FLLB and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 3387
•14 October 2022
FLLB and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3387 (14 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/8657
Re:FLLB
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member R Bellamy
Date:14 October 2022
Place:Brisbane
The reviewable decision is affirmed.
...........................[SGD]............................................
Senior Member R Bellamy
Catchwords
MIGRATION – refusal to grant a Protection (Subclass XA-866) visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – repeated violent offending including family violence – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
DOB18 v Minister for Home Affairs [2019] FCAFC 63
KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
REASONS FOR DECISION
Senior Member R Bellamy
14 October 2022
background
The Applicant arrived in Australia on 24 February 2007 as a dependant of his older brother on his subclass XB-202 (Global Special Humanitarian) visa (“GSH visa”).
The Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on 19 June 2017 because he did not pass the character test (having been sentenced to a term of imprisonment of 12 months or more) and, at that time, he was serving a full-time term of imprisonment, His request to have the mandatory cancellation revoked was unsuccessful, as was his application to a differently constituted Tribunal for review of that decision.
On 6 December 2018, the Applicant applied for a Protection visa. On 16 September 2020 a delegate of the Minister (“the Respondent”) decided that the Applicant was a refugee and that he was owed complementary protection, i.e. he satisfied both subsections 36(2)(a) and 36(2)(aa) of the Act. However, the delegate also found that the Applicant did not satisfy subsection 36(1C) of the Act which is an essential criterion for a Protection visa, and that subsection 36(2C)(b) of the Act applied to the Applicant, meaning he was taken not to satisfy the criteria in subsection 36(2)(aa) of the Act. Essentially, the Respondent was satisfied on reasonable grounds that the Applicant, having been convicted by a final judgment of a particularly serious crime, was a danger to the Australian community so his application was unsuccessful.
On 25 November 2020 the Applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal has jurisdiction under section 500(1)(c) of the Act to review the decision.
This matter was heard on 11, 12 and 13 October 2021. The Applicant gave evidence via videoconference. Drs Gary Banks and Emily Kwok, both clinical and forensic psychologists, and two of the Applicant’s sisters gave evidence by telephone. The Tribunal also received the documentary evidence that is listed in the attached exhibit list, marked “Annexure A”.
issues
Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that:
·criteria for the grant of the visa have been satisfied;
·the grant of the visa is not prevented by other sections of the Act; and
·any visa application charge payable has been paid
the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
Subsection 36(1A) of the Act provides that:
An Applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in (2).
Subsection 36(2) of the Act relevantly provides:
A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
…
Paragraph 36(1C)(b) of the Act relevantly provides:
“A criterion for a protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”
This provision excludes a non-citizen from satisfying the criteria for a protection visa, whether their claim is on the basis that they are a refugee (s 36(2)(a)) or on the basis of complementary protection (s 36(2)(aa)).
Section 5M of the Act provides that “a particularly serious crime” for the purposes of
s 36(1C)(b) includes a crime that consists of:·“a serious Australian offence”; or
·“a serious foreign offence”.
Paragraph 36(2C)(b) of the Act provides:
“A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
This provision, which applies the same test as s 36(1C)(b), excludes a non-citizen from satisfying the criteria for a protection visa only on the basis of complementary protection.
The Tribunal’s task is to determine on reasonable grounds whether:
(a)the Applicant has been convicted by a final judgment of a particularly serious crime; and
(b)the Applicant is a danger to the Australian community.
Section 5 of the Act provides that “serious Australian offence”:
means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
The Applicant had been convicted by a final judgment of numerous offences that involved violence against a person. The Applicant did not dispute the fact of any of those convictions. Those include assault officer in execution of duty, which is an offence under s 60 of the Crimes Act 1900 (NSW) and carries a maximum penalty of seven years imprisonment. Accordingly, I am satisfied that the Applicant was convicted by a final judgment of a “particularly serious crime”. The remaining issue is whether the Applicant is a danger to the Australian community.
Meaning of Danger to the Australian Community
Subsection 36(1C) of the Act is in essentially the same terms as Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”). That article is relevant for present purposed because it has been the subject of consideration by this Tribunal and the Federal Court.
Article 33(1) of the Refugees Convention provides that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Article 33(2) of the Refugees Convention provides that:
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin QC, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention:
“The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
…
The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk.
...
In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future…as Brennan J, pointed out (Salazar at 100) it involves an assessment of the Applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in obiter:
“Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63;(2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”
As I have said in previous decisions in these types of matters, the meaning of danger must logically contemplate both the probability of a thing occurring and the harm that will result from its occurrence. For example, a high probability that a person will park illegally presents much less of a danger to the community than a moderate probability that a person will commit murder. I do not interpret “danger” in the context in which it is used in s 36(1C)(2)(b) or s 36(2C)(b) of the Act, to refer only to probability. Nor do I think that Logan J’s formulation of “present and serious risk” or Bromberg J’s “high level of risk” are intended to confine the meaning of the word in that way. Accordingly, danger is dependent on both risk and potential harm.
The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of removing him to South Sudan.[1]
[1] SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 and DOB18 v Minister for Home Affairs [2019] FCAFC 63 per Logan J at [51] and [52].
BACKGROUND AND CRIMINAL OFFENDING
The Applicant was born in Ethiopia in 1990, the youngest of several siblings, after his family fled the area that was formerly Sudan because of the civil war there. He grew up in the Kakuma refugee camp in Kenya. His mother passed away when he was two years old and it appears that his father had left or died before that happened. His eldest sister, “Ms D”, who was a teenager at the time, raised him and his other siblings.[2] She later married and moved out of their home.
[2] Exhibit R1, T2 page 16.
According to the Applicant, he started fending for himself at the camp and this is when life “got a bit horrific” because he started wandering the camp and saw some boys his age and older sustain brutal injuries from different tribes that lived at the camp and the local Kenyan tribe. He saw people being robbed, brutally beaten, stabbed and sometimes even killed. He said there was not much food around so people tended to act out of anger and hunger.[3]
[3] Exhibit R1, T18, page 173.
The Applicant arrived in Australia on 24 February 2007. There was some confusion about the Applicant’s date of birth (discussed further in these reasons). According to the Applicant, there was a birth certificate stating his year of his birth as 1994.
In 2009 the Applicant started high school and, according to him, he made some friends and started hanging around shopping centres, skipping school and staying out late. He lived with his older brother, “Mr M”, whose dependant he was for the purpose of his GSH visa. Mr M was unhappy about his behaviour, and there was also some friction in the home between an older sister, “Ms A” and a cousin. The Applicant thought Ms A was always in the wrong, but she always tried to get him to take her side and that was one of the reasons he stayed out late. All three of his cousins who had lived there moved out, which left just him, Ms A, Mr M and an uncle.
Mr M gave the Applicant a curfew and if he was not home on time he got locked out and stayed with friends. Ms A and Mr M were not getting along so Ms A moved out. As Mr M and the Applicant’s uncle worked long hours, the housework fell to the Applicant. He said it was tough on him and he wanted to do what normal kids were doing like playing soccer, basketball or going out, but he was required to be home before his brother and uncle got home. He felt lonely, bored, stressed and sad which led him to drinking, smoking cigarettes, smoking cannabis and staying out late to have fun. He started acting like a fool and trying to be cool in front of friends. He got into fights with other people and then he found himself on the wrong side of the law.[4]
[4] Exhibit R1, T18, pages 175 to 176
Mr M did not like how the Applicant was turning out – drinking and staying out late - and removed him from the home. The Applicant became homeless numerous times. Sometimes he was able to stay with friends’ parents for a while here and there. Otherwise, he would sleep on the street or on midnight trains. That was in 2011.[5]
[5] Exhibit R1, T18, pages 172 to 176; Transcript, page 19 lines 6 to 12.
Contemporaneously made records of interactions the New South Wales police had with the Applicant over the years indicate that since 2009, he was the subject of police attention on several occasions with respect to antisocial behaviour in company and swearing at the police, which seems consistent with the Applicant’s description of his lifestyle at that time.
The first time the Applicant was charged with an offence was on 3 January 2011 when he assaulted Ms A with whom he was living. From that time onward the Applicant offended with reasonable consistency until 2017 when he was imprisoned and subsequently placed in immigration detention where he remains. While offences dating back to the period 2011 to 2017 may seem a little dated when one is assessing present risk to the community, I consider the Applicant’s behaviour during this period to be informative of his current risk to the community because the period spans most of his time living in the wider Australian community and his offending shows some entrenched behaviours and attitudes. I will not canvass all of his offences and will instead focus on his more serious and/or contumacious behaviour.
With respect to the incident with Ms A in 2011, the police report described Ms A as being the Applicant’s primary carer at the time. According to that report, Ms A was asleep when the Applicant returned home. He turned on all the lights and stereo, waking Ms A. She asked him to turn the lights and music down and to leave some money for bills and food. He said he would not leave any money and an argument ensued. Ms A asked the Applicant for his house keys and told him he was no longer welcome if he was not going to assist in the paying of bills. The Applicant went to his room and when he took his jeans off his house keys fell onto the floor. Ms A took them. She also removed her wallet and laptop from the house as she feared he might take or damage them. When she returned the Applicant demanded the return of the house keys, she refused, and a struggle commenced. The Applicant ripped the keys from Ms A’s hand and grabbed her with both hands behind her head and drove her head onto the corner of a metal door frame causing a deep laceration and a large bruise. Neighbours heard her cry. They came to her aid and called an ambulance. The police attended upon her in hospital and she told them what had happened. The Applicant was still in the home when the police went to speak with him and he refused to participate in an interview. The Police obtained an urgent Apprehended Domestic Violence Order (“ADVO”) for Ms A.[6]
[6] Exhibit R3, S1, page 62.
In the hearing the Applicant denied that he had forced Ms A’s head into the doorframe. He claimed he was the victim and that Ms A had attacked him. He said he was behind on the rent and as he tried to go to his room Ms A grabbed him by the pants. While he was trying to take her hands off, she held on to the door and she got a cut. He went to court and denied the allegations but “the court didn’t listen to me”.[7]
[7] Transcript page 17.
