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

FCZT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3955 (10 November 2023)
Division:GENERAL DIVISION
File Number: 2023/1120
Re:FCZT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of decision: 10 November 2023
Date of reasons: 29 November 2023
Place:Brisbane

On 10 November 2023, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision made on 9 November 2022 by the Respondent’s delegate to refuse to grant the Applicant a Protection (Class XA) visa and instead declined to exercise the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the visa.
..................................[SGD]......................................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Application for Protection visa after Global Humanitarian visa cancelled on character grounds – where Applicant does not pass the character test – whether there is another reason to decline to exercise the discretion to refuse the visa application – consideration of Ministerial Direction No. 99 – very serious offending contributed to by serious mental illness – no present threat to the community – decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 November 2023)
Pearson v Minister for Home Affairs [2022] FCAFC 203
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
29 November 2023

The Applicant is a 27 year old citizen of Sierra Leone. In 2008, when he was 12 years old, he came with his family to Australia on a Global Special Humanitarian (Class XB) (subclass 202) visa. His visa was cancelled in 2019 due to his criminal offending, and he subsequently applied for a Protection visa. A delegate of the Minister (the Respondent) accepted that he is a refugee but declined the application because he did not pass the character test.
Section 501(1) of the Migration Act 1958 (Cth) (“the Act”) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In September 2017, the Applicant was sentenced to imprisonment for five years and six months with a non-parole period of three years. Therefore, the Applicant does not pass the character test. It was this sentence of imprisonment that led to the mandatory cancellation of the Global Special Humanitarian visa under s501(3A) of the Act. It also forms part of the reason the Respondent exercised the discretion to refuse the Protection visa application in s 501(1) of the Act. The Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application took place on 3 and 4 October and 6 November 2023. The Applicant gave evidence via video conference. His parents, sister and a family friend (“Aunty C”) also gave evidence. An interpreter assisted the Applicant and his family. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Aunty C was a very impressive witness and I accept her evidence in full. The Applicant’s sister, “Ms R”, although relatively young, was also an impressive witness whose evidence I accept. The Applicant struggled to advocate for himself when giving evidence, and his parents had some difficulty giving their evidence presumably due to the language barrier however my impression is that they were earnest witnesses. For the most part, I accept their oral and written evidence.
In applying s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to exercise the discretion to refuse a visa under s 501(1) of the Act, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·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.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraphs 8 and 9 of the Direction set out Primary Considerations and Other Considerations that the Tribunal must take into account. The mandatory considerations that are relevant to this matter are:
Primary Considerations
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence;
(3)strength, nature and duration of ties to Australia;
(4)best interests of minor children in Australia; and
(5)expectations of the Australian community.
Other Considerations
a)legal consequences of the decision;
I may also take into account other matters that are relevant to whether I should refuse the visa application.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in Sierra Leone in 1996. In 1999, his family fled to Guinea due to civil unrest. They lived in a refugee camp for nine years before coming to Australia in 2008. Other relatives were already here. The family joined the Salvation Army Church and received substantial assistance from them in assimilating into Australian Society. Aunty C in particular became close to the Applicant and his family so that he thinks of her, and refers to her, as an aunt.
In Australia, the Applicant attended an all-boys high school while his older sister attended an all-girls high school. The Applicant did not speak good English.
According to a police report made in December 2009, there had been a practice occurring at the Applicant’s school for six months called “Sack Slapping” where students hit other students in the groin as they walked past. The report said “students find this funny and accept this act”. That is an unfortunate comment. The practice was clearly violent and constituted sexual assault. It is well known that victims of bullying sometimes pretend not to mind because of the dynamics of bullying.
The police report indicated that on 30 November 2009, the Applicant was hit so hard in the groin that it ruptured his testicle. He attended school the following day and reported that he was in pain and vomiting blood. He was taken to hospital. His parents did not want to take action but they expressed concern that it would happen again.
The Applicant’s sister recalled that the Applicant used to tell her “pretty much about everything”, but he did not tell his family about being hurt at school. Rather, they found out when the school contacted them. His parents told the school principal that the Applicant was afraid to go to school. The Applicant’s father’s evidence suggests that the attack was not isolated. Each of his family members referred to him having been bullied, which also suggests repetitious behaviour. It was not feasible for the Applicant to go to a different school further from their home, so his parents kept him in the same school. His father expressed regret that they had not allowed him to change schools. Giving evidence about this topic reduced him to tears. The Applicant’s attendance at school became poor and his grades slipped. In 2012, at the age of 16 he started using cannabis.
In 2014, when the Applicant was 18 years old and in year 11, he left school and tried to find work. While he said he left school because he was faced with the choice of repeating or leaving and getting a job, his parents’ evidence was that he left because of the bullying and his fear of being at school. It appears that his disengagement and cannabis use following the bullying is what led to him having to repeat or leave. While he had worked at MacDonalds and KFC when at school, he found it hard to keep a job after he left.
That same year, the Applicant started abusing alcohol. His drug and alcohol abuse increased to the point where, on a daily basis, he consumed a cask of wine and used cannabis.[1] His family noticed a change but they did not know he was abusing alcohol and his parents did not know about the cannabis either. He was experiencing symptoms of schizophrenia but did not realise he had a mental illness, and nor did his family, so it went untreated. He had been close to his sister but he stopped talking to her, withdrew from his family and spent most of his time in his room. He got new friends whom his family did not know. He would not shower or change his clothes for long periods, and he left food in his room. He wore a thick jacket in hot weather. He got angry quickly and became argumentative. His parents put his behaviour down to him being a teenager.
[1] Exhibit G1: G11 Letters from Dr Andrew Ellis
The Applicant occasionally got into trouble with the police when he was out with friends, and ultimately at the end of the year, when he was still 18 years old, he committed some terrible offences against his girlfriend “GS”, that involved violence and sexual assault. This came as a great shock to everyone. Before describing those offences, I shall give some more background and context.
The Applicant’s parents and Aunty C all described him as a quiet, gentle, passive man.[2] The Applicant’s sister said he was calm, respectful and kind with no history of violence in his character or behaviour. She said he was well liked by neighbours, peers, the community they lived in and the Salvation Army church community. He had been dating GS between two and three years. His father recalled that he loved GS “so much” and spent more time with her than with his friends. His mother recalled that he would pick GS up from her work and take her home (she lived with her parents) even though it was late, and it was a long way for him to travel. Aunty C described him as respectful and well-liked by his community members and peers. She recalled a church youth outing to an aquatic centre when the Applicant was around 15 years old. Girls made obvious efforts to attract his interest, and he was respectful and gentle towards them. She thought the offending was completely out of character with his normal behaviour and demeanour. Other people from the church expressed similar sentiments in letters they provided.
[2] Exhibit G1: G11 Letters from Dr Andrew Ellis
In June 2014, the Applicant was involved in an incident with police. He was later convicted in his absence of assault officer in execution of duty, resist officer in execution of duty and affray. A conviction in absentia does not carry a great deal of weight as the police allegations were not tested or agreed to by the Applicant. The police alleged that there was a report of a brawl outside a bottle shop. When they arrived, they spoke with the Applicant and two other men. Initially they were all compliant but the Applicant was a little resistant. He later made threats like “I wanna fight you, I wanna punch you, I want you to get mad so then you will punch me”. He then tried to rush at an officer and had to be restrained by his friends several times. He did make contact with one officer, striking him on the shoulder and chin.
The Applicant recalled the incident and said he was ashamed. He was under the influence of cannabis and alcohol at the time and not thinking straight. He thought he was being accused of something he did not do and got angry. In the hearing, he admitted to having sworn and misbehaved but he denied having said he wanted to fight the police or making any attempt to attack them. He said he resisted being handcuffed because he was worried the police would break his arm. He claimed he was normally cooperative with police and would show his identification but on that occasion he was drunk and “acting stupid”.
It appears that the Applicant tried to travel on public transport without a valid ticket on some occasions.
According to police case notes, on 26 December 2014, GS reported that the Applicant had taken her phone, kicked her in the shin and sworn at her. When the police arrived, she was giggling and saying it was all a joke but she wanted her phone back. The Applicant recalled that he took the phone but did not recall kicking GS or swearing at her. He said he wanted to check her messages but she would not let him. He said it was not uncommon for them to check each other’s phones but sometimes she did not agree to him checking hers. I am not satisfied that the Applicant kicked GS.
On the afternoon of 29 December 2014, the Applicant and GS were at the Applicant’s home. She had ended their relationship, according to her, because of the Applicant’s over-protective behaviour, and gone to his home to retrieve a mobile phone. While they were there, his parents separately arrived at the unit. In a joint statement to the Tribunal, they said the Applicant’s father called the police because the Applicant and GS would not stop arguing and they thought the police would stop the arguing and take GS home. The transcript of the Applicant's father’s phone call to the emergency operator included the following:
“…it's my boy…he is behaving badly his girlfriend gone to him…Because he damage (inaudible) me too in the toilet and he wants to fight…Yeah he want to fight his Mooma he wants to fight me too, I don’t want him here anymore…[FCZT], his girlfriend is [GS]…he is telling me get out, he is in the toilet, with his girlfriend they are fighting, the girl is crying…”
According to notes made by the police, when they arrived, they heard screams and yelling coming from the Applicant’s bedroom. They announced their presence and asked for the door to be unlocked. The Applicant unlocked the door and GS ran from the room crying. GS gave an account to police in which the Applicant had assaulted and raped her. Some details recorded by the police include that the Applicant:
·had punched her while she sat on a mattress in the garage;
·pushed a t-shirt into her mouth while in his bedroom to muffle her screams;
·said “You let all those other niggers do this, let me show you how it’s done by a real nigger”; and
·digitally penetrate her until he ejaculated partly inside her and partly on the mattress (despite the fact that a digit cannot produce ejaculate).
None of these allegations were among the facts that were accepted by the jury that ultimately convicted the Applicant of offences arising from this incident. Nor was there any mention of any interaction with the Applicant’s parents in the police report even though, according to what the Applicant’s father told the emergency operator, the Applicant did interact with them.
The medical evidence indicated that GS had injuries on her body that were consistent with the violence she claimed the Applicant inflicted on her. In a victim impact statement that she later provided, she said the Applicant had been paranoid and had persistent beliefs that she had been unfaithful to him despite any evidence.
The Applicant was intoxicated so the police could not interview him immediately. He had also been using cannabis. When the police did interview him, he admitted to having hit GS’s head “some few times…Not hard but just, like just, like just a tap…” and he said he was sorry. He said they were arguing, and he was “just like hitting her and stuff” and then he opened the door and the police were there. He said he tried to control his anger but it got the better of him. He also said, “I’m sorry but I’m not trying to hurt her. I’m not trying to hurt anyone”. The Applicant admitted to having sex with GS but claimed it was consensual. He agreed that she had said “no”, and he claimed they stopped at that point and the fight started.[3] The Applicant was charged and remanded in custody.
[3] Exhibit R2: S15e Transcript of police interview with the Applicant.
According to the Applicant’s sister, Ms R, she was close friends with GS, and when GS stayed at their home overnight, she stayed in Ms R’s bedroom. On 29 and 30 January 2015, GS sent a series of text messages to Ms R. The conversations included the following:
GS: [Ms R] I feel bad, I lied about [FCZT] rapping (sic) me and now I don’t know how to tell the police I’m scared to get in trouble and my parents getting angry at me
Ms R: So u lie to all of us
Why?
Are u okk? (sic)
Look everything will be okk (sic)
GS: I’m sorry I feel like shit I cry every time I think that [FCZT] will be put in jail coz of me I was really upset and I wanted him to feel bad for what he did to me but I never thought it would go this far
Ms R: Look I can’t go to polic (sic)
What are you going to do
GS: I’m scared to tell the police

