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

[2023] AATA 1602

GHSS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1602 (12 June 2023)

Division:GENERAL DIVISION

File Number:          2021/6284

Re:GHSS

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:12 June 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review dated 6 September 2021 and, in substitution, does not exercise the power residing in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Protection (Class XA) visa.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Refusal to grant a Protection (Class XA) visa– where Applicant does not pass the character test – whether there is another reason to not exercise the power to refuse to grant the visa – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulation 1994 (Cth)

Cases

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

12 June 2023

INTRODUCTION

1. GHSS (‘the Applicant’) is a 39 year-old man, born in (now) South Sudan in December 1983.[1] He initially arrived in Australia in November 1999.[2] The Applicant has resided in Australia on a permanent basis since his initial arrival.

   [1] Exhibit 3, p 339.

   [2] Ibid, p 340.

2. On 18 January 2019, the Applicant applied for a Protection (Class XA, Subclass 866) visa (‘the visa’).[3] In the course of applying for this visa, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) made a finding that the Applicant is owed protection obligations according to s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act).[4]

   [3] Ibid, p 339.

   [4] Ibid.

3. On 6 September 2021, the Respondent refused to grant the requested visa (‘the Visa Refusal Decision’) based on a finding that the Applicant did not pass the character test under s 501(6)(a) of the Act because he had a substantial criminal record.[5]

   [5] Exhibit 1, pp 8-35.

4. There followed an initial application to this Tribunal on 7 September 2021 for merits review of the Visa Refusal Decision. On 29 November 2021, this Tribunal (constituted differently) made a decision affirming the decision under review. Following an appeal for judicial review, the Federal Court made orders on 19 October 2022 remitting the matter back to this Tribunal for reconsideration. I am satisfied this Tribunal has jurisdiction to review the decision pursuant to s 500(1)(b) of the Act.

5. The hearing of this application proceeded before me on 13, 14 March and 17 April 2023. Oral evidence was received from:

   ·The Applicant;

   ·Ms YG, the Applicant’s mother;

   ·Ms AMM, the Applicant’s sister;

   ·Dr Nina Zimmerman, forensic psychiatrist;

   ·Mr MC, the Applicant’s brother; and

   ·Ms CA, family friend of the Applicant.

6. The Hearing also received written evidence and the totality of that material was consolidated into an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.[6]

   [6] Transcript, p 2, lines 30-39.

   LEGISLATIVE FRAMEWORK

7. The power to refuse or grant visas is governed by s 501(1) of the Act. Relevantly, this provides that:

   1The Minister May refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

8. There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; and

   (b)whether there is another reason why the Tribunal should not exercise the power to refuse the visa.

9. If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.

   Does the Applicant pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.

11. The parties are in agreement that the Applicant does not pass the character test.[7] This is self-evidently the case by reference to the Applicant’s criminal history which readily discloses his compilation of a ‘substantial criminal record’ as defined by s 501(7)(c) of the Act.

    [7] See Exhibit 5, p 2, [9]; see also Exhibit 9, p 3, [14].

    Is the Tribunal’s power pursuant to s 501(1) enlivened?

12. In considering whether to refuse to grant the visa, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) (‘the Direction’) has application.[8]

    [8] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

13. For the purposes of deciding whether or not to exercise the power to refuse to grant the visa sought by the Applicant, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia 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.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (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.

14. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia:

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    (a)legal consequence of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

16. 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.

17. The material does not contain any reference to the Applicant’s commission of any offences outside of Australia. He has a long history of offending in this country. It runs (in terms of sentencing episodes) from March 2002 until February 2014. The offending involves the commission of some 52 offences that were dealt with across 32 sentencing episodes.[9] It can be summarised thus:

    [9] Exhibit 2, pp 54-58. Note: four of the entries in the Applicant’s list of criminal offences appearing in the history involve matters ‘called up’. Further, at least two of the sentencing episodes comprise appeals against previously-imposed sentences.

Court	Date	Offence	Sentence
NSW Local Court	February 2014	Robbery in company (x4)	Taken into account in December 2013 sentencing
NSW District Court	December 2013	Robbery in company	Imprisonment: 4 years Non-parole period with conditions: 2 years
NSW District Court	December 2013	Robbery in company	Imprisonment: 3 years and 8 months Non-parole period with conditions: 2 years
NSW Local Court	November 2013	Common assault	(Further call up) Imprisonment: 7 months Non-parole period: 3 months
NSW Local Court	September 2012	Shoplifting value <=$2000	Imprisonment: 6 days
		Fail to appear in accordance with bail undertaking	Fine: $300
		Shoplifting value <=$2000	Imprisonment: 3 months suspended on enter bond
		Common assault	(Call up) imprisonment: 7 months suspended on enter bond
NSW Local Court	May 2012	Common Assault	Bond: 18 months supervised probation
NSW Local Court	May 2011	Steal from person	(Call up) Imprisonment: 3 months suspended on enter bond
		Possess prohibited drug	Fine: $300
NSW Local Court	January 2011	Steal from person	(Call up) Bond: 18 months
NSW District Court (on appeal of August 2009 conviction and sentences)	September 2009	Common assault	Conviction confirmed
		Fail to appear in accordance with bail undertaking	Conviction confirmed
		Common assault	Conviction confirmed
		Steal from the person	Conviction confirmed
		Fail to appear in accordance with bail undertaking	Conviction confirmed
NSW Local Court	August 2009	Common assault	Imprisonment: 8 months
		Fail to appear in accordance with bail undertaking	Imprisonment: 1 month
		Common assault	Imprisonment: 6 months
		Steal from the person	Bond: 2 years supervision
		Fail to appear in accordance with bail undertaking	Imprisonment: 1 month
NSW Local Court	April 2009	Not pay train fare and hold valid ticket	Fine: $300
		Not pay train fare and hold valid ticket	Fine: $200
		Drink intoxicating liquor on train or in public area	Fine: $150
NSW Local Court	November 2008	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 14 days
NSW Local Court	July 2008	Contravene prohibition/restriction in order (Domestic)	Imprisonment: 1 day
NSW Local Court	May 2008	Use offensive language in/near public place/school	Conviction: with no other penalty
		Resist officer in execution of duty	Imprisonment: 113 days
		Common assault
		Contravene prohibition/restriction in order (Domestic)
		Destroy or damage property	Fine: $100
NSW Local Court	December 2006	Drive with middle range PCA	Fine: $2,000 Disqualification: 12 months
		Never licensed person drive vehicle on road (1st offence)	Fine: $500
NSW Local Court	December 2006	Supply a prohibited drug	(Call up) Imprisonment: 4 months
NSW Local Court	November 2006	Common assault	Bond: 12 months
NSW District Court (on appeal of May 2006 conviction and sentence)	August 2006	Supply a prohibited drug	(Call up) Conviction confirmed In lieu imprisonment: 4 months Suspended on enter bond: 4 months supervision
NSW Local court	May 2006	Supply prohibited drug	(Call up) 4 months
NSW Local Court	April 2006	Larceny	Fine: $400
		Common assault	Fine: $400
		Shoplift value <=$2000	Fine: $400
NSW Local Court	November 2005	Smoke on train, covered/roofed railway land/monorail works	Fine: $100
		Wilfully use offensive language on train/rail land/monorail	Fine: $250
NSW Local Court	September 2005	Supply a prohibited drug	Community service: 250 hours
		Possess prohibited drug (x2)	Fine: $100
NSW Local Court	July 2004	Leave restricted area without offering ticket for collection	Fine: $200
NSW Local Court	December 2003	Common assault	Bond: 3 years
		Have custody of an offensive implement in public place
NSW Local Court	March 2002	Behave in offensive manner in/near public place/school	Fine $120

1. I have searched the totality of the written material and cannot find any reference to a traffic history referrable to the Applicant. I have likewise searched the totality of the transcript from of the hearing before me and can find no mention of a traffic history. That said, the material contains a police narrative of an incident in December 2006 involving the Applicant’s conduct that contributed to a ‘major traffic crash’. That conduct did not result in the proffering of any charge or in the recording of a traffic offence. The relevant police narrative is noted ‘no further investigation’.[10]

   [10] Exhibit 4, p 476.

2. 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.

   The nature and seriousness of the Applicant’s conduct to date

3. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)     violent and/or sexual crimes;

   (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)   any conduct that forms 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 (for example, section 501(6)(c));

   (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

   (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   Paragraphs 8.1.1 Considerations

4. Sub-paragraph 8.1.1(1)(a): the Applicant has a multiplicity of convictions squarely falling within the ambit of the three sub-paragraphs to paragraph 8.1.1(1)(a) of the Direction. He has committed (and been convicted of) crimes of violence. This violence has been perpetrated in the course of his commission of the offence of ‘robbery in company’ as well as several convictions for ‘common assault’.[11]

   [11] Sub-paragraph 8.1.1(1)(a)(i) of the Direction.

5. He has violently offended against a female victim involving the infliction of a direct physical blow to the back of the victim’s head while also punching her of the left side of her face. After she fell to the floor and tried to stand up, he struck her again on the side of the face and grabbed her hair. This conduct was charged and convicted as ‘common assault’.[12]

   [12] Sub-paragraph 8.1.1(1)(a)(ii) of the Direction.

1. He also has convictions in the realm of family violence ranging from conduct requiring the imposition of an apprehended violence order to breaching such an order. This domestically violent conduct has seen the Applicant threatening to kill an ex-girlfriend. The conduct has also involved him becoming violent and aggressive towards a victim for no apparent reason leading to his calling the victim a ‘stupid bitch’ and an ‘idiot’. This conduct saw the Applicant grabbing the victim, digging his thumb into her upper left arm, causing minor bruising. He then struck that victim with an open palm, connecting with the back of the victim’s head and causing her to fall to the ground causing bruising to her right forearm.[13]

   [13] Sub-paragraph 8.1.1(1)(a)(iii) of the Direction.