The Applicant gave a consistent version to Dr Banks, who interviewed him for the purpose of a risk assessment in May 2021. He also told Dr Banks that his cousins had moved out because Ms A had thrown a plate at a cousin she did not get along with, the cousin then punched her in the face, Ms A called the police, and the cousin was later imprisoned. Many of the family alienated Ms A for having involved the police, and the remaining cousins moved out.[8]
[8] Exhibit R3, S11 pages 220 to 238.
Dr Emily Kwok interviewed the Applicant in August 2021. When asked to elaborate on the offences involving Ms A (this and a subsequent assault), he told Dr Kwok that Ms A hit her own head on the door.
In the hearing, the Applicant’s two other sisters, Ms D and “Ms B” were each asked what they knew about the Applicant’s violence against Ms A. Ms D said “[Ms A] is not a good carer to look after the younger one like him”[9] and Ms B said “I'm not going to be biased because they're both my sibling, but I would never live with [Ms A], that's my opinion” and:
“so I will believe that [the Applicant] would never start, I would have say she initiate it and then things would just got out of hand”.
(Errors in original)
[9] Transcript, page 113, lines 14 to 17.
Ms B is prepared to have the Applicant live with her, and to help him, if he is granted the visa, and she gave evidence that she is not concerned with the Applicant being around her young children[10] which suggests that she does not think he would be violent in her home.
[10] Transcript, page 69, lines 31 to 34.
However, neither Ms B or Ms D expressed scepticism or disbelief that the Applicant had assaulted Ms A. Even if Ms A is a difficult person, the kind that throws plates, I am not minded to accept the Applicant’s account because it does not make sense that Ms A hit her own head on the door or that holding onto the door would result in a cut and bruising to her head, whereas Ms A’s account does explain her injuries. More importantly, the court preferred her account.
Around four months after the assault against Ms A, on 27 April 2011, a female transit officer asked the Applicant and other commuters at a train station to show their tickets. The Applicant responded, “Hurry the f-ck up I have a train to catch.” His ticket was a child ticket. He was asked his age and he replied, “What’s the f-cking point I have got a f-cking ticket, I have one minute to the train, f-ck off.” The transit officer asked him to move to the side and he complied. He claimed to be 16 years old, and he was asked to show some identification. He produced a school ID. When asked for his home address, he became aggressive, swore and attempted to walk away. The transit officer grabbed him and he tried to pull away. The Applicant said “F-ck off don’t f-cking touch me.” She tried to calm him and mentioned that there were police at the location. He told her he was not afraid of the police and they could not do a thing.
The police approached after seeing the Applicant trying to stand over the female transit officer clenching his fists. They drew their capsicum spray and tried to calm the Applicant. He replied “F-ck off I have a f-cking ticket”. He suddenly moved towards the transit officer and the police. Thinking the Applicant was going to assault the transit officer, the police told him to get back and sprayed him with the capsicum spray. He fled and kicked out backwards with his legs. He was asked to put his hands behind his back but he resisted. He swore, kept resisting and kicked blindly. He was put into a caged police vehicle where he kicked and punched the walls and rear door and yelled abuse.[11]
[11] Exhibit R3, S1, page 60.
Because of the confusion about the Applicant’s age, he was dealt with in the Children’s Courts for the incident with Ms A and for the above offending. On 29 June 2011, he was convicted of assault occasioning actual bodily harm (DV) and common assault and given a 12 month good behaviour bond. On 17 November 2011, the Applicant was convicted of common assault, resist officer in execution of duty, fail to appear in accordance with bail, fail to state name and address when directed, not produce evidence of entitlement to concession ticket, and wilfully use offensive language on train or public area. He was dismissed with a caution.
In the hearing the Applicant said he could not recall the confrontation with a female transit officer or having been dealt with as a child by the court on that occasion.[12] (However, he recalled being dealt with in the Childrens Court for the offences against Ms A[13])
[12] Transcript page 21 lines 28 to 45.
[13] Transcript, page 22, lines 1 to 3.
On 10 December 2011, while subject to the good behaviour bond, the Applicant committed yet another assault. A security guard at a shopping centre had asked the Applicant and his friend to move on after receiving several complaints from other shoppers. He escorted them out and the Applicant became abusive, saying “Motherf-cker”, “Come out to the car park, there are no cameras, let’s go one on one” and “Do you think you are big”. He then suddenly punched the guard in the neck. The guard stumbled backwards and the Applicant threw a volley of punches which the guard dodged.[14]
[14] Exhibit R3, S1 page 53.
Four days later the Applicant was seen at the same shopping centre. The police were called and they placed him in custody. A search of his person revealed cannabis. [15]
[15] Ibid.
On 2 May 2012, the Applicant was sentenced to a 12 month supervised good behaviour bond for the assault, and a six month good behaviour bond for the drug offence.
According to pre-sentence report dated in June 2015, the Applicant claimed that in 2012 he was consuming alcohol on a recreational basis, limited to weekends, but he would drink to intoxication and when he was intoxicated he became a different person.[16]
[16] Exhibit R4, pages 8 to 9.
According to the Applicant it was also in 2012 that he went to live with Ms D in Adelaide.[17] He was only there for a week before he was asked to leave because he had gone against her husband’s wishes. He had wanted to attend a friend’s birthday party overnight and his sister was okay with that but told him he needed her husband’s permission. Her husband did not give permission. The Applicant went anyway. His sister was unhappy with the decision he made and told him not to return to her home.
[17] Transcript page 35 lines 21 to 22.
The Applicant told Dr Banks that despite him being 21 years old, his sister expected him to seek her husband’s permission to spend time out of the home with friends. This will become relevant later when I discuss the Applicant’s evidence about when he came to know his real age. Dr Banks reported that the Applicant had expressed remorse about the fact that he should have been more compliant with his sister and her husband.[18] However, in the hearing the Applicant was asked if he thought he had used good judgment in that situation, and he said he had.[19]
[18] Transcript, page 80, lines 40 to 45.
[19] Transcript page 36, lines 42 to 46.
The Applicant also told Dr Banks that after being asked to leave Ms D’s home, he lived transiently in Adelaide, ending up in a refuge, before returning to Sydney and relying on the same group of people he had previously sought to move away from.[20] It appears that upon his return to Sydney he was taken in by Mr M for a period. He told a counsellor in June 2020 that after returning from Adelaide he was “kicked out” of his brother’s home shortly after his brother returned from Africa with his new bride, and he again became homeless.
[20] Exhibit R3, S11, pages 226 to 227.
On 15 March 2013, the Applicant was involved in a public brawl. The police who attended saw him and another man exchange punches. The police restrained and arrested the Applicant. They then conveyed him to a police vehicle, with him physically resisting and swearing at them. He kicked an officer in the head, and he continued to kick out after the police forced him to the ground. Once he was standing up again, he kicked out, striking an officer in the groin. He continued to resist while being conveyed to a holding cell. He yelled at the police “You f-cking dogs, You c-nts are racists”. As he was bleeding, the police tried to render assistance. He again tried to kick them.[21]
[21] Exhibit R3, S1, page 44.
In the hearing the Applicant conceded that he “may have” punched someone. He said he was under the influence of alcohol at a party and the police shut it down.[22] I note that the police records describe a public fight outside a tavern, not a party. The Applicant was asked about this offence but the answer he gave seemed to relate to a subsequent assault on police because he mentioned details, such as being told to take his shoes off, that correlate with that subsequent assault and not to this one. He admitted that he understood that his bail conditions at that time required him to stay out of trouble.[23]
[22] Transcript page 22 lines 21 to 22 and page 23 lines 7 to 30.
[23] Transcript, page 24 lines 1 to 2.
The Applicant was charged with assaulting a police officer in the execution of duty (x2), resist officer in execution of duty (x2) and affray. He was dealt with in the local court on 27 May 2013. For affray and one resist officer in execution of duty he was given a good behaviour bond with supervision and for the other offences, he was ordered to perform 200 hours of community service.
Between committing those offences and being dealt with for them, the Applicant committed destroy or damage property on 18 April 2013, for which he was fined $350 on 12 September 2013.
On 22 July 2013, only two months into the good behaviour bond that was imposed in May 2013, the Applicant assaulted a police officer in the execution of his duty.[24] It began when the police spoke with another person about a reported brawl. After a short time, the Applicant walked up to the police yelling loudly. He was covered in blood which appeared to be coming from his lip and he seemed affected by alcohol. Given his injuries the police called an ambulance but before it arrived the Applicant became agitated and refused directions for him to step away from a Senior Constable. Because of his agitated state in the amount of blood the Senior Constable pushed him in the chest to create distance from the Applicant. The Applicant became verbally abusive and when the ambulance arrived he refused treatment.
[24] Exhibit, R3, S1 pages 39 to 40.
The Applicant then began to stagger onto the roadway and when told to move off the road he said “What? You gonna make me?”. The police pushed the Applicant in the chest twice to remove him from the road. He was told to sit down on a nearby bench and did so. At one point he stood up and squared up to police he then sat down, and the police tried to handcuff him. He resisted and began to thrash around, and he took hold of the left middle finger of the Senior Constable and began to dig his fingernail in causing immediate pain and bleeding. He did not let go when he was directed to. After the police delivered four approved strikes to his shoulder he let go. He was escorted to a caged vehicle and resisted getting into it. He kicked out violently towards the Senior Constable and another officer. After the Senior Constable delivered two blows with his extendable baton, the Applicant was able to be placed inside the vehicle. The Senior Constable later had to have a tetanus booster as well having blood samples taken to screen for hepatitis and HIV.[25] In June 2014 the Applicant was fined $800.
[25] Exhibit R4, pages 50 to 51.
On 17 September 2013, the Applicant committed assault occasioning actual bodily harm (DV), again against Ms A. Ms A had invited the Applicant to live with her again around six months earlier. At the time of the offence, she was behind on rent and at risk of losing her Department of Housing accommodation. She told the Applicant “You can’t live in this house anymore; you have to go to Centrelink so they can process your payments to go through to the housing”. The following day she came home from work and asked the Applicant if he went to Centrelink. He did not respond but went to the balcony to smoke a cigarette. Ms A locked the balcony door behind him. He unlocked the door by putting his finger through the mesh. There followed a struggle between him and Ms A and the Applicant forced the screen door wide open. He spat on Ms A’s face and grabbed her by the throat making it hard for her to breathe. Ms A said, “You're hurting me” to which the Applicant replied, “I'm hurting you”. He released his grip and pushed Ms A onto the balcony, closing both the glass and metal screen doors and locking them.
