BNGP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 374

BNGP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 374 (2 March 2021)

Division:GENERAL DIVISION

File Number(s):      2019/8689

Re:BNGP

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:2 March 2021

Place:Sydney

The reviewable decision, being the decision of the respondent dated 23 December 2019, to refuse the applicant a Protection (Class XA) visa, is set aside and the matter be remitted to the respondent with the direction that the discretion in s 501(1) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.

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Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – refusal to grant Protection (Class XA) visa – where applicant convicted of offences against his wife – whether discretion should be exercised – Direction No. 79 applied – where applicant was never sentenced to term of imprisonment – where applicant had not engaged in any further criminal conduct – whether in the best interest of minor children in Australia – where international non-refoulement obligations owed – whether applicant may face other harm if returned to South Sudan – where applicant has mental health issues and physical disability – decision under review set aside and remitted

LEGISLATION

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

Migration Act 1958 (Cth) ss 197C, 499, 501

CASES

BAL19 v Minister for Home Affairs [2019] FCA 2189

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

2 March 2021

1. The applicant arrived in Australia in September 2005, when he was aged 39 years. He was born in what is now South Sudan and fled its civil war in about 2000, travelling to Egypt with his then wife. His eldest son, now aged 16, was born in in Egypt. He and his wife travelled together to Australia with their son and the applicant’s stepdaughter.

2. He originally had a Class XB Subclass 202 Global Special Humanitarian visa. It was cancelled by the Assistant Minister for Home Affairs in April 2018, arising from convictions recorded against him between 2008 and 2013. The convictions are summarised in the Statements of Facts, Issues and Contentions filed on the applicant’s behalf as follows:

   2On 16 January 2008, the applicant was convicted under s 61 of the Crimes Act 1900 (NSW); namely for common assault T2 for which he was given s 9 bond for 12 months. He was also convicted under s 14 of the Crimes (Domestic and Personal Violence) Act; namely contravene prohibition/restriction in AVO (Domestic) for which he was fined $500 (G4, 26).

   3On 1 April 2008, the applicant was convicted under s 61 of the Crimes Act; namely common assault T2 (2 counts) and was given s 9 bond for a period of 2 years (G4, 26).

   4On 12 January 2011, the applicant was convicted under s 14 of the Crimes (Domestic and Personal Violence) Act 2017 (NSW); namely contravene prohibition/restriction in AVO (domestic) order. The Parramatta Local Court dealt with that by way of s 9 bond for 18 months and for the applicant to accept supervision from NSW probation service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, anger management and relationship counselling (G4, 26).

   5On 13 March 2012, the applicant was convicted under s 54(5)(a) of the Road Transport Act 2013 (NSW); namely drive on road whilst license suspended. This Parramatta Local Court dealt with the matter by way of s 9 bond for 12 months and suspended the applicant’s license for a period of 12 months (G4, 25).

   6On 22 October 2012, the applicant was convicted under s 474.17 of the Crimes Act 1914 (Cth); namely use carriage service to menace/harass/offend (3 counts). The applicant was convicted and released without passing sentence pursuant to s 20(1A) of the Crimes Act, on entering Recognizance self $ 100, to be of good behaviour for 2 years and to accept supervision from NSW probation services and fined (G4, 25).

   7On the even date, the applicant was called up to appear before the Fairfield Court for a breach of an earlier bond imposed by Parramatta Local Court on 12 January 2011. He was re-sentenced to a section 9 bond for a period of 12 months and to accept supervision from NSW probation service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, anger management and relationship counselling (G4, 25).

   8On 3 October 2013, the applicant was convicted by Burwood Local Court under s 59 of the Crimes Act 1900 (NSW); namely assault occasioning actually bodily harm and under s 14 of the Crimes (Domestic and Personal Violence) Act 2017 (NSW); for contravening prohibition/restriction in AVO (domestic) order (G4, 25).

   9Magistrate Longley found that due to the applicant’s physical incapacity he is not a suitable candidate for a full-time custodial sentence and he will also not be able to perform the tasks associated with an Intensive Corrections Order (G4, C). His honour dealt with the applicant matters by way of suspended sentence of 16 months, entering a section 12 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 16 months with the condition that he be of good behaviour and accept the supervision of probation and parole authority (G4, 25).