2. The chapeau appearing at paragraph 8.1.1(1)(a) of the Direction mandates that conduct of this type is viewed very seriously by the Australian Government and the Australian community. I have no hesitation in attributing a descriptor of ‘very serious’ to this aspect of the Applicant’s offending.

3. Sub-paragraph 8.1.1(1)(b): of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. The Applicant has not committed any offence in the realm of causing another person to become a party to a forced marriage,[14] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion.[15]

   [14] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [15] Paragraph 8.1.1(1)(b)(iii) of the Direction.

4. There is, however, conduct referrable to the Applicant falling within the auspices of sub-paragraph 8.1.1(1)(b)(ii). In December 2007, the Applicant and another male became verbally aggressive and antagonistic towards police who were trying to place both of them into a taxi so they could safely travel home. The Applicant failed to follow the instructions of the police to sit on the ground and, prior to ignoring that request, he swore at them. This swearing involved the Applicant shouting at police ‘You guys are fucking racist’ and ‘you cunts are fucking stupid’. He also told police to ‘fuck off’. He repeatedly ignored requests by police to stand up and responded with ‘Get fucked I’ll stand up’. As police placed the Applicant into a holding cell, he identified one of the police officers by name and threatened the officer with these words ‘I’ll get you [name of police officer redacted]’.

5. The Applicant’s conduct towards police officers in the performance of their duties is squarely captured by sub-paragraph 8.1.1(1)(b)(ii) of the Direction and, as such, must be found to be ‘serious’ in accordance with the language of the chapeau to this sub-paragraph.

6. Sub-paragraph 8.1.1(1)(b)(iii) refers a decision-maker to ‘any conduct that forms the basis of a finding that non-citizen does not pass an aspect of the character test that is dependent upon the decision maker’s opinion…’. Having regard to the Applicant’s criminal history, I can safely make a finding that, pursuant to s 501(6)(a) this Applicant has compiled a ‘substantial criminal record’ (as defined by s 501(7)(c) of The Act). This finding engages the auspices of this paragraph 8.1.1(1)(b)(iii) such that an attribution of ‘serious’ can be applied to the nature and extent of the Applicant’s criminal history.

7. There can be no escaping the reality that sub-paragraph 8.1.1(1)(b)(iii) squarely applies to circumstances of this Applicant failing the character test such that it strongly militates in favour of a finding that the Applicant’s conduct has been of an, at least, serious nature, more likely very serious nature.

8. The final component of this sub-paragraph 8.1.1(1)(b) looks for conduct referrable to the Applicant resulting in a conviction for ‘…a crime committed while [the Applicant] was in immigration detention…’.[16] There are 22 incidents of misconduct referrable to the Applicant during his time in criminal custody during the period 2007 to 2016. Here, however, we are talking about ‘a crime’ committed while the Applicant was in ‘immigration detention’. As best as I understood the criminal history, the Applicant commenced serving a two-year period in actual criminal period in mid-May 2013. That two-year term expired in May 2015 whereupon he was taken into immigration detention. Based on the criminal history appearing in the material,[17] the Applicant does not have any convictions after February 2014. It is therefore safe to find that he does not have any conviction for a crime committed while in immigration detention. This sub-paragraph 8.1.1(1)(b) can be safely put to one side.

   [16] Paragraph 8.1.1(1)(b)(iv) of the Direction.

   [17] Exhibit 2, pp 54-58; this criminal history has a report run date/time of 30 August 2019.

9. I am satisfied that sub-paragraphs 8.1.1(1)(b)(ii) and (iii) strongly militate in favour of a finding that, consistent with the language appearing in the chapeau to sub-paragraph 8.1.1(1)(b) of the Direction, the nature of the Applicant’s conduct must be found to be (at least) serious, more likely, very serious.

10. Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

    (a)any violent offending he may have committed against women;[18]

    (b)acts of family violence;[19] and

    (c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[20]

    [18] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [19] Paragraph 8.1.1(1)(a)(iii) of the Direction.

    [20] Paragraph 8.1.1(1)(b)(i) of the Direction.

11. I am therefore precluded from taking into account sentences imposed for any crimes of violence by the Applicant against a woman or child. I am likewise precluded from taking into account sentences imposed for acts of family violence and for any conduct relating to the Applicant forcing someone into a forced marriage.

12. However, the sentences imposed for the Applicant’s offences of violence (plus any sexual crimes) can be taken into account in the assessment of the extent to which those sentences imposed may now speak to the nature and seriousness of his offending. In terms of sentences imposed for non-precluded offending, the Applicant’s criminal history has this to say:

    ·May 2006: supply a prohibited drug – four months imprisonment;[21]

    ·May 2008: resist officer in execution of duty – 113 days imprisonment;[22]

    ·August 2009: fail to appear in accordance with bail undertaking – one month imprisonment;

    ·August 2009: common assault – six months imprisonment;

    ·August 2009: fail to appear in accordance with bail undertaking – one-month imprisonment;

    ·August 2009: common assault – eight months imprisonment;

    ·May 2011: steal from the person – three months imprisonment;[23]

    ·November 2013: common assault – seven months imprisonment;[24]

    ·December 2013: robbery in company – three years and eight months imprisonment;

    ·December 2013: robbery in company – four years imprisonment;

    [21] Called up matter.

    [22] Note to reader: this sentence was identically imposed for two other offences for which the Applicant was sentenced on that particular sentencing date.

    [23] Called up matter.

    [24] Called up matter.

13. It is well-established that the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. Even taking into account the sentences imposed on the Applicant for his precluded offending, the balance of the custodial terms that were imposed on him have been significant and substantial. As mentioned earlier, the Applicant’s criminal history contains well in excess of 50 entries, including matter that were ‘called up’. Despite the fact that the history contains a significant number of non-custodial sentences in the form of (1) fines; (2) bonds; (3) community service orders; and (4) entirely suspended sentences in return for entering into a bond, none of these non-custodial sentences should be found to militate against any finding about the significance and severity of the non-precluded sentences regime imposed on this Applicant.

14. It is therefore safe to find that the sentences imposed by the Courts for this Applicant’s non-precluded offending are significant and substantial. This sub-paragraph 8.1.1(1)(c) must strongly militate in favour of a finding that the sentences imposed by the court on this Applicant’s speak to the very serious nature of his offending.

15. Paragraph 8.1.1(1)(d): as mentioned, this Applicant’s criminal history contains entries for some 52 offences (including called up matters) that have been dealt with at some 23 sentencing episodes. It is a criminal history (in terms of sentencing episodes) that runs from March 2002 to February 2014 – a period of about 12 years. This equates to the commission of about four offences per annum across the period of the criminal history. It also equates to the Applicant’s appearance before sentencing courts at the rate of at least one, more like two, occasions for each year of that criminal history. I am therefore satisfied that the Applicant has been a frequent offender.

16. Is there any trend of increasing seriousness to be taken from the offending history? The first two entries in the history cannot be realistically found to be serious offences. However, as early as the third convicted offence (for common assault), the pattern of the Applicant’s offending is established and largely repeated for the balance of the history. This includes (1) offences against the person; (2) offences involving illicit drugs; (3) offences against the property of others;(4) the commission of regulatory offences; and (5) offences deriving from a failure to respect and follow the dictates of lawful authority.

17. There is no requirement to search for a trend of increasing seriousness. On any objective view, the Applicant’s offending has been at least of a serious nature from its outset. The only question for present purposes is whether that serious conduct graduates into very serious conduct as the history progresses. I think (and find) that it does. This is because his convictions for offending against the person in a domestic context together with his convictions for ‘robbery in company’ do take the nature of his offending to another level. But in terms of a ‘trend’ it can be safely found that his offending has been serious virtually from its beginning.

18. This sub-paragraph 8.1.1(1)(d) therefore militates strongly in favour of a finding that the totality of this Applicant’s offending has been of a very serious nature.     

19. Sub-paragraph 8.1.1(1)(e): This sub-paragraph compels an inquiry into any discernible effects resulting from the Applicant’s offending. To my mind, those cumulative effects may be stated as follows. First, the Applicant’s violent offending against women in a domestic context has been deplorable. There is no getting around a finding that his offending has significantly endangered the safety of at least one female victim. Second, the Applicant has multiple convictions relating to illicit drugs and alcohol. These convictions speak to the extent to which his difficulties with abuse of those substances has been behind his offending conduct. This conduct has, in turn, adversely impacted upon a large number of victims.

20. Third, the Applicant has multiple convictions for a failure to follow a lawful direction and to otherwise meet the requirements of lawful authority. This can be seen in his convictions for (1) contravening domestic violence - type orders; (2) resisting police in the execution of their duty; (3) failing to appear in accordance with a bail undertaking; and (4) a failure to meet basic regulatory requirements when using public transport such as drinking intoxicating liquor on a train, failing to pay a train fare, wilfully use offensive language on a train, smoke on a train, failing to hold a valid train ticket; and (5) behaving in an offensive manner in or near a school.

21. Fourth, there are at least 10 entries in the Applicant’s criminal history relating to unlawful conduct contrary to the property rights of others. These convictions relate to ‘steal from the person’ (at least four convictions), ‘shoplifting’ (at least three convictions), ‘larceny’ (one conviction), ‘destroy or damage property’ (one conviction); and ‘robbery in company’ (six convictions). There is little or nothing to cavil with the finding that this Applicant’s unlawful conduct has clearly and obviously harmed the property rights of others. It speaks of an Applicant who was prepared to take the property of others to meet a contingency in his life, such contingency usually always involving a need to meet the craving arising from his addictions.

22. Fifth, it can again be stated that we are talking about an Applicant with a criminal history of something like 52 offences (including ‘called up’ matters). It was been before the courts for sentencing on 23 occasions. His offending has involved intervention by the police on a large number of occasions as well as the requirement by judicial sentencing officer to impose sentencing for his unlawful conduct. The intensity of the offending pattern across a barely 12 year period can be safely found to have consumed more than its fair share of the community’s law enforcement and judicial sentencing resources.

