GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4811

GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4811 (29 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6284
Re:GHSS
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:29 November 2021
Date of written reasons: 23 December 2021
Place:Brisbane

The decision under review is affirmed.
.........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – refusal of application for a Protection visa under section 501(1) - where the visa Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – where a “protection finding” has been made – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
F.J. et al. v. Australia, No. 2233/2013, UN Human Rights Committee (2 May 2016)
F.K.A.G. et al. v Australia, UN Doc CCPR/C/108/D/2094/2011 (23 August 2013)
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Home Affairs: Procedures Advice Manual 3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s detention intervention power
Department of Home Affairs: Procedures Advice Manual 3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
REASONS FOR DECISION
Member Rebecca Bellamy
23 December 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 37 year old citizen of South Sudan. On 23 April 2015 his Class XB 202 Global Special Humanitarian visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) because he did not pass the character test and he was serving a sentence of full-time imprisonment. On 27 July 2016 he was transferred from prison to immigration detention. On 18 January 2017 his request for revocation of the mandatory cancellation of his visa was denied. He sought merits review of that decision and on 15 March 2017 the decision was affirmed. On 2 March 2018, the Federal Court dismissed his application for judicial review, and on 20 December 2018 his application for an extension of time to appeal against that decision was dismissed by the Full Court of the Federal Court.
In February 2019 the Applicant applied for a Protection visa.[1] While he was found to be a refugee for the purposes of s 36 of the Act, on 6 September 2021 his visa application was refused under section 501(1) of the Act because he did not satisfy the delegate of the Minister (“the Respondent”) that he passed the character test.[2]
[1] Exhibit G1, G3 pages 121 to 141.
[2] Exhibit G1, G2 page 15
On 7 September 2021 the Applicant sought review of that decision.[3] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[3] Exhibit G1, G1 pages 1 to 7.
The hearing of this application was initially listed to take place on 15 and 16 November 2021 but it was postponed to 18 and 19 November 2021 to accommodate the Applicant’s barrister’s schedule. The Applicant, his wife, his mother and a sister gave evidence via videoconference and an expert witness gave evidence by telephone. Due to difficulties with the interpreter, efforts to adduce evidence from the Applicant’s mother were aborted with the consent of both parties. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
The hearing did not conclude in two days, with the remaining oral evidence being given on 22 November 2021 and some documentary evidence plus written closing submissions being provided after that date. By close of business on 26 November 2021 all evidence and submissions had been filed.
Under s500(6L) of the Act if the Tribunal does not make a decision within 84 days of the Applicant being notified of the reviewable decision, it is taken to affirm that decision. The 84^th day in this matter was 29 November 2021. During the hearing the Tribunal indicated that, should the parties wish to file written closing submissions, it would not leave the Tribunal adequate time to prepare written reasons by 29 November 2021, so the Tribunal would make the decision by 29 November 2021 and provide its written reasons within a reasonable time. Neither party objected to that course.
On 29 November 2021, the Tribunal affirmed the decision under review. Later that day the Applicant’s solicitor requested written reasons pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) and, while acknowledging that the Tribunal had 28 days to provide written reasons, asked for written reasons to be provided within 14 days to give the Applicant 21 days to seek and obtain legal advice before the expiration of the relevant appeal period. No explanation was given as to why it might take 21 days to seek and obtain legal advice. It is obviously most helpful to an Applicant who is considering seeking judicial review of a decision, and to a court tasked with conducting such a review, for the written reasons to be as clear and complete as possible. That is what I have endeavoured to achieve, and it has taken some time.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
By the operation of s 501(6)(a) of the Act, the Applicant does not pass the character test because he has been sentenced to imprisonment for 12 months. Subsection 501(6) relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
On 19 December2013, the Applicant was sentenced to four years imprisonment with a non-parole period of two years. Accordingly, he has a “substantial criminal record” and, therefore, he does not pass the character test. I now turn to consider whether to exercise the discretion to refuse to grant the visa.
SHOULD THE DISCRETION TO REFUSE THE APPLICANTS VISA BE EXERCISED?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[4]
[4] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to exercise the discretion to refuse to grant a non-citizen’s visa paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in 1983 in what was formerly Sudan. He and his family left the southern part of Sudan for the northern part of Sudan when he was around two or three years old. His father had multiple wives, and in around 1990 the Applicant went to Egypt with his step-mother, eight of his siblings and an aunt while his biological mother and father stayed in Sudan.[5] In the absence of his father, his older brother, “Mr Y”, and step-mother took care of the Applicant and the other children.[6] The Applicant’s father joined the family in Egypt in around 1996.[7]
[5] Transcript, page 11, line 48 to page 12, line 10
[6] Transcript, page 51, lines 15 to 23.
[7] Transcript, page 50, lines 43 to 45.
In his protection visa application, the Applicant said that in Egypt he attended primary school for five or six years as did his siblings. In 1999, when the Applicant was 15 years old, the family came to Australia.[8] Departmental records indicate that the Applicant’s biological mother came to Australia in May 2003 with one of his sisters.
[8] Transcript, page 12, lines 16 and 17.