GS repeated this in a phone call with Ms R. On 7 February 2015, GS send Ms R a text that said:
“Can you pls tell [FCZT] tomorrow that I love him and I’m trying everything I can an that’s I’m waiting for him and that happy birthday and that when he comes out I will plan for him a 19^th birthday party that’s how much I love him and that I have never cheated on him and never will (Errors in original)
GS sent another text message that said:
“I went to the police station n the detective Natalie didn’t believe me. Well I’m in trouble with the police for lying and might get charged.”
Ms R recalled that GS sent her messages asking how the Applicant was and asking to come with her when she visited him in prison. Ms R was afraid that she would be in trouble if she brought GS because it was GS whom the Applicant had offended against. Ms R told GS that it was not a good idea to be in contact because of the prosecution. Ms R reported the text messages, although it is not apparent to whom. The screenshots of these text message conversations were reproduced in a document that was signed by GS at a police station on 9 November 2015, nearly a year after the incident. The document appears to have been made an exhibit in the eventual trial.[4] There were also some Facebook messages exhibited in the trial, but these are not legible, although presumably they were provided in a legible format in the trial.
[4] Exhibit R2: S15(a) Exhibited Text Messages.
The Applicants parents recalled that it was very surprising when GS told them she was telling lies and was sorry. They had tried to talk to the Applicant about the assault but he could not explain what happened. GS stayed in contact with the family at first and did not want to press charges, but she later changed her mind. They found it confusing when GS called them, and they did not understand what was happening as they were not familiar with the Australian judicial system.
At some point the Applicant was granted bail. He estimates it was about three months after he was charged. He decided he had to cut down his cannabis use, which he did. He also attended a community mental health centre. He started taking medication that is used to treat schizophrenia.[5] He lived with his parents. Ms R recalled that he was still isolating but not as much as before. Aunty C recalled that when the Applicant was on bail, his mother would bring him to work with her at the Salvation Army (where she worked as a cleaner) so he would not be left at home by himself. His mental illness had been diagnosed and he had started on medication that was “drugging him out badly”.
[5] Exhibit G1: G8 Sentencing remarks of the District Court of New South Wales
By 15 January 2016, the Applicant was out on bail and he was caught with a gram of cannabis in his possession. He also failed to report for bail at the correct time on some occasions while he was on bail.
In August 2016, a psychiatrist, Dr Ellis provided a report on whether the Applicant was fit for trial. He noted that for some years the Applicant had heard voices and experienced paranoia, jumbled thoughts, and a general sense that the world had “become weird and not quite right”. His parents had noticed a change in his demeanour over the past two years. They said he had often been in his room isolating himself, his speech became mixed up, and he would say that Abraham from the Bible spoke to him. He was disorganised in his behaviour and would spend prolonged periods staring at windows. There were periods of time when it appeared he wanted to speak but it seemed that his mouth would not open. They said he was better when he took his anti-psychotic medication. Dr Ellis thought GS’s description of paranoia and beliefs that she had been unfaithful was consistent with a delusion of infidelity or morbid jealousy. He considered the Applicant met the diagnostic criteria for schizophrenia.
Dr Ellis said there appeared to have been a decline in function and restriction of the Applicant’s emotional state alongside these symptoms. He thought the fact that the symptoms persisted despite the Applicant’s very much reduced cannabis use indicated an independent mental illness that was exacerbated by substance use.
Dr Ellis thought the Applicant had a reasonable understanding of the charges, but a limited understanding of the oath and the concept of entering a plea. He understood in a general sense that the trial was a trial of his behaviour. He noted that the Applicant may have difficulty maintaining fitness for trial because of “under-treated aspects of his mental illness, particularly thought disorder” which could impair his ability to follow the flow of events in court. Further, his general sense of paranoia and delusional mood could at times impair his cooperation with, and trust of, others. He thought that with improved psychiatric treatment, these deficits would likely improve and it was likely that he would be found fit to be tried. On the other hand, if he remained on intermittent, low-dose treatment possibly a court would find him unfit to be tried.[6]
[6] Exhibit G1: G11 Letters from Dr Andrew Ellis.
In October 2016, the Applicant was searched by the police when he reported for bail. They found two small razor blades inside his wallet and six adult OPAL cards (pre-paid public transport cards). When asked about this he said “I don’t care what I carry around I pick things up and I keep them” and became argumentative. There is a conviction for having a knife in a public place that could relate to this incident although the Applicant thought it related to an occasion when he had a tool for fixing a bicycle that looked like a nail file and was not sharp.
On 28 December 2016, the Applicant attended the Bankstown Emergency Department with his family, complaining of perceptual disturbances and hearing voices. He did not wait for a mental health assessment.[7]
[7] Exhibit G1: G11 Letters from Dr Andrew Ellis
In the morning of 3 January 2017, the police located the Applicant standing in the middle of the road unresponsive. He remained unresponsive even when at the hospital. The Applicant recalled that his mother had been reminding him to take his medication but if she did not tell him, he sometimes forgot and the next day he would think he did not need it. Then this incident happened. The Applicant was admitted as an involuntary in-patient to the hospital’s Mental Health ward. Over time, and after changing his medication, his condition improved, and he was discharged on 18 January 2017.[8] The Applicant’s father recalls it was at that point that that he was diagnosed.
[8] Exhibit G1: G8 Sentencing remarks of the District Court of New South Wales
Dr Ellis referred to the incident when the Applicant was standing in the road in an updated report, in May 2017, and he noted that beforehand the Applicant had stopped taking his regular medication. The Applicant told him he had not used cannabis since his admission to hospital in January, and he had not consumed alcohol since February. He was still reporting hearing voices daily but not as much as before. He said consistent medication reduced his experience of voices. He reported to Dr Ellis that he had been experiencing emotions that were not his own. His parents reported periods when he did not talk or he talked to himself, and that he became angry without any obvious reason. Dr Ellis though the Applicant had a better understanding of matters concerning a trial although he thought the matter was in God’s hands and the correct plea would come to him when the time was right.
Ms C gave evidence that after the Applicant’s admission to the mental health ward, she visited him and he told her he understood that he had to take his medication consistently.
The trial took place in late May/early June 2017. The Applicant did not give evidence. His parents described this as the Applicant not being able to have a voice in court to explain himself. A jury found him guilty of:
·Intentionally choke etc person with recklessness (DV)
·Stalk/intimidate intend fear physical etc harm (domestic)
·Aggravated sexual assault - deprive liberty (DV) – three offences
·Take/detain person with intent to obtain advantage occasion actual bodily harm
The Tribunal readily accepts that the Applicant physically attacked GS. Her allegations are supported by the medical evidence of her injuries and the screams and other noise heard by the Applicant’s father and attending police. Further, the Applicant admitted afterwards to having felt angry and perpetrating some violence on her although he had a poor memory of events.
Accepting that the Applicant raped GS is difficult given the discrepancies in the initial police report, the absence of the Applicant’s parents in any of the accounts of the offending, and the text messages GS sent to Ms R indicating that she fabricated the rape allegations and the police threatened to charge her when she tried to withdraw them. It appears that the Applicant’s memory of events was severely compromised and he was barely in a fit state to meaningfully participate in his trial. He did not give evidence. It is not apparent from the material before me, which includes the Crown’s opening submissions and the sentencing remarks, how the text messages (and Facebook messages) were dealt with in the trial. However, the jury convicted the Applicant of three sexual assault offences and, as the entirety of the offending enlivened the discretion that I am exercising, I must proceed on the basis that the Applicant committed those offences. I must also accept the factual basis upon which all of the convictions rested.[9]
[9] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
