BQHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3734
•23 September 2020
BQHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3734 (23 September 2020)
Division:GENERAL DIVISION
File Number(s):2020/4081
Re:BQHJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date:23 September 2020
Place:Brisbane
The decision under review is affirmed.
..........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 204 Woman at Risk visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCFC 109
Afu v Minister for Home Affairs [2018] FCA 1311
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Suleiman v Minister for Immigration and Border Protection: [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIAL
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 Art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
23 September 2020
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 20 year old citizen of Afghanistan who has lived in Australia since he was 13 years old.
On 14 March 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class XB Subclass 204 – Woman at Risk visa (“visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[1] On 10 April 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] On 1 July 2020, the Respondent decided not to revoke the cancellation.[3]
[1] Exhibit G1, Section 501 G-documents, G8, pages 345 to 347.
[2] Ibid, G2 page 74.
[3] Ibid, G2, page 17.
The Applicant subsequently lodged an application for review in this Tribunal on 8 July 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 7 and 8 September 2020. The Applicant, his wife, his mother and his aunt gave evidence by video conference, and an expert witness gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A” and written submissions from both parties on a specific issue relating to non-refoulement.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]
[4] [2018] FCAFC 151.
[5] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[6]
[6] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to a term of imprisonment of two years. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7]
[7] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[8] and “Other considerations”.[9] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[8] The Direction, paragraph 13.
[9] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[10]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[11]
[10] [2018] FCA 594.
[11] Ibid, [23].
BACKGROUND AND OFFENDING
Before coming to Australia
The Applicant’s parents are from Afghanistan. Before he was born, they fled to Pakistan which is where he was born in January 2000.[12] His father used to travel to Afghanistan for work and when the Applicant was around 10 years old his father did not return. He is thought to have been killed by a bomb blast.[13] His younger brother was born in January 2010.[14]
[12] I note that his day and month of birth are recoded as 1 January which is not uncommon with displaced people and does not necessarily reflect his actual day and month of birth.
[13] Exhibit G1, Section 501 G-documents, G2, page 78.
[14] I refer to footnote 12 regarding the Applicant’s date of birth.
Life was very hard for the Applicant and his family in Pakistan. Among other things, they were very poor, there was violence in the community and from a young age the Applicant worked very long days performing manual labour.[15]
Arrival in Australia
[15] Exhibit G1, Section 501 G-documents, G2, page 78.
In February 2013, when the Applicant was 13 years old, he travelled to Australia with his mother, his younger brother, and aunt.[16] His was granted a Woman at Risk visa as a secondary applicant. In Australia, he lived with his mother, brother and aunt (until his aunt got married).[17] He attended a school that had a special program where he learned English. He said he was happy to come to Australia, that people were helpful and supportive and he was not in fear anymore.[18] He enjoyed school – he had male and female friends and he got along well with his teachers.[19] While attending school, he worked part-time for his aunt’s husband (his uncle).
The rape offences
[16] Ibid, G2, page 60.
[17] Ibid, G2, page 77.
[18] Ibid, G2, page 79.
[19] Ibid .
In March 2015, when he was 15 years old, he committed two offences of rape, one as principal and the other as an accessory. He committed the offences with two older Afghani friends.
The Applicant initially denied any involvement in the offences and pleaded not guilty. He was found guilty by a jury on 1 December 2017. He unsuccessfully appealed those convictions. On 7 December 2018, he was sentenced as a juvenile – as he was a juvenile when he committed the offences – to two years of detention. The learned Judge’s sentencing remarks included the following description of the offending (the Applicant’s name is redacted and is represented here as “Applicant”. His co-offenders are represented as “M” and “R”):
“The complainant was 26 years old. She had been out, in effect, at a club or a bar with a friend and had had a considerable amount to drink. In cross-examination, she accepted she was pretty drunk by the time she left the last place to walk towards her brother’s home at Logan.
She spoke to one man who was joined by two others. That was you two and a third person, [R]. There was some CCTV footage that showed that meeting. The effect of it was that there was some discussion, some conversation, and the complainant got in a car with the three of you. [R] was the driver. You [Applicant] were in the back seat and so you [M], were in the front passenger’s seat.
The complainant said, when it was clear that you were not taking her home, she wanted to get out. Her evidence was that her requests to get out were ignored and the car just kept moving and the three of you continued to speak in a language she did not understand…
[R] drove the car to an isolated place and only you [M] stayed in the car; the other two got out. You [Applicant] stayed in the car. The complainant…described the car being driven down a dirt road to a dark bush area. She said that she wanted to go home.
You [Applicant] then raped her in the back seat. She described your moving her legs onto the seat. You took her shorts off and lay on top of her. She then said again, in her evidence, that at that time she said she wanted ‘to go the fuck home’, but you had sex with her. She did not know if you were wearing a condom or if you ejaculated. The other two were outside but the back passenger door was open, and it was after that that you got out of the car. A second man - and that was you, [M] - got into the car and got on top of her and put your penis in her vagina. And her evidence was that, again, she told you more than once:
I want to go the fuck home.
… After that, the driver of the car told her to put her clothes on and, in effect, said ‘That’s enough and told the complainant that she was safe then. She was dropped at the front of her brother’s unit and she complained immediately and the police were called.
So you are both to be sentenced for an offence that you personally committed and the offence of the other on the grounds, at least, that by your presence, you encouraged and aided…. It is difficult to firmly assert that it was always the plan to rape somebody, but that is what happened once she was in your car. She was taken to an isolated spot and raped.
The complainant has not prepared a victim impact statement but her mother, [mother’s name redacted], did and read it to the Court. The purpose of the reading is primarily therapeutic. I do take into account the matters in that statement, and there is no doubt that your offences had a significant and lasting effect on the complainant. It was, however you look at it, a disgraceful and appalling joint action against someone who was vulnerable because she was out on the street late at night quite intoxicated, and your conduct is to be condemned.
You went to trial and neither of you has pleaded guilty. You are not sentenced to longer because you did not plead guilty, but it is not open to say…that you have taken responsibility for your actions, demonstrated in any degree of insight into the effect of your actions on the other person, or demonstrated a willingness to facilitate the course of justice. I say that with respect to you, [Applicant] subject to some matters in the pre-sentence report that were prepared about you.”[20]
[20] Exhibit G1, Section 501 G-documents, G2, pages 43 to 44.
His Honour had following to say in relation to this sentences that he imposed:
“You, [Applicant], were only aged [text redacted in original] at the time so you are to be sentenced under the Youth Justice principles...and a completely different set of principles apply, and the sentence for you, [Applicant], will be quite different from that imposed on [M]. There cannot be parity. There will not be any similarity between the two sentences because of the entirely different sentencing system.
Primarily, with respect to you, [Applicant] I am to take into account that you were very young and I am only to impose a sentence of detention as a last resort. I am satisfied that the seriousness of your offences requires that I do impose a sentence of detention, but it is to be for the shortest appropriate period.
There is much to say on behalf of both of you. The Court has had the benefit of a lengthy report prepared by Youth Justice and with a detailed psychological report prepared by the [text redacted in original]. Before I go into that, I should also note that [Applicant] you have a number of entries in a criminal history, all of which postdate the charges that I have to sentence you for. One is entering premises and committing an indictable offence, and that was breaking into an Asian fast food outlet. You were detected by fingerprint match. And there was a cannabis offence, too.
… You [Applicant] came to Australia in 2013 when you would have been just [redacted in original]. You are from Afghanistan, but before being in Australia, you were in Pakistan and effectively stateless. You lived a very poor existence in Pakistan. According to the report, your father was killed in a Taliban attack. The report writer noted scars on your forearms and fresh scratches the second time that you were interviewed. You were anxious and concerned about the shame that you would bring on your family.
The report, though quite long, has been very useful. It covers matters such as your cultural context, as well as some physical and other types of abuse you suffered while in Pakistan. You worked from a very young age and, according to the report, there have been revelations by child safety organisations in that region of young people working and being sexually exploited, and you have revealed a specific incident of that. The other aspect that is interesting in the report – informative - is that where, as I said earlier, you have not demonstrated any remorse or acceptance of responsibility, it must not be forgotten that you are and were very young. And to admit any such offence must bring great shame on you and your family. It is also said in the report that for young people like you, who have survived such extraordinary experiences the process of adjusting to significant differences in culture and lifestyle in Australia can be challenging. When you came to Australia, you were given such help as the Australian community could. You have been accommodated and educated to some degree.
I have been told that because your bail conditions required you not to see your co-accused, you stopped going to school. The psychologist, after applying various tests, considers that you experience trauma - related stress symptoms-for example, post-traumatic stress disorder and/or mood disorder- the distress compounded by the present circumstances. That is to say, being in the legal system and about to be sentenced. The reporter does make findings, after applying various instruments, that you are a low to moderate risk of reoffending.
… The reality is you find yourself in a very different position. You are now married with a young child. Your family, including your mother, are with you in Court. You have been on bail for a long time, which has, with its conditions, included a curfew and reporting,
…
I take into account that, prima facie , you will be deported. That would be devastating for both of you and your families. In your case, [Applicant] - having come recently, as it were, from late of Pakistan, but really being Afghan - it is hard to know where the Minister would deport you too (sic). So I take into account that the time you serve in custody may be more difficult for you than others. Because the first thing you look forward to upon release is probably immigration detention while you attempt to stay in the country. But the offences you have committed are too serious for me to impose other than significant custodial penalties.”[21]
Events while the Applicant was on bail
[21] Exhibit G1, Section 501 G-documents, G2, pages 43 to 46.
When the Applicant was charged with the offences, he was granted bail with strict conditions including a curfew and a prohibition on associating with his co-offenders. This meant he could no longer attend school because M was at that school. He was not accepted into another school because his English was not good enough. Instead he worked for his uncle.[22]
[22] Ibid, page 79.
The Applicant engaged in some alcohol abuse and drug use (cannabis) in this period. He occasionally cut and scratched his arms in attempts at self-harm. He said he engaged in this behaviour because of the anxiety and pressure of the charges against him. This is addressed in more detail later in these reasons.
On 4 May 2017, he committed “Enter premises and commit indictable offence by break”. An Asian take-away shop had been broken into and items had been stolen. [23] The police identified the Applicant by a fingerprint at the scene. The Applicant later said he had met some people on the train who offered him alcohol and persuaded him to go with them. He said he passed out and could not remember the offence.[24]
[23] Exhibit R2, Respondent’s Summonsed Material, SM1, page 7.