When the Applicant was in year 10, he started smoking marijuana. According to him, because of the marijuana, he did not keep up, got lazy, and started to dislike school.[9] He was suspended for wearing earrings, smoking and fighting, and left school at age 17.[10]
[9] Transcript, page 14, line 38 to page 15, line 15.
[10] According to him, in an interview he gave with Community Corrections in 2014 - see Exhibit G1, G3, page 97.
The Applicant began to engage in regular violent behaviour at the age of 18. This occurred in combination with drinking alcohol and drug use. He was often so intoxicated that he blacked out or has no memory of the violent behaviour. When he was 21 (which would have been around 2005) he left the family home as he had been destroying property, leading to a deterioration in his relationship with his step-mother. He lived with friends and began to engage in drug use and some criminal activity.[11]
[11] According to him, in an interview with a psychologist in 2013 - see Exhibit G1, G3, pages 102 to 110.
The Applicant started smoking methamphetamine in around 2005 and he developed a heavy addiction. His methamphetamine use led to a gambling problem where he would play poker machines. He said that, for him, the two went hand-in-hand.[12]
[12] Transcript, page 17, lines 30 to 35.
When the Applicant left the family home, he moved around, staying with different friends.[13] He was employed but he described it as working “on and off”. Sometimes he worked for two weeks and then he would sleep in because he had been drunk or he had taken drugs, he was too tired to go to work and he did not show commitment.[14]
[13] Transcript, page 54, lines 10 to 18.
[14] Transcript, page 54, lines 19 to 24.
I have before me the Applicant’s criminal history along with documents relating to the Applicant that were produced under summons by the New South Wales Police. The police documents include a log of contemporaneous, chronological file notes of police interactions with the Applicant, and Facts Sheets that were prepared for court. The file notes were not prepared for court and, on their face, are impartial reports of what various police officers observed, did and were told. Applicants in this type of proceeding often complain that the authors of the file notes, and the people who made the allegations that are recorded in the file notes, were not made available for cross examination and therefore the evidence should be given limited or no weight. It is obviously impractical to do that. The Tribunal may take hearsay evidence into account and make its own assessment of the reliability of that evidence. The same applies to incident reports from correctional centres and immigration detention centres, and to notes made by medical or mental health staff whether the evidence is put forward by the Applicant or the Respondent.
According to the Applicant, he has trouble remembering the circumstances of a lot of his offending, in some cases because it happened so long ago and in others because he was intoxicated at the time.[15] I have found it necessary to set out the Applicant’s offending and other anti-social behaviour, his circumstances, and his non-compliance with court orders, in reasonable detail in order to adequately explain my application of Primary Considerations 1, 2 and 4.
[15] Exhibit A2.
On 1 March 2002, the Applicant was convicted of “behaviour in offensive manner in/near public place/school” and fined.
On 4 April 2003 the Applicant followed a group of men as they left a tavern in a vehicle, and he held a machete to the throat of the driver. Before the police arrived, he disposed of the machete but the police found it.[16] He declined a police interview. On 1 December 2003, he was convicted of have custody of an offensive implement in a public place and common assault and put on a good behaviour bond for three years. In the course of processing the Applicant’s visa application much of his offending was put to him for comment. In relation to this incident, he said the assault was in the form of verbal threat. In the hearing he said he had the machete to protect himself because he was “jumped” at the train station – and this group had threatened him and his friends earlier that night. He said he showed them the machete to warn them off.[17] However, he did not tell the police any of this at the time.[18] I find it implausible that, if the Applicant’s explanation is true, he did not tell the police, and I reject it. I also reject as untrue his claim that the assault was only a verbal threat as it is inconsistent with the police file notes and the conviction for assault.
[16] Exhibit R2, TB1, pages 93, 101 and 102.
[17] Transcript, page 76, lines 30 to 45; page 77, lines 18 to 43.
[18] Transcript, page 78, lines 1 to 36.
On 8 May 2004 the Applicant was caught without a train ticket when he was required to have one and he was fined on 8 July 2004. According to the Applicant, he frequently travelled without a ticket.
On 17 May 2004, the Probation and Parole service sought to breach the Applicant for failure to report or follow directions in relation to the good behaviour bond. He subsequently made contact with the service and indicated his willingness to engage with supervision and attend the next anger management program, so the breach was not pursued. However due to poor attendance, he was withdrawn from the program. He then evaded contact with the service.[19]
[19] Exhibit R2, TB1, pages 103 to 106; pages 125 to 127.
On 16 August 2005 the police approached the Applicant at a train station and spoke to him. He said “F--k why you pick on me cause I'm f--kin black.” While being searched he said “Who the f--k are you c--ts, f--k you” multiple times. He carried on using abusive language even after being arrested for using offensive language.[20] He was subsequently convicted of, and fined for:
·wilfully use offensive language on train/rail land/monorail; and
·smoke on train, covered/roofed railway land/monorail works.
[20] Exhibit R2, TB2 page 82 to 83.
These offences, and other subsequent offences, were committed in breach of the good behaviour bond.