The Applicant recalled that the night before the offending, he was watching a movie and then “out of nowhere” there was a voice saying, “run”, he felt scared, and his body started running. By the time he stopped himself he was on the street, 50 metres from home. He did not know what he was scared about. Of the offending, he said had he been in his normal state of mind, he would have asked GS if she had been unfaithful rather than getting angry, and that he had never felt that way before. He described it as like feeling someone else’s anger, and being overwhelmed with anger. He said he was trying to control himself and his mind, fighting himself and arguing with GS, saying things he did not want to say. Before he knew it the police were knocking on the door. When he “came to” the police said “You did this, did that” and it was hard for him to take in because he had never done things like that. He is still in disbelief that he could have done what he was convicted of. He said “I’m not saying all the evidence against me is wrong, I’m just saying like I know myself if - if that happened, well, it never should happen because I’m not like that”.
The learned Judge observed that the jury’s verdicts involved an acceptance of the Crown’s case which was primarily dependent upon the evidence given by GS. On the basis of the jury’s verdicts, His Honour found that the following facts were established beyond reasonable doubt:
·GS attended the Applicant’s premises to collect a phone she had left with him;
·the Applicant was affected by alcohol and illicit drugs;
·the Applicant asked GS to follow him into the garage area. While there, he told her he had a gun and used his forearm to choke her. He pushed her up against a wall causing her to feel scared. His forearm was on her throat for about 10 seconds and caused her some pain;
·GS ran to the front door of the Applicant’s parents’ unit. He dragged her back down the stairs. The Applicants mother arrived home, and GS and the Applicant walked into the unit;
·GS walked into the Applicant’s bedroom to get her phone. He followed and locked the door. He pushed her onto the bed, then told her the phone was in the loungeroom. As she tried to exit the room, he pulled her down by her hair and she fell onto some suitcases;
·he punched her in the face for a couple of seconds, she again tried to leave the room and he pushed her back and closed the door;
·at one point he slapped GS on the bottom, and at another time GS managed to leave the bedroom, but he pulled her back and she called out for help;
·the Applicant sat on GS’s back, removed her jumpsuit, and while she was crying and telling him to stop he removed her underwear and inserted his penis into her vagina for a few seconds and ejaculated;
·GS again tried to leave the bedroom. She went to the bathroom and it was when they were both in that room that the Applicant’s father called the police. The Applicant pulled GS back into the bedroom. She cried and screamed out for help. He choked her so she felt like she would faint;
·The Applicant took off his pants, sat on GS and forced his penis into her mouth; and
·GS told him to stop but he put his penis in her vagina again for a few seconds.
According to these facts, the Applicant continued to attack GS after his father phoned the police. There is no mention of this in the facts accepted by the jury but, according to what the Applicant’s father told the emergency operator, he had tried to intervene. It seems very strange that the Applicant continue the attack after his father intervened, and if it is correct, it is consistent with the Applicant not having been in his right mind.
GS suffered bruising and scratches to her face and body, particularly to her back. She was taken to hospital and remained there overnight. She wore braces on her teeth and she had multiple dot and blot type haemorrhages in and under the surface of her upper and lower inner lips. She also had swelling of the uvula, being the small hanging structure at the back of her throat, and her tonsils. She was tender on the right side of her head, the upper right side of her neck and on her buttocks. She had petechiae in both eyes and some blood pooling in her right eye. There were scratches and abrasions on her arms.
The Applicant was due to be sentenced in September 2017.
In June 2017, Dr Ellis interviewed the Applicant and he provided a third report in July 2017. In this report, he noted that the Applicant denied that he could have done what GS accused him of and was upset that she would make statements against him. He endorsed that it is was not permissible to force sex onto somebody and not permissible to touch someone without their permission. He continued to spend most of his time in his room and remained unmotivated and disorganised. In relation to contributing factors to the offending, Dr Ellis said:
“it is likely that the combination of intoxication and unfamiliar delusions and hallucinations significantly impaired his ability to restrain impulses, martial emotions and consider the consequences of action at the time. It is not likely that individual or a combination of the factors presented totally deprived him of an ability to control his actions or understand that they were legally wrong and harmful”.
In terms of risk management Dr Ellis said:
“It is not possible to predict if an individual will commit a sexual or other offence, or reoffend with a similar offence. It is possible to identify risk factors drawn from the scientific literature associated with offending and target them for treatment and management. I have made reference to risk factors drawn from a structured professional judgement tool that of association with sexual offending and clinical assessment in addressing this issue.
Risk factors that are associated with sexual offending in this case are substance use (alcohol and cannabis), relationship dysfunction] mental disorder (schizophrenia), lack of employment and poor self-awareness.
Historical unchangeable factors are the physical coercion used in the offence.
For other known risk factors for offending [FCZT] presents a positive profile. He has displayed stable accommodation and no evidence of an antisocial personality style or paraphilia. There is no prior sexual and limited other offending history. He has volunteered for mental health treatment and continues with this. He did not endorse attitudes that supported offending at this review, although likely had them during the offence. He held attitudes supportive of further treatment and supervision despite his lack of insight. He has not been under justice supervision before and has maintained his conditions of bail despite symptoms of serious mental illness. Although he is denying the offence and has limited insight into it, this does not lead to him rejecting rehabilitation offered to him.”
Dr Ellis used the STATIC-99R actuarial instrument which is specifically aimed at assessing the risk of sexual recidivism. It compares 10 historical (unchangeable) characteristics of a person to historical samples of offenders with known rates of recidivism. Dr Ellison pointed out that it cannot predict the risk for an individual; only compare them to these historical groups.
Dr Ellis noted that the Applicant’s profile showed concern around his under-treated mental illness and his substance use that led to impulsive and disinhibited behaviour and predisposed him to an aimless lifestyle. His response to limited quality psychiatric treatment inhibited his progress in most domains of his life. Dr Ellis recommended injectable medication given the Applicant’s problems with memory and disorganisation.[10]
[10] Exhibit G1: G11 Letters from Dr Andrew Ellis.
On 7 July 2017, the Bankstown Community Mental Health Service noted the Applicant’s deteriorating mental state, an ambulance was called and he was admitted as an involuntary patient. At the time of his discharge on 26 July 2017 he had started monthly depot injections of paliperidone. He reported feeling well and had no overt psychiatric or affective symptoms.[11] He then stated attending the Bankstown Community Mental Health Centre every four weeks for his depot injection. In September 2017, that service noted that his mental health had improvement since commencing the injections. He was also attending appointments with his treating psychiatrist and clinical psychologist every four to six weeks.[12]
[11] Exhibit G1: G8 Sentencing remarks of the District Court of New South Wales
[12] Exhibit G1: G8 Sentencing remarks of the District Court of New South Wales
In a pre-sentence report that was provided to the court by Corrective Services, the author noted that the Applicant had said he had “lost control” because of his belief that GS was cheating on him, and that he could not recall the offences because he had been “tripping out”. His risk of general recidivism was assessed as medium risk while the STATIC-99 assessment done by Corrective Services placed him in the moderate to high risk category for sexual re-offending.[13]
[13] Ibid.
The Applicant was sentenced to imprisonment for five years and six months with a non-parole period of three years.
The learned Judge said that it had been clearly established that the Applicant was under the influence of marijuana and alcohol at the time of the offences. He noted that the STATIC 99 assessment conducted by Corrective Services did not involve an interview with the Applicant. He was satisfied that as at the time of the offences the Applicant was suffering from undiagnosed schizophrenia, aggravated by his cannabis use. He said he had no doubt that the Applicant’s untreated mental health condition contributed in part to the offending, but because the Applicant was also affected by cannabis and alcohol, it was not possible to determine how much it had contributed. His Honour was satisfied that to some degree the Applicant’s mental illness had impaired his ability to control his impulses and to properly consider the consequences of his actions. He did not think the Applicant’s prospects of rehabilitation could be expressed as being any better than guarded. He noted the recent improvement in the Applicant’s insight into his mental health issues and preparedness to accept appropriate medication, and he thought his prospects would improve if he continued with his current attitude towards his mental health and treatment.[14]
[14] Exhibit G1: G8 Sentencing remarks of the District Court of New South Wales
THE APPLICANT’S TIME IN PRISON, IMMIGRATION DETENTION AND THE COMMUNITY

