Ba and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2507
•20 June 2024
Ba and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2507 (20 June 2024)
Division:GENERAL DIVISION
File Number: 2021/8838
Re:Mouhamadou Ba
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 20 June 2024
Date of written reasons: 16 July 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 16 November 2021 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
..........................[SGD]..........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal - non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – alcohol addiction – family violence- risk of recidivism found to acceptable – best interest of minor child – where the child is in foster care - where factors against revocation outweighed by factors in favour - Tribunal finding there is another reason to revoke the mandatory cancellation decision - decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Home Affairs (2020) 278 FCR 627
Bartlett v The Minister for Immigration and Boarder Protection [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Khalil v Minister for Home Affairs (2019) 271 FCR 326
M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB v Minister for Immigration and Border Protection [2017] AATA 1561Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
16 July 2024
INTRODUCTION
Mr Mouhamadou Ba (‘the Applicant’) is a 48-year-old citizen of Mauritania. He first arrived in Australia on 6 May 2008 when aged 33 years. He arrived here on a Refugee and Humanitarian Class XB visa and then he was later granted a Subclass 155 Five Year Resident Return visa (‘the Visa’). His movement history indicates that apart from a
three-month period of absence from 29 August 2017 to 17 November 2017 when he went to Senegal, the Applicant has remained in Australia on a continuous basis since his initial arrival in 2008.[1] He has spent something like 16 of his 48 years in Australia which means he has spent a third of his life in this country.
[1] R1, p 135.
PROCEDURAL HISTORY
The Applicant’s Visa history in this country has transpired thus:
·8 September 2020: he was notified of the mandatory cancellation of his Visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);
·15 September 2020: the Applicant made representations seeking revocation of the abovementioned mandatory cancellation decision;
·17 November 2021: a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·19 November 2021: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;
·9 February 2022: this Tribunal (differently constituted) affirmed the Decision Under Review; and
·27 October 2022: the Federal Court of Australia (per Colvin J) dismissed the Applicant’s application for judicial review of the previous Tribunal’s decision made on 9 February 2022; and
·22 May 2023: the Full Court (per Bromwich, Snaden and McElwaine JJ) quashed the previous Tribunal’s decision made on 9 February 2022 and remitted it for reconsideration by this Tribunal.
This proceeding therefore comprises the second ventilation of this application before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for present purposes. However, this second ventilation is a hearing de novo or a hearing anew. The Tribunal’s task is, by definition, a stand-alone merits-based review of the totality of the evidence adduced at the first ventilation in this Tribunal and now in this second one.
The instant hearing proceeded before me by video[2] on 29, 30 April 2024 and 6 June 2024 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[3] which is attached to these Reasons and marked as ‘Annexure A’. This Hearing received oral evidence from:
·the Applicant;
·Ms Aminata Toumbou, a past acquaintance of the Applicant;
·Mr Chekh Ba, the Applicant’s brother; and
·Dr Michael Robert Davis, consultant forensic clinical psychologist.
[2] That is to say, all parties appeared before the Tribunal by video including the Applicant plus the respective representatives and the witnesses, both lay and expert, who gave evidence on behalf of the Applicant. The Respondent did not adduce any evidence via a witness.
[3] Transcript, p 2, lines 17-30.
The previous ventilation of this matter was conducted under Ministerial Direction 90. It was superseded by Ministerial Direction 99 on 3 March 2023. The instant ventilation before me was conducted during the currency of Ministerial Direction 99.[4] On 7 June 2024 the Respondent signed a new Ministerial Direction 110 which was stated to take effect on and from 21 June 2024. Given this change in Ministerial Direction I caused a short-form decision to be duly published to the parties on 20 June 2024 such as to ensure this Tribunal made a decision pursuant to the prevailing Ministerial Direction that applied during the ventilation of this application before me on 29 and 30 April 2024 and 6 June 2024.
[4] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Attached to these Reasons and marked ‘Annexure B’ is a true and correct copy of that short-form decision. Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326,[5] I now publish my detailed written reasons within a reasonable time after publication of my short–form decision.
[5] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48]. For present purposes, I caused the short-form decision to be published on 20 June 2024 so as to ensure the parties had their matter determined in accordance with the Ministerial Direction that prevailed at the time they ventilated the instant application before me.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[6] He was sentenced to a custodial term of imprisonment for 22 months on 3 September 2020.[7] This head custodial term comfortably meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[6] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[7] R1, pp 33-34.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa, the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[8]
[8] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Before considering the above two elements: (1) nature of seriousness of the conduct; and (2) recidivist risk it is pertinent to reach an understanding of the nature and totality of the Applicant’s unlawful conduct in this country.
The Applicant’s offending – an overview
The parameters of the Applicant’s offending may be stated as follows:
·total number of offences: 30;
·total offending period (in terms of sentencing episodes): February 2010 – September 2020;
·total number of sentencing episodes: 18;
·total head custodial time imposed during the sentencing history: 22 months;
·totality of fines imposed during the sentencing period: $11,250; and
·total period of disqualification from driving: 57 months (or six years and seven months).
The nature of his offending comprises the following:
·driving offences:15;
oof these 15 driving offences six of them were for drink-driving, five of which were in the middle range and one in the low range;
·property offences: four;
othese four offences were convicted as ‘gains benefit by fraud (x2)’ and ‘stealing (x2)’.
·violent offending: three;
othese three offences were convicted as ‘being armed or pretending to be armed in a way that may cause fear (x1)’ and ‘acts of omission causing bodily harm to any person (x2)’.
·regulatory-type offences: eight;
othese offences were convicted as ‘disorderly behaviour in public (x1)’, ‘false name (x1)’, ‘breach of police order (x3)’, ‘give false personal details to police (x1)’, ‘fail to obey order given by an officer (x1)’ and ‘breach of bail (x1)’.
The criminal history indicates the first 28 of the Applicant’s convictions were exclusively punished by way of the imposition of monetary fines with nine of those imposed fines being accompanied by a period of disqualification from driving. The sole custodial term he received arose from respective convictions imposed by the Perth District Court on
3 September 2020 on two counts of ‘acts or omissions causing bodily harm or danger to any person’. The head custodial term was 22 months. The learned sentencing Judge, Her Honour Justice Gillan DCJ, noted the following in formulating a regime of sentencing for the Applicant:
‘Now, you entered pleas of guilty on 5 May 2020. And it’s been conceded by the State that your plea of guilty was at the earliest reasonable opportunity. And you will get a substantial discount for that. And I also accept that you are remorseful and sorry for you actions. I accept that because you don’t have prior offences of violence, and because of your guilty plea, and because of what you told the pre-sentence report writer.
I’ve considered some other issues. For instance, your risk of reoffending. I don’t think that you are a significant risk of reoffending in this way, as long as your alcohol consumption is under control. So that’s something that you are going to have to continue to work on.’[9]
[9] R1, p 40.
The learned sentencing Judge (1) thought it appropriate to impose a term of immediate imprisonment but (2) did give some thought to a future release of the Applicant on parole:
‘And I’ve come to the conclusion, as I’ve already told you, that a sentence of 22 months is appropriate in your case.
I have backdated it to 7 September 2019. I will make you eligible for parole. Now, whether you get parole or not, Mr Ba, is a matter for the Parole Board. I’m just making you eligible but it’s for them to decide if you should get parole or not.
Now, notwithstanding the concession that was made by Mr Cuomo [the Applicant’s then-legal representative] that this should be a term of immediate imprisonment, I did turn my mind to whether I could suspend your term of imprisonment and I came to the conclusion that your offending is simply too serious for that to be an option. Okay? But I did give it some thought.’[10]
[10] R1, p 42.
Unfortunately for the Applicant although he made an application for parole, it was denied on 29 October 2020.[11] The Applicant’s parole ‘…was denied due to unmet treatment needs, and release plan not adequately addressing unmet treatment needs’.[12] As best as I understood the Applicant’s history of removal from the Australian community, he (1) went into custody in September 2019; (2) was sentenced to a term of 22 months imprisonment on 3 September 2020, backdated to 7 September 2019; (3) served the remainder of his custodial term until July 2021; and (4) was then taken into immigration detention where he has since remained.
[11] R1, p 257.
