DMTJ and Minister for Immigration and Border Protection (Migration)
[2016] AATA 1018
•13 December 2016
DMTJ and Minister for Immigration and Border Protection (Migration) [2016] AATA 1018 (13 December 2016)
Division: GENERAL DIVISION
File Number: 2016/5091
Re: DMTJ
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 13 December 2016
Place Melbourne
The Tribunal decides:
to affirm the decision of a delegate of the Minister dated 21 September 2016 refusing DMTJ a Bridging E (Class WE) visa under s 501 of the Migration Act 1958
………[sgd]…………….
Deputy President
CATCHWORDS – MIGRATION – visa refusal – failure to pass character test – whether discretionary power to refuse grant of visa should be exercised – decision affirmed
LEGISLATION
Migration Act 1958: ss 499, 500, 501, 501(6)(a), 501(7), 501K
Migration Regulations 1994: r 2.24
CASES
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 69 AAR 8
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492OTHER MATERIAL
Direction No. 65
REASONS FOR DECISION
On 21 September 2016, a delegate of the Minister for Immigration and Border Protection (Minister) decided to refuse DMTJ’s application for a Bridging E (Class WE visa) (Bridging visa), which he had lodged in association with an application for a Protection (Class XA) visa (Protection visa). The delegate’s decision was made on the basis that DMTJ[1] does not pass the character test under s 501 of the Migration Act 1958 (Migration Act) as he has a substantial criminal record. Having made that finding, the delegate refused DMTJ’s application. On review of the delegate’s decision, I have decided to affirm the decision of the delegate refusing DMTJ a Bridging E (Class WE) visa under s 501 of the Migration Act.
[1] The applicant is identified as “DMTJ” in these reasons in order to comply with s 501K of the Migration Act. That section provides that the Tribunal must not publish any information that may identify the applicant for review of, among others, a protection-related bridging visa (which is the case here), that may identify the applicant’s relatives or dependants. Accordingly, identifying features of his relatives and dependants have also been removed from these reasons.
BACKGROUND
DMTJ was born on 2 January 1984 in Kassala in Sudan to Eritrean parents. He has never been to Eritrea[2] and has neither Eritrean nor Sudanese citizenship.
[2] Letter dated 24 July 2016 written by Mr Mohamed Abdul Rahman, Media and Communications Officer of the African Australian Multicultural Employment and Youth Services (AAMEYS): G documents; G20 at 129.
DMTJ first entered Australia on 20 September 2000 as the holder of a Refugee and Humanitarian (Migrant) (Class BA) visa (RH visa). He was then 16 years of age. As the holder of that visa, he left Australia on 17 June 2005 when he was 21 years of age. Later, on 16 August 2005 while he was still outside Australia, his visa ceased. When he attempted to re-enter Australia on 27 November 2006, he was granted a Border (Temporary) (Class TA) visa (BT visa). That visa expired a month later on 26 December 2006.
DMTJ was detained by officers of the Department of Immigration and Border Protection (DIBP) following his release from prison on 14 July 2016. He was taken first to the Maribyrnong Immigration Detention Centre (Maribyrnong) where he lodged an application for a Bridging E (Class WE visa) on 21 July 2016. He did so on the ground that he had sought review of a decision to cancel a substantive visa. A few days later, on 25 July 2016, DMTJ withdrew his application and lodged an application for a Protection (Class XA) visa (Protection visa) and an associated application for a Bridging E (Class WE visa) (Bridging visa). DMTJ was transferred to the Northwest Point Immigration Detention Centre at Christmas Island (Christmas Island) on 26 August 2016.
As DMTJ was in immigration detention at the time he lodged his application for a Bridging visa, the effect of s 75 of the Migration Act was that he would be taken to have been granted that visa if the Minister did not make a decision within the prescribed time. The time prescribed by r 2.24 of the Migration Regulations 1994 (Regulations) was 90 days or, in DMTJ’s case, 27 October 2016. On 21 September 2016, a delegate of the Minister decided to refuse DMTJ’s application for a Bridging visa on the ground that, having regard to s 501(6)(a), he had a substantial criminal record and so did not pass the character test.
The effect of the delegate’s decision was that, although DMTJ could not apply for another visa to remain in Australia, his application for a Protection visa remains valid and to be considered by the Minister or his delegate.
LEGISLATIVE FRAMEWORK
Under the Migration Act, the Minister may grant permission (known as a visa) to a non-citizen to travel to and enter Australia, to remain in Australia or to do both.[3] There are classes of visas.[4] Some are specified in the Migration Act itself[5] and some are prescribed in the Regulations.[6] The Regulations may prescribe criteria that must be met for a visa or visas of a specified class.[7]
[3] Migration Act; ss 5(1) and 29
[4] Migration Act; s 31(1)
[5] Migration Act; ss 32-38B
[6] Migration Act; s 31(3)
[7] Migration Act; s 31(3)
The Minister is given power to refuse a visa. Among those powers is that given by s 501(1) of the Migration Act to:
“… refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).”
The “character test” is set out in s 501(6). Although the delegate’s decision relied on s 501(6)(a), I have set out that provision but have included a couple of others in order to give a better flavour of the scope and nature of the character test. Section 501(6) provides, in part, that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)-(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
(e)-(f)…”
The term “imprisonment includes any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence”.[8] DMTJ does not pass the character test for he has been sentenced to more than two terms of imprisonment. When they are all added up, they total more than 12 months. All of the terms are added together even if a term of imprisonment was wholly suspended or if the court imposing the sentences has ordered that they be served concurrently. That follows from s 501(7A), which requires that each term be taken into account in determining the total period for which a person has been sentenced to imprisonment. It provides:
“For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
[8] Migration Act; s 501(12)
Section 501G of the Migration Act sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as DMTJ, who is in the migration zone. In broad terms, the “migration zone” includes mainland Australia.[9] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision. They apply to DMTJ and I will return to them below.
[9] Migration Act, s 5(1)
DIRECTION No. 65
Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that legislation. The directions must be about the performance of those functions or the exercise of those powers and must not be inconsistent with the Migration Act or Regulations. Direction No. 65 (the Direction) has been made in the exercise of those powers. It begins with a statement to the effect that it is setting out the framework within which decision-makers should approach their task under s 501 i.e. the task of deciding whether or not to exercise the discretion under s 501 to cancel a non-citizen’s visa or to refuse to grant a visa to a non-citizen. Part B of the Direction identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. That is the Part that is relevant in considering DMTJ’s application.
The Direction begins with a general statement that:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[10]
That is followed by a summary of the Minister’s powers to cancel and to refuse a visa.
[10] Direction No. 65; [6.1(1)]
The objectives are followed by passages described as “General Guidance” in paragraph 6.2 and “Principles” in paragraph 6.3. They begin with a general statement 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.”[11]
[11] Direction No. 65; [6.2(1)]
The Principles set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set. Part B is concerned with the power to refuse to grant a visa. As with the other Parts, Part B gives the Principles their form and pattern in their application in considering a particular visa application. The Principles set out in paragraph 6.3 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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
In so far as it relates to a decision to refuse to grant a visa, paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in … Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)…”
Part B requires decision-makers to take into account the primary and other considerations relevant to the particular application for the grant of a visa under consideration.[12] The considerations differ slightly from those to be taken into account when, for example, the decision is to cancel a visa. The Direction explains that:
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”[13]
[12] Direction No. 65; [8(1)]
[13] Direction No. 65; [8(1)]
In applying Part B, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. In applying them, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[14] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against, refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[15] I will expand upon the primary and other considerations in the course of considering the evidence in light of each of them.
[14] Direction No. 65; [8(2)]
[15] Direction No. 65; [8(4) and (5)]
DMTJ’S EARLIER LIFE AND FAMILY LIFE
On the basis of what he told Ms Carla Lechner, who is a Clinical and Forensic Psychologist, and that she has recorded in her report dated 17 April 2012, I find that DMTJ attended school in Sudan until he was aged about 12 years of age. He thinks of himself as having been a very good student fluent in both spoken and written Arabic. DMTJ did not speak of his early life in Sudan at the hearing but he told Ms Lechner about it. For the purposes of this case, I accept her summary as accurately reflecting DMTJ’s early life in Sudan.
On that basis, I find that DMTJ’s father had another family so that DMTJ had five younger half-siblings. They remain in Africa. DMTJ regards his father as a proud and dignified man who was “a legend, a strong man, very good man …” who supported both of his families. DMTJ was brought up and lived in Sudan with his mother and her children.