[24] Exhibit G1, Section 501 G-documents, G2, page 125.
On 16 May 2017, he committed “Possess utensils or pipes etc for use”.[25]
[25] Ibid, page 41.
In around June 2017, the Applicant started dating Ms N. She soon became pregnant. They married in September 2017.[26]
[26] Ibid, page 140, paragraph 21.
Some days later, in September 2017, the Applicant committed “Driving of motor vehicle without a driver licence”.[27]
[27] Exhibit R2, Respondent’s Summonsed Material, SM1, page 1.
On 28 March 2018, after being found guilty of the rapes and while still on bail, the Applicant committed “Possess utensils or pipes etc that had been used” and “possessing dangerous drugs”.[28]
[28] Exhibit R2, Respondent’s Summonsed Material, SM1, page 49.
In early April 2018, the Applicant’s daughter, Child A, was born. The Applicant stopped smoking marijuana after Ms N found that he had been doing that, mostly around his friends, and told him to stop. She said she would not allow him to be stoned around their daughter.[29] Ms N also stopped the Applicant from consuming alcohol after discovering him smelling like alcohol.[30]
[29] Exhibit G1, Section 501 G-documents, G2, page 141, paragraphs 35 to 36.
[30] Exhibit A7, Supplementary Statement of the Applicant, dated 1 September 2020.
Between 27 March and 4 April 2018, the Applicant committed “Contravene direction or requirement”. This offence arose from the Applicant failing to attend the police station for the taking of identifying particulars within seven days of being directed to by a police officer.[31]
[31] Exhibit R2, Respondent’s Summonsed Material, SM1, page 4.
The Applicant’s mother told the Tribunal that Ms N had helped the Applicant a lot – that when the Applicant wanted to go out with his friends, Ms N would not let him:
“and then she would say to him that if you want to go out I’ll go with you as well. And then [the Applicant] would say no if you want to go with me, I won’t go. So she will make him stay home.”[32]
[32] Transcript, page 100, lines 29 to 44.
The Applicant’s aunt told the Tribunal much the same. She said that was the change that she saw in the Applicant was due to Ms N. [33]
[33] Transcript, page 117, lines 14 to 32.
The Applicant’s mother said the Applicant obeyed Ms N’s wishes the majority of the time.[34]
The Applicant’s evidence in relation to the rapes
[34] Transcript, page 100, lines 29 to 44.
The Applicant initially denied any involvement in the rapes. Dr Danielle Shumack interviewed the Applicant for a total of six hours in October 2018 for the purpose of preparing a pre-sentence report.[35] In that report, she quoted what the Applicant told her about the night of the offence:
“I was working at the grocery store…[R] called me and asked if I wanted to hang out. He picked me up after work, I went and asked my mum if I could go out, and for (spending) money. I also had to get permission from my Uncle… I agreed with my mum to be out for two hours. The boys were waiting outside in the car, [R] and [M]. We drove around Woodridge in [R’s] car. They bought Vodka and red bull from the Foodworks and then we drove to the Gold Coast…They…got drunk. [M’s] mum called, we had to go home, but they had to sober up. Later [R] drove home, I fell asleep listening to my headphones. [M] decided to stay with [R] to chill out. We parked back near Centrelink in Woodridge. We saw the complainant near the train station. A Maori man with tattoos took her near the park. We drove to near the primary school and parked. We went back and decided to talk to the lady. [M] couldn’t speak much English. I approached her with him and asked if she wanted to come and chill, she followed us back to the car, she hopped in, she was drunk. We went past the 7-11, she didn’t talk much but I told her my name. [M] wanted to find somewhere to park. She (the complainant) was talking to [M], I said I wanted to go home. We went back past the pool and then back to my home. [R] dropped me back home. When I went inside mum slapped me for getting home late. I’m not sure if the boys did anything once they dropped me off… I think they may have picked someone else up when I got [out of the car]. I wasn’t there, I asked the police to check the video cameras so they could see when I got out of the car, but they never did.”[36]
[35] Exhibit G1, Section 501 G-documents, G2, page 89 to 113.
[36] Ibid, pages 101 to 102.
Dr Shumack said she understood that the Applicant had maintained that version of events since his initial interview with police. There are a few details that the Applicant said he did not tell the police, such as that he invited the victim to “come and chill”. However, he did agree with other details. Nothing much turns on this as the Applicant has since given a different version of events.
At some stage after he was sentenced, the Applicant claimed for the first time that he had been too intoxicated during the rape to recall it. This was reported by a Ms Marissa Piat , psychologist, who started counselling the Applicant in March 2019 and by Professor James Freeman who interviewed him in March (and December) 2019 for the purpose of a risk assessment in the context of seeking revocation of his visa cancellation.
In a statement dated 8 January 2020, attached to his revocation request, the Applicant said:
“On the day of this incident, I was working at [my uncle’s] shop when two older boys I knew from school arrived and told me to come hang out with them. Their names were [M] and [R]. They were Afghan refugees like me and lived in Logan. I had spent time with [M] and [R] at school. We became friends and we helped each other with our English.
We drove to the Gold Coast. We started smoking and then [M] and [R] began drinking. They offered some to me. I said no as I had never drunk alcohol before. [M] started pressuring me. He called me a “pussy”. I started drinking. I do not know what I was drinking but it was very strong and tasted awful.
I quickly became drunk. It affected the way I was talking. I had problems walking and [M] and [R] had to help me back to the car. I threw up a couple of times on the drive back. I also passed out in the car at some point. I am very ashamed of this.
When we arrived back in Logan, we saw a woman walking along the road. I do not remember how it happened but she got into the car with us. I believe she had also been drinking. I continued drinking from a white bottle that had a clear liquid in it. After this, I passed out. I do not have any memory of having sex with the woman who got into the car.
The next day I woke up in my home. I saw [R] later that day. He told me I had sex with the woman in the car. I do not believe him because I had no memory of this happening.
I was later charged by police with [M] for raping this woman. I plead not guilty as I did not believe this had happened.
I was on bail for around three and a half years.
I had some conditions on my bail order. I was not allowed to have any contact with [M] or [R] or the victim and I had to live at my family’s home in Logan Central. I had to sign into the police station a couple of times a week. I was also on a curfew.
After the trial and my conviction in December 2017, I stayed on my bail order for a year until I came into prison.
I struggled a lot with my charges and the trial.
More than anything, I was so ashamed of what I had been accused of and drinking alcohol. My family were in shock that I had been charged with these crimes. I felt so ashamed that I was putting them through this stress and bringing shame to my family. Over time I got more and more scared about going into prison as I got closer to my trial and being away from them.
On some occasions I got drunk with some friends from school on the weekends. This became my way of pretending things were normal and getting rid of the pressure. On one of these times in 2017, I got drunk and broke into a fast food store. I don’t know why I did this but it was my fault for drinking. I was stupid and I should not have done this.”[37]
[Underlining added]
[37] Exhibit G1. Section 501 G-documents, G2, pages 80 to 81.
The Applicant gave evidence at the hearing that he had never consumed alcohol before that night.[38]
[38] Transcript, page 13, lines 3 to 5.
Based on the verdicts and the sentencing remarks, I am satisfied that the Applicant got out of the car, stood talking to the victim (which was captured on CCTV), got back into the back seat of the car where the victim also sat, travelled in the car while it went to an isolated location despite the victim’s requests to be let out of the car, spoke to M and R in a language that was not English, pulled the victim’s shorts off and positioned her legs so he could have intercourse with her, lay on top of her, inserted his penis into her vagina, continued to rape her despite her protesting and pushing his chest, got off when he had finished, exited the car, remained outside the car while M raped the victim and got back into the car after M had finished raping her.
No medical evidence was put forward to explain how a person who was as paralytically drunk as the Applicant claims he was could have walked out of the car, stood conversing with the victim, got himself back into the car, taken off the victim’s shorts, put his body in an appropriate position to have intercourse with her, penetrated her, then stood up and exited the car afterwards.
Nor has the Applicant been consistent with respect to this version of events. In his statement dated January 2020, he recalled continuing to drink after the victim got into the car. In his evidence to the Tribunal in September 2020, he said he saw a person wearing white outside Centrelink, and he lay down on the seat and has no memory after that point. He said he only knew the person wearing white was the victim because he was told later.[39] It might make sense that fragments of a person’s memory would come back over time. But it does not make sense that the Applicant recalls less now than when he made his statement in January 2020.
[39] Transcript, pages 37 and 38.
Further, there is not one iota of evidence, except the Applicant’s word, that he was intoxicated on the night of the rape, let alone so drunk that he has memory loss. The sentencing remarks do not contain any mention of the Applicant, or any of the offenders, being intoxicated. The Applicant’s mother let the Applicant into the house when he returned home on the night of the rape.[40] If he had, earlier that night, been intoxicated to the point of vomiting and later having memory loss, it is most unlikely that it would have gone unnoticed by her that he had been consuming alcohol. The Applicant’s mother was questioned extensively about why she was upset with the Applicant when he got home that night. She said she was upset because he had been out with a person she did not approve of. She was asked if she approved of the Applicant drinking alcohol when he was 15, and she said an emphatic “no”. She was asked if she ever found out that he had been drinking and she said “no”.[41]
[40] Transcript, page 45, lines 1 to 12.
[41] Transcript, page 112, line 8 to page 112, line 16.
I am not satisfied that on the night of the rape offences, the Applicant was heavily intoxicated. Specifically, I do not accept that during the period when he was in the company of the victim, he did not know what he was doing or that he did not have full control over his actions. I find it quite implausible that he does not remember any part of the offending, although I do not find it necessary to make a finding on that.
The Applicant has exhibited symptoms of Post-Traumatic Stress Disorder (“PTSD”). There is no direct evidence that the Applicant suffered symptoms of PTSD before the sexual offences. There is a great deal of evidence that he suffered symptoms of depression and anxiety after he was charged, because of the legal proceedings. Much of this is summarised in the reports from Ms Piat and Ms Nan Cameron, psychotherapist. I am not satisfied that the Applicant was struggling with symptoms of PTSD around the time he committed the rapes.