23. I am satisfied that these cumulative effects of the Applicant’s offending most certainly speak to the very serious nature of the totality of his offending.

24. Sub-paragraph 8.1.1(1)(f): As best as I have understood it, the material does not contain a reference to any movement history attributable to this Applicant. It appears that he arrived in Australia in November 1999 and has remained here ever since. This sub-paragraph can be safely put to one side and rendered neutral present purposes.

25. Sub-paragraph 8.1.1(1)(g): I have searched the material in its totality and cannot locate any formal written notification from the Respondent Minister’s department to the Applicant warning him about the consequences of further offending on his visa status to remain here. This sub-paragraph can be safely put to one side and rendered neutral present purposes.

26. Sub-paragraph 8.1.1(1)(h): The Applicant’s family fled what was then known as Sudan (now South Sudan) when he was aged six. He then spent nine years in Egypt as a refugee and arrived in Australia as a 15 year old. There is no evidence before the Tribunal pointing to the Applicant’s commission of a crime in either his country of birth or Egypt. This sub-paragraph can be safely put to one side and rendered neutral present purposes.

    Conclusion about the nature and seriousness of the Applicant’s conduct

27. I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which I have referred, I conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as very serious.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

28. Paragraph 8.1.2(1) 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 repeated may be unacceptable.

29. Paragraph 8.1.2(2) 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

30. It suffices to say and repeat that the Applicant has a very extensive history of criminal offending in this country. The range of offences is likewise broad in scope ranging from, firstly, offences of violence against women in a domestic context. In this vein he is also responsible for physically violent and/or aggressive behaviour towards romantic partners, close contacts, strangers and people in positions of authority. His difficulties with a recourse to violence to resolve perceived impasses in his life has continued in custodial settings.[25] There is little or nothing to cavil with the proposition that any re-commission of such violent offending could quite realistically result in harm, and, quite conceivably, catastrophic harm to a victim.

    [25] Exhibit 4, pp 826-827, [33].

31. Second, the Applicant has a relatively consistent history of offences contrary to the rights of other people to own and enjoy their property. This type of conduct ranges from shoplifting to ‘steal from person’ to ‘destroy or damage property’. The Applicant cannot resist a finding that a recommission of such offences will cause those property owners material and quantifiable loss and damage. Third, the Applicant has a conviction for ‘supply of prohibited drug’ and ‘possess prohibited drug’. Were he again to involve himself in such unlawful conduct, there would be adverse consequences for consumers of those substances and/or their families and loved ones impacted by any such addiction and/or the community’s healthcare apparatus that would have to deal with adverse outcomes from such addictions and/or consumption of illicit substances supplied by the Applicant.

32. Fourth, the Applicant has a consistent history of petulant offending in the realm of anti-social conduct involving inappropriate and offensive behaviour. This conduct has found its way into him misusing public transport such that he does not purchase the necessary ticket to do so and/or smokes tobacco on a public carriage when there is a prohibition against doing so. This petulant conduct has its parallel in the Applicant’s failure to meet the requirements of lawful authority be it in the form of failing to observe the terms of a domestic violence order, failing to meet the terms of bail and resisting a police officer in the course of their duty. Recommission of such conduct would necessarily engage and expend the community’s policing resources in circumstances where those resources would be better deployed in dealing with more significant criminal activity.

33. Fifth, the Applicant has a very unimpressive history relating to the operation, management and control of a motor vehicle on Australian carriageways. I have earlier referred to the apparent absence of a traffic history in the material now before me.[26] That said, it is important to note that this Applicant has two convictions for traffic-related offending. Both convictions were imposed in December 2006. The first was for driving with a middle range of blood-alcohol concentration for which he was fined $2000 and disqualified from driving for 12 months. The second conviction was for never licenced person drive vehicle on road for which he was fined $500. What is especially significant about this offending is that it was committed in the context of a serious traffic accident particulars of which appear in the material in these terms:

    ‘About 1am on Saturday the [day redacted] of December 2006, the accused [the Applicant] drove a white Suzuki bearing registration plates .........(NSW) on [location redacted]. At the time the accused was accompanied by the owner/witness of the vehicle ......... ......... who was seated in the front passenger seat of the vehicle. The accused took a left turn from [location redacted] at a high speed and collided with the footpath kerb located outside [location redacted]  located on ......... ......... ......... .......... The accused lost control of the vehicle and collied with the front near side a yellow Mercedes bearing registration plates .........(NSW) that was parked on the western kerb [location redacted] outside [location redacted] located at the intersection of [location redacted] and [location redacted]. After the collision the accused attempted to continued driving at a high speed but again collided with the front offside of a Red Ford Laser bearing registration plates .........(NSW) that was parked on the eastern kerb of [location redacted] outside [location redacted]. Upon colliding with the Red Ford Laser the accused's vehicle went across the [location redacted] and collided with a White Mitshubishi bearing registration plates ......... (NSW) that was parked on the western kerb of [location redacted]. . The accused did not stop after the collisions and continued driving north on [location redacted]. The accused took a right turn into [street redacted] and drove towards [location redacted]. The witnesses ......... and ......... who were outside [location redacted] performing their duties as security officers got into a vehicle and pursued the accused. . After the collision the witness/owner ......... repeatedly asked the accused to stop the vehicle. The accused finally stopped the vehicle at the intersection of [location redacted].’[27]

    [26] See paragraph [18] of these Reasons.

    [27] Exhibit 4, pp 476-477.

1. While the above police report has been heavily redacted to protect the Applicant’s identity, it suffices to say that it took place in inner Sydney under three kilometres from the city centre. The conduct could have quite conceivably resulted in very significant adverse outcomes for other road users, be they pedestrians or drivers. I have previously recounted the inherent danger to the community resulting from this type of traffic conduct, particularly in the realm of unlicenced driving.[28] I will presume that the two traffic/driving offences appearing in the Applicant’s history derive from the above-quoted circumstances. To be fair to the Applicant, while the two abovementioned traffic/driving charges were proceeded with, the police record is noted ‘no further investigation’ in relation to any further charges.

   [28] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45].

2. I am satisfied that if this Applicant were to re-commit any of his offences I have categorised in the above paragraphs, there would follow very serious physical, psychological, materially quantifiable and, quite conceivably, very significant adverse outcomes to a victim(s). Any re-commission of the Applicant’s very serious violent offending and the harm that it would cause would be, to my mind, so serious that any risk that it may be repeated would be unacceptable. I so find.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

3. I will assess the likelihood of the Applicant engaging in further or other serious conduct via a discussion and analysis of the evidence of specific witnesses who appeared at the hearing before me. As is usual, that evidence was both lay and expert. In terms of the lay evidence I propose to approach it thus:

   ·with regard to the Applicant’s evidence, I will give attention to his self-reported levels of rehabilitation from illicit substance and alcohol abuse and the extent to which he now says he will avoid any return or recourse to such substance abuse if returned to the community;

   ·with regard to his mother’s evidence (Ms YG), I will examine the extent to which she can offer some measure of post-release stability to the Applicant particularly with regard to: (1) somewhere for him to reside while re-establishing himself in the community; and (2) the extent to which her own needs will compel involvement on his part;

   ·with regard to the evidence of the Applicant’s long-term friend (Ms CA), I will have regard to the extent of her understanding of the Applicant’s circumstances and, further, the extent to which she can facilitate employment for the Applicant in the building and construction industry;

   ·with regard to the evidence of the Applicant’s sister (Ms AMM), I will look at the extent to which she can offer guidance, support and assistance to the Applicant in the event she notices him falling back into a cycle of illicit substance and alcohol abuse;

   ·with regard to the evidence of the Applicant’s brother (Mr MC), I will examine the extent to which he, being based in the Australian Capital Territory, can offer the Applicant stable employment and lodgings were the Applicant to elect to live and work with his brother;

4. In terms of the expert evidence, this hearing had the benefit of extensive evidence from the very experienced forensic psychiatrist, Dr Nina Zimmerman. Dr Zimmerman who has provided four reports during the course of the Applicant’s travails with his visa status and who also provided quite lengthy oral evidence to the instant hearing.

   Lay evidence

5. The evidence of the Applicant: the Applicant’s most recent written statement was signed on 10 February 2023. In this statement he recounts the range of rehabilitative courses he has completed.[29] He speaks of starting meditation[30] and of otherwise ‘keeping out of trouble in detention’.[31] He speaks of a referral to the organisation known as the ‘Association for Services to Torture and Trauma Survivors’ (‘STARTTS’) in July 2002.[32] He acknowledges that he continues to have issues around the state of his mental health. In particular, he acknowledges that:

   ‘I keep trying to get help though. I have recently seen a mental health nurse and have asked for another referral to a psychologist. I’ve done this because my mental health is not good at the moment and I know I need more support. I’m still experiencing flashbacks, I don’t sleep well and I feel stressed a lot. I also find it difficult to not think about the traumatic things I’ve experienced in the past.’[33]

   [29] Exhibit 6, pp 2-3, [10]-[14].

   [30] Ibid, p 2, [9]

   [31] Ibid, [8].

   [32] Ibid, p 5, [25].

   [33] Exhibit 6, p 5, [26].

6. The Applicant refers to a current engagement with the rehabilitation facility known as Odyssey House and he further says that ‘…they have said that they can support me in the community as well.’[34] In terms of future treatment, he says:

   ‘I have contacted DAMEC (the Drug and Alcohol Multicultural Education Centre) and they told me I can also connect with the for drug and alcohol support if I’m in the community. I have previously done counselling with STARTTS, the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, and I would engage in counselling with them again if I was living in Sydney.’[35]

   [34] Ibid, [31].

   [35] Ibid.

