Fonoti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 866
•13 April 2021
Fonoti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 866 (13 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0407
Re:Lillia Deborah Fonoti
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:13 April 2021
Place:Brisbane
The decision under review is affirmed.
...............................[SGD].........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Clegg v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3383
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
International Covenant on Civil and Political Rights (16 December 1966)
Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011)
Table of Contents
REASONS FOR DECISION
ISSUES
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Applicant’s views
Respondent’s contentions
Application of factors in Paragraph 13.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Relevant questions about the Applicant’s risk of recidivism
1. Has the Applicant experienced any deterrent effect from the sentencing process through which she has passed to date?
2. Has the Applicant heeded prior warnings?
3. Has the Applicant been rehabilitated to any demonstrable and safely reliable degree?
4. Are the Applicant’s mental health diagnoses informative of her risk of recidivism?
Findings about recidivism
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s SFIC
The Respondent’s SFIC
The Applicant’s other written evidence
The Applicant’s oral evidence at the hearing
The Applicant’s mother’s oral evidence at the hearing
The Applicant’s father’s oral evidence at the hearing
Other relevant aspects of the evidence
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
A further Other Consideration raised by the Applicant – international human rights obligations
Findings: Other Considerations
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
13 April 2021
Lillia Deborah Fonoti (the “Applicant”) is 33 year old citizen of New Zealand. Movement records current to 6 March 2020 indicate she moved in and out of Australia as follows:
Time in Australia Arrive Depart Days Years 4 February 1997 18 December 1999 1047 2 yrs 10 mo 8 January 2000 14 May 2012 4510 12 yrs 4 mo 18 May 2012 17 August 2012 91 0 yrs 3 mo 14 September 2012 14 September 2012 0 0 yrs 0 mo 14-Oct-12 13-Sep-17 1795 4 yrs 11 mo 20-Dec-18 31-Mar-21 832 2 yrs 3 mo
The Applicant was 8 years old when she first arrived in Australia, and has spent a total of 22 years and 8 months here. Since her first arrival, she has only been absent from Australia for a total of something like 546 days.
The Applicant has a lengthy criminal history which can be tabulated as follows, with particular reference to its timing and frequency:
Offending in New Zealand First court date Last court date Timespan Court date count Frequency
(court dates/year)2 March 2018 7 August 2018 0 5/12 3 6.93 First offence Last offence Timespan Offence Count Frequency (offences/year) 22 November 2017 10 June 2018 0 7/12 12 21.91 Offending in Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)4 September 2001 27 February 2020 18 6/12 23 1.24 First offence Last offence Timespan Offence Count Frequency (offences/year) 14 June 2001 6 August 2017 16 2/12 49 3.03 First conviction Last conviction Timespan Conviction Count Frequency (convictions/year) 14 June 2007 27 February 2020 12 8/12 37 2.91
In terms of offences in New Zealand, the Applicant’s criminal history includes 12 offences, dealt with on 3 separate court dates. This New Zealand criminal history involves a variety of offences including (1) assaults; (2) trespass; (3) failure to answer bail; and (4) breaching court release conditions.
In terms of offences in Australia, the Applicant’s criminal history includes 49 offences for which 37 convictions were recorded. The offences were dealt with on 23 separate court events. The Australian criminal history involves a variety of offences including (1) unauthorised dealing with shop goods; (2) wilful destruction of property; (3) assaults (including assaults occasioning bodily harm, and against a person over 60); (4) contraventions of domestic violence-related orders; (4) contraventions of police directions or requirements; (5) wilful damage of police property; (6) obstructing police; (7) public nuisance; (8) failure to appear in accordance with a bail undertaking; (9) stealing; (10) drunk or disorderly conduct in a licensed premises; (11) wilful damage; (12) stealing; and (13) a variety of drug-related offences.
On 20 March 2021, the Applicant was serving a full-time sentence of imprisonment. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the “Act”). The Applicant was notified of the cancellation on the same day.
The Applicant, through her then representative, requested that the mandatory cancellation of her visa be revoked. A delegate of the Minister decided not to revoke the mandatory cancellation and the Applicant was notified of that decision on 19 January 2021.[1] The Applicant then lodged her application with this Tribunal on 27 January 2021.[2] To the best of my understanding, neither party is agitating any procedural or jurisdictional argument.
[1] Exhibit G1, G2, 9.
[2] Exhibit G1, G1, 3–8.
A hearing by video link proceeded before me on 22 March 2021. The hearing received oral evidence from the Applicant, her father, and her mother.
The Tribunal also received written evidence. The written evidence was compiled into an agreed Exhibit List, a true and correct (anonymised) copy of which is attached to these Reasons and marked Annexure A.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[5] I will address each of these grounds in turn.