“… He recalled living in the country-side and attended school until the age of about 12 years. … He stated that he saw ‘a lot of death, saw dead people, didn’t matter because not close to me, I have a younger step-brother who passed away (drowned) at the age of 14 or 15 years … I was close to him, met him in Sudan in 2005, that was hard’. … [DMTJ] stated that he did not wish to speak about his past experiences although he conceded ‘I’ve seen a lot of violence, might relate to my charges, when I get angry it’s not that I remember specific thing, but it’s just there’. … [DMTJ] stated that in the three years before coming to Australia he was living in Khartoum arranging all the necessary documents; he did not attend school during that time.”[16]
[16] G documents; G13 at 113
On the basis of DMTJ’s evidence and that of his mother, MJ, and of his two sisters, S1J and S2J, I find that all four of them came together to Australia in 2000. By then, they had not seen MJ’s husband and their father since 1992 when he was taken prisoner by the Eritrean Government. MJ has lost three of her siblings. Her other surviving son was taken by the Sudanese Government for the purposes of its Army just before he was due to leave with the rest of his family for Australia. I note that, in their letter, MJ and S1J and S2J wrote as if MJ’s son who was taken to join the Army has died but I also note that DMTJ said that he is still alive. If I assume for the moment that he is alive, I do not know where he is currently living or his circumstances.[17]
[17] Exhibit A at Tab 10
MJ lives with one of her daughters and her daughter’s husband. Her other daughter is also married and both daughters have families of their own. DMTJ also has an uncle who lives in Australia and two cousins whom I will call C1 and C2. His cousins have children of their own. On the basis of the evidence of DMTJ’s cousin, C1 and of her husband, I find that all of them are very close to DMTJ. They treat him as if he were their own brother. Their children love him very much and he has cared for them since they were babies. DMTJ helped C1’s husband clean and prepare the home ready for her return home from hospital with her newborn baby. C1 and her husband relied on DMTJ and his partner, whom I will call “PJ”, to look out for C2 when they travelled overseas. They all know PJ well and are very happy to know that DMTJ has asked her to marry him. As C1 expressed it “thank God, … [DMTJ] is nothing without … [PJ] …”.[18]
[18] Exhibit A at Tab 11
DMTJ’S CONVICTIONS AND THE SENTENCES IMPOSED
On the basis of the National Police Certificate dated 17 August 2016, I find that DMTJ has been convicted of a number of offences. His first conviction was by the Melbourne Magistrates Court (MMC) on 17 June 2003. The last convictions were recorded in the Melbourne County Court on 14 July 2016. They were imposed on appeal from sentences imposed earlier by the MMC on 1 June 2016 for convictions recorded on that day.[19] DMTJ was released from prison on 14 July 2016 having served the reduced sentences imposed by the County Court of Victoria (CCV). Having regard to the sentences that were imposed, they well exceeded the 12 months regarded by s 501(7) as giving DMTJ a serious criminal record.
[19] See records summoned from Victoria Police: Exhibit 2
Descriptions of convictions and sentences
Descriptions of the convictions and sentences are set out in the following table.[20] The date of the conviction is shown in bold type and, where I can ascertain the date, that is shown in un-bolded type underneath the date of conviction. At various points in the table, I have interposed a passage to indicate what DMTJ had done, or was doing in his life at the time. Those passages are based on the oral evidence that he gave at the hearing or on the written material admitted in evidence. Where it is the latter, I have referred to its location in that material. Where I can match the dates of the conviction with the relevant Victoria Police Incident Summary Report (VicPol ISR), I have included that information. At the beginning of the table, I have also included incidents referred to by Victoria Police (VicPol) but in relation to which DMTJ was not charged with any offence.
[20] Taken from documents lodged under s 500(6G) of the Migration Act (G documents); G7 at 79-82
No.
Court
Date of conviction/
Date of offenceOffence
Sentence
A
N/A
20 January 2002[21]
Criminal Damage (Intent Damage/Destroy)
N/A
B
N/A
01 June 2003[22]
Wilful Damage/Injure Property
N/A
C
N/A
13 August 2003[23]
Burglary and theft committed at residential premises
N/A
DMTJ had attended the Brunswick Secondary College Language Centre following his arrival and then attended Princes Hill Secondary College to undertake Year 10 and part of Year 11. He was smoking “choof” or marijuana in Princes Park during recess breaks. DMTJ obtained it from other students.
He left school and continued at the Preston TAFE until his poor attendance led to his being asked to leave.
1
MMC
17 June 2003
2 January 2003[24]
Theft from shop
(Shopsteal)Without conviction, a community based order for 4 months
2
MMC
14 November 2003
16 September 2003[25]
Robbery
Without conviction, a community based order for 9 months to perform 30 hours of unpaid community work over 6 months. To pay compensation $500
3
MMC
28 May 2004
Failure to comply with community based order
Proven
No further penalty4
MMC
28 May 2004
5 October 2003[26]
Breach re 17 June 2003
Theft from shop (Shopsteal)
1 day detention in a youth training centre5
MMC
28 May 2004
State False Address When Requested
State False Name When RequestedConvicted and discharged
6
MMC
28 May 2004
Theft from shop (Shopsteal) (2 charges)
Fail to Answer Bail Granted (6 charges)
Wilful Damage Property
Burglary
Theft
Robbery
Possess Controlled Weapon Without ExcuseOn each charge: 8 months detention in a youth training centre. Effective total term imposed is 8 months
7
KMC[27]
01 July 2004
State False Name When Requested
With conviction, fined $75
8
KMC
01 July 2004
Fail to Answer Bail Granted
7 days detention in a youth training centre
Effective total terms imposed is 14 days9
KMC
01 July 2004
27 February 2004[28]
Theft from shop
(Shopsteal)14 days detention in a youth training centre
Effective total terms imposed is 14 days10
MMC
01 December 2004
Drunk in a Public Place
With conviction, fined $50
11
MMC
01 December 2004
14 September 2004[29]
23 September 2004[30]Possess Property Being Proceeds of Crime
Unlawful Assault (4 charges)
Recklessly Cause Injury
Make Threat to Kill (2 Charges)Aggregate 120 days imprisonment concurrent
Sentence is partially suspended – term to be served 60 days for 12 months
Effective total State term imposed is 60 days12
MMC
09 December 2004
22-27 August 2004[31]
Theft from Shop
(Shopsteal) (2 charges)
Criminal Damage (Intent Damage/Destroy)Aggregate 7 days imprisonment concurrent
Effective total State term imposed is 7 days13
HMC[32]
16 June 2005
6 October 2004[33]
Possess Article Prejudicial to Security/Good Order/Management Gaol
With conviction, fined an aggregate of $250
DMTJ left Australia on 17 June 2005 and travelled to Sudan where he stayed with friends of his family in Kassala until 27 November 2006.
While in Sudan, DMTJ was convicted of an offence involving the consumption of alcohol and sentenced to 40 lashes. On the basis of his oral evidence, I find that he was not imprisoned for the offence because he told the court that he was returning to Australia within the following few days even though he did not intend to do so.
14
MMC
08 February 2007
13 February 2005[34]
26 January 2007[35]Breach 01/12/2004
Possess Property Being Proceeds of Crime
Unlawful Assault (4 Charges)
Recklessly Cause Injury
Make Threat to Kill (2 Charges)Suspended sentence wholly restored
Restored term to be served is 60 days15
MMC
08 February 2007
Fail to Answer Bail Granted (2 Charges)
With conviction, fined an aggregate of $400
16
MMC
08 February 2007
Theft
Unlawful Assault (3 Charges)
Behave in Riotous Manner In Public PlaceAggregate 6 months imprisonment concurrent
Effective total State term imposed is 6 months17
MMC
24 July 2007
11 February 2005[36]
23 May 2005[37]Robbery (2 Charges)
Recklessly Cause Serious Injury
Intentionally Cause InjuryAggregate 14 months imprisonment concurrent
Effective total State term imposed is 1 year 2 months18
MMC
24 July 2007
Burglary
TheftAggregate 6 months imprisonment concurrent
Effective total State term imposed is 6 months19
MMC
11 February 2009
Possess Cannabis
Without conviction. Adjourned to be of good behaviour to 01/02/2010
20
MMC
11 February 2009
18 October 2008[38]
Theft from Shop
(Shopsteal)Convicted and community based order for 12 months to perform 100 hours of unpaid community work over 6 months. To pay compensation of $150
21
MMC
11 February 2009
8 June 2008[39]
10 June 2008[40]
21 October 2008[41]
14 November 2008[42]Carry Dangerous Article In Public Place
Theft from Shop
(Shopsteal) (2 Charges)
TheftConvicted and community based order for 12 months to perform 100 hours of unpaid community work over 6 months
22
MMC
11 February 2009
Throw Missile Injure/Danger/Damage Property
14 days imprisonment concurrent. Effective total State term imposed is 120 days
23
MMC
11 February 2009
Assault in Company
120 days imprisonment concurrent. Effective total State term imposed is 120 days
24
MMC
01 March 2010
Failure to Comply with CBO
Aggregate 125 days imprisonment concurrent
Effective total State term imposed is 125 days25
MMC
01 March 2010
Drunk in a Public Place
Aggregate 125 days imprisonment concurrent
Effective total State term imposed is 125 days26
CCV
15 April 2010
Breach re 11/02/2009
Carry Dangerous Article in a Public Place
Theft from shop
(Shopsteal) (3 Charges)
TheftBreach of community based order of 11/02/2009
Order cancelled, aggregate 3 months imprisonment.
