CHJK and Minister for Home Affairs (Migration)
[2019] AATA 584
•28 March 2019
CHJK and Minister for Home Affairs (Migration) [2019] AATA 584 (28 March 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0149
Re:CHJK
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:28 March 2019
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................
The Hon. Dennis Cowdroy OAM QC,
Deputy PresidentCATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction No 79 – whether the discretion to revoke the cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – other considerations – strength, nature and duration of ties to Australia – impact on family members – extent of impediments if removed – expectations of Australian community – non-refoulment – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197C, 198, 499, 501 and 501CA
CASES
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
DND v Minister for Home Affairs (Migration) [2018] AATA 2716
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Le and Minister for Home Affairs [2018] AATA 4126
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
Re Sharma And Minister for Immigration and Border Protection [2015] AATA 608
Divane and Minister of immigration and Border Protection (Migration) [2016] AATA 728
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
CWGF and Minister for Home Affairs (Migration) [2019] AATA 179
SECONDARY MATERIALS
Ministerial Direction No 79 clauses 13 and 14
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC,
Deputy President28 March 2019
The applicant seeks review of a decision of a delegate of the respondent made in January 2019. Such decision found that the applicant did not pass the character test as defined by section 501 of the Migration Act 1958 (Cth) (“the Act”), nor was the power in section 501 CA of the Act enlivened, with the consequence that the applicants Class XA Subclass 866 Protection visa (the visa) held by the applicant remained cancelled.
FACTS
The applicant was born in January 1968 in [Village 1], three hours from [City 1], in [Country 1]. His citizenship at birth was [Country 1] and his current citizenship is [Country 1]. He speaks [language], English, and some Arabic. The applicant belongs to the [Tribe] and his religion is Catholic.
Since he was a child until 1993 the applicant assisted his family with farming and caring for animals in his village. He attended one year of school at the [Village 1] primary school in 1970. The applicant claims to have witnessed violence including murders and states that his father was killed in his presence and he was shot in his leg. The applicant’s family became separated and the applicant says he has no current knowledge of the whereabouts of his mother, nor a brother or his sister.
From 1993 he worked with an Islamic organisation at [Camp] being a Displaced People’s Camp outside [City 2]. The work involved food distribution, casual work loading and unloading trucks to distribute food for refugees living in the camp.
The applicant left [Country 1] and in 2002 travelled to [Country 2] using his own passport. He registered with the UNHCR in 2002 and whilst in [City 3] he worked for a year at a Catholic Church in [City 3], then as a cleaner in a family home.
The applicant was recognised as a refugee. In June 2006 the applicant was granted a Class XB Subclass 202 Global Special Humanitarian visa by the Australian government. The Global Special Humanitarian visa included his wife who was born in [Country 1] in January 1982, and his two eldest children born in [City 3] in 2003 and 2005. The applicant arrived in Australia in June 2006 using a travel document to replace his passport which was stated to be lost or misplaced in [Country 2].
In March 2012 the applicant applied for a Protection Class XA visa. It was not granted until April 2013. However by letter dated January 2013 the Minister wrote to the applicant advising him that he had decided not to refuse the applicant’s Protection visa on character grounds.
The applicant and his wife have had an additional child since their arrival in Australia. The applicant’s wife, who has been separated from the applicant since at least 2010, has had another child but she claims the applicant is not the father of this child.
By letter dated November 2010 notice was given to the applicant that consideration was being given to cancellation of the Humanitarian visa on character grounds. The applicant acknowledged receipt of such notification on December 2010, and on the same day the applicant provided a Personal Details Form and forwarded it to the Minister.
In Australia the applicant worked as a cleaner, labourer and in construction, or as a recycling worker. Apart from time spent in prison, he has attempted to study English two days per week for about six months in 2006 and completed the level 2 English at TAFE.