[5] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant concedes:
“4. The Applicant concedes that:
(a) the decision to cancel her visa under s 501(3A) of the Act was made according to law; and
(b) she does not satisfy the character test as prescribed by s501 of the Act for the purposes of s 501CA(4)(b)(i) of the Act.
5. The Applicant concedes that, as at the date of the Original Decision, she:
(a) had a substantial criminal record as defined through s 501(7)(c) of the Act;
(b) did not pass the character test as prescribed by s 501(6)(a) of the Act;
was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.”[6]
[6] Exhibit A1, 3–4, [4]–[5].
On any objective view, across the totality of her offending in Australia, judicial sentencing officers have imposed cumulative head custodial terms of five years and eight months.
Therefore, the Applicant does not pass the character test due to her having a substantial criminal record because she has been sentenced to a term of imprisonment of 12 months or more. With the requirements of ss 501(6)(a) and 501(7)(c) satisfied, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[7] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[8]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[7] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[8] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[9] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Applicant’s views
With specific reference to the nature and seriousness of her conduct, the Applicant’s principal contention seems to be that her offending history should be viewed in the context of (1) certain mental health issues confronting her and (2) the inadequacy of her treatment for those issues contemporaneous with her offending.[10] More specifically, the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) says the following:
“30. The Applicant concedes that her history of criminal offending, particularly the index offending, must be viewed very seriously given its violent nature.
31. However, it is the Applicant’s submission that her offending history must be viewed in the context of the Applicant’s diagnosis of Schizophrenia which occurred subsequent to the index offending, and therefore was not being treated at the time of the index offending.”[11]
[Internal citations omitted]
Respondent’s contentions
[10] See Exhibit A1, 8, [29].
[11] Exhibit A1, 8, [30]–[31].
After application of the relevant factors appearing at paragraph 13.1.1(1) of the Direction, the Respondent arrives at the following contention:
“Accordingly, the Tribunal should conclude that the Applicant's conduct to date has been very serious, and the nature and seriousness of the Applicant's conduct should weigh heavily against the Tribunal in exercising the discretion to revoke the Original Decision.”[12]
Application of factors in Paragraph 13.1.1(1) of the Direction
[12] Exhibit R1, 8, [38].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Those factors comprise:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There is nothing before me which indicates that the Applicant has ever been convicted of a crime of a sexual nature.
The Applicant has seven convictions for offences of a violent nature committed in New Zealand. From her criminal history in Australia, it is possible to glean that the Applicant has at least five convictions[13] for offences involving the commission of violence. They comprise:
·(a) Assaults Occasioning Bodily Harm (committed on 30 November 2009);
·(b) Assaults Occasioning Bodily Harm (committed on 30 November 2009);
·(c) Assaults Occasioning Bodily Harm (committed on 14 December 2009);
·(d) Assaults Occasioning Bodily Harm (committed on 6 August 2017);
·(e) Serious Assault Person over 60 (committed on 3 September 2019).
[13] Note: My reading of the criminal history points to a more likely eight convictions for this type of offending.
Relevant examples of the violent nature of the Applicant’s offending comprise the following:
·There is a conviction for the commission of a serious assault against a person over the age of 60. The offence was committed on 3 September 2019 and occurred when, while being detained at the Redcliffe watch house, the Applicant attacked a 60 year old nurse in a hospital. The nurse was administering medication to the Applicant. The Applicant was restrained by hospital staff while the drug was administered. After the drug was administered, the Applicant struck the nurse in the back of her head while the nurse’s back was turned;[14]
·There is a further conviction pursuant to s 339(1) of the Criminal Code Act 1899 (Qld) (“the Criminal Code”) for assault occasioning bodily harm. The victim of this violence was a SERCO officer working in a detention facility in which the Applicant had been detained. The offending arose from the Applicant’s intention to light and smoke a cigarette in the detention facility. The first victim sought to advise the Applicant that smoking was not allowed in the facility whereupon the Applicant punched that victim with a closed fist;[15]