[12] R1, p 258.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
The chapeau to paragraph 8.1.1(1)(a) of the Direction contains the ‘very serious’ descriptor to certain conduct categorised as (1) violent and/or sexual crimes;[13] (2) crimes of violence against woman or children;[14] and (3) acts of family violence.[15] It is worth quoting the sentencing remarks of Judge Gillan DCJ who described the Applicant’s conduct giving rise to his two convictions for ‘Acts or omissions causing bodily harm or danger to any person’ in these terms:
‘First of all I’m going to say the facts on which I sentence you. At the time of the offending you and [Ms T] had been in a family and domestic relationship for over five years although you had separated by that time. Nevertheless, you remained friendly and on 7 September 2019 you were at her house and you were at her house with a mutual friend, [Ms M].
Okay. When [Ms T] returned home she found both of you in her house and she became upset by this and demanded that [Ms M] leave, which she did. [Ms T] then confronted you about both of you, you and [Ms M], being in the house and an argument broke out during which [Ms T] threw a jar of sauce at you which smashed against the living room wall and some sauce landed on you.
You then went towards [Ms T] and she moved backwards towards the back door in the bathroom. You broke a bottle on the coffee table and continued after her and you held the broken wine bottle in your hand and put it to [Ms T] ‘s throat. This caused four cuts to her neck and throat area which started bleeding and she began screaming.
You left the house and flagged down [Ms M], who was in her car, and you got in and asked [Ms M] to take you home. [Ms T] was taken to hospital where she was treated for a cut to the left side of her face just below her ear, a cut to the left side of her face along the jaw line, a cut on her neck below her jaw and a cut on her neck above her collar bone. She had surgery to repair the cuts.’[16]
[My emphasis and underlining]
[13] Paragraph 8.1.1(1)(a)(i) of the Direction.
[14] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[15] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[16] R1, pp 38-39.
Further in the learned sentencing Judge’s reasons, Her Honour said:
·‘….I cannot impose a term of imprisonment unless I am of the view that that’s the only option available to me, and that no other lesser sentence properly reflects the degree of your criminality…’;[17]
·‘So I am of the view that a term of imprisonment would be necessary for what you did. What you did was very serious…’;[18]
·‘So this is a crime of considerable violence committed while you were angry and you had been drinking and it was in her [Ms T’s] home where she was entitled to feel safe.’[19]
[My emphasis and underlining]
[17] R1, p 41.
[18] R1, p 41.
[19] R1, p 41.
Pursuant to paragraph 8.1.1(1)(a) of the Direction and consistent with Judge Gillan’s DCJ sentencing remarks, I am comfortably satisfied that the Applicant’s offending against Ms T for which he was sentenced on 3 September 2020 must be categorised as offending of a ‘very serious’ nature.
The chapeau to paragraph 8.1.1(1)(b) of the Direction contains the descriptor of ‘serious’ to certain modalities of conduct perpetrated by a non-citizen. Having regard to the auspices of this paragraph it is clear that the Applicant has no convictions for causing a person to enter a forced marriage[20] and that he likewise has no convictions for any offending during his time in immigration detention.[21] To the best of my understanding of his offending history, none of it comprises conduct forming the basis of a finding by me that he does not pass an aspect of the character test dependant on my opinion.[22]
[20] Paragraph 8.1.1(1)(b)(i) of the Direction.
[21] Paragraph 8.1.1(1)(b)(iv) of the Direction.
[22] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, the Applicant does have respective convictions for ‘breach of police order (x3)’, ‘give false personal details to police (x1)’ and ‘fail to obey order given by an officer (x1). This is plainly offending against government representatives or officials (i.e. the Police) due to the position they hold or in the performance of their duties.[23] As such, the descriptor of ‘serious’ contained in paragraph 8.1.1(1)(b) of the Direction must be applied to this conduct.
[23] Paragraph 8.1.1(1)(b)(ii) of the Direction.
Paragraph 8.1.1(1)(c) of the Direction requires an examination of the sentences imposed on the Applicant as a guide for the assessment of a non-citizen’s offending. The Applicant’s abovementioned appalling attack on Ms T is conduct precluded for the purposes of this paragraph 8.1.1(1)(c). This means I cannot take into account Judge Gillan’s DCJ custodial sentence of 22 months as a sentence that could now speak to the nature and seriousness of the Applicant’s conduct.
That is a very fortuitous outcome for this Applicant because, as I mentioned earlier, only the 29th and 30th of these 30 offences were punished by a custodial term of imprisonment. The preceding 28 convictions all involved the imposition of fines (albeit to a cumulative value of $11,250) with nine of those 28 fines being a disqualification from driving for a cumulative period of 57 months. Despite this extensive list of sentencing by fines and disqualification from driving, these sentences cannot be found to as significant as a head custodial term of 22 months.
Therefore, the logical finding for the purposes of paragraph 8.1.1(1)(c) is that the sentences the Applicant has received for his non-precluded offending militate in favour of a finding that his offending has been of at least of a ‘serious’ nature. If it were possible to include the 22 month head custodial term, I would have no difficulty in finding his offending to be ‘very serious’.
Paragraph 8.1.1(1)(d) of the Direction looks at the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. Has the offending been frequent? The short answer is ‘yes’. This is an offending history running for about 10 years. It saw the commission of at least three offences per annum. He was delt with on 18 separate sentencing episodes which means he was before sentencing courts between one and two occasions for the period of the offending history. This is plainly frequent offending.
Is there a detectable trend of increasing seriousness? Again, the short answer is ‘yes’. During the period of February 2010 - May 2020, the Applicant compiled 28 convictions for (1) driving offences (including drink-driving); (2) regulatory-type offences; and (3) property offences (including fraudulent conduct). As mentioned, all of this offending was exclusively punished by fines and on nine occasions those fines were accompanied by an order disqualifying the Applicant from driving. There follows the appalling offending on Ms T for which the Applicant received a 22-month head custodial term. There is, to my mind, a significant leap in the seriousness of the offending by the time we reach the two convictions imposed by Judge Gillan DCJ on 3 September 2020.
This paragraph 8.1.1(1)(d) of the Direction strongly militates in favour of a finding that the totality of his offending should now be found to be ‘very serious’.
Paragraph 8.1.1(1)(e) looks for any cumulative effects to be gleaned from the Applicant’s pattern of offending. The Applicant’s criminal history does, to my mind, indicate the following cumulative effects that can be taken from it:
·failure to understand the lawful and regulatory requirements relating to the ownership, management and control of a motor vehicle on Australian carriageways: the Applicant has abjectly failed to understand and respect the laws and regulations relating to driving a motor vehicle on Australian roads. Those failures can be seen in his respective convictions for ‘unauthorised driving’ , ‘fail to transfer vehicle license’, ‘no authority to drive’ and ‘unlicensed vehicle’;
·drink-driving: I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle.[24] This of course includes drink-driving which adversely impacts a driver’s capacity to control a vehicle. One need look no further than the constant media campaigns against drink-driving whose consequences all too often carry tragic outcomes;
·no respect for lawful authority: the Applicant wants a visa to re-enter the Australian community. While he wants what he thinks are his rights to a visa respected, his criminal history is clearly and obviously demonstrable of someone who offers nothing by way of respect for the lawful authority governing the Australian community back into which he now seeks re-admission. There is no other way to view his respective convictions for ‘breach of police order (x3)’, ‘give false personal details to police (x1)’, ‘fail to obey order given by an officer (x1)’ and ‘breach of bail/ fail to appear (x1)’;
·property-type offending: the Applicant has two convictions for ‘stealing’ and another two convictions for ‘gains benefit by fraud’. Members of the Australian community are entitled to enjoy their lawfully acquired items of property without unauthorised and unlawful interference from others. The right to acquire and enjoy property is fundamental to the Australian community’s way of life. Conduct amounting to depravation of that property is serious and significant. Where that conduct involves a precursory element of fraud, the offending becomes still more significant;
·violent offending against a woman: there is no need to repeat the nature of the Applicant’s conduct perpetrated on Ms T. Violent offending against women is an abhorrent scourge that must be eliminated from the fabric of the Australian community. The Applicant cannot be heard to say anything in mitigation. He could have quite realistically killed Ms T. That is the blunt reality;
·consumption of the community’s resources: I again refer to the number of offences committed by this Applicant (30) and the number of sentencing episodes required to deal with it (18). There is nothing to cavil with the finding that this Applicant’s offending has well and truly consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. The Australian community should not be reasonably expected to tolerate such a burden.
[24] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].
These cumulative effects of the Applicant’s repeated offending cause this paragraph 8.1.1(1)(e) to militate in favour of a finding that the totality of the Applicant’s offending should now be found to be ‘very serious’.