Having reduced his cannabis use, the Applicant decided that was not good enough, so he decided to stop. He appears to have made that decision just before being imprisoned. When he went to prison, he still had cravings but after a while abstaining became easy.
While in prison, the Applicant worked in the kitchen, assisting in food preparation and generally washing and cleaning. In 2018 and 2019, he completed some vocational courses, including a food safety course. The Applicant said there is trouble everywhere in prison and detention. He did the food safety course because there were cameras in the kitchen so if another inmate were to try to start a fight with him, it would be seen. Being there helped him to avoid trouble. The prison case notes recorded that the Applicant consistently demonstrated a solid work ethic and did not have “any issues” which he confirmed meant he did not have any problems. He said when he first started in the kitchen he was slow but he became “the main guy” who taught others what to do.
The Applicant helped other inmates with problems. For example, if someone told him they wanted to quit smoking he would help. If he saw a person acting inappropriately, he would tell them “You need to, like, stop doing what you’re doing and focus on your life, you know, or slow down.” He encouraged inmates not to use drugs.
The Applicant’s sister recalled that their relationship improved after he went to prison, and she saw changes in him when she visited and when they spoke on the phone. He was himself again: he looked clean, and he spoke in a calm, respectful way.
The Applicant completed some general personal development type courses in prison including a Salvation Army Positive Lifestyle program that included topics such as problem solving, self-awareness, and dealing with anger. He also completed an EQUIPS addiction program. While he had already beaten his cravings, the course gave him information that would help him to avoid touching drugs again.
A pre-release report completed in April 2020 noted that the Applicant said he would rather be detained at an immigration detention centre and have the opportunity to appeal against his deportation than participate in a sex offenders program.[15] That report also noted his good custodial behaviour and that his interactions with officers were consistently polite and respectful. He was assessed as having a medium/high risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) which is a tool that estimates the risk of general recidivism.
[15] Exhibit R2: S20, Pre-release report, page 258.
In June 2020, the parole board refused the Applicant’s application for parole because he had not completed a sex offenders program. At that time was on the waitlist for the EQUIPS foundation program (which he later competed) and he was on the wait list for the Medium Intensity Sex Offender Program (“MISOP”). It was noted that Corrective Services psychologist had assessed him as being in the above average range of committing a further sex offence.
An updated pre-release report in April 2021, noted that the Applicant was participating in the MISOP and that he had contributed well and completed all assignments. His risk of re-offending, according to the LSI-R was reduced to medium.
The Applicant completed the MISOP in June 2021. The course involved over 50 sessions that went for two hours each. Participants were asked about certain scenarios and whether a particular approach was right or wrong. They were asked to define respect towards women. The course focused on each participant’s offending so everyone’s answers to questions were different. In the hearing, the Applicant was able to articulate some basic tenets around consent and he added that if he were to see someone disrespecting a woman, he should let someone in authority know. The course also addressed other issues such as violence against women. I asked the Applicant what he would do if he were again in a relationship and he thought his partner was cheating on him. He said he would ask and if she said she was, he would leave as there is no point in staying. I asked what he would do if, on top of feeling heart-broken, he felt betrayed and publicly humiliated, for example if a partner cheated with a friend. He said he would ignore them because they would not deserve his friendship.
The Applicant was granted parole in July 2021. He was then transferred to immigration detention.
The Applicant has not used drugs or alcohol in detention. He deliberately avoids drugs and when other detainees are doing something he does not want to be involved in, he leaves the area. He tries to calm conflict between other detainees and tells officers if someone is injured in a fight.
Without a visa, the Applicant is not entitled to Medicare, and the detention centre does not offer regular psychiatric care, so he has not been able to access regular mental health treatment. He cannot afford the cost of accessing a psychiatrist while he is detained. However, he has had access to International Health and Medical Services (“IHMS”) and he gets his monthly anti-psychotic injection. If he thinks he needs it earlier, for example if he feels he is not thinking properly, he tells the clinic and has his injection earlier. IHMS records indicate that he is doing well in terms of his mental health. For example, a psychiatrist noted in September 2021, that the Applicant no longer suffered from thought disorder and was not reporting current delusions, although he did have some mild residual hallucinations. His insight was excellent, and he showed good understanding of his past illness and compliance with treatment. In November 2021 it was reported that there was no thought disorder or psychosis. There were similar reports in 2022.
In early December 2022, the Applicant made a statutory declaration that said, among other things:
“I am deeply sorry for my actions and the pain I caused my then girlfriend 8 years ago on 29 December 2014. I am also deeply sorry for the difficulties this caused my family and close friends.”
and
“I did not enjoy the mental battles that I fought daily, and I never want to find myself in that position again.”
The Applicant has also said that his offending makes him me feel less of a man because a real man does not lay hands on a woman: a real man protects a woman. He said, with his monthly medication, he can think more clearly and he is in control of his thoughts and actions.
In late December 2022, as a result of Pearson v Minister for Home Affairs [2022] FCAFC 203, the Applicant was released from immigration detention due to the fact that it was an aggregate sentence that triggered the mandatory cancellation of his visa. He remained in the community until 13 March 2023 after remedial legislation was passed.
When he was released, the Applicant immediately reported to his parole officer. He set about registering with Centrelink so he could contribute to rent and bills. He registered with Medicare so he could continue treatment for his mental illness including his monthly injections. He started the process for getting a drivers license and did some practice tests to get up the confidence to sit the test for real. He visited his sister in Canberra twice, once for his niece’s birthday barbeque. The Applicant helped his parents with chores and shopping. He did not consume drugs or alcohol. Nor did he associate with any of the people he used to drink and smoke with. He saw one of those friends while he was out, said “hello” and went about his day.
Both Aunty C and the Applicant’s mother noticed a big difference in the Applicant. Aunty C said he was thinking ahead and being proactive in contacting his parole officer and lawyer. She said it was a great contrast from the boy who was confused and almost non-verbal during the trial.
The Applicant had been applying for jobs and he received an offer from the meatworks on the same day that he received an email telling him he had to return to detention. He was devastated. He phoned the detention centre and there was some confusion about when he had to go back which, according to Aunty C, he took in his stride. The Applicant was given two weeks to self-report and then he would be collected. According to his family, every time a van came into the street, he was afraid it was Border Force. However, he did not relapse into substance abuse or other anti-social conduct. Ultimately, he was returned to detention. He spent the next nine months in detention.
The Applicant has spent the last six years (except for the 11 weeks referred to above) in prison and immigration detention. There are no reports of any drug or alcohol use or bad behaviour by the Applicant in that period. His sister spoke about the positive changes in him in that period. She said she feels blessed to have her brother back, and that he is no longer a teenager but a man who knows what he wants and is in control of his decisions. His parents and Aunty C made similar observations.
THE APPLICANT’S PLANS IF HE GETS A VISA