Other matters
Based on the psychological evidence which I will discuss in due course, I accept that the Applicant’s past trauma in Pakistan made him less able to cope with adversity and therefore more susceptible to depression and anxiety. I accept the evidence of Professor Freeman that PTSD symptoms come and go. The Applicant suffered from a great deal of anxiety and stress after being charged. As reported by Dr Shumack, the Applicant engaged in self harm (cutting) because of his distress over the charges he was facing. The Applicant continues to suffer symptoms of anxiety and depression due to his current predicament. The Applicant expressed suicidal ideation in the event that he was incarcerated, and again in the event that his visa was not returned to him.[42] There is no evidence that he tried to take his life when those events came to pass.
[42] Exhibit G1. Section 501 G-documents, G2, page 118.
The Applicant revealed to Dr Shumack in November 2018 that when he was 11, two men with a gun took him on his way home from work, and one raped him.[43] They threatened to kill him and his mother if he did not comply. He was able to escape before the other raped him. He also told Ms Cameron and Professor Freeman. In his statement dated 8 January 2020, he said:
“When I was around 11 years, I was walking home from work when two men drove up next to me on a motorbike and held me at gunpoint. They made me go with them and took me into a field where one of them raped me while the other held me down. I ran away after the first man raped me. It hurt a lot to walk but I gradually made my way home.
When I got home, my mother was very worried about me but I did not tell her about the rape. She noticed I was bleeding from my bottom but (sic) told her I had cut myself at work by sitting on something. At the time, I was too afraid to tell her what had happened to me. I did not want to worry her with what had happened to me as she already had so many troubles. I was ashamed and worried she may think I went with them willingly. I also did not want to worry her with what happened to me.”[44]
[43] Ibid, page 95 and 96.
[44] Exhibit G1. Section 501 G-documents, G2, page 78, paragraph 26 and page 79, paragraph 27.
There are some inconsistencies and improbabilities in the accounts he gave, and I have some concerns about whether it really happened, however as it transpires very little turns on it. I accept that there was other trauma he experienced in Pakistan that could have predisposed him to suffer symptoms associated with PTSD in later life.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that 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 applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
The Applicant committed a very serious sexual offence against a woman who was vulnerable because she was alone and intoxicated. Upon seeing a vulnerable woman, the Applicant and his friends chose to take advantage of her vulnerability in one of the worst possible ways rather than help her or at the very least leave her alone. This offence was not impulsive or reckless. It was deliberate. The victim protested when she realised she was not being driven to her brother’s home, yet the Applicant and his friends carried on. She protested when the Applicant raped her, yet he continued to rape her.
If there was any doubt that this non-consensual invasion of the victim’s body was an act of violence, the fact that he used his body to pin her down removes that doubt. When he had finished, he vacated the car and his friend raped her. With this act, the rape became a gang rape which can only have added to the degradation of the victim.
The imposition of a custodial sentence is a measure of last resort and that is especially so when an offender is dealt with as a minor. As the learned sentencing Judge observed, completely different sentencing principles applied to the Applicant because he was sentenced as a minor and there could not be any parity between his sentence and the sentence imposed on M even though their offences were essentially the same. M, who was 18 years old at the time of the offences, was sentenced to six years imprisonment. Additionally, in arriving at the appropriate sentence for the Applicant, His Honour took into account, in the Applicant’s favour, his traumatic background, the challenges he faced adapting to Australian culture and the fact that he would likely be placed in immigration detention when he was released. Even with significant leniency afforded to the Applicant, he was sentenced to detention for two years, which is a substantial period of time.
The Applicant did not stop offending after being charged with rape. He committed a break and enter, three minor drugs offences and driving without a licence. He committed these offences while on bail.
Given the extreme seriousness of the Applicant’s first offence it is not surprising that his offending does not show a trend in increased seriousness. His later offending does, however, demonstrate a disregard for the law and Court orders.
I do not consider factors (g), (h) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh extremely heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The harm to individuals in the Australian community from further sexual offending of the kind committed by the Applicant cannot be overstated. Rape, particularly gang rape, is a gross violation that leaves the victim feeling powerless and degraded. The harm includes physical, emotional and psychological trauma that can be extreme and long-lasting, potentially pervading every aspect of the victim’s life. Family and loved ones of the victim often suffer with the victim. This harm is extremely serious.
Should the Applicant engage in further drug and property related offences, the harm to individuals in the Australian community includes damage to property and financial loss. While this harm is not as serious as the harm from rape, it is not insignificant.
Likelihood of engaging in further criminal or other serious conduct
If the Applicant is allowed to return to the wider community, he plans to live with his wife, daughter, mother and younger brother, abide by his parole conditions, immediately seek employment, and re-engage with counselling.[45] He has the support of his family. The Applicant speaks with his wife daily and he describes her as loving and supportive.[46] I am confident that Ms N is committed to making sure the Applicant conducts himself as a good husband and father and does not get into any more trouble. I am equally confident that the Applicant has found the prosecution process and his subsequent detention very distressing and he does not want to experience that again. He does not wish to be removed to Afghanistan.
[45] Exhibit G1, Section 501 G-documents, G2, page 131.
[46] Ibid, page 81.
The Applicant’s family members, a family friend and his sister-in-law all provided letters or statement of support that, broadly, speak well of him, say his offending was out of character and that he was influenced by bad friends and express confidence that he will not re-offend. I take that evidence into account in the context of his offending and the totality of the evidence, and I am mindful that a person’s family and friends tend to be more sympathetic, positive and optimistic about them.
I am satisfied that the Applicant has not committed any breaches while in prison or Immigration Detention and that, despite the availability of drugs and alcohol in those places, he has abstained.
The Applicant, while maintaining that he has no recollection of the rapes, said he now accepts that he committed them, because he was put in prison and his visa has been cancelled.[47] He said he felt great shame and remorse for his offending and he would never offend again.
[47] Transcript page 19.
There are two risk assessments before me and some evidence of counselling that the Applicant has undertaken.
The presentencing report referred to by the learned Judge was prepared by a Dr Shumack, senior clinician, forensic and clinical psychologist, of Griffith University’s Griffith Youth Forensic Service”. It is dated 14 November 2018.[48] This is an independent report that was commissioned by the Court rather than by any of the parties to the criminal proceeding. For the purpose of the report, Dr Shumack interviewed the Applicant for approximately four hours with his wife present, and subsequently she interviewed him for approximately two hours with his mother, uncle and a youth worker present. Dr Shumack assessed the Applicant to have “sound comprehension of the English language” and she said that additional translating support was provided by his wife in his first interview and his uncle in the second interview.
[48] Exhibit G1. Section 501 G-documents, G2 pages 89 and 113.
Dr Shumack had access to the prosecution witness statements, including statements made by the victim, the Schedule of Facts, the Transcript of the trial and other documents relating to the rape prosecution. The report is very comprehensive with a great deal of information that relates to cultural matters, the Applicant’s background, the type of offending he engaged in, and his present circumstances.
Dr Shumack reported the following:
·the Applicant’s thought processes appeared normal with no perceptual abnormalities;
·the Applicant’s intelligence appeared to fall in the average range;
·the Applicant reported that when he lived in Pakistan he was exposed to significant levels of violence within the community and he was assaulted on numerous occasions;
·the Applicant reported that when he was 11 years old, he was on his way home when two men approached him. One forcibly sodomised him at gunpoint and he was able to escape before being sexually assaulted by the second. He did not tell his mother what happened to him;[49]
[49] Exhibit G1. Section 501 G-documents, G2, page 96
·after arriving in Australia his family was supported by Access Community Services Limited for the first 12 months. They provided accommodation and the Applicant enrolled at a high school with an Intensive English School. He attended that school from mid-2013 until his offences were detected and he was no longer allowed to attend the school because of his bail conditions. The Applicant enjoyed school;[50]
·the Applicant was provided with some formal sexuality education after his arrival in Australia when he was 13/14 years old while attending high school;[51]
·the application of psychometric assessment tools indicated that the Applicant was experiencing trauma-related stress symptoms and/or mood disorder;[52]
·the Applicant said that he was anxious, and he identified a history of self-harm and suicidal ideation in response to anxiety related to his offences and the subsequent legal process. He indicated that he had considered a plan to suicide should he be incarcerated in future given the “shame this would bring” upon “his family”;[53]
·the Applicant’s wife reported that on a few occasions when she has been displeased with the Applicant she has slapped him;[54]
·according to the Schedule of Facts the Applicant and M approached the victim and told her they would drive her home;[55]
·(based on the materials before her) when police interviewed the Applicant on 15 April 2015, he said that it was M who approached the victim while the Applicant was in the car. He said she was asking him his name and he told her, they went directly to his home and dropped him off in front of his house. He denied any involvement in the sexual offences. He and M were later implicated by another person. The Applicant and the two other offenders discussed taking the victim to an isolated area where she would comply out of fear;[56]
·the Applicant’s denial of his involvement in the rape offences “may present a barrier to exploring his pre-offence motivations within possible future offence specific therapeutic interventions”;
·“Currently there is a dearth of research specific to youth rapists particularly those who are (sic) commit offences against adult stranger women whilst in the company of co-offenders. However, research on incapacitated sexual assault and multiple perpetrator rape may assist in understanding [the Applicant’s] offending behaviour.” (The reference to incapacitated sexual assault was a reference to the victim, not the Applicant, being incapacitated); and
·The Applicant failed to restrain his desire for sexual gratification despite the harm caused to the victim and her resistance.[57]
[50] Ibid.
[51] Ibid, page 100.
[52] Ibid page 98.
[53] Ibid, page 93.
[54] Ibid, page 100. She was not asked if she agreed with this in the hearing.
[55] Ibid, page 101.
[56] Ibid, page 106
[57] Exhibit G1. Section 501 G-documents, G2, page 107.
Dr Shumack stated in her report that:
“The current assessment is based on an ecological approach that considers individual, family, environmental/situational, community and cultural factors in understanding sexual offending behaviour”[58].
[58] Ibid, page 91.