As Ms A could not get back inside, she scaled down the exterior wall and walked to the police station. The police saw that she was bleeding profusely from a three centimeter laceration to her wrist and grazing and abrasions along her left arm. She had noticed these injuries on the balcony. Ms A told the police that she feared that the next time the Applicant might kill her. She also said she thought he could break into the unit and damage her property as he had done before. The following day the police obtained an Apprehended Violence Order (“AVO”) against the Applicant on Ms A’s behalf. [26]
[26] Exhibit R3, S1, page 37 to 38.
The Applicant told Dr Kwok that Ms A had been “bugging me about not having a job, not finishing school, [and] always drinking… she called me a failure”. He said “one night I was short on rent…[my sister] feels that she can put her hands on me and does not realise I am a grown man… I don’t want to hurt her [but] she wouldn’t let me walk away”.[27]
[27] Exhibit A8.
In the hearing the Applicant denied having assaulted Ms A, describing her as a “big trouble maker” who no-one wanted to stay with. He said he initially refused to move back in with her because of what happened the last time but she begged him and said he did not have to pay rent. He claimed that he was on the balcony, Ms A was unhappy that he was behind on the rent, and she grabbed speakers and hit him with them. He went to the balcony to get away and she kept hitting him and she started slapping him. He grabbed her and told her, “Don't put your hands on me. I don't want to put my hands on you. Stop doing that”, and she spat on his face. He ran inside and locked her out.[28] According to the Applicant, the court did not believe his account,[29] and I note that once again, the Applicant claimed Ms A attacked him yet it was she who sustained injuries. The Applicant claimed he had not had any similar interactions with his other two sisters.[30] Based on their evidence I accept that. However, it hardly assists his case given he has not lived with either of them for more than a week apart from when he was a child in Kenya. Further, the first time he acted poorly in Ms D’s home as an adult, she removed him, effectively removing the risk of domestic conflict.
[28] Transcript, page 17 lines14 to 46 to page 18 lines1 to 16.
[29] Transcript, page 17.
[30] Transcript page 18 lines 25 to 26.
Eleven days after the incident with Ms A, on 28 September 2013, the Applicant assaulted a police officer. He was intoxicated in public and was detained by police. Checks revealed he was wanted in relation to the attack on Ms A so he was arrested. While the police were searching him, he was asked to remove his shoes. He said “Get f-cked, take it off yourself”. The police lifted his leg to remove his shoe, and he lost balance and fell to the ground. While he was on the ground he kicked out, striking an officer on the elbow and hip.[31]
[31] Exhibit R3, S1 page 38.
The answers he gave when asked about the March 2013 offending appear to relate to this incident. In the hearing the Applicant described himself as “acting a fool”. He said he was angry and swearing because he was told to take off his belt and shoes while his hands were cuffed. He accused the police of trying to take off his shoes aggressively and causing him to fall and hit his head. He said he kicked out of anger but claimed he did not intend to hurt the officer, saying “I was just kicking my leg, you know”.[32] He told Dr Banks that he thought both he and the police handled the interaction poorly.
[32] Transcript page 23 lines6 to 30.
On 5 June 2014 the Applicant was sentenced to 12 months imprisonment, fully suspended, for each assault on Ms A and the police.
On 3 February 2014, the sentences for the 15 March 2013 offences were “called up”. The Applicant had breached the good behaviour bond by continuing to offend and he had completed only two hours of community service. For resist officer in execution of duty and affray the Applicant was re-sentenced to a 12 month good behaviour bond, and for the rest of the offences he was sentenced to 12 months imprisonment fully suspended.[33]
[33] Exhibit R1, T2 page 44.
On 15 November 2014, the Applicant was involved in a brawl outside the Blacktown Library, a designated alcohol free area. Around 10 males were under the influence of alcohol and behaving in a disorderly manner. The Applicant was argumentative with police when they issued a “move on” direction to leave and not re-enter the Blacktown CBD for the remainder of the night. Later the same group including the Applicant were located approximately 100 metres from the area, contrary to the move on direction, and they were involved in a brawl. The police issued another move on direction to leave and not re-enter the Blacktown CBD for the remainder of the night. The Applicant continued to be argumentative and he refused to leave the area stating, “You’re racist, f-ck off, I haven't done anything.” Police asked the Applicant to leave the area on no less than a further 10 occasions.[34] The Applicant was charged with refuse/failed to comply with direction.
[34] Exhibit R4, S8 page 28.
Police records indicate that on 17 February 2015 the Applicant entered a 7-Eleven store that he used to frequent and from which he was banned. He had a verbal altercation with a security guard and made some threats against the guard and the shop attendant. The police were called the Applicant left.[35] The account appears to be based on what the police were told as the police were not present during any of it.
[35] Exhibit R3, S1 page 19 to 19; Exhibit R4, S8 page 18 to 19.
The Applicant was charged with, and convicted of, “stalk/intimidate intend fear physical etc harm (personal) – T2” however the conviction was quashed on appeal. The Applicant told Dr Kwok, “Each time I go there, [this storeperson] gives me an attitude.” He spat on the storeperson’s face, because “he kept harassing me … he was talking to me like a kid.” he said the storeperson “locked me inside the shop… he called the police.” The Applicant reached over the counter and pressed the button to let himself out.[36]
[36] Exhibit A8.
In the hearing the Applicant said he used to go to the store a lot. A lot of young people used to steal from the store. The shopkeeper thought he was stealing and started calling him a thief. The Applicant wanted to buy something and gave the shopkeeper money. The shopkeeper gave him change. The Applicant was not happy about how he was treated, and he spat on the shopkeeper’s face. Weeks later the shopkeeper called the police and claimed the Applicant assaulted him and followed him home “or something like that” and threatened to kill him. He denied that he followed of threatened him.[37]
[37] Transcript page 25 lines 16 to 42.
It is not apparent why the conviction was quashed but it was, so I make no finding about what happened, except to note that, based on the Applicant’s evidence, the Applicant spat in a shopkeeper’s face because he had accused him of being a thief.
On 23 February 2015, the Applicant was found with a knife in a public place. He told the police he used the knife for fruit and had last used it ten minutes ago or less. However, he was not carrying any fruit and an inspection of the knife did not show any juice or fruit on the knife. The knife looked like a credit card with a concealed blade around 10cm long that folded out.[38]
[38] Exhibit R4, S8 page 19.
In the hearing the Applicant gave an unconvincing explanation, being that he was homeless and staying with a friend, and that he had used his friend’s knife to cut fruit and forgotten to put it back. He added that he had never used a weapon before to hurt anyone or to protect himself[39] - there is no evidence to the contrary and I accept that. However, he was still carrying a concealed knife in circumstances where he was often involved in physical fights, and he potentially could have used it. I do not accept that had it in his possession because he had used it to cut fruit.
[39] Transcript page 26 to 27.
On 27 February 2015, the Applicant committed affray.[40] The police saw him dragging, kicking and punching another male who was known to police. He was 25 meters from the 7 Eleven store and his bail conditions required him not to approach or enter that store. The next day he was charged and remanded in custody until 22 April 2015.
[40] Exhibit R3, S1, page 18.
On 30 May 2015 the Applicant was found to be in breach of several of his bail conditions including a curfew and a ban on consuming alcohol, and he was again remanded in custody. He had also failed to report to the police station as required to some days earlier.[41]
[41] Exhibit R3, S1 page 16.
On 16 June 2015 a pre-sentence report was provided to the court for the purpose of sentencing the Applicant for various offences.[42] The Applicant had reported that he was homeless due to ongoing disputes within the family home but he had reconciled with his brother (Mr M) and his brother’s wife and he intended to live with their family upon release.
[42] Exhibit R4, pages 8 to 9.
That day, the Applicant was sentenced by the court to:
·imprisonment for eight months for the affray on 27 February 2015 (which was varied on appeal to a 12 month supervised good behaviour bond, backdated to 28 February 2015); and
·imprisonment for two months for having a knife in a public place (on appeal backdated to 28 February 2015); and
·conviction without penalty for refuse/fail to comply with direction on 15 November 2014.
Those offences breached the suspended sentences of imprisonment that were imposed on 5 June 2014 for assaults against Ms A and the police. Those were called up and the Applicant was resentenced to imprisonment for 12 months commencing on 28 June 2015, with a non-parole period of four months. On appeal the sentence was ordered to start on 29 May 2015.[43] The learned Judge who heard the severity appeal observed that:
“The assault occasioning actual bodily harm is a reasonably serious example of the offending when one looks at the facts. There is nothing particularly significant about the assault police officer in the execution of duty offence, although that is always a serious offence. This was a single kick which connected with the officer’s elbow and hip, fortunately not with his head or some other vulnerable part of the anatomy.”[44]
[43] Exhibit G1, G2, pages 27 to 28.
[44] Exhibit G1, G2, T documents, pages 27 to 28.
I note that His Honour’s use of the word “particularly” which suggests that he was making a relative, and not an absolute, assessment of the seriousness of the assault police offence. I respectfully find that the assault on the police officer was serious despite the fact that there are more serious offences that are dealt with by criminal courts.
On 3 December 2015, the sentences imposed in March 2013 (for the Applicant’s involvement in a brawl and assaults on attending police) were called up for a second time. The Applicant was resentenced to 12 months’ imprisonment with a non-parole period of six months (varied to four months on appeal). He was also sentenced to four months imprisonment for February 2015 affray.[45] Accordingly he was returned to custody where he stayed until 2 April 2016.
[45] Exhibit R1, T documents, page 20, T31, page 270.
While he was on parole in 2016, the Applicant was attending counselling to address his alcohol abuse. A letter from the provider, Follow-on Youth Recovery Support Team, indicates that from April to December 2016 the Applicant showed “sporadic engagement throughout the period of support and often struggled to attend appointments due to work”.[46]
[46] Exhibit G1, G10, page 64.
On 19 June 2016, the Applicant committed “excluded person remain in vicinity of licensed premises”. A large group of intoxicated males, including the Applicant, attempted to enter a night club. The Applicant was argumentative and aggressive towards the security guards. A melee broke out with one of the other males and security guards. On 30 September 2016 the Applicant was fined $500.