The Applicant’s plans, if he were to get a Protection visa, are initially to live with his parents and do what he did when he was in the community last time. His father has accompanied him to mental health appointments. His parents will accompany him to future appointments. Based on their experience with the Applicant prior to his incarceration, they can both recognise the behaviours that signal a deterioration of his mental health. The Applicant’s mother identified talking to himself, “boxing” himself, shouting here and there, and gazing into space as such behaviour. The Applicant’s parents talk with him every day and they have made a commitment to support him with his mental health. They will also do their best to prevent him from smoking, drinking and doing bad things.
The Applicant has a job offer as a kitchen-hand/cook at a café. His longer-term goal is to get a plumbing apprenticeship with the business that employs Ms R’s husband in Canberra, and to work alongside him. Ms R’s husband provided a letter of support and I accept that he will assist the Applicant and be a positive influence on him. The Applicant would move to Canberra, rent a place and visit his parents on days off, although his mother said she and her husband are prepared to move to Canberra if he does. Ms R is also prepared to have him live in her family home. She is not concerned about him living with her two small children. The Applicant plans to join a gym and attend church. He would like to socialise with Ms R’s friends. The Applicant indicated a desire to give back to his community through the Sierra Leone Community Justice Project as well as his church.
Aunty C was a high school teacher by profession. Before retiring in 2017, she was a child protection coordinator for the Salvation Army. She trained church workers to safeguard and manage known sex offenders in their congregation through risk assessments and accountability contracts. She maintained communication with the Applicant while he was in prison and detention and during his stint back in the community.[16]
[16] Exhibit G1: G21 Letter from the New South Wales Parole Authority – Decision to refuse parole.
Aunty C said that, because he has been convicted of sex offences, if the Applicant is allowed back into the community and attends church, he will need to be on an accountability contract and she will be one of the people to whom he is accountable because she is on the leadership team and she knows his family. He would also be accountable to four other people. They will all keep an eye on him when he is on church property or involved in church activities. Aunty C has received training on how to identify an unsafe person, who could be a known offender or a “boundary strayer” – meaning someone who engages in preparatory (grooming) behaviour. Aunty C said that in her experience, narcissism seems to be a characteristic of sex offenders and the Applicant is not narcissistic or a boundary strayer. Aunty C is not psychologist or psychiatrist but she has some relevant education and experience and she knows the Applicant well so I give her evidence about this some weight.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant committed violent and sexual crimes against a young woman with whom he had very recently been in a long-term, intimate relationship. His crimes against her are, by their nature, very serious. The attack was sustained and horrifying where the victim pleaded many times for the Applicant to stop and let her go. In addition to striking her and sexually assaulting her multiple times, he pinned her down, dragged her by the hair and put pressure on her throat. He caused many physical injuries to her. She felt scared and suffered pain during the attack. This sort of behaviour is completely unacceptable in the Australian community.
It is apparent that during a period when the Applicant was disaffected, abusing alcohol and cannabis, associating with negative peers and suffering from a mental illness, he got into some trouble with the police. This offending was not particularly frequent, and in terms of seriousness it pales in comparison to the offending against GS. The evidence of the offences against the police is not strong, and I am not convinced that he committed those, but if he did, the anger and uncharacteristic violence is consistent with him having been suffering from symptoms of schizophrenia. There does not appear to be any significant cumulative effect of repeated offending.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Direction makes clear 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.[17]
[17] Paragraph 8.1.2(1) of the Direction.
I must have regard to the nature of the harm to individuals or the Australian community if the Applicant engages in further criminal or other serious conduct, and the likelihood that he will, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[18]
[18] Paragraph 8.1.2(2) of the Direction.
The nature of harm from violent and sexual offences includes physical harm and psychological harm that is often serious and long-lasting. The offending against GS was also family violence. GS trusted the Applicant and she had every reason to. She should have been safe with him in his family home. This kind of extreme betrayal in the context of an intimate relationship can be very psychologically damaging. The Tribunal is of the view that any material risk that the Applicant will attack someone the way he attacked GS is unacceptable.
The harm from the other offences, such as breaches of bail and travelling without a valid ticket, is negligible.
There is some evidence before me of risk assessments conducted by Corrective Services and there is some expert psychiatric evidence relating to the risk of recidivism.
There is overwhelming evidence that the offending against GS was isolated and out of character. He had never engaged sexual offending or a serious assault before, whether affected by substances or not. (I do not consider resisting police to be in the same category as what he did to GS) He has not engaged in similar offending since, including in the extended period when he was on bail. In July 2017, Dr Ellis indicated that the Applicant’s mental illness combined with his intoxication significantly impaired his ability to restrain impulses, martial emotions and consider the consequences of his actions, although he probably had some ability to tell right from wrong. I am satisfied that at the time of the offences against GS, the Applicant suffered from undiagnosed and untreated schizophrenia, and his symptoms contributed to the offending in a critical way.
Dr Ellis pointed out that it was not possible to predict if an individual would reoffend but that risk factors could be identified and addressed. He though the Applicant’s risk factors associated with sexual offending were substance use (alcohol and cannabis), relationship dysfunction, mental disorder (schizophrenia), lack of employment and poor self-awareness. He said there was no evidence that the Applicant had and antisocial personality and that he did not endorse attitudes that supported offending.
The Applicant has taken responsibility for managing his schizophrenia and it is well managed. He is now on a regime that suits him, and he is barely experiencing any symptoms. When he does, he seeks treatment. His parents both know what sort of behaviour indicates that the Applicant mental health is deteriorating. The Applicant will initially live with his parents and they are both committed to helping him to manage his mental health. I do not consider that the Applicant’s mental health is a current risk factor.
The Applicant has not consumed drug or alcohol since in the six years since he was incarcerated despite those substances being available (as contraband) in prison and detention. He does not experience cravings, he understands how damaging drug use is, and he counsels other inmates and detainees to avoid drugs. He did not use alcohol or drugs when he was briefly in the community and he did not re-establish contact with any former negative peers despite having the opportunity. I do not consider substance abuse to be a current risk factor.
The Applicant secured employment when he was in the community. He presently has a job offer at a café and he plans to take up a job offer with his brother-in-law’s employer once he has his driving license. I do not consider employment to be a current risk factor.
I am satisfied that the Applicant has good self-awareness. When he was in the community for 11 weeks, he showed that he knows what he needs to do by actually doing it. In that period, he demonstrated his commitment to managing his mental health and living a responsible, drug-free, law-abiding lifestyle. Even after he was told he had to go back into detention, which he took very hard, he did not falter in any way.
Back in September 2017, the learned trial Judge described the Applicant’s prospects of rehabilitation as not better than guarded. His Honour took into account a pre-sentence report that assessed the Applicant as posing a medium risk of general re-offending and a medium/high risk of sexual re-offending. The sexual re-offending risk assessment did not take dynamic factors into account. This report is old and much has changed since those risk assessments were conducted.

