tribunal to be satisfied that KJVC will not relapse and avoid re-offending upon being released into the community. Instead, the Tribunal is satisfied that there is a medium to high level risk of KJVC re-offending. KJVC appeared resistant to participation in rehabilitation and accepted that he had not undertaken counselling until recently, citing cultural reasons for why he did not do so, specifically because of the stigma attached to engaging in such activity.
228. The Tribunal considers that KJVC’s level of insight into his offending behaviour was existent, but limited. He was not assisted by the fact that he could not remember a lot of what he had done because he was intoxicated. At times, he also sought to downplay his culpability in the situations he found himself in. At others time, he complained about why he had not been helped by others.
229. The Tribunal considers the offences committed by him were very serious. They resulted in KJVC serving four terms of imprisonment. KJVC’s offences exposed others in the Australian community to a grave risk of physical and psychological harm; most notably, his immediate family.
230. The Tribunal is satisfied that the Australian community would expect to be protected from KJVC and that KJVC’s family had a right to be protected from such criminal activity. Particularly, considering that KJVC has been afforded past opportunities for reform by having been imprisoned previously, and through corrective orders and rehabilitation programs.
231. The Tribunal concludes that the primary considerations of “protection of the Australian community from criminal or other serious conduct” and “the expectations of the Australian community” outweigh, the other primary consideration of the “best interests of minor children” (in relation to each one of KJVC’s six children) and the three other “other considerations” in favour of revoking the visa cancellation, which include “international non-refoulement obligations”, “strength, nature an duration of ties”; and “extent of impediments if removed”.
232. In light of the findings made in these Reasons for Decision, the Tribunal concludes that there is not another reason why the Cancellation Decision should be revoked.
233. For the reasons set out above, the Tribunal affirms the decision of the delegate of the Minister not to revoke the cancellation of KJVC’s Visa.

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

Associate

Dated: 15 February 2019

^[1] The Tribunal made on order on 7 February 2019 under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to restrict the publication of the name of the Applicant; to allocate the pseudonym “KJVC” in place of the Applicant’s name; and to omit details of any other persons or places which might reveal the identity of the Applicant. The Tribunal considered it appropriate to do so in order to protect the privacy of the applicant’s wife and six children, as the decision will refer to a number of incidents of domestic violence.

^[2] A person affected by a decision not to revoke a mandatory visa cancellation may file an application for review with the Tribunal under s 500(1)(ba) of the AAT Act.

^[3] Refer G-Documents G17.

^[4] Section 499(1) of the Migration Act 1958 (Cth) (Act) empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) provides that a person or body having those functions or powers under the Act must comply with such directions. On 22 December 2014, the Minister issued Direction no.65 under s 499(1).

^[5] At the time KJVC was born, Town X was situated in the Republic of Sudan (Sudan). South Sudan gained independence in 2011. Town X is now situated in South Sudan.

^[6] Refer G-Documents G12/72 – paragraph [9] of KJVC’s Statutory Declaration signed 6 October 2016.

^[7] Refer Exhibit “THD2” at paragraph [2.32] of DFAT Country Information Report Sudan issued on 27 April 2016 (Sudan Country Report) indicating that Abyei is a contested region situated between Sudan and South Sudan.

^[8] Refer Exhibit “THD1” at paragraph [2.1] of DFAT Country Information Report South Sudan issued on 5 October 2016 (South Sudan Country Report).

^[9] Refer G-Documents G3/24-29.

^[10] Refer G-Documents G26/165-151.

^[11] Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court may make an order directing the offender to enter into a good behaviour bond for a specified term no longer than five years, instead of imposing a sentence of imprisonment on an offender.

^[12] KJVC was originally sentenced to 12 months imprisonment. KJVC lodged a severity appeal. As a result of this appeal, the sentence was reduced to a 10-month imprisonment term.

^[13] KJVC was originally sentenced to 12 months imprisonment. KJVC lodged a severity appeal. As a result of this appeal, the sentence was reduced to a 10-month imprisonment term.

^[14] Section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been repealed. Previously, it empowered a court to suspend a sentence of imprisonment and direct that the offender be released from custody on condition that they enter into a good behaviour bond for a term not exceeding the term of the sentence.

^[15] The court originally sentenced KJVC on 19 January 2011 to 6 months’ imprisonment for Offence 22 and 12 months imprisonment for Offence 23 with a non-parole period of 8 months and release to be subject to supervision. KJVC lodged a severity appeal following which the terms of imprisonment were reduced to one and three months respectively.

^[16] KJVC lodged a severity appeal. On 15 April 2011, the convictions were confirmed.

^[17] KJVC lodged a severity appeal. The court confirmed the sentencing orders made against KJVC.

^[18] Refer G-Documents page 107.

^[19] Refer G-Documents pages 108 to 110.

^[20] Refer Annexure B attached to Minister’s Closing Submission.

^[21] Refer Annexure C to the Minister’s Closing Submission.

^[22] Refer Annexure “U2” to the Cancellation Decision lodged with the Tribunal on 11 November 2015 with KJVC’s application for review.

^[23] Refer G-Documents G16.

^[24] Refer paragraph [72] in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2015) 351 ALR 61.

^[25] Refer G-Documents G9/49-52.

^[26] Refer https://www.ebs.tga.gov.au/ebs/picmi/picmirepository.nsf/pdf?OpenAgent&id=CP-2010-CMI-06550-3&d=201902141016933

^[27] The Tribunal also notes the information and support for KJVC as provided by The Community of Southern Sudanese and Other Marginalised Area (CSSAOMA) Inc NSW – refer G-Documents G15/86-88.

^[28] Refer paragraph [14] of KJVC’s Witness Statement.

^[29] Refer G-Documents G11/63-70.

^[30] This approach was endorsed by Kenny J recently in FKP15 v Minister for Immigration and Border Protection [2017] FCA 1555 at [34] and [35].

^[31] See Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513.

^[32] Section 36 of the Act sets out when protection obligations will arise. Relevantly:

(1) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or ...

^[33] Refer G-Documents G11/69.

^[34] Refer G-Documents G12/72.

^[35] Refer https://dfat.gov.au/geo/south-sudan/pages/south-sudan.aspx.