It seems common ground between the parties that paragraphs (f), (g) and (h) are not relevant to the instant determination. I agree and will put these paragraphs to one side for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is a multitude of harms that the Australian community would experience if this Applicant resumed his pattern of offending from the past. First, were he to again fail to meet the lawful and/or regulatory requirements relating to the ownership and/or operation of a motor vehicle, the community’s policing and judicial sentencing resources would again be needlessly consumed by conduct the Applicant could easily remedy by a simple visit (in person) to his state Transport Department (or equivalent) or, even more likely in this digital age, the Applicant could remedy that conduct by meeting these lawful/regulatory requirements online.
Second, I do not need to verbalise the now decades-long governmental campaign against the often dreadful and/or fatal consequences of drink-driving. Were he to repeat this conduct, the Applicant could fatally hurt himself, other road users (be they passengers or drivers) as well as pedestrians merely accessing a thoroughfare on foot. Recommission of such conduct can realistically have catastrophic consequences. Third, the community’s respective apparatus in the realm of policing and even judicial sentencing would again be consumed were he to recommit of any of the balance of his offending.
Fourth, were the Applicant to recommit his property-type offences, members of the Australian community would again be deprived of ownership and enjoyment of the property they have worked hard to acquire. Those victims would suffer measurable material loss. Finally, were the Applicant to recommit his appalling violence against another female victim, of the same type and fashion as the conduct perpetrated on the very unfortunate Ms T, it is not at all a stretch of the evidence to suggest (and find) that catastrophic and fatal consequences would befall such a victim.
To summarise, I am satisfied that were the Applicant to recommit his past offending, the nature of the harm it would cumulatively represent to either individual victims and the Australian community more generally would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources;
(2) measurable material and/or financial harm; (3) psychological harm; (4) actual physical harm; and (5) quite conceivably, catastrophic harm.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending convicted as (1) ‘Acts or omissions causing bodily harm or danger to any person’ (i.e. the very violent offending against Ms T) is so serious that any risk of its recommission would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Applicant’s evidence
The Applicant gave both oral and written evidence to the instant Hearing. In terms of his physical health, he refers to suffering from a disease to his liver which he claims to be the result of drinking contaminated water in Senegal. He also claims to suffer from migraine headaches. He is taking medication for both of these conditions although he has not received any diagnosis for what may be causing his migraines.
In terms of his mental health, he says that he has spoken with a psychiatrist during his time in immigration detention, both on a face-to-face basis and via telephone. He consulted with this psychiatrist in the latter part of 2023. He is unable to recall whether he had any treatment and/or counselling during his time in immigration detention. He says his memory and concentration are not what they were and that he now tends to forget a lot of things, particularly since he has gone into immigration detention.
He is of an artistic bent. He occupies himself in immigration detention with writing, painting and the making of leather goods which he says are activities keep him active and provide with some kind of skill base. The material contains photographs of the leather of good he has made.[25]
[25] A2, p 22-37.
He readily acknowledges his past difficulties with the law in Australia and says that ‘it is something I deeply regret and am ashamed of’[26]. He has come to the realisation that when ‘I came to this country and it was my fault that I didn’t appreciate the riskiness and dangerousness of my behaviour’.[27] He acknowledges his very serious violent offending against Ms T. In particular he confirms ‘I was intoxicated when the incident occurred but I fully accept responsibility for my actions.’[28]
[26] A2, p 9 [65].
[27] A2, p 9 [65].
[28] A2, p 9 [67].
He has realised the extent to which alcohol has been the principal predispositive factor behind his offending: ‘Looking back at that period in life I can see how much alcohol played a part in my offending behaviour and it [sic] something I have worked to address while I served my prison sentence and since being placed in detention.’[29]
[29] A2, pp 9-10 [67].
In terms of his current recidivist risk the Applicant’s position is as follows:
‘68.I no longer pose a risk of harm to the Australian community as I have dealt with my drinking problem and taken courses to help me understand the nature of my offending. My offending for which I was sentenced was serious as it was against a woman I was previously in a relationship with and is therefore considered to be in the nature of family violence given our past history and their issues we had when we were together.’[30]
[30] A2, p 10 [68].
He attributes this self-reported level of rehabilitative risk mainly to the extent of the rehabilitation he has undertaken to date. Those courses, says the Applicant, have (1) helped him to manage his predisposition towards anger; (2) to cope with life’s stressors; and (3) to better understand how to treat women in his relationships with them. This third part of his rehabilitation has taught him to now understand the serious consequences of both his conduct and the equally serious basis on which orders for domestic violence have been made against him. He now claims to realise that ‘I know that I must comply with the orders and not breach the intervention orders.’[31]
[31] A2, p 10 [69].
He claims to have identified past trauma resulting from his previous life in both Mauritania and Senegal and that he has ‘…only now sought out help to cope with the mental suffering I have experienced as part of my trauma.’[32] He is of the belief that this trauma ‘…was an underlying factor in my prior offending and is something that I have worked hard to realise and take steps to overcome.’[33]
[32] A2, p 10 [70].
[33] A2, p 10 [70].
He claims to have arrived at certain realisations at this stage of his life, principal of which has been a requirement to resolve his abuse of alcohol:
‘71. My time spent in prison was a wake-up call for what I needed to fix in my life and made me confront and deal with my issues with alcohol in particular. I have learnt a lot about my own behaviour and my thinking has definitely changed now that I understand why I use alcohol. Everything is within my control and I have developed the understanding around how to cope without using alcohol.’[34]
[34] A2, p 10 [71].
In terms of his rehabilitation completed while in immigration detention, he provides the following list of programs:
‘a. Life Skills – Alcohol and Drugs Education Program, November 2021;
b. Anger Management 101, 12 April 2023;
c. Drug and Alcohol Abuse 101, 12 July 2023;
d. Domestic Violence 101, 26 July 2023; and
e. Men’s Group Personal Development and Behaviour Change Program, November
2021.’[35]
[35] A2, p 10 [73].
During his period in prison he claims to have completed the following courses of education:
‘a. Use Mathematics at EGE Level 1, 11 June 2020;
b. Use Mathematics at EGE Level 2, 06 July 2020;
c. Use Mathematics at EGE Level 3, 04 August 2020;
d. Read and Write at EGE Level 1, 8 July 2020;
e. Read and Write at EGE Level 2, 26 August 2020;
f. Read and Write at EGE Level 3, 9 September 2020;
g. Prepare to Work Safely in the Construction Industry, 03 September 2020;
h. Complete Basic Forms, 20 August 2020;
i. Apply Basic Computer Skills to Language Learning, 26 August 2020;
j. Apply Workplace Health and Safety Concepts, 25 February 2020;
k. Use Hygienic Practices for Food Safety, 25 August 2020;
l. Prepare for the Learner’s Permit Test, 23 December 2019; and
m. Career Development Workshop, 8 March 2021.’[36]
[36] A2, p 11 [74].
He claims to have had an epiphany with regard to his past difficulties with alcohol. He says he has not consumed alcohol at any time during his period in immigration detention and ‘the last time I drank alcohol was the day I was arrested 6 June 2019.’[37] He now says protective factors against any risk of a return to abusing alcohol are to be found in:
·his family: ‘…my family will not accept or tolerate my drinking alcohol…’;[38]
·his faith: ‘…I pray 5 times a day with the Quran and every Friday I get the opportunity to attend mosque. My faith has kept me strong this time’;[39]
·self-realisation about the benefits of abstaining from alcohol: ‘Being away from alcohol has helped me a lot with my health, my mind and my spirit.’;[40] and
·his child in Australia and his two children in Senegal: ‘…I also have my children to think about and need to make sure that I am able to continue supporting them. I want to be able to support [Child W] [41] and play a parental role in her life. I want to be able to bring my two sons[42] to Australia and for the three of my children to meet and know each other and have me in their lives as their loving father.’[43]
[37] A2, p 11 [75].
[38] A2, p 11 [75].
[39] A2, p 11 [75].
[40] A2, p 11 [75].
[41] The Applicant’s nine-year-old biological child in Australia.
[42] The Applicant’s two biological children in Senegal, Child K (born 2006) and Child S (born 2017).
[43] A2, p 11 [76].
It returned to the community the Applicant has plans to reside with his brother and the brother’s wife and daughter. This, he says, will facilitate his search for ‘a stable job and help [his brother] with the rent.’ In terms of employment prospects if returned to the community, the Applicant says ‘I did some prison courses that would help me work in the mines and I have their reference numbers that I can call on release.’[44]
[44] A2, p 11 [77].
The sentencing remarks of Judge Gillan DCJ
The learned sentencing Judge Gillan DCJ made the following observations about the personal disposition of the Applicant:
‘Now, it seems to me that you’re clearly an intelligent man, Mr Ba. You’re fluent in five different languages as well as sign language which you learned in order to talk to you mother who was deaf. And, having moved to Australia, you have studied English at TAFE as well as undertaking a painting course.