CRIMINAL HISTORY
Since arriving in Australia the applicant has been convicted of numerous violent offences. A summary of the offences is set out hereunder:
Court Date Offence Date Offence Penalty June 2008 June 2008 Stalk/intimidate intend fear of physical/mental harm s 9 bond, 15 months October 2010 June 2012 Assault occasioning actual bodily harm (DV) 18 months’ imprisonment, non-parole 8 months with conditions October 2010 Contravene prohibition/restriction in AVO (domestic) 18 months’ imprisonment, non-parole 8 months with conditions October 2009 Armed with intent commit indictable offence 7 months’ imprisonment June 2010 Destroy or damage property s 10a conviction June 2010 Contravene prohibition/restriction in AVO (domestic) s 9 bond, 2 years June 2010 Use carriage service to menace/harass/offend $800 fine May 2011 February 2011 Stalk/intimidate intend fear of physical/mental harm 9 months’ imprisonment, non-parole 3 months with conditions February 2011 Contravene prohibition/restriction in AVO (domestic) 9 months’ imprisonment, non-parole 3 months with conditions October 2015 March 2014 Common assault 38 months’ imprisonment (aggregate), non-parole 25 months with conditions April 2014 Reckless wounding DIRECTION NO 79
Direction No 79, made pursuant to section 499 of the Act, provides guidance to decision-makers in assessing the exercise of powers under section 501 of the Act. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”
Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:
“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.”
The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable”.
The Principles also state that Australia has a low tolerance of any “criminal or other serious conduct”, and 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 should be allowed to come to, or remain permanently in, Australia”.
It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1(2) (a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see clause 13.1.1(1)(f).
Clause 13.3 makes provision for consideration of the expectations of the Australian Community. Clause 13.3(1) provides inter alia:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”
Direction No 79 does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562, Perry J [80]. See also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].
It is also established the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Part C relates specifically to revocation of a visa. In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes. Direction No 79 has further identified that crimes of a violent nature committed against women and children are to be viewed seriously. Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(e). Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of a conduct: see clause 13.1.1(1)(c).
Section 501(2) empowers the Minister to cancel a visa which had been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.
The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7) provides that a person has a “substantial criminal record” if:
“The person has been sentenced to a term of imprisonment of 12 months or more”.
APPLICANT’S OFFENDING
There has been a history of violence between the applicant and his wife commencing with an incident that occurred in November 2006 at approximately [time] in the applicant’s home. The applicant returned home intoxicated and an argument develop between himself and his wife during which he threatened to kill his wife and the children. The applicant fell asleep, and when he awoke, made further threats to kill his wife and the children. The applicant was arrested and an Apprehended Violence Order (AVO) was issued on the same day. An order was made against the applicant that he not approach his wife within 12 hours of consuming intoxicating liquor or drugs. The applicant was placed on bail. The terms of the AVO were that the applicant must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship, and secondly that the applicant must not engage in any conduct that intimidated the protected person or persons with whom the protected person has a domestic relationship; that the applicant must not stalk the protected person or a person with whom the protected person has a domestic relationship.
In December 2006 the applicant’s wife attended Mount Druitt Police Station bleeding from wounds inflicted by the applicant. She was taken to hospital for medical attention. Police attended and met the accused who was affected by alcohol. The applicant was charged and brought before the court.
In June 2008 the applicant returned home after consuming intoxicating liquor and threatened to kill his wife. A violent altercation followed involving destruction of furniture in the applicant’s home.
Earlier in June 2008 police attended the applicant’s home where there was again a violent domestic altercation. Similar events occurred in March 2009. Thereafter, the police have been involved in other incidents concerning the applicant and his wife.
In June 2010 the applicant’s wife received threatening phone calls from the applicant. The applicant threatened to kill his wife “at home, I can kill you at the shop, or even at the door”. Such conduct breached the terms of the AVO.
In June 2010 the applicant gained access to an upstairs bedroom window and entered the premises where the applicant’s wife was sleeping. The applicant’s wife and the children fled the house and called the police who detained the applicant who was found to be heavily intoxicated.
In September 2010 the applicant was convicted of assault occasioning actual bodily harm. This charge related to an assault upon his wife. On the same day he was convicted of contravening the AVO and being armed with intent to commit an indictable offence.
In January 2011 the applicant’s wife reported to police that before commencing his gaol sentence, the applicant had stated he would return after serving his sentence to assault her and kill her and the children. In February 2011 the applicant threatened that he would kill the applicant’s wife because she would not permit him to see the children. As detailed hereunder, orders have been made in the Family Court of Australia restricting access to the children by the applicant except under certain strict conditions. As a result of the threat, the applicant’s wife was placed in fear of her life and did not attend a wedding held at the end of February 2011 because she feared that the applicant would be present.