·There is a further conviction for common assault pursuant to s 335 of the Criminal Code. This was violent offending, committed while the Applicant was in an immigration detention facility. It occurred when the Applicant was placed in an interview room at the Brisbane Immigration Transit Accommodation facility. In the course of dealing with the Applicant, officers approached her to remove certain restraints from her wrists when she tried to remove the restraints herself by looping them over her foot. When the relevant officer sought to intervene, the Applicant drew back her leg and kicked the victim in the chest. She was given a notice to appear at the Brisbane Magistrates Court to answer a charge of one count of common assault;[16]
·On 19 April 2010, the Applicant was convicted on a charge of assault occasioning bodily harm. The victim of this attack prepared a victim impact statement, a copy of which appears in the material.[17] It suffices to record both the unexpected, gratuitous and violent nature of this attack as it appears in the victim impact statement:
“While I was crossing Ann Street onto Brunswick Street, I felt a strong impact on my face, which was a punch that made me bleed straight away. I couldn't even talk properly because too much blood started to come out of my mouth uncontrollably. I got so dizzy that I stayed in the middle of the road when it happened. I could not react. I could not defend myself because of the total unexpected way it happened. I remembered I was just too dizzy and started thinking that what had just happened to me could not be real! And what was the reason I received that hit? "Why? I don't know what wrong I did to that girl for to receive such attack?"”[18];
·The Applicant has convictions for multiple breaches of domestic violence orders and at least one of them involves infliction or threatened infliction of very serious violence. One example of such offending occurred on 3 May 2017. Her conduct towards her mother was both threatening and abusive. It involved the Applicant threatening to kill herself and her child, then eight years of age. This threat was made in the presence of the aggrieved mother and the child. The police records further note that the aggrieved mother “[…] was in fear [the Applicant] may carry out her threats”;[19]
·On 27 May 2017, the Applicant was charged with an offence pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”). This offence arose from the Applicant verbally abusing police officers who were trying to place her into a police vehicle. In the course of this attempt, a physical struggle ensued whereupon the Applicant struck a police officer in the nose with her knee causing discomfort to that officer.[20]
[14] Exhibit G1, G2, 68–69.
[15] Exhibit G1, G2, 67.
[16] Exhibit G1, G2, 67–68; Criminal Code Act 1899 (Qld) s 335.
[17] Exhibit R2, 20.
[18] Exhibit R2, 20.
[19] Exhibit G1, G2, 72.
[20] Exhibit G1, G2, 72–73.
The Applicant’s offending has involved the infliction of violence on multiple victims. This unlawful conduct is at once serious, gratuitous, cowardly and significant. It is not a stretch of the evidence to suggest or infer that significantly more serious harm could have been suffered by any of the victims of this violence. I am left with an inescapable conclusion that this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates very strongly in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. I again refer to the Applicant’s conduct on 3 May 2017. On that day, the Applicant was at her residential address at Margate with her eight year old son. The aggrieved party (the Applicant’s mother) told police of the Applicant’s numerous threats to kill both herself and her eight year old son. The relevant police record makes plain the aggrieved mother’s belief that the Applicant “may carry out her threats.”[21]
[21] Exhibit G1, G2, 72.
Upon attending the scene of the incident, police eventually located the Applicant in a nearby park and questioned her about her abovementioned threats of harm to herself and her son. The police record makes it clear that:
“The defendant stated that she had threatened to kill herself and her child […] in the presence of the aggrieved [Mother] and [Child]. The defendant stated she was currently suffering from mental health issues and was seeking help from the aggrieved [Mother] however feels she didn’t seem to care.”[22]
[22] Exhibit G1, G2, 72.
During cross-examination, the Applicant was asked about the incident giving rise to this offending. She agreed that it occurred and then appeared to be not further interested in entertaining any questions about it:
“Ms Law:[23] Yes. And so, it looks as though, as I read down this page, about halfway down, that your mother had said that you made numerous threats to kill yourself and your son, whilst in the company of the son. Do you agree that that occurred?
[23] Rachael Law, Senior Lawyer, Clayton Utz, legal representative for the Respondent.
Ms Fonoti: Yes, maybe, yes.
Ms Law: And so, why were you having these verbal disagreements with your mum at this time?
Ms Fonoti: Because she’s pretty fucking controlling.
Ms Law: Yes. And how do you say that she is controlling of you?
Ms Fonoti: Just in general, I don’t know man, what’s the next question?
Ms Law: Do you think that your mother was overreacting?
Ms Fonoti: What’s the next question?
Ms Law: Do you think that your mother was overreacting in having police involved in the arguments - - -?
Ms Fonoti: No, I don’t, (indistinct), no, I don’t.
Ms Law: Yes, okay. And - but do you understand that there is one domestic violence order that lists your son on that?
Ms Fonoti: Yes, yes, yes. Are we nearly done?”[24]
[24] Transcript, 17, lines 5–22.
