FBMX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3545

FBMX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3545 (25 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6690

Re:FBMX

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:25 October 2022

Place:Sydney

The Tribunal decides to:

1.set aside the decision of a delegate of the respondent not to revoke the mandatory cancellation of the applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth); and

2.substitute a decision that the cancellation of the applicant’s Bridging (General) (Class WE) (subclass 050) Visa E be revoked under s 501CA(4) of the Migration Act 1958 (Cth).

................................[SGD]........................................

Deputy President B W Rayment OAM KC

Catchwords

MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke mandatory cancellation – wound person intend to cause grievous bodily harm conviction – non-refoulement obligations – humanitarian concerns – psychologist evidence low risk of reoffending – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

Nigro v Secretary of the Department of Justice (2013) 304 ALR 535

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 90 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

25 October 2022

1. This review concerns a Hazara man born in Afghanistan who arrived here in 2013 and who is a tradesman who worked as a plasterer in this country. He travelled here as an unauthorised maritime arrival after fleeing his home country and spending some eight months in other countries to get here. In 2016 he was granted a Bridging (General) (Class WE) (subclass 050) Visa E.

2. He was convicted at the District Court of the offence of wounding a person with intent to cause grievous bodily harm in 2020, and sentenced to three years imprisonment with a non-parole period of two years. That resulted in the mandatory cancellation of his visa, and when he was granted parole he was taken into immigration detention on 10 June 2022.

3. He made representations to the Minister seeking revocation of the mandatory cancellation of his visa and the refusal to revoke of a delegate of the Minister is the subject of this review.

4. The offence of which the applicant was convicted is a serious one. As is well known, the first mentioned mandatory consideration in Direction 90 which binds the Tribunal is the protection of the Australian community. That consideration is mentioned repeatedly in Direction 90, and is included in the principles which are stated to be a guidance to decision makers, and other mandatory considerations refer to it again, such as the consideration of the expectations of the Australian community.

5. Ms Wrigley of Legal Aid NSW represented the applicant. Legal Aid NSW qualified a psychologist, Mr Bilboe, to examine and report about the applicant’s likelihood of recidivism.

6. The importance of such a report is discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, a case to which I was referred by Ms Gutmann for the respondent.

7. In Tanielu, Mortimer J referred to a number of judicial decisions in the courts about the formulation of predictive decisions about the risk of recidivism of convicted persons, including the decision of the Victorian Court of Appeal in Nigro v Secretary of the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535. At [96] Her Honour set out the following passage from the Court of Appeal’s decision which discussed the importance of expert evidence on the predictive task:

   “Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

   … The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.”

8. At [101] Her Honour said that:

   First, in decision-making which has a clear protective purpose, and which therefore involves an assessment of how a person may behave in the future, and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct that has been impugned in one way or another, it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. There is no reason to suppose any qualitatively different approach is to be taken in administrative decision-making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.

9. The remarks of her Honour and of the Victorian Court of Appeal quoted above indicate that evidence such as that of Mr Bilboe in this review should be at the centre of the evaluation by this Tribunal of the risk that the applicant might reoffend.

10. Mr Bilboe is registered as a psychologist in NSW and the ACT, and has the degree of a Bachelor of Arts (majoring in Psychology) and the degree of a Master of Studies in Psychology and has a Post-Graduate Diploma in Psychology. He has twice examined and reported upon the applicant. In the first report he examined the applicant for the Department of Home Affairs, when the applicant was in Goulburn Correctional Centre, in its minimal security section in November 2020. The interview lasted some three hours and the applicant completed a number of psychometric tests with assistance from the correctional officers, including the Level of Service Inventory – revised (‘LSI-R’), which assists in the assessing of an individual’s risk of recidivism, and which Mr Bilboe considered together with his personal history, with no prior history associated with anger and oppressive behaviours. On the LSI-R scale his results placed the applicant in the Low/Moderate Category, with approximately a 31.1% chance of recidivism. Mr Bilboe took that into account in the light of the history which he took from the applicant with an interpreter and his presentation which Mr Bilboe documented in his report to Home Affairs.

11. The tests also included the Violence Risk Scale which is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, assessing both static and dynamic risk factors. His scores were described by Mr Bilboe as being so low as to be statistically insignificant (Minimal – No Risk).