Dr Shumack administered two different risk assessment tools relevant to juvenile sex offenders. She noted that such tools cannot definitively indicate whether an individual will reoffend but can only provide a guide for assessing probable levels of risk based on the information available at the time of assessment. She further noted that risk predictions should be repeated either after a fixed time interval, for example 12 months, or following significant change in the risk factors identified. She said the Applicant’s results were elevated due to his ongoing denial and his limited understanding of risk factors and risk management strategies. She said given his ongoing denial it remains uncertain whether he presented with deviant sexual interests or attitudes supportive of sexual offending. The application of each assessment tool resulted in a low to moderate risk of sexual reoffending.[59]
[59] Ibid, pages 107 to 108.
Dr Shumack said that in terms of treatment recommendations:
“Sexual offence specific interventions may include: education about appropriate and inappropriate sexual behaviour, Australian laws and sexual ethics costs; consenting relationships; perspective taking and victim empathy; and safety planning to more effectively assist [the Applicant] with the self-management strategies to cope effectively within high risk situations”. [60]
[60] Ibid, 110.
She also recommended that the Applicant’s wife and mother engage in psycho-educational and supportive counselling to assist them in understanding risk and protective factors which contributed to the Applicant’s offending.[61]
[61] Exhibit G1, Section 501 G-documents, G2, page 110.
It is apparent that, at that time, the Applicant had not made any effort to understand what it was about him that predisposed him to commit the sexual offences. Dr Shumack suggested various possible contributing factors including:
·the fact that adolescent sexual abusers report higher incidences of having been the victim of sexual abuse than non-sexual abusers;[62]
·cultural influences such as Pakistan being a strongly patriarchal society with a high incidence of gender-based violence;[63]
·lack of education from the Applicant’s family in relation to sexuality or ethical sexual practices;[64]
·the fact that some studies suggested that offenders in multiple perpetrator rapes are more likely to be of an ethnic minority group from a single parent household with low education and poor employment prospects who present with average non-deviant personality profiles;[65] and
·that multiple perpetrator rapes could also involve peer pressure.[66]
[62] Ibid, page 99.
[63] Ibid, page 99.
[64] Ibid, page 98.
[65] Ibid, page 104.
[66] Ibid, page 104.
However, it is noted that all of her suggestions were speculative only.
Ms Marissa Piat, psychologist, provided counselling to the Applicant between May and November 2019. In a report dated 6 September 2019, Ms Piat, said the Applicant had attended seven counselling sessions since 31 May 2019. She reported that the Applicant had been experiencing nightmares, flashbacks, hypervigilance and mood disturbances.[67] She said he required ongoing counselling for issues to do with his custodial environment and to manage his symptoms associated with “likely Post Traumatic Stress Disorder”.[68]
[67] Ibid, page 114.
[68] Ibid, pages 115 to 116.
Ms Piat said the Applicant had engaged appropriately in intervention, “willingly exploring the factors which contributed to his offending”.[69] She said that while the Applicant had previously maintained no recollection of the offence:
“…he has been able to explore this in more detail within the context of the current sessions. Areas noted included: his understanding of consent to engage in sexual behaviour, with [the Applicant] acknowledging that he and his co-offender had established the victim was willing to engage in sexual behaviour upon the basis of having observed her engaging in sexual behaviour with another party in the lead up to the offence (which he can now identify does not constitute consent); his diminishing view of females which he believed was influenced by the “culture shock” of his acculturation into Australian society and by his co-offender who he viewed as having “no respect for women”, his problematic relationship with his co-offender whereby he felt he was unable to “stand up” to him due to viewing him as a “brother” and being attached to this relationship due to his lack of male role models after his father’s death; and the disinhibiting effect of heavy alcohol consumption. Although it is noted that [the Applicant] does continue to externalise blame to his co-offender, his increasing insight regarding how his relationship with his co-offender impacted upon his behaviour is considered to be a positive shift, particularly when giving consideration to cultural factors including the shame associated with acknowledgement of sexual offending.
Following completion of his offending pathway, [the Applicant] was engaged in discussions regarding the consequences of his offending. He was noted to demonstrate empathy towards the victim of his offending, calling upon his own experience of victimisation to assist in identifying possible impacts including possible self-blame and emotional distress ‘(it would have been) a tough time on her‘. [The Applicant] was also able to demonstrate understanding of the wider consequences of his offending including the impact on his family and now wife. It is noted that within the sessions [the Applicant] has largely been able to demonstrate empathy and understanding towards others”.[70]
[69] Exhibit G1, Section 501 G-documents, G2, page 114.
[70] Ibid, page 115.
I have some concerns with Ms Piat’s report. First, in the hearing, the Applicant denied having told Ms Piat that he believed the victim was consenting because he had seen her have consensual sex with someone else.[71] I accept the Applicant’s denial which is consistent with his evidence that he had never encountered the victim before. Accordingly, it is not the case that a contributing factor, being confusion about consent, has now been remedied.
[71] Transcript, 55, lines 8 to 35.
Second, it is not apparent what Ms Piat meant by “diminishing view of women” due to “culture shock”, and whether this has been remedied. If the Applicant held racist, sexist or other inappropriate views about women that were supportive of rape, and Ms Piat had helped him remedy those I would expect that to be made plain in her report and for the Applicant to give that evidence. I note that the Applicant’s wife said the applicant has many female friends at school and that he had always observed him to be well-mannered and respectful to woman within their extended family and friends. Based on Ms N’s observations, it does not appear that the Applicant held a diminishing view of certain women in certain circumstances. I further note that the victim was not a school friend, other friend or relative.
Third, the evidence does not support the Applicant having been influenced to commit the offences by M (or anyone else). The Applicant raped the victim first. There was no evidence from any of the people who were present in the car and at the rapes to the effect that the Applicant was pressured or manipulated into committing the offence. The trial was transcribed and there is an appeal judgment that is in the public domain. None of that evidence was filed in these proceedings. If there is evidence in any of that material that tends to show that the Applicant was influenced or pressured into committing the offences, it is not before the Tribunal. Further, the Applicant cannot give such evidence while he maintains that he has no memory of the journey to the isolated location and the offending.
Further, I am not convinced that the Applicant really does feel much empathy for the victim. Despite claiming to know the horror or rape, including shame and self-blame, from his own experience, he has not made any effort to find out if there is anything he can do to alleviate some of the harm he has done. It is not known whether the victim would want to be contacted or whether the Applicant is allowed to contact her, but the fact is he has not enquired. He has not asked any of the counsellors he has spoken with if expressing remorse could help the victim, and he has not asked his lawyer if he is permitted to express his remorse to her.[72]
[72] Transcript, page 57, line 26, to page 58, line 20.
Without intending any criticism of Ms Piat, because she could only work with the information provided to her, I am not satisfied that she even came close to identifying what it was about the Applicant’s character or personality that predisposed him to rape the victim in the circumstances that existed, and therefore what his rehabilitative needs were. Accordingly, I am not satisfied that those needs have been addressed. I am fortified in this view by the Applicant’s own evidence. In his statement, dated 8 January 2020, he described what he got out of his sessions with Ms Piat as follows:
“I call Marissa my teacher because of how much she has helped me. She has taught me how to handle problems like stress, anger, pressure from friends and relationship issues. I told her about a couple (sic) gangs who were threatening me in prison and asking for money. She spoke to the prison about this and I was transferred.
With what Marissa has taught me, I now feel differently about my offending. Looking back now, I can see there were warning signs in [M’s] behaviour at school before my offending. He was disrespectful to girls, including girls I knew and was friends with. He got into fights with other people. I found myself apologising for him a lot to others. I should never have been friends with him.
I know I cannot blame [M] for my crimes and being in prison. I chose to drink that night and put myself in the car. I need to be stronger so I do not give in to these things in the future. I believe I am more now able to do this. Before I came to prison I was very young and stupid. I know so much more now.
I have spoken with Marissa a lot about my crimes. We have talked about how the victim would have felt. I am so ashamed I put someone else through this. I was raped as a child and I would never want to do this to anyone else. This haunted me for a long time. I still remember the victim’s mother reading speaking in Court about how the victim had suffered. I wish I could say sorry to her but I know I cannot contact her. I will never do this to anyone again”.
As can be seen from the extracted passages the Applicant attributed his offending to having been intoxicated and present in the car. There is no acknowledgment that once in the car, he chose to participate in luring the victim into the car, and he chose to rape her.
The Applicant was asked if, as part of the counselling he had done, he had asked for sex offending counselling, and he replied in the negative.[73] In the following exchange, he was asked if Ms Piat had helped in his rehabilitation and he responded by discussing other issues that she had helped him with:
Q: Okay. Have you tried to get some of that help through Marissa and the other counselling that you have had?
A: Yes. I had heaps of help from Marissa. Heaps of help, yes.
Q: Okay. I would really like to know about that. Can you tell me what she has done for you that will make you less likely to commit another sexual offence?
A: Because she reminds me that I was wrong when this whole situation, and because I didn’t remember anything from that night, and she told me that – like, (indistinct). She wanted to talk to me, and I wanted to talk to her every day. Like, when she comes, I would go to see her and talk to her, and whatever – for all week, whatever was on my mind, I would just go share it with her. Like, when I transferred to the different centre and [M] was there, he wanted to get in the same unit as me—in the same room—but I told the officers, they couldn’t help me, because I had to move out of the unit. When Marissa came, I talked to her and she said just ignore him and just don’t focus on him, and just tell the officers you have the same charges, because (indistinct) charges, you guys are not allowed to talk to each other. So, when I did that, it helped me heaps.Q: How did it help?
A: (Indistinct) what Marissa did.
Q: How did that help you?
A: Because if there was no Marissa, no Dr Freeman there for me and stuff to see them every week and stuff, I would just, like, go mental in my head. Like, I would – he is back into me like – I would get, like, into more trouble and stuff, inside the prison.[74]
[73] Transcript, page 60, lines 5 to 10.
[74] Transcript, pages 60 to 61.
The evidence is indicative of an offender who has no interest in undertaking specific sex offender treatment.
In a follow up report, dated 11 December 2019, Ms Piat said the Applicant had attended a further five sessions with her. The sessions had:
“focused largely upon the following: continuing to build his capacity to appropriate (sic) regulate his emotional state; developing increased understanding regarding healthy relationships and building interpersonal skills and; understanding how risk factors contributed to his offending behaviour.”[75]
[75] Exhibit G1, Section 501 G-documents, G2, page 117.