I again refer to the abovementioned incident summarised by the victim in her victim impact statement. The extent of the violence the Applicant committed upon this female victim is graphically described in the victim impact statement:
“The pain was extremely intense. I looked at my little mirror in my bag and noticed a gap in my inferior teeth. I remember my friends cleaning my chest, shoulders and arms. The front of my dress became covered with my own blood that and I could not talk because of the intense pain. When I arrived at the police station I was crying in pain and I checked my mouth and it was already becoming swelled because my lip was split too and the broken tooth was giving me incontrollable pain. I still could not talk because the air that I breathed caused me an intense pain in my tooth. The ambulance took me to the emergency section at Royal Brisbane Hospital where doctors gave me four stitches on the inside of my lower lip and one stitch on the outside. The process of doing that caused me so much pain and soreness; the doctors injected me with many needles and had to open the cut in my lip to see if the other part of my tooth was not incrusted in my skin. They gave me strong painkillers for the moment and I received the Tetanus vaccination and two tables of painkillers for when I felt pain.”[25]
[25] Exhibit R2, 20.
During cross-examination, the Applicant appeared to accept commission of this and other violent offences. She put the offending down to conduct that was “random and emotional”:
“Ms Law: Okay, no, that’s okay. As I continue looking up the page, there’s some more contraventions of obligations but it seems as though you do not recall the specifics of those. We - sorry, second from the top, there’s a wilful damage and an assault occasioning bodily harm in April 2010 - - -?
Applicant: Yes, I did that.
Ms Law: Sorry, they occurred in November 2009?
Applicant: Yes.
Ms Law: Do you - do you remember these ones which I think, for reference, these look to be the first offences for which you received a sentence of imprisonment. So the - - -?
Applicant: Yes, I remember those ones.
Ms Law: Yes. And so, what can you tell us about that particular assault and wilful damage charge?
Applicant: Just that it was random and emotional.
Ms Law: Yes. And do you remember who those convictions - sorry, who those offences were - - -?
Applicant: No, absolutely not, no.”[26]
[26] Transcript, page 13, lines 1–16.
While there is at least one further offence of violence committed against a woman in the Applicant’s history, I am satisfied that the terms of this sub-paragraph (b) are duly engaged as a result of the Applicant’s above-described offending being of (1) a violent nature; and (2) committed against women. As such, this sub-paragraph (b) mandates that the Applicant’s criminal conduct must be viewed very seriously. I so find and, on that basis, this sub-paragraph (b) militates very strongly in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”
I make further reference to the abovementioned offending against a 64 year old female healthcare worker at the Redcliffe hospital. This health worker was performing her duties at the subject hospital when those duties brought her into contact with the Applicant on 3 September 2019. On that day the Applicant was brought to the hospital showing signs of intoxication and hallucination that had been noticed while she was being detained at the Redcliffe watch house. In the course of treating the Applicant, the hospital staff sought to administer a certain drug to her. This involved the Applicant showing signs of aggression and requiring her restraint by security staff of the hospital.
After administration of the drug, the Applicant was released from the firm grasp of the hospital security officers. When so released, the Applicant took it upon herself to “king hit” the 64 year old healthcare worker to the rear of the head with a clenched fist while the health worker’s back was turned. It seems plain that the offending against this victim is squarely caught by sub-paragraph (c) because (1) the attack did involve the commission of a crime; and (2) that crime was committed against a vulnerable and elderly member of the community. I am of the view that this 64 year old health worker does, by virtue of her position as a health worker, qualify as a vulnerable person. And, further, (with due respect to the health worker), she does, at 64 years of age, qualify as an “elderly” member of the community.
There is further unlawful conduct by this Applicant which falls within the ambit of this sub‑paragraph (c). The Applicant has a prolonged history of stubbornly refusing to follow the directives of lawful authority. There is evidence of this sort of offending in New Zealand where her criminal history shows two failures to answer District Court bail and a further conviction for breaching release conditions.[27] In Australia, the Applicant has similar offences that can be particularised as follows:
[27] Exhibit G1, G2, 38.
·14 June 2007 – obstruct police officer (on 31 May 2007);
·31 March 2009 – contravention of lawful direction or requirement – PPRA 791(2);
·12 January 2010 – failure to appear in accordance with undertaking (on 11 January 2010) convicted and not further punished – Bail Act 1980 (Qld) 33(1);
·19 April 2010 – contravention of lawful direction or requirement – PPRA 791(2);
·16 May 2016 – failure to appear in accordance with bail undertaking – Bail Act 1980 (Qld) s 33(1);
·31 May 2017 – assault or obstruct police officer – domestic violence offence – PPRA s 790(1), 47(9);
·31 May 2017 – contravene lawful direction or requirement – PPRA 791(2);
·5 July 2017 – breach of probation order; and
·10 October 2019 – failure to appear in accordance with undertaking – Bail Act 1980 (Qld) s 33(1).
The offence recorded at the sixth of the immediately preceding seven bullet points refers to the abovementioned offence against the police officer which involved the Applicant striking a police officer in the nose with her knee during a physical struggle involving police trying to place her into a police vehicle.