320 days of sentence suspended for 12 months under s 27 of the Sentencing Act27
CCV
15 April 2010
19 July 2009[43]
23 July 2009[44]Recklessly Cause Injury
Possess Controlled Weapon Without Excuse
Possess Ecstasy (Mdma/Mda/Mdea/Mda’S)Aggregate 9 months imprisonment. 320 days sentence suspended for 12 months
Ms Carla Lechner, a Clinical and Forensic Psychologist, prepared a report for DMTJ’s lawyers for use in the proceedings in the MMC on 23 July 2012. I refer to the report in some detail at [55]-[58] below.
Dr Anthony Cidoni is a Consultant Psychiatrist who wrote a report dated 25 June 2012 to DMTJ’s General Practitioner, Dr Cundill. He had been given a copy of Ms Lechner’s report. I also refer to his report in some detail at [59] below.
Mr Michael Bilyk, Psychologist, wrote a report dated 22 July 2012 and I will return to that also at [60] below.
28
MMC
23 July 2012
14 September 2010[45]
11 February 2011[46]
17 April 2011[47]
30 April -1 May 2011[48]
17 June 2011[49]
30 August 2011[50]
11 December 2011[51]Criminal Damage (Intent Damage/Destroy)
Shop Theft – Less Than $600
Theft
Obtain Property by Deception (3 Charges)
Fail to Answer Bail
Attempt Theft
Make Threat to Kill
Unlawful Assault
Possess Cannabis
Possess Prohibited Weapon
Without Exemption/ApprovalConvicted and a community correction order for 12 months to perform 120 hours of community work. This condition starts on 23/07/2012 and goes for 12 months
On or about 5 June 2013, DMTJ and PJ signed a lease for a house in Fawkner, which is a northern suburb of Melbourne.[52] The lease was taken in both DMTJ and PJ’s names as that was required by the landlord. PJ never lived there and had no plans to live in the house. DMTJ shared the house with two other young men whom he knew. I find that he moved to Fawkner to try to escape the influences and environment of Carlton as did his two house sharers. His two house sharers moved out within a few months. DMTJ felt that he had started to change his life when he was living at Fawkner. He remained living in the house until the police came and arrested him in or about December 2013.
On the basis of the letter written by the managing real estate agent, I find that DMTJ maintained the property to a level higher than the average standard of maintenance both inside and outside. He maintained the garden and was a most respectful young man. There were no complaints from the neighbours while he was a tenant and the landlord describes him as a “great tenant”.
29
MMC
11 December 2013
Breach re 23/07/2012
Proven. No further penalty
30
MMC
11 December 2013
Breach Re 23/07/2012
Aggregate 125 days imprisonment concurrent. Effective total State term imposed is 125 days
31
MMC
11 December 2013
Contravene Community Correction Order
Proven. No further penalty
32
MMC
11 December 2013
Dishonestly Undertake in Retention of Stolen Goods
Fail to Answer Bail
Without Authorisation/Excuse Enter Private PlaceAggregate 125 days imprisonment concurrent. Effective total State term imposed is 125 days.
After his release from prison in 2014, DMTJ moved to PJ’s house in Preston where she lived with her daughters. At the date of the hearing, they were aged 21 and 22 years.
DMTJ completed courses with Fores↕te Training & Licensing during 2014 and 2015.[53] Fores↕te Training & Licensing issued a Statement of Attainment dated 13 April 2015 to him. It showed that he had completed the following accredited units:
RIIBEF201B Plan and organise work
RIICCM202A Identify, locate and protect underground services
RIICCM203A Read and interpret plans and specifications
RIICCM205A Carry out manual excavation
RIICCM206A Support plant operations
RIICCM207A Spread and compact materials manually
RIICCM208A Carry out basic levelling
RIICCM211A Erect and dismantle temporary fencing and gates
RIICOM201A Communicate in the workplace
RIIMP0317A Conduct roller operations
RIIMP0318B Conduct civil construction skid steer loader operations
RIIMP0319A Conduct backhoe/loader operations
RIIMP0321B Conduct civil construction wheeled front end loader operations
RIIOHS201A Work safely and follow OHS policies and procedures
RIISAM201A Handle resources and infrastructure materials and safely dispose of non toxic materials
RIISAM203B Use hand and power tools
RIISAM204B Operate small plant and equipment
RIIWMG203A Drain and dewater civil construction site[54]
In October 2014, DMTJ was given a Statement of Attainment by the Kangan Institute showing that he had attained:
RIIWHS205D Control traffic with stop-slow bat
RIIWHS302D Implement traffic management plan[55]
In connection with the requirements of his being paid Newstart Allowance, DMTJ was referred to an Employment Consultant, Ms Brittany Clark, at Sarina Russo located in Fitzroy. She worked with him for approximately nine months between 2015 and 2016. On the basis of the letter she wrote dated 14 November 2016, I find that DMTJ made full disclosure to her of his previous offences. Ms Clark saw DMTJ every two weeks to work on his job search and to ensure that he was meeting his contractual requirements.
I find that DMTJ spoke with Ms Clark about his past, the shame that he felt about his choices and his desire to join the workforce and to make a positive contribution to the Australian community. Ms Clark found DMTJ to be:
“… reliable, honest and made a wholehearted attempt to source and commence in to employment. There were set backs along the way, with … [DMTJ] missing a couple of appointments; however I never doubted that … [DMTJ] wasn’t genuine with his efforts.
One example of … [DMTJ’s] efforts was when there was an opportunity for casual employment. I called … [DMTJ] and explained the role, stating that … [DMTJ] needed to get to the office as soon as possible to fill out forms and get uniform etc. … [DMTJ] was in the office before close of business, filling out the forms and ensuring he had all the equipment for the next day. He was at the work site when required and I received positive feedback of his work efforts.
I truly believe that if given the opportunity and with correct support, … [DMTJ] would be a valuable member of society. … [DMTJ] was honest with me during the time we worked together and I saw the effort and positive progress that he made and will make if given the chance.”[56]
In early 2016, I find, DMTJ was employed by the Ascot Group as a casual employee. It was aware of his criminal record and DMTJ had been very forthcoming in telling those interviewing him of that record. On the basis of a letter dated 15 November 2016 written by the Operations Manager of the Ascot Group, I find that DMTJ impressed his employer as showing respect in the workplace and as having a sound work ethic. He was well-presented when he went to work and was punctual as well as adding value to the tasks that he was asked to do. The Ascot Group would “gladly employ” DMTJ in a similar capacity on its Demolition Team if given the opportunity.[57]
33
MMC
01 June 2016
23 March 2016 when bailed to appear on 23 March 2016 in relation to various charges[58]
Fail to Answer Bail Granted
1 month imprisonment concurrent. Convicted and a community correction order for 18 months. This condition starts on 14/11/2016 and goes for 18 months.
(Not varied on appeal to CCV)
The Melbourne Magistrates Court convicted DMTJ of a further ten offences on 01 June 2016 and sentenced him. DMTJ appealed against his sentence to the County Court, which allowed the appeal in part. The substituted sentences appear below and details of the Community Correction Order at [26].
34
CCV
14 July 2016
6 April 2014[59] and
29 December 2015[60]
Assault in Company
Deal Property Suspected Proceeds of Crime (2 Charges)
Go Equipped to Steal/Cheat
Dishonestly Assist in Retention of Stolen Goods60 days imprisonment on each count concurrent.
Convicted and a community corrections order for 2 years to perform 100 hours unpaid community work15 May 2016[61]
Commit Indictable Offence
Whilst on Bail
Fail to Answer Bail
Possess Controlled Weapon Without Excuse1 month imprisonment on each count concurrent and concurrent. Convicted community corrections order for 2 years to perform 100 hours unpaid community work
23 March 2016[62]
Possess Amphetamine
7 days imprisonment concurrent
Total 60 days. Convicted community corrections order for 2 years to perform 100 hours unpaid community workState False Name When Requested
Convicted and fined $350
[21] Exhibit 2 at 99
[22] Exhibit 2 at 88
[23] Exhibit 2 at 86
[24] Exhibit 2 at 89-90 and 93-94
[25] Exhibit 2 at 67-68
[26] Exhibit 2 at 84
[27] Kyneton Magistrates Court
[28] Exhibit 2 at 83
[29] Exhibit 2 at 80-81
[30] Exhibit 2 at 79
[31] Exhibit 2 at 82
[32] Heidelberg Magistrates Court
[33] Exhibit 2 at 78
[34] Exhibit 2 at 73
[35] Exhibit 2 at 69
[36] Exhibit 2 at 76 and 77
[37] Exhibit 2 at 70-72
[38] Exhibit 2 at 60-61
[39] Exhibit 2 at 64-65
[40] Exhibit 2 at 66
[41] Exhibit 2 at 100-101
[42] Exhibit 2 at 62-63
[43] Exhibit 2 at 56-58
[44] Exhibit 2 at 59
[45] Exhibit 2 at 52-53
[46] Exhibit 2 at 42
[47] Exhibit 2 at 54-55
[48] Exhibit 2 at 43-46
[49] Exhibit 2 at 49
[50] Exhibit 2 at 47
[51] Exhibit 2 at 41
[52] Letter from Barry Plant to DMTJ dated 8 October 2013: G documents; G24 at 137
[53] Exhibit A at Tab 7
[54] G documents; G23 at 136 and see also 134
[55] G documents; G23 at 135
[56] Exhibit A at Tab 6
[57] Exhibit A at Tab 4
[58] Exhibit 2 at 35 and see also 38 in relation to offence on 29 December 2015
[59] Exhibit 2 at 39
[60] Exhibit 2 at 38
[61] Exhibit 2 at 36-37
[62] Exhibit 2 at 35
The Community Corrections Order
On 14 July 2016, DMTJ consented to the County Court’s making a Community Correction Order (CCO) requiring him to be under the supervision of a Community Corrections Officer for a period of two years. It required him to perform 100 hours of community service over a two year period and to report various matters and comply with certain directions set out in the CCO. It also contained the following condition:
“You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.…
You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
Residence restriction
You must reside at … [PJ’s address] for a period of 12 Month(s).”[63]
[63] G documents; G9 at 93-94
Details of several offences
In this section of my reasons, I will set out details of several offences as given in the VicPol ISRs and as explained by DMTJ in his evidence.