On 24 January 2017, the Applicant committed assault occasioning actual bodily harm. The Applicant pleaded not guilty to this offence and I have before me not only the police facts but the transcript of the oral evidence of the victim and the Applicant.
The background of the offence, according to the victim and the police report, is that on 9 January 2017, the victim was socialising with friends. He left his mobile phone on top of his bag and later noticed it was missing. According to his evidence in court, he noticed his phone was missing and saw the Applicant walking away. He asked the Applicant if he had his phone and the Applicant said no and turned out his pockets to prove it. The victim was able to remotely block the phone so that it could not be used, and he remotely put a message on the screen saying it had been stolen. Using the phone’s tracking technology and some features of social media, he tracked down the person who had the phone. That person claimed he had bought the phone for $80 and offered to return it for $80. The victim established that a particular Facebook account had been used on his phone. That account was associated with the Applicant.
The victim eventually met with the person who had his phone. He paid him $20 and said he would pay the rest later. He told the person he wanted to meet with the person who sold him the phone and he refused to pay the money until that happened. The Applicant was there and, overhearing, he said “You owe my cousin money”. After some argument he attacked the victim by punching him multiple times. The victim estimated he was punched 10 to 15 times, on the face, head and also his arm as he was protecting himself. The victim became delirious and lost balance. He saw the Applicant go through his bag and did not know what he had taken or what the Applicant’s cousin had taken. He was bleeding. Photos of his injuries were provided to the court.[47] He had a fractured, cut, bleeding nose. The Applicant and his associate had taken the victim’s watch, a pair of safety glasses and a bottle of rum.
[47] Exhibit R4, S44, pages 85 to 91.
The Applicant’s evidence in court was that he never touched the victim and he did not know “what he was on about”. He said he had never seen him after the time when the victim asked if he had taken his phone,[48] and said, “I never touched him I never punched him”.[49]
[48] Exhibit R4, S44, page 104.
[49] Exhibit R4, S44, page 107
Despite the Applicant’s denials the learned Magistrate was “more than comfortably satisfied that the offence is made out beyond a reasonable doubt”.[50] While passing sentence, His Honour asked the Applicant how old he was when he came to Australia. The Applicant replied “Sixteen. About 13”.[51]
[50] Exhibit R4, S44, page 117.
[51] Exhibit R4, S44, pages 118.
In a letter to the respondent dated 20 June 2018 the Applicant said that his cousin had told him that the victim was refusing to pay him for something he owed him. The victim was standing over his cousin and acted aggressively towards them both. The Applicant said he told the victim he could agree to pay his cousin on another day but the victim started being aggressive and invading his personal space by pushing and shoving him. The Applicant warned him off but he kept going so the Applicant punched him in the nose “as a form of self-defence”. He said he had been drinking at the time as he was sad and upset because his infant niece had recently passed away.[52] The Applicant said he was not able raise the self-defence issue at the trial as he represented himself and he pleaded guilty.
[52] Exhibit G1, G10 pages 56 to 57.
The Applicant told Dr Banks that the victim had filed a false statement alleging that the Applicant robbed and bashed him.
In the hearing, the Applicant was asked to comment on the victim’s claim that the Applicant punched him 10 to 15 times in the face, head, and arm. He said “Yes, that is correct. I wasn’t counting. I don’t know how many time I punch him”. He agreed that, in the trial, he had sworn to tell the truth but that he had not told the truth.[53] He said he thought the victim was making things bigger than they were. He claimed he thought that if he told the truth no-one would believe him. He denied having lied to avoid conviction, saying he did not want to waste his breath telling the truth, knowing he would not get anything out of it. The Applicant partly blamed the victim, stating:
“I was wrong in every way when that happened, you know. But you know, I was – I had anger with the person, you know, for a different reason, you know. He pushed me to do it, you know.” [54]
[53] Transcript, page 28, lines 15 to 38.
[54] Transcript, page 28, line 45 to page 30, line 10.
When asked how the victim pushed him to do it, he said by accusing him of stealing the phone and wanting to search him in public which was embarrassing. He said:
“…he didn’t find his phone and he tried to say sorry, you know, and I wasn’t happy about his apology because he didn’t mean it”.[55]
[55] Transcript, page 30, lines 12 to 25.
The Applicant said the next time he saw the victim, he heard him arguing with his friend and told him if he owes his friend money to pay him. The victim pushed him in the chest and told him to stay out of it. The Applicant estimated he punched the victim five or six times and said he stopped when he saw the victim was not fighting back. He added:
“When he tried to run I pushed him, you know, and he fell on the chair and his bag came out, his backpack, you know, and then I grabbed his backpack and then I give it to my friend, my little friend that was asking him for the money he owes him. So I’m like, you take the bag for the money that he owes you, you know, and that was it.”[56]
[56] Transcript page 30 lines 1 to 5.
I find the Applicant’s evidence about this unconvincing and very concerning. The Applicant was present, and walking away, at the exact moment the victim realised his phone was missing. He was later with the person who claimed to have bought the phone, who was trying to extract money from the victim for the return of the phone. Yet he felt aggrieved that he had been accused of stealing the phone and not received an apology that was to his liking. Further, on his account, he had punched the victim five or six times before realising he was not fighting back. He stole from the victim and tried to pass that off to the Tribunal as an honest effort to recoup what he believed was owed to his friend. The Applicant’s narrative is indicative of a person who expects to be able to treat others poorly without consequence and to abuse anyone who, quite reasonably, challenges him. For the avoidance of doubt, I do not accept the Applicant’s narrative but the fact that he put it forward as a partial justification or explanation provides an indication of his way of thinking.
On 7 April 2017, the Applicant was sentenced for this offending to imprisonment for 18 months with a non-parole period of 14 months. The learned Magistrate’s sentencing remarks included the following:
“It’s a matter in which I would assess the objective seriousness of the offence of assault occasioning actual bodily harm by reference to the evidence, where you’ve struck the victim at least ten to 15 times, causing the injuries identified…, which required, ultimately, suturing of the nose and the corrective procedure in relation to the victim’s nose, to be above mid-range in relation to matters of a like nature that come before the Court…
…you have a very significant history in regard to matters involving violence, both in the Children’s Court jurisdiction and in the adult jurisdiction. And certainly, based upon the matters which are recorded…, which are almost exclusively matters involving violence, including offences of assault occasioning actual bodily harm, stalk, intimidate, and affray; certainly a circumstance where, in my view, it’s an aggravating factor in regard to the matters on penalty, as a consequence of history of convictions in regard to like offences…
[You] are a significant threat to the community in relation to your particular actions and functioning within the community, in terms of the way that you mete out violence towards other people; certainly a circumstance where I’m of the view firmly, in relation to this particular matter, having regard to your background and the other circumstances and the objective seriousness of the offence, that there is no other penalty appropriate other than one by way of custodial sentence. I’m clearly satisfied that the threshold in regard to s 5 has been crossed…”[57]
[57] Exhibit R4, S44 pages 82 to 120.
On appeal the sentence was varied to a 16 month Intensive Correction Order (“ICO”). The learned appeal Judge found that the sentence the lower court had imposed did not comply with the sentencing legislation. His Honour determined that the sentence ought to have been imprisonment for two years with an assessment as to whether the Applicant could serve that by way of ICO. Incredibly, the Applicant was assessed as posing only a medium risk of re-offending and suitable for an ICO.
As the Applicant had been in custody for eight months when the appeal was decided, the ICO was ordered to cover the balance of the sentence.[58] The appeal was decided on 9 October 2017, by which time the Applicant’s visa had been cancelled. He was released from prison that day, detained under s 189(1) of the Act and transferred to an immigration detention centre.
[58] Exhibit G1, G3. pages 24 to 26.
On 21 October 2017 the Applicant was involved in a brawl in immigration detention. The incident report records that a fight broke out between several detainees at the computer station, with plastic chairs used as weapons. The Applicant and another inmate were identified as the main aggressors.
In the hearing, the Applicant disagreed and claimed to have been a victim. He said another detainee on the computer next to his kept getting into his personal space trying to turn it on despite the Applicant telling him it would not work because the plug had been removed. This person was aggressive and when the Applicant tried to get up, this person’s friend pushed him back into his seat. A few other detainees came to his defence and “the whole thing just turned into chaos”. He said he was hit by a chair and “I never really got to punch anyone”.[59]
[59] Transcript page 39 lines 22 to 29.
The Applicant claimed that when the guards saw the footage of the incident they told him:
“Look, like we see in the footage you were just minding your own business, using the computer, but something happened there - it must have said something, what did it say to you, you know, for you to get angry, you know.”
The Applicant claimed the other detainee called him the “n-word” and the guards said “Okay, and we see, you know, you’re not in trouble.” He was surprised that the report was written the way it was.[60]
[60] Transcript, page 39, line 35 to page 40, line 14.
When asked if, given his comment about not being able to throw a punch, he was trying to take part in the fight, he said “Well, they was trying to hit me, you know? That’s how the fight started. If others hadn’t come, it would have been two of them against me, you know? So I was trying to protect myself. But I didn’t get to do that because the boys that came to help, you know, took care of it”.[61]
[61] Transcript page 40 lines14 to 21.
On 30 May 2019 in a targeted room search, the Applicant was found in possession of three Suboxone tablets, a white unknown tablet, cigarette lighters and some smoking implements. In his Protection visa interview, the Applicant said his roommate snored very loudly every night so he had difficulty sleeping. He said that he had asked to be moved to another room however his requests had not been actioned due unavailability of rooms. He added that he had also been experiencing depression for most of his life which makes it hard to sleep. His friend offered him a sleeping tablet and some strips which would help him to sleep and that is why he had that contraband.[62]
[62] Exhibit R1, T2, page 50.
In the hearing, the Applicant was asked why he did not ask for prescribed medication to help him sleep. He said he was not interested in medication. His answers to further questions indicated that he did not consider suboxone to be medication. He also indicated that suboxone was quick and easy, whereas it could take a week or two to get medication. When asked about the long term, he said he was going to rely on suboxone the whole time until he moved rooms. The Applicant admitted he knew he was not allowed to use suboxone.[63]
[63] Transcript page 43 line 4.
