FYQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 3806
•24 October 2022
FYQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3806 (24 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6377
Re:FYQV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Senior Member Kate MillarDate of Decision: 24 October 2022
Date of Written Reasons: 8 November 2022
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 29 July 2022 to not revoke the cancellation of the Applicant’s visa with a decision that the Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
.....................[SGD]............................... ……………[SGD]…………...
Senior Member Theodore Tavoularis Senior Member Kate Millar
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian 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. 90 – Non-refoulement obligations owed to the Applicant- Tribunal found another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Green v Daniels (1977) 13 ALR 1
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Home Affairs v Buadromo (2018) FCR 320
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Protocol Relating to the Status of Refugees, UNTS 606 (entered into force 4 October 1967)
Table of Contents
Decision
REASONS FOR DECISION
Introduction and background
An Important procedure aspect of this matter
Legislative framework
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
Primary consideration 1 – protection of the australian community
The nature and seriousness of the non-citizen’s conduct to date
Overview of the Applicant’s offending
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
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 (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
Conclusions about risk
(iii) Paragraph 8.1.2(2)(c) of the Direction
Conclusion: Primary Consideration 1
Primary consideration 2: family violence
Primary consideration 3: the best interests of minor children in australia
Identification of the relevant minor children
The parties’ respective contentions
The oral evidence
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary consideration 4: expectations of the australian community
Conclusion: Primary Consideration 4
Other considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
An initial observation: do the impediments apply to this Applicant?
The Applicant’s circumstances
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature, and duration of “other ties” – length of residence
3. Strength, nature, and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community
Further Other Consideration (e): Prolonged or Indefinite Detention
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Decision
Annexure A – Exhibit List
Annexure B – Copy of Khalil decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Senior Member Kate Millar8 November 2022
introduction and background
FYQV (‘the Applicant’) is a 24-year-old male, born in Iran. He turns 25 at the end of this year. His movement history indicates that he arrived in Australia on 2 November 2010 and has not departed Australia since his arrival.[1] Although born in Iran, he subsequently travelled to Afghanistan and obtained confirmation of his Afghani citizenship.[2] He has compiled, in terms of the number of offences committed and number of sentencing episodes, a relatively modest history of unlawful conduct in this country. We will have more to say about the nature and scope of his offending later in these reasons. However, for present purposes his history of offending in this country has involved the commission of some 11 offences that were dealt with at three separate sentencing episodes. It can be expressed thus:
[1] G1, p 239.
[2] Ibid, p 123; see also G1, p 22; see also, G2, p 75
Court Date Offence Result Adelaide Magistrates Court[3] 16 March 2016 (1) Loitering
(2) Disorderly behaviour
(3) Commit theft using force (aggravated offence) (2)
Without conviction
Detention 4 months
Suspended sentence obligation 12 months
Adelaide Magistrates Court 6 October 2016 (1) Fail to comply with bail agreement Without conviction
Dismissed without penalty
District Court of South Australia 21 March 2018 (1) Intentionally cause harm – aggravated offence – other
(2) commit assault – basic offence
(3) cause serious harm to another – aggravated offence – other (2)
(4) serious criminal trespass – residence occupied – aggravated
(5) non-aggravated offence – possess firearm without licence
Sentenced 5 years 10 months imprisonment
Non-parole period 2 years and 10 months
[3] We note the criminal history for this offense records the court that dealt with this offending as the ‘Adelaide CC’. We were not able to allocate a specific court to this nomenclature and therefore presume it is a reference to the Adelaide Magistrates Court.
On 20 March 2019, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s ‘Class XB Subclass 202 Global Special Humanitarian (permanent) visa’ (‘the GSH visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not pass the character test and was serving a full-time custodial sentence. He made representations to the Respondent on 1 April 2019 requesting revocation of this mandatory cancellation decision. On 29 July 2022, a delegate of the Respondent decided that the discretion subsisting in s 501CA(4) of the Act to revoke the cancellation of the decision was not enlivened.[4]
[4] G1 documents, page 10.
On 7 August 2022 the Applicant made application to this Tribunal for review of the non-revocation decision. The Hearing of this matter proceeded before us on 5, 6 and 17 October 2022. The Hearing received oral evidence from (1) the Applicant; (2) the Applicant’s friend, Mr AR; (3) Mr Dart Russell of ‘STTARS[5]; (4) the Applicant’s mother, Ms TM; and (5) the Applicant’s former sister-in-law, Ms PB. The Hearing also received evidence by way of written material which was reduced to an agreed[6] Exhibit List, a copy of which is attached to these reasons and marked ‘Annexure A’.
An Important procedure aspect of this matter[7]
[5] Mr Russell describes himself as a Counsellor/Advocate working with organisation known as ‘STTARS’ which is an acronym for ‘Survivors of Torture and Trauma Assistance and Rehabilitation Service’.
[6] See generally, Transcript, p 2, Lines 12-23.
[7] Note to reader: the procedural discussion under this hearing equally applies to Application 2022/6377 involving s501(1) matter. The only difference is that the 84th day in this matter occurred on 24 October 2022. The 84th day in the s501(1) matter (2022/6376) occurred on 25 October 2022.
The Hearing raised some rather nuanced and novel elements which do not need to be expanded upon here. It suffices to say that the parties agreed to a position whereby the substantive Hearing was conducted on 5 and 6 October 2022 with a further date set down for 17 October 2022 for the making of oral closing submissions. The 84th day in this matter occurred on 24 October 2022. We did not consider we could give the necessary fulsome consideration to the material before us in the relatively brief period between the end of the Hearing (17 October 2022) and the occurrence of the 84th day (24 October 2022).
We therefore caused a short-form decision to be published to the parties on the 84th day to ensure this Tribunal met its statutory obligations pursuant to s 500(6L)(c) of the Act.[8] Attached to these reasons and marked “Annexure B” is a copy of that short-form decision. Our detailed written reasons for that short-form decision now follow.
[8] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
We are satisfied that the Applicant made the 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:[9]
“…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…”[10]
[9] (2018) FCR 320.
[10] 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.
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 defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
On 21 March 2018, at the District Court of South Australia, the Applicant was sentenced to a head custodial term of 5 years and 10 months imprisonment. We have earlier described the nature of the five offences for which the Applicant was convicted on that day.[11] What matters for present purposes is whether or not the Applicant has received a single term of imprisonment of 12 months of more, or in the alternative, whether he has received custodial terms, the cumulative total of which equate to or exceed 12 months. What does not matter is the amount of time he actually served.[12]
[11] See para [1].
[12] See Drake v Minister for Immigration and Ethnic Affairs ((1979) 24 ALR 577, 415-416.
The Applicant fails the character test as he was sentenced to a term of imprisonment for more than 12 months. There does not seem to be any contrary view expressed by either party.[13] Therefore, the only live issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to set aside the decision of the delegate refusing to revoke the mandatory cancellation to the GSH visa. Specifically, this is the abovementioned refusal to revoke decision made on 29 July 2022.
[13] See A2, p 1, para [3]; see also R1, p 5, para [25].
We are satisfied (and find) that the Applicant has a ‘substantial criminal record’ and, on that basis, does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his GSH 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. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) applies to the decision not to revoke the cancellation of the applicant’s visa.[14]
[14] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[15]
[15] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which we must be guided in making a decision.
The Primary Considerations we must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[16]
[16] Direction, paragraph 8.
The Other Considerations which, where relevant, we must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[17]
[17] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
We will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
We will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
Overview of the Applicant’s offending
Prior to applying the relevant paragraphs mandated in the Direction it is necessary to provide a summary of the offences for which the Applicant was convicted and sentenced on 21 March 2018. The initial point to note is that the Applicant was not acting alone. There were, in fact, four accused parties appearing before the South Australian District Court on 21 March 2018. The Applicant was one of those parties.
In the sentencing remarks of the learned Justice Davison DCJ, Her Honour noted:
‘[Applicant], [names of three other co-accused redacted], each of you have been found guilty of the offences of aggravated serious criminal trespass in a place of residence, two counts of aggravated causing serious harm with intent to cause serious harm, one count of aggravated causing harm with intent to cause harm and one count of aggravated assault. You, [the Applicant], have also been found guilty of the offence of possessing a firearm without a licence. [Name of one of the other three co-accused redacted], you are also before the court in relation to a breach of bond, you entered into this bond on 30 April 2015 for the offence of theft and have now breached it by the commission of the offences that I mentioned earlier.
The maximum penalties for these offences are life imprisonment for the aggravated serious criminal trespass; 25 years imprisonment for the aggravated causing serious harm with intent to cause serious harm; 13 years imprisonment for aggravated causing harm with intent to cause harm; four years imprisonment for the aggravated assault; and, in relation to the possession of the firearm without a licence, a $35,000 fine or seven years imprisonment.