In May 2011 the applicant was again convicted of stalk/intimidate and contravening a prohibition contained in the AVO.
In September 2013 the applicant telephoned his wife to say that he was “not happy with her “new man””.
In June 2010 in the Mount Druitt Local Court the applicant came before the court for breach of bail and in September 2010 the applicant appeared in court and was convicted of offences of destroying or damaging property, contravening an AVO and using a carriage service to menace/harass, offend. Other offences of a similar kind followed in the Burwood Local Court in April 2011.
In March 2014 the victim was threatened by the applicant who was holding a rock and said to the victim “you slept with my girl I’m going to kill you”. The victim managed to telephone the police and the applicant ran away.
In April 2014 the victim was walking home from Mount Druitt railway station when the applicant confronted him, smashed a brown longneck bottle on the footpath and lunged at the victim stating “I’m going to kill you”. The applicant struck the victim behind the left ear with a broken bottle, causing the victim to suffer numerous wounds to the back of his head. The victim also suffered a cut to the left hand ring finger in attempting to block the bottle coming in contact with his head. The victim fell to the ground and the accused walked off.
In October 2015 the applicant was sentenced to imprisonment for 38 months, with a non-parole period of 25 months, in respect of an assault committed in March 2014, together with reckless wounding.
On the basis of the criminal record, the applicant does not pass the character test prescribed by section 501(6) of the Act.
BEST INTERESTS OF MINOR CHILDREN: CLAUSE 13.2
Direction No 79 requires decision-makers to have regard to the question of whether revocation of the cancellation of the visa is in the best interests of any child: see clause 13.2(1); or where there is more than one child, the best interests of each child is to be given individual consideration: clause 13.2(3). The particular matters to be considered are set out in clause 13.2(4).
There are three infant children of the applicant namely E born in 2003, G born in 2005 and D born in 2008. Another child, now about eight years of age, was born to the applicant’s wife on an unknown date. The applicant’s wife denies that the father is the applicant.
By consent orders made in the Family Court of Australia in 2012 custody of the three children of the marriage were awarded to their mother. The applicant was granted access, subject to strict conditions. The orders were made when the applicant was then residing in Immigration Detention.
The applicant states that he has always been there for his children and that he is very close to them despite his issues involving breaches of the law. He states that he has engaged with them and participated in their development. He states that he has taken them on excursions, sports events and taking care of them during illness. He states that he used to take them to school, to movies and entertainment. The applicant states that he has always kept in touch with his children even though he was in jail or in detention. He states they spend much time calling him, updating him on the activities and that “there is not a day that goes by without hearing from them, we are extremely close. My children have made efforts to come and visit me in detention centre.”
The applicant states that, so far as his family is concerned “I atoned for my mistakes whilst I was in jail”. The applicant stresses the importance of having a father figure in an individual’s life and that a “strong father figure is important in a child’s life, particularly when they are at the growth stage”.
The applicant states that there are reports and evidence of cases of long-term disturbance amongst children who underwent separation from their fathers, and that psychologists have noted that some people appear to have absorbed the feelings of being labelled an outcast and a living isolated from the previous social networks. The applicant states:
“The children, in this case, will often be stigmatised and harassed for having a father who has been arrested. This stigmatisation causes children to live in the constant fear of friends and peers finding out the identity of their parents. They are sometimes warned to keep this a secret, which can further contribute to feelings of isolation and shame.”
The Tribunal notes that the applicant has not seen his children since September 2018. It appears that he makes telephone contact with them regularly. A case note report dated February 2016 from the [Correctional Centre 1] where the applicant was incarcerated states:
“Inmate has never had a visit from family or friends only legal visits. He is in contact with family and friends via the OTS however it would appear that he is separated from his wife there was an AVO which has since lapsed”.