Ms Piat reported that the Applicant had received some general psycho-education and that he was engaged in various activities to assist with emotional regulation including cognitive strategies, mindfulness and controlled breathing strategies. He had described implementing strategies to positive effect both in the context of his psychological symptomology and frustration/distress associated with interpersonal difficulties. His capacity to manage his distress without engaging in deliberate self-harm appeared to have improved upon his final session.
Ms Piat said she considered that the Applicant had made “positive progress towards addressing many of the factors associated with his sexual offending behaviour”.[76] This is a very qualified statement that cannot give me confidence that the Applicant has addressed all of the factors associated with his sexual offending. Further, Ms Piat did not identify these factors and, given the concerns I have expressed above, I cannot accept that the Applicant has even made the positive progress that she spoke of.
[76] Exhibit G1, Section 501 G-documents, G2, page 118.
Ms Piat said the Applicant’s outstanding treatment needs were associated with his mental health and that he would also benefit from engaging in relationship/family therapy with his wife in relation to healthy relationships. She said in the final session he disclosed “suicide intent in the event that a decision is made for his removal from Australia following the finalisation of his ongoing immigration matters”.[77]
[77] Ibid, page 118.
The Applicant attended counselling sessions with Ms Cameron in relation to the rape when he was 11 years old. Ms Cameron reported that:
“At the age of 11, while living in Pakistan, [the Applicant] was kidnapped by two adult males. At the time he was on his way home from work. The men had a gun and threatened to kill him and his mother if he did not cooperate. One of the men fired a shot from the gun to prove his threat was serious. One of them and then raped [the Applicant] anally. [The Applicant] was able to escape before the second man was able to rape him.”[78]
[78] Ibid, page 119.
The Applicant told Ms Cameron that he felt he had brought shame on his family, and that he had allowed himself to be raped and was therefore to blame.[79] The quoted text was read to the Applicant at the hearing and he confirmed that it accurately described what happened to him.[80] The Applicant told the Tribunal that, despite being afraid that the men would kill him and his mother if he did not comply, he “just, like, took off and they looked around and I was just run away in the bushes and stuff” because:
“That kind of thing, when that happened, that really felt – feels, like, different and really upsetting, and afterward when that happens to you, you don’t even think about it, you’re just, like, wanting to die but you think about your family as well at the same time. So, I just ran off – if they were going to just kill me, they would just kill me there, but I just ran away, like, behind – in the bushes and stuff.”[81]
[79] Exhibit G1, Section 501 G-documents, G2, page 119.
[80] Transcript, page 56, lines 1 to 15.
[81] Transcript, pages 56 to 58.
Ms Cameron said there was evidence to support a diagnosis of PTSD and that the Applicant would need to see a psychiatrist for a formal diagnosis. Ms Cameron worked with the Applicant on strategies to self-monitor and self-soothe, she educated him on the effects of trauma on his brain and his ability to cope, she taught him about the impacts of hypo and hyperarousal and identified existing strategies are used to manage these states as well as teaching him some new strategies to use in addition to the existing ones.[82]
[82] Exhibit G1, Section 501 G-documents, G2, page 122.
The Applicant engaged Professor James Freeman to provide a “Forensic Psychology Assessment”. The assessment is dated 9 January 2020 and it was based on:
· interviews with the Applicant on 3 March and 2 December 2019;
· the Transcript of the sentencing remarks;
· Dr Shumack ’s pre-sentence report;
· the reports from Ms Piat;
· the report of Ms Cameron;
· the Applicant’s criminal history; and
· “sentence calculation sheet”.[83]
[83] Ibid page 124.
Notably Professor Freeman did not have access to the Schedule of Facts, the Transcript of the trial or any of the witness statements (all of which, Dr Shumack had).
Professor Freeman reported that in the first interview the Applicant maintained his innocence. The Applicant said he was driven around in a vehicle by two “old acquaintances (from the Afghan community)” and they consumed a substantial amount of alcohol. He said he convinced them to drive him home, that during that journey they came into contact with the victim who was intoxicated and they persuaded her to accept a lift. He said he had no memory of what happened after that but vaguely recalled being dropped off at 4am. He did not believe he committed the offences.[84] In the second interview, the Applicant accepted responsibility while maintaining that he had little recollection of the events due to his level of intoxication. He blamed his offending on non-consequential thinking e.g “I made a mistake” and alignment with a negative peer support group e.g “I was too close to a bad friend”.
[84] Exhibit G1, Section 501 G-documents, G2, pages 124 to 125.
In relation to the break and enter offences, Professor Freeman reported that the Applicant had said he was given alcohol by two people that he met on a train and he was persuaded to accompany them to break into an Asian store. He said he put his hand on a hot water system, sat down and passed out. He woke up in the morning. [85]
[85] Ibid, page 125.
Professor Freeman interpreted Ms Piat’s report to mean that the Applicant had achieved an increased level of understanding into the origin of the offending.[86] As stated above, I do not accept that she did so.
[86] Ibid, page 127.
Professor Freeman made a confirmatory diagnosis of PTSD stemming from the Applicant having been raped as a child, and a diagnosis of Persistent Depressive Disorder due to exposure to multiple stressors in recent years including “(incarceration, separation from family, worry about visa application outcome)”.[87] He said the current visa proceedings appear to be the Applicant’s primary stressor and “are likely fuelling his current symptoms (rather than past trauma)”.[88]
[87] Exhibit G1, Section 501 G-documents, G2, page 128.
[88] Ibid.
Professor Freeman noted that the Applicant told him that when he was 11 a man took him to a remote location and raped him; “They pulled a gun and knife on me and took me to a dark place. I thought I was going to die.” He did not tell the authorities because “You have to pay money to the police to arrest them”.
Professor Freeman said there was evidence that the Applicant was vulnerable to non-consequential thinking when impaired with substances, and that he can be manipulated/influenced by others.[89] He administered the Hare Psychopathy Check List (PCL-R), an actuarial tool that is designed to detect psychopathy, and found that the Applicant did not present with clear psychopathic tendencies that have been demonstrated to increase the risk of recidivism. He also administered the “Sexual Offender Risk Appraisal Guide” which is used to assess the risk of violent and sexual recidivism of previously convicted sex offenders within a specific period of release. He said it is regarded as a valid and reliable tool for some populations for example violent sexual recidivism, and that accuracy of around 85% can be achieved. It is based on static and dynamic factors including developmental, personality, nonviolent and violent history, and deviant sexual preferences. A low risk score is between -17 and +2, and a medium risk score is between 3 and 19.[90] I note that the Applicant scored +2 which is only just below the medium range.
[89] Ibid.
[90] Ibid, page 132.
Professor Freeman also administered the “Sexual Violence Risk” checklist which he said incorporates a wide range of risk factors that have been linked with sexual recidivism. He said the Applicant did not show elevated symptomology on the majority of risk factors that require intervention, including:
·psychopathy;
·past relationship problems;
·past nonsexual violent offences;
·employment problems;
·sexual deviations;
·past supervision failures;
·substance abuse (although he noted that the Applicant has sporadically misused substances)
·past high-density sex offences;
·multiple sex type offences;
·physical harm to victim(s) in sex offences
·use of weapons/threats;
·attitudes that support/condone sex offences;
·lacks realistic plans; and
·negative attitude towards intervention.[91]
[91] Exhibit G1, Section 501 G-documents, G2, page 132.
I note that due to the Applicant’s youth, and the fact that he has either been subject to strict bail conditions or incarcerated since March 2015, he has had little opportunity to manifest a proclivity towards some of the listed factors, such as having past relationship problems, past supervision failures (though in fact he did fail to comply with the direction once), past high-density sex offences, or multiple sex type offences.
Professor Freeman acknowledged that the Applicant did register scores in relation to the following risk factors:
·ongoing suicidal ideation;
·existence of a major mental illness (e.g. PTSD);
·past non-violent offences (e.g. possession of cannabis);
·being the victim of sexual abuse;
·escalation in severity of offences (e.g. progressing from cannabis possession to rape); and
·past history of minimisation of sexual offences.[92]
[Underlining added]
[92] Ibid, page 133.
It is not the case that the Applicant progressed from cannabis possession to rape. He was found in possession of cannabis after the rapes and he explained his drug use on the basis of anxiety because he had been charged with these offences.[93] Professor Freeman’s misunderstanding of the relationship between the Applicant’s substance abuse and his offending runs through his report and risk assessment, for example under the heading “CLINICAL SUMMARY, RISK ASSESSMENT AND CONCLUDING REMARKS”, Professor Freeman said, referring to the Applicant’s assimilation into Australian culture:
“... This assimilation was negatively impacted by: (a) and untreated post-traumatic stress disorder and (b) sporadic alignment with a negative peer support group (and the associated misuse of substances). The latter resulted in isolated instances of engagement in non-consequential thinking.”[94]
[93] Ibid, page 81, paragraph 58.
[94] Exhibit G1, Section 501 G-documents, G2, page 133.
No criticism is intended of Professor Freeman or of the Applicant’s legal representatives. It is all too common that expert witnesses do not have a 100% complete and accurate understanding of the facts. Therein lies one of the benefits of making such experts available for cross-examination which was done in this case.
Professor Freeman concluded in his report that:
“The origins of the offences are likely to stem from a number of contributing factors, such as: (a) alcohol impairment, (b) association with a negative peer support group, (c) young age and failure to recognise high-risk situations (and perhaps to some extent maladaptive sexual ideation), and (d) underlying poor mental health. More specifically, it is well-known that excessive alcohol consumption increases the likelihood of engagement in impaired behaviours and the Applicant accepts being extremely impaired. Additionally, [the Applicant’s] young age (and reduced capacity to recognise and respond appropriately to risk) would have been a contributing factor. That is, the Applicant’s behaviour is also consistent with what is known about younger males who experience difficulties recognising and responding appropriately to risk, and these tendencies have been linked to the prefrontal cortex that does not fully developed till the age of 25. [The Applicant’s] underlying (and untreated) mental health problems (e.g. PTSD) may have further impaired his decision-making, as PTSD is a chronically destabilising disorder which is considered a serious psychiatric illness that results in detriments in cognitive functioning including executive control. Finally and more broadly, he appears vulnerable to be influenced by other individuals (as evidenced by his behaviour in the community and in custody).”[95]
[Underlining added]
[95] Ibid.