Offence committed on 6 April 2014 with sentence determined on appeal by CCV
VicPol ISR
The ISR reads, in so far as it sets out the circumstances of the offence:
“At approximately 2330hrs on Sunday 6th April 2014 Victim … of … gave a friend … a lift on his motorcycle to … Drummond Street, Carlton. Whilst in the stairwell of Level 5 or 6 the victim has been attacked by 3 dark skinned males of African appearance. Males did not say anything to victim and a hammer was used in attack. Victim received 2 minor wounds to his head and some swelling to right forearm. Victim ran from males down the stairs to Level 3, tried to use the lift but returned to stairwell and exited building through the car park. Victim has escaped the males and ran to Rathdowne Street. Victim rang 000. Victim got in taxi and attended … Photos taken of injuries.
Ambulance called and … attended. Transported victim to St Vincent’s Hospital and took statement from …
Statement taken from … independent witness to assault. Statement taken from …
…”[64]
[64] Exhibit 2 at 39-40
DMTJ’s evidence
DMTJ said that he was with a young friend at the time. His friend had rung him earlier in the day crying and saying that he was being chased by “this guy”. Consequently, DMTJ went to Rathdowne Street to speak with him. DMTJ said that he had seen him a few times in the past in Carlton when he, the guy, had been picking up drugs. He said that he did not want to assault him and did not realise that his friend had a hammer. His friend was driving and DMTJ said that he did not know what his friend had in the boot of his car and did not realise that his friend was violent. DMTJ said that he stopped his friend from hammering the guy. His own thumb was hammered in the process. He knew that he would “really get buried for something like this”.
Offences committed on 14 September 2004
VicPol ISR
In so far as it relates to the circumstances of the offence, the ISR reads:
“Approx 2045hrs on 15/09/04 [sic] 2 x (M) … and … [DMTJ] … assaulted … by hitting the victim repeatedly with a belt and 1 x headbutt in Lygon Court, Lygon St, 1CA. Police attended and arrested both re: drunk in a public place and assaults. …”[65]
[65] Exhibit 2 at 80-81
DMTJ’s evidence
DMTJ said that he would not plan to do anything before he got drunk but then he would do things when he got drunk. What was described in the ISR was what he had done. There were occasions when he was so drunk that he did not know what he was doing. People would tell him some shocking stories the next day. DMTJ said that he had been to hell and back in this life and alcohol makes him forget things.
Offences committed on 23 September 2004
VicPol ISR
The ISR states, in part:
“Offender was on the 252 tram route 112 on St Georges Road, Northcote. Offender was intoxicated and threatened occupants of tram that he was going to kill a white man. Offender has approached victim and punched him to his left eye causing severe bruising and burst blood vessels in his eye. Offender has approached second victim and kicked him to the back of the head. Offender has then decamped off tram at Fyffe St/St Georges Rd. Northcote and later apprehended by police. …”[66]
[66] Exhibit 2 at 79
DMTJ’s evidence
DMTJ said that this was an accurate report of the incident. He was going with others to the Preston Market to buy clothes. They were drunk and were “jumped” by some others who had gone past and then come back. He had given them “the middle finger” so that when he got on the tram he felt “really angry”. DMTJ said that he did not know the victims on the tram and that they had done nothing to him.
Offences committed on 13 February 2005
VicPol ISR
The ISR is lengthy as the incident was investigated over some days. As it relates to DMTJ, it reads:
“At approx 2330 hrs on 13/02/05, male victim, at I/S of Elizabeth St & Bourke St, had a verbal altercation with 4 dark-skinned males (poss African). Victim ran to get away from males, who caught him & altercation became physical. In course of altercation, the victim was stabbed in the lower abdomen. The victim attended at the Royal Melb Hospital for treatment. Victim’s condition originally ‘life threatening’, but underwent surgery & condition listed as stable. All information from 3rd S/T victim, unable to speak to victim due to heavy sedation. Primary crime scene unable to be located. …
- Spoke to victims [sic] friend … and conveyed him to Elizabeth Street. Established poss crime scene outside the vicinity of Peter Shepard [sic] Shoes on western side of Elizabeth Street near to Bourke Street.
… was heavily intoxicated however to best of his recollection he recalls incident commencing on south east corner of Elizabeth and Collins Streets.
- Search of Safe City tapes. Located 5 African males and 1 x Caucasian females walking north on Elizabeth and then turned into Collins a short time prior to the victim and … walking along behind them.
…
… established several names from same as whering [sic] same clothing as depicted in images. One of these females … (Caucasian) with several African males was found in possession of a knife that was seized …
…
… arrested …, … [DMTJ] and … at … Seized items including some of clothing worn by offenders when committing these offences.
Interviewed all three offenders at Melbourne CIU. All made admissions as to there [sic] involvement. … (aged 14 years) admits to stabbing … and … [DMTJ] and … admit to chasing same and to minor involvement in the assaulting of … “[67]
[67] Exhibit 2 at 73-74
DMTJ’s evidence
In cross-examination, DMTJ agreed that he was involved in this matter but said that there was a reason. There were four of them in the city, he said, having a drink. “This guy must have been off his head too” and that guy called them names such as “black cunt” and “niggers”. They chased the guy who then punched a few of them before running away. DMTJ said that he did not know that his mate had stabbed the guy. Mr Gell, the Minister’s solicitor, did not understand, DMTJ said, that the guy had assaulted them too and had done so both verbally and physically. DMTJ repeated that he had not known that someone had pulled a knife and stabbed the man.
I note that DMTJ spoke with Ms Lechner about this offence. She recorded that he made no attempt to shirk from his responsibility or to minimise the seriousness of his actions. In relation to the theft of alcohol, DMTJ told her that he had no money and was already drunk. In relation to the theft of cigarettes, he said that he stole them when he was intoxicated. He had found the knife on the street and it was “bad luck” that he had it on him. The assault occurred in the context of the victim’s calling DMTJ a “nigger”. DMTJ told Ms Lechner that he and the victim speak with each other now. They have lived in the same flats for a long time and the victim is sorry and he was angry.[68]
Offences committed on 23 May 2005
[68] G documents; G13 at 115
VicPol ISR
The ISR is lengthy as the incident was investigated over some days. As it relates to DMTJ, it reads:
“… (V) was walking (S) along side Swanston St obs 3 males walking (N). Both parties have then walked into Tin Alley and proceeded (W) along same. (V) on (N) side 4 males off/s on (S) side. Victim has then turned (R) into ‘tunnel’ walking (N). At the time victim was listening to and say ‘Where’s such and such. The victim said ‘Excuse me’ the 1st male has walked further (N) of same. Other two males have approached (V). One has positioned himself behind victim and the other to the (R) of victim, as he was facing (E) wall the second male to the right of the victim has then punched victim to the (R) side of face and nose, causing (V) to fall to the ground. Off (2) has then demanded IPOD and ? asked for mobile phone and wallet. (V) has responded by producing wallet saying “There’s no money can I keep it,’ can I also have my SIM card’ Off/s have agreed to same and permitted (V) to remove SIM card Off/s have then left area in U/K direction … (V) taken to RMH re obs evidence nose injury. Enq at hospital later revealed possible fracture to cheek and obvious broken nose. …
…
… Warrant executed at … in relation to this incident. … arrested and I/V at … Full admissions to his involvement. Nominated … [DMTJ] … , as second co-offender. Stated he attended with … [DMTJ] at Cash Express on 24/5/05 and pawned IPOD for $70.00. …
…
… [DMTJ] still outstanding, has fled o/s, …
…
… … [DMTJ] returned to Australia on 27/11/06 after fleeing to Sudan in 2005 to avoid police. …”[69]
[69] Exhibit 2 at 70-72
DMTJ’s evidence
In cross-examination, DMTJ denied that he had left Australia and travelled to Sudan in order to avoid being charged with the offence. He had not committed a major offence although he agreed that breaking a person’s nose and trying to take his money was a serious offence. At the same time, it was not serious enough to get him on a plane to Sudan. It was his family’s decision to send him to Sudan so that he could see how good life is in Australia.