There is no clear evidence before the Tribunal on the extent of contact which is had between the children and the applicant prior to his most recent incarceration, followed by detention. However the Tribunal accepts that the applicant’s children have a close relationship with him and that the best interests of the children would be served by cancelling the revocation of the applicant’s visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: CLAUSE 13.1
Part C of Direction No 79 requires consideration of the protection of the Australian community from criminal or other serious conduct, and the expectations of the Australian community: see clause 13.1 (1). By clause 13.1 (2), decision-makers must give consideration to the nature and seriousness of the non-citizens conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct; see (2) (a) and (b). The principles set out in clause 13.1.1 (1) views violent and/or sexual crimes as very serious offences (see (a)); that crimes of a violent nature against women and children are viewed very seriously (see (b)); that other conduct such as the frequency of the offending, and any trend of increasing seriousness is to be considered (see (e) and (f).
The applicant has assaulted his wife (in June 2010) and threatened to kill her. The applicant has also assaulted a companion of his former wife with a weapon; the applicant has breached AVOs and has breached conditions of bail. The applicant has also been involved in other criminal conduct as set out in the above schedule of convictions.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer referred to the expectations of the Australian community at [76] and [77] and said, (inter alia) at [76]:
“In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian communities “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction”.
In Le and Minister for Home Affairs [2018] AATA 4126 at [141], the Tribunal stated that it is required to have due regard to the statement of the Government’s view as the expectations of the Australian community as expressed in 6.3 (2) and in 13.3 (1) of Direction No 65, which prevailed, and which is now superseded by Direction No 79.
It has been recognised by the Tribunal that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character”: see Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918; see also Re Sharma And Minister for Immigration and Border Protection [2015] AATA 608; see also Divane and Minister of immigration and Border Protection (Migration) [2016] AATA 728 at [57]. In the latter decision the Tribunal said:
“… Domestic and family violence has a devastating impact on the Australian community; domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness”.
The applicant’s extensive and repeated violent criminal history does not meet the Australian community expectations as set out in clause 13.3 (1).
OTHER CONSIDERATIONS: CLAUSE 14
Pursuant to clause 14 of Direction No 79 the Tribunal is to take into account other considerations where relevant, including but not limited to the strength, nature and duration of the ties; the impact on Australian business interest; the impact on victims; and the extent of impediments if the applicant were removed: see clauses 14 (1) (a), (b), (c), (d) and (e).
Non-refoulment: clause 14.1
The applicant has been found to be a genuine refugee. However in view of the mandatory cancellation of the protection visa, the applicant is prevented by the provisions of section 48A (1B) of the Act to make any further protection visa applications whilst he is in the migration zone.
In view of the decision in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, if the mandatory cancellation is not revoked, the applicant would be liable to removal from Australia under section 198 of the Act. Section 197C of the Act provides that for the purpose of section 198, non-refoulment obligations in respect of an unlawful non-citizen are irrelevant. The Tribunal must direct its attention to the consequences of its decision to affirm the delegate’s decision. It follows that the applicant is liable for removal unless the Minister exercises his discretion under section 48B or section 195A of the Act; or to face indeterminate residence under subdivision B of Div 7 of Part 2 of the Act; or be relocated to another country.
The Tribunal has been referred to the recent decision in CWGF and Minister for Home Affairs (Migration) [2019] AATA 179 (19 February 2019) particularly from [92] to [100], where the Tribunal considered the operation of section 197C of the Act. The Tribunal comprehensively stated the effect of that section at such paragraphs, which are now respectfully adopted.
Strength, nature and duration of ties: clause 14.2
Clause 14.2 of the Direction requires the Tribunal to consider the length of time that the non-citizen has resided in Australia and whether he arrived as a young child, including considerations to whether the offending followed soon after arriving in Australia and whether a positive contribution has been made by the person to the Australian community: see clause 14.2 (1) (a). Further, the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and with persons who have an indefinite right to remain in Australia, is also to be considered: see clause 14.2 (1) (b).
The applicant came to Australia as an adult. He arrived in Australia for the first time in 2006, with the offending commencing within two years of his arrival. There is no evidence that he has developed any strong ties to any Australian citizens nor has he made any positive contribution to the Australian community.
Impact on family members
As already referred to, the applicant came to Australia with his wife and two children. Two other children have been born to him since he arrived in Australia. There is no evidence of any family connections except for the applicant’s estranged wife and his children.
The Tribunal accepts that non-revocation of the visa would have a significant impact upon the applicant’s children, as has already been considered. But the extent of the impact is not known because of the paucity of evidence relating to the degree of contact between the applicant and his children. There is no evidence that any other person would be adversely affected if the cancellation were not revoked.