I am satisfied that these examples of the Applicant’s offending fall squarely within the ambit of this sub-paragraph (c). They are “crimes” that have been committed against “vulnerable members of the community (such as the elderly […])”. They are also crimes that have been committed against “government representatives or officials due to the position they hold, or in the performance of their duties”. Sub-paragraph (c) mandates that such offending is to be regarded as “serious”. I am accordingly of the view that this sub-paragraph (c) militates very strongly in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort[28] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[29]
[28] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[29] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
The custodial terms imposed on the Applicant’s offending in both Australia and New Zealand can be conveniently summarised in the following two tables. First, for custodial terms imposed in New Zealand, the following can be noted:
Court Date Offence Imprisonment (months) 2-Mar-18 Common Assault (Crimes Act) Manually 3 2-Mar-18 Common Assault (Manually) 3 2-Mar-18 Wilful Trespass 3 2-Mar-18 Wilful Trespass 3 2-Mar-18 Failure to Answer District Court Bail 3 2-Mar-18 Failure to Answer District Court Bail 3 2-Mar-18 4x Common Assault (Manually) 12 4-May-18 Common Assault (Manually) 0 Total term of imprisonment 2 3/12
Second, for custodial terms imposed in Australia, the following can be noted:
Court Date Offence Imprisonment (months) 19-Apr-10 Wilful damage 6 19-Apr-10 Assaults occasioning bodily harm 12 19-Apr-10 Assaults occasioning bodily harm 12 19-Apr-10 Assaults occasioning bodily harm 12 19-Apr-10 Common Assault 6 31-May-17 Contravention of domestic violence order (Aggravated) and Contravention of domestic violence order 2 27-Feb-20 Assaults occasioning bodily harm AND serious assault person over 60 12 27-Feb-20 Common assault 6 Total term of imprisonment 5 8/12
The custodial terms imposed upon this Applicant are both significant and serious. She is a relatively young woman of 33 years of age. Her offending has been of such severity that it has caused judicial sentencing officers here and in New Zealand to impose head custodial terms of just under eight years of custodial time. This is a significant component of her relatively short life thus far.
To my mind, the above-tabulated sentencing regimes imposed upon this Applicant across the totality of her offending both here and in New Zealand, attract the operative effect of sub-paragraph (d) such as to strongly militate in favour of a finding that the totality of this Applicant’s offending has been of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I again refer to the abovementioned tables demonstrating the frequency of the Applicant’s offending in New Zealand. The following tables are expressed in terms of respective court dates, and in terms of actual offences.
Offending in New Zealand First court date Last court date Timespan Court date count Frequency
(court dates/year)2 March 2018 7 August 2018 0 5/12 3 6.93 First offence Last offence Timespan Offence Count Frequency (offences/year) 22 November 2017 10 June 2018 0 7/12 12 21.91 Offending in Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)4 September 2001 27 February 2020 18 6/12 23 1.24 First offence Last offence Timespan Offence Count Frequency (offences/year) 14 June 2001 9 September 2019 16 2/12 49 3.03 First conviction Last conviction Timespan Conviction Count Frequency (convictions/year) 14 June 2007 27 February 2020 12 8/12 37 2.91
In compiling the above tables, I have been cautious to reach each of the numbers on the basis most favourable to the Applicant. In other words, I have not “double counted” offences which appear multiple times in the criminal history where they occur because of appeal hearings or results therefrom. I also note that in the table relating to Australia, I have specifically distinguished between convictions recorded and offences.
The position with regard to the frequency of the Applicant’s offending is clear from the above tables. She has an offending history in New Zealand which runs for something in the order of seven months. During that time, speaking in average terms, the Applicant found herself before lawful authority on approximately seven court dates dealing with the commission of almost 22 offences (on an annualised basis).
In Australia, for the almost 19 year period of her offending history, the Applicant has found herself before lawful authority on an average 1.24 occasions per year dealing with her commission of offences at the rate of 3.03 offences per year. On the basis of these numbers, there can be no other finding than that the totality of this Applicant’s offending has been committed on a frequent basis.
In terms of any detectable trend of increasing seriousness of the offending, I am of the view that this Applicant’s criminal history in Australia has been consistently serious from its beginning and throughout its course. Very often in matters such as this, the Tribunal reviews criminal histories that often have for their first third or half (in terms of duration) certain summary-type offences or less seriousness offences in the realm of misdemeanours or regulatory offences such as minor level shoplifting.