DMTJ said that he realised that one of the causes of his offending was his alcohol consumption. He went for treatment for a bit until he felt bad and felt that the treatment was not helping. While he was aware that he was committing serious assault offences when he was drunk or under the influence of drugs, it also depended on where he was at the time.
Offences committed on 23 July 2009
VicPol ISR
The ISR summarises an incident that occurred on 23 July 2009:
“At approximately 2145 hrs on 23/07/09 … [DMTJ] has attended the Tankerville Arms Hotel at 230 Nicholson St Fitzroy. Upon arrival … [DMTJ] has been identified by security as being a previous trouble maker who had been banned from the venue. Security approached to … [DMTJ] from premises when security noticed a knife concealed up … [DMTJ’s] jacket sleeve. A struggle has then folowed [sic] between …[DMTJ] and security from the hotel with security guard … receiving a minor abrasion from the knife. Police were called who later searched … [DMTJ] and also located ecstasy tablets in his sock. … [DMTJ] found drunk …”[70]
[70] Exhibit 2 at 59
DMTJ’s evidence
DMTJ said that he had taken ecstasy with alcohol for the first time that night and he was really off his head. His reason for going to the Tankerville Hotel, from which he knew that he was banned, was that he did not know that he was there. He did not know why he had a knife. DMTJ said that he does not usually carry a knife; just ecstasy. He felt like he was walking on air.
Offences committed on 19 July 2009
VicPol ISR
The ISR is lengthy as the incident was investigated over some days. As it relates to DMTJ, it reads:
“… received job to attend at St Vincent’s Hospital in relation to an assault patient that was hit outside the Star Bar on Market Street, South Melbourne. At approximately 7.30 am arrived at St Vincent’s spoke with the victim … Same stated that he was at the Star Bar on Market Street in South Melbourne. At approximately 5.10am he was outside the bar on Market Street talking to two females when another two known female sisters … and … approached him and started yelling abuse at him. The victim knows these females as he has been charged with assaulting … approximately 2 months previous. … has then started hitting the victim with her shoes, The victim was attempting to get away from the sisters, when a male has approached him and has hit him with a right clenched fist to his face. The offender did not have any conversation with the victim. Victim knows the offender as … and use … to go to the same gym as him when he was a teenager. Possibly the offender’s surname is …
Offender has then decamped from the scene and the victim has gone to the South Melbourne Mall and spoke with security who organised an ambulance. Victim stated that he lost a lot of blood at the scene and on the way to the Mall.
…
Victim injuries at this point, broken nose and swelling.
…
Received video from Star Bar which shows lead up to the assault on Market Street. In footage it shows victim having argument with x2 females as per his statement and then he is walking further down Market Street towards Cecil Street when suspect pursues him. The actual assault occurs just outside of video.
…
… [DMTJ] attended at … together with his youth worker … and was interviewed re assault at the Star Bar Nightclub. Made full admissions and bailed to Melbourne Magistrates’ Court on 5/10/2009.
…”[71]
[71] Exhibit 2 at 56-58
DMTJ’s evidence
DMTJ said that he did not know the girls to whom the victim had been talking. He agreed that he had got himself involved in their affairs but he had taken it from someone else. What he meant by that was that he had previously been at the Star Bar and had been hit with a machete. He would like to find “one of the boys who got …” him, he said. DMTJ agreed with Mr Gell that, with that in mind, he had gone to the Star Bar looking for trouble. Before he had gone into the Star Bar, however, he had assaulted a man unconnected with him.
Offences committed on 30 August 2011
VicPol ISR
Those parts of the ISR describing the circumstances of the offence are:
“Victim lived in high-rise flats in Lygon Street. Victim states has been threatened by a male who reside in the same flats at …. Male has not assaulted him until tonight. Victim usually try’s [sic] to keep away from the male. Victim states he was out the front of the building and observed the male at the lifts waiting to go up. Victim waited until the male was [sic] gone before he entered the foyer. Whilst the victim was waiting for the lift the male has come back down and started abusing the victim. Victim was punched several times to the head causing blood nose and cut lip. …”[72]
[72] Exhibit 2 at 47
DMTJ’s evidence
DMTJ said that he knew the victim. The victim went up to his cousin’s floor and he confronted him there. DMTJ agreed that there was a difference between confronting the victim and punching him on the head. PJ said that this had been resolved but did not elaborate on that.
Offences committed on 11 December 2011
VicPol ISR
The ISR records:
“… offender … [DMTJ] attended Woolworths Store, Lygon St, Carlton and attempted to steal 1 x carton of cigarettes by snatching off cashier. Cashier did not let go and received assistance from staff. LPO arrested and conveyed to rear of store and accused threatened to kill staff. … [DMTJ] attempted to dispose of flick knife in his possession by throwing it away. Sighted by LPO and seized. Arrested at scene. … admissions to att theft and prohib weapon. Denied threats to kill. …”[73]
[73] Exhibit 2 at 41
DMTJ’s evidence
With regard to his having denied that he made a threat to kill the staff, DMTJ said that he had told the police whatever he had to in order to make the charges a bit less than they would otherwise be. He was very drunk at the time. DMTJ accepted Mr Gell’s suggestion that a threat of this sort made people feel very unsafe as would his possessing a knife. He also accepted that people in Australia are entitled to feel safe.
Offences committed on 15 May 2016
VicPol ISR
The ISR states:
“At approx. 0645hrs Sunday 15/05/2016 … enroute to job in NFZ Nth obs male riding bicycle west bound along Nicholson St, Carlton North from Freeman St to Curtain St. Male obs to be carrying backpack and nil helmet worn. … intercepted male in alleyway behind 5 Curtain St. Male appeared nervous and was evasive/vague in responses to questions re purpose/destination of journey. Search of backpack conducted revealing male to be in possession of medium size pair of bolt cutters and various other tools. Medium size kitchen knife also located within backpack. Male questioned re ownership of bicycle and in response said that he had got the bike from his girlfriends [sic] house and that he does not know who the owner is. Male declined to prove further details re girlfriends name or address. Male informed re grounds for suspicion and asked to state name and address at which time he responded stating his name was … of … Male produced wallet with Victorian Learners permit as ID. Image on Vic Learners permit and other student ID confirmed as approx likeness to male. Search of males [sic] person conducted pursuant to Control of Weapons Act and revealed small gas blow torch with small bicycle light attached and black Kogan brand mobile … which male stated belonged to his girlfriend. Male arrested re possess proceeds (bicycle). Going equipped to steal (bolt cutters) and possess controlled weapon (knife). …
… Enquiries made with male and after short discussion and realisation that he would not be released until ident was confirmed male made admissions that his true identity was that of … [DMTJ]. ID confirmed through images held on file and fingerprints.
When interviewed …. [DMTJ] made admissions to having found the wallet in his possession of ident documents for abu approx 1 week prior on a tram. …. [DMTJ] stated nil attempt made to RTO or hand in to police. …. [DMTJ] made full admissions that he had used ident documents for the express purpose of misleading police in an attempt to avoid apprehension.
LEAP checks revealed … [DMTJ] subject of 3 x o/s warrants + 1 x WHB from … warrants executed.
…”[74]
[74] Exhibit 2 at 36-37
DMTJ’s evidence
DMTJ said that he had not known what was in the backpack. He had got it from a house where everyone visits and hangs out. The bag was full of tools, he was told and so he grabbed it. He did not know that there was a wallet in the backpack.
Offences committed on 1 June 2005
VicPol ISR
The ISR reads:
“Victim was standing on Ford Street just prior to Furlong Rd. Sunshine North, holding onto his bike. A male, … [DMTJ], approached the victim. … [DMTJ] was angry about an earlier incident with another U/K male. … [DMTJ] has taken a kitchen knife he had in his coat pocket and removed it as he walked past the bike. … [DMTJ] has slashed the rear tyre of the bike with one strike from the knife. … [DMTJ] has then continued on up Ford Street, Sunshine North. Police were called and attended. … [DMTJ] was spoken to by police further up Ford St, as he matched description given by victim. … [DMTJ] was searched. Nil knife found. Police searched surrounding area where … [DMTJ] had been and a black handled kitchen knife approx. 12cm, was located. … [DMTJ] was I/V at the scene and made full admissions …”[75]
[75] Exhibit 2 at 88
DMTJ’s evidence
DMTJ accepted that this version of events was correct. He also agreed that he had been found with a knife on previous occasions. His reason for carrying one was that he had a few enemies but “not anyone in the Australian public”. Those who carried machetes and knives to attack him were his enemies. DMTJ acknowledged that he had not gone to the police when he had been threatened. He supposed that he would now but where he grew up and after going to gaol a few times, going to the police was the wrong thing to do because he would be called a snitch. The police came to the hospital when he had been cut too but the people who had cut away with him got away with it.