The Applicant did not engage in any poor conduct in prison, detention or during the period back in the community. He took steps to avoid trouble and he tried to help others to do the right thing.
In March 2020, he was assessed as a medium/high risk of general re-offending which seems absurd given he was previously assessed as medium risk and he had been of good behaviour in the two and a half years since that prior assessment. An updated pre-release report in April 2021 reduced the risk to medium.
Since that assessment, the Applicant completed MISOP and participated well. In the hearing he expressed healthy attitudes regarding moral behaviour (e.g. a real man does not lay hands on a woman), how women should be treated (e.g. they should be respected and protected), consent and how he would respond to infidelity or suspicions of infidelity. While he does not remember his offending against GS clearly, and he struggles to accept that he behaved that way, he has expressed sorrow, remorse and shame for harming her and for the impact his offending had on those close to him.
The Applicant was 18 when he offended against GS. He has spent his early and mid-twenties in prison and detention. These are the prime years when young men tend to mature. The Applicant’s family and Aunty C think he had matured significantly. He thinks he has too. He recognised that before he was incarcerated, he was focused on chasing the next high and partying with friends. Now he thinks about his family, his physical and mental health, and making money to support himself or anyone who needs his help. His approach to problem solving is to stay calm and communicate.
If the Applicant is returned to the community he will have the close support of his family. While in Sydney he will live with his parents. In Canberra he will work with his brother-in-law and he might live with their family too. In Sydney he will have the support and supervision of Aunty C and the Salvation Army congregation. In Canberra he will also attend church and he will have people in that congregation to whom he is accountable.
The Applicant was asked if his father’s actions in calling the police, which was the catalyst for everything that subsequently happened, affected the relationship between them in any way. He said “No, like, I would have done the same thing if I was ‑ if I was scared that my son is doing something he shouldn’t”. Further, he believes his father would do it again “100 per cent”. His father gave evidence that indeed he would do it again. This is, to my mind, a powerful protective factor. I am satisfied that Ms R shares the same values as her parents and would not countenance any bad behaviour by him.
The Applicant is no longer an 18 year old suffering from untreated schizophrenia, disaffected due to bullying, leading an idle life that involves negative peers and substance abuse. He has matured and reformed. I am satisfied that the chance that he will commit another sexual or violent offence is virtually zero. I am not satisfied that there is a material risk of him engaging in other conduct that would cause substantial harm in the Australian community.
The weight that I would otherwise allocate to Primary Consideration 1 is moderated by my finding that the Applicant does not pose any more than a remote risk of harm to the community. I allocate heavy, rather than very heavy, weight against granting a protection visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
On 29 December 2014, the Applicant engaged in violent behaviour towards GS which hurt, controlled and frightened her. Until just before the offending she had been in an intimate personal relationship with him which included her sometimes staying overnight in his family home, so I am satisfied that she was a member of the Applicant’s family for the purposes of the Direction. This Primary Consideration is engaged.
I am not satisfied that the Applicant kicked GS in the shin on 26 December 2014.
I have already addressed the extent to which the Applicant accepts responsibility for his violence against GS and the impact it had on her and his parents. I have also addressed the rehabilitation he has achieved and his efforts in that regard.
While I have taken the family violence aspect of the offending into account under primary Consideration 1, I am satisfied that it is appropriate to apply an uplift in recognition of the government’s specific condemnation of, and commitment to eradicating, family violence in our community.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
For the sake of continuity, I will address this Primary Consideration before addressing Primary Considerations 3 and 4.
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[19]
[19] Paragraph 8.4(1) of the Direction.
A visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of specified kinds. Those specified categories of offending include acts of family violence and the commission of serious crimes against women, which are both relevant categories in this case. These expectations apply even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community, as is the case here.
Paragraph 8.4(4) of the Direction provides that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated without independently assessing the community’s expectations in a particular case.
This Primary Consideration speaks of an expectation that a non-citizen will obey Australian laws. It must be implicit in this language, and in the essence of this Primary Consideration, that the non-citizen is assumed to have some agency with respect to whether or not they obey Australian laws.
With respect to the offences against GS, the Applicant had very little agency. He certainly chose to ingest cannabis and alcohol, which may well have contributed to the offending. However, he did not choose to suffer from a mental illness that influenced his thoughts, feelings and actions. The Applicant gave evidence that he felt like he was experiencing someone else’s emotions and he tried to resist his anger and violent urges during the attack. He recalled feeling like he was fighting against himself. He was not even aware of most of what he had done immediately afterwards when he spoke with the police and his parents. I am satisfied that his offending could barely be said to have been an exercise of his free will.
Since the offending, the Applicant has, of his own free will, got his mental health under control and lived an exemplary life in custody.
The Applicant’s other offences are relatively minor and harmless and, although they demonstrate a lack of respect for the law back in 2014 to 2017, he has now reformed and this offending attracts only marginal weight.
Primary Consideration 5 weighs to a small extent in favour of refusing the visa application.
OTHER CONSIDERATION (a): LEGAL CONSEQUENCES OF THE DECISION
I will also address this mandatory consideration out of turn because it will help explain my analysis in relation to Primary Considerations 3 and 4.
After the Applicant’s visa was cancelled, he was precluded by s 501E of the Act from applying for another visa unless it was a Protection visa. If this application is unsuccessful, he cannot make another application for a Protection visa while in the migration zone unless the Minister makes an exception in the public interest under s 48A of the Act. Therefore, he will not have a visa.
As a protection finding has been made, the Applicant cannot be removed to his country of citizenship. There is no suggestion that he would voluntarily go there or that he could be removed to a third country. The result of not granting the visa would have been indefinite immigration detention if not for a decision made by the High Court on 11 November 2023 (“NZYQ”).
The decision was that the laws in the Act that provide for the executive to detain a non-citizen against their will are constitutionally invalid as far as they purport to authorise the involuntary detention of a person who has no prospect of being removed or released under the Act.[20] The Court did not provide reasons so it was not clear how the decision would impact detainees other than the non-citizen in that case. Nor was it apparent what the Government’s response would be, although it seemed likely that that the Applicant would be released from immigration detention with conditions and limitations.
[20] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 November 2023)
The Minister has a non-delegable discretion under section 195A of the Act to grant another visa or, under section 197AB, to make a residence determination that would enable the Applicant to reside at a specified place in the community subject to appropriate conditions[21].
[21] He would be “detained” in the community.