Two things arise for consideration out of this conclusion. First, how is the Applicant to recognise a “high risk” situation while he maintains that he does not recall the rapes and he has not delved into what internal factors may have predisposed him to commit the offences? It should not be assumed, especially given the objective evidence, that the pivotal factors were alcohol and bad influences. For example, the presence of a woman who, because of something about her, was considered fair game or unlikely to report a rape may have been more influential than any other factor. I say that speculatively and rhetorically to illustrate my point, recognising that it is not known whether or not the Applicant saw the victim in that way.
Second, Professor Freeman pointed out that the pre-frontal cortex, which is responsible for responding to risk, does not fully develop in males until they are 25 years old. At 20 years old, the Applicant is well short of that.
Professor Freeman opined that the Applicant did not require sexual offender counselling (however I note his understanding that the Applicant had already been treated in that regard by Ms Piat), and he emphasised that the Applicant’s risks related primarily to him receiving adequate treatment for his psychological disorders, particularly PTSD. He said such treatment should be ongoing and without it he may be at risk of engaging in further impaired decision-making, although not necessarily in regard to sexual re-offending. He explained this further in the hearing, saying that if the Applicant manages his underlying psychological conditions he is less likely to misuse substances and make bad choices like associating with negative peers.[96] In his report he said that the Applicant had protective factors including familial support, stable accommodation, employment prospects, the maturation process, parole supervision and willingness to engage in ongoing treatment.[97]
[96] Transcript, page 81, lines 1 to 10.
[97] Exhibit G1, Section 501 G-documents, G2, page 134.
The consistent narrative put forward by the Applicant is that he was a victim of circumstance, manipulated into a misadventure that turned out badly for him and his family. This narrative was adopted to some extent by Ms Piat and even more so by Professor Freeman. For example, in response to the question:
“…it seems that you have proceeded on the basis that…somehow, the rape was contributed to by alcohol abuse and peers. Is that right?”
Professor Freeman said:
“My assessment of the case is that if he was never contacted by his peer support group on that night, it quite simply wouldn’t have happened.”[98]
[98] Transcript, page 86, lines 6 to 10.
Further questioning revealed that Professor Freeman considered that the Applicant was not the primary predator and he had been “swept up” and not realised how serious it all was.[99] I pause here to point out that this is not supported by any of the evidence. In fact, the sentencing remarks indicate that the Applicant raped the victim first, and that while R drove the car thus facilitating the sexual assaults, he did not rape the victim, he told M “that’s enough”, and he told the victim “You’re safe now”. This does not look like a situation where the Applicant was going with the crowd. He offended first and only one of his two friends joined in. Given the undisputed facts of the offending, I do not accept that the Applicant was swept up in the situation.
[99] Transcript, page 87, line 1.
Professor Freeman described the Applicant’s offending as opportunistic, mixed with a negative peer support group and being “impaired” rather than an offence that was truly predatory in nature.[100] I consider that the Applicant’s offending most certainly was predatory. When informed that the Applicant was the first to rape the victim, Professor Freeman said that was something that would need to be considered, however he maintained his belief that that the Applicant was “swept up in the situation and had been influenced by others” but expressed uncertainty as to the extent.[101] Again, there is absolutely no evidence to support that. Nor is there evidence of M influencing the Applicant to offend on any previous or subsequent occasion but there is evidence of the Applicant drinking alcohol and committing offences without M.
[100] Transcript, page 89, lines 14 to 17.
[101] Transcript, page 86, lines 40 to 46.
When asked what kind of treatment could remedy a lack of moral code or restraint so that when an opportunity to commit rape presented itself a person did not take it, Professor Freeman pointed to the fear of sanctions and drew the Tribunal’s attention to the Applicant’s very strong aversion to going back to prison.[102] I accept that the Applicant has very strong incentive to avoid facing the lawful consequences of further serious offending, but that can only act as a deterrent where the Applicant perceives a sufficient risk of being caught.
[102] Transcript, page 89.
Professor Freeman ultimately opined that he thought it was extremely unlikely that the Applicant would commit another sexual offence. The factors he emphasised were the low scores on both assessment tools, his aversion to incarceration, protective factors, and his willingness to continue treatment for his psychological conditions. I note that the Applicant scored +2 on the Sexual Offender Risk Appraisal Guide which was just below the bottom of the medium range.
In November 2018, Dr Shumack gave the Applicant a low to medium risk of sexual re-offending.
Both Dr Shumack and Professor Freeman noted that risk assessments are not 100% exact. Dr Shumack said a risk assessment should be updated after the passage of time or a significant change in circumstances. When asked about the low-medium risk assessment in Dr Shumack’s report, Professor Freeman said it used actuarial tools for juveniles that were not validated for adult populations.[103] I am not convinced that, on this basis alone, Dr Shumack’s risk assessment is less reliable than Professor Freeman’s. As I have observed, many of the factors in the “Sexual Violence Risk” checklist used by Professor Freeman seem inappropriate for a 20 year old who has been on bail or in custody since he was 15. Further, Dr Shumack had access to much more evidence about the offending than Professor Freeman did.
[103] Transcript, page 76, lines 1 to 8.
Having considered all of the evidence with respect to counselling and risk assessment, I am not satisfied that whatever it was about the Applicant that predisposed him to commit the offences has been addressed. What is more, he requires ongoing treatment for his psychological conditions. I am not satisfied that he has come far enough in the management of those that he will not be at increased risk of making poor choices if he is returned to the community. Both Dr Shumack and Professor Freeman referred to the Applicant needing to avoid high risk situations and I have mentioned my concerns about that.
Professor Freeman referred to a maturation process now that the Applicant has a wife and child. The Applicant only stopped smoking marijuana and going out so much because of Ms N’s firm stance on both. It was not a change that came from within. Ms N has been put forward as a key protective factor in this regard. She does appear to be able to influence the Applicant’s behaviour in terms of keeping his focus on home and family, and she appears to have pro-social values and aspirations. However, it is not realistic for her to be responsible for keeping the Applicant at home or supervising him whenever he goes out.
I am not satisfied on the state of the evidence, that there is not a risk that the Applicant will not re-offend. Rather, I consider there to be a real, albeit low, risk that the Applicant will commit another sexual offence.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child; and
· any known views of the child.
The Applicant’s daughter, Child A, was born on in April 2018. The Applicant had been in detention since Child A was nine months old. She is now two years and four months old.
On the basis of evidence from the Applicant, his wife, his mother and his aunt, I accept that before the Applicant was incarcerated, he cared for Child A during the day when Ms N was at work. He was assisted at times by his mother and his aunt. Since he has been in detention, he has had regular visits and telephone/video contact with Child A. Ms N encourages, facilitates and supports the relationship between Child A and the Applicant. There is no evidence that the Applicant’s current physical separation from Child A has caused any emotional or psychological harm. Child A’s views are not known, however I accept that she has an emotional bond with the Applicant.
Ms N is employed full-time in a coffee shop as a supervisor. Ms N fulfils the parental role for Child A and there is no suggestion that she will not continue to do so. Currently the Applicant’s mother, Ms N’s mother and Ms N’s adult sister help care for Child A. Ms N has a large, supportive family. There is no suggestion that Child A is not well cared for.
If the Applicant were returned to the community, he would live with Ms N and Child A, his mother and brother. He would have some 16 years to fulfil a positive parental role in Child A’s life. It is likely that he would do that. If he is removed to Afghanistan, Ms N and Child A would not move with him, and it seems that it would not be feasible to visit. I do not have any evidence before me about internet and telephone services in Afghanistan but I am prepared to accept that they are not as good as they are here and that it would be difficult for the Applicant to maintain regular communication with Ms N and Child A.
Professor Freeman gave evidence that some general psychological research indicated that children who grow up without a strong parental attachment to both parents can be at an increased risk of negative outcomes relating to maladjustment.[104] However, he agreed that a correlation (between a single parent family and poor outcomes for the children) does not necessarily indicate causation as there may be other factors that tend occur more in single parent families that influence the wellbeing of children. He also agreed with the proposition that the wellbeing of a child relies a lot on the parent or carer who is there providing a safe, nurturing environment.[105]
[104] Transcript, page 82, lines 1 to 10.
[105] Transcript, page 82, lines 12 to 29.
Ms N completed the grade 12 school year but did not sit her final exams. She would like to get her high school qualification and become a teacher.[106] She thinks that if the Applicant were returned to the community, she could do that. She also said she wants the Applicant to work so she can work less and see more of Child A. She said she currently works seven days per week to support her family. It is not apparent why, when she is living with the Applicant’s mother, she needs to work so much to support herself and Child A. Nor is it apparent how she would see more of Child A if she were working and studying. I consider that any plans that Ms N has at present to be speculative. I am not prepared to find, as was contended, that returning the Applicant to the community would allow Ms N to study and thereby obtain better employment which would benefit Child A. However, I am satisfied that if the Applicant were returned to the community he could, and would, contribute financially to the family as he has a job offer from his uncle for whom he has previously worked.
[106] Exhibit G1, Section 501 G-documents, G2, page 139.
Considering all these matters, the best interests of Child A weigh moderately in favour of revoking the cancellation of the Applicant’s visa.
The Applicant’s younger brother, Child B, is ten years old. His mother fulfils the parental role and there is no suggestion that she will not continue to do so.
I accept that, in the absence of a father (it appears that his father went missing the year he was born), the Applicant fulfilled a positive, quasi-parental role for Child B until October 2018 when the Applicant was incarcerated. Child B provided a statutory declaration.[107] He described the Applicant as like a father to him. He recalled the Applicant looking after him, taking him shopping, helping him with homework and cheering him up when he felt sad. He misses him terribly. If the Applicant were to be returned to the community, his primary responsibility would be to his wife and child, but I am satisfied that he would make time for Child B, especially as they will be living together in the family home. There are seven more years for the Applicant to positively contribute to Child B’s life.
[107] Ibid, pages 151 to 152.
Child B has regular contact with the Applicant in detention, and I find that it would be harder to maintain such contact if the Applicant were in Afghanistan. Further, I am satisfied that it would be impractical for Child B to visit the Applicant in Afghanistan.