Departmental records indicate that in August 2005, the Applicant’s father left Australia and has not returned. According to the Applicant, his father went back to Sudan to visit but he does not know what became of him.
On 2 September 2005, the Applicant tried to sell methamphetamine to two off-duty police officers. When the police arrested him, he claimed the substance he had shown them was salt. In addition to that substance, he also had cannabis in his possession. The Applicant gave the police the details of his brother, “Mr M”, but a digital fingerprint scan revealed his true identity.[21] He was subsequently convicted of possess prohibited drug x 2 and supply prohibited drug.
[21] Exhibit R2, TB1, pages 84 and 114.
There are many aliases listed on the Applicant’s criminal history. In the hearing, the Applicant was asked about his brother’s name being one of them. He said he used to take Mr M’s wallet or identification if he was going out and give the police Mr M’s details instead of his own. The Applicant said he got Mr M in trouble that way and every time he got pulled up, the police would take him to the police station to get his fingerprints. He stopped doing it when he had finished all his prison sentences. I note that he has been in immigration detention since he finished all his prison sentences, and Mr M has lived overseas for many years. The Applicant said he did not use his brother’s identity all the time, but he did when he was on the run from the police or had breached an order but “when I’m clean I just give my normal name”.[22]
[22] Transcript, page 147, line 25 to page 148, line 18.

On 14 September 2005 the Probation and Parole Service prepared a “Court Duty Officer’s Report”[23] in relation to the drugs offences. It noted that the Applicant had initially claimed it was the first time he had dealt drugs, but when it was put to him that his language suggested a familiarity with dealing drugs, he admitted he had been doing it for several months.
[23] Exhibit R2, TB1, pages 118 and 119.
On 14 September 2005, the Applicant was sentenced for the drugs offences and was ordered to perform 250 hours of community service. However, a breach report dated 10 January 2006 indicates that he failed to engage with Probation and Parole and did not attend an induction meeting.[24] In the hearing, the Applicant said he thought he had done some community service with St Vincent de Paul but he could not remember what or how many hours he had done.[25] Based on the breach report, I am not satisfied that the Applicant did any community service under this order.
[24] Exhibit R2, TB1, pages 123 and 124.
[25] Transcript, page 80, lines 13 to 29.
On 30 September 2005, the Applicant committed larceny by stealing a bottle of whisky from a pub. When intercepted by the police, he said his friend took the bottle before admitting that he did it, adding “It's no big deal though. I was on my way home to a friend’s house and I wanted a drink”.[26]
[26] Exhibit R2, TB1, page 83 and 121
On 6 December 2005 the Applicant stole alcohol and cola from a supermarket and when a staff member tried to block his exit, he pushed him, took hold of his arm and said, “Come outside I will show you my friends”.[27]
[27] Exhibit R2, TB1, page 82.
A Community Offender Services Probation and Parole Service Presentence Report, prepared on 25 January 2006 in relation to the larceny offence,[28] noted that the Applicant did not accept responsibility for the offence, claiming that he was holding the stolen whiskey for a friend. The author of the report opined that the Applicant presented as an individual who had difficulty accepting responsibility for his actions. He was described as a person who had consistently refused to abide by court directions or comply with directions of the service. On 7 April 2006, the Applicant was convicted of larceny. Despite his changing accounts about who committed that offence, I am satisfied that he did. He was also convicted of common assault and shoplifting.
[28] Exhibit R2, TB1, pages 125 to 127.
On 18 May 2006, the Applicant’s conviction for supply prohibited drug was called up and he was re-sentenced. He received four months imprisonment, and on appeal the sentence was suspended upon the Applicant entering into a four month bond.
On 26 August 2006, the police received a report from the Applicant’s partner, “Ms K”. They had attended her home on 18 August in response to a “domestic” between her and the Applicant and on that occasion she was uncooperative. According to Ms K’s report, she had been in a relationship with the Applicant for 10 months and they had been living together at her home. On 18 August 2006, the Applicant moved out. On 26 August 2006, he phoned Ms K and said “You’re a bitch and a c--t and I’m going to kill you”. She had genuine fears for her safety. She wanted an Apprehended Violence Order (“AVO”).[29] In the hearing the Applicant said he could not recall that incident.[30]
[29] Exhibit R2, TB1, page 76.
[30] Exhibit R2, Transcript, page 102
On 10 September 2006, as the Applicant and Ms K walked along a street together, they started arguing and he hit her on the back of the head. A few minutes later he punched her in the face, and she fell down. As she tried to get up, the Applicant hit her face again, making her fall down again. He then grabbed her hair, and she pushed him away. The Applicant followed Ms K along the street until she ran into the foyer of a building for safety. The police observed injuries on Ms K’s face.[31] In the hearing, the Applicant said he could not remember this offending.[32]
[31] Exhibit R2, TB1, page 76.
[32] Transcript, page 94.
On 13 September 2006 an AVO was issued protecting Ms K from the Applicant.[33] On 10 November 2006 the Applicant was convicted of common assault and put on a 12 month good behaviour bond.
[33] Exhibit G1, G3, page 326.