On the day the was caught with the suboxone, he had a consultation with a psychologist and he told that person he had problems sleeping which he believed were “due to excessive rumination about his actions and past”.[64] The record of that consultation makes no mention of a snoring roommate or a request for sleeping medication. The Applicant claimed he did speak with doctors and officers and he told nurses about his snoring roommate, but he could not recall if he asked for medication to help with it.
[64] Exhibit R3, S10, page 172.
I have chronological International Health and Medical Service (“IHMS”) records before me covering that period. They document multiple consultations with a nurse, GP, psychologist, counsellor and psychiatrist and none mention a snoring roommate or request for sleeping medication[65] until a file note dated 7 May 2020, nearly a full year after the Applicant was caught with suboxone. This file note records the Applicant complaining to a GP of insomnia due to his roommate snoring.[66] The Applicant sought to explain that by claiming he asked for medication due to his trauma and did not mention the snoring because “It’s the same thing, you know”. He eventually said “Suboxone was my medication at that time, you know”.[67]
[65] Exhibit R3, S10, pages 153 to 172.
[66] Exhibit R3, S10, page 151.
[67] Transcript page 46 lines 5 to 11.
On 9 March 2020, the Applicant was abusive and aggressive towards a female staff member.[68] The incident report states that the staff member was completing a lesson when the Applicant arrived late. She told him he was late and he may not receive the points allocated for him for that lesson. He shouted words to the effect, “You can stick the points up your ass you bitch”. He then left.
[68] Exhibit R3, S10, page 87.
The explanation the Applicant gave in the hearing was that he had attended a class and arrived on time and stayed until the end. On the day when the detainees are allowed to spend the points they earned, it appeared that he had missed a few classes, including the class of this staff member, that he attended. He asked her about it and she told him he arrived late. He reminded her that he spoke with her at that class and she wrote his name down. He claimed she did not speak to him like he was a human being, she just walked away, so he got angry. He called her names when she was teaching another lesson two or three days later. He admitted that he reacted after he had some time to think about it. He claimed another African did not get his points that day but others came to the class really late and they got points. It was not the first time the staff member had done that to him. He suggested he was treated that way because of his race.[69]
[69] Transcript page 48 lines 4 to 44.
The accounts of the context in which the applicant verbally abused the staff member are somewhat different. The Applicant was certain that he was not mixing up one incident with another, and he said the person who wrote the report was not the person teaching the class. I accept that. It seems likely that the person who wrote the report thought the verbal abuse related to the class that was in session at the time, rather than to an earlier class and this may explain the discrepancies with respect to the context. The incident report does not contain any record of the Applicant claiming not to have received points for classes he attended on time, so it does not support his explanation. Whatever he believed about that, his reaction, even after having time to think about it, indicates a problem with aggression.
A couple of weeks later, on 23 March 2020, the Applicant told an IHMS counsellor that he has “always had issues with his anger”, he felt like anger is often his response to stress and that he had insight as to how to manage his anger but was hoping that they could address this going forward.[70] In the hearing he said he does still have issues with anger but he has been working on it. He described anger as natural and part of your body. He said he gets angry easily.[71]
[70] Exhibit R3, S10, page 156.
[71] Transcript page 52 lines 1 to 4.
By 27 May 2020, the Applicant had completed some anger management training consisting of four sessions. He then missed four consecutive counselling appointments between 11 June 2020 and 1 July 2020.[72]
[72] Exhibit R3, S10, page 147.
Around 9 August 2020, the Applicant was angry and punched a wall. He required sutures on his hand.[73]
[73] Exhibit R3, S10, page 145.
On 28 August 2020, as another detainee was preparing for transfer to another detention centre, the Applicant attempted to push past an Emergency Response Team officer to gain entry to the room. He was directed to wait outside until the detainee was finished packing, but he again tried to push past, raising his raised his elbow so it struck the officer in the nose, causing it to bleed.[74]
[74] Exhibit R3, S10, page 86.
In the hearing the Applicant claimed he did not mean it. The incident happened around 2:00 am or 3:00am. The other detainee was a friend to whom he wanted to say goodbye. He put his hand out towards his friend and the officers jumped on him from the back and grabbed him. Other officers tried to grab his leg so he skipped over their hand and went to turn around and that must be when he accidentally elbowed one of them.[75]
[75] Transcript page 46, lines 21 to 40.
When asked about missing four anger management sessions (see above), the Applicant said he was doing telephone counselling with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STTARTS”). That counselling was for Post Traumatic Stress Disorder (“PTSD”) and adjustment disorder; it was not targeted anger management counselling. Further, the Applicant does not seem to have made much of an effort. He missed his first session on 31 December 2020, then 25 January 2021 and 2 February 2021.[76] When asked about his poor attendance, he said he could not keep track and would easily forget.[77]
[76] Exhibit R3, S10, page 128.
[77] Transcript page 53, lines 27 to 30.
I now return to the apparent uncertainty about the Applicant’s age. Counsel for the Respondent asked the Applicant when he found out he was born in 1990 (not 1994). He said it was three or four years ago when he spoke with his older sister when he was in detention. However, this is contradicted by other evidence. For example, in relation to the Applicant being told to leave Ms D’s home in 2012, he told Dr Banks that despite him being 21 years old, his sister expected him to seek her husband’s permission to spend time out of the home with friends. The wording of this statement indicates that he was known to be 21 at the time: that he should not have been expected to seek Ms D’s husband’s permission given his age. If he knew he was 21 years old, he knew in 2012 that he was born in 1990 rather than 1994. When the Applicant gave evidence about being denied permission to attend the party, he said:
“[Ms D’s husband] said I couldn’t go, you know, and I said I’m an adult, you know, I can go and I come back, I promise you I won’t cause any trouble…”[78]
(underlining added)
[78] Transcript, page 35, lines 35 to 38.
Counsel for the Respondent asked, “When you said before that you told your sister’s husband you were an adult, how old did you tell him you were”.[79] The Applicant then claimed that they never talked about his age, however given his earlier evidence, I do not accept that. I am satisfied that in 2012, the Applicant believed himself to be an adult of 21 years of age.
[79] Transcript, page 36, lines 23 to 30.
Further, in 2017 when a Magistrate asked the Applicant how old he was when he came to Australia (which was in February 2007), he initially said 16 then changed his answer to 13. The Magistrate then said “Sorry, thirteen?” and the Applicant said “Thirteen, yeah”.[80]
[80] Exhibit R3, S10, page 118.
I asked the Applicant about his answer and he said around that time he was talking to his sister in prison and she told him he was born in 1990. Not only is this different to what he had earlier told the Tribunal, it does not explain why he gave the correct answer first, then changed it to an incorrect answer then confirmed the incorrect answer. I asked the Applicant if he was trying to keep up the impression that he was younger than he was and he said “Yes, probably. Probably”.[81]
[81] Transcript page 32 lines 13 to 15.
I have laboured this point a little because it clearly shows that the Applicant sought to deceive a court about his age and to deceive the Tribunal about having done that. This, along with the fact that he perjured himself in 2017 when he denied having committed an assault, undermines his reliability as a witness. There are other aspects of the Applicant’s evidence that call his reliability into question, and I have mentioned some of the anomalous or implausible aspects of his evidence as I have recounted his offending and other conduct.
The police records and immigration detention incident reports were made contemporaneously and nothing on their face suggests they were not impartial. The Applicant claimed that various police and detention staff were racist but there is no evidence to corroborate that and I do not accept it. The Applicant was convicted by criminal courts of many offences. I do not consider the Applicant’s evidence to be sufficiently reliable to prefer it, in the event of an inconsistency, to those findings of guilt or the allegations giving rise to those findings. Nor do I consider the Applicant’s evidence to be more reliable than the detention incident reports that I have mentioned. I am satisfied that the Applicant committed the offences of which he has been found guilty and that he engaged in the conduct detailed in the incident reports.
IS THE APPLICANT A DANGER TO THE COMMUNITY?
Seriousness and nature of harm
The Applicant was convicted of some 47 offences between 2011 and 2017. While in the wider Australian community he engaged in the following serious conduct;
·assaulted his sister in her own home on two occasions. On the first occasions he grabbed her with both hands and drove her head onto the corner of a metal door frame. On the second occasion he spat on her face, grabbed her by the throat so it was hard for her to breathe and caused cuts and grazing on her arm;
·verbally abused and stood over a female transit officer who was performing her duties;
·verbally abused, threatened and punched a shopping centre security guard who was performing his duties;
·spat at a shopkeeper’s face in the shopkeeper’s place of work;
·was actively involved in multiple brawls in public spaces;
·punched a man between 10 and 15 times and took his belongings; and
·verbally abused and assaulted police officers who were performing their duties on multiple occasions, including when they were trying to assist him after he had been injured in a fight. He bit a police officer, and he kicked officers in the groin, elbow and hip. He also kicked out at officers but missed.
The Applicant has caused physical injury to numerous members of the Australian community. The violence against Ms A is particularly serious because it was family violence. The violence against police officers who were performing their duties is also particularly serious: attacking those who protect the community is an indirect attack on the community and it tends to add anxiety and trauma to an already stressful job. Much the same could be said with respect to the attack on the shopping centre security guard who was responding to complaints from fellow shoppers. The police officer whose skin the Applicant punctured had to endure the uncertainty of whether he had been infected with serious blood-borne diseases until he received the results of blood tests. The Applicant’s unprovoked attack on the person whose phone was stolen resulted in the victim suffering a broken nose and injuries to his head and arms.
The Applicant’s non-violent offending is of the kind that can cause short-term, and possibly long-term, psychological trauma. Being stood over and intimidated, or having one’s face spat on, in a location that you have to keep returning to because you work there, could easily cause immediate fear and long-term anxiety. Public drunkenness in company and brawling in public spaces is the kind of behaviour the members of the community find intimidating, and it limits the community’s ability to use and enjoy public spaces. Should the Applicant return to his offending conduct, the harm that would be caused to the Australian community, being harm to individuals and to the community as a whole, would be very substantial.
On many occasions the Applicant was given the benefit of lenient sentences, some of which included supervision, and he wasted those opportunities. He had suspended prison sentences hanging over his head and he continued to offend. That the courts finally imposed periods of imprisonment indicates the seriousness with which they regarded his offending and his history of offending.