The Applicant has been in custody since September 2017. For around two and a half of those years he had been in immigration detention after completing the custodial portion of his prison sentence. He is not a threat to the community. He is a young man who has been in custody for six years who should be given a fair opportunity to get on with his life. Part of that involves having the rights, liberties and certainties that come with holding a permanent visa, such as the right to hold gainful employment and access Medicare, and to not have to worry about being placed back into immigration detention. It is in the interests of the Applicant, his family and the Australian community to facilitate him living a responsible, law-abiding, independent life by granting him a permanent visa.
This Other Consideration weighs significantly against refusing the visa application.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here I am to consider any impact of the decision on the Applicant’s 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. I should also consider the strength, duration and nature of any family or social links generally with persons in that category. I should give more weight to the Applicant’s ties to children in that category.
In addition, I should consider the strength, nature and duration of any other ties the Applicant has to the Australian community. In particular, where a non-citizen has been ordinarily resident in Australian during and since their formative years, that warrants considerable weight in their favour regardless of when their offending commenced and the level of that offending. The length of time a non-citizen has resided in Australia should be given more weight if they have contributed positively to the Australian community in that time. Less weight should be given where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant came to Australia when he was a 12 year old child. He spent a substantial portion of his formative years in Australia. He contributed positively to the community through part-time employment at McDonalds and KFC while he was attending school and through church activities. He was also employed in gaol and reputed to be a good worker, and I think that deserves some recognition.
The Applicant has strong ties to his immediate family, being his parents and sister. They each have the right to reside permanently in Australia. The only interruption to his close, positive relationship with these people occurred in the context of a serious mental illness. The Applicant speaks with his parents and sister frequently. When he was in the community he lived with his parents and he visited his sister in Canberra twice. They regularly use Facetime to pray together as a family.
Ms R had a daughter who is six years old, “Child H”. When she was pregnant, the Applicant helped her a lot, for example by taking her to appointments and helping with chores. After Child H was born, the Applicant helped look after her. When the family visited him in prison he spent most of the time playing with Child H. She is in school now and she regularly asks about the Applicant which Ms R finds heartbreaking. Ms R has a two year old son, “Child J” whom the Applicant met a few times when he was briefly in the community. He interacts with both children on video calls. The Applicant knows Ms R’s husband and they have a positive relationship.
The Applicant also has a step-sister and some extended family in Australia whom he has little to do with.
The Applicant has a strong non-familial tie with Aunty C, and there were others in his church who wrote letters of support. I accept that he has strong ties to the church congregation and he has some pro-social friends in the community.
The impact of a refusal decision on the Applicant’s family members is now less than it would have been before NZYQ as he will almost certainly be allowed to live in the wider community. However, his ability to spend time with his family and support them financially and practically may be limited. According to Aunty C, both his parents have suffered with constant worry about the Applicant’s future and his mother developed high blood pressure. His future is still uncertain as long as he does not have a Protection visa.
The Applicant’s father was in a car accident in 2018 and he sustained permanent injuries so he can no longer work. He is also suffering from depression now. The Applicant’s mother suffers some infirmity too and only works two days per week now. The Applicant would like to assist his parents financially, and to help them in their day to day lives. His parents want him to do that too. Ms R wants the Applicant to be a part of her life and her children’s lives. He would be well placed to do this if he had a Protection visa.
For this Primary Consideration, I allocate moderate weight against refusal of the visa application.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a decision to refuse the visa is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Where there is more than one child affected, the best interests of each child should be given individual consideration to the extent that their interests may differ.[22]
[22] Paragraph 8.3 of the Direction.
The Applicant does not have his own children. He has a six year old niece who he has known since birth and nephew who is nearly three years old who he has met a few times. They are Ms R’s children, Child H and Child J. The Applicant communicates with them by video call. The parents of these children and the Applicant all want him to be involved in their lives. Child H asks about him. Ms R has only described positive interactions between the Applicant and her children. I am satisfied that the Applicant would play a positive role as uncle to both children. There are many years in which he can do that given their young ages. While Child H asks about the Applicant, I am not satisfied that she or Child J have suffered hardship of any kind due to his separation from them or that they would in future – and I am satisfied that a refusal decision would not substantially impeded his contact with them.
Ms R and her husband fulfil a parental role and there is no suggestion that the children are not well cared for.
Taking into account the best interests of the children mentioned above cumulatively, I allocate only limited weight against refusal of the application.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. In favour of refusal of the visa application are Primary Considerations 1, 2 and 5. Against refusal of the visa application are Primary Considerations 3 and 4 and Other Consideration (a). Given the weightings I have applied, it is very finely balanced. What this ultimately comes down to is that a young man who experienced hardship before and after he came to Australia committed some terrible offences that were out of character while in the throes of a serious mental illness that significantly contributed to the offending. He poses no real threat now and he has his adult life ahead of him. Granting a Protection visa will give him his best chance of living as a responsible, self-sufficient, contributing member of the Australian community, and it will remove the uncertainty that he and his family have endured for an extended period.
Consequently, I do not exercise the discretion to refuse the visa application.
NOTE
After the decision in NZYQ was issued on 8 November 2023, I did not call for submissions about the impact of that on my determination of whether to exercise the discretion to refuse the visa or delay my decision awaiting the High Court’s reasons and the Government’s response. Instead, I made a decision on 10 November 2023 based on the information before me at that time. I did that for three related reasons. First, the change in the law had to reduce the weight attributable to Primary Considerations 3 and 4 and Other Consideration (a) but not enough to result in a decision adverse to the Applicant, so there was no need to call for submissions from the Applicant. Second, the Respondent could not have put its case higher than that the Applicant would most likely be released from immigration detention and it was not known what conditions would apply to his release, and that is what I took into account. Third, the Applicant and his family have already suffered uncertainty, dashed hopes and a great deal of delay. It was not known how long the High Court’s reasons would take, what the government’s response would be, and whether there would be any legal challenge to that. The public interest favoured finality in this case.
DECISION
The decision under review is set aside and the Tribunal declined to exercise the discretion to refuse to grant the visa.