On 2 December 2006, the Applicant was caught driving with a middle range PCA and without a licence. In 2019, the Applicant admitted that he knew he was intoxicated at the time.
On 11 December 2006, the Applicant was called up for the second time for the supply prohibited drug offence. This time, he was sentenced to imprisonment for four months commencing on that day, and he served that sentence.
On 23 May 2007, the Applicant again assaulted Ms K. As they were walked to a train station, he called her a stupid bitch and an idiot, and he grabbed her with one hand around each of her arms. He dug his thumb into her arm. He then swung her around from side to side a few times, and hit her with an open palm, connecting with the back of her head which caused her to fall to the ground. She stood up and he grabbed her a few more times. She had bruising on her upper left arm and right forearm. She managed to get home without him following and reported the incident to the police.[34] Around a year later, the Applicant told a Probation and Parole officer that he had bruised Ms K’s arm when she tried to slap him and he grabbed her arms to stop her.[35] This account is not consistent with the police report or the Facts Sheet that was provided to the court when the Applicant was ultimately convicted of assault (see below), and I reject it.
[34] Exhibit G1, G3, pages 326 to 328; TB1, pages 138 and 139.
[35] Exhibit R2, TB1, pages 142 to 147.
In the early hours of 24 May 2007, the Applicant banged on Ms K’s front door and yelled out “Open the door you stupid bitch”. While she was calling the police, he kicked her front door in, damaging the frame and rendering it unable to be shut properly. He entered the house, saw her calling the police, and left, opening the back door with such force that the handle made a dent in the wall. He sat on the front veranda and yelled “You’re going to regret this” and kept hitting the windows and door. Police attended the address and saw the damage to the door and wall as well as bruising on Ms K’s arms. In the hearing, the Applicant was asked why he said “You’re going to regret this”, and he replied that he was trying to scare Ms K so he could get his belongings back.[36]
[36] Transcript, page 95, lines 7 to 21.
The Applicant’s actions on 23 and 24 May 2007, assaulting and intimidating Ms K, breached two conditions of the AVO.[37]
[37] Exhibit G1, G3, pages 326 to 328; TB1, pages 73 and 74.
On 26 October 2007, Ms K and the Applicant were at a party when they argued and went outside. The Applicant grabbed her around the top of her arms. He called her a bitch and a whore, and said “If you f--k me up I will kill you.” He left when the police were called. Ms K told the police that she was afraid of the Applicant and his brother. The AVO had expired by that time. On 27 October 2007, a court granted an interim protection order.[38]
[38] Exhibit R2, TB1, page 72.
A police record dated 8 November 2007, indicates that Ms K and the Applicant had officially separated around a month earlier. In that time, the Applicant had been calling Ms K on a daily basis, in most cases threatening to burn down her house, and he had said he would kill her. On 5 November 2007 there were several calls. In one, the Applicant said “If I am f--ked up you will be f--ked up”. He then called her between 10 and 15 times. Ms K’s son returned home and saw her shaking and crying uncontrollably. When the Applicant called again, he answered and told him to stop calling. Ms K was fearful and believed the Applicant would carry out his threat to kill her.[39] When asked about this offending in the hearing, the Applicant said he breached the AVO by calling Ms K because he loved her so much and he wanted to fix things between them.[40] He said he did not remember threatening to kill her.
[39] Exhibit R2, TB1, page 72.
[40] Transcript, page 20, line 39 to page 21, line 13; page 56, lines 42 to 45 to page 57 lines 15 to 20.
On 30 December 2007 the police approached the Applicant at a taxi rank as he was arguing loudly. He was verbally aggressive and antagonistic. As the police instructed him and his friend to get into a taxi to go home, he shouted “You guys are f--king racist” and “You c--ts are f--ken stupid”. He also told police to “F--k off”. As he shouted the abuse, he was standing in front of the officers and stepping into their personal space. The Applicant and his friend refused to get into a taxi so the police arrested them. The Applicant disobeyed repeated instructions to sit on the ground and he said “Get f--ked, I'll stand up”. As the police used a leg sweep to take the Applicant to the ground, he kicked out at them. Later, when the Applicant was put into a holding cell, he said to the officer who was present “I'll get you”.[41] The police records noted that the police decided not to proceed with intimidation charges in relation to this. The Applicant was duly convicted of “use offensive language in/near public place/school” and “resist officer in execution of duty”. In May 2008, the Applicant told a Probation and Parole officer that the police had questioned him and his friends and demanded to see the money required for their fares, and that he questioned the officers as to why they were questioning him, and his offensive language was linked to that.[42]
[41] Exhibit R2, TB1, page 70.
[42] Exhibit R2, TB1, pages 142 to 147.
Police records indicate that on 18 January 2008, there was an AVO in place that, among other things, prohibited the Applicant from approaching or contacting Ms K. That day the Applicant called Ms K eight times between 1.55am and 6.15am. During these calls the accused has asked her who was she seeing, who was she with and threatened to kill her.[43]
[43] Exhibit R2, TB1, page 68.