Community involvement
There is no evidence that the applicant has made any contribution to the Australian community.
Impact on Australian business interests: clause 14.3
The Tribunal is required to consider whether the non-revocation would have an impact upon any business interests in Australia. There is no evidence that any such interests exist.
Impact on victims: clause 14.4
The Tribunal must consider the impact of non-revocation of the applicant’s visa upon his victims. There is no evidence before the Tribunal which suggests that any victim will be advantaged nor disadvantaged by non-revocation of the applicant’s visa.
Extent of impediments if removed: clause 14.5
The applicant is now 51 years of age. There is no evidence that the applicant does not enjoy good physical health. The Tribunal has been provided with a report of [Doctor 1], consultant forensic psychiatrist dated September 2010. The report indicated that the applicant was suffering from Post-Traumatic Stress Disorder (PTSD), based upon the history provided by the applicant to the psychiatrist. [Doctor 1] recorded that the applicant had a history of maintaining employment and that his pattern of alcohol abuse was not consistent with psychological dependence on alcohol. It was reported that his behaviour was much improved when he is sober.
A report of [Doctor 2], clinical neuropsychologist dated September 2015 was provided. The report confirms the condition of PTSD and recommended therapy over a 12 month period. It was stated that the applicant’s alcohol use behaviour would “likely improve with the effective treatment of his Post-Traumatic Stress Disorder”.
A pre-sentence report dated May 2011 records that the issues which the applicant required assistance was domestic violence counselling; anger management counselling; drug and alcohol assessment and counselling.
A Psychological Assessment Report prepared by STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) which was prepared in April 2012 refers to the fact that it would benefit the applicant if he was referred to a drug and alcohol counsellor to address his reported alcohol dependence. The report states that due to personal problems the applicant started consuming alcohol and said that he could not control his drinking habit. The applicant sustained a serious car accident in 2008 and claims that since the accident he had experienced problems with his memory. In the summary, the report observes that travelling to Australia, the pressure and stress of his life became overwhelming for him which drove him to consume alcoholic beverages which was the cause of the car accident. Separation from his family had been difficult for him and has had a negative impact on his mental health. The report states that the applicant felt generally dejected. The applicant claims that he has been prescribed medication for depression, which would not be available to him in the [Country 1].
Violence history
In addition to the matters for which the appellant has been convicted, there is a history of violence relating to the offender. Whilst in prison, he was involved in fights or other physical combat in December 2010 and December 2014. Whilst in immigration detention the applicant came under notice for punching another inmate in February 2012, and in November 2012.
There are other instances of reported violence or aggressive conduct. The records of the NSW Department of Corrective Services dated May 2016 records that if the applicant was “not happy with and so he can become aggressive pointing his finger at you and raising his voice inmate has been spoken to by officers read these actions on several occasions”. Another record dated May 2016 records that the applicant became aggressive with staff when he did not get the answers or information he wanted. In March 2017 the applicant was reportedly involved in a wrestle outside a dormitory. In April 2017 another inmate reported that he had been assaulted by the applicant. In August 2018 the applicant was seen on CCTV camera footage striking another inmate.
It was difficult to ascertain from the applicant whether he agreed with the comments that were recorded concerning his conduct. At times he denied the events, then admitted them, then denied them. Irrespective, there is a record of such incidents. Significantly, alcohol was not a factor apparently in any of such incidents.
Rehabilitation
A Probation and Parole Service Immigration Report dated February 2011 reports as to the applicant’s social background:
“He would appear to have displayed a complete inability to adapt to a normal, lawful, Australian way of life, as evidenced by ongoing charges of assault occasioning actual bodily harm, stalk and intimidate, contravene apprehended violence orders, destroy or damage property and use carriage service to harass, menace or offend. In all instances the offender’s alcohol consumption was noted to be involved and problematic.”
As to participation in programs, the report relevantly states:
“Mr [CHJK] did not complete any offence targeted programs whilst in custody. Service records reveal that he attended one session of an Alcohol and Other Drugs Program on [day] July 2010, one session of Literacy and Numeracy on [day] August 2010 and one session of Getting SMART on [day] September 2010. In addition Mr [CHJK] has completed a short one day TAFE course on Transport and Distribution.