Regrettably, while certain entries in the early parts of the Applicant’s offending history may contain such offences, her criminal history demonstrates the commission of serious to very serious offences committed by her virtually from its outset. As mentioned, her criminal history, in terms of court sentencing episodes runs from September 2001 to February 2020. As early as September 2001, the Applicant was convicted for “assaults occasioning bodily harm” pursuant to the Criminal Code. There followed convictions for wilful destruction of property in April 2004 and June 2007; there is a conviction for stealing in January 2010 dealt with under the Criminal Code; there are further respective convictions for wilful damage and assaults occasioning bodily harm on 19 April 2010.
This pattern of offending persisted from 2010 onwards such that there are further convictions for stealing on 29 January 2014 and 31 January 2017; for possession of dangerous drugs in May 2017; and for contravention of domestic violence orders; and for further assault-derived offending on 27 February 2020 comprising “serious assault on person over 60”; assaults occasioning bodily harm; and common assault. Interspersed throughout this almost 19-year criminal history are those that may be considered “less serious” offences such as contravening lawful directions or requirements, public nuisance, being drunk and disorderly in public premises, and repeated breaches of bail.
This is not a criminal history that commenced tepidly which then evolved into serious offending. It has been serious from its outset. A consistent level of seriousness, particularly in the realm of violent offences, has been a constant feature throughout its duration. I am of the view that both the frequency of this Applicant’s offending, and its consistent seriousness throughout its duration, militate strongly in favour of a finding that the Applicant’s offending history is very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Several cumulative effects can be gleaned from the Applicant’s offending history. First, it is, to my mind, apparent that the Applicant has failed to experience any deterrent effect from the regime of sentencing that has been imposed upon her throughout her offending history in Australia.
She commenced offending in 2001 as a 13–14 year old. It seems clear from sentences imposed upon her that judicial sentencing officers were cognisant of her young age and lack of previous history. Accordingly, the formative stages of her offending (that is, for its first six years) were punished by non-custodial sentences in the form of (1) no conviction recorded notations with accompanying good behaviour bonds or fines for relatively modest sums; and (2) the recording of a conviction with an accompanying imposition of a fine in a more significant sum with the pending threat of a term of imprisonment in default of payment of that fine.
However, from 2010 onwards, judicial sentencing officers had little option but to impose custodial terms. Very often, those custodial terms were ordered to be served concurrently with other similar sentences. Ultimately, judicial sentencing officers resorted to the imposition of custodial terms for longer periods of time. This can be seen from, for example, respective sentencing episodes at the Redcliffe Magistrates Court on 31 May 2017 and 27 February 2020. On the former sentencing date, the court imposed cumulative head custodial terms of 10 months imprisonment. On the latter date the court imposed cumulative custodial terms of 18 months imprisonment. Thus, it is not possible to understand how this Applicant has experienced any measure of deterrent effect from the sentencing regime imposed upon her between 2001 and 2020.
Second, it is similarly difficult to discern any developed or developing measure of respect she may have for lawful authority. As I have alluded to earlier, she does not respect the protective and preventive nature of domestic violence orders and has repeatedly breached such orders. Similarly, she does not comprehend a lawful obligation that has been imposed on her to, for example, observe the terms of a grant of bail, good behaviour orders, and probation. These orders, while in the first instance compelling her to do or refrain from doing something, also afford her certain privileges and benefits that were granted to her within the discretion of the judicial sentencing officer who made them. She has patently failed to understand this.
Third, she does not seem to have developed any measure of respect for the personal or property rights of others. Members of the Australian community are entitled to feel safe in public places. They are likewise entitled to feel that their property is safe from wanton attack or damage by people not entitled to that property. There are numerous convictions in the Applicant’s history for offences against people. There are at least eight convictions for assault-derived convictions in her history. There are at least six convictions for offences against property, be they stealing per se, or wilful damage of police or other property.
Fourth, there is no denying the predominant role that the Applicant’s history of offending has played on her life – certainly in Australia. As mentioned, she is only 33 years of age. Yet her offending history from the age of 13–14 years onwards is extensive and consistently committed. Apart from a period of seven years (2010–2017) when she held down remunerative employment, her offending has otherwise dominated her life in this country.[30] Its predominant effect on her life has precluded her from any active and “hands on” role in the lives of her children aged 12, and two years, respectively.
[30] Exhibit G1, G2, 130.
Fifth, the impact of the Applicant’s offending on the Australian community is another cumulative effect of her offending. Her offending has caused physical damage and serious physical and other injuries to multiple victims. It has resulted in damage to and loss of property of other members of the Australian community who are lawfully entitled to use and enjoy that property. It has consumed community resources in the realms of law enforcement, the justice system, and medical care system.