On 15 February 2008 the Applicant was on remand. He phoned Ms K twice from custody but did not say anything.[44]
[44] Exhibit R2, TB1, page 67.
In the hearing, the Applicant said that both he and Ms K used drugs and their relationship was toxic. He said when he assaulted her, he was affected by alcohol and drugs.[45] I accept that.
[45] Transcript, page 19, lines 26 to 27.
On 9 May 2008 the Applicant was convicted of the assault on 23 May 2007, the damage to property on 24 May 2007 and contravention of an AVO arising from those incidents. He was also convicted of offences against the police on 30 December 2007. For resist officer in execution of duty, common assault and contravene domestic violence order he was sentenced to 113 days imprisonment, backdated to 18 January 2008.
On 24 July 2008 the Applicant was convicted of contravene prohibitions/restriction in AVO for the phone calls he made from custody on 15 February 2008 and sentenced to imprisonment for one day.
On 17 September 2008, according to police records, they were called to the Applicant’s address where he lived with Mr Y and Mr Y’s girlfriend, “Ms G”. The police noticed Ms G had a puffy red eye. Due to language difficulties, they could not ascertain what had happened, but Ms G pointed to her eye and said the Applicant’s first name. When the Applicant and Mr Y were present, she became quiet and withdrawn, and appeared frightened. They took her to the police station and, with the help of an interpreter, she said Mr Y’s brother – being the Applicant – hits her and Mr Y and refuses to leave the house. She said the Applicant hits her in her face and kicks her in her chest and stomach. She said her eye injury was caused by the Applicant punching her. She refused to make a statement, however the police obtained an interim AVO and served it on the Applicant.[46]
[46] Exhibit R2, TB1, pages 64 and 65.
The interim AVO did not prohibit the Applicant from being near or contacting Ms G. However, it did, broadly prohibit him from being violent, harassing or intimidating. Further, it prohibited him from approaching her, her home or her work within 12 hours of consuming intoxicating liquor or illicit drugs.[47]
[47] Exhibit R2, TB1, pages 59 and 60.
On 24 November 2008 the Applicant breached the interim AVO by being at home, smoking cannabis and consuming alcohol. The Applicant told the police “I testify, I have been smoking cones and drinking beer. It's my house and it’s in my name”.[48] On 27 November 2008 he was sentenced to imprisonment for 14 days.
[48] Exhibit R2, TB1, pages 59 and 60.
In the hearing the Applicant said Mr Y and Ms G were alcoholics. He denied ever having been violent to Ms G, claiming her report to the police was completely made up.[49] He denied any violence toward Mr Y, and said the Tribunal could ask him. However, Mr Y did not give evidence.
[49] Transcript, page 83.
The Applicant said he had a good relationship with Mr Y and Ms G, and that he lived with them for nearly two years and nothing like that had happened.[50] When asked if he had any idea why Ms G would have made up the allegations, he said “I’m sure she wanted me out of the house” because she just wanted to be with Mr Y. That Ms G would made serious allegations against the Applicant to get him out of the house is at odds with them all having the good relationship that the Applicant claimed they had. More significantly, it is at odds with the conditions of the AVO which allowed the Applicant to live at the house.
[50] Transcript, page 84, lines 1 to 5.
Further, the Applicant said he could not recall having any discussion with Mr Y about the allegations, and he has no recollection of the allegation having been made,[51] of the AVO,[52] or of having been charged, convicted, or imprisoned for breaching the AVO.[53] The Applicant’s evidence does not make sense and, even accepting that his drug taking affected his memory, it is implausible.
[51] Transcript, page 84, lines 33 to 46.
[52] Transcript, page 85, lines 4 to 6.
[53] Transcript, page 87, lines 1 to 24.
The police report does not entirely rely on Ms G’s account. It includes observations made by the police about her eye and the change in her demeanour when the Applicant and Mr Y were in the room. The police’s observations are consistent with Ms G being afraid of the Applicant and/or Mr Y. I have no reason to suspect that the police were anything but impartial when recording their observations. The police records are, on their face, coherent and not inherently implausible. Further, physically attacking a woman was not, at that time, out of character for the Applicant.
Other police records contain a report that Mr Y assaulted Ms G and that he told the police that she calls the police all the time for no reason. They also contain references to Mr Y having mental health problems. Neither the Applicant nor the Respondent made any reference to these particular records, however, I have had regard to them as far as they indicate a problematic household where there has been an allegation that Ms G makes false reports of violence. Even so, given the observations made by the police and the implausibility of the Applicant’s evidence, I am satisfied that the Applicant assaulted Ms G as alleged.
On 6 February 2009, the Applicant committed not pay train fare and hold a valid ticket, and drink intoxicating liquor on train or in public area. On 1 March 2009, he committed not pay train fare and hold valid ticket. On 15 April 2009 he was fined for those offences.
Earlier on 1 March 2009, the Applicant had punched a train guard in the stomach because he would not delay the train for his friends to get on.[54] In the hearing, the Applicant said that he “got pissed off” at the guard and spat at him or hit him.[55] He had been drinking that day but was not intoxicated and he had smoked some cannabis.[56] A Court Duty Report prepared on 26 August 2009, noted that the Applicant denied having intended to hurt the guard and he appeared to minimise his behaviour by stating that he pushed, not punched, him.[57] I am satisfied that the Applicant punched, not pushed, the train guard.