3. He was taken into immigration detention on 20 December 2018 and has remained there since. His detention commenced more than 5 years after his most recent conviction.

4. His most recent conviction of 2013 was committed at a time when he had been drinking heavily. He has been abstinent from alcohol since 2013.

5. The applicant applied for a Protection (Class XA) visa which was refused on 23 December 2019. The applicant sought review in this Tribunal. When the application for review first came on for hearing in the Tribunal, the now overruled decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) bound the Tribunal and orders were made accordingly. Those orders were set aside by consent on an appeal to the Federal Court by the Minister, following the overruling of the decision in BAL19. The matter was remitted to be re‑determined here. I heard the proceedings in January of this year.

6. The review turns on whether the reviewable decision should be set aside or affirmed. In turn, that question depends on how the discretion in s 501(1) of the Migration Act 1958 (the Act) should be exercised.

7. Direction No. 79 (the Direction), made under s 499 of the Act, binds decision makers and this Tribunal as to the considerations to be taken into account in exercising the discretion. Its terms are published, and I will not repeat them here. Instead, I will set out the relevant headings taken from the Direction and make all necessary findings for that purpose.

8. Magistrate Longley sentenced the applicant to a term of imprisonment of 16 months, suspended upon entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for a period of 16 months and to accept the supervision of Probation and Parole and to report to the office of Probation and Parole at Bankstown within 7 days. In the course of the sentencing hearing, the Magistrate did not describe the details of the offence save to note that it involved significant violence against his then wife.

9. The Direction describes violence against women as a serious crime, and I accept that description.

10. There was no breach of the bond and the applicant did not go to prison for any of the offences of which he was convicted. He was, so far as the evidence reveals, of good behaviour between the date of his last conviction and the date on which he was taken into immigration detention.

11. In immigration detention, there is one record of possible misconduct, in June 2019, when he was involved in an altercation with another detainee. Neither the applicant nor the other detainee appeared to have any visible injuries and stated that their altercation stemmed from a misunderstanding.

12. The applicant does not pass the character test, as is common ground between the parties.

13. The Preamble and Part B of the Direction are relevant to this review.

    PRIMARY CONSIDERATIONS

    Protection of the Australian Community

14. Clause 11 sets out three mandatory considerations, described as “primary considerations”. The first of those is the protection of the Australian community. The consideration involves the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.

15. The applicant’s life in Sudan, as it was then, was very traumatic. He was caught, tortured and made to work by the army. He escaped twice, and on the second occasion was shot in the leg which took a year to recover from his injury. He went to Egypt and spent six years in a refugee camp before coming to Australia. His mother died shortly after he was born and he lost contact with all his relatives except one brother, who had since passed away. He believes his father also died.

16. He met his wife in Sudan, who had a daughter. His stepdaughter lived with the applicant and his wife. In Egypt, his eldest son was born in 2004. When he arrived in Australia, he was accompanied by his wife, his son and his stepdaughter.

17. In Australia, he was injured again in an assault. He found employment, but his disabilities made the work difficult.

18. By 2008, he had become addicted to alcohol. That addiction lasted until 2013, the date of his last offence. His English is poor, and he is illiterate both in Arabic and in English.

19. All his offending involved his ex-wife, with the exception of the motor vehicle offence. After his last conviction, he ceased drinking altogether. As noted above, he has had no convictions since 2013.

20. He suffers from post-traumatic stress disorder, major depression, anxiety, panic attacks, and nausea. Those conditions appear to have worsened during his long immigration detention. His relationship with his ex-wife came to an end in 2013.

21. The detention of the applicant has made him learn that if he reoffends, his remaining in Australia is likely to end, and with it, his ability to remain in contact with his children. He has two Australian-born children, twins currently in school, now aged 13. He is close to his eldest child, who lived with him at the time he was taken into detention. Each of his children have made statements in this case, which are supportive of him.

22. He is contrite about his offending, a fact confirmed by a number of witnesses who gave evidence.

23. Those persons include two psychologists and a lady who has contact with him as member of the Support for Asylum Seekers Sydney Group. She was formerly the principal of the Emanuel School in Sydney and I was impressed by her evidence. She also expressed confidence that he would not be a danger to society if he were released. That confidence was based not only on his five years of good behaviour prior to his detention, but also on his clear love of his children and his desire to support them in their lives.