I am thus strongly of the view that the cumulative effects of the nature and extent of this Applicant’s repeated offending, both in Australia and New Zealand, attract application of this sub-paragraph (f) in favour of a finding that the totality of her offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. I have looked through the Applicant’s Movement Records and have become familiar with the extent of her movements in and out of Australia from, roughly, February 1997 to December 2018. I have consequently searched through the G Documents (and other material) for any instance of the Applicant’s failure to truthfully or correctly complete an incoming passenger card or equivalent and cannot find any such document or instance of its dishonest or incorrect completion. This sub-paragraph (g) is not relevant to determination of the instant application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. This application contains unique circumstances relevant to this sub-paragraph (h). Stated briefly, those circumstances involve (1) the Applicant receiving (in 2010) a warning from the Respondent to curb her offending ways or to otherwise imperil her visa status; (2) the Applicant continuing to offend; (3) the Applicant’s visa being mandatorily cancelled in 2017; (4) the Applicant voluntarily decamping to New Zealand while the delegate considered her request to have the mandatory cancellation revoked; (5) the Applicant offending in New Zealand; and (6) the delegate making the decision to restore the Applicant’s visa status to her by revoking the original mandatory cancellation decision (also 2017).
In order to properly allocate weight to this sub-paragraph (h) it is necessary to briefly review the terms of the relevant notification documents. In 2010, the warning letter received by the Applicant told her, in very plain terms, the following:
“Dear Ms FONOTI
[…]
On 23 September 2010, the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class TY Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However, the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[31]
[Emphasis and underlining in original]
[31] Exhibit G1, G2, 62–63.
There is nothing in the evidence to suggest the Applicant did not understand the terms of the warning appearing in the letter or that she did not receive it. Despite that warning in December 2010, the Applicant continued to offend. There are at least eight court events (not including the appeal in 2017) that post-date the warning letter dealing with the commission of some 20 offences ranging from assault-derived offending, contravention of duly imposed orders, be they probation orders, domestic violence orders, or bail undertakings. The offending also contains a conviction for stealing together with offences for possession of dangerous drugs. Plainly, the Applicant took little or nothing from the warning letter she received in December 2010.
As mentioned earlier, the Applicant’s offending must have again come to the attention of the Respondent which proceeded, on 16 June 2017, to mandatorily cancel the Applicant’s visa. The Applicant decided to depart Australia while in immigration detention, but nevertheless sought to contest this mandatory cancellation decision. She was successful in that challenge and had her Australian visa status restored to her. She was notified of this decision on 21 November 2017.[32]
[32] Exhibit G1, G2, 64.
Be that as it may, and despite the successful restoration of her visa status in Australia, the Applicant, while in New Zealand, nevertheless embarked upon a fresh pattern of offending which saw her convicted for 12 offences dealt with at three court dates starting in March 2018 and ending in August 2018. Clearly, not even the exercise of going through a visa cancellation process in Australia which, if unsuccessful, could have cut her off from her family, was enough to dissuade her from committing further offences in New Zealand. The letter relaying the successful outcome to the Applicant contained a starkly clear warning to this effect:
“Please note: this decision does not mean that your case cannot be considered again on character grounds. If you come to attention again because of further criminal offending by you, your disregard of this warning will weigh heavily against you.”[33]
[Emphasis and error in original]
[33] Exhibit G1, G2, 64.
There is nothing in the evidence to suggest the Applicant did not understand the terms of the warning appearing in the letter or that she did not receive it.[34]
[34] See Exhibit G1, G2, 66 – signed and dated receipt confirmation by the Applicant.
The movement records indicate the Applicant returned to Australia in December 2018. Upon her return to Australia, the Applicant recommenced her pattern of offending. Not even the process of going through a mandatory cancellation process (albeit successfully) was enough for her to cease her offending. Upon her return to Australia, she found herself before lawful authority on at least two occasions – in November 2019 and February 2020. Those sentencing occasions sentenced her for the following offences:
·Redcliffe Magistrates Court – 10 October 2019:
oFailure to appear in accordance with an undertaking;
·Redcliffe Magistrates Court – 27 February 2020:
oSerious assault on a person over 60;
oAssaults occasioning bodily harm;
oCommon assault.
For the totality of this offending, the Applicant received a cumulative custodial terms of 18 months imprisonment, plus a fine of $300. This continued offending by the Applicant again came to the attention of the Respondent. The Respondent’s delegate did, on 20 March 2020, again mandatorily cancel the Applicant’s visa.[35]
[35] Exhibit G1, G3, 96.
The Applicant has, therefore, been “on notice” to curb her offending ways as a result of two events. In 2010, the Respondent’s warning letter told her to stop offending. She failed to do so. In 2017, her visa was cancelled but restored to her. She was thus “on notice” for a second time to stop offending as is made clear from the abovementioned letter from November 2017 restoring her visa status to her. She did not stop offending. She continued to offend which has now resulted in this second mandatory cancellation of her visa.