[54] Exhibit G1, G3 pages 331 and 332; Exhibit R2, TB1, page 56.
[55] Transcript, page 88, lines 16 to 28.
[56] Transcript, page 89, lines 7 to 21.
[57] Exhibit R2, TB1, pages 154 to 156.
On 12 April 2009, the Applicant took a mobile phone from a man who appeared to be asleep. The victim asked for his phone back multiple times and the Applicant said “F--k off, I am going to smash you”. The victim approached the Applicant, who pushed him in the chest with both hands making him take a step backwards, and said “F--k off” before running away. The victim pursued him, and ultimately the police apprehended him.[58] In the hearing, when the Applicant was asked why he had spoken abusively to the victim, he said he thought that would scare him off.[59] The Court Duty Report recorded that the Applicant said he regretted stealing the phone.[60]
[58] Exhibit G1, G3 pages 334 and 335; Exhibit R2, TB1, page 54.
[59] Transcript, page 93, lines 1 to 2.
[60] Exhibit R2, TB1, pages 154 to 156.
On 26 August 2009, the Applicant was sentenced for the offences he committed on 1 March, 12 April, and some breaches of bail he committed on 15 and 22 May 2009. For common assault, he was sentenced to imprisonment for six months. For “steal from the person”, he was placed on a two-year bond.
A Probation and Parole service report dated 10 September 2010[61] stated that the Applicant had failed to comply with the conditions of the bond to accept supervision and guidance, comply with all reasonable directions and reside at stable accommodation. On 27 January 2011, the Applicant was called up for breaching the bond, and re-sentenced to a bond for 18 months.
[61] Exhibit R2, TB2, pages 157 and 158.
On 12 March 2011, the Applicant was caught in possession of a prohibited drug, and on 5 May 2011 he was fined. He was again called up for breaching the bond and sentenced to imprisonment for three months, suspended upon entering into a bond.
On 8 February 2012 the Applicant was approached by transit officers as he was shouting aggressively in a railway station. He was aggressive towards them and he volunteered that he did not have a valid rail ticket. They asked for his identity and he said “You’re not cops, I’ll f--king smash you pricks”. A transit officer asked him to take his hands out of his pocket, and he responded by telling him:
“I’ll f--king smash you c--ts in uniform, and you, you little prick I’ll stick my cock up your ass and rape you!”
The transit officer informed the Applicant that he was under arrest for failing to state his name and address when requested. He and the other transit officer took hold of the Applicant in order to remove his hands from his pockets. A struggle ensued and the police were called. The transit officers handcuffed the Applicant and sat him on the ground. An officer offered medical assistance in case the Applicant was injured during the struggle. The Applicant spat at that person, with the spit landing on his leg. The police arrived and took the Applicant to the police station.[62]
[62] Exhibit G1, G3 pages 337 to 338; Exhibit R2, TB1, page 34.
In the hearing the Applicant said he was “pissed off” because he thought he was being targeted, suspected of not having a ticket. However, he conceded that he had been caught without a ticket at that railway station before many times, adding that he and his friends would jump the barriers, and he did not have a ticket on that occasion. When asked “So you thought they were targeting you because you had, in fact, done that before?” he answered in the affirmative. When asked “So you were upset that they thought that you might, this time, have done what you had done before?”, he said:
“Yes. Well, that’s what I thought, but they didn’t actually caught me in the act, they just walked to me, assuming that I - I don’t have a ticket, and I didn’t have a ticket on me, so I thought they were probably targeting me.”[63]
[63] Transcript, page 95, line 37 to page 96, line 43.

The Applicant said he spat at the medical officer because he had been put on the ground in a very aggressive way.[64] The Applicant stands 195cm tall.[65] When asked: “All right. You’d made threats of violence to them, but you thought it was unreasonable that they had then put you on the ground?” he said the way they grabbed him had caused a cut to his lip. He conceded that he “was using the bad words and going off at them” but said he was not actually physically trying to hurt them or hit them, he was just saying it, so when they grabbed him and “smashed” him on the ground, he got “really pissed off”.[66]
[64] Transcript, page 96, lines 23 to 26.
[65] Exhibit G1, G3 pages 96 to 101.
[66] Transcript, page 96, line 44 to page 97, line 4.
According to police records, on 23 March 2012, the police observed the Applicant and some other men surrounding and intimidating two men, who ran away. When the police approached, the Applicant immediately became hostile and aggressive, calling the police “racist c--ts” and saying he would not speak to them unless an apology was given. Back-up arrived and the police asked the Applicant about his intimidating behaviour towards the two other men. He indicated that had called him and his associates “black c--ts” and that it was “typical of this shit country”. The police record states that:
“due to the fact that the behaviour of the POIs was intimidating towards members of the public, and the fact that the POIs were trying to stand-over police and intimidate them, they were each issued with official move-along directions to leave.”[67]
(“POIs” means persons of interest)
[67] Exhibit R2, TB1, page 32.