7. He concludes his statement with saying that ‘I just want to be able to live a simple life in the community, working and spending time with my family.’[36] He refers to past failures to change his ways and acknowledges that this has indeed occurred. He says the future will be different as a result of the spectre of indefinite detention:

   ‘You might say to me that I had the chance to change my ways before 2016. That’s true. But there is nothing like having to go through indefinite detention, with the threat of even more indefinite detention, to focus on what’s important. In the last few years I have kept out of trouble, and that is what I have achieved. It would have been easy for me to hang out with the many criminals in detention, mix in the wrong circles, and get back into the same type of behaviour which got me here in the first place. I haven’t done that.’[37]

   [36] Ibid, p 7, [40].

   [37] Exhibit 7, p 7, [41].

8. In his oral evidence in chief, the Applicant referred to making a commitment to himself ‘a long time ago…maybe two years, three years now’ to stay out of trouble.[38] He referred to his completion of an online course relating to domestic violence and abuse. He said ‘I’ve gained a lot of tools out of this course…I’ve learned how to…think properly and…have the right kind of clear mind of my actions.’[39] He also spoke of having learned how to deploy those strategies in these terms:

   ‘MR HONNERY: Now how do you apply them?

   APPLICANT: I do apply them in a lot of ways.  You know there’s - there’s a lot of ways that I can avoid things, like I actually mitigate or reconcile or to compromise. There’s a lot of ways that - it depend on - it depends on the situation.’[40]

   [38] Transcript, p 11, lines 34 and 38.

   [39] Ibid, lines 44-47.

   [40] Transcript, p 12, lines 4-7.

9. He was specifically taken to the circumstances of his domestically violent conduct against his then partner in 2007. He made it clear that the abuse of illicit drugs was at the front and centre of that very serious conduct:

   ‘MR HONNERY: In respect of the domestic violence course that you refer to in your statement, did you think about when you assaulted your own girlfriend in 2007, did you think about that when you did the domestic violence course?

   APPLICANT: Honestly I didn’t think about this.  I was so selfish that time, I didn’t really think about nothing.  Like I said before, my life was just - my life was absolutely - well to be honest to you, I thank God that I’m still alive, you know, and I - I was - you know, like I’ve learned a lot of things about other people.  I didn’t have nothing in my head at that time.  I didn’t - I was just - I was just completely just - just like outside just having the drugs and living with a shit life.’[41]

   [41] Ibid, lines 38-46.

10. He was specifically taken to a rehabilitative course he has completed in relation to illicit drug and alcohol abuse and, in particular, how it will be possible for him to avoid a relapse in the future:

    ‘…the reason I did that course is actually I wanted - I wanted to address my problem with drugs and alcohol and I wanted to actually have more understanding and concept of how would I avoid those kind of - those kind of problem again, you know, like if I’m going to relapse again and stuff like that.  So this relapsing and I’ve - I’m actually like - with relapsing, like I’m actually like in a - in a direction now where I can’t relapse again.  I’ve been - I’ve been away from drugs for a long time ago and I know some strategies to actually - to stay away from - from drugs.’[42]

    [42] Ibid, p 13, lines 43-47; p 14, lines 1-3.

11. He spoke of being abstinent from taking drugs for the last four-five years. He identified factors which cause him to not think about taking drugs and which otherwise have taught him to strategize his way towards a resolution of difficulties he is experiencing in his life:

    ‘MR HONNERY: Have you applied what you’ve learnt from these courses in your daily life in detention?

    APPLICANT: You seen there, the sign of the substance abuse like I’ve been away now from drugs for almost five years, four years.  So what I do is I keep myself busy.  I make sure like I train, I read books.  I make - I talk with my  family all the time, so I can’t just think about those things to relapse again and having like - even with the - with that drugs then, that’s not the conflicts managing and negotiation.  It actually teach me how to negotiate how to   have - like to understand about the problem solving, how to negotiate and how could you manage.’[43]

    [43] Transcript, p 14, lines 10-19.

12. He was specifically asked about his understanding of the extent to which his ‘robbery in company’ offences would have instilled fear and trauma in the minds of his victims. He responded in these terms:

    ‘MR HONNERY: You said before about learning to put yourself in someone else’s shoes, could you do that for the tribunal and tell us when you robbed the tourist in Kings Cross in 2013 how do you think that made them feel?

    APPLICANT: Well I’m sure it caused them fear of their life.  I’m sure it would have - they would have got scared really - like I’m sure they would have - because - because of - I told them that I had a knife and stuff like that, so I’m sure - like I would have made them very, very scared.’[44]

    [44] Ibid, lines 31-37.

13. He was referred to his pattern of criminal offending that commenced when he was 18 years old and continued until he was 30 and placed in prison in 2013. He was asked to talk back to his 18 year old self and to describe the advice he would, as it were, give to himself as a younger man:

    ‘MR HONNERY: So your criminal offending started when you were 18 years old and it continued right through till when you were 30, went to prison in 2013.  If you could talk to your 18 year old self today, the person you are, what would you say?

    APPLICANT: This is what I’ve been saying, I’ve been saying to my cousins, my nephews, everyone, I’ve been always advise them about this kind of living and what I will give them advice as - I will tell them this kind of life, it’s - it’s nothing. Like you’re not going to get nothing out of it.  There’s - keeping out of this kind of life.  You’ve got to be very careful with your - with your decisions because your decisions could actually impact on - on others and on you too and everything can change out of your decision dramatically.’[45]

    [45] Ibid, p 15, lines 19-28.

14. Further in his evidence in chief, he was asked about how this Tribunal could be satisfied that he would not again resort to illicit substance abuse as a means of dealing with life’s difficulties:

    ‘MR HONNERY: How could this tribunal be confident that you wouldn’t succumb to bad influences again if you were released?

    APPLICANT: Well I’m turning 40.  I’m turning 40 years old.  So it’s not about me anymore.  It’s not about me.  It’s about - it’s about me and my family.  It’s about my plans, my goals, and all these things that I want to - I want to - I want to achieve when I get out.  These drugs, I didn’t get nothing out of it to be honest to you.  What did it get me?  It didn’t get nowhere.’[46]

    [46] Transcript, p 16, lines 30-36.

15. In terms of future plans and aspirations, the Applicant told the Tribunal that he has previously worked in the building and construction industry and would like to return to that line of work. He said that he has previously completed two years of work in the bricklaying trade and that he would like to re-start and complete his TAFE studies in this regard.[47]

    [47] See generally, Transcript, p 27, line 6-20.

16. Finally, the Applicant was asked to describe the extent of his transformation over the course of the approximately 10 years he has spent out of the mainstream community. He spoke of having reformed himself in these terms:

    ‘Well, my transformation, I reformed.  I’ve reformed of the person that I used to be.  Every human being is willing to transform, everyone is willing to change.  I mean it’s up to you.  If you have the willingness to actually change.  So the transformation is my vision, my vision, my plans, my goals, my dreams, its more sincere now and it’s more about, it’s about establishing life with my family.  Contributing back to the community and those kind of things that I’ve - that actually, I could see the difference between then and now.  So I didn’t have this when I was outside.  The transformation, its everything.  It’s my vision, my ideology about life, things like that.  So there’s a lot of things that’s been transformed or is changed for me.’[48]

    [48] Transcript, p 28, lines 18-28.

17. During the course of his cross-examination, the Applicant was taken to his past difficulties with problem gambling and he was specifically asked if it remains a problem for him:

    ‘MR HARVEY: Is gambling still a problem for you?

    APPLICANT: No, I don’t think so.  It was my problem because - actually, you know what, with gambling, yes, it goes hand to hands with meth.  When you - I mean, most of meth heads like, we used - well when I used to smoke, actually, I used to actually enjoy, like - it gave me straight away attract to, attracted to play gambling.  But other than that, I think it just - I haven’t smoked for a long time.  I haven’t used drugs.  I mean, like it’s just automatically out of my head.  Like it’s not in my head.  I used to just play when I was - I used to smoke meth, to be honest with you.  So it goes hand to hands with meth, I don’t know, for some reason.’[49]

    [49] Transcript, p 39, line 11-19.

18. The Applicant was challenged about the extent to which the Tribunal can now accept his evidence about being a transformed person. This is what transpired between him and the Applicant’s representative during cross-examination:

    ‘MR HARVEY: So why should we accept that you’ve changed in two and a-half years when you spent 11 years offending, had various incidents in prison and in detention over seven years?

    APPLICANT: Can you say that again, please?

    MR HARVEY: Sir, why should we believe that you’ve changed in two and a-half years, and you were offending over an 11 year period, and you had various incidents with prison staff, detention staff, detainees, over a seven year period?

    APPLICANT: Well, I could be telling you all these things, yes, I can tell you all the - well, you probably don’t know me but you’re just going by what you can read there. But I’ve - what I’ve made a change is - I made a change for me and for my family.  I - and I’m always wanting to do the best for myself and for my family, and not to repeat things.  To tell you why and why not, I can tell you things but I’ve always wanted to be right, just to do the right thing, and not to repeat what I’ve done before or any kind of things that it would jeopardise me, like I said to you.  So, I don’t know, the way you’re looking at it, you’re looking at it, at the timeframe since when they were offending, but this my personal kind of decision that I made.  I’ll never offend again.’[50]

    [50] Transcript, p 57, lines 35-47; p 58, lines 1-4.

19. There followed some questions from me. Those questions and answers appear in the transcript. The Applicant agreed with me that the extent of his difficulties with the law in Australia (and, by implication, the visa authorities in Australia) derive from his past difficulties with either illicit drugs, alcohol or gambling.[51] He agreed with me ‘…one hundred million percent…’[52] that if he had maintained constant employment in the construction industry he would be making good money and would not be involved with having to arbitrarily rob six German tourists on their night out in central Sydney.

    [51] See generally, Transcript, p 60, lines 14-25.

    [52] Transcript, p 60, line 33.

20. He accepted that his difficulties with illicit substances and gambling is a form of sickness affecting his life.[53] He further agreed that these types of sicknesses will need to be managed by him in the community. He spoke of his intention to maintain and involvement with the STARTTS organisation as well as Odyssey House. He confirmed that ‘I haven’t touched drugs for five years, so I said I will never, ever put anything in my mouth that will jeopardize everything or … put me back in trouble.’[54]

    [53] Ibid, lines 45-47; p 61, lines 1-4.