When the Applicant was incarcerated, Child B took it very badly; he could not focus on school and wanted to cry when he thought about the Applicant. He was ultimately expelled for missing too much school, and he now attends a school close to his home.[108] If the Applicant is deported Child B will continue to feel his absence. The Applicant’s mother and aunt gave evidence to the effect that Child B is upset that he does not have a brother or father whereas other children at school do. The Applicant’s mother said the Applicant used to interpret for her when she was called to the school to discuss Child B and he cannot do that now. However, she said the school now provides an interpreter.
[108] Transcript page 72.
There are currently other people looking after Child B. His mother is his primary carer. Ms N has a close relationship with him. His aunt and uncle are also close to the family and supportive. Child B said Child A, whom he loves dearly, reminds him of the Applicant and she always makes him feel happy. Child B has two cousins, being the children of his aunt and uncle. No claims are made in relation to these cousins and no information has been put forward about any likely impact on them.
Child B is well cared for and has a loving, supportive home. It is in his best interests for the cancellation of the Applicant’s visa to be revoked but only to a limited extent.
Conclusion: Primary Consideration B
The best interests of Child A and B together weigh significantly, but not heavily, in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[109]
[109] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
Paragraph 6.2(1) of the Direction states that:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
[Underlining added]
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant relocated to Australia in February 2000 when he was 13 years of age;
·he committed the rapes only two years and one month later, in March 2015;
·his offences were sexual offences, involving violence, against a victim who was female and in a vulnerable state;
·given the seriousness of the offending, and the nature of harm from re-offending, any risk of re-offending is unacceptable;
·there is a real risk that he will re-offend;
·he committed a break and enter, and a few minor offences, including drug offences, while on bail demonstrating a disregard at that time for the laws and the justice system of the community he seeks to re-enter;
·overall he has spent five and a half years at liberty in the Australian community, three of those on bail. He participated in a school community, a special school where he learned English, for around two years;
·he has made minimal contribution to the Australian community, having worked for his uncle in 2015 and 2016, and for a tyre shop in 2017, and done some voluntary work in the Afghan community;[110] and
·if he is removed to Afghanistan, it will adversely affect his wife, mother, uncle and aunt (addressed below under Other Considerations, and his daughter and brother (addressed above under Primary Consideration B).
Conclusion: Primary Consideration C
[110] Exhibit G1, Section 501 G-documents, G2, page 67.
The Applicant breached the trust of the Australian community after only two years of relocating here. His offences, and the harm from repeated offending, are so serious that any risk of similar conduct in the future is unacceptable. Taking all the above matters into account, Primary Consideration C weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The applicant contends that he would face harm if removed to Afghanistan and that the Tribunal needs to consider Australia’s international non-refoulement obligations.
The term ‘non-refoulement’ is derived from Article 33 of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”).[111] It provides:
Article 33. - Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
[111] See Ali v Minister for Home Affairs [2020] FCFC 109.
Non-refoulement obligations can also be found in other instruments (see below) but those do not arise in the present case. Article 33(1) of the Refugee Convention refers to a refugee’s “life or freedom” being threatened. There are two tests here. One is whether the person is a refugee and the other is whether there would be a threat to their life or freedom if returned.
Paragraph 14.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a Protection visa that was mandatorily cancelled).
I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to Afghanistan in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[112] The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application.
[112] See Minister for Home Affairs v Omar[2019] FCAFC 188.
The Applicant claims that, if removed to Afghanistan, he will be at risk of the harm on the following grounds:[113]
·as a practising Shia Muslim;
·as a returnee from a Western country;
·as a member of a particular social group, being persons suffering from a mental illness, he will suffer discrimination.
[113] Exhibit A1, Applicant’s Statement of Facts Issues and Contentions, page 13.
I am grateful to the Applicant’s legal representatives for precisely articulating his non-refoulement claims, for making clear the asserted connection between the claims, his circumstances and the country information, and for furnishing relevant country information from credible sources (and, I might add, for the skill and professionalism with which they conducted this matter). As I said in the hearing, this approach is not only in the best interests of the Applicant, it assists the Tribunal to function efficiently. I hope to see more of this exemplary approach in future matters involving non-refoulement claims.
I accept that the Applicant is a practising Shia Muslim who regularly attends mosque and observes Ramadan. Sunni Muslims also do those things but in different, and conspicuous, ways. I find that the Applicant’s religious practices would identify him as Shia in Afghanistan. On the basis of a 2018 report from the United Nations Human Rights Commission (“UNHRC report)”[114] and a report by the Department of Foreign Affairs and Trade, dated June 2019 (“DFAT report”),[115] I am satisfied that there have been recent targeted attacks on Shia gatherings in Afghanistan including suicide bombings and use of Improvised Explosive Devices (“IEDs”). While it does not appear to be a frequent occurrence, it is enough to constitute a real chance that the Applicant, being a practising Shia who would likely attend Shia gatherings, would suffer harm. The harm from an explosive device could be very serious or even fatal. I am satisfied that there is a small, but real, chance that the Applicant will be injured or killed due to his religious beliefs if he is removed to Afghanistan. Article 33(1) is satisfied.
[114] Exhibit A4, Country Information Bundle - Volume 1 and Volume 2, Tab1.
[115] Ibid, Tab 5, paragraphs 3.32 and 3.33.
The country information for Afghanistan indicates that there is some discrimination against persons suffering from a mental illness although it does not go as far as saying such people are at risk of what would constitute serious harm on that basis. There may be an argument that being discriminated against in terms of accommodation and government services could make the Applicant more vulnerable to generalised community crime and violence. However, the Applicant would not necessarily be identified as someone suffering from a mental illness. His symptoms are predominantly internal - bad dreams, flashbacks, intrusive thoughts and depressed mood. Moreover, during the years when he was in the community and experiencing PTSD symptoms due to the criminal charges, he was able to maintain employment and a budding relationship. That is, outwardly, he was able to function reasonably well. I am cognisant that there is evidence that the Applicant has cut and scratched his arms, which would potentially be taken to be a sign of self-harm and therefore a mental condition, but that was a rare occurrence, and marks and scratches could equally be taken to have been inflicted by someone else. I am not satisfied that there is more than a remote possibility that the Applicant would be the target of serious harm or that his life would be threatened because of his mental conditions.
The UNHRC report indicates that there have been reports of returnees from Western countries having been:
“....threatened, tortured, or killed by AEGs on the ground that were perceived to have adopted values associated with these countries, or they had become ‘foreigners’ or that they were spies for or supported a Western country”.[116]
[116] Exhibit A4, Country Information Bundle - Volume 1 and Volume 2, Tab 1, page 7.
I find it unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life. For one, he speaks multiple regional languages including Dari, Pashtu, Hazaragi, Bilochi and Irani.[117] He does not claim to regularly drink alcohol, have tattoos or piercings, speak with an accent that is noticeably Australian, have a public Facebook page or anything else that could possibly mark him as western. I am not satisfied that there is more than a remote possibility that the Applicant would be the target of serious harm or that his life would be threatened on account of him having lived in a Western country.
[117] Exhibit G1, Section 501 G-documents, G2, page 79, paragraph 34.
As I have found that Article 33(1) is satisfied, I now turn to consider whether Article 33(2) applies, i.e. whether the Applicant, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the Australian community.
It was contended on behalf of the Applicant that an offence is not necessarily very serious because of the type of offence, and that the actual offending should be considered. I respectfully agree. In this case however, the rapes that the Applicant committed were indeed very serious. Accordingly, I am satisfied that the Applicant has been convicted by a final judgment of a particularly serious crime. There remains the question of whether he constitutes a danger to the Australian community.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin (formerly a Federal Court Judge), said:
In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community.… It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.” [118]
[Underlining added]
[118] At paragraph 31.
In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”), Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations[119]:
“In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.”
[Underlining added]
[119] At paragraph 83.
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (“KDSP”), Bromberg J said of s36(1C) of the Act, which implemented Article 33(2) into domestic law:
Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”
This observation was made by way of obiter in a dissenting Judgment, and the majority did not address this precise issue.
I take Deputy President Tamberlin’s comments to mean that a risk must be more that remote but does not have to be probable. Logan J spoke of a “present and serious” risk. Bromberg J took that to suggest a high level of risk. I have found that there is a low, yet real, risk that the Applicant will re-offend. I have also found that, given the harm from repeated offending, that is an unacceptable risk. While the two schemes are different, a finding for the purposes of non-refoulement that the Applicant is not a danger to the community does not sit comfortably beside a finding under the Direction that the Applicant presents an unacceptable risk of harm to the Australian community. The concept of danger incorporates a combination of risk and seriousness of potential harm. I am inclined to think that, in the context of the serious harm from repeated offending, the risk that the Applicant poses to the Australian community is “present and serious” although it is low. I note that if I am wrong about that, non-refoulement is not a determinative factor in this matter, but a factor to balance in the context of other factors, and it is a matter that will be more fully explored if the Applicant makes an application for a Protection visa.
Additionally, he will face a risk of harm unrelated to non-refoulement obligations. The preponderance of evidence indicates that there is generalised violence, and a high crime rate, in Afghanistan. He will be at risk of experiencing crime and violence as is the general population.
Should I decide not to revoke the cancellation of the Applicant’s visa, he may apply for a Protection visa. The Direction provides that when considering a Protection visa application, a delegate must first assess a person’s refugee and protection claim before considering any ineligibility grounds. The Act contains a provision based on Article 33(2) of the Refugee Convention. The Applicant continues to have access to counselling services, which means that if he applies for a Protection visa, he can continue to work with a counsellor on managing his psychological symptoms and developing a real understanding of the contributors to his offending so that risk factors can be addressed. If the Applicant is not granted a Protection visa, he is liable to be held in immigration detention until it is reasonably practicable to remove him from Australia. The Minister may consider alternative options to removal or indefinite detention such as granting a visa under s 195A of the Act, however any such option is speculative.
This Other Consideration weighs in favour of revoking the cancellation of the Applicant’s visa, but as noted above, the Applicant may apply for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 13 and has lived in Australia for seven years. He commenced offending relatively soon after arriving in Australia and therefore is entitled to less weight under paragraph 14.2(1)(a) of the Direction. His limited employment and voluntary work afford him some slight weight under paragraph 14.2(1)(a)(ii) of the Direction.
Non-revocation of the decision will have a significant negative impact on his daughter, Child A, and his younger brother, Child B. In particular, his young daughter will grow up without her father.