There is not a conviction corresponding with this report. In the hearing, the Applicant said:
“I can’t remember that incident, but I faced a lot of things like that in this country. I did face a lot of racism, but I can’t remember exactly that - that time.”[68]
[68] Transcript, page 106, lines 28 to 38.
The Applicant did not deny the allegations, the alleged behaviour was not out of character for him at that time, and given he has gaps in his memory from the period when he was abusing substances, I am satisfied that the police file notes are accurate.
On 25 May 2012, the Applicant was given an 18 month bond for the common assault he committed on the train guard.
On 12 September 2012, the Applicant was sentenced for one count of shoplifting to a three month suspended sentence. For a further count of shoplifting, he was sentenced to six days imprisonment (that he had already served on remand), and he was fined for breach of bail. He was called up for breaching the bond he received for common assault and given a seven month suspended sentence.
On 17 February 2013, the Applicant committed robbery in company. In the early hours of the morning, he encountered four German tourists and two other men. They initially engaged in friendly conversation. However, an associate of the Applicant approached from behind, the Applicant demanded to know if they had drugs, and he began to threaten them. They said they did not have drugs. He told them he had a knife and when they tried to step away his associate blocked them. The Applicant told them to put all their possessions on the ground. The victims complied, placing items including mobile phones, key cards, wallets and passports and identity documents on the ground. The Applicant and the co-offender took them, and the Applicant said to one victim “See, that wasn't so bad!” and slapped him on the shoulder, before telling them all to go away. The police tracked down the Applicant’s associate and found the Applicant at the same address, lying face down on a bed. Next to him was a bag containing a mobile phone, two wallets, cash, various cards and other items that had been taken from the victims. The police later found two more mobile phones that had been taken from the victims in a garden bed below the window of the bedroom where he was arrested.[69] The Applicant was remanded in custody.
[69] Exhibit G1, G3 pages 61 and 62.
In the hearing, the Applicant said his life was messed up at the time - he was using crystal methamphetamine heavily, he did not have stable accommodation, and he used to go out stealing to get money for drugs or sometimes swap stolen goods for drugs.[70] He was also gambling heavily and he would blow all his money gambling.[71] He said he threatened to get a knife because there were six victims and he thought if he said something like that they would be too scared to resist him and would give him their belongings.[72]
[70] Transcript, page 22, lines 10 to 39.
[71] Transcript, page 23, lines 8 to 10.
[72] Transcript, page 98, lines 11 to 15.
The Applicant added that when he got home and started going through the victim’s wallets and seeing things of sentimental value he felt bad. He said he was going to:
“…chuck it in front of the 7 – Eleven for someone to go and report it. That’s what I - that’s my intention, when I put it all in the bags. Because I took all the money out and I put all the sentimental stuff, because they had a picture of - they had a picture of their daughters and all those things, you know. I’m sure it would be valuable to them, and passports. I don’t need the damn passport, I just needed money. So I put it in the bag, I wrapped it and my intention was just to go and drop it off in front of a convenience store, or give it to someone to go and drop it off, you know, a post office so they can give it to the police.”
He confirmed that the bag he was referring to was the bag that the police found when they arrested him.[73] The bag contained cash when the police found it, indicating that the Applicant had not separated the cash from the other items. Further, the Applicant had told the victims to put all of their belongings, not just cash, on the ground, which is not consistent with him only wanting cash. I do not accept that he intended to put the non-cash items where they might be found and returned to the victims.
[73] Transcript, page 99, lines 25 to 46.
I have been provided with documents from New South Wales Corrective Services that detail several instances of poor custodial behaviour by the Applicant. I have had regard to some but not all of those incidents. Specifically, I have not had regard to incidents that were not brought to the Applicant’s attention in the visa application process or in these proceedings. My description of the incidents is based on the reports.
On 25 April 2013, when the Applicant was accommodated at Bathurst Correctional Centre (“Bathurst”), a female officer asked a group of 20 to 30 inmates to remove a blanket that they were using as a screen. Then a male officer questioned the Applicant about what was going on. He replied, “Stop treating me like a baby”. The male officer asked him to leave the area. He did not and the officer asked him again. The Applicant imitated the officer and became more aggressive to the point where the officer felt uneasy and radioed for assistance.[74]
[74] Exhibit G1, G3 page 94; TB2, page 168.
In the hearing, the Applicant described Bathurst as a rough gaol and he said it was hard for him there because he was a long distance away from his family so he did not get many visits. However, he said he was getting sent money “all the time”. He said there was a very high level of conflict among the prisoners there.[75]
[75] Transcript, page 25, lines 34 to 44.
On 19 June 2013, the Applicant was complaining about being locked in his cell. He demanded to see the General Manager and said that he would “punch the c--t out of him” and “this is bullshit we want a shower”.[76] In the hearing, the Applicant said of this behaviour, “I just thought that that would be a way of getting things done…”.[77]
[76] Exhibit G1, G3 page 94; TB2, page 169.
[77] Transcript, page 117, lines 30 to 34.