Ms Lechner referred to an incident, which DMTJ had described to her and in which he had been jumped by about 30 men and he had been glassed in the face. He was in hospital for two days. His reaction was one of anger; he did not want to be a victim.
Offences of failing to answer bail
DMTJ has been convicted of failing to answer bail on 28 May 2004, 1 July 2004, 8 February 2007, 23 July 2012, 11 December 2012, 1 June 2016 and 14 July 2016. When asked by Mr Gell why he failed to answer his bail, DMTJ replied that he understood that failing to answer bail is a serious thing to do but he just did not want to go to the police station. He had a lot of issues with the police at Carlton, he said. They had been giving him a hard time. He agreed that his failing to answer his bail showed little respect for the court and that it is important to do what the court wants him to do.
Offences of giving a false name
DMTJ agreed that he had been convicted of giving a false name on 28 May 2004 and 1 July 2004. He did so in order to evade arrest as he knew that there was a warrant for his arrest. DMTJ acknowledged that his actions showed disrespect for the police but said that he had been to gaol a few times. He knew that the police would get him eventually but he did not want to be locked up again at the time. Rather than fronting up to the police, he wanted them to do the work to find him and arrest him. I note that DMTJ was also convicted of giving a false name on 14 July 2016 by the County Court.
PSYCHOLOGICAL AND PSYCHIATRIC REPORTS
In 2012, DMTJ appears to have had legal representation and psychological and psychiatric reports have been prepared. I have referred to Ms Lechner’s report already. She noted that DMTJ did not admit to suffering from symptoms of Post Traumatic Stress Disorder (PTSD) but she observed that he clearly had painful memories of extreme violence that he preferred not to share with others. He was beginning to see a possible link between this and his violent offending as well as his alcohol abuse.
Ms Lechner reported that DMTJ used to smoke one to three grammes of marijuana a day but had reduced that to a joint every three days or so. He had used amphetamines and ICE a few times and ecstasy twice at that time. Ms Lechner noted that:
“Although not formally assessed in this regard, … [DMTJ] impressed as being of ‘average/low average’ intelligence. He is generally able to reflect on the impact that his behaviour has on both himself and others but this is often after the event. He tends to be somewhat fixed and rigid in his world views and needs encouragement to contemplate alternative perspectives. He tends to be impulsive in nature and to have a low tolerance for frustration. … [DMTJ] is able to identify some triggers to his negative feelings but is less well able to express them appropriately, often denying or minimizing the extent of his internal distress. He stated that he feels ‘stressed and frustrated’ rather than depressed; he denied suicidal thoughts, adding ‘I’m not a coward, take whatever life gives me. He denied feelings of anxiety and feels angry about ‘racism’. In response he may have a drink or smoke.”[76]
[76] G documents; G13 at 114
In her summary at the end of her report, Ms Lechner spoke of DMTJ’s having:
“… struggled with issues pertaining to his identity and sense of belonging since his teenage years. On the one hand he wants to be Australian but on the other, he does not want to lose his cultural identity as a strong African man (as he perceived his father to be). This inner struggle is likely complicated by the memories that he has of Africa; he has responded by drinking excessively, this adding to his problems rather than solving them. … [DMTJ] is beginning to make links between these interacting factors and may benefit from counselling supports that assist him in working them through.
…
… he is still reluctant to engage with counselling services that discuss his past. It would therefore be more benefit to engage him in practically-based counselling that provides him with a therapeutic context in which he may reveal more of his formative experiences.
… From a purely clinical perspective, .. [DMTJ’s] rehabilitation would be facilitated by his involvement in treatment services as outlined above.”[77]
[77] G documents; G13 at 116-117
Earlier in her report, Ms Lechner had commented that:
“… Intervention is therefore likely to be more beneficial if it focuses on practical problem-solving and practical skills learning such as anger management. In the context of developing a therapeutic relationship with … [DMTJ] may be more willing to disclose his past experiences. This in turn could be linked with his identity confusion and desire to be seen as a strong, proud African man (who does not suffer any psychological problems). Appropriate counselling could form part of a community order.”[78]
[78] G documents; G13 at 115
Dr Anthony Cidoni noted in his report dated 25 June 2012 to Dr Cundill that DMTJ reports flashbacks on most days. DMTJ was reluctant to discuss his previous experiences with Dr Cidoni but he did say that he had witnessed his brother’s death by drowning as well as people being shot and dragged away. DMTJ had no history of psychosis. He has had counselling, including drug and alcohol counselling, in the past but no psychotherapy. Dr Cidoni diagnosed DMTJ as suffering from PTSD with associated depression but not a major depressive disorder. He thought it important that DMTJ follow through with drug and alcohol counselling as well as receive treatment for PTSD.[79]
[79] G documents; G14 at 118-119
Mr Michael Bilyk is a Psychologist who worked with DMTJ in the period from 13 June 2012 to 18 July 2012 according to a Mental Health Care Plan (MHCP) prepared by Dr Pauline Cundill. Dr Cundill had requested counselling for DMTJ related to PTSD, cannabis usage and poor sleep. He concluded in his report dated 22 July 2012 that DMTJ’s difficulties, which extended to his maladaptive coping strategies, requires further exploration.[80]
CONSIDERATION
[80] G documents; G15 at 120-122
Primary considerations
Part B of the Direction begins with three considerations that are characterised as primary considerations: 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. Each of these considerations is developed in the remainder of paragraph 11.
A. Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also 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.”[81]
A.1 The nature and seriousness of DMTK’s conduct to date
[81] Direction No. 65; [11.1(1)]
A.1.2 Direction: paragraph 11.1.1
Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, where that offence or conduct is classified as an offence in Australia.”
A.1.2 Consideration
I have set out the history of DMTJ’s offences and convictions in some detail. It shows 34 court appearances over a thirteen year period. The details of some of those offences have also been set out above. On the whole, DMTJ agrees with the summaries of the offences as they appear in the IRSs. They show a serious disregard of other persons’ property and safety. Some of the offences may have involved persons whom DMTJ would regard as being his enemies. For the purposes of this case, I accept his evidence that they are people who carry machetes and knives and want to attack him. That, however, does not entitle him to carry a knife or to respond to violence with violence. As unfortunate as some of DMTJ’s encounters with the police have been, they are part of the system of law and order that prevails in Australia. Everyone, including DMTJ, is entitled to its protection and no-one is entitled to take the law into his or her own hands.
A.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
A.2.1Direction: paragraph 11.1.2
The Direction sets out the factors that must be taken into account when considering this factor. They are:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that 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 should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
iievidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”
A.2.2 Consideration
I have set out the history of DMTJ’s offences and convictions in some detail. It shows that DMTJ first came to notice of the police at the beginning of 2003 when he had been in Australia for only fifteen months or so. Rather than giving him a “hard time” as he thought, the legal system treated him very leniently in the next 27 months or so until 1 January 2003. In that time, he came to notice for four offences between 20 January 2002 and 2 January 2003. The first two offences which brought him to police attention were quite serious being Criminal Damage and Wilful Damage/Injury Property. He was charged in relation to the third charge for theft from a shop on 2 January 2003 but not for an intervening offence of Burglary and Theft committed at residential premises. In relation to the charge, no conviction was recorded but he was ordered to comply with a community based order for four months. He was charged with Robbery that took place on 16 September 2003 but again no conviction was recorded and a community based order requiring him to perform 30 hours of unpaid community work over six months was imposed. In addition, he had to pay compensation of $500. When he failed to comply with either that or the earlier community based orders, the court did not impose a further penalty. It did go on to impose a sentence of one day in a youth training centre in relation to Shop steal, which he had committed almost three weeks after the Robbery offence committed on 16 September 2003.
DMTJ’s first conviction did not come until 28 May 2004 when he had been in Australia for some three years and eight months. That was almost two and a half years after he is recorded as having come to police notice. After that time, the offences and convictions followed fairly regularly until he travelled to Sudan. They included Robbery and Shop steal but had moved to stating a false name, unlawful assault, recklessly causing injury, making a threat to kill and possession of a controlled weapon. I accept DMTJ’s evidence that his family wanted him to spend time in Sudan so that he would realise how good it is in Australia. Although he left charges pending in Australia, I accept that he was not intentionally avoiding those charges. Rather, he did not want to face them.