I certify that the preceding 146 (one-hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

...................................[SGD].....................................
Associate
Dated: 29 November 2023

Date of hearing: 3, 4 October 2023 and 6 November 202

Solicitor for the Applicant:

Ms Zoe Nayler
FC Lawyers

Solicitor for the Respondent Mr David McLaren
Minter Ellison

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501G ‘G-Documents’ G1 to G28

Total pages: 256.

R

Various

25 November 2022

A1

Applicant’s Statement of Facts, Issues and Contentions submitted by Crowther Sim lawyers.

Total pages: 10.

A

9 December 2022

9 December 2022

A2

Statutory Declaration of Applicant’s brother-in-law

Total pages: 6.

A

8 December 2022

9 December 2022

A3

Statutory Declaration of Aunty C

Total pages: 8.

A

8 December 2022

9 December 2022

A4

Statutory Declaration of Applicant

Total pages: 12.

A

8 December 2022

9 December 2022

A5

Statutory Declaration of Applicant’s Sister

Total pages: 15.

A

8 December 2022

9 December 2022

A6

Statutory Declaration of Applicant’s Parents Total Pages: 28

A

21 December 2022

22 December 2022

A7

Applicant’s Statement of Appeal

(Updated Statement of Facts, Issues and Contentions) submitted by FC Lawyers

Total pages: 16

A

Various

1 August 2023

A8

Supplemental Evidence:

Total pages: 86

A

Various

1 August 2023

A9

Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions FC Lawyers

Total Pages: 29

A

Various

27 September 2023

R1

Respondent’s Statement of Facts, Issues and Contentions 2022

Total Pages: 11

R

22 December 2022

22 December 2022

R2

Respondent’s Supplementary Documents

Total Pages: 426

R

22 December 2022

22 December 2022

R3

Respondent’s Statement of Facts, Issues and Contentions 2023

Total Pages: 12

R

20 September 2023

20 September 2023

[2023] AATA 3955

10 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	3, 4 October 2023 and 6 November 202
Solicitor for the Applicant:	Ms Zoe Nayler FC Lawyers
Solicitor for the Respondent	Mr David McLaren Minter Ellison

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501G ‘G-Documents’ G1 to G28 Total pages: 256.	R	Various	25 November 2022
A1	Applicant’s Statement of Facts, Issues and Contentions submitted by Crowther Sim lawyers. Total pages: 10.	A	9 December 2022	9 December 2022
A2	Statutory Declaration of Applicant’s brother-in-law Total pages: 6.	A	8 December 2022	9 December 2022
A3	Statutory Declaration of Aunty C Total pages: 8.	A	8 December 2022	9 December 2022
A4	Statutory Declaration of Applicant Total pages: 12.	A	8 December 2022	9 December 2022
A5	Statutory Declaration of Applicant’s Sister Total pages: 15.	A	8 December 2022	9 December 2022
A6	Statutory Declaration of Applicant’s Parents Total Pages: 28	A	21 December 2022	22 December 2022
A7	Applicant’s Statement of Appeal (Updated Statement of Facts, Issues and Contentions) submitted by FC Lawyers Total pages: 16	A	Various	1 August 2023
A8	Supplemental Evidence: Total pages: 86	A	Various	1 August 2023
A9	Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions FC Lawyers Total Pages: 29	A	Various	27 September 2023
R1	Respondent’s Statement of Facts, Issues and Contentions 2022 Total Pages: 11	R	22 December 2022	22 December 2022
R2	Respondent’s Supplementary Documents Total Pages: 426	R	22 December 2022	22 December 2022
R3	Respondent’s Statement of Facts, Issues and Contentions 2023 Total Pages: 12	R	20 September 2023	20 September 2023