In the short time that Mr [CHJK] resided at the [rehabilitation centre] he was directed to attend AA meetings and participate in the SMART Recovery Program and Relapse Prevention. Records reveal that although Mr [CHJK] mostly attended, his participation and level of engagement was questionable and he continued to produce positive breath tests throughout this period, despite being directed not to consume alcohol.”
The report further states:
“A core rule for all residents residing at [rehabilitation centre] is the complete abstinence of alcohol, Mr [CHJK] was well aware of this condition prior to his entry into the program. It is noted that on the following dates Mr [CHJK] consumed alcohol, blowing a positive breath test in the following dates [day] and [day] of January and [day] of February 2011”.
As to the attitudes of the applicant the following is recorded:
“Mr [CHJK’s] attitude is of concern to this Service. It would appear that the offender has little appreciation or understanding of the rules and regulations of the ordered society in which he now lives. His constant refrain being “in [Continent 1] I would not be in jail for this”, and “my wife’s business is my own”. He accepts no responsibility for the current crime and denies that alcohol is problematic for him or that he is a domestic violence perpetrator”.
As to employment, it is reported that the applicant stated:
“he wished to find employment following his release, it has made no efforts in this Direction. He has never held employment in Australia, has made no effort to gain qualifications or work experience that would assist him. He would appear to hold unrealistic views regarding his ability to find work and support himself.”
As to assessment, the report states:
“Since his arrival in Australia, Mr [CHJK] has displayed an ongoing inability to adapt to normal, lawful, community life, as evidenced by his criminal record. Despite the recent efforts of this Service to assist the offender to address his alcohol consumption and domestic violence issues, no progress has been achieved. Of extreme concern to this Service is the offender’s attitude to his ex-wife and their unresolved domestic issues. As such the community is at risk if he remains in Australia.”
The final comment of the Unit Leader/Manager on the report reads:
“Unfortunately it would seem that Mr [CHJK] has not learned from any sentence he has received, his failure to address his offending behaviour is a grave concern and as… mentioned does place the community at significant risk of his possible reoffending.”
A further report described as an “Update Immigration Report” dated September 2011 contains reference the fact that although the applicant was directed to engage in programs designed to address his education, literacy and criminal issues, he failed to do so. Further, he denied that he has problems alcohol, anger management and domestic violence. As regards employment, his performance regarded as poor, “with a bare minimum of effort expended”.
The same report refers to conduct which suggests that the applicant has difficulty in accepting the place of women. According to the report, his behaviour was “problematic and inappropriate, especially towards female staff members”. It was reported that he had used his height and physical presence to obstruct and intimidate the progress of a pregnant female staff member, by blocking her access to an amenities room. As to progress concerning rehabilitation, the report reads:
“Mr [CHJK] continues to fail to address his alcohol and domestic violence issues whilst in custody. However he has made referrals for programs, services and education to multiple officers in an attempt to minimise the amount of time that he spends in the compound due to alleged association issues. Due to Mr [CHJK’s] low levels of English and apparent motivation he has been deemed not suitable to participate in any program at this time until we can address his written and spoken language issues which he chooses not to attend.”
As to the applicant’s attitude, it was noted that he denied the charges currently and stated that his estranged wife had lied regarding them. He continued to deny any issues with alcohol and domestic violence and failed to engage in all counselling or programs to address his behaviour as directed by the Service. It continues:
“The poor attitudes displayed by this inmate during the last period of Supervision by this author remain unchanged.”
It was noted that he continued to make no effort to find employment despite the efforts of his supervising officer. He was directed to engage with an employment agency that failed to do so. The report made the following assessment:
“Mr [CHJK] continue to show little regard for the Australian way of life and the ordered society in which he now lives, as evidenced by his reoffence, breach of parole and resistance to interventions by this Service.”