The offences that you committed are serious ones. On the evening of [actual date redacted] September 2015 a number of people were in a unit in [actual suburb/locality redacted] watching movies. At about 1 o'clock in the morning you and a fifth unidentified male went into the unit armed with a number of weapons, including a machete, a garden stake, knife, an imitation firearm and metal poles. In that unit you then attacked three of the men. One man sustained numerous stab wounds to his chest and body and received a punctured lung and fractures to the skull and jaw. Another was slashed with a machete resulting in deep facial scarring, the third was stabbed to his upper body. You went into the unit with hoods over your heads and your faces covered with bandanas. You behaved in a terrifying and violent manner towards each of the people in the unit as you perpetrated this vicious series of assaults. As you left the unit, having committed these offences, you were recognised by one of the occupants of the downstairs unit. As you ran past this man, one of you struck him with a blade and another pushed him. Immediately after the attack 000 was called and the police and ambulance arrived. Later that same day you were all arrested. When the police searched your home, [Applicant], they located a white Mitsubishi Magna. Inside that vehicle they located an imitation firearm and in the boot located a number of other items that could have been used in the attack. Also found in the car was a scarf matching the bandanas worn by you and others during the attack.’
I have received a number of victim impact statements. [Victim BC] suffered facial injuries, including nerve and ligament damage, has obvious scarring and a fractured skull and a fractured jaw. He says that the injuries have affected his eyesight and made him sensitive to sunlight. They also make him dissatisfied with the way he now looks. The stress of the event, together with the psychological effects, have led him to see a psychologist. The crimes that you committed against him have left him feeling scared for his own safety and the safety of his family and friends. He is embarrassed about his personal injuries and feels paranoid and stressed.
He has been treated by a psychologist who told him that he is now showing signs of post-traumatic stress disorder. He now avoids crowds and public places where he fears he may see you or your associates.
[Victim JS] says that he is extremely paranoid, especially when he is in public places. He has flashbacks and feels nervous when meeting new people. He finds it hard to trust people in different situations. His confidence has been severely affected and he has been prescribed medication for anxiety and depression. During the course of your assault upon him he received a punctured lung that will now prevent him from joining the defence force. That was something that he wanted to do. He also has a knee injury that could prevent or limit his sporting or working ability. He has had to undergo surgery in relation to his injuries. Your offending has made him feel unsafe to hold his security licence and he is unable to perform simple work procedures. In all, your behaviour has had a significant effect upon him.
Your offending must have been terrifying for everyone who was in the unit that night. They were powerless to fight back against you, were threatened and savagely assaulted by you.’[18]
[Our emphasis]
[18] G1, pp 34-35.
For the sake of completeness it should be noted that each of the four co-accused lodged appeals against their respective convictions. Those appeals came before the Supreme Court of South Australia on 17 May 2018.[19] The learned Appeal Court rejected all grounds of appeal propounded by the Applicant. With specific reference to the Applicant before the Tribunal, the Appeal Court said: ‘I would grant permission to [the Applicant] to amend his notice of appeal. I would grant [the Applicant] permission to appeal on his grounds 1, 2, 3 and 4, but dismiss his appeal.’[20]
[Our emphasis]
[19] G1, pp 45-70.
[20] G1, p 70.
During cross-examination the Applicant was taken to the circumstances of this offending. The following exchange transpired between him and the Respondent’s representative:
‘MR PAPALIA: Are you able to tell the Tribunal, in your own words, what happened on 4 September 2015?
APPLICANT: That was the incident that – at that time, I went along with four other people. Basically, a home invasion happened; people were hurt badly. I was part of that group. We are all responsible at the same level and I took part in that. I take full responsibility for what happened on September 4.’[21]
Also during cross-examination, the Applicant was taken to certain of his additional offences that came before a sentencing court March 2018. It will be recalled that these were the offences described as ‘Commit theft using force (aggravated offence)(2),’ ‘Disorderly behaviour’ and ‘Loitering’. The Applicant was taken to certain material brought before the Tribunal by way of summons. The material comprises a ‘South Australia Police Department Police Apprehension Report’. This report relevantly records the following:
‘*** VICTIM 1***
Victim in this matter [name redacted in original] who states that at about 3.10 am on Saturday the 27th of December 2014 he was walking west on [suburb/locality redacted] with his friend victim 2 in this matter [name redacted in original]. Victim states that as he approached the intersection with [name of street redacted] Street he saw a group consisting of four (4) males including the accused [name of Applicant and his date of birth redacted] and co-accused [names of co-accused redacted in original] in this matter walking towards them. Victim states that the co-accused spoke to him saying "hey guys, how's your night been"? The victim answered but noticed the accused and other two males had encircled them. The co-accused then asked the victim "what have you got on you" in an aggressive tone before punching him to the right side of his face. The co-accused then reached into the victim's pocket, took out his wallet and started going through it. The victim grabbed his wallet back from the co-accused and started to run away from the group. As he was running he collided with Victim 2 [name redacted in original] who was also trying to run away. Victim 1 states he then saw the accused, co-accused and other two males hitting and punching victim 2 while he was still on the ground. Victim attended Port Adelaide Police Station to report this incident. Victim was not injured.
***VICTIM 2***
Victim in this matter is [name redacted in original] who states that at about 3.10 am on Saturday the 27th of December 2014 he was walking from Port Adelaide on [name of locality redacted] with his friend victim 1 in this matter [name of victim 1 redacted in original]. As he approached the intersection of [name of street redacted] Street he saw a group of four (4) males including the accused in this matter [name of Applicant and his date of birth redacted] and co-accused [name(s) of co-accused redacted] walking towards them. Victim states that the co-accused approached victim 1 and was saying "hey how are going? Are you heading into town?" Victim states a brief conversation was had before the co-accused said to him "Do you have any money?" the victim felt threatened and tried to run away colliding with victim 1 [name redacted in original] and falling to the ground. Victim states that the accused and the other two (2) males then started punching and kicking him while he was on his back on the ground. Victim states that after about 10 seconds he shouted "alright, alright, I'll give you the money." The victim was then allowed to get back on his feet and he handed over a $50 dollar note from his pocket. One of the males then states that they had seen more money in his pocket and he handed over another $15 dollars which was also in his pocket. The accused, co-accused and other two (2) males then left walking off down a side street. The victim flagged down a vehicle which drove him to Port Adelaide Police Station. Victim received a 10 cm laceration to the right side of his face and swelling to his right eye.’[22]
[21] Transcript, p 25, lines 41-46.
[22] G3, p 9-10.
With specific reference to this offending, the following transpired between the Applicant and the Respondent’s representative during cross-examination:
‘MR PAPALIA: Your criminal record indicates that you have convictions for two counts of robbery, either on the – well, you have been found guilty for two counts of robbery, either on 27 December 2014 or 27 December 2015. That is the offence date. Are you - - -?
APPLICANT: Which one is it?
MR PAPALIA: This is the two counts of robbery, aggravated theft using force, that you appeared in the youth court of South Australia and Adelaide on 16 March 2016?
APPLICANT: Okay.
MR PAPALIA: Are you able to tell us which date the offences were committed on? Was it 2014 or 2015?
APPLICANT: I think it was 2014 but I could be wrong, I don’t know. In 2014 - - -
MR PAPALIA: In fairness to you, I am going to read out to you the charges - - -?
APPLICANT: Yes, it was 2014 - - -
MR PAPALIA: that the South Australian police - - -?
APPLICANT: I think so. It was 2014, yes. Yes, I am positive.
MR PAPALIA: Just to be clear, these occurred on 27 December at (indistinct words) where you were in the company of someone else and - - -?
APPLICANT: Yes.
MR PAPALIA: punched and kicked?
APPLICANT: I was with somebody – his name was [Name of accomplice redacted] and I think it was around the end of the year, or around that time. Yes, a fight broke out and I threw punches and – yes.
MR PAPALIA: If it was 2014 then this is before your father died?
APPLICANT: 2014 – I remember it was end of the year. 2014 or 2015. I can’t remember. I want to say for sure – maybe it was 2014, yes. Yes, I think it was 2014.
MR PAPALIA: Your criminal record indicates that you received 4 months detention, and that was suspended for 12 months. Is that correct?
APPLICANT Sorry, what happened?
MR PAPALIA: Your criminal record suggests that on 16 March 2016, you were sentenced to 4 months detention for those two counts of robbery and some other charges, and that was suspended for 12 months with the condition that you be on good behaviour, that you not possess a firearm or ammunition, and that you submit to testing as required by police?
APPLICANT: That was suspended for 4 months but it was to be on good behaviour for 12 months or something like that, yes.’[23]
[23] Transcript p 25, lines 1-40.
There is a ready concession made on behalf of the Applicant about the nature and seriousness of his conduct. In the Statement of Facts, Issues and Contentions (‘SFIC’) filed on his behalf, it is expressed thus:
‘The nature and seriousness of the Applicant’s conduct
10. [The Applicant] is well aware of the nature of the crime he has committed and has fully accepted, acknowledged and indeed paid for his crime. He in no way diminishes or abrogates responsibility for his part in this crime, which was very serious from the point of view of the community; nor does he argue with the way it was treated by the Court, in recognition of that community view.’[24]
[24] A1, p 4, para [10].