    [54] Ibid, p 61, lines 13-15.

21. I took the Applicant to certain phrases he used during the course of his oral evidence relating to strategies to deal with life’s difficulties and how he had come to develop a familiarity with them and how the courses he has done have taught him how to apply those strategies:

    ‘SENIOR MEMBER: Okay.  And another impressive thing that you said is that you told Mr Harvey that knowing about problem-solving mechanisms and de-escalation tactics is one thing, but being able to put them in practice is something else.  Where did you learn - - -?

    APPLICANT: (Indistinct).

    SENIOR MEMBER: All right.  Where did you learn that very important and fundamental rule?

    APPLICANT: Sir, well, I’ve been here for 10 years.  It’s wisdom, sir.  It’s me, like, knowing - it’s something that’s come from the heart.  So knowing something without applying it, it’s knowing, you know what I mean.

    SENIOR MEMBER: Right?

    APPLICANT: So applying it - it’s something that I applied it.

    SENIOR MEMBER So it’s come from two places.  The first place it’s come from is your life experience as a result of being out of the community for the best part of 10 years;  and it’s come from what you’ve learnt in the courses you’ve done?

    APPLICANT: Yes.’[55]

    [55] Transcript, p 61, lines 37-47; p 62, lines 1-5.

22. The evidence of the Applicant’s mother, Ms YG: the latest statement from the Applicant’s mother is an unsigned statutory declaration that, on its face, says that it was made this year.[56] It suffices to say that this statement was made in anticipation of the instant hearing. According to her evidence, the Applicant’s mother is not a well woman. She says ‘I am old and have a lot of health issues. My health keeps getting worse. I struggle with depression and anxiety.’[57] In terms of physical maladies she says the following:

    ‘I also have diabetes, a thyroid condition, very high blood pressure and high cholesterol. I have had operations to replace both my knees, which means I can’t walk very well.

    I take medication for my thyroid problem, high blood pressure and pain. I’m also taking medication to help me sleep. When I’m stressed and don’t sleep my other health conditions get worse, like my high blood pressure.’[58]

    [56] Exhibit 7.

    [57] Ibid, p 1, [4].

    [58] Ibid, p 2, [5]-[6].

23. Further in her statement she talks about her living arrangements. She lives with her daughter (the Applicant’s sister) and her daughter’s son. She makes it clear that if returned to the community the Applicant will live with her and the sister. She confirms that ‘We have a separate room already setup for him with a queen-sized bed.’[59] She says the daughter has ‘an enormous amount on her plate.’[60] This is because the daughter juggles a busy work life, study commitments as well as meeting the responsibility for the care of her young child.

    [59] Exhibit 7, p 2, [7].

    [60] Ibid, [8].

1. Were the Applicant to be returned to the community the Applicant’s mother says he could assist her in the following ways:[61]

   ·he will assist the sister in the care of her infant son while the sister is at work or studying;

   ·he will assist the mother by taking her to medical appointments, assisting with domestic chores and otherwise taking her to community events;

   ·with income he derives from his employment, he will ‘improve the financial wellbeing of the entire household.’;

   ·the Applicant will also be able to assist with the care of another infant grandchild and will be able to take both of these infant children ‘to the park and teaching them how to play soccer.’

   [61] Ibid, pp 2-3, [10]-[13]

2. The Applicant’s mother also feels the Applicant will, if returned to the community, ‘…be in a good position to contribute to the community…’[62] Towards the end of her statement, she says, that if compelled to remain in immigration detention, ‘…it will feel like we have lost him for good; like he is deceased.’[63]

   [62] Ibid, p 4, [18].

   [63] Ibid, [19].

3. The Applicant’s mother also provided oral evidence at the instant hearing. During her oral evidence she confirmed the modalities in which the Applicant would be able to assist the family unit by a return to the community.[64] Despite his criminal history, she nevertheless thinks the Applicant would be a positive influence on his nieces and nephews if returned to the community.[65]

   [64] See generally, Transcript, p 125, lines 29-35.

   [65] Transcript, p 126, lines 1-5.

4. She was specifically asked how her family unit could support the Applicant in the event of his return to the community. She said ‘…we as a family will support him until he manage [sic] to do these things on his own.’[66] In terms of his community contribution (assuming the Applicant is in the community), she said the following:

   ‘INTERPRETER:  [the Applicant] can come give advice in the community and he can help with leading in the community because now in our society we have a lot of kids that are in prison, especially in my community, so he can help the community with all those kids who are having issues now going to prison, and he can with the sport as well because he is a sport person.  If they got a centre, he can help to teach them with their sport, especially basketball.’[67]

   [66] Ibid, p 127, lines 1-2.

   [67] Ibid, lines 10-15.

5. The Applicant’s mother was not cross-examined.

6. The Applicant’s sister, Ms AMM: provided both oral and written evidence to the instant hearing. Her latest written statement in the form of a statutory declaration appears in the material.[68] it is unsigned but has obviously been prepared in anticipation of the instant hearing. In her statement, the Applicant’s sister confirms she is a single mother and that she lives at a residence with her mother and her infant son who is aged five and at kindergarten.

   [68] Exhibit 8.

7. She further confirms that she is studying three days a week towards earning a Diploma in Disability. She further confirms that ‘I’m also working several shifts as a support worker, including on Saturdays and Sundays when I work eight to ten hours a day.’[69] It is best to refer to the sister’s statement to get a fulsome understanding of how her life and commitments interact with that of her mother and, in turn, how the Applicant can assist them:

   ‘My work and study commitments mean that I’m really busy. Because I’m so busy mum looks after Child K a lot. She looks after him both days on the weekend and also during the week. It’s a lot for her, especially given her age and health issues, including her bad knees. There are some things she can’t do. For example, she can’t take Child K to or from school because it’s hard for her walk there. It’s a real challenge for me to juggle school pick up and drop off around my work and study commitments. It’s also difficult for mum to prepare dinner for Child K while she’s looking after him. This means I have to either cook meals ahead of time or rush home from work to make dinner.

   Mum is often also looking after Child G, another one of her grandsons, because his mother, Ms A, is working too. It’s a lot for our mum.

   I’m so busy with work and study that it’s hard for me to find time to help Child K with his learning. Mum hasn’t had the benefit of an education so this isn’t something she’s able to do with him.

   Mum also needs someone to take her out, for example, to medical or other appointments and to do her shopping. It’s hard for me to fit it in but I do what I can. If I really can’t take her then I ask a cousin to step in to help, but they are not available to support mum on a regular basis. My sister Ms A is also working a lot and looking after her son so it’s hard for her too.’[70]

   [69] Ibid, p 1, [4].

   [70] Exhibit 8, pp 1-2, [5]-[8].

8. To her significant credit, the Applicant’s sister says that she is working and studying because she wants to make the best possible life for herself and her son in Australia. She says that the extent of her work and study commitments means ‘There’s a lot of pressure on mum and me and it’s hard for us to juggle everything. It often feels like life is against us.’[71] I will again refer to the sister’s statement so the reader can understand what sort of involvement the Applicant will have on the family unit if returned to the community:

   ‘If [the Applicant] is released he will live with us. We already have his room set up for him. Having him with us would make an enormous difference to our lives, not just emotionally but also practically. He would be such a big help to us all. He could help mum and me look after Child K and Child G. He could take Child K to school and pick him up and help with the cooking. He could help Child K with his education. He could also take mum to appointments. It would be a huge help for me, and also for mum.’[72]

   [71] Ibid, p 2, [9].

   [72] Ibid, [10].

9. In her statement, the Applicant’s sister confirms she is in ‘regular contact’[73] with him. They send each other voice messages and she says that she really misses him and worries about him and the state of his health while he is in immigration detention.[74]

   [73] Ibid, p 3, [12].

   [74] Ibid.

10. In her oral evidence in chief, the Applicant’s sister confirmed that the Applicant came here before she did. She acknowledges that he has committed offences in this country but now regards him as ‘…totally changed. Totally, he is not the same man…’[75] She told the hearing that for the first two years of the Applicant’s removal from the community (i.e when he was in prison) ‘he wasn’t talking to us.’[76] She further confirmed that ‘The last six years he apologised. He said what he’d been through – he wasn’t happy and that his why he don’t want to see us at that time.’[77]

    [75] Transcript, p 117, lines 33-34.

    [76] Ibid, p 118, line 2.

    [77] Ibid, lines 6-8.

11. She was referred to her telephone voicemail communication with the Applicant. She said the following:

    ‘MR HONNERY: … You said you were talking all the time with your brother and if you look at the statement in front of you, you say at paragraph 12 you send each other voice messages?

    APPLICANT: Yes, he now - we always because I am really busy and working like a dog in the disability and I am working at the same time and then always because he then sends voice messages.  He talks to me like every morning.  He says hello and when I come back, I talk to him but not the phone…’[78]

    [78] Ibid, lines 16-22.

12. She was specifically asked about what sorts of things they talk about during these voice mail communications. She said the following:

    ‘Now he always talk about new future, so he come out and what he can do.  Like, he always now talk to me about - he wants to go back to school and he says he wants to work, and always - he never said those things before but these two years or less - like 2012 and 2021, at the time he used to say he has the - he want to come out and see for his future.  He want to be somebody else.  He want to change.  He want to talk to the youths like about the wrong he did before in the past.  He don’t want anybody to do them again.’[79]

    [79] Ibid, lines 27-34.

13. The Applicant’s sister was also asked whether the Applicant will find it difficult to adapt to life in the community if released from immigration detention. Her evidence was confident about the support that will be around the Applicant acting as a facilitator of his capacity to satisfactorily re-settle in the community. She repeated the evidence of their mother and said the Applicant’s adverse experiences at the hands of the law in Australia stand him in good stead to play an effective community role whereby he counsels and dissuades other youth members of their ethnic community away from a life of substance abuse and consequential crime.