And you’ve had a history of employment in a number of different positions including painting and forklift driving and as a photographer, and you were a delivery driver at the time of this incident.’[45]
[45] R1, p 39.
Her Honour Judge Gillan DCJ also noted that although the Applicant appeared before Her Honour for sentencing on 3 September 2020, he had actually entered timely pleas of guilty to the two charges at the earliest reasonable opportunity four months earlier on 5 May 2020. Her Honour accepted the Applicant’s remorse and that he was sorry for his offending. In terms of recidivist risk, the learned sentencing Judge did not think the Applicant represented ‘…a significant risk of reoffending in this way, as long as your alcohol consumption is under control’. Her Honour thought the Applicant’s control and management of his predisposition to abuse alcohol remained a work in progress:
‘Now, you entered pleas of guilty on 5 May 2020. And it’s been conceded by the State that your plea of guilty was at the earliest reasonable opportunity. And you will get a substantial discount for that. And I also accept that you are remorseful and sorry for you actions. I accept that because you don’t have prior offences of violence, and because of your guilty plea, and because of what you told the pre-sentence report writer.
I’ve considered some other issues. For instance, your risk of reoffending. I don’t think that you are a significant risk of reoffending in this way, as long as your alcohol consumption is under control. So that’s something that you are going to have to continue to work on.’[46]
[My emphasis and underlining]
[46] R1, p 40.
Department of Justice, Western Australia: ‘Risk of reoffending prison version’
In the abovementioned quote from Judge Gillan’s DCJ sentencing remarks there is reference to ‘…because of what you told the pre-sentence report writer’. I searched the material for this pre-sentence report but could only find the document I have described at the heading to this paragraph. The difficulty with that document is that it purports to have been ‘Created’ on 16/11/2020 and ‘Performed’ also on 16/11/2020. Yet Judge Gillan’s sentencing remarks were made on 3 September 2020.
The further reason for confusion around this particular document is the contention appearing in the Applicant’s SFIC[47]. In the SFIC it is contended that ‘The risk of the Applicant re-offending is, at most, moderate’[48]. As I read the SFIC, this contention is sought to be grounded, at least in part, by the immediately following sentence: ‘The Applicant has previously had a medium, i.e. moderate, risk assessment by the Department of Justice Western Australia.’[49] This particular document[50] is now before me in the material and is the same document referenced in the relevant paragraph of the Applicant’s SFIC. That document refers to ‘Security Rating: MEDIUM’.[51]
[47] Denoting, ‘Statement of Facts, Issues and Contentions’.
[48] A1, p 4 [24].
[49] A1, p 4 [24].
[50] R1, pp 270-314.
[51] R1, p 270.
With respect, this ‘Security Rating: MEDIUM’ does not equate to, or does not otherwise safely ground, a contention, that this Applicant bow represents ‘…at most, [a] moderate’ recidivist risk. The contention is thus misconceived and incorrect. It should be rejected accordingly.
The consultant forensic clinical psychologist, Dr Michael R Davis
Dr Davis is a significantly experienced forensic and clinical psychologist who assessed the Applicant via video link on 12 October 2023. Dr Davis then furnished his lengthy written report which is dated 27 November 2023.[52] Dr Davis recorded respective clinical histories from the Applicant including (1) a personal and family history; (2) an education and employment history; (3) a drug and alcohol history; (4) a medical history; (5) a psychiatric history; (6) the Applicant’s social circle and hobbies; and (7) a sexual and relationship history.
[52] A3.
Dr Davis then conducted a lengthy investigation and summary of the totality of the Applicant’s criminal history. He summarised the Applicant’s ‘Progress in Prison and Detention’ and also made a summary of the Applicant’s ‘Offence-Specific Treatment’.
Dr Davis also provided a detailed summary of the Applicant’s future plans.Dr Davis then administered five different psychological testing and scale rating methodologies to arrive at a level of recidivist risk for this Applicant. The first of those tests he administered was the BPRS[53] which Dr Davis described as a ‘a brief symptom rating scale for assessing and communicating an individual’s current mental health status’[54]. Upon application of this test, Dr Davis concluded as follows:
‘The results of the BPRS indicate that Mr. Ba’s mental state is currently affected by clear symptoms of anxiety and depressed mood. He also has some difficulties associated with physical health concerns, slightly odd thinking, emotional withdrawal, and tension. In essence, these symptoms reflect an amalgam of current acute difficulties and some long-standing and seemingly never addressed diagnostic concerns….’[55]
[53] Denoting, ‘Brief Psychiatric Rating Scale’
[54] A3, p 19 [72].
[55] A3, pp 19-20 [74].
Ancillary to the BPRS testing, Dr Davis also conducted a mental state examination and concluded the Applicant ‘…appeared to be of average intellectual functioning. He had some insight into his difficulties with anxiety and depressed mood, as well as the seriousness of his 2019 violent offence.’[56]
[56] A3, p 20 [75].
The second testing methodology conducted by Dr Davis was the PCL:SV[57]. He described it as: ‘…a standardised ratings scale that allows one to reliably identify traits of psychopathy, a form of personality disorder characterised by difficulties associating with others, limitations in the capacity to experience and express emotion, lifestyle deficits, and antisocial behaviour – including, but not limited to, criminality.’[58]
[57] Denoting, ‘Hare Psychopathy Checklist: Screening Version’.
[58] A3, p 22 [79].
Dr Davis concluded that the Applicant’s ‘…total score on the PCL:SV was in the low range and considerably lower than the average four North American offenders (29.5th percentile)’. In a footnote to his report, Dr Davis explained that this percentile rating means that 70.5 percent of North American offenders would score higher or the same, as the Applicant on the PCL:SV.
The third testing methodology by Dr Davis was the LS/RNR[59]. According to Dr Davis the LS/RNR ‘…is a standardised offender classification scale that covers the majority of the best-established predictors of general criminal conduct across eight broad domains.’[60] Dr Davis concluded that the Applicant’s:
‘total score on the LS/RNR was considerably lower than the average for offenders in prison, but comparable to that of offenders in the community. Accordingly, he would appear to pose a low-to-moderate risk for general offending behaviour (i.e., somewhat lower than that of the average general offender). However, in many ways his risk will depend upon his abstaining from alcohol use in the community (or at the very least drinking responsibly).’[61]
[59] Denoting, ‘Level of Service / Risk, Need, Responsivity’.
[60] A3, p 23 [83].
[61] A3, p 24 [85].
The fourth testing methodology conducted by Dr Davis comprised the HCR-20v3[62] which Dr Davis described as a set of structural professional guidelines covering three domains of risk factors specifically related to general violence, they being (1) historical (past) factors; (2) clinical (present) factors; and (3) risk management (future) factors. Dr Davis describes the HCR-20 to be ‘…among the most accurate assessment methods for assessing for risk for violence.’[63] He opined that:
‘The configuration of items on the HCR-20 indicates that Mr. Ba has a number of historical static risk factors for violence, although these are still comparable to the average numbers found in recent research with offenders subject to correctional treatment in Victoria. He has fewer dynamic risk factors, but these are also comparable to the average for offender populations.’[64]
[Internal citation omitted]
[62] Denoting, ‘Violence Risk Assessment Scheme Version 3’.
[63] A3, p 24 [86].
[64] A3, p 26 [90].
Fifth and finally, Dr Davis applied the SARA[65] to assess the Applicant’s risk for intimate partner violence. This testing methodology covers four domains of risk factors comprising (1) criminal history; (2) psychosocial adjustment; (3) spousal assault history; and (4) current offence. Dr Davis reached the following conclusion about the Applicant’s risk of the Applicant’s intimate partner violence:
‘99. It is my opinion that Mr. Ba poses a moderate risk for intimate partner violence (i.e., comparable to that of the average intimate partner violence offender), should he commence a further intimate relationship in the community. His history of being subject to brief Restraining Orders indicates that there may continue to be difficulties with such relationships that do not result in physical violence but are nonetheless problematic. Given that he has committed one physically violent offence, the most likely scenario is a repeat scenario in which Mr. Ba is violent to a partner in the context of ongoing arguments, sexual jealousy, and pronounced alcohol use. Given his age and lack of other violent offending, Mr. Ba’s risk should be considered lower than this in other scenarios, although alcohol use has clearly been an issue in regard to all forms of offending in the past.’[66]
[65] Denoting, ‘Spousal Assault Risk Assessment Guide’.