Having regard to the nature and extent of the Applicant’s offending, we will now proceed to apply the factors at paragraph 8.1.1 of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
We are satisfied (and find) that the Applicant’s conduct involves the commission of violent crimes. It engages the operative effect of this paragraph and must be viewed very seriously by the Australian Government and Australian community. We therefore have no hesitation in attributing a description of ‘very serious’ to this Applicant’s violent offences.
Paragraph 8.1.1(1)(a)(ii)
As best as we understood the criminal history, the Applicant has not committed crimes of violence against either women or children. This paragraph is not relevant to the instant determination.
Paragraph 8.1.1(1)(a)(iii)
The material before us does not contain reference to this Applicant’s commission of acts of family violence whether those acts be the subject of a formal conviction(s) or a recording in an independent and/or authoritative document, such as, the abovementioned ‘South Australia Police Department Police Apprehension Report’ that referred to his other offending. This paragraph is not relevant to our determination of this application.
Paragraph 8.1.1(1)(b)(i)
The Applicant has not committed any offences in the realm of causing a person to enter into or to otherwise become a party to a forced marriage. There is no such reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document. This paragraph is not relevant to any assessment to the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(ii)
The Applicant has not committed any crimes against vulnerable members of the community (as defined in this paragraph) nor has he committed crimes against government representatives of officials in the performance of their duties. This paragraph is not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘…the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. There is no reference in either party’s SFIC (or any other oral or written submission) propounding or mentioning this component of the Direction. We therefore find that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
To the best of our understanding of the material, there is nothing before us to suggest the Applicant has committed a crime while in immigration detention or in any of the other circumstances described in this paragraph relating to immigration detention. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(c)
This paragraph precludes us from taking into account any sentences imposed on the Applicant for: (1) any violent offending committed against women;[25] (2) acts of family violence;[26] and (3) any sentence relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[27] As is evidence from his criminal history (and the material more generally), the Applicant does not have any convictions and/or sentences for offending of this type.
[25] Direction, para [8.1.1(1)(a)(ii)].
[26] Ibid, para [8.1.1(1)(a)(iii)].
[27] Ibid, para [8.1.1(1)(b)(i)].
This Applicant’s sentencing history involved the imposition of sentences at three separate sentencing episodes. The first two of three episodes involved the imposition of sentences that, on any reasonable view, were unremarkable. They included (on 16 March 2016) the imposition of a term of detention, wholly suspended for a period of 12 months upon the meeting of certain obligations by the Applicant. There was also (on 6 October 2016) they included the Court’s noting of a failure by the Applicant to comply with a previously-imposed bail agreement, but otherwise dismissed the matter without penalty.
The sentences imposed in these first two sentencing episodes are in stark contrast to the sentence imposed on 21 March 2018. A head sentence of five years and 10 months, albeit with a non-parole period of two years and 10 months, is a significant sentence and is directly reflective of the seriousness of the offending before the learned sentencing Judge (Her Honour Judge Davison DCJ). While not actually a ‘sentence’ per se, it is to our minds notable that two months later, the Court of Criminal Appeal of the Supreme Court of South Australia did not disturb that sentence.
It is well-established that the imposition of a custodial term is the last resort in the range of sentencing options available to a judicial sentencing officer. It must follow, therefore, that a given sentence must be viewed as a reflection of the objective seriousness of the offences giving rise to the sentence. [28] The third sentence imposed on this Applicant is significant in other respects as well. He came to Australia in 2010 and by 2015 had committed offences resulting in the imposition of head custodial time of almost six years. If he was in Australian community for roughly eight years to the point of his sentencing in March 2018, the head custodial term imposed upon him expressed as a percentage of his time in the community represents well over 65% of that time.
[28] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].
The state of the material before us can lead to no other finding that the sentence imposed on the Applicant in March 2018 is surely indictive of the quite serious of his unlawful conduct in this country.
Paragraph 8.1.1(1)(d)
This paragraph requires an inquiry into (1) the frequency of a person’s offending and (2) whether there is a discernible trend of its increasing seriousness of its pattern. First, while the Applicant has a relatively short criminal history, it does, nevertheless, refer to the commission of some 11 offences. If we look at the offending across the Applicant’s sentencing history, we are talking about sentencing courts being required to deal with 11 offences in two years. On this basis, the offending is surely frequent. On another analysis we can look at the period of the Applicant’s commission of those offences – that is, from the point in time when he first offended (December 2014) to the point where he last offended (September 2015). Once again, the commission of 11 offences across a barely 12 months period is frequent offending.
There is a third way of ascertaining the frequency of his offending, and that is by looking at the number of offences he committed (11) referrable to the total time of years he spent in the Australian community (8). On this third analysis as well, his offending must be found to be frequent.
Second, is there an increasing trend of seriousness in the Applicant’s offending? On one view, his conduct (described at paragraph [26] of these reasons) can be found to have been serious from the outset. There is no minimising the extent of his interference with the personal and property rights of the victims of his (and his co-accused’s) offending in December 2014. It could be said that this level of seriousness in his offending was simply extrapolated into the circumstances of his offending in September 2015 and that one incident merely parallels the other.
On another, and to our minds, more plausible analysis, it should be found that there was an increase in the level of seriousness between the offending committed in December 2014 as opposed to that of September 2015. The former had to tone of a more or less impromptu intention formed by the Applicant to threaten, menace and harm other people for material gain. The offending in September 2015 was performed and administered in an entirely different way. It involved the organised application of threats, force and violence to, as it were, make a retributive statement to the victim.. The injuries to the victims of the September 2015 violent offending were more significant and, of course, this offending involved more victims than that of December 2014. We are satisfied that, in comparative terms, the nature of the Applicant’s unlawful conduct in December 2014 – when superimposed over that committed in September 2015 – most certainly indicates a trend of increasing seriousness to his unlawful conduct in this country.
This paragraph militates in favour of a finding that the nature and seriousness of this Applicant’s offending has been of a serious nature.
Paragraph 8.1.1(1)(e)
This paragraph requires us to identify any cumulative effects resulting from the Applicant’s offending and the extent to which those effects now speak to the level of seriousness of his offending in Australia. To our minds, the nature of his offending is primarily concerned with offences involving (1) personal harm to others; (2) material loss to others in the form of loss and damage of their property; and (3) a failure to accept and follow lawful authority. First, there is surely no cavilling with the finding that the Applicant’s conduct in both December 2014 and September 2015 resulted in significant physical harm to victims of his offending. This conduct is demonstrative of a person who has refused to respect the personal safety of other people. He has resorted to significant violence against victims as a means of either having his way or making a point.
Second, the victims of his December 2014 offending experienced material loss. Citizens of Australia as entitled to go about their business in a free and lawful manner at any time of their choosing. The Applicant’s conduct in December 2014 directly challenged that premise. Similarly, those citizens are entitled to possession of goods they have worked to acquire and enjoy. The Applicant’s conduct has also seriously challenged that fundamental premise.
Third, while the Applicant’s apparent failure to comply with a bail agreement may not be all that significant, the overall impression to be taken from his offending is that it has cast him as someone who has refused to accept the lawful authority governing the country in which he arrived. Judge Davison’s sentencing remarks on 21 March 2018 to the effect that: ‘You behaved in a terrifying and violent manner towards each of the people in the unit as you perpetrated this vicious series of assaults.’[29] is, with respect, accurately descriptive of the extent to which the Applicant has failed to respect lawful authority.
[29] G2, p 35.
We are therefore satisfied that the abovementioned cumulative effects of this Applicant’s offending engage this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the totality of his offending has been, at the very least, serious.
Paragraph 8.1.1(1)(f)
The inquiry compelled by this paragraph is whether a non-citizen has provided false or misleading information to the Respondent’s department, including by not disclosing prior criminal offending. As best as we understood the material, there is no instance in which the Applicant has provided false or misleading information to the Department.
This paragraph can be put to one side and is irrelevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(g)
This paragraph in concerned with whether a non-citizen has re-offended since being formally warned about the consequences of further offending in terms of their visa status to remain here. To the best of our understanding of the material, before us, we are not aware, of any formal or other warning to the Applicant about the impact of any further offending by him upon his visa status to remain in Australia. The Applicant makes this clear in his Personal Circumstances Form (‘PCF’).[30] Neither party propounds a position to the contrary.
[30] G1, p 118; p 136.
We are mindful that the absence of a warning should not be considered to be in the Applicant’s favour. However, in the absence of any such warning we are content to put this paragraph 8.1.1(1)(g) to one side and render it irrelevant for assessing the nature and seriousness of the Applicant’s unlawful conduct.