The Applicant’s mother is a permanent resident. She provided a statutory declaration,[120] and she gave evidence in the hearing. I accept her evidence that before the Applicant was incarcerated, he helped her in everyday tasks such as translating and paying bills on time. The Applicant also helped look after his younger brother. She said she and Child B cannot survive in Australia without the Applicant’s help and support. I accept that she may feel that way emotionally, but the fact is that they have survived for the (almost) two years the Applicant has been in custody. Nevertheless, before the Applicant’s offending, his family was cohesive, loving and supportive. Now the Applicant’s mother faces the prospect of never seeing her eldest son again. What is more, she will worry for him being in a dangerous and unfamiliar place, and she will feel the pain of her younger son missing the Applicant. I am satisfied that if the Applicant is deported, it will cause considerable emotional hardship to his mother. I am also satisfied that she will have the continued support of the Applicant’s aunt and uncle who are very close to her family. Ms N said in her statutory declaration that she did not think the Applicant’s mother would cope mentally with his deportation.[121] There is a brief medical certificate from a general practitioner before me that states that the Applicant’s mother suffers from severe depression, that is not helped by medication, and that her condition would deteriorate if the Applicant were deported to Afghanistan. It also says the Applicant’s mother is very well known to the author. No further details have been provided. This is not a specialist report and there is no indication of whether the Applicant’s mother has a mental health treatment plan or is under the care of a specialist or counsellor. It seems common sense that emotional hardship would impact on pre-existing depression. However, the Applicant’s mother is under the care of her GP and she has other treatment options.
[120] Exhibit G1, Section 501 G-documents, G2, pages 146 to 150.
[121] Ibid, pages 139 to 145.
The Applicant’s aunt is a permanent resident. His uncle is an Australian citizen. Both are close the family and maintained contact with the Applicant in detention. The Applicant’s aunt provided a statutory declaration and gave evidence in the hearing.[122] She said that if the Applicant is deported to Afghanistan it will be like a death in the family. She also expressed concern for the wellbeing of the Applicant’s mother and brother. I am satisfied that she and her husband will suffer emotional hardship if the Applicant is deported. The Applicant’s aunt and uncle have two children who are the Applicant’s cousins. There is no information before me about the likely impact on them.
[122] Exhibit G1, Section 501 G-documents, G2, pages 162 to 165.
The Applicant does not provide any financial support to his family, and none of them are disabled or otherwise reliant on him. I am not satisfied that any of them will suffer other than emotionally.
There is a letter of support for the Applicant from a family friend and one from Ms N’s sisters that both speak well of him. There is also evidence that the Applicant has friends in the Australian community. I am satisfied that the Applicant has some social ties to the Australian community.
The Applicant’s social and familial ties, and the impact on his family of his removal from Australia, weigh strongly in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 20 year old man who is able bodied and does not claim to have any medical conditions. He has a recent history of experiencing PTSD symptomology in times of stress or adversity, although he does not take any medication for it.
The Applicant speaks the most commonly spoken languages in Afghanistan, being Dari and Pashtu, as well as Hazaragi, Bilochi and Irani. He is not literate in any language however there is no evidence that illiteracy is unusual in Afghanistan. I am not satisfied that the Applicant would face any substantial language barriers.
The Applicant has never lived in Afghanistan although he was part of an Afghan community in Australia. His religion is commonly practised in Afghanistan. I point these matters out because although the Applicant has never lived in Afghanistan and is completely unfamiliar with that country, he is not completely unfamiliar with the culture or religious practices. The country information indicates that the local community is not welcoming to outsiders and that returnees tend to stay in the capital, Kabul. It may assist the Applicant to be around others in his predicament. It could also make him a target or robbery or kidnapping (for ransom) if he is perceived to be a traveller with money. He will not have family with him, so it seems unlikely that if there is no one willing to pay a ransom, he would be the target of a kidnapping. As a Shia Muslim who attends mosque, he will encounter other likeminded Afghanis, and this may be a source of support to help him to navigate daily life in Afghanistan. I find that initially at least he would face significant, but not insurmountable, cultural barriers because he has never lived in Afghanistan before.
I must look at impediments to the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Afghanistan. I am prepared to accept that there is very little in the way of financial and other supports available in Afghanistan. The Applicant will not have the benefit of family or social support in Afghanistan. He may find support in the returnee community in Kabul or a local religious community. He is able bodied; he speaks several languages and he has employment experience involving manual labour in Pakistan and customer service in Australia. There was some evidence that the Applicant’s family could not afford to send him money, and the Applicant’s wife said she works seven days per week to support her family. However, she also said she was sending the Applicant money while he was in immigration detention. I am satisfied that she, and the Applicant’s family, can send him some financial support in Afghanistan which will go some way to helping him to maintain basic living standards in the context of what is generally available to other Afghani citizens.
The Applicant tends to suffer PTSD symptoms in times of adversity. I accept that removal to Afghanistan is likely to bring on such symptoms. The Applicant will have the same access to mental health services as other Afghani citizens. Those services are very poor, and certainly below the level available in Australia. It is most unlikely that he would be able to access counselling services. However, both Ms Piat and Ms Cameron in their reports said that they had taught the Applicant some skills and strategies to deal with and manage his symptoms. It appears that he has some ability to manage his psychological symptoms. He does not currently rely on medication for his psychological conditions. Professor Freeman said that if the Applicant is exposed to stressors such as violence and bombings it could aggravate his symptoms to the point of him not being able to maintain employment and meet the basic necessities of life.[123] Much of the Applicant’s work experience involves manual labour. It is not apparent how the symptoms reported by the Applicant would impact on his ability to do basic physical work. Further, the Applicant was exposed to traumatic events targeted at him in immigration detention – he was bullied and threatened because his family were sending him money – but there is no evidence that his symptoms became debilitating. I am satisfied that the Applicant could suffer some emotional and psychological hardship in Afghanistan, but I am not satisfied that this would prevent him from maintaining employment and meeting basic living standards.
[123] Exhibit A8, Addendum Report of Professor James Freeman.
I have addressed the risk of being a victim of crime and generalised violence in Afghanistan in my consideration of non-refoulement obligations and I will not double count it here.
This Other Consideration (e) weighs heavily in favour of revocation of the reviewable decision.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
The offences committed by the Applicant are, by their nature, serious offences. Added to that, the particular facts and circumstances of these offences make them very serious. The Applicant and his friends targeted a vulnerable woman, took her to an isolated location and subjected her to a gang rape. The Applicant was first to rape her. Even allowing for his young age at the time, his offending was very serious. I am not satisfied that he has adequately addressed the underlying factors that predisposed him to commit the offence or that there are now sufficient protective and deterrent factors such that he does not present a real risk of repeated offending.
There are some strong countervailing factors, chiefly the impact on the Applicant’s immediate family members and the conditions the Applicant will be subjected to, including the risk of harm or death he will face, in Afghanistan. I have given these matters very serious consideration.
The guiding principles in paragraph 6.3 of the Direction stipulate that being able to remain in Australia is a privilege conferred in the expectation that visa holders are law-abiding and will not cause or threaten harm to individuals or the Australian community, the Australian community expects that the Australian Government should cancel the visas of non-citizens who commit serious crimes in Australia, a non-citizen who has committed a serious crime against a woman, should generally expect to forfeit the privilege of staying in Australia, and Australia has a low tolerance with respect to the criminal offending when the non-citizen has been participating in, and contributing to, the Australian community only for a short period of time. Added to that, this is a case where the harm that would be caused, if the offending conduct were to be repeated, is so serious that any risk of similar conduct in the future is unacceptable such that even the strong countervailing considerations in this case are not enough to outweigh Primary Considerations A and C.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
..............................[SGD]..........................................
Associate
Dated: 23 September 2020
Date of hearing: 7 September and 8 September 2020 Counsel for the Applicant:
Solicitor for the Applicant:
Mr Leonard Karp
Fisher Dore Lawyers
Solicitor for the Respondent: Ms Kate Ervin
Clayton UtzANNEXURE A – EXHIBIT LIST
EXHIBIT No
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G15 pages 1 to 453)
R
-
16 JUL 2020
R1
Respondent’s Statement of Facts, Issues and Contentions
R
26 AUG 20
26 AUG 2020
R2
Respondent’s Summonsed Material
R
-
1 SEP 2020
R3
Respondent’s Supplementary Submissions
R
10 SEP 2020
10 SEP 2020
A1
Applicant’s Statement of Facts, Issues and Contentions
A
10 AUG 20
10 AUG 20
A2
Statutory Declaration of Caitlin White
A
10 AUG 20
10 AUG 20
A3
Statutory Declaration of Hassan Ghulam
A
10 AUG 20
10 AUG 20
A4
Country Information Bundle - Volume 1 and Volume 2 (pages 1 to 135) including Tabs 1 to 12:
1. UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan.
2. UNHCR, Compilation of Country of Origin Information (COI) Relevant for Assessing the Availability of an Internal Flight, Relocation or Protection Alternative (IFA/IRA/IRA) to Kabul.
3. UNAMA, Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2019
4. UNAMA, Afghanistan Protection of Civilians in Armed Conflict Midyear Report.
5. DFAT, “DFAT Country Information report Afghanistan”
6. Asylos, “Afghanistan: Situation of male ‘westernised’ returnees to Kabul”
7. EASO, “Afghanistan Security Situation: Country of Origin Information Report”
8. TOLO News, “80 Civilians Killed in Last Seven Days: Govt Data”
9. Professor William Maley expert opinion, “On the return of Hazaras to Afghanistan”
10. Human Rights Watch, “Afghanistan: Little Help for Conflict-Related Trauma”
11. BBC, “Afghanistan peace deal: Taliban walks out of ‘fruitless’ talks”
12. The Washington Post, “Cleansing assessment of links between Taliban and Islamic State point to problems for Afghanistan’s peace process”
A
-
12 AUG 20
31 AUG 20
A5
Statutory Declaration of Ajmal Rahimi
A
21 AUG 20
31 AUG 20
A6
Applicant’s Reply
A
2 SEP 20
2 SEP 20
A7
Supplementary Statement of the Applicant
A
1 SEP 20
2 SEP 20
A8
Addendum Report of Professor James Freeman
A
2 SEP 20
2 SEP 20
A9
Letter of Dr Sam Ioannidis
A
1 SEP 20
2 SEP 20
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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Remedies
1
14
0