[66] A3, p 29 [99].
Following the application of these various testing mythologies, Dr Davis expressed a concluded opinion that was structured by way of the responses to specific questions put to him by the Applicant’s representatives. It is worth quoting the salient parts of Dr Davis’s opinion:
‘a. Please provide your assessment of Mr. Ba’s current psychological condition and presentation, including any symptoms displayed and diagnoses made and the impact of any separation from his children.
102. ….It is my opinion that he currently meets formal criteria for three diagnoses. It is my opinion that he meets formal criteria for Complex Post-Traumatic Stress Disorder……
103. It is my opinion that the chronic nature of these symptoms[67] meets [sic] formal criteria for Persistent Depressive Disorder (with anxious distress)….
[67] That is, Dr Davis’s finding that the Applicant has a history of difficulties with depressed mood (see A3, p 31 [103]).
104. In addition to these two chronic diagnoses, Mr. Ba has a history of panic attacks that appear to have recently increased in the context of immigration detention. His worry about experiencing unexpected panic attacks meets formal criteria for the additional diagnosis of Panic Disorder. Unlike the other two diagnoses, this is more of an acute presentation that meets formal criteria due to Mr. Ba’s current stressful situation.
…..
b. Your assessment of Mr. Ba’s risk of recidivism.
c. Your assessment of the risk to the Australian community of Mr. Ba committing further offences or engaging in other serious conduct, taking into account information and evidence on the risk of his reoffending, as well as evidence of his rehabilitation up to now;
107. …he appears to pose a low-to-moderate risk for general offending behaviour (i.e., somewhat lower than that of the average general offender). However, in many ways this risk will depend upon Mr Ba abstaining from alcohol use in the community (or at the very least drinking responsibly)….
108. With specific reference to violent offending, Mr Ba has a moderate number of risk factors for both general violence and intimate partner violence. However, he has committed just one physically violent offence and this involved the victimisation of an intimate partner, so this has to remain the most likely scenario for future violence…
109. It is my opinion that Mr Ba poses a moderate risk for intimate partner violence (i.e., comparable to that of the average intimate partner violence offender), should he commence a further intimate relationship in the community….Mr Ba’s risk should be considered lower than this in other scenarios although alcohol use has clearly been an issue in regard to all forms of offending in the past. His recent involvement in drug and alcohol treatment and his stated intentions to not consume alcohol again are positive signs for future adjustment, but a period of stability in the community will be required to truly test these intentions….
…..
f. What do you consider his prospects of rehabilitation to be, including reasons for forming that view.
113. Mr. Ba is not a high risk offender. He has a moderate number of risk factors for a variety of forms of offending and has committed one violent offence in the past. It is my admittedly cautious opinion that if his chronically untreated mental health concerns are appropriately addressed, he develops meaningful employment and leisure pursuits, and refrains from alcohol intoxication, his risks may be further reduced.’[68]
[My emphasis]
[68] A3, pp 30-34.
Dr Davis also very kindly made himself available to give oral evidence to the instant Hearing. Following his evidence-in-chief and cross-examination, I put a question to him which is recorded in the transcript in these terms:
‘SENIOR MEMBER: Right. So it comes down to this, doesn’t it, really? Two elements, really. It comes down to, firstly, the applicant’s own statement or own expressed intention to return to the community, to continue some kind of engagement with rehabilitation yet to be defined, and to otherwise not drink again because it’s damaged him in the past and his religion forbids him from doing so. That’s the first element. The second element is that he returns to the community, and the ultimate test about whether he can remain abstinent from alcohol is simply that, being back in the community where alcohol is much more freely available to him, and just see how he goes in the community. They’re the two streams, aren’t they? I mean, they’re the two elements that best inform us about his recidivist risk if returned to the community?
DR DAVIS: I think you’ve summed it up quite nicely, Senior Member. I think the thing is – what I would like to see happen in the ideal world may not be available to him. But if he – one of the most important things when it comes to treatment outcome is how good the therapeutic relationship is between the clinician and the client. So there’s a lot of literature to suggest that it doesn’t really matter what type of therapy you take; as long as they’ve got a good relationship, there will be benefits. So even if it can’t be the gold standard that – I will admit, I tend to write gold standard recommendations rather than realistic ones at times, which I apologise for. But if he can see someone ongoing – ideally, a clinical psychologist, I would think that that’s going to be very, very positive. So if he can just see anybody ongoing, that’s going to be quite positive.’[69]
[69] Transcript, p 78, lines 28-47; p 79, lines 1-3.
Closing contentions on risk
During closing submissions, the respective positions of the parties on recidivist risk were expressed. On behalf of the Applicant, the Tribunal was urged to follow the findings of Dr Davis:
‘Mr Ba has been assessed by Dr Davis, an independent expert, as being low-to-moderate risk of general offending, moderate risk for violent offending, and moderate risk for intimate partner violence. Dr Davis gave evidence of the circumstances in which those risk assessments will trend down in his evidence to the tribunal. It’s ultimately a matter of weight for the tribunal of what, Senior Member, what weight you put on that report.
In Dr Davis’ [sic] report, he confirms that the factors to be put in place to reduce the risk that the applicant poses is the referral for mental health treatment, including ongoing treatment for his depressed mood, anxiety, and post-traumatic stress disorder; ongoing stable employment; meaningful leisure activities; increasing his circle of prosocial contacts; increasing insight into the difficulties with emotional regulation; and developing greater skills for coping with stress.’[70]
[70] Transcript, p 83, lines 29-42.
The Respondent’s position about recidivist risk was less optimistic and was expressed in terms of the Applicant still representing a substantial risk of recidivism:
‘So having regard to those matters, the respondent’s position is that the risk of offending is very real. The applicant committed a very serious offence. He has a history of 30 offences over 10 years, and they cover the field, a variety of offences: violence, dishonesty, driving offences, property and other offences of, whilst not more significant nature, still offences.
So we say that the tribunal should be pessimistic of prospects of reform in the absence of any objective evidence to support such. For all these reasons, we contend that there still remains a substantial risk of recidivism, and one which the Australian community should not be expected to tolerate. This factor should also therefore weigh significantly against revocation.’[71]
[71] Transcript, p 94, lines 39-46; p 95, lines 1-4.
Findings about recidivist risk
I have had regard to the Applicant’s own evidence and the evidence sought to be adduced on his behalf. I now summarise my findings about recidivist risk:
·there seems little doubt the Applicant has come to a realisation about the extent of the difficulty into which his past difficulties with alcohol have placed him. On that basis, I am of the view that whatever remorse, regret and other apologetic tone he may now express for his unlawful conduct is both genuine and palpable;
·he has come to appreciate the benefits to be derived from a meaningful engagement with rehabilitation and, if nothing else, he has identified and accepted alcohol as the major predispositive factor behind his past very serious offending;
·he has identified protective factors which are not convenient and recent constructs. He has three biological children (one in Australia and two in Senegal) with whom he wants to more fulsomely integrate. He has developed a much closer relationship with his faith as a means of moral and spiritual guidance and he has come to understand the benefits of abstaining from an abusive relationship with alcohol. He has somewhere to reside if returned to the community and he has obtained at least some measure of qualifications that hold him in good stead of sourcing and retaining remunerative employment in the mining industry;
·I respectfully join with Her Honour Judge Gillan DCJ who, when sentencing the Applicant for the very serious offending against Ms T, told him ‘I don’t think that you are a significant risk of reoffending in this way, as long as your alcohol consumption is under control’; and
·I also respectfully observe that the evidence of Dr Michael Davis was truly expert, thorough and quite learned. Dr Davis applied five acknowledged testing methodologies and reached the following opinions:
othe Applicant currently meets the criteria for three diagnoses, they being (1) Complex Post-Traumatic Disorder; (2) Persistent Depressive Disorder (with anxious distress); and (3) Panic Disorder;
othe Applicant represents a low-moderate risk for general offending-that is, somewhat lower than that of average general offender, but that such risk is dependent upon the Applicant’s abstinence from alcohol in the community or at the very least drinking responsibly;
othe Applicant represents a moderate risk for violent offending and intimate partner violence were he to commence a further intimate relationship in the community;
oin terms of the Applicant’s prospects of rehabilitation, Dr Davis noted the Applicant is not a high-risk offender. He cautiously opined that if (1) his chronically untreated mental health concerns are appropriately addressed; (2) he develops meaningful employment and leisure pursuits; and (3) refrains from alcohol intoxication, his recidivist risk may be further reduced.