Conclusion about the nature and seriousness of the Applicant’s conduct
We have applied the relevant paragraphs at paragraph 8.1.1(1) of the Direction to the nature and circumstances of the Applicant’s offending. Taking into account our findings, we conclude (and find) that the totality of his unlawful conduct in Australia has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The nature and circumstances of the Applicant’s unlawful conduct have been summarised earlier in these Reasons. Little can be said by him to cavil with the proposition (and finding) that were he to again involve himself in the commission of conduct that occurred in December 2014 and/or September 2015, there would result physical, psychological, economic and/or financial harm to the Australian community. That harm would certainly be significant and likely substantial and could, quite conceivably result in catastrophic harm to a future victim(s).
The nature of the harm resulting from the Applicant’s two principal offending episodes appear to have been committed without a thought of the legal consequences of him doing so. His primary focus appeared to be part of a larger gang-type criminal culture and to meet the requirements of such a commitment. His loyalty was to that culture as opposed to abiding by the laws of this country that prohibits such conduct.
The sentencing remarks serve to endorse the reality that his offending has resulted in serious and significant physical and psychological harm to his victims.[31] Were he again to involve himself in such conduct, it is very likely that similar harm would ensue to victims. Indeed, it is not beyond the realm of common sense to suggest he is fortunate that his offending to date has not resulted in even more serious harm to victims. On this basis we find that were he to repeat this conduct in the community, the resulting harm is so serious that any risk of repetition of such conduct may be unacceptable to the Australian community.
[31] G1, p 35.
We are not in a minority in holding such views. Her Honour Judge Davison DCJ did, for all practical purposes, hold a similar view when she described the Applicant’s conduct as ‘savage’, ‘terrifying’ and ‘vicious’. Ultimately, the Respondent’s contention is correct:
‘The nature of the harm to the community should the Applicant were to engage in the criminal behaviour which he has in the past is self-evident and serious. Some of the possible consequences to the community, and individuals within the community, were identified by her Honour Davison DCJ…’[32]
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
[32] R1, p 8, para [40].
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
In his PCF the Applicant outlined certain factors which he believes explain his offending and otherwise explain why he now says he is at minimal risk of repeating his unlawful conduct if returned to the community. He said the following in this PCF:
‘At the time of my offending, I was 17 years old. At this time, I was not as well developed as other kids my age. I think because of my limited and broken education. On top of my naivity and young age I was heavy into mourning my father’s death 8 week earlier. At this time, I was still trying to figure out who I was. Looking back, I can not believe I was involved in this. But I really am ashamed and sorry I was. On the other hand, I have worked hard to learn and focus on being a good person, which I believe I am. During, my time in prison, I have stayed away from politics and have walked away from all situations involving voilence. I am totally against voilence and I am not at risk of reoffending.’[33]
[Errors in original]
[33] G1, p 137.
Further in his PCF the Applicant provided the following information about his future recidivist risk:
‘I believe strongly that I will never be offending again. At the time of this offence, I was 17 years old, mourning my father’s death, who was very close to me. I now am 21 years old. I have spent the past 20 months in custody and I realise fully the consequences of my actions. I am facing deportation to a country where I am in danger of death, where I’ll never see my family again. This is a very big wake up call for me. I will be spending 3 years in prison. I will never do anything to put myself or family in this situation again. I would like to attend TAFE and learn a trade and start a career. There will be no risk of me offending in the future if I am given another chance.’[34]
[Errors in original]
[34] G1, p 138.
In representations made to the Respondent at an earlier stage in this proceeding, after referring to a particular rehabilitation course when either in prison or detention, the Applicant said the following:
‘The report from the course says that a particular computer program which calculates the chance of reoffending has decided a moderate chance of offending again . A computer system also decided when I was first convicted that my chance of offending again was also moderate back then. Regardless , the fact is that I feel as though I have changed and learnt many different things and it was impossible for me to be the same as the computer said. The sentence that I served had no impact on my risk and that my mindset is the same as the time of offending. This is not true and every single person who has known me will confirm this. The Living Without Violence was very detailed events of my whole life including the offence, at the beginning of my sentence, I would not have been nearly participating as I was at that point because I was ready to share this and I learnt many valuable things about my own life and other techniques . But if I can tell you , if my family can or positive friends and community can tell you, I am not the same person with the teenage brain anymore. I was 17 years old and not very mature. I was forced unto adulthood and learned to become mature very quickly. For all the regret and all the stresses I have been through. I will not be even put in a situation close to the one that lead to this offending. I will not even be a part of that anti social peers. I will not be bottling emotions up. And I certainly will not be running away from my family and supports in hard times. So that I will not ever be put in a situation where I have to make a decision even close to being involved with people like that. And if I was left with
this choice I will be staying away from anything close to this because I will not be losing years of my life and putting fame though this for anyone or any reason ever again.
I am aware that the main consideration would be the protection of the community from further harm. I can not take back what has happened already, what I can do is to promise that I will not be involved in any illegal activity ever again. I will never ever cause any harm to any person’s or any property of anybody in Australia ever again. All my aim is to work, pay taxes and doing something constructive with my life. Since my imprisonment I have also found much interest to study and be qualified at something. A trade or a higher education which will be suitable employment for my situation. If you are asking my own opinion about reoffending , then I am saying there is no chance of reoffending. I will sign any undertaking , any such necessary form to say that even for the slightest offending you can detain myself again.’[35]
[35] Ibid, p150.
In his evidence in chief, the Applicant spoke of his past difficulties with abusing alcohol and how that, in turn, caused him to spiral into a pattern of offending. He says that he no longer consumes alcohol. He also spoke of rehabilitative courses he has undertaken during his period of removal from the Australian community:
‘DR HAINES: Thank you, sir. Okay, we have looked at your PTSD condition. Can you talk to us about drinking alcohol? That was a problem?
APPLICANT: Drinking alcohol – before this incident happened, I was only very occasionally drinking but after my father passed away, at that point I started abusing alcohol a little bit. I was drinking more regularly – pretty much every day but I never – I don’t think – I guess I used alcohol as a way to cope at that time but I was not an alcoholic of sorts. I never had a – I don’t think I ever had a problem with it but at the same time, around that time those few months I did drink regularly.
DR HAINES: Thank you. Obviously you don’t drink now?
APPLICANT: No.
DR HAINES: The Tribunal has seen evidence of programmes pursued in prison. Can you talk about the effect that these courses have had on you?
APPLICANT: Yes.
DR HAINES: Anything you have learnt from that?
APPLICANT Some of the courses that I did were sort of like – it was like to help me learn a trade or to help me look for employment. Some of the courses were for rehabilitation. I did a retail course; that was about six months instead of three, and that was really good as well. I am not sure if I am going to be working but it was good to learn about the rules and regulations and that sort of thing at a retail workplace. I did a fair few courses at the Adelaide Youth Training Centre when I was there because they were much more available. I did the (indistinct words.) I did – obviously – the unit about violence. I did a fair few – yes, I did the white card. Yes, I did do a fair few courses.’[36]
[36] Transcript, p 19, lines 31-47; p 20, lines 1-9.
He was specifically taken to the ‘Living Without Violence’ program that he completed during his term of imprisonment. He says he ‘…learned a lot…’ about his recidivist risk from that course:
‘DR HAINES: reflect on what you’ve done and to reflect on your life in the future if you are released from detention. You’ve said that you’ve participated in the living without violence program in Mobilong Prison?
APPLICANT: Yes.
DR HAINES: And the Tribunal has, of course, evidence of that at G1 attachments I, page 169. What did you take away from that program, Mr Applicant?
APPLICANT: The living without violence program it – we discussed a lot of things in that program. It really like – the program mostly helped me like learn how to deal with my emotions, my thinking, mindfulness and things like that. We also did a lot of like one on one counselling with the programs. We – I learned a lot about like the – the link between emotions, thinking and like how that affects your actions, just generally things like that. Yes.’[37]
[37] Transcript, p 13, lines 33-44.
The Applicant also spoke of employment opportunities he says are available to him if released:
‘DR HAINES: Would you have employment on your release?
APPLICANT: Yes.
DR HAINES: Where would that be?
APPLICANT: I have actually gotten offered three or four different jobs. One of them is roofing. The other one is tiling. They are from the close social friends of mine that we were talking about, and the other one was an event management company but at the moment, myself, I am more interested in the roofing job as a trade but – yes. That’s with Mr AR’[38]
[38] Ibid, p 20, lines 10-16.
The Applicant also gave evidence in cross-examination. He was asked to explain the nature of his offending in September 2015 that gave rise to his most significant sentence. He said:
‘APPLICANT: That was the incident that – at that time, I went along with four other people. Basically, a home invasion happened; people were hurt badly. I was part of that group. We are all responsible at the same level and I took part in that. I take full responsibility for what happened on September 4.’[39]
[39] Ibid, p 25, lines 42-46.
He was also asked why this Tribunal should now accept that he is not going to commit further acts of violence and other offending in relation to property. He responded thus:
‘MR PAPALIA: Why should the Tribunal believe that you are not going to commit further acts of violence to steal property?