Factors that contributed to the offending
The Applicant and others have put forward several explanations for his offending that, taken together, centre on his family, his childhood, the people he chose to associate with, and his problems with anger and alcohol abuse.
In the revocation request the Applicant lodged in July 2017 after his GSH visa was cancelled, he said he was not getting along with Ms A – they were fighting a lot about “little things like rent money and not going to school” so he was kicked out and he became homeless. He said from there he started drinking and smoking cannabis, and since then his relationship with his whole family became really bad “it’s like they couldn’t trust me or even know me and it really made me violent and so angry went (sic) I drink”. He said alcohol brings out all the anger he has in him about his family not supporting him and not being there when he needed them and also on himself for all the stupid mistakes he has made.[82]
[82] Exhibit G1, G1, page 40.
This explanation places the blame squarely on the Applicant’s family, trivialises important matters like rent and attending school, and shows no appreciation that Ms A’s concern about him not going to school was concern for his best interests. That sort of immaturity may not be greatly concerning in a young man who can potentially mature throughout his twenties, but evidently the Applicant still saw things that way even in his late twenties when he lodged the revocation request.
The Applicant was interviewed for his Protection visa application on 17 December 2018. In that interview he said:
“the loss of my parents, instability growing up in a refugee camp, the violence and negative things I have seen as a young kid, the lack of discipline and routine during my younger years have all lead me to have psychological effects and as a result, I have made the wrong choices in life.”[83]
[83] Exhibit R2, T2, page 16.
According to Ms B, the Applicant never had a chance to grieve after their mother died although she thinks he has now done that in immigration detention. When they came to Australia he struggled with his emotions, guilt over not grieving and lack of a mentor to guide him in the right direction.[84]
[84] Exhibit A4.
In the hearing the Applicant said he was not in a good state of mind when he was offending. He thought he was abandoned by his family and felt unwanted. He assured the Tribunal that he is not a danger to the community, and that he is a good person who went on the wrong path and did not know what he had got himself into at the time. He said he knows the bad he has done, and he does not want to be that person – it is not who he is now, and he wants to prove that.[85]
[85] Transcript, page 14, lines 13 to 15.
The Applicant undoubtedly suffered terrible loss (growing up without parents), hardship and trauma in his childhood. However, there is more to his offending than a disadvantaged background. He had a reasonably stable home among family in Australia. His preference for spending time out with friends, and the behaviour that those friends engaged in, was a more direct contributing factor to his offending. Many of his offences were committed in the company of others who were drinking alcohol and behaving in an anti-social manner. He seemed to recognise this in a letter to the Respondent dated 20 June 2018 in which he said:
“I learned the negative effects of alcohol in my life and how I could make a positive change. It made me want to stop getting into trouble and become a better person. When I am out of detention, I plan on changing the group of people I used to spend time with as they often influenced me to drink. I now recognise that these friends and my drinking was what made me offend. I no longer speak to them and I am determined to avoid them.”[86]
[86] Exhibit G1, G10, page 57 to 58.
In that letter he also acknowledged he had an anger problem, saying:
“I have learned how to turn away from violence and control my anger. I feel I have significantly improved in managing my anger and want to improve further…”[87]
[87] Exhibit G1, G10, pages 57 to 58.
A couple of weeks after writing that letter, on 23 March 2020, the Applicant told an IHMS counsellor that he has “always had issues with his anger”, he feels like anger is often his response to stress and that he has insight as to how to manage his anger but is hoping that they could address this going forward.[88] In the hearing he said he does still have issues with anger but he has been working on it. He described anger as a natural thing, “part of your body”. He said he gets angry easily.[89]
[88] Exhibit R3, page 156.
[89] Transcript, page 52, lines 8 to 10.
Efforts at rehabilitation
According to the Applicant, while he was in prison, he engaged with counselling support and participated in a drug and alcohol rehabilitation program. He was released prior to completing these programs; however, he feels he got some benefit.[90]
[90] Exhibit A7.
While in immigration detention, the Applicant completed four sessions of anger management in April and May 2020, yet shortly afterwards he punched a wall in anger. He also injured an officer, giving him a bloody nose, when trying to barge into another detainee’s room after being told to wait until the detainee had finished packing. He does not appear to have done that out of anger, but simply because he wanted to force his will.
The Applicant missed four scheduled sessions of anger management counselling after the previous four he attended.
In June 2020, Yvette Aiello, Clinical Psychologist with STARTTS prepared a Psychological Assessment Report.[91] Her report largely relied on what the Applicant told her. She noted that he presented with symptoms of Depression, Anxiety and PTSD although she did not make a clinical diagnosis. She thought he would likely benefit from specialist trauma counselling to process his earlier experiences of trauma and to address his relationship difficulties and to assist him to continue to establish and strengthen helpful and sustainable coping strategies.
136.However, the Applicant missed his first three scheduled STARTTS counselling sessions in late 2020 and early 2021 and it does not appear that he re-engaged after that.
[91] Exhibit R3, pages 109 to 119.
In August 2021 the Applicant attended three out of four supportive telephone counselling sessions he had been offered. A report on these sessions indicated that they focussed on his psychological issues relating to past trauma and his detention. The report mentioned that the Applicant was very apologetic about not attending one session as he was not feeling well and was “mentally tired”. The Applicant requested more sessions. The writer stated that being released to the community would assist with the Applicant’s mental health.[92]
[92] Exhibit A7.
On 21 September 2021 the Applicant received a certificate for completing an online anger management course.[93] He started the course in June 2021 and it involved 11 lessons each with an exam at the end.[94]
[93] Exhibit A9.
[94] Transcript, page 55, lines 26 to 33.
The hearing concluded on 13 October 2021. After the hearing the Applicant provided a letter from Odyssey House NSW Community Programs dated 5 November 2021 confirming that he had been assessed and has engaged in their non-residential treatment program. The Respondent did not object to the Tribunal admitting this into evidence.
The letter confirmed that between 24 June and 5 November 2021, the Applicant completed 19 online sessions of “SMART Recovery Program” – a self-management and recovery training program that assists clients with problematic behaviours including addiction and relapse prevention. Participants come to help themselves and help each other using a variety of Cognitive Behaviour Therapy, motivational tools and coping techniques. The letter states that the treatment options provided by qualified counsellors and psychologists are tailored specifically to the clients’ individual recovery needs, addressing the reasons why the client has misused substances and the problematic behaviour relating to their substance use.[95]
[95] Exhibit A10.
The Applicant told Dr Kwok in September 2021 that his counsellor telephones him every Tuesday and the sessions also assist with his depression and anxiety.[96] As the Respondent pointed out in written submissions filed in response to the letter from Odyssey House, aside from a high-level summary of the service, the content of the sessions is not apparent from the letter.[97]
[96] Exhibit A8.
[97] Exhibit R6.
The Applicant said the SMART course taught him how to avoid relapsing into drinking.[98] The Applicant certainly needs that kind of help: while there is no evidence that he has consumed alcohol since he was last incarcerated in 2017, he conceded that previously he has abstained from alcohol while in prison, then resumed drinking after he was released. Moreover, his evidence was that when he drinks, he drinks until he is drunk.[99]
[98] Transcript, page 63, lines 13 to 36.
[99] Transcript, page 63, lines 1 to 10.
There is no course evaluation or independent evidence before me about what progress, if any, the Applicant made in the SMART course during his attendance. It remains to be seen whether the Applicant would put the course teaching into practice and avoid drinking to the point of intoxication if he were returned to the wider community.
The Applicant said that whether or not he gets out of detention, he will continue to do counselling and drug and alcohol programs.[100] Odyssey House provides a range of day programs and treatment options including Counselling, Alcohol and Other Drugs Recovery Groups and Mental Health Recovery Groups. I take it that the Applicant would be able to access these programs online as he has been accessing counselling online.
[100] Transcript, page 65, lines 32 to 34.
Two things that stand out about the Applicant’s engagement in rehabilitative programs and counselling since entering immigration detention are that he only started in 2020 despite having been there since 2017, and apart from a flurry of engagement with Odyssey House and an online anger management course before the hearing of this matter, his efforts have been inconsistent.
The Applicant was asked if he had faced any stressful situations in immigration detention and if so, how he had dealt with them. He said there is a challenge every day “all different type of people here, you know. People say hurtful words to me nowadays and I just put my head down and I walk away”.[101] I accept that the Applicant does not appear to have engaged in aggressive behaviour in immigration detention since August 2020, so it may be that he has become somewhat better at walking away rather than being aggressive. It is also relevant that he is in an environment where there is more structure and surveillance than the wider community and where alcohol is prohibited.
[101] Transcript page 66, lines 12 to 14.
Future plans
If the Applicant is granted a visa, he will live with Ms B and rely on support from her and Ms D who lives very close by. In addition to the difficulties between the Applicant and his family members that I have already mentioned, on 7 November 2018 the Applicant told a mental health nurse that he felt misunderstood by his siblings. He indicated that they had tried to help over the years, but he felt they had distanced themselves from him as he was the only one still trying to make contact. He said that even when he was in prison they did not visit him much or support him financially.[102] I accept that in recent years things have improved with respect to Ms B and Ms D.
[102] Exhibit R3, S10, page 184.
Ms B provided letters of support and gave evidence in the hearing. She described the Applicant as her best friend and someone she talks to when she needs help. In August 2019 she wrote that she had been in contact with him for the last couple of months and that he had demonstrated willingness to help young people who are in his position and said he wanted to study youth work and give back to the community through youth work and advocating for mental health. She thought he was a changed person. This was before the two of the incidents in immigration detention and only a few months after the Applicant had been caught with contraband (suboxone).
Ms B lives in a town in South Australia. She is a single mother of two young children aged two and four years (at the time of the hearing), and she works full-time.[103] She has offered to accommodate the Applicant and to pay for his transport and support him financially until he gets a job. She will help him to get a job at a local mushroom farm.[104] The last time the Applicant saw Ms B was at her wedding in 2016. He said he is the youngest of the siblings and she is the second youngest, and they understand each other.
[103] Transcript, page 69, lines 1 to 8.
[104] Exhibit A4.
Ms D provided a letter of support and gave evidence in the hearing. In August 2019, she said he had a golden heart and asked for a second chance for him “because with the right people around him, [he] can thrive to be best I know he can be”.[105]
[105] Exhibit R1, T13, page 152.