A pre-release report dated April 2016 again refers to problematic alcohol abuse. However the report notes that the applicant did not agree with the Police Facts and claimed that he was “set up” by the victim; he accepted no responsibility for his current offence (the assault for which he was imprisoned for 38 months) and could offer no explanation why he might have been “set up”. The applicant had no empathy for his victim. It appears that he was involved in a fight or physical combat on December 2014 whilst in prison and was placed on a good behaviour bond for 28 days. This report considered that the applicant was suitable for a medium high level of intervention by the Corrective Services NSW, commensurate with the “assessed risk and identified criminal needs”. The report concluded with the Summary and Recommendations:
“The offender has a history of violent offending behaviour and is considered a medium-high risk of reoffending. He failed to accept any responsibility for the offence and has not demonstrated any victim empathy. To date he has not participated in programs to address his violent offending behaviour or his history of alcohol abuse. Therefore Community Corrections cannot support Mr [CHJK’s] release to Parole at this time”.
A supplementary report dated 8 July 2016 records:
“Mr [CHJK] completed the EQUIPS Addiction Program at [Correctional Centre 2] on [day] June 2016. Feedback from the Service and Programs Officer revealed that the offender was able to identify his alcohol use as a “definite problem” and that when intoxicated he finds himself becoming “angry and indulging in aggressive behaviours”. Despite language barriers it was noted that Mr [CHJK] completed the program and it was “considered that he would benefit from further training and work development programs”.”
A reference provided by a chaplain of the Department of Corrective Services dated September 2015 and addressed to “The Presiding Judge” was tendered. It stated that the applicant was welcoming, helpful and an encouraging inmate.
Two statements from the Manager of Industries of the Metropolitan Remand and Reception Centre dated August 2015 and from South Coast Correctional Centre Food Service dated September 2015 were tendered indicating that the applicant had worked in textiles, technology, food services and had applied for work.
Certificates were provided dated May 2017 and June 2017 confirming attendance of the applicant in a course entitled “Combat My Life Traps”. Another certificate of attendance confirmed it presence of the applicant in another course entitled “Breaking My Cycle of Addiction’. Other certificates were tendered indicating that the applicant had participated in an Equips Aggression Program and an Equips Addiction program during 2016.
The above material suggests that the applicant has endeavoured to rehabilitate himself by attendance at the courses. However there is no evidence that treatment he has been provided nor courses for his diagnosed PTSD which has apparently been present from 2010 to 2015 has had any impact on his condition over the past 12 years.
OBSERVATION
The applicant is barely literate. However, during his period in Australia he has learnt to understand the English language and speak the English language, albeit with some difficulty. The evidence suggests that he is not an unintelligent person. He has had difficulty in securing work in Australia because of his limited education and background. For that reason he has undertaken mainly labouring work.
The Tribunal accepts that the removal to Australia from [Country 1] has been traumatic. The Tribunal notes the evidence that the stress of coming to a new country, and the associated pressures, has caused him to consume alcohol to excess which has led to the numerous offences with which he has been charged and convicted. It seemed that alcohol has also been the factor which has led to the destruction of his relationship with his wife.
The Tribunal notes that the applicant had his Global Humanitarian Special Visa cancelled. Such visa was cancelled because the applicant did not pass the character test. The letter dated November 2010 informing him of such an intention to consider cancellation referred to his police certificate dated November 2010; his conviction, sentences and appeals report from the New South Wales Department of Corrective Services dated November 2010; and the sentencing remarks of the Mount Druitt Local Court New South Wales on September 2010. Each of those documents were provided to the applicant with the letter.
Despite such cancellation, the evidence shows that the applicant has been unwilling or unable to control himself leading to the numerous convictions. The applicant has shown himself to be unwilling to respect the laws of this country. Further, there exists real possibility that the applicant will reoffend, thereby placing the public, especially the applicant’s wife, at risk. There is no evidence that the applicant has been rehabilitated, and all attempts to do so appear to been unsuccessful.
For the reasons stated above, the Tribunal finds that the factors in support of revocation presented by the applicant do not singularly or cumulatively outweigh the primary considerations contained in Direction No 79. The factors weigh against the exercise of discretion under section 501 CA (4) of the Act to revoke the applicant’s mandatory visa cancellation.
FINDING
The Tribunal finds that the decision under review is the correct and preferable decision. The mandatory visa cancellation decision should not be revoked.
94. I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President.
.....................[sgd].......................
Associate
Dated: XX March 2019
Date(s) of hearing: 11-12 March 2019 Applicant: In person Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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