14. She confirmed that if the Applicant is returned to the community:

    ‘I would do everything to be with him.  Every week he want, I will be there.  I will try my best to do everything - like, if he has any appointment or anything that he need me to support, I will be there, always.  I will help him always.’[80]

    [80] Transcript, p 120, lines 11-14.

15. The Applicant’s sister also repeated the evidence of her mother about the extent to which the Applicant would assist the family unit with (1) care of infant children; (2) assisting with household chores; (3) taking the mother to medical appointments; and (4) assisting the family unit in a material sense with the additional money he would derive from employment.[81]

    [81] See generally, Transcript, p 120, lines 16-28.

16. The Applicant’s sister was also cross-examined. She confirmed that if returned to the community, the Applicant would go and live with her and their mother.[82] She further confirmed that the Applicant would be looking for work upon a return to the community and that she was otherwise aware of a potential job for the Applicant in Canberra working with his brother (who resides there) in the building and construction industry.

    [82] Ibid, p 121, lines 5-6.

17. The Applicant’s friend, Ms CA: has provided both written and oral evidence to the instant hearing. Her statement appears in the material in the form of a statutory declaration made on 22 March 2023.[83] Ms CA currently works for Corrective Services NSW in its Contracts Compliance and Transition Directorate for a particular correctional facility located in NSW. She says that ‘I make this statement in my private capacity and not as a representative of Corrective Services NSW or the State of New South Wales.’[84]

    [83] Exhibit 24.

    [84] Ibid, p 1, [3].

18. She has known the Applicant and his family for over 20 years since he was a teenager. During the period of 2017 to 2021 she was a co-director of a staff placement company/business[85] that was involved in the provision of labour to the disability support sector. She adds that this business:

    ‘…was state-approved to provided [sic] support and services to people with a disability who were at risk of entering or who had already entered prison or a corrective centre. Most of my clients were released from a correctional centre.’[86]

    [85] This business was sold in 2021.

    [86] Exhibit 24, p 1, [4].

19. Since February of this year, she has been the director of another recruiting company. She notes that in relation to this second recruiting business ‘Most of my clients were job applicants, many of whom had a history of criminal offending.’[87] Ms CA was compelled to close this business due to the impact of the COVID-19 pandemic. Part of her role in working with clients coming from a correctional centre background involved her ensuring that those clients/former inmates made the smoothest possible transition back into the community.

    [87] Ibid, [5].

20. In respect of this Applicant, she says she ‘…will use my professional connections and experience to support him if he is released from immigration detention.’[88] In particular, she says that if the Applicant is released from immigration detention she:

    …will personally assist him to transition back into the community, including by assisting him to:

    -put together a resume and do practice interviews for employment;

    -get his drivers licence and other licences, tickets or cards (such as a white card) he may need to gain employment;

    -sign up for courses and other educational opportunities;

    -seek employment and

    -obtain his sole trader ABN, put together a business plan and carry out his goals.’[89]

    [88] Ibid, p 2, [7].

    [89] Ibid, [8].

21. In her written statement she notes the Applicant is turning 40 this year and that she ‘truly believe[s] he has a different outlook and mindset to the person he was in his early 20s.’[90] She also makes the following observation of the Applicant:

    ‘When I ask [the Applicant] about his plans if he is released, he answers in a positive and focused way. He understands that his past actions were wrong and how they were wrong. He wants to be part of a community, part of a family and part of a workplace. He is focused on making up for lost time with his family and spending time with his elderly mother and siblings, who all miss him.’[91]

    [90] Ibid, [9].

    [91] Exhibit 24, p 2, [10].

22. In her statement she says the Applicant ‘…has told me that gaining employment and creating a positive work/life balance is important to him…’ and that ‘he is in the process of preparing for, or seeking out, work…’ if returned to the community.[92]

    [92] Ibid, p 3, [12]-[13].

23. In her oral evidence-in-chief, she commenced with answering questions about her work experience in the recruitment business. She said that during her time with the first of the abovementioned businesses, she assisted with the recruitment of six people/clients. She was specifically asked whether she had provided assistance to clients who comprised people who had been in criminal custody or detention for the approximate nine-ten year period that the Applicant has spent out of the community. She replied in the affirmative and said that there were at least two such people/clients she could immediately recall.

24. During her oral evidence, she was taken to the above-quoted paragraph from her statement in which she particularized how she would be able to assist the Applicant to transition back into the community. She said this list was not exhaustive and that:

    ‘I can help him obtain a license.  I can help him get his ABN for a sole trader.  I can help him with business planning.  It just depends on what he - he needs.  TAFE courses, I can, you know, a lot of things have changed during the time that he’s been in there.  Things are done differently.  A lot of things are done online.  And I’m able to actually set him up in the right direction and - and go from there.’[93]

    [93] Transcript day 3, p 5, lines 44-47; p 4, lines 1-2. Note to reader: as mentioned at the start of these Reasons, this hearing ran across three hearing days. The transcript for the two hearing days (13 and 14 March 2023) is consecutively numbered from page 1 to 79 for the first day and page 80 to 132 for the second day. For the third day (17 April 2023) the transcript commences from page 1 and runs to page 63. Therefore, for the purposes of these Reasons, were I refer to and quote a portion of transcript for the third day the footnote will appear thus: ‘Transcript day 3’.

25. In terms of the Applicant’s transformation, Ms CA confirmed that the Applicant wants to make amends for his past behaviours. She considers that ‘His maturity has grown to a high standard…He knows what he wants and he knows what steps he has to take in order to achieve those goals.’[94] She was also asked about the extent to which someone in the Applicant’s position (upon a return to the community) would experience difficulty in sourcing remunerative employment and she said ‘…I think that he can definitely gain employment but I don’t think that’s the issue whatsoever.’[95]

    [94] Transcript day 3, p 6, lines 15-17.

    [95] Transcript day 3, p 6, lines 23-24.

26. During the course of cross-examination, Ms CA explained the nature of how she has assisted people/clients. She described it as a process of assisting people to meet their goals and to support them in the meeting the requirements of whatever needs to be done to ensure those goals are met. She added that once the goals are met, the clients are monitored for about three months afterwards at which time, all being well, there is a sort of ‘graduation’ ceremony.[96]

    [96] See generally Transcript day 3, p 8, lines 1-6.

27. She told the hearing that as best as she knew the people/clients she had assisted were still gainfully employed and that they were all ‘still in the same positions. They haven’t left that…job that they were put into.’[97] She was asked to describe the nature of the employment into which her people/clients had been placed and she responded with ‘Generally warehousing jobs…They’re companies likes Amazon, Fantastic Furniture, and there was a recruitment company as well [name of recruitment company redacted], who also assisted with placements.’[98]

    [97] Transcript day 3, p 8, lines 32-34.

    [98] Ibid, lines 37-38; lines 40-42.

28. She was taken to paragraph [6] of her statement which contains a general description of what the future would look like for someone such as the Applicant if returned to the community. The following transpired between her and the Respondent’s representative:

    ‘MR HARVEY: And plan that you had mentioned in paragraph 6 of your statement - what would that look like for [the Applicant] in particular?

    MS CA: Firstly, I would like to get him checked out with a doctor and have him seen by a doctor.  I just want to make sure that we’ve got - so he’s with Benevolent Society now, and just continuing that, making sure there’s dates in place for next appointments.  I want to get him his licence, his cars that he may need for the work that he’s interested in.  If he needs to attend a TAFE course or anything like that or sign up for an apprenticeship, I just want to make sure that he’s got access to that.  Just anything else that he may need, I just want to be able to support it and get him to where he needs to go.  I think it’s going to be a really positive experience.’[99]

    [99] Ibid, p 9, lines 25-35.

29. The Applicant’s brother, Mr MC: the Applicant’s brother provided both written and oral evidence to the hearing. His written statement appears in the material and is provided in the form of a statutory declaration made on 27 March 2023.[100] He is 42 years of age and thus slightly older than the Applicant. He is an Australian citizen and has worked in the construction industry in Australia for over a decade.[101] He currently works as a formworker for a formwork/construction company in Canberra. Commendably, he does extra work in his own business which:

    ‘…is mostly cleaning and removing formwork after construction has finished and preparing it for the formwork company to remove. I also drive trucks as part of my business. On average, I work about ten days a month in my own business. I do this work on weekends and when there’s not much work at [name of his employing construction company redacted].’[102]

    [100] Exhibit 25.

    [101] Ibid, p 1, [1]-[2].

    [102] Ibid, [3].

30. He has a stated goal of growing his business and wants to expand it from simply demolishing and clearing away used formwork. In his statement he says that he often has to turn down jobs (for his own business) because he does not have the manpower either available or sufficiently reliable to commit to customers to get the work done. In terms of how Mr MC could assist the Applicant in an employment paradigm upon a return to the community, his statement says the following:

    ‘If [the Applicant] was living in the community again, I would employ him as a labourer in my business. I’ve employed people in my business before when I’ve needed help on a job and I’ve worked with [the Applicant] before so I know he’s a hard worker. We worked in construction together at a company called [company name redacted] in around 2007 or 2008. [The Applicant] was doing cement rendering and I was doing formwork.

    The work that I do in my business cleaning and removing formwork is good foundational work in the construction industry. If [the Applicant] is hungry and progressing well he could take on more responsibility with time. For example, if we can grow the business he could focus on formwork cleaning and removal while I focus on doing the formwork.

    To be able to work in my business, [the Applicant] would need a white card and would need to do an asbestos course. The course for the white card is on day and the asbestos course is a few hours. I believe [the Applicant] would be motivated to do these courses but if he needed any help I would help him.