That finding is consistent with the way in which DMTJ has approached his offending generally. He agreed with Mr Gell that he had failed to answer his bail and been convicted as a result on seven occasions. His reason was that he just did not want to go to the police station at Carlton where he had a lot of issues with the police. I accept PJ’s evidence that, with the help of the Flemington and Kensington Community Legal Centre, DMTJ and others had reached a confidential settlement regarding the behaviour of a police officer. That gives some weight to DMTJ’s concerns to some extent but it does not explain why he would not answer bail or comply with community based orders made by the Magistrates Court. He agreed that it shows disrespect for the police and for the courts generally. On the basis of DMTJ’s evidence, I find that part of his reason lies in his not wanting to go to gaol where he had spent some time and another part in his wanting to make the police work to find him. Yet another part lies in his not having addressed the issues that arose in Sudan before he first came to Australia and I will return to that later in these reasons.
The trip to Sudan did not prove to be the circuit breaker for which his family had hoped. He was caught drinking alcohol in a country governed by Sharia law and was convicted and punished. When he returned to Australia, he had to face the outstanding charges from 2005 but quite quickly started offending again. The first recorded offence was committed on January 2007. Again, the offences included those of Robbery and Theft and the like as well as recklessly causing injury, intentionally causing injury and assault. He was also convicted of being Drunk in a Public Place on one occasion after his return from Sudan but, on his own evidence, DMTJ had regularly consumed alcohol to excess. I find that he barely remembered what he had done. In addition, he used drugs including ICE and amphetamines.
DMTJ continued to breach the community based orders that were imposed by the courts. Imprisonment as an adult did not deter him. I have noted that two psychologists and a psychiatrist prepared reports regarding DMTJ’s health. In accordance with their recommendations, the Magistrates Court made a community correction order, rather than imposing a term of imprisonment, when sentencing him on 23 July 2012 for 11 charges. I have referred to that in the table above but note that the terms of the community correction order were, in part, that DMTJ have treatment and rehabilitation in the following terms:
“- Assessment and treatment (including testing) for drug abuse or dependency as directed
-Assessment and treatment (including testing) for alcohol abuse or dependency as directed
-Mental health assessment and treatment as directed
…”[82]
[82] G documents; G10 at 98
I note that DMTJ had been the subject of similar orders, whether known as community based orders or community correction orders. On the records that I have, the Magistrates Court had previously made an order in terms similar to that made on 23 July 2012 on 17 June 2003, 14 November 2003 and 11 February 2009. DMTJ had not complied with those community based orders and so had not been able to take advantage of the assistance that the various programmes could have offered him. As Dr Cidoni noted in his report to Dr Cundill, DMTJ had not had any previous medication treatment or psychotherapy when he saw him in June 2012 although he noted that DMTJ had received counselling in the past. He did not comply with the community corrections order made by the Magistrates Court on 23 July 2012 and faced a charge for his failing to do so on 11 December 2013.
I note that DMTJ’s move to the house at Fawkner in June 2013 also proved something of a circuit breaker for him. He wanted to move away from the influences at Carlton but he did not move away from his own failure to take advantage of the programmes that the community based order could offer him. He did not undertake the unpaid community work that he might have been able to turn to his advantage by having further experience of the discipline of work. That discipline can bring structure and order into a person’s life as well as a sense that others depend on him. DMTJ certainly showed in 2016 that he is able to act very responsibly in the workplace and to do his work well. I make that finding on the basis of the report dated 15 November 2016 of the Operations Manager of the Ascot Group. That employment was yet to come in 2013 and DMTJ was to leave the Fawkner house when he was arrested for breach of the community correction order made on 23 July 2012.
He served a term of imprisonment and, on his release, moved to Preston to live with PJ and her two children. That was in 2014. It did, I find, prove to be something of a circuit breaker for, during 2014 and 2015, DMTJ completed various courses readying him for work in the building and construction industry. He worked with Ms Brittany Clark at Sarina Russo and impressed her with his efforts to keep his appointments. As it turned out, the move was not a complete circuit breaker for DMTJ, I find, committed a further ten offences between 6 April 2014 to 15 May 2016 and a further offence of not answering bail on 23 March 2016.
When I look to the reasons that DMTJ has given for committing those offences, I find that, to some extent, he puts himself in a position where he supports his friends without questioning their plans and finds himself caught up in events. That could possibly be said of his offence committed on 6 April 2014 but most of his other offences cannot be seen in that light. It could not be said of the offences he committed on 29 December 2015 and for which he appeared before the County Court on 14 July 2016 on appeal from the sentence imposed previously by the Magistrates Court. The offences were those of Deal Property Suspected Proceeds of Crime (2 Charges), Go Equipped to Steal/Cheat and Dishonestly Assist in Retention of Stolen Goods. DMTJ said in cross-examination that he had committed those offences when he returned to his old environment after having an argument with PJ. He also said that he was “on the edge now” and he knew that he really had to change his life around because this was his last chance but agreed with Mr Gell that, if the same situation were to arise in the future, he could do exactly the same thing again.
That is but one part of the evidence regarding the way in which DMTJ might be expected to react in certain circumstances. As he has said, he has usually been affected by alcohol and/or drugs when he has offended. He and PJ have worked to take him away from the external influences that may lead him to drink and to use drugs and to be associated with people in whose company he will get into trouble, but I find that DMTJ is yet to work on his own internal influences that cause him to act as he does. Certainly, if he is called racist names or treated in a racist way, he is entitled to feel anger. Racist behaviour by one person to another is not acceptable in the Australian community. He is not entitled to respond with violence, though, and, having regard to his history of convictions and their timing, I am not satisfied that he has reached a place where he can control his physical responses. As Ms Lechner noted in 2012, I find that DMTJ still acts impulsively without thinking of the consequences for himself or others until after the event. He still avoids facing up to the consequences of what he has done as is illustrated by his failing to answer bail as recently as 23 March 2016. He has still not undertaken the programmes that the courts have ordered as part of their community corrections orders. I accept that he has sought some help from Dr Cundill and perhaps another General Practitioner but he has not persisted with treatment.
Having regard to all of these matters including the nature and number of offences extending from 2002 to 2016, I am satisfied that the risk of DMTJ’s re-offending is high. His offences are directed not only against property but also against the person. The nature of the damage he has inflicted with his fists is serious. On two occasions being that in Tin Alley and the other outside the Star Bar, he has broken a person’s nose with his fists. He has carried a knife with which he has slashed a person’s bicycle tyre and has done so as late as this year. He has taken money and property from others.
Many of DMTJ’s offences are committed while he is intoxicated or affected by drugs when, on his own evidence, he is unaware of what he is doing. He very properly is offended when others in the community act in a racist way but his response is very improper and leads him to offend. Although he has gone to the Human Rights Commission in the past about police actions, I am not satisfied that DMTJ would, in the future, choose to take a similar measured path in response to behaviour that he regards as racist when it is perpetrated by a member of the public. I find that he would be very unlikely to do so because he would not want to be regarded as a “snitch” and he could not rely on the police. He would prefer to sort matters out himself. That is illustrated by his offences committed on 6 April 2014 when DMTJ thought that he could sort out his friend’s problems with another occupant of the flats. I accept that he did not know that his friend had a hammer and that he got hurt, but it illustrates his lack of care in making choices about what he will be involved in. He had not learned from his previous involvement in even more serious assaults such as those outside or near the Star Bar on 19 July 2009 or near Peter Sheppard’s Shoes in Collins Street in the city on 13 February 2005.
I have outlined DMTJ’s attempts to distance himself from his past by moving house and then moving in with PJ but I find that he has not taken serious steps towards addressing why he is behaving as he has been. His view that he will stop offending now because he is older does not persuade me that the risk that he will reoffend does not continue to be high. He has not taken advantage of the programmes available to him through the community corrections order to begin to address the issues that trouble him and that cause him to behave with anger.
B.Best interests of minor children in Australia affected by the decision
B.1Direction: paragraph 11.2
Paragraph 11.2(1) requires decision-makers to make a determination about whether refusal is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[83] If there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.[84]
[83] Direction No. 65 at [11.2(2)]
[84] Direction No. 65 at [11.2(3)]
In considering the best interests of the child, paragraph 11.2(4) provides:
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)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;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
B.2Consideration
There are minor children in Australia whose interests are relevant in this case. They are DMTJ’s nieces and nephews who are the children of his two sisters as well as the small children of his two cousins. I accept the evidence of MJ, S1J and S2J and that of DMTJ’s cousins that he is very close to their children. The precise impact of DMTJ’s not being part of their lives is difficult to gauge as he himself said in his evidence that he sees his family when he can. Apart from helping his brother in law prepare the home when S1J came home from the hospital with her newborn baby, I do not have any evidence of the role that he has played in the children’s lives. In view of that, I find that his sisters, his brother in law and his cousins will miss him but that the children, some of whom attended the hearing and appeared quite young, will come to understand that he is missing from their lives if he is not in Australia. In so far as having an absent family member is less than ideal, I do not find that DMTJ’s absence would have any particular impact on the children’s lives if he were not permitted to live in Australia.