Assessment of recidivist risk
I will cautiously adopt Dr Davis’s findings that this Applicant represents (1) a low-to-moderate risk for general offending; and (2) a moderate risk for both general violence and intimate partner violence. I respectfully join with and follow Dr Davis’s caution around such a finding based on the contingent factors he has identified referrable to the Applicant’s overall level of recidivist risk.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the Applicant’s conduct to date has been ‘very serious’;
(b)I have had regard to the totality of the Applicant’s offending history. I am satisfied that in the event of its recommission, the nature of the harm it would cumulatively represent to either natural persons or the Australian community more generally would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) measurable material and/or financial harm; (3) psychological harm; (4) actual physical harm; and (5) quite conceivably, catastrophic harm;
(c)I have also found, pursuant to paragraph 8.1.2(1) of the Direction that the harm resulting from the Applicant’s recommission of offending convicted as (1) ‘Acts or omissions causing bodily harm or danger to any person’ is so serious that any risk of its recommission would be unacceptable to the Australian community; and
(d)I have found that this Applicant now represents (1) a low-to-moderate risk for general offending; and (2) a moderate risk for both general violence and intimate partner violence while, at the same time, adopting Dr Davis’s caution around such a finding based on the contingent factors he has identified referrable to the Applicant’s overall level of recidivist risk.
My analysis of the material leads me to a finding that this Primary Consideration 1 is of a ‘strong, but not determinative’, level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The parties are of one mind that the terms of paragraph 8.2 of the Direction are engaged. In the Applicant’s SFIC the concession is put in these terms: ‘[28] This consideration is engaged. [29] The weight to be given to this consideration is in proportion to the seriousness of this conduct.’[72] In the Respondent’s SFIC the following is noted and contended:
‘52. The applicant accepts that the family violence consideration is engaged. The victim of the trigger offence was his partner, and therefore falls within the definition of ‘member of the person’s family unit’.
53. The trigger offence involved an act of family violence for which the applicant was convicted….’[73]
[Internal citations omitted]
[72] A1, p 5 [28]-[29].
[73] R2, p 9 [52]-[53].
I accept and adopt the mutually held position of the parties. Paragraph 8.2 of the Direction compels two initial inquiries: (1) it is necessary to ascertain whether Ms T was a member of the Applicant’s family at the time of the above-recorded incident giving rise to his conviction on two counts ‘Acts or omissions causing bodily harm or danger to any person’; and (2) whether the Applicant’s conduct against Ms T constitutes domestic violence for present purposes. I will address each question in turn.
Given the mutuality of the respective positions of the parties about paragraph 8.2 of the Direction being engaged, I will nevertheless briefly answer the two questions in the immediately preceding paragraph:
·Paragraph 4(1) of the Direction provides that ‘….a person who has, or has had, an intimate personal relationship with the relevant person’ is a ‘member of the person’s family’ for the purposes of the definition of family violence. There is surely nothing to cavil with the proposition and finding that Ms T was a member of the Applicant’s family at the time he committed acts of family violence against her. I so find;
·‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[74] This definition poses two separate questions: (1) was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?; and (2) was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful? With reference to the first question, I find Ms T to have been a member of the Applicant’s family for present purposes. With reference to the second question, it is surely beyond discussion that the circumstances of the Applicant’s appalling conduct towards Ms T involved violent, threatening and other behaviour that sought to coerce and control her. I so find. Likewise, not only was the Applicant’s conduct violent, threatening and caused a Ms T to be fearful, it nearly took her life and required the intervention of a skilled surgeon to rectify the physical damage she suffered. I so find.
[74] Paragraph 4(1) of the Direction.
The next enquiry compelled by paragraph 8.2 of the Direction is whether the Applicant’s conduct is captured by paragraph 8.2 of the Direction? Paragraph 8.2(2) of the Direction brings domestically violent conduct into its orbit where a person has been convicted of an offence involving family violence (paragraph 8.2(a)) ‘and/or’ there is information or evidence from an independent and authoritative source indicating the person is, or has been involved in the perpetration of family violence (paragraph 8.2(b)). The incident involving Ms T resulted in the Applicant being convicted of the relevant offences arising from that conduct. These two convictions imposed on 3 September 2020 fall squarely within the ambit of paragraph 8.2(a) of the Direction and thus constitute family violence for the purposes of the Direction. I so find.
Assessment of the seriousness of the Applicant’s family violence
To my mind, a consideration of paragraphs 8.2(3)(a) - (d) are the true markers towards a decision-maker reaching a finding about the weight ultimately allocable to this Primary Consideration 2. I will now consider each of the factors in paragraph 8.2(3)(a) - (d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): compels an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. While the Applicant may have just the two convictions for domestically violent conduct, this does not mean he has been otherwise quite or idle in the realm of this type of conduct. The material contains reference to a number of instances where domestic violence orders had been made, yet he repeatedly breached them. This conduct occurred on a repeated basis over six years with two separate partners. I agree with the Respondent’s contention: ‘Whilst the circumstances of the conduct (i.e. the conduct not giving rise to his two convictions on 3 September 2020) are not known, and did not warrant any formal charges (save for the trigger offence), the number of orders imposed demonstrates a repeated disregard for socially acceptable behaviours and a lack of understanding of healthy relationships.’[75] The number of orders also points to the frequency of the Applicant’s family violence conduct. The nature of the conduct perpetrated against Ms T represents a dramatic increase in the seriousness of the Applicant’s family violence conduct. Therefore, both the frequency of the Applicant’s family violence conduct and its clear trend of increasing seriousness are factors that speak to the very serious nature of that conduct.
[75] R2, p 10 [54].
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. One need not look all that deeply into the circumstances of the Applicant’s appalling conduct towards Ms T. It was conduct that could have taken her life. It was conduct that caused Ms T significant psychological trauma and physical trauma to the extent that surgical intervention was required. It was also conduct that consumed the community’s (1) policing resources; (2) judicial sentencing resources; and (3) custodial resources. These cumulative effects of the Applicant’s repeated acts of family violence most certainly speak to the very serious nature of that conduct.
Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph compels three enquiries:
(i)first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. In his statement of 9 October 2023, the Applicant confirms that he has ‘…also taken courses that help me to deal with anger, to cope with life’s stressors and to understand how I should treat women in my relationships with them.’[76] He claims to now understand the seriousness of his domestically violent conduct and the serious consequences that result if he breaches such orders: ‘I know that I must comply with the orders and not breach the intervention orders’.[77] I am satisfied that given the predicament in which he now finds himself as a direct consequence of his domestically violent conduct, the Applicant’s protestations about accepting responsibility for this conduct can be taken at face value.
[76] A2, p 10 [69].
[77] A2, p 10 [69].
(ii)second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. The Applicant has had at least some measure of opportunity to engage with the rehabilitative process as a means of forging an understanding of the impact of his domestically violent conduct on its victim(s). It should also be remembered that Dr Davis took a very fulsome history from the Applicant. On the specific issue of his appalling family violence conduct towards Ms T, Dr Davis’s report notes the following:
‘56. When asked how he feels about this offence now, Mr. Ba replied “I regret it a lot, a lot, a lot, I was remorseful.” When questioned as to what he would say to this victim now if given the opportunity, he stated “I will tell her sorry, forgive me… to forgive me… I used to love her a lot, but because a lot of issues between her and I, police come.”
57. When asked whose fault this offence was, Mr. Ba replied “it was my fault, I should have left the house, if I left it wouldn’t happen, I swear it will never happen again if I’m still alive… what I’ve learned in here, taught me a lot… learned my lesson.’[78]
[78] A3, pp 15-16 [56]-[57].
(iii)third
, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a
non-citizen to address the factors which contributed to their family violence conduct. As noted earlier, the Applicant has been a willing participant in rehabilitative programs aimed at curbing predispositive elements behind his domestically violent offending such as a lack of anger management and overall self-control and his past pattern of abusing alcohol. The further point is that noted by Dr Davis about the Applicant having palpable future plans:
‘[67] ’ When asked if he is going to drink alcohol again, Mr. Ba replied “if I get out of here I wasn’t to do some counselling courses and keep (doing good)….
[68] When asked if he could see he had got into lots of trouble drinking alcohol, Mr. Ba replied “yes, I’ve learned a lesson… lost my job, can’t even send money to my family…”
….
[70]. When asked about his future plans, Mr. Ba replied “if I get out of here… find a job… support my family, support my kids, buy a house, bring my daughter, my kids from Africa, all live together,…..
[71]. When asked what his life will be like in 10 years, Mr. Ba replied “to work hard… bring my kids… find a place and bring my kids….”’[79]
[79] A3, p 18 [67]-[68] and [70]-[71].