    In addition to working with my business, if [the Applicant] is in the community and looking for work, I could also help him to get other work in the construction industry. I know lots of people working in the industry. For example my friend Mr NA, who I met through the construction industry, runs a small construction company called [name redacted] based in Canberra. I spoke to Mr NA last week and he told me he is happy to offer [the Applicant] a casual labouring position if he is released from detention. Mr NA is contactable by email at [email redacted].’[103]

    [103] Exhibit 25, pp 1-2, [5]-[8].

1. Sub-paragraph (a): it is difficult (and ultimately unsafe) to allocate any type of significant or substantial nature and duration of the relationship between the Applicant and the Child K and G. He has been physically absent from their lives for the totality of their lives while the evidence of his mother and sister (Ms AMM) can be taken at face value, theirs is evidence about a possible future role the Applicant could play and not about what type of parental role (if any) he has played to date. Their evidence is aspirational and not rooted in any discernible nature and duration of a parental or quasi-parental relationship between the Applicant and these two children.

2. A similar type of finding can be made in relation to Child I. The domestic relationship between the Applicant and Ms RT ended last year. They parted on good terms and intend to continue a line of communication. This communication will most likely include Child I on important days such as Christmas Day and New Year’s Eve and other milestone days. But, unless he resumes an inter-personal relationship with her, it is quite unlikely that the Applicant would be able to demonstrate any possible future strong and durable relationship with Child I. Overall, in relation to these three children this sub-paragraph (a) moderately militates in favour of this Tribunal refusing to exercise the power to refuse the sought protection visa.

3. Sub-paragraph (b): based on the evidence of his mother and sister, it is safe to find that the Applicant is likely to play some type of positive parental role in the future lives of Child K and Child G. There is ample time to do so until both children attain the age of 18 years. Indeed, there is an expectation that he will do so having regard to the need for domestic assistance which is a recurring theme in both the mother’s evidence and that of the sister. There are no court or other orders precluding the Applicant from playing such a role in the lives of these two children.

4. The position is much less convincing in relation to Child I. The extent to which the Applicant will be able to play a positive future parental role in the life of Child I is directly dependent on the extent of his connection with Ms RT. As mentioned, their domestic relationship is at an end but they keep in touch. The post-relationship civility between them is not sufficient to ground a finding about any likelihood of him playing a positive parental future role in the life of Child I. The Applicant, if released, will be based in either Sydney or Canberra. Ms RT has relocated with Child I to Melbourne. Overall, in relation to these three children, this sub-paragraph (b) moderately militates in favour of this Tribunal refusing to exercise the power to refuse the sought protection visa.

5. Sub-paragraph (c): there is no evidence before me that any of the Applicant’s past conduct or any future conduct has or will have a negative impact on any of these three children. This sub-paragraph can be put to one side and rendered neutral for present purposes.

6. Sub-paragraph (d): it seems clear enough from the evidence that the Applicant has communicated with each of these three children via non-in-person means during his period of removal from the community. The three children know him as their uncle and former step-father and they are of an age where they would notice his physical absence but are otherwise too young to be able to communicate any emotional or other effect arising from his separation from them. This sub-paragraph (d) moderately militates in favour of this Tribunal refusing to exercise the power to refuse the protection visa sought.

7. Sub-paragraph (e): each of these three children are primarily parented by other people. While his mother and sister may speak of an urgent need for domestic assistance from the Applicant in caring for Child K and Child G, the reality is that the mother and sister have coped without the Applicant thus far. The situation is much clearer in relation to Child I. He and his mother have relocated to Melbourne and it is beyond question that Ms RT primarily parents Child I. At best, this sub-paragraph (e) moderately militates in favour of this Tribunal refusing to exercise the power to refuse the sought protection visa.

8. Sub-paragraph (f): while there is evidence that these three children know who the Applicant is and who otherwise sense a familial-type relationship with him, none of the views of these three children are known. Nor would they probably be capable of being known given their respective ages. This sub-paragraph (f) can be put to one side and rendered neutral for present purposes.

9. Sub-paragraph (g): there is no evidence that any of these three children have been in anyway exposed to acts of family violence by this Applicant or that they have suffered any of the physical, sexual or mental abuse contemplated by this sub-paragraph which can be put to one side and rendered neutral for present purposes.

10. Sub-paragraph (h): there is no evidence before me that any of these three children have experienced any of physical or emotional trauma arising from the Applicant’s unlawful conduct in this country. This sub-paragraph (h) can be put to one side and rendered neutral for present purposes.

11. With reference to the respective interests of the three abovementioned minor children, I am of the view that their best interests carry moderate weight in favour of this Tribunal not exercising the power to refuse to grant the visa sought.

    Evidence around the remaining children

12. I have placed the remaining four children in a separate category because we do not know their ages. Further, there is a dearth of evidence the extent of any parental connection between the Applicant and these children. As well, the evidence around these children is quite generalized such that in his oral evidence the Applicant repeatedly referred to ‘my nephews’ as opposed to being able to demonstrate any parental connectivity between him and specific minor children. In perhaps harsher terms, it could be said that these children appear in the evidence in a given list[175] rather than their interests being canvassed by one of their parents who may have provided a statement to this Tribunal.

    [175] See, for example, Exhibit 3, pp 143 and 147.

    Application of factors at 8.4(4) of the Direction to the remaining minor children

13. There is little or no evidence about whatever nature and duration there may be between the Applicant and these minor children. I will not find that there is no existing relationship but that, nevertheless, the Applicant has been a physical absence from their lives for a very significant time.[176] We do not know the extent to which the Applicant is likely to play any future role in the lives of these children, although given my assumption that they are minors, there will be – in cumulative terms – at least some time for him to play such a role until each of these children attain the age of 18 years.[177] The evidence is silent about any impact the Applicant’s past conduct has had and/or any future unlawful conduct by him will have, on these children.[178] It is possible to presume the Applicant may have communicated with these children via non-in-person means. I base this assumption on him having done so with Child K, G and I.[179] It seems clear from the material that each of these four remaining children are primarily parented by other people.[180]

    [176] Paragraph 8.4(4)(a) of the Direction.

    [177] Paragraph 8.4(4)(b) of the Direction.

    [178] Paragraph 8.4(4)(c) of the Direction.

    [179] Paragraph 8.4(4)(d) of the Direction.

    [180] Paragraph 8.4(4)(e) of the Direction; see also Exhibit 3, pp 143 and 147.

14. There are no known views of any of these children about any impact they might experience in the event of the Applicant’s removal or continued detention.[181] There is no evidence before the Tribunal of any of the adverse elements contemplated by the remaining two sub-paragraph to 8.4(4) of the Direction. With reference to the respective interests of these remaining four children, I am of the view that their best interests carry slight weight in favour of this Tribunal not exercising the power to refuse to grant the visa sought.

    Conclusion: Primary Consideration 4

    [181] Paragraph 8.4(4)(f) of the Direction.

15. Overall, the cumulative best interests of the seven relevant minor children, when analysed through the lens of an application of the relevant sub-paragraphs of 8.4(4) of the Direction, lead me to a finding that this Primary Consideration 4 is of moderate weight in favour of this Tribunal not exercising the power to refuse to grant visa sought by this Applicant.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[182] The Direction further explains:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[183]

    [182] Paragraph 8.5(3) of the Direction.

    [183] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

17. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

    1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

18. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. The extent of that criminal offending comprises convictions for some 52 offences (including call ups and appeals) that were dealt with across 23 sentencing episodes. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.

19. The Direction also states that a non-revocation of a mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[184]

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

    [184] Paragraph 8.5(2) of the Direction.

20. I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraphs (a) by virtue of his commission of acts of family violence; (c) by virtue of his violent offending against women; and (d) by virtue of his conviction for ‘resist officer in execution of duty’. This means the Australian community expects that the Australian Government can and should exercise its power to refuse to grant the visa sought by the Applicant.

21. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[185]

    (c)Australia will generally 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;[186]

    (d)The community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;

    (e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[187] and

    (f)If a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    [185] Paragraph 5.2(4) of the Direction.

    [186] Ibid.

    [187] Paragraph 5.2(5) of the Direction.

22. In relation to sub-paragraph (a) of the immediately preceding paragraph [225] the term, ‘limited stay visa’ is not defined in the Act. Here, the Applicant applied for Protection (Class XA) Subclass 866 visa. I am of the view that, if granted, this visa would permit him to remain in Australia indefinitely.[188] Consequently, this sub-paragraph (a) is not applicable to the Applicant.

    [188] Migration Regulations 1994 (Cth), reg 866.511.

23. In relation to sub-paragraph (b) of the abovementioned paragraph [225], the Applicant has resided in Australia from November 1999 when he was 15 years old. He is currently aged 39 years old. He has a limited work history in Australia and has not fathered children in this country. That said, whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’ even though it has not, by any measure, been substantial. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.

24. In relation to sub-paragraph (c) of the abovementioned paragraph [225], I repeat that the Applicant resided in Australia from the age of 15. He is currently 39 years of age. He has resided in Australia since November 1999. He has spent over 60 percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.

25. In relation to sub-paragraph (d) of the preceding paragraph [225] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. The augmenting element to this finding is that, as I have found earlier, he has spent his formative years in this country. The counterbalancing element is that he has spent a virtual decade in either prison or immigration detention.

26. In relation to sub-paragraph (e) of the abovementioned paragraph [225], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘very serious offending’[189] is of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s ‘very serious offending’ conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.

    [189] In particular, his offending against women and his other offences of violence.

27. In relation to sub-paragraph (f) of the abovementioned paragraph [225], I have found that the some of the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(a), (b) and (d). Given that particular finding, I am of the view that even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.

28. Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [225], I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the (overall) very serious nature of his offending, I am of the view (and I find) that the community expects the Government can and should exercise the discretion to refuse to grant the visa sought by the Applicant.[190]

    Conclusion: Primary Consideration 5

    [190] Paragraph 5.2(3) of the Direction.

29. I am of the view that this Primary Consideration 5 confers a certain, but not determinative level of weight in favour of this Tribunal exercising the power to refuse to grant the visa sought by this Applicant.[191]

    OTHER CONSIDERATIONS

    [191] Pursuant to s 501(1) of the Act.