C.Expectations of the Australian community
C.1Direction: paragraph 11.3
Paragraph 11.3 of the Direction states that:
“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 refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
When considering what the expectations of the Australian community may be as part of reviewing a decision to exercise a statutory power, the starting point is an examination of the limits of that discretionary power by reference to the subject-matter, scope and purpose of the legislation granting it power.[85] In other words:
“… the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. …”[86]
[85] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560 at 39-40; 309; 565 per Mason J with whom Dawson J agreed. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94 at 49; 325; 95-96 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[86] Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421 at [139]; 550; 703; 33; 454
The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.
Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one or other of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3(1) of Part B (or the equivalent paragraphs in Parts A and C) when it addresses the expectations of the Australian community. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa. It is appropriate for the Minister to make such a statement.[87]
[87] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 69 AAR 8 at [65]; 22-23 per Robertson J
Particular aspects of paragraph 6 have relevance in considering the expectations of the Australian community in the context of a s 501CA(4) application. They are:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: paragraph 6.1(1);
(2)In determining whether to exercise the discretion, a decision-maker must have regard to the specific circumstances of the case: paragraph 6.1(3); and
(3)The principles set out in paragraph 6.3 reflect community values and standards in determining whether the risk of future harm from a non-citizen is unacceptable: paragraph 6.2(1).
The Principles set out in paragraph 6.3 are based on the notions that:
(1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1);
(2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraph 6.3(3)-(6); and
(3)Regard must be had of the consequences of a visa refusal or cancellation on minor children and other immediate family members: paragraph 6.3(7).
Within their parameters, the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia. I respectfully suggest that the consideration of Australia’s best interests is now more circumscribed by the Principles set out in the current Direction.
C.2 Consideration
Although I am guided by the Principles in determining the expectations of the Australian community, I note that tolerance and acceptance are also values that underpin its multicultural society. That is not to say that all Australians demonstrate those values or that all Australians demonstrate them all of the time. They are values that it is hoped are shown to those such as DMTJ and his mother and two sisters who have come to Australia on Refugee and Humanitarian Visas. DMTJ said that he was not offered any counselling or other services when he arrived in Australia. That is not a matter that I have explored and so do not know whether he was offered such services and did not take advantage of them or whether those services were not offered at all. What I can find is that he did not follow up on such services even when required by the Magistrates Court to participate in counselling sessions.
The Australian community is not so judgmental that it would not understand that a person who has come to Australia on a Refugee and Humanitarian Visa may well have difficulties in adjusting to life in a foreign land. Not only is the land foreign but the whole way of life may be foreign. It certainly was for DMTJ who found living on the 14th floor of one of the towers on Lygon Street in Carlton completely foreign. That is understandable. It is also understandable that DMTJ might fall into bad company with some who live in those towers. DMTJ did and for quite some time, the police did not charge him even though he was spoken to about offences of Criminal Damage, Wilful Damage and Burglary and Theft committed at residential premises. That is action consistent with giving DMTJ a chance. The courts also gave him a chance and did not enter a conviction for any of the offences with which he was charged on his first three or four court appearances.
DMTJ feels that people smile at him but that, underneath that smile, is hatred for him. The Australian community is made up of all types of people. There may well be some who do that but there are those who do not. DMTJ found one of those people in PJ who has helped and guided him as well as becoming his partner. Her children have written in support of him. They speak of him as being a huge part of their lives. He has accompanied them on family holidays and met their mother’s family on those holidays. DMTJ has also come to know their friends. DMTJ has found love and respect with PJ and her family and their friends.
Despite meeting PJ in January 2008 and going on their first date on the night of the AFL Grand Final in September of that year, DMTJ has not found the strength either to address his issues, remove himself from the influences and associates with whom he commits offences or to undertake the counselling that he needs. Certainly, he could not undertake the counselling ordered by the County Court because he was taken into immigration detention on his release from prison as a result of its judgment but he could have undertaken the earlier sessions.
The Australian community would, I find, have expected DMTJ to have done more to help himself in the 16 years that he has been in Australia. It would have expected him to do what he was required to do according to Australian law and, by doing that, to help him find peace with himself. He has not done that and, even on DMTJ’s own evidence, there can be no level of assurance that he will not commit further offences if all is not going well for him as evidenced by his behaviour following an argument with PJ. The consequences for the Australian community when DMTJ does offend are not insignificant and cause damage both to people and to property.
Having regard to all of these matters, I have decided that the Australian community would expect that DMTJ has had sufficient opportunities to find his way in a new country and to abide by its laws. It would expect that, by now, he would have taken positive actions to address his past traumas and anger issues and his dependence on alcohol and drugs. To his credit, DMTJ has gained qualifications that would assist him in finding employment in the building and construction industry and he has shown that, when he has work, he can work well. While the Australian community would remain sympathetic to him in view of his past life and those efforts, I find that it would think that 16 years is long enough for DMTJ to become a law-abiding member of the community. It would no longer tolerate the risk to its safety.
Other considerations
The four other considerations are summarised in paragraph 12:
“a) International non-refoulment obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.”
A.International non-refoulement obligations
A.1 Direction: paragraph 12.1
In so far as it applies to a person who has made an application for a protection visa, paragraph 12.1 of the Direction states:
“(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-refoulment obligations to non-citizens in Australia 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 these 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 refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to non-refoulement obligations can be raised in response to a notice of intention to consider refusal of their visa under s 501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)…
(6)…”
As indicated in paragraph 12.1(1), an application for a protection visa must satisfy s 36 of the Migration Act. Section 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in a country other than Australia. That provision is qualified by s 36(4) to the extent that it does not apply in relation to a country in respect of which:
“(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.”
A.2 Consideration
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. Australia’s non-refoulement obligations arise, for example, under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). DMTJ has given evidence that he is a stateless person and that his life has been one of hell. I did not ask him to elaborate for I am of the view that I should not consider Australia’s non-refoulement obligations when DMTJ has an application for a protection visa that remains to be considered. It is in the context of his application for that visa that Australia’s obligations should be considered.[88]
B. Impact on family members
[88] See Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [41] Allsop CJ, Griffiths and Wigney JJ
B.1 Direction: paragraph 12.2
Paragraph 12.2(1) elaborates on the impact on family members:
“Impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
B.2 Consideration
DMTJ prepared a list of 14 close relatives from his grandmother to his young nephews. All but his brother in law are Australian citizens and all are Australian residents. I accept that the members of DMTJ’s family are close knit. They have accepted PJ and her daughters into their family and have welcomed the news that DMTJ wants to marry her and that she has accepted. All of the members of both families will be devastated and distressed if he is not permitted to remain in Australia. What they will lose is his love and his presence together with the laughter that he takes to them. If DMTJ must leave Australia, the fear that his family thought that they had left behind will come back to them.
C. Impact on victims
C.1 Direction: paragraph 12.3
At paragraph 12.3(1), the Direction states:
“Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.”
C.2 Consideration
Apart from the injuries that I have described and the nature of the property stolen, I have no evidentiary basis on which to make findings regarding the impact of DMTJ’s offences on the victims of those offences.
D. Impact on Australian business interests
D.1 Direction: paragraph 12.4
Paragraph 12.4(1) of the Direction states:
“Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.”
D.2 Consideration
I find that, should he be released into the Australian community, DMTJ has been offered a part-time position with Quick & Easy Phone Repairs. Initially, the position will be for three days each week as a delivery person but his hours will increase as he learns how to repair phones and becomes proficient. Mr Fuad Hassen has made the offer of employment knowing of DMTJ’s history of convictions.
Conclusion
This is a most difficult case. Those who come to Australia as refugees have often endured experiences that those who have lived safely all of their lives cannot begin to comprehend. They should be accepted with respect and tolerance. At the same time, those who come have a new opportunity to join a new community. Both they and the new community may take time to accept each other but part of that process is the expression of mutual respect for each other. One way in which the members of a community show respect for each other is by obeying the laws of that community. Those laws reflect the balance of interests that the community thinks appropriate for its well-being and protection and for the well-being and protection of its members.
Although his early misbehaviour can possibly be ignored as the actions of a person who is yet to settle into a new country and to learn its ways, DMTJ’s ongoing failure to respect its laws cannot be ignored. I accept that, with a great deal of assistance from PJ and her family and from his own family, he has tried to improve his skills so that he is more employable and to curb his responses of violence. Both families are clearly loving and caring of him and will be devastated if DMTJ is not permitted to live in Australia. Despite the deep unhappiness that will be caused to them, I have concluded that the nature of his offending, what I have found to be the risk of his re-offending and the consequences for the Australian community should he re-offend are such that I am satisfied that the interests of the Australian community outweigh the families’ distress and the difficulties that DMTJ will face if he is not permitted to live in Australia.
DECISION
For these reasons, I affirm the decision of a delegate of the Minister dated 21 September 2016 refusing DMTJ a Bridging E (Class WE) visa under s 501 of the Migration Act.
I certify that the preceding one hundred and seven paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………………………[sgd]……………………
Associate
Dates of Hearing: 8 and 9 December 2016
Date of Decision: 13 December 2016
Applicant’s representative: Applicant’s partner appeared on his behalf
Respondent’s solicitor: Mr L Gell
Clayton Utz
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