With specific reference to this paragraph 8.2(3)(c)(i)-(iii) of the Direction, I am satisfied that the Applicant has demonstrated a capacity to genuinely accept responsibility for his domestically violent conduct. As noted by Dr Davis, the Applicant appears to have understood the impact of his domestically violent conduct on its victim(s) and that he has made efforts-and has future plans in relation to those efforts-to not again place himself in that position of re-perpetrating such conduct.
Overall, and despite my findings about the three sub-paragraphs to paragraph 8.2(3)(c) of the Direction, I am nevertheless satisfied that paragraph 8.2(3)(c) speaks to the very serious nature of his domestically violent conduct to date.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. The short answer to this question is ‘yes’. The material discloses at least the following number of duly-made ‘Restraining Orders’[80]:
[80] As noted by the Respondent in its SFIC at footnote 25, ‘…the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA) and Domestic Violence Orders (National Recognition) Act 2017 (WA) were not in force at the time of these earlier offences and orders appeared to be generally defined as ‘violence’ restraining orders.’
·10 January 2014;
·10 September 2014;
·26 October 2014;
·1 August 2018;
·22 April 2019;
·6 May 2019;
·25 May 2019;
·3 June 2019;
·11 June 2019;
·7 July 2019;
·10 July 2019; and
·6 August 2019.
Each of these orders contains the heading ‘THE PERSON BOUND SHALL NOT’ which is then followed by a series of dot-pointed prohibitions on what the ‘person bound’ cannot do as a result of the order made against them. It would be very surprising if at the time the abovementioned restraining orders were made against the Applicant, the issuing police officer did not warn the Applicant about the consequences of breaching such an order. Be that as it may, it seems clear from what the Applicant told Dr Davis that these orders have resonated with him to the extent of him telling Dr Davis the following:
·‘I regret it a lot, a lot, a lot, I was remorseful.’;
·‘…I will tell her sorry, to forgive me…I used to love her a lot but because a lot of issues between her and I police come.’;
·‘…it was my fault, I should have left the house, if I left it wouldn’t happen again. I swear it will never happen again if I’m still alive… what I have learnt in here, taught me a lot…learned my lesson.’[81]
[81] A3, pp 15-16 [56]-[57].
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[150] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[151]
[150] Paragraph 8.5(3) of the Direction.
[151] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[152]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[152] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history contains multiple convictions that fall within the auspices of the abovementioned sub-paragraphs 8.5(2)(a), (c) and (d). The commission of these offences means that the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[153]
(c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[154]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[155]
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[156] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[157]
[153] Paragraph 5.2(4) of the Direction.
[154] Paragraph 5.2(5) of the Direction.
[155] Paragraph 5.2(5) of the Direction.
[156] Paragraph 5.2(6) of the Direction.
[157] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [140], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a
Class BB Subclass 155 Five Year Resident Return visa until it was mandatorily cancelled on
8 September 2020. This Visa permits a person to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted.[158] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[159] Therefore the application of thissub-paragraph (a) is not applicable to the Applicant.
[158] Regulation 155.511 of the Migration Regulations 1994 (Cth).
[159] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [140], the Applicant has spent one third of his life in this country since arriving here as a 33-year-old in May 2008. He is currently aged 48 years and has a history of remunerative employment in Australia. He has fathered at least one biological child in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [140], I repeat that the Applicant has since his arrival in May 2008, spent one third of his life in Australia. He is currently 48 years of age. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [140], I am of the view that the length of time the Applicant has spent here (i.e. 16 years since his arrival in May 2008) facilitates a raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [140], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is not necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the scope and extent of his offending (especially his family violence offending against Ms T), and its resulting harm thus far has been of such a significant and serious magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [140], I have found that at least three modes of his offending are captured by sub-paragraphs 8.5(2) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending (especially his domestic violence offending against Ms T) effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [140] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending convicted between February 2010 and September 2020, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The Applicant has raised issues of non-refoulement. He is yet to be the subject of any ‘protection finding’ for the purposes of the Act. It can be safely found that he is not the subject of any bar to applying for a protection visa because he has not applied for such a visa whilst in the migration zone.
I agree with and follow the course proposed by the Respondent in its SFIC[160]: ‘…the appropriate course is for the applicant to apply for a protection visa, and the assessment of any non-refoulement claims be undertaken in the context of that assessment….’ in respect of which the Applicant will be entitled to adduce evidence in support of his claims in this regard. I am of the view that the state of the evidence does not disclose any clear articulation of any such claim.
Plaintiff M1/2021
[160] R2, p 15 [85].
On 11 May 2022, the High Court of Australia – in its decision of M1/2021 v Minister for Home Affairs[161] (‘Plaintiff M1’) turned its mind to the question of whether a decision-maker can, ‘defer’ consideration of Australia’s non-refoulement obligations to a future date or event, such as if the Applicant were to apply for a protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a protection visa.[162]
[161] (2022) 400 ALR 417. Date of judgment: 11 May 2022.
[162]Ali v Minister for Home Affairs (2020) 278 FCR 627.
The approach formulated by the High Court in Plaintiff M1 was expressed thus:
‘Decision-makers' approach to non-refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.’
[Emphasis in original]
In Plaintiff M1, the plurality clarified that consideration of non-refoulement obligations can be deferred where a non-refoulement claim is made or arises on the facts and the person is able to make a valid application for a protection visa. The decision settles the previously unsettled state of the law on this issue. It confirms that it is permissible for a merits-based decision-maker applying section 501CA(4) of the Act to determine whether the relevant discretion can be exercised to have regard to the fact that a person may make a protection visa application.
I will therefore allocate neutral weight to this Other Consideration (a) given the Applicant’s capacity to apply for a protection visa.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant’s evidence
In his most recent statement made on 9 October 2023, the Applicant says the following:
‘93.I am not able to return to Mauritania as I was exiled from there in 1989 when they forced my family to leave and to cross the border into Senegal. I do not have any documentation that identifies me as a citizen there and I do not wish to seek this out after what I have gone through in my life and the trauma it has caused to me and my family.
94.I cannot return to Mauritania. I would not be able to earn a living to support myself, I would have no accommodation, I would have difficulties finding a job and accessing health care and mental health care services. I would not be able to support my children financially, including by sending money for my young son to have surgery on his throat. I would also lose the opportunity to be in [Child W]’s life and be a father to her, which would cause me considerable distress if I was permanently separated from her.’[163]
[163] A2, p 13 [93]-[94].
Paragraph 9.2(1)(a): In the Applicant’s SFIC the following contentions are made:
‘In this case, the impediments to removal should attract significant weight because the Applicant is likely to face severe economic hardship, difficulty finding employment, and difficulty living a normal life due to a lack of basic services irrespective of any impediments. This includes difficulty accessing medical treatment for the following conditions:
(a)Non-cirrhotic portal hypertension secondary to schistosomiasis;
(b)Multiple liver lesions that are likely adenomas;
(c)Hepatitis B;
(d)Likely depression;
(e)Iron deficiency (Anaemia); and
(f)Cluster headaches or severe migraines.’ [164]
[Internal citations omitted]
[164] A1, p 9 [51].
In terms of mental health diagnoses, it will be recalled that Dr Davis is of the opinion that the Applicant currently meets the criteria for three diagnoses, they being (1) Complex Post-Traumatic Disorder; (2) Persistent Depressive Disorder (with anxious distress); and (3) Panic Disorder.
The Applicant is currently 48 years of age. His abovementioned physical health symptoms, especially his liver disease which he says is a result of him drinking contaminated water in Africa, can be taken at face value because, to my mind, they are adequately supported by the evidence. Likewise his mental health diagnoses as made by Dr Davis with which I will not cavil.
Such is the nature and extent of the Applicant’s physical and mental health issues that it can now be safely found they will impede his capacity to return and resettlement in Mauritania. As against that, he is of an age (48-years) where his constitution and overall capacity to deal with or live with those conditions is still something that works in his favour. But for the purposes of the present paragraph 9.2(a), I am of the view that the Applicant’s combined physical and mental health issue will impede his return and resettlement in Mauritania.
Paragraph 9.2(1)(b): as best as I understood the evidence, the Applicant makes no claim of any language or cultural barrier impeding his return and resettlement to Mauritania. I have already noted (and found) that he has maintained his cultural identity in Australia via participation in the activities of his local Mauritanian community. He is fluent in Pulaar which is the national language of Mauritania. There is evidence of him being fluent in French, Arabic and English. A prison health record notes the Applicant’s ‘First language is Peular [sic], also speaks French and some Arabi, literacy in English is OK.’[165] There are no language or cultural barriers impeding the Applicant’s return and resettlement in Mauritania.