APPLICANT: Because I am an adult now and I have grown up. I have spent a very long time in some form of custody, either in detention, home detention or prison. This happened over 7 or 8 years ago and I was 15 or 16 at the time of that first incident. I was very young. Especially for that main incident at Marden, I was in a very bad place. …. Yes, I was in a very bad place mentally‘[40]
[40] Ibid, p 26, lines 5-8.
It transpired during his cross-examination that the Applicant commenced his year 12 education but did not complete that year and thus did not obtain a South Australia Certificate of Education. He says two things interfered with that: (1) the loss of his father and (2) his difficulties with lawful authority during that school year:
‘MR PAPALIA: Did you finish your South Australian Certificate of Education?
APPLICANT: Is that year 12 you mean? High school?
MR PAPALIA: Yes?
APPLICANT: I was doing year 12 when my father passed away and I was at the end of the (indistinct) – I didn’t get to finish it but afterwards I started when on (indistinct) foundation studies, which was sort of like year 12 but – yes, I was near-completion of that as well but that was when I was found guilty and taken into custody. There were a few subjects left of that one but yes, I came into custody and didn’t get to complete that as well.’[41]
[41] Transcript, p 26, lines 45-46; p 27, lines 1-6.
The Applicant was specifically questioned about the abovementioned ‘Living Without Violence’ program which he completed between the months of August 2020 and January 2021. He provided the following evidence about how that course now speaks to the level of his recidivist risk:
‘MR PAPALIA: 170? The first page at the top has, “Rehabilitation program (indistinct words) Living Without Violence Program.” That’s the one. Mr Applicant, you participated in the Living Without Violence Program between August 2020 and January 2021, is that correct?
APPLICANT: Correct, yes.
MR PAPALIA: Are you able to tell the Tribunal what that program involved?
APPLICANT: The program involved a number of different subjects. It involved: Speaking about a relationship; speaking about drugs and alcohol; emotional thinking; mindfulness activities; the offending; and different situations that you identify as high-risk situations for yourself, and you put yourself in different scenarios to see how you would deal with it.
MR PAPALIA: What did you learn from the course that was relevant to you?
APPLICANT: Sorry, rather than what?
MR PAPALIA: What did you learn from that course about your risk of reoffending?
APPLICANT: I learnt from the course what different types of thinking and how emotional thinking affects my abilities. I learnt about my drug and alcohol use and abuse, and how and why I was using. I learnt about different relationships; good and bad relationships that I had, and how to make and maintain a good support system and good relationships. I learnt about – yes, sorry?
MR PAPALIA: No, please continue, Mr Applicant?
APPLICANT: Also with this (indistinct) catch thinking and try to identify negative thinking. With high-risk situations for myself, I think what we identified was, for example, grief and loss or that sort of thing – going near bad influences or bad peers, just drinking in general – yes.’[42]
[42] Transcript, p 29, 44-47; p 30, lines 1-23.
The Applicant readily acknowledged that abuse alcohol was at the predispositive epicentre of his offending. In terms of illicit drugs, he said ‘…Drugs – I never really had a problem with drugs…’[43]. While admitting to using marijuana ‘…a few times…’[44] he said ‘…I never really used other illegal substances.’[45] He described the negative peer group pressure he experienced that caused him to become involved in abusing alcohol:
‘MR PAPALIA: When you add that you were around a group of people that was drinking as well, that suggests that if you were around people who were drinking, you would also drink?
APPLICANT: No, it wasn’t – I put myself around those people at that time because that’s just how I dealt with that situation at that time, you know? It was not – before that, I could be around people who casually drank but it was my decision that I did drink and use that to sort of get through that time. I wouldn’t blame it on anybody else; it was just – yes, it was just myself.’[46]
[43] Ibid, line 26.
[44] Ibid, line 29.
[45] Ibid, line 30.
[46] Transcript, p 30, lines 39-46.
His evidence was that he intends to surround himself with prosocial friends if returned to the community. He described these people as responsible individuals who are engaged in legitimate remunerative employment in the community who would, as it were, bring him into their responsible and legitimate lifestyles:
‘MR PAPALIA: I know you have been asked this earlier today, but can you tell the Tribunal who are the people you are describing as your prosocial friends?
APPLICANT: Prosocial friends were friends that, for example, one of them was [Mr AR]; the person who is offering me a job. They came to Australia around the same time and went to the same school. Another one of my friends is [Mr TR]; he is a good friend as well. I have got a few friends that are from the community that also attended mosque. I had a few friends – I mean, another friend of mine that does tiling as well, he is good as well. His name is [Mr AG](?). These are all people that I sort of grew up with and known them for a long time, but I sort of shied away from them at that point in my life, I guess.’[47]
[47] Ibid, p 31, lines 6-16.
The inevitable corollary of that evidence was put to the Applicant in terms of why these prosocial connections will not be preferred by the Applicant in favour of the negative influences with whom he associated and with whom he very seriously offended:
‘MR PAPALIA: If they [i.e the prosocial influences] were in your life before the offending and as you say, you shied away from them, why should the Tribunal believe that you are not going to do that again?
APPLICANT: Because now I know better. Now I know how to deal with problems like an adult, you know? I mean, I made some silly decisions back then but now I know fully what the consequences of actions are, you know? I just don’t want to live that lifestyle. I just want to make something of my life and work like a normal person, start a family, and just be positive, you know? I don’t like that – I have got nothing in common with those people anymore, you know?’[48]
[48] Ibid, lines, 18-36.
The Applicant was asked about why he had not completed additional rehabilitative courses during his time in criminal custody following completion of the ‘Living Without Violence’ program that he completed in January 2021. He provided the following explanation:
‘MR PAPALIA: What have you done following completion of this course in January 2021?
APPLICANT: January 2021 was – sorry, I don’t understand. What do you mean? Like, can you give me context?
MR PAPALIA: Have you done any other courses?
APPLICANT: I was released in, I think, June 2021. I think at that point in time I applied – I was waiting for a parole interview and that usually happens pretty quick, so if I enrolled in any courses at that time, they would say:, “Well, you don’t know if you are going to go home or get parole in a month or in two months’ time.” Generally, the courses go for 6, 8 or 12 months. Even if I wanted to do them, they weren’t going to let me enrol in them because the length of time after the course – I didn’t know for certain how long I was going to be there to complete that course. Also, the citizenship status affected a lot of courses.
MR PAPALIA: Sorry, is the answer to that you haven’t done any courses since then?
APPLICANT: I haven’t done any courses because at that point, I could have done short courses but I wasn’t allowed to do any long courses at that point.’[49]
[49] Transcript, p 32, lines 23-39.
The Applicant was specifically asked about why he had not done any courses available to him during his time in immigration detention. He responded thus:
‘MR PAPALIA: There is drug and alcohol counselling available through IHMS, isn’t there
APPLICANT: Sorry?
MR PAPALIA: There is drug and alcohol counselling available through IHMS, isn’t there?
APPLICANT: No, there is a drug and alcohol – it is like the Living Without Violence Program but it is not. It is sort of like a counselling treatment program that people do. Some people get to do it while they are inside prison but for me, they just said it was recommended to do it in the community.’[50]
Evidence of other witnesses
[50] Ibid, p 33, lines 1-8.
We feel compelled to briefly mention the evidence of the abovementioned Messrs AR and AG.[51] Mr AR has provided a written statement which appears in the material.[52] Mr AR describes himself as a ‘construction worker’[53] who has known the Applicant since 2010. He speaks of being ‘…willing to offer him [the Applicant] a job but was made aware of this detention situation.’[54] If released, Mr AR says he will stand by the Applicant and that he is ‘…offering my full support for [the Applicant] to be released. I will also be taking him into the roofing business with myself and will teach him this trade as I believe he will be an asset to my business.’[55]
[51] See para [73].
[52] A2, Attachment ‘E’.
[53] Ibid.
[54] A2, Attachment ‘E’.
[55] Ibid.
Mr AR’s written evidence was, to an extent, dissimilar to that of his oral evidence provided to this hearing. It transpires that Mr AR is currently 26 years of age. He has been in Australia about 12 years. We asked him whether he obtained aby TAFE or other trade qualifications for his claimed expertise in roofing. He responded thus: ‘MR AR: So I did an apprenticeship through a roofer, so I didn’t do any actual certification for it; I didn’t do any course. I did 4 years of experience and then I went to CBS and got my licence through them.’[56]
[56] Transcript, p 46, lines 14-16.
Mr AR’s oral evidence in terms of whether he was an actual business owner or an employee of another entity was vague and uncertain. It transpires that he works for an entity called ‘Adelaide Roofs’ and that, at best, he would only be taking the Applicant on as some kind of private assistant:
‘SENIOR MEMBER TAVOULARIS: You wouldn’t be taking the Applicant on as an employee of yours because you don’t have the tickets to do that, do you?
MR AR: I don’t have, as I said, my tickets for supervisor to pass on the job, like to tick when the job is finished, but as a contractor for Adelaide Roofs I can get jobs and get them finished, and it is up to them to pass it up to standards as a licensee.