24. One of the two psychologists who gave evidence, Ms Herrero from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), has current contact with him. She described him as being of good nature, respectful and well-mannered. She spoke of his regret about his actions and the likelihood that he will be a responsible person in society. She expressed the view that his current living conditions in detention, where he has not been able to connect with his children except by telephone, have heavily impacted his depressed mood and social isolation. He told her that his focus is to be reunited with his children and live a peaceful life.

25. His response to therapy has been good and he has a desire to continue therapy with her organisation if released.

26. Mr Kulkarni, a psychologist, worked with the applicant during 2019. He described the applicant’s prospects of recidivism as low/negligible. The respondent submitted that the risk of his recidivism was low, not negligible. Mr Kulkarni did not administer any psychometric tests designed to quantify his risk of recidivism, and I am not persuaded by his evidence that the risk of the applicant’s recidivism is negligible, as distinct from low. That is not to say that there is no reason to be confident that he will not reoffend.

27. The applicant has a strong desire not to reoffend, and a strong motivation to refrain from any conduct likely to lead to his deportation and separation from his children, including his stepdaughter and her two children.

28. His ex-wife has little to do with him and has re-partnered. The applicant had a good relationship with a girlfriend subsequent to 2013, and she visited him regularly in detention before her departure to Dubai.

29. His conduct from 2008 to 2013 was serious, and affected by his alcohol consumption, which has since ceased altogether.

    Best Interests of Minor Children in Australia

30. The second mentioned mandatory consideration is the best interests of minor children below the age of 18 years.

31. The applicant’s eldest son, who last year was in year 10, proposes to seek a trade course at TAFE with his father’s approval. He wrote a detailed letter describing a close relationship with the applicant and the assistance and support given to him by his father.

32. The applicant’s 13 year old twins, a boy and a girl, wrote letters dealing more with the historical position between their father and them when in personal contact with him. They call him at least monthly and miss his personal contact. I gathered that the twins’ mother has not assisted with bringing them to her former husband. The applicant misses them, and he and they desire to re-establish personal contact. The twins have a relationship with their stepfather but nevertheless express a desire to have renewed contact with the applicant.

33. The applicant also said that he intends to reconnect and support his two grandchildren who are under 2 years of age, if he is released from detention.

34. It is clearly in the best interests of the children that he is not deported.

    Expectations of the Australian Community

35. The mandatory consideration of expectations of the Australian community is to be understood as a deemed set of community expectations which would not usually favour an applicant and do not favour this applicant.

    OTHER CONSIDERATIONS

36. Among the mandatory “other” considerations is international non-refoulement obligations. Protection obligations are owed in respect of the applicant. It is conceded by the respondent that if the applicant were deported to South Sudan, Australia would be in breach of its international treaty obligations.

37. The respondent puts that despite those obligations, the effect of s 197C of the Act is that there would be an obligation to refoul the applicant, absent the grant of another visa by the Minister personally. There is no evidence of any proposal of the Minister to do so. As was held in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, there is no basis for any assumption that the Minister’s personal, non‑compellable power to issue another visa will be exercised. Such an assumption would be a matter of speculation.

38. There is also another matter. The harm that the applicant would likely suffer if returned to South Sudan, where he is not likely to be able to access needed medical assistance for his mental health and physical disabilities, and where he may suffer injury or death, represents a strong discretionary reason not to return him to South Sudan.

39. The consideration of impact on family members has already been dealt with in relation to the applicant’s children and grandchildren. The applicant also seeks to reconnect and support his stepdaughter, and the applicant described their relationship as good.

    DECISION

40. Balancing the various matters to which I have referred above, the correct or preferable exercise of discretion appears to me to be that the discretion in s 501(1) of the Act should be exercised in favour of the applicant. The matter will be remitted to the respondent for further consideration with that direction.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 2 March 2021

Date(s) of hearing:	11 & 12 January 2021
Solicitors for the Applicant:	Ghan Migration Solutions
Solicitors for the Respondent:	Australian Government Solicitor