[165] R1, p 299.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Mauritania. First, in terms of personal or social impediments, the Applicant’s SFIC says the following:
‘The Applicant also faces personal impediments. The Applicant will be experiencing distress because of the loss of any opportunity to reconnect with his children. The Applicant is unlikely to able to access counselling or mental health treatment or substance abuse treatment, i.e. alcohol abuse, and support. If the Applicant’s mental health declines that would further compound his difficulty in achieving basic living standards in Mauritania.’[166]
[166] A1, p 9 [52].
It can be accepted that the Applicant will have limited social support upon a return to Mauritania. As against that, he has a linguistic and cultural familiarity with that country and there is a realistic likelihood of him forming social connections in that country just as he has done with the members of his ethnic community in Australia. The absence of pre-existing social or family contacts in Mauritania is an impediment that will confront the Applicant at least in the short to medium term following his arrival in Mauritania. I am therefore of the view that the relative lack of social support available to him in Mauritania (at least in the short to medium term) does constitute an impediment to his return and resettlement in that country.
Second, in terms of economic support available to the Applicant in Mauritania, the Applicant is clearly of an age where he is well within his working years. He has history in Australia of participating in a broad range of fields. In the Applicant’s SFIC reference is made to the Mauritanian unemployment rate being around 11 percent in 2022. That connotes a possibility of him experiencing difficulty in sourcing remunerative employment as a means of sustaining itself. As against that, there is what is known as the ‘Mauritanization law’ which is referred to in the relevant country information document for Mauritania the following portion of which is reproduced in the Respondent’s SFIC:
‘While labor is abundant, there is a shortage of skilled workers and well-trained technical and managerial personnel in most sectors of the economy… The “Mauritanization law” requires that employers give priority to nationals over foreign workers, unless the skills required for the position cannot be filled by the national labor force. Employers must develop a “Mauritanization” plan to transfer skillsets to local workers within a period of two years.’[167]
[167] R2, p 16 [97].
An additional element is the comparative difference between social security or Centrelink-type benefits between Australia and Mauritania. It would be safe to find that the Applicant will be impeded by what will most likely be a lower level of such benefits being available to him in Mauritania as a means of sustaining himself on a short to medium term basis. As against that he will have available to him the same level of such economic support in Mauritania as is available to other citizens of that country. Overall, I will find that the difference between economic support available to the Applicant in Mauritania compared to Australia is an impediment to the Applicant’s return and resettlement in Mauritania.
Third, it is necessary to look at the state of the medical support that would be available to the Applicant in Mauritania. There is a ready acceptance by the Respondent that ‘…access to health services (physical and mental health) and the quality of health services, is less than that which the applicant would have access to in Australia. There is information suggesting that access to medications is possible, however the frequency and availability of supply is not clear.’[168] In the Applicant’s SFIC it is noted that ‘spending on healthcare is USD$59 per capita. The most recent data from 2017, shows that of the total Government spending on healthcare, mental health accounted for 1.30%.’[169]
[168] R2, p 16 [96].
[169] A1, p 11 [53(h)].
While it may be said that the Applicant will have such medical support available to him in Mauritania as would be available to other citizens of that country, I am of the view that the comparative difference, in terms of quantity and quality, of publicly available healthcare between Mauritania and Australia will constitute an impediment to his return and resettlement in the former country.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age is not necessarily an impediment for present purposes. However, I have found that the state of his physical and mental health is such an impediment;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in Mauritania;
·the relative lack of social support available to him in Mauritania does constitute an impediment to his return and resettlement there;
·the relative difference between government-derived economic support available to the Applicant between Mauritania and Australia is also an impediment but it is tempered by the extent of the Applicant’s work experience and skills acquired in Australia and by the operative effect of the abovementioned ‘Mauritanization law’; and
·the comparative difference, in terms of quantity and quality of medical support publicly available to the Applicant in Mauritania compared to Australia will constitute an impediment for present purposes.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a heavy level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on victims
Most usually in these applications, this Other Consideration (c) weighs either neutrally or against an Applicant. It weighs neutrally because there is no statement from a victim in which that victim talks about how they would be impacted in the event an applicant were successful in this type of application. It weighs against an applicant where the Tribunal, in an application such as this, has such a statement from a victim expressing how they would be adversely impacted by a decision facilitating a return of the applicant to the Australian community.
Here, we have a victim (Ms NJB)[170] of the Applicant’s domestic violence conduct who is actively supportive of him having his Visa returned to him so that he can remain in Australia and be a part of their biological child’s (Child W) life.[171] There is authority for the proposition that the evidence of a victim who is supportive of an Applicant remaining in Australia can be taken into account and can work in favour of an Applicant. This scenario was contemplated by His Honour Justice Kerr in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('PGDX’). When discussing two other relevant authorities, His Honour noted:
‘57 I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4[172] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
58 It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
59 Usually, but not always.’ [173]
[170] The Applicant’s ex-partner and biological mother of his child, Child W.
[171] A5, pp 118-120.
[172] Note to reader: His Honour Kerr J is referring to clause 14.4 of Ministerial Direction 79, which was the relevant Ministerial Direction in force at the time.
[173] [2021] FCA 1235, [57]-[59].
In terms of ongoing contact she has with the Applicant, Ms NJB says this:
‘10. Currently, I speak to Mouhamadou around once a fortnight. When our daughter was still in my care we would speak around once a week and they would speak to each other on the phone. We continue to keep in touch even though our daughter isn't in my care anymore and I sometimes help him with documents.’[174]
[174] A5, p 119 [10].
In terms of the basis on which Ms NJB says it is in the best interests of Child W for the Applicant to remain in Australia, Ms NJB says the following:
‘17. If Mouhamadou had to return to Mauritania, it would have an enormous impact on our daughter. Because he was in prison and then detention, she was removed from my care because I was not in a position to care for her. Going forward, she would not be able to have that relationship with her father. They have been working on their relationship and [Child W] has only started calling Mouhamadou 'Dad' in the last year. She is currently in counselling to address the stress of possibly losing her father as well as other things in her life’[175]
[175] A5, pp 119-120 [17].
Having regard to the relatively unique but nevertheless supportive statement from Ms NJB, I will pursuant to the authority of PGDX allocate a strong level of weight to this Other Consideration (c) in favour of setting aside the Decision Under Review.
Other Consideration (d): Impact on Australian business interests
The parties are of one mind that this Other Consideration (d) does not arise from the instant facts.[176] I agree and will allocate neutral weight to it.
[176] A1, p 12 [56]; R2, p 17 [103].
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of heavy weight in favour of revocation;
(c)impact on victims: is of strong weight in favour of revocation; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a strong, but not determinative, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a strong weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 plus Other Considerations (b) and (c) outweigh the combined respective weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s Visa. I so find.
.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 16 November 2021 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
| I certify that the preceding 181 (one hundred and eighty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis |
...........[SGD].............
Associate
Dated: 16 July 2024
Dates of hearing: 29, 30 April 2024 and 6 June 2024 Solicitor for the Applicant: Ms Toniey Munro (Senior Lawyer) Carina Ford Immigration Lawyers Solicitor for the Respondent: Ms Madisen Scott (Senior Lawyer) Australian Government Solicitor ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
Remittal Bundle
Various
18 July
2023
R2
Respondent’s Statement of Facts, Issues and Contentions
10 January 2024
10 January 2024
R3
Summons Bundle
10 January 2024
10 January 2024
R4
Further summons bundle
Various
26 February 2024
R5
Ministerial Direction 99
23 January 2023
26 April 2024
APPLICANT SUBMISSIONS
A1
Applicant’s Statement of Facts, Issues and Contentions
9 October 2023
9 October 2023
A2
Applicant’s First Tender Bundle
Various
9 October 2023
A3
Report by Dr Davis
27 November 2023
27 November 2023
A4
Applicant’s Reply
15 January 2024
15 January 2024
A5
Applicant’s Second Tender Bundle
Various
15 January 2024
A6
Country Information Bundle
Various
9 October 2023
A7
Applicant’s Third Tender Bundle
Various
23 April 2024
A8
Applicant’s Final Reference Bundle
Various
23 April 2024
ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2021/8838
GENERAL DIVISION )
Re: Mouhamadou Ba
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL: Senior Member Theodore Tavoularis
DATE: 20 June 2024
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 16 November 2021 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
……...............[SGD]......................
Senior Member Theodore Tavoularis
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