12. Mr Bilboe stated his conclusion that the applicant fell into the low to minimal risk of re-offending and recidivism. He reported that the applicant had been refused rehabilitation services in the prison because he had been assessed in the prison as being at low risk of recidivism.

13. He took a detailed history from the applicant about the offending and was satisfied that the applicant was remorseful. The applicant stated that he was disgusted with himself, that he should have left instead of engaging with the victim. He regarded the applicant as having a high prospect of rehabilitation subject to services being available, and concluded with a recommendation that the applicant be permitted to remain in Australia under a protection visa and that the applicant abide by any supervision order as deemed appropriate.

14. The applicant gave evidence that he arranged through his solicitors at the applicant’s expense for three intensive sessions with psychologists while he was in prison. Those intensive sessions took place from 10:00AM until 4:00PM on three separate days. On the first day he was treated by a male psychologist and on the second and third days he was treated by two female psychologists. At the end of third session, he was informed by the psychologists that the treatment of him was complete. He was taught mechanisms to withdraw from any situation which might involve conflict, remining calm, and the like.

15. The fact that the applicant underwent the anger management treatment at his own expense when the prison declined to offer rehabilitative treatment speaks as to the applicant’s strong motivation to remain of good behaviour. He designed his own rehabilitation program, and appears to have benefited from it. There is some inconclusive evidence of the applicant having had a short temper in the past and Mr Bilboe, whose attention was drawn to the psychological treatment the applicant had undertaken, said it did not alter his opinions.

16. Before the offending he had criminal history and was described as a model prisoner in the gaol. Nothing was drawn to attention concerning his behaviour in detention.

17. On the instructions of Legal Aid NSW, Mr Bilboe again examined the applicant this year and he wrote a further report on which he gave oral evidence before the Tribunal.

18. He had a telephone interview of three hours duration with the applicant then being in detention. In September this year. He re-tested the applicant on several psychometric assessments including the LSI-R test and on this occasion his score for recidivism fell from 31.1% to 11.7% chance of recidivism.

19. Mr Bilboe expressed the overall opinion that the applicant’s risk of reoffending has dropped to the bottom of the low risk category at about 3.6%. As had happened with his original assessment in Goulburn, he found the applicant to be relaxed, open and co-operative.

20. He expressed concern about the effects on his mental health of the period he has spent in detention, albeit so far a relatively short period. He described that effect as mild to moderate depression. That is consistent with the applicant’s evidence.

21. Mr Bilboe’s evidence should, consistently with the Court of Appeal’s decision in Nigro, be given weight when consideration is given later in these reasons to the important question of the likelihood of the applicant reoffending if he is released into the community.

22. The applicant is married and his wife and two children, a son aged 19 and a daughter aged 13, remain in Afghanistan. The applicant hopes to sponsor them to join him in Australia.

23. The applicant has applied for a protection visa. In the course of dealing with that application, the Department has found that he is owed protection obligations. If the protection visa is granted, he will be able to sponsor his family to come here.

24. The applicant has been in regular employment in Australia as a plasterer, and did the same work when overseas. I heard from his employer for some two years, while he was on bail awaiting the trial. The witness, now an Australian citizen, said that he was a very good worker and that he got on well with his workmates. He said that he wishes to re-employ the applicant and, knowing the details of his offending, says that the offending was quite out of character.

25. Similarly, I heard from a gentleman, also now an Australian citizen, who knew the applicant and his family in Afghanistan and has had contact with him since 2013. He regards the applicant as a polite, respectful and law-abiding person. He is at the head of an Australian Hazara organisation and regards the offending circumstances as entirely an aberration and the applicant has told him of his shame and remorse of his actions on that occasion. The witness said that he has also been in touch with the applicant’s wife who is worried about the applicant and their son’s welfare. She worries that her son may be taken by the Taliban. The witness will offer any necessary support to the applicant if he is released from detention.