No other weight other than a very heavy level of weight is allocable to this sub-paragraph (h) in favour of a finding that the totality of the Applicant’s offending must be viewed very seriously. On any objective analysis, I am hard pressed to see what further, if anything, the Respondent can do to cause the Applicant to curb her offending.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. I have earlier recounted the circumstances of the Applicant’s violent offending against SERCO officers while in immigration detention.
It suffices to say that the relevant records in the material disclose the following other incidents:
·1 July 2020 – the Applicant wanted to smoke a cigarette and upon that request being denied, she “said […] if I don’t get a smoke I will hurt some one”;[36]
[36] Exhibit G1, G2, 76.
·7 September 2017 – the Applicant was found with a suspicious substance: “during the search a paper towel folded was found in one of detainee’s [FONOTI] pants the folded paper towel contained white powder Detainee FONOTI was asked as to what substance this might be in wish she replied she doesn’t now”;[37] [Error in original]
[37] Exhibit G1, G2, 77.
·4 September 2017 – the Applicant “[…] began displaying abusive and aggressive behaviour by kicking the door in the Logan Visits area […]. Detainee FONOTI continued to kick the door yelling ‘Fuck you dog, you fuck off’”. A “code black” response was initiated on the radio;[38]
[38] Exhibit G1, G2, 78.
·11 August 2017 – on this day, the Applicant “Assaulted Detainee Service Officer (DSO) [redacted] by hitting him with the back of her hand towards his face.”;[39]
[39] Exhibit G1, G2, 80.
·5 November 2020 – the Applicant was involved in violent conduct that is described thus in the relevant incident report:
“DSO [redacted] advised Detainee FONOTI that her Clothing Request and Issue Form has to be signed and sent to Property and she will be advised accordingly. The form was given to detainee FONOTI to sign however, at this stage, detainee FONOTI appeared agitated and stated "I don’t know what the fuck is wrong with this fucking place, I have to fucking do every fucking thing here and threw the form and pen at DSO [redacted] after signing the form.
Detainee FONOTI stepped away from the window and returned raising her voice at DSO [redacted] stating "why are you laughing at me you fucking white slut?" DSO [redated] calmly responded that she wasn't laughing at her and tried to calm her down, but detainee FONOTI kept on being aggressive and threatening towards DSO [redacted] stating "do you want to have a go?"[40]
·14 October 2020 – the Applicant became agitated as a result of a further incident involving her not being able to smoke in the detention facility. The following transpired:
“DSO [redacted] called Meriton DSM [redacted] ask the question to which DSM [redacted] stated no, that no detainees are allowed to smoke whilst on external escorts, only when they come back to BITA for their excursion escort.
DSO [redacted] explained to Detainee FONOTI that she could not smoke whilst on escort, then detainee FONOTI proceeded to swear at DSO's [redacted] by stating "Fuck you!” repeatedly aimed at officers. DSO FONOTI [sic] then upturned the table in the lounge room and proceeded to throw things across the room including condiments from the kitchen, tea bags, lunch containers and her activities bag supplied by Serco. Meriton DSM (Detainee Services Manager) [redacted] was on the phone during the incident and overheard it, got the assistance of DSO [redacted] and made their way to Detainee FONOTl's room. At no point in time was a Serco officer hit by any of the items.
DSO [redacted] and [redacted] attempted to de-escalate the situation at all times but Detainee FONOTI was not engaging in any conversation with the DSO's. Meriton DSM [redacted] and DSO [redacted] at Room 7001 at 12:48 hours and DSM [redacted] attempted to interact with Detainee FONOTI to which Detainee FONOTI screamed "Fuck You, Fuck Off!" and other words to that effect. Detainee FONOTJ was not engaging in any conversation with any DSO and was visibly frustrated and upset.”[41]
[40] Exhibit G1, G2, 84.
[41] Exhibit G1, G2, 85.
Date of hearing:
22 March 2021
Applicant:
Self-represented
Advocate for the Respondent:
Rachael Law (Senior Lawyer)
Solicitors for the Respondent:
Clayton Utz
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents
(paged 1–337)(merged version of volumes originally provided 9 February 2021)
R
–
9 February 2021
R1
Respondent’s Statement of Facts, Issues and Contentions
(18 unnumbered pages) with “Attachment A” (7 pages)R
10 March 2021
10 March 2021
R2
Documents Produced under Summons
(paged 1–256)R
–
4 March 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1–15)
A
23 February 2021
23 February 2021
A2
Applicant’s Bundle of Evidence
(paged 1–26)A
–
23 February 2021
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
2
7
0