SENIOR MEMBER TAVOULARIS: Okay, but your ability to employ, as you say, the Applicant is not much more really, is it, than a private consultant? You would be hiring him like a bookkeeper or you would be hiring him as an administrative assistant, or an IT consultant, for example, to help you with marketing. It would be a private hire between you and him?
MR AR: Yes.
SENIOR MEMBER TAVOULARIS: That’s because you are not technically or officially authorised as a business contractor in the roofing field to employ someone like the applicant as an apprentice roofing person, for example. That’s right, isn’t it?
MR AR: Not at the moment, yes.’[57]
[57] Transcript, p 47, lines 15-30.
Mr AR’s evidence was similarly vague and unconvincing on the issue of proposed terms and conditions of the Applicant’s ‘employment’. It transpired that those terms and conditions had not been determined with any finality nor had the issue of the claimed ‘employment’ would be on a part-time or full-time basis:
‘SENIOR MEMBER TAVOULARIS: Now, in terms of the terms and conditions of this employment that you are going to offer the Applicant, how much are you going to be paying him? Have you spoken about that?
MR AR: So the minimum wage – I would give him like $25 an hour.
SENIOR MEMBER TAVOULARIS: How many hours a week?
MR AR: Depending on how many jobs I do; sometimes at least 25 hours a week, so - - -
SENIOR MEMBER TAVOULARIS: It would be part-time work or maybe permanent part-time work, but it wouldn’t be a full-time role, would it?
MR AR: As in for now, yes, but in the future I am pretty sure he would get to full-time, yes.’[58]
[58] Transcript, p 47, lines 32-42.
We turn now to the evidence of the abovementioned MR AG.[59]Although he did not provide oral evidence at the hearing before us, Mr AG did provide a written statement.[60] He claims to have known the Applicant for five years. He regards the Applicant ‘to be a really hard worker, caring towards his mother.’[61] He goes on to say that ‘I, [Mr AG], Director of [name of tiling business redacted], will give [the Applicant] a job if need be.’[62] As was seen with the oral evidence of Mr AR, it is possible to challenge the veracity and reliability of that evidence, especially where the evidence goes to an offer of employment. Only minimal, if any, weight can only be allocated to the written evidence of Mr AG given that it was not tested in cross-examination.
[59] See para [73] of these Reasons. Note: we have adopted the acronym of ‘AG’ for this person. However, in the Transcript where the Applicant referred to Mr AG, the name of Mr AG is referred to by the transcriber thus: ‘AG(?)’. However, the statement appearing in the material at A1, Attachment ‘D’ records the person’s first name starting with ‘M’ and his surname starting with ‘G’. To avoid confusion, we will continue to refer to this person as ‘Mr AG’.
[60] A1, Attachment ‘D’.
[61] Ibid.
[62] Ibid.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
There is evidence before us from duly qualified and independent clinicians speaking to the Applicant’s recidivist risk. Relevantly, those reports/statements comprise the following:
·Ms Sarah Kiley-Watkins is a Sentence Management Unit Assessment Clinician with the South Australian Department of Corrective Services. In July 2018, she performed a Violence Risk Scale assessment upon the Applicant’s level of recidivist risk and estimated him to represent a moderate risk of violent re-offending ‘should he not receive treatment’.[63] Ms Kiley-Watkin’s report was prepared as a precursor to the Applicant’s participation in the ‘Living Without Violence’ program;
[63] G3, p 158.
·Mr Jon Watson is a Senior Clinician (psychologist) who works with the ‘Rehabilitation Programs Branch’ of the South Australia Department of Corrective Services. He oversaw the Applicant’s participation in, and completion of, the Living Without Violence’ program. The concluding portion of his report[64] noted the following:
[64] See G1, pp170-177.
‘Following treatment, [the Applicant] risk of violent reoffending was re-assessed using the VRS I actuarial risk assessment tool on 28/01/2021. This assessment indicated that [the Applicant] risk of violent reoffending was estimated to be within a moderate - range in comparison to the normative sample for this tool and offence-type. Following treatment, [the Applicant] appeared to have moved on the majority of his dynamic risk factors to the preparation stage and sometimes the action stage. In other words, he demonstrated some awareness that his behaviours were problematic, and he made some behavioural changes; however, some changes were relatively recent and not yet consistent over time or demonstrated across relevant high-risk situations.
It was noted however, that should [the Applicant] be exposed to situations whereby he began socialising with anti-social peers, especially those who used drugs and alcohol, his risk of engaging in problematic behaviours may Increase.’[65]
[65] G1, pp 175-176.
[Emphasis in original]
·Dr Alexander Van Hattem is a psychiatrist who consulted with the Applicant on 24 August 2022. A record of Dr Van Hattem’s consultation with the Applicant appears as part of the documents summonsed from the International Health and Medical Services organisation (‘IHMS’).[66] This record refers to a ‘Diagnosis’ of ‘posttraumatic stress disorder.’ Further in the clinical record, Dr Van Hattem records the following:
[66] A3, Attachment C, p 2 of 80.
‘Impression: Post-traumatic stress disorder.
PLAN
Continue treatment with mirtazapine 30mg;and fluoxetine 20mg. MHN to please review and document mental state in ~1 month to ensure ongoing improvement ;If improving, follow-up as per Life Care Plan, otherwise book follow-up in 2-3 months.’[67]
[Emphasis in original]
·As mentioned earlier in these reasons, Mr Dart Russell is a Counsellor/Advocate working with organisation known as ‘STTARS which is an acronym for ‘Survivors of Torture and Trauma Assistance and Rehabilitation Service.’ Mr Russell has prepared two reports under the letterhead of ‘STTARS[68] the first dates from 9 September 2022 and the second from 15 September 2022. Mr Russell also gave oral evidence to the instant hearing. As an initial observation we note Mr Russell describes himself as a ‘Counsellor/Advocate’ and in his evidence confirmed that he was the holder of a Bachelor of Counselling having graduated in the mid-2000s.[69]
·Mr Russell told the hearing that he consulted with the Applicant during the years 2018-2019 while the Applicant was in criminal custody. Mr Russell was of the view that the Applicant’s mental health and wellbeing had been adversely impacted by the death of his father from cancer in June 2015.[70] Mr Russell thought the loss of his father made the Applicant more vulnerable to a ‘major grief event’[71] and that this element, when coupled with the Applicant’s reported experiences as a child in Afghanistan/Iran caused the Applicant’s mental health to be ‘a mixture of stable and worsening’.[72]
·Consistent with the views of both Ms Kiley-Watkins and Mr Jon Watson, Mr Russell thought the Applicant had outstanding treatment needs for his mental health symptomatology. His oral evidence made reference to an increased risk of a return to criminal offending commensurate with a person (such as the Applicant) who had suffered trauma earlier in his life as a younger person. He thought the Applicant’s trauma required ongoing counselling on a fortnightly and/or monthly basis in order to achieve any measure of discernible progress in the management of his symptoms. Analogous to this part of this evidence was his opinion that the Applicant’s strict compliance with a regime of prescribed medication was also fundamental towards managing elements of his psychopathology predisposing him to causative factors behind his offending.
·He accepted that the Applicant had developed insight into (1) the extent to which his abuse of alcohol, illicit drugs and adoption of negative peers had pre-disposed him to a pattern of very serious offending; and (2) how his conduct had adversely affected his family. Mr Russell also accepted two important elements in terms of the Applicant’s prognostic outlook. First, he agreed that if the Applicant did not fulsomely engage in further clinical treatment his recidivist risk is at best either unknown or of a medium level.[73] Second, he agreed that the Applicant’s state of rehabilitative treatment and recovery is such as to be no better than either in its formative stages or a work in progress.[74]
[67] Ibid.
[68] See A1, Attachment ‘C’, pp 1-4; see also A2, Attachment ‘A’, pp 1-5.
[69] Transcript, p 65, Lines 34-36.
[70] See G1, p 191.
[71] Transcript, p 60, Lines 7-43.
[72] Transcript, p 66, Lines 42-47; p 67 Lines 1-20.
[73] Transcript, p 71, Lines 22-24.
[74] Transcript, p 72, Lines 4-16.
Conclusions about risk
There is a contention made on behalf of the Respondent that this Tribunal should be ‘concerned about the Applicant’s risk re-offending’. While we do not dismiss such a contention, we are more of the view that such concern should be aimed more at the state of the Applicant’s rehabilitation rather than his actual risk of re-offending. This is because the former must surely be found to be a precursor to the later.
In terms of any definitive assessment of the Applicant’s risk, all the Tribunal has before it are past assessments of him representing a ‘moderate risk’ of re-offending. Those assessments have, of course, been conditional on him maintaining a level of engagement with the rehabilitative process. There is little against this Tribunal reaching a favourable presumption that he will do so if returned to the community. This presumption is fortified by the levels of insight we are told the Applicant has developed into his recidivist risk profile with particular regard to the absolute necessity for him to control his consumption of alcohol, illicit drugs and to otherwise maintain an association with pro-social peer groups.