26. The applicant’s offending was his only offence, either in Australia or overseas. It was not at all premeditated. It arose from an argument with a housemate. The housemate was angry that applicant and another flatmate were leaving the accommodation, which would leave the victim of the applicant’s offending with greater rent to pay. The men argued, and then fought, with both men throwing punches. The applicant admits injuring the victim, lacerating his palm with a knife and causing a minor chest injury, also with the knife. The injury to the victim’s palm required surgery. Both the victim and the applicant called the police. As noted above, the applicant was sentenced for the offence to three years in gaol, with a non-parole period of two years. He twice said to the victim that he would kill him. In his remarks on sentence after the jury trial in which the applicant was found guilty, Judge Buscombe said that there was no grave risk of death in the offending. He stated that the applicant had good prospects of rehabilitation given his lack of a criminal record and his history of employment.

27. The judge commented that the applicant persisted in a different account of the circumstances of the offending and therefore inferred a lack of remorse, which led the judge not to reduce the sentence. The state of the evidence before the Tribunal is quite different about that matter. At the present time (more than two years since the sentence was imposed and five years since the offending, and since the applicant served his time and is now in detention) the applicant has demonstrated to my satisfaction that he is very remorseful about the offending. He says that he now understands that whoever started the fight, it is clear to him that he should not have reacted as he did. He has told the Tribunal and others including his two character witnesses and Mr Bilboe that he is very ashamed of what he did, and he has taken steps to seek to ensure that such conduct will never occur again.

28. I now turn directly to the mandatory considerations specified in Direction 90 to which the Tribunal must have regard when considering whether, notwithstanding that the applicant does not pass the statutory character test, there is another reason why the mandatory cancellation of his visa should be revoked.

29. The offending was violent and serious, although not life-threatening. Its consequences would be serious for the community if the misconduct is repeated, which is a circumstance that was also taken into account by the sentencing judge. He has now served his time, in the sense that he was released on parole.

30. On the risk that he may reoffend, I take into account the evidence of Mr Bilboe, set out in detail above, which I accept.  I also accept the evidence of the two character witnesses, and the fact that the applicant desires to return to the community, in particular in the hope that he will be able to sponsor his wife and children. The applicant says that his son desires to go to university and has attended a high school where English is taught. If he is able to bring them here, the family will be reunited.  

31. It should be explained that his wife was once engaged to the son of a man of Hazara ethnicity, but with connections to the Taliban, who threatened to kill the applicant and engaged men to attack him. The applicant and his wife eloped to enable her to avoid the forced marriage. The applicant’s trade qualifications were improved by a TAFE course which he undertook while in prison.

32. The husband of the sister of the applicant’s wife is in Australia, and he is in the course of seeking to sponsor his own family’s arrival in this country.

33. There was no family violence and there are no infant children currently in Australia affected by the present review.

34. The stated expectations of the community, treated as deemed expectations, in the light of the applicant’s conviction tend to support non-revocation of the cancellation of the applicant’s visa.

35. The existence of non-refoulement obligations, having been determined to exist by the Department, may lead to the prolonged detention of the applicant since he will not voluntarily return to Afghanistan and in the light of s197C of the Migration Act 1958 (Cth). Indefinite or prolonged detention may worsen the applicant’s depression, and will also deny to him the probability of employment and the consequent possibility of him being able to sponsor his wife and children coming to join him here. That would work serious humanitarian harm to the applicant and his family in Afghanistan.

36. The question of the extent of impediments if removed does not arise because the applicant will not voluntarily return to Afghanistan.

37. In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] Allsop CJ observed as follows:

    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

38. In my opinion those sentiments are part of what for decades has been regarded in the Tribunal as part of the dictates of good government to which the Tribunal, faced with a discretion such as is relevant to this review, will ordinarily take into account. The mandatory considerations of Direction 90 are non-exhaustive and may be supplemented in appropriate cases by humanitarian considerations such as Allsop CJ described, including the matters to which I have referred in [35] above.

39. Taking into account the various matters to which I have referred and balancing such of them as favour revocation against such of them as do not favour revocation, in my opinion, the correct or preferable decision is that the cancellation of the applicant’s Bridging Visa should be revoked under s 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 25 October 2022

Date(s) of hearing:	11, 12 October 2022
Solicitors for the Applicant:	Ms K Wrigley & Ms H Gray, Legal Aid NSW
Solicitor for the Respondent:	Ms G Gutmann, MinterEllison