The last time the Applicant saw Ms D was at Ms B’s wedding in 2016. The Applicant stayed with Ms D for two days.[106] She is now a single parent. She thinks she could help the Applicant get a job at the local meatworks.[107] She lives close to Ms B and would support her if the Applicant came to live with her. She was asked what she would do if the Applicant started drinking or acting in a violent manner. She said she would talk to him as his big sister and if that did not change anything, she would report it to the police.[108]
[106] Transcript, page 109, lines 23 to 25.
[107] Transcript, page 112, lines 40 to 44.
[108] Transcript, page 114, lines 12 to 20.
The Applicant is not in contact with Ms A and does not want anything to do with her. This removes any immediate or medium-term risk that he would offend against her again. According to the Applicant he could not rely on Mr M for support.[109] No other family members or relatives have pledged their support, although a cousin has arranged a job opportunity for the Applicant (see below).
[109] Transcript, page 19, lines 25 to 28.
Ms B will impose rules on the Applicant while he lives with her. He will have to find a job, obey the law, refrain from drinking and smoking in her house and “no fighting, no nothing because I don't want that around my children”.[110] She said the Applicant had agreed to abide by those rules. She said if she thought the Applicant was going out drinking or not obeying her rules, she would talk to him. She said:
“Like he's a grown up person, so you can't really prevent and tell a person not to do stuff but you just have - if he gets out of hand the next thing I had a talk with him that ‘You can drink but you have to know your limit. You can’t just get wasted. So you need to know your limits and you can just’ – I’m not a drinker so I don't really know how - people know their limit but I would (indistinct) put that there”.[111]
[110] Transcript page 69, lines 13 to 29.
[111] Transcript, page 70, lines 20 to 31.
When asked if her view was that it is the Applicant’s responsibility to make sure he behaves himself, but that she would have a talk with him about it if she thought he was going wrong, she agreed.[112]
[112] Transcript, page 70, lines 37 to 40.
The Applicant claimed that he is working hard to leave the past behind him, and he will keep working hard. He said he has a lot of respect for his sisters, Ms D is like a mother to him and Ms B is like a best friend. He would never do anything to “hurt them or piss them off or shame them or anything like that”.[113] He wants to be a good role model for his sisters’ children.[114] He claimed that every time he went to live with them, he never drank, smoked, took drugs, fought anyone or got into trouble with the police.[115]
[113] Transcript, page 118, lines 44 to 46.
[114] Transcript, page 119, lines 5 to 6.
[115] Transcript, page 119, lines 1 to 5.
However, the only evidence of the Applicant living with either of them since arriving in Australia is one week with Ms D in 2012 and two days with her in 2016. Even if there were other periods that the Applicant did not bring to the Tribunal’s notice, they must have been temporary, and they did not stop the Applicant from living an unstable lifestyle and offending over the long term.
Following from that point, the Applicant initially did have the support of family members. Mr M, Ms A and Ms D were all prepared to have him live with them at various times if he adhered to some basic courtesies and standards of behaviour. He chose not to. He still believes he exercised good judgment when he went against Ms D’s wishes and attended a party without her husband’s permission. While it might now be the Applicant’s genuine intention to abide by Ms B’s rules, he has a very poor record and I think there is a substantial risk this this would not last.
Ms B is of the view that the Applicant’s behaviour is largely his responsibility. Realistically it has to be as Ms B is a single mother of two very young children and she works full-time. She cannot police the Applicant when she is at work or when he is outside the home. Most of his alcohol consumption and offending occurred outside the family home when he lived with family. As Ms B lives in South Australia, the Applicant would be well away from his previous peer group, which would make it easy for him to avoid them, but that will not stop him from connecting with others who condone or encourage the lifestyle the Applicant lived in the wider community. Further, Ms B conceded she has little knowledge about alcohol, and she evidently believes that the Applicant could drink responsibly whereas all the evidence indicates that he cannot.
Although Ms D lives very close to Ms B, it is not apparent how much support she could provide. Without meaning any criticism of her, because she has done a lot for the Applicant and appears to mean well, she gave evidence that any violent behaviour would first be addressed by speaking with the Applicant and if it happened again she would contact the police. That means he could potentially commit two separate acts of violence before she would notify the police. Her position is understandable, but when the Applicant commits acts of violence they can be quite serious.
In terms of employment, the Applicant will try to get a job in the town where his sisters live. He said if he could not do that he could work in the wool industry in Wagga Wagga (New South Wales) and stay with Ms B when he gets time off.[116]
[116] Transcript, page 60, lines 1 to 30.
When asked what he would use to medicate himself if he did not use alcohol, he said work, maybe studies or maybe start a YouTube page to keep him at home. He thought if he could not get a job, he could live off a YouTube page.[117] When it was put to him that those are distractions and that he had previously said alcohol helped him deal with his trauma, he said:
“I don't have that trauma any more, you know. I locate it, I found out what was making me easily angry before and what made me drink, you know. I've realised - I have realised what it was, and I got rid of it, you know.”[118]
[117] Transcript, page 64, lines 27 to 35.
[118] Transcript, page 64, lines 35 to 39.
He said he was previously unhappy because he did not have parents whereas other people do, but now he is going to stop crying about it and do positive things in life.[119] His positive attitude in this regard is a start but I am not convinced that the Applicant does not need further treatment with respect to his background given the expert evidence, which I will get to. I note that the Applicant is suffering depression and anxiety due to his prolonged detention and thoughts that he might be detained indefinitely. He is now taking prescribed medication for anxiety and insomnia.[120]
[119] Transcript, page 64, line 40 to page 65, line 5.
[120] Exhibit R3, pages 202 and 229.
I am satisfied that the Applicant would probably find employment at the mushroom farm or the meatworks in his sisters’ hometown. I accept this would be stabilising and fill in some of his time productively. He has only held employment previously for between one and two years, so it remains to be seen how long he could stay in a job.
Risk assessments
Several people provided opinions about the risk that the Applicant will re-offend.
The learned Magistrate who convicted and sentenced the Applicant in April 2017 for the assault on the person whose phone was stolen said the following to the Applicant:
“[You] are a significant threat to the community in relation to your particular actions and functioning within the community, in terms of the way that you mete out violence towards other people.”[121]
[121] Exhibit R4, S44, page 119.
I respectfully give His Honour’s opinion significant weight. His Honour presided over the trial and was privy to the details of the offending, and he was aware of the Applicant’s history in the criminal justice system.
In his revocation request in July 2017, the Applicant had said “I’m turning my life around I won’t reoffend or do any crime anymore whatsoever, I’m a change (sic) man”. He said there was a zero chance of him offending again because he sees everything clearly and regrets everything that brought him to jail, he wants to turn his life around and get his family’s trust and love him again.[122] Yet, he engaged in some aggressive and insubordinate behaviour in immigration detention.
[122] Exhibit G1, G6 page 40.
Several lay members of the community provided letters of support for the Applicant. The Applicant’s 16 year old niece, who is the daughter of Ms D, provided letters of support in which she described the Applicant in very positive terms while acknowledging that whenever he came to visit her family in South Australia, he was a completely different person to the one who associates with the wrong crowd and commits crimes. She said she speaks with him regularly and he expresses his remorse for his offending. I accept that the Applicant has behaved well when visiting Ms D’s family and that he has expressed remorse to his niece.
Ms Becroft of the Blacktown Youth Services Association (“BYSA”) also provided two letters. In the first, she stated that the Applicant first engaged with the BYSA after arriving in Australia and it became quite evident that he was living with the effects of complex and persistent trauma. She has had a number of discussions with the Applicant regarding “the offences in question” and he expressed great remorse for his actions. He is determined to do everything in his power to make positive changes in his life to be a better friend, brother and member of the community. She said the Applicant demonstrated a strong passion for his community and supporting other young people to foster their passions and potential. This letter was dated 3 March 2020.[123]
[123] Exhibit R1, T23, pages 216 to 217.
In the second, also dated in March 2020, she indicated the ways in which the BYSA can assist the Applicant in the community. The BYSA ensures basic needs are met first before developing strategies to address the more complex challenges young people face. The BYSA provides them with food, hygiene products and clothing and build relationships that make them feel safe and cared for. Once their basic needs are met, young people are connected with mentors who help them unlock their potential and find their purpose. The BYSA is deeply committed to supporting the Applicant through his transition back to his community. The letter also stated that the Applicant has maintained contact with BYSA throughout his time in Villawood Detention Centre, in all forms of communication he has maintained great remorse for his past actions, and he is dedicated to rebuilding his life with the support of BYSA.[124]
[124] Exhibit R1, T23, pages 214 to 215.
Both BYSA letters were written before the two most recent incidents in immigration detention and before the Applicant started missing anger management sessions. The confidence Ms Becroft appears to have in the Applicant, with respect, seems very optimistic and is not consistent with the Applicant’s behaviour.
It is not apparent from her letters whether Ms Becroft is aware of all of the Applicant’s offending. Further, for all the good intentions of the BYSA and the admirable services it provides, the Applicant’s involvement with the BYSA over the years did not stop him from engaging in anti-social and criminal behaviour. I accept that the BYSA offers the services described in these letters however I am not convinced that the Applicant would access those services and whether it would be effective if he did.
A person who described himself as having been the Applicant’s friend for 11 years provided a letter in which he said the Applicant “feels very regretfully and remorseful” about his violent actions and he is ready to move on with his life and prove his worth to society. This friend offered to help the Applicant obtain employment in the sheep industry (where he works) in Wagga Wagga.[125] I accept that the offer to help the Applicant is genuine, but I give the rest of the letter little weight as the writer does not display good knowledge of the Applicant’s offending or give a sound basis for his belief that the Applicant has reformed.
[125] Exhibit A2.
Another friend of the Applicant, an electrician who works with a cousin of the Applicant, provided an email confirming that he would offer him an apprenticeship.[126] I accept that this offer is genuine, although the Applicant does not plan to take it up.[127]
[126] Exhibit A6.
[127] Transcript page 60 lines 38 to 42.
A few other people provided letters of support but they did not display good knowledge of the Applicant’s offending, so I give their evidence little weight.