    Other Consideration (a): Legal consequence of the decision

30. The material before the Tribunal confirms that the Applicant has already been found to be owed protection obligations on the basis that he satisfied section 36(2)(a) of the Act.[192] Therefore paragraph 9.1.1 of the Direction mandates that non-refoulement obligations are engaged in relation to the Applicant.[193]

    [192] Exhibit 3, p 339.

    [193] Paragraph 9.1.1(1) of the Direction.

31. I am also of the view that the provisions of s 197C(3) of the Act and paragraph 9.1.1(2) of the Direction are engaged because (1) a protection finding has been made with respect to the Applicant’s country of nationality; and (2) the Applicant has made a valid application for a protection visa that has been finally determined. I am of the view that s 197C(3) applies to the instant facts regardless of whether or not the subject visa has been refused. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been forthcoming from the Applicant.

32. Given the protection finding already made in respect of this Applicant, were this Tribunal to  exercise the power to refuse the protection visa, the Applicant would not be removed to South Sudan. The consequence for the Applicant would be that he would remain in detention with no fixed end date. This, in turn, leads me to a specific legal consequence of the cumulative effect of the Applicant not succeeding in securing the protection visa he seeks. Specifically, that cumulative effect is the prospect of indefinite detention.

    Indefinite detention in the context of this case

1. It is necessary for this Tribunal to take into account any legal consequence arising from its decision relating to the visa now sought by the Applicant which has been previously refused by the Respondent’s delegate.[194] One specific consequence of such an outcome could quite likely involve, as I said earlier, the Applicant’s prolonged or indefinite detention. I regard this issue as a legal consequence of this Tribunal’s decision in relation to this proceeding being adverse to the Applicant.[195] Section 189 of the Act provides that an adverse outcome for the Applicant in the instant proceeding would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a ‘refusal to grant’ outcome in this application could very well extend the Applicant’s time in an immigration detention facility.

   [194] Exhibit 1, pp 15-53.

   [195] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].

2. Were this Tribunal to exercise its power to refuse the visa, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention. In terms of such ‘another event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:

   ·removal to another country; or

   ·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or

   ·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.

3. While it may be found that (1) a possible outcome for the Applicant from this application 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 the Applicant, the weight attributable to this Other Consideration (a) is impacted by a couple of factors. First, as stated in paragraph 9.1.1 (3) of the Direction, the Applicant is precluded from again applying for a protection visa while he is in the migration zone by virtue of the bar appearing in s 48A of the Act. This difficulty may be obviated if the Respondent Minister makes a determination, pursuant to s 48B of the Act, that the bar in s 48A does not apply to the Applicant.

4. Second, given that a protection finding has been 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.

5. Third, as outlined earlier, protection findings have already been made in relation to this Applicant. Therefore, were this Tribunal to affirm the decision involving the delegate’s exercise of the power to refuse to grant the subject visa, the Applicant would most likely remain in detention until:

   ·one of the events in s 197C(3)(c) occurs; or

   ·the Minister exercises their personal powers to grant another visa to the Applicant; or

   ·the Minister makes a resident determination in respect of the Applicant.

6. If any of the immediately preceding three dot-pointed items occur, then the Applicant’s time in detention will end. If none of those items occur then it must be accepted that a legal consequence of this Tribunal refusing the grant of a protection visa, would be that the Applicant will be detained in immigration detention without a fixed endpoint.[196] I am of the view (and I find) that this Other Consideration (a)[197] confers a heavy level of weight in favour of this Tribunal not exercising the power to refuse to grant the visa sought by the Applicant.[198]

   [196] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [123]-[124].

   [197] With specific reference to the indefinite detention issue.

   [198] Pursuant to s 501(1) of the Act.

7. I am also mindful of her Honour Justice Jagot’s comments in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[199] to this effect:

   ‘The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.’[200]

   [199] [2022] FCA 878.

   [200] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [42].

8. As has been referred to earlier in these Reasons, this Applicant has spent a virtual decade removed from the community in either prison or immigration detention. The superimposition of the criminal justice process and the character-based immigration process on the circumstances of this Applicant is that he has been in immigration detention for a period comprising almost five times the amount of custodial time he was sentenced to serve for his criminal offending. The evidence is indicative of an Applicant who, due to such a prolonged period in immigration detention, has had a very significant period of time to reflect on the nature and extent of his offending and its impact on his own circumstances, those of his immediate and extended family and that of the broader Australian community against whom his offending was perpetrated.

   Other Consideration (b): Extent of impediments if removed

9. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

10. Section 197C(3) of the Act provides that where a protection finding has been made in a person’s favour, the Respondent is not authorised to remove the Applicant from Australia to the relevant country unless he so requests. This Applicant has been found to be owed protection. He cannot be removed to South Sudan against his wishes. In these circumstances the Applicant does not face the prospect of removal to South Sudan and I will therefore assign neutral weight to this Other Consideration (b).

    Other Consideration (c): Impact on victims

11. There is no contemporaneous evidence from any victim pointing to any impact this decision may have on any of the Applicant’s victims. Given that there is no information before the Tribunal as to the impact of the s 501(1) decision on the Applicant’s victims or their families, and there has therefore not been occasion to afford the Applicant procedural fairness by providing such information to him for comment, this Other Consideration (c) should be assigned neutral weight.

    Other Consideration (d): Impact Australian business interests

12. The making of a decision preventing the Applicant from returning to the Australian labour market would not significantly compromise the delivery of a major project or an important service in Australia. The Applicant has had limited work experience in Australia; his skills and experience are not such that his unavailability as a potential employee would have an adverse impact on Australian business interests more broadly. This Other Consideration (d) should be assigned neutral weight.

    Findings: Other Considerations

13. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

    (a)Other Consideration (a): Legal consequence of decision under s 501 or s 501CA: this other consideration weighs heavily in favour of this Tribunal not exercising the power under s 501(1) of the Act to refuse to grant the Protection visa sought by this Applicant;

    (b)Other Consideration (b): extent of impediments if removed: is of neutral weight;

    (c)Other Consideration (c): impact on victims: is of is of neutral weight

    (d)Other Consideration (d): the impact on Australian business interests: is of neutral weight.

    CONCLUSION

14. Section 501(1) of the Act provides that this Tribunal may refuse to grant the Applicant’s requested visa. As explained previously in these Reasons, given the Applicant’s criminal offending history it is not contested that he does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that the Tribunal should, exercise the power conferred by s 501(1) of the Act to refuse to grant the Applicant’s requested visa. I make this finding on the basis that the Applicant does not pass the character test.

15. In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:

    (a)Primary Consideration 1: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (b)Primary Consideration 2: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (c)Primary Consideration 3: confers a heavy, level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (d)Primary Consideration 4: confers a moderate, level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (e)Primary Consideration 5: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa.

16. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3, 4 and Other Consideration (a), are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.

17. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa sought by the Applicant.

    DECISION

18. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review dated 6 September 2021 and, in substitution, does not exercise the power residing in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Protection (Class XA) visa.

I certify that the preceding 254 (two-hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 12 June 2023

Dates of hearing:	13, 14 March and 17 April 2023
Counsel for the Applicant:	Mr Christopher Honnery
Solicitor for the Applicant:	Ms Andrea Main (Lawyer)
Refugee Legal
Solicitor for the Respondent:	Mr Ryan Harvey (Senior Lawyer)
Australian Government Solicitor

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Remittal bundle Part 1 (Paged 1 - 35)	R	Various	20 January 2023
2	Remittal bundle Part 2 (Paged 36-87)	R	Various	20 January 2023
3	Remittal bundle Part 3 (Paged 88-408)	R	Various	20 January 2023
4	Remittal bundle Part 4 (Paged 409-949)	R	Various	20 January 2023
5	Applicant- Statement of Facts, Issues and Contentions	A	10 February 2023	10 February 2023
6	Applicant’s statement with attachments of courses completed	A	10 February 2023	10 February 2023
7	Letter of Support for Applicant (Unsigned) - By Ms [YG] (Applicant’s mother)	A	Undated	13 February 2023
8	Letter of Support for Applicant (Unsigned) – By [AMM]	A	Undated	13 February 2023
9	Respondent- Statement of Facts, Issues and Contentions	R	24 February 2023	24 February 2023
10	Applicant’s reply to Respondent’s SFIC	A	3 March 2023	3 March 2023
11	Letter of instructions to Dr Zimmerman	A	1 February 2023	3 March 2023
12	Letter of Support for the Applicant- By Julijana Davila (Odyssey House NSW Community Prorgram)	A	23 February 2023	3 March 2023
13	Psychiatric report by Dr Zimmerman	A	22 February 2023	3 March 2023
14	Research Article- Report by BMC Psychiatry	A	Article published in 2018	3 March 2023
15	Report by AHRC	A	Report published on December 2020	3 March 2023
16	Guidelines on Minister’s detention intervention power	A	Extracted from online source on 22 November 2021	3 March 2023
17	Guidelines on Minister’s residence determination power	A	Extracted from online source on 22 November 2021	3 March 2023
18	Odyssey House NSW – Community Program details	A	8 March 2023	8 March 2023
19	Odyssey House NSW-Residential Rehabilitation Program	A	8 March 2023	8 March 2023
20	Odyssey House NSW- Therapeutic Community Model of Treatment	A	8 March 2023	8 March 2023
21	Applicant’s chronology of offending	A	Undated	13 March 2023
22	Transcript of previous Tribunal hearing	R	18, 19 and 22 November 2022	13 March 2023
23	Applicant’s visa history in Australia	A	Various	13 March 2023
24	Statotury Declaration of [Ms CA]	A	22 March 2023	28 March 2023
25	Statotury Declaration of [Ms MC]	A	27 March 2023	28 March 2023
26	TAFE NSW Transcript of Academic Record	A	Undated	28 March 2023
27	List of minor children	A	14 March 2023	14 March 2023