In the past the Applicant has demonstrated a propensity to either minimise or re-contextualise the nature and extent of his involvement in the circumstances of his past offending. In the hearing before us, the Applicant readily accepted – with an absolute minimum of superficial debate or faux clarification – his involvement in, and commission of the relevant offences. Oftentimes, the less the Applicant says about his past offending, the more it can be believed and accepted that he has little to say about it because he accepts it to be true and correct. That is the impression we took from this Applicant’s oral evidence the essential flavour of which was: ‘I have done what I have done, the past is the past, I want to live a normal life, please give me a chance to do so.’
There is a ready acceptance on behalf of the Respondent that ss 197C(1)-(2) of the Act provide that the obligation to remove the Applicant pursuant to s 198 of the Act arises regardless of whether there has been an assessment of whether Australia owes him any non-refoulement obligations. The further (and to our minds, valid) contention made by the Respondent is that s 198 of the Act does not require or authorise removal if a protection finding has been made.[118] It therefore follows that where this Applicant has been found to be owed protection, any removal of him from Australia pursuant to s 198 of the Act will not be “authorised” and, on this basis, the resulting contention from the Respondent is that neutral weight should be allocated to this Other Consideration (b). The Applicant has confirmed he will not voluntarily return to Afghanistan. To whatever extent he may, in future, change his mind and voluntarily agree to do so, we will, out of an abundance of caution, consider the relevant impediments to removal but will accordingly moderate any weight we would otherwise allocate to them.
The Applicant’s circumstances
[118] See Section 197C(3) of the Act.
In his PCF, the Applicant ticked the “yes” box in response to the question “Do you have any diagnosed medical or psychological conditions?”. He recorded those conditions as “Suffering anxiety and depression. Currently prescribed Mirtazepine and seeing councillor from STARRS.”[119] In that PCF, he repeated the reference to being prescribed the Mirtazepine medication and that he was taking it for “Anxiety, sleeping and depression.”[120]
[119] G1, p 141.
[120] Ibid.
Sub-paragraph 9.2(1)(a): the evidence points to the Applicant being a person aged 24 years who has a diagnosis for post traumatic stress disorder for which he is medicated. He experienced trauma and adversity prior to his arrival in Australia and it is difficult to cavil with the evidence around the impact this past trauma now has on his mental health. His age is not an impediment to his return nor is the state of his physical health. But it can be accepted that moderate severity of his mental health symptomatology does militate in his favour as an impediment in the event of his removal.
Sub-paragraph 9.2(1)(b): the Applicant was born in Iran and then spent a very small period of time in Afghanistan prior to his arrival in Australia. In her evidence, the Applicant’s mother testified to the shock and amazement the Applicant experienced when he was able to compare how people were caused and forced to live in countries like Afghanistan compared to Australia. It therefore follows that were he to be returned to Afghanistan, he would experience some measure of language and cultural unfamiliarity which could be realistically described as “barriers”.
Sub-paragraph 9.2(1)(c): the Applicant fled Iran and Afghanistan as a much younger person. There is little to cavil with the proposition that he will find very limited support in terms of social and economic support in the event of a removal. To the extent he may require government assistance for life’s fundamentals such as housing and short-term financial support, it can be safely found that those factors will constitute impediments and, to quote the Respondent’s submission, those impediments “…are likely to be insurmountable given the protection findings made.”[121]
[121] R3, p 13, para [69].
Having regard to our findings referrable to the three components of this Other Consideration (b), we are of the view that it only confers a moderate amount of weight in favour of revocation of the delegate’s decision under review. This moderate weight is further conditioned by a reality of the Applicant’s stated indication that he will not return to Afghanistan voluntarily. In those circumstances, any prospect of the Applicant’s facing impediments upon a removal is surely speculative.
As the Tribunal has found that an implied protection finding has been made, until such time as it is found that the Applicant is no longer owed protection obligations[122] the Applicant will have review rights of such a decision pursuant to Part 7, Division 2 of the Act which defines what types of Part 7 protection visa decisions may or may not be reviewed by this Tribunal.
[122] Pursuant to s 197D(2) of the Act.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Both parties are ad idem that this Other Consideration (c) is of no relevance to the instant determination and must be rendered neutral.[123] We agree. As best as we understood the evidence, there is nothing before us from either (1) a victim of the Applicant’s offending propounding a position in favour of his removal or (2) such a victim propounding that his visa status to remain here be restored to him.
[123] See A2, p 15, para [48]; see also, R1, p 15, para [78].
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. We will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, we will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
It is first necessary to identify the Applicant’s immediate family in Australia. In his PCF, they are nominated as:
·His mother (the abovementioned Ms TM);
·His brother (Brother DM);
·His further brother (Brother MM); and
·His abovementioned brother [Brother R] who was previously married to Ms PB.
During her evidence-in-chief, the Applicant’s mother was asked how she would manage her day to day life if he were not released back into the Australian community. She said “I’m not sure how I would cope. I don’t know what to say. It has been very very hard the last five years.”[124] At the end of her evidence, Ms TM wanted to say certain words of her own. Those words comprise the following:
“INTERPRETER: I’m very grateful to the government of Australia who have accepted us as refugee. They have let us in the country and they have treated us equal. I would also like to ask the government to release my son so he has return to the family home and live with us. It’s very very hard to be away from him, to have him incarcerated. We really appreciate and be grateful just the government helps - permitted us to enter the country and remain here. I would plead to let my son out so he can join us and be granted a refugee visa so he can join us to live together.”[125]
[124] Transcript, p 76, lines 32-33.
[125] Transcript, p 83, lines 7-14.
Brother R did not give evidence at the hearing, but his written statement is in the material.[126] He says that he and the Applicant “…have a very close relationship like two best friends.”[127] He says that is the Applicant is removed to Afghanistan, then “…100% he won’t survive.”[128] He also says that “....All our relatives and friends in Afghanistan have been [sic] fled out of the country or been killed.”[129]
[126] G1. p 180.
[127] Ibid.
[128] Ibid.
[129] Ibid.
Brother MM also did not give oral evidence, but his written statement appears in the material.[130] He says “…We are four brothers and [the Applicant] is the youngest and dearest member of our family.”[131] Brother MM describes how the Applicant’s incarceration has impacted their family. It is not a stretch of the evidence to suggest (and find) that these adverse circumstances would be perpetuated in the event of the Applicant’s removal:
“Since [the Applicant] has been imprisoned many things have changed in our family life. There is no any happiness and fun, even sometimes we do not hear a word from each other for many hours. I feel my mom has got ten years older. [the Applicant’s] deportation is becoming a nightmare for me. I cannot tolerate any further pain and sadness for my family specially mom.
I still miss the beautiful moments which I had with [the Applicant], and even the though of not having him beside us in Australia is a destructive. Apart from the emotional aspect, I believe there is a strong possibility that [the Applicant] would be killed by Taliban and ISIS.”[132]
[130] G1, p 182.
[131] Ibid.
[132] Ibid.
Having regard to the state of the evidence from members of the Applicant’s immediate family, we are of the view (and find) that the strength, nature and duration of his ties to those particular immediate family members in Australia carries a heavy level of weight in favour of revocation. We predicate this finding on the presumption that each of the Applicant’s above-listed family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The material does not seem to indicate anything to the contrary.[133]
[133] G1, pp 192-197.
2. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As we have found, the Applicant migrated to Australia with his family in November 2010 as a 12-year-old. He has never left Australia since arriving here. He has spent approximately half his life in this country.
It is necessary to now make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first compels us to allocate less weight to this Other Consideration (d) if the Applicant began offending soon after arriving here. As mentioned, he first came to Australia in November 2010. His first conviction in an Australian court occurred in March 2016, some five-six years after his arrival. A period of five-six years cannot be construed as being “soon after arriving in Australia”. The first of these two tempering sub-elements can be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. He has studied in Australia and his PCF contains reference to the nature and extent of his study in this country.[134] He has some measure of a history relating to engaging in remunerative employment. He worked at McDonald’s from May 2013 to August 2013.[135] In terms of community contributions, his PCF also says “I have always been an active member of the Afghan community in Australia, Adelaide. I actively attended mosque every thursday and every other occasion. I participated in the yearly march of the mosque that happens in Ashura. I was also always participating in the occasional festivals held by Persians in the city on Persian new years day.”[136]
[Errors in original]
[134] See G1, p 140.
[135] Ibid, p 139.
[136] Ibid, p 142.
Accordingly, this second tempering sub-element can be applied in favour of the Applicant due to the modest extent of his positive contributions to the Australian community in the form of at least some measure of remunerative employment, his efforts towards educating himself and his involvement in his ethnic community. While the first tempering sub-element is of neutral weight, the second one can be applied in his favour to attract weight to this Other Consideration (d) in favour of a decision to revoke the delegate’s decision under review.
3. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant recorded the name of Ms PB as his only “…other close family member(s) including in-laws, cousins, grandparents, uncles/aunts.”[137] In addition to providing oral evidence, Ms PB has also provided a written statement which appears in the material.[138] She says the following about the nature of her ties to the Applicant:
“[The Applicant] is younger than me, he does not have any sister or any sister-in-law, and I do not have any family for my side in Australia, so I had a close relationship with him. He loved my kids, he played with them and spent lots of time with them. [The Applicant’s] arrestment affected my children’s mentally and emotionally. They are missing him a lot and always begging me to take them to visit their uncle, and always asking me if he is coming back soon. I and my children are missing the beautiful moments of our family gathering which lost after [the Applicant’s] arrestment.”[139]
[Errors in original]
[137] G1, p 134.
[138] G1, p 181.
[139] Ibid.
There seems little to cavil with the proposition and finding that any removal of the Applicant will adversely affect Ms PB. This finding is made on the basis that Ms PB is either an Australian citizen, Australian permanent resident or a person who otherwise has an indefinite right to remain in Australia.
There are additional support letters in the material pointing to the Applicant’s social links in the community and how those links would be adversely impacted by his removal:
·Mr Hussein Mohammad Abbas Al Haiery is the public officer/chairman of the Husseiniat Alrasool Alaatham Alkarbalaeia Association of South Australia. His statement is dated 30 March 2019 and appears in the material.[140] He says the Applicant is “…well-known in our community…he is truly a good person and a valuable member for the community.”[141] the maker of this statement says “…I am happy to give him my wholehearted endorsement.”[142]
·Mr Sayed Abdullah Hussaini is a board member of the Adelaide Shia society. His statement is dated 27 March 2019 and appears in the material.[143] In his statement, it is said “[the Applicant] has been known to us for several years. He has been an active community member since his arrival. He has participated in community events and made some small donations to the community events.”[144] He describes the Applicant as someone who is “…known to be reliable, responsible, honest and courteous. He was popular for volunteering community events, social gathering and family gathering, he can still be an asset to the community.”[145]
·Mr Enayat Hassib is president of the Nabi Akram Islamic Centre and Afghan Australian Noor Association. His statement is dated 4 April 2019 and appears in the material.[146] He has known the Applicant “…for over 10 years, and he has been an active member of our Center.”[147] He goes on to say the Applicant’s “…family are well known and widely viewed as respectful people amongst the Australian Afghan community.”[148] He records that “Even though [the Applicant] stayed with us for only a short time in Sydney (2 weeks approximately) he left a lasting impression on us and the community with his manners, positivity and enthusiasm for helping others.”[149] Mr Hassib added that the Applicant “…established a positive connection with other teenagers who attended at the NAIC[150] events during his stay.”[151]
[140] G1, p 188.
[141] G1, p 188.
[142] Ibid.
[143] G1, p 189.
[144] Ibid.
[145] Ibid.
[146] G1, p 190.
[147] Ibid.
[148] Ibid.
[149] Ibid.
[150] Nabi Akram Islamic Centre.
[151] G1, p 190.
Having regard to the three above dot-pointed statements from community members, we are satisfied that the Applicant does have social ties and/or links with people in Australia and, to the extent those ties and links are with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, he is entitled to favourable weight for the purposes of this Other Consideration (d). Thus, his ties with Ms PB and the people we have referred to in his ethnic and religious community are ties that afford him a heavy measure of weight pursuant to this Other Consideration.
(2) Impact on Australian business interests
We are mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. We are of the view (and we find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), we are of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a heavy level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a heavy level of weight in favour of a finding that his GSH visa status to remain here should be restored to him.
Further Other Consideration (e): Prolonged or Indefinite Detention
We are mindful of the requirement to take into account any legal consequences of this decision relating to the Applicant’s GSH visa. Section 189 of the Act provides that a non-revocation result in this application will result in the Applicant’s continued detention until his removal. We also have regard to that provision in circumstances where s 189 of the Act requires an unlawful citizen to be detained, and a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
In the event of a non-revocation decision, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention. Paragraph 9.1(3) of the Direction provides three possible alternatives to either refoulement or ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
While it may be found that (1) a possible net result for the Applicant is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in our view, be limited in the circumstances.
In addition, paragraph 9.1(3) of the Direction relevantly provides that were the Applicant able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined.[152] In the event a ‘protection finding’ were made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
[152] Section 198(5A) of the Act.
However, this pathway is not open to the Applicant in the event of an adverse decision by the Tribunal with regard to his protection visa. This is because he will not be able to apply for another protection visa.[153] In the circumstances, we are of the view, and we find, that the element of prolonged or indefinite detention carries moderate, but not determinative, weight in favour of restoring the Applicant’s GSH visa status to remain here.
[153] Section 48A of the Act.
Findings: Other Considerations
We summarise the respective weights we have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: carries a moderate measure of weight in favour of revocation;
(b)extent of impediments if removed: carries a moderate measure of weight in favour of revocation;
(c)impact on victims: is not relevant;
(d)links to the Australian community: carries a heavy level of weight in favour of revocation; and
(e) prolonged or indefinite detention: carries a moderate measure of weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: carries a certain, but not determinative, level of weight against revocation;
·Primary Consideration 2: is not relevant;
·Primary Consideration 3: carries a very heavy level of weight in favour of revocation;
·Primary Consideration 4: carries a certain, but not determinative weight, against revocation;
·We have outlined the weight attributable to the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to each of Primary Consideration 3 and Other Considerations (a), (b), (d) and the further Other Consideration (e) are sufficient cumulatively to outweigh the combined weight we have allocated to Primary Considerations 1 and 4;
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours revocation of the Delegate’s decision, made on 29 July 2022, such that the Applicant’s GSH visa status to remain in Australia should be restored to him.
Consequently, we find there to be “another reason” as to why the cancellation decision of 29 July 2022 should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act.
decision
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
We certify that the preceding 213 (two-hundred-thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kate Millar and Senior Member Theodore Tavoularis
................[SGD]...................................
Associate
Dated: 8 November 2022
Date of hearing: 5, 6 and 17 October 2022 Representative for the Applicant:
Dr Timothy K Haines (Principal/Migration Agent)
Emulink Migration & Intercultural ConsultanciesRepresentative for the Respondent Mr Jon Papalia (Senior Lawyer)
Australian Government SolicitorAnnexure A – Exhibit List
Date Lodged
Lodged By
DOCUMENT
Exhibit No.
G-DOCUMENTS 18.08.2022
Respondent
G-Documents re 2022/6376
G1
18.08.2022
Respondent
G-Documents re 2022/6377
G2
13.09.2022
Respondent
Supplementary G-Documents
G3
APPLICANT’S MATERIAL 09.09.2022
Applicant
Statement of Facts, Issues and Contentions (and associated attachments)
- Attachment A – Witness Statement from Ms PB (Applicant’s sister-in-law) (08.09.2022)
- Attachment B – Witness Statement from Mrs TM (Applicant’s mother) (18.09.2022)
- Attachment C – Expert Witness Summary of Engagement from Dart Russell (09.09.2022)
- Attachment D – Witness Statement and Job Offer from[name redacted][154] (undated)
- Attachment E – Notice of Visa Refusal of Protection (Class XA) visa from DOHA (02.08.2022)
A1
29.09.2022
Applicant
Evidence in Reply (and associated attachments)
- Attachment A – STTARS Complete Summary of Engagement with the Applicant (15.09.2022)
- Attachment B – Witness Statement of [name redacted] (10.08.2022)
- Attachment C – Clinical Records from IHMS (various dates)
- Attachment D - IHMS referral of Applicant' – Torture Trauma Service in WA (undated)
- Attachment E – Witness Statement of Mr AR (27.09.2022)
A2
09.09.2022
Applicant
Email from Dr Haines re first part of paragraph 5 of the Applicant’s SOFIC is withdrawn
A3
12.09.2022
Applicant
Employment Offer from Mr [name redacted] (17.08.2022)
A4
30.09.2022
Applicant
Letter of Support from Brother MM (28.09.2022)
A5
RESPONDENT’S MATERIAL 21.09.2022
Respondent
Statement of Facts, Issues and Contentions
R1
06.10.2022
Respondent
Submissions re decision of the delegate to refuse to grant the Applicant a protection visa
R2
11.10.2022
Respondent
Closing Submissions
R3
[154] See footnote [58].
Annexure B – Copy of Khalil decision
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2022/6377
General Division )
Re: FYQV
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL: Senior Member Theodore Tavoularis & Senior Member Kate Millar
DATE: 24 October 2022
PLACE: Adelaide
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets asides and substitutes the decision made by the delegate of the Respondent dated 29 July 2022 to not revoke the cancellation of the Applicant’s visa with a decision that the Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
.........................[SGD]................................
Senior Member Theodore Tavoularis
..............................[SGD]...........................
Senior Member Kate Milla
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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