Dr Gary Banks interviewed the Applicant in May 2021, at the Respondent’s request, for the purpose of conducting a risk assessment. Dr Banks noted that the missed counselling sessions in 2020 overlapped to an extent with the most recent period of considerable depression that the Applicant had experienced.[128] He opined that depression - not seeing a light at the end of the tunnel after so many years in detention - would have been a significant reason for his non-attendance.[129] I accept that the Applicant would be less depressed if he were in the wider community and therefore his mental health would be less of a barrier to engaging in rehabilitative therapy. However, Dr Banks pointed out that as the Applicant has never before engaged in long term counselling, so he does not understand the greater benefit of it. He indicated that this would be a challenge for the Applicant in terms of engaging in treatment in future.[130]
[128] Exhibit R3, S11 page 221 to 238.
[129] Transcript, page 82, lines 26 to 33.
[130] Transcript, page 83, lines 12 to 20.
Dr Banks thought the Applicant exhibited little to no ability for distress management, and currently relied on cigarettes and avoidance. He recommended targeted individual cognitive behavioural therapy which, if successful, would dramatically reduce stress reactivity as a risk factor for recidivism.
Dr Banks noted that the Applicant thought he was harshly done by with respect to the incident with the shopkeeper because he perceived racism, and that he put forward the incident where he took the victim’s possessions in the context of him rising to someone else’s defence, and that this showed limited insight. He thinks the Applicant still needs a lot of work and development.[131]
[131] Transcript, page 89, line 45 to page 90, line 7.
Dr Banks described the Applicant as remorseful and cognitively capable of self-improvement, but he had thus far been incapable of realising this. In his opinion, without the supports that the Applicant expects to have in the community, principally Ms B, Ms D and employment, the Applicant remains at a medium/high risk of re-offending. With that support, his risk of recidivism would fall significantly.[132]
[132] Exhibit R3, S11, page 235; Transcript, page 86, lines 25 to 27.
Dr Banks said he would like some sort of systemic oversight for at least 12 months, if not 24 months, not dissimilar to a good behaviour bond or a parole mechanism of some form where there is a regular reporting element and someone checking on the Applicant.[133] There is not a mechanism for this to happen: if the Applicant is granted a visa he will simply be returned to the community. Dr Banks considered that there would be some oversight through Services Australia because the Applicant would have to engage with a job network to keep his income support payment.[134] However that oversight would be limited to efforts relating to securing employment and it would end if the Applicant were to secure full-time employment. In relation to employment, Dr Banks pointed out that it would have to be structured to be beneficial, with the critical issue being for the Applicant to demonstrate that he can be a reliable, constructive, pro-social individual in the community day after day after day. In that sense relying on a YouTube channel for his income would not help.[135]
[133] Transcript, page 87, lines 39 to 44.
[134] Transcript, page 92, lines 33 to 46.
[135] Transcript, page 90, lines 12 to 28.
Dr. Emily Kwok interviewed the Applicant in September 2021. She diagnosed the Applicant with an Adjustment Disorder with symptoms of depression in response to his current situation. She opined that he had begun to acknowledge his need for treatment and has demonstrated a willingness to comply with treatment through his participation in counselling in immigration detention. She referred to an IHMS clinical record dated 27 May 2020 which suggests that he was also compliant with his medication regime and improvements were seen in his sleep, appetite, and mood. She noted, however, that the controlled and structured environment he is in has enabled him to consistently engage in intervention.
She saw a need for further therapy in the form of engagement with STARTTS and individual cognitive-behavioural therapy that includes a component to help with decision making, consequential thinking and emotional regulation. She thought the Applicant would benefit from separate drug and alcohol counselling for relapse prevention.
Dr Kwok indicated that the Applicant’s successful reintegration into the community would include, but not be limited to, forming and maintaining prosocial friendships, finding suitable employment, engaging in prosocial recreational activities, and reaching sufficient psychosocial wellbeing that allows him to cope with general social interactions. In addition, she recommended supervision through Corrective Services. She opined that without that support, the Applicant would likely fall back on drug and alcohol use as a coping mechanism.[136]
[136] Exhibit A8.
She assessed the Applicant’s risk of re-offending as moderate without appropriate intervention.[137]
[137] Exhibit A8.
Conclusion as to risk of re-offending
The Applicant has repeatedly committed serious offences and shown a disregard for the administration of justice. He was given the benefit of many lenient sentences, some with supervision and support attached to them. He did not make good use of those, and he continued to offend. Nor did he make good use of his various siblings’ preparedness to provide accommodation and other support over the years. Periods of imprisonment and alienation from his family did not deter him from his anti-social lifestyle. Even after the cancellation of his visa he engaged in aggressive behaviour in immigration detention. He has recently engaged in supportive counselling and an anger management program. This is a good start but both Dr Banks and Dr Kwok think he needs much more rehabilitative work.
That is also my impression given some of the attitudes and beliefs the Applicant displays. For example, when he was in the community, he was quick to accuse the police and others of racism, apparently with no recognition of the fact that they were responding to his behaviour, not his race. That attitude does not seem to have changed. Another is his propensity to take offence if someone reacts reasonably to his unreasonable behaviour. Examples can be found in his treatment of the police and his belief that his family members contributed to his offending because they removed him from their homes when they had removed him because of his behaviour. Yet another concerning attitude is that it was appropriate to use suboxone without a prescription rather than request medication to assist with his sleep while in detention. These attitudes are all anti-social and conducive to further offending.
In the hearing, the Applicant said he took responsibility for his offending, and both psychologists said he did. However, Dr Banks described it as “almost conditioned”.[138] Throughout the Applicant’s evidence, he blamed other people including the victims of his offending and the police. He even blamed the criminal justice system for his decision to perjure himself in a trial, claiming that he would not have been believed had he told the truth. When discussing the incident when he kicked at police officers several times and struck one in the elbow and hip, he said did not mean to hurt the police when he kicked out. This suggests that he does not fully recognise cause and effect or take moral responsibility for the harm he causes. I asked the Applicant if he thought intoxication was an excuse for his behaviour. He said, “It’s only a little bit of it, you know, but not fully, you know”. Given he chose to consume alcohol, his attitude that intoxication can take some of the blame, again, indicates a failure to fully accept moral responsibility for his behaviour.
[138] Exhibit R3, S11, page 230.
Consistent with what Dr Banks said, my impression is that the Applicant regrets his predicament and wants to turn his life around but he lacks the requisite maturity and judgment to do it, whether that be due to his unfortunate childhood or other reasons. His apparent acceptance of responsibility seems superficial. I am not satisfied that he fully holds himself accountable for his decisions and his actions or that he would in future.
Dr Kwok was asked if it reflects a lack of insight or lack of remorse if the Applicant continues to believe that he was the victim in respect of the family violence incidents. She said it suggests a lack of insight. She said studies show, and she has seen in her practice, that insight and remorse have a direct relationship with future compliance with treatment and treatment responsiveness. In that way, it has an indirect relationship with re-offending.[139] This does not give me confidence that the Applicant would engage in, and stick with, all of the interventions that Dr Banks and Dr Kwok consider necessary to lower his risk of re-offending.
[139] Transcript, page 32, lines 35 to 39.
In summary, I broadly accept the risk assessment of Drs Banks and Kwok. That is, without the intervention and supports that are recommended, there is at least a medium risk of recidivism. I have noted my concerns about how much the Applicant’s sisters could really do to support the Applicant, whether the Applicant could maintain employment, how effective the counselling he has undergone has been, whether he would be sufficiently committed to engage in the required rehabilitative therapies to address his underlying trauma, anger and alcohol abuse issues, whether he would in fact abstain from alcohol and avoid anti-social peers if he is granted a visa and the fact that he will not be under any kind of structured supervision such as parole. Presently, there is a real and substantial risk that the Applicant will commit further offences of the kind he has previously committed.
CONCLUSION
As stated above, the harm from further offending would be substantial, and there is a real and substantial risk of that happening. I am satisfied that the Applicant poses a present and serious risk to the Australian community. I am satisfied, on reasonable grounds, that having been convicted by a final judgment of a particularly serious crime, he is a danger to the Australian community. Accordingly, applying subsection 36(1C)(b) of the Act, he does not satisfy the criteria for a protection visa. Given that finding, it is not necessary to consider subsection 36(2C)(b) of the Act, but for completeness I note that because of that provision, the Applicant does not satisfy s 36(2)(aa) of the Act.
DECISION
The Tribunal affirms the reviewable decision.
I certify that the preceding 192 (one hundred and ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
.................................[SGD].......................................
Associate
Dated: 14 October 2022
Date(s) of hearing: 11, 12 and 13 October 2021 Applicant: By Videoconference Counsel for the Respondent:
Solicitors for the Respondent:
Mr J Byrnes
Minter Ellison
ANNEXURE A – EHXIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G17 paged 1 to 121)
R
-
12 July 2021
R1
Section 37 T Documents (T1 to T34 pages 1 to 292)
R
-
16 February 2021
R2
Respondent’s Statement of Facts, Issues and Contentions
R
12 July 2021
12 July 2021
R3
Summonsed Records for 2020.8675 (S1 – S12)
R
-
12 July 2021
R4
Summonsed Records for 2018.4117 (S1 – S60)
R
-
12 July 2021
R5
Audio Recording of DHA Case Officer Interview
R
17 December 2018
21 July 2021
R6
Respondent’s Post Hearing Submissions
R
16 November 2021
16 November 2021
A1
Statement of the Applicant
A
-
27 September 2021
A2
Statement of A Gwanda
A
-
29 September 2021
A3
Statement of the Applicant’s Niece
A
23 June 2021
24 September 2021
A4
Statement of Ms B
A
23 June 2021
24 September 2021
A5
Statement of I Umar (1 Email)
A
25 September 2021
26 September 2021
A6
Statement of N Albatat
A
24 September 2021
26 September 2021
A7
Psychological Report from Claudia Herrero
A
13 September 2021
24 September 2021
A8
Psychological Report from Dr Emily Kwok
A
24 September 2021
24 September 2021
A9
Certificate of Completion - Anger Management 101
A
21 September 2021
26 September 2021
A10
Letter from Odyssey House NSW Community Programs
A
5 November 2021
5 November 2021
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Causation
-
Intention
0
3
0