I have before me an assessment report, dated 11 September 2013, from a clinical and forensic psychology service which was prepared for the court.[78] It indicates that the Applicant reported the following when interviewed:
[78] Exhibit G1, G3 pages 102 to 110.
·his memories of events in Sudan are minimal given his young age at the time;
·he has had no contact with his father since the age of two and he was unsure whether his father was still alive. He felt this deprived him of a paternal role model;
·he had lost contact with his siblings because of his antisocial lifestyle and had not spoken with any of them in approximately eight years;
·he had a close supportive relationship with his mother throughout his early adolescence (which appears to be a reference to his step-mother as his mother did not come to Australia until he was 20);
·in later adolescence he began to engage in alcohol consumption and experienced anger dyscontrol which ledhim to destroying property in her home and to a more discordant relationship between them. Their relationship further deteriorated when he was approximately 21 years old and he left the family environment to live with friends. This was the time period when he began to engage in drug use and some criminal activity;
·the domestic violence against Ms K was in the context of “his partner pushing him and him struggling pushing her back”;
·his drug taking was motivated by desire to fit in, and when he was using drugs he felt as if “everything is going well, nothing is bad”;
·in relation to the robbery in company, he said “I have sympathy for those guys, for what I caused them, like mental stress or trauma, maybe they feared for their life… I don’t like to rob people, have never done that before”;
·he did not suffer from sustained low mood, anxiety, significant post-traumatic issues or psychotic symptomology at any time. The author speculated that his denial of these matters could have been due to his low verbal skills and the fact that he has used drugs consistently for nearly a decade, masking any symptoms he may have had;
·he had difficulty managing his anger and he had had some physical fights at school. He then began to engage in regular violent behaviour at the age of 18. This occurred in combination with drinking alcohol and drug use. He was often so intoxicated that he blacked out or has no memory of the violent behaviour. It had been three years since he had been involved in a fight but he agreed that anger management intervention would be useful for him; and
·it had taken him around three months for his withdrawal symptoms to abate after he entered custody.
In relation to violence, the author said:
“Indeed, it seems that he has some residual attitudes that support instrumental violence as a means of achieving an end, which are exposed during periods of intoxication, such as in the current offences.”
She opined that the Applicant did not meet the criteria for a diagnosis of mental illness, and that he had limited non-verbal reasoning skills and was of low intellectual functioning.
On 20 November 2013, the Applicant was again called up for the common assault and sentenced to imprisonment for seven months, backdated to commence on 17 February 2013.
On 19 December 2013 the Applicant was sentenced for two of the robbery in company offences.[79] For one, he was sentenced to imprisonment for four years, and for the other he was sentenced to imprisonment for three years and eight months. Each sentence commenced on 17 May 2013 with a two-year non-parole period. The learned sentencing Judge’s remarks included the following:
“At the time that he committed this offence, [the Applicant] was on the subject of a s 9 bond which of course is an aggravating feature of this particular offence. Beyond that, there does not appear to be any other aggravating feature of the offence which is not either an element of the offence charged or inherent in those elements.
…
Offences of this type demand a sentence which necessarily demonstrates both general and specific deterrence and beyond that a demand of the criminal law that he simply be punished for the crime that he has committed. Underlying all of this is that the driving factor behind his motivation to commit this crime was a need to get money to buy drugs. It was committed up around Kings Cross, not that that is of significance other than the fact that it is an area where these types of offences happen. I find special circumstances in this case given that he will need to address his drug addictions and he will need support once he is released from gaol to give effect to that ambition.”[80]
[79] There were six, one for each victim, and the other four were dealt with summarily with no further punishment.
[80] Exhibit G1, G3 pages 59 to 64.
On 6 December 2013 the Senior Assistant Superintendent at Bathurst recommended that the Applicant be segregated for his own protection. He stated that the Applicant’s behaviour was “confrontational, intimidating and had degenerated into a security problem in his relationship with other inmates”. He noted that the Applicant had a history of stealing from vulnerable inmates and said he had concerns that his deteriorating relationships, particularly with aboriginal inmates, would cause him to be seriously assaulted. His record indicated overall non-compliance with correctional centre routine.[81] In the hearing, the Applicant said he was involved a lot of fights at Bathurst because it was a tough environment and there were fights over the phones, but he denied having stood over smaller, more vulnerable inmates.[82]
[81] Exhibit R2, TB2, page 171.
[82] Transcript, page 107, line 15 to page 108, line 6. 45.
On 7 January 2014, the Applicant was transferred to the John Morony Correctional Centre at Windsor.[83]
[83] Exhibit G1, G3 page 91.
In May 2014, the Applicant’s urine tested positive for buprenorphine.[84] In July 2014, he tested positive for methylamphetamine, quetiapine, mirtazapine, and buprenorphine.[85] In September 2014, he tested positive for methylamphetamine and quetiapine.[86] In October 2021, he told Dr Zimmerman, a Consultant Forensic Psychologist who prepared some reports for the purposes of his visa application, that he had failed drugs tests in 2014 because he used buprenorphine on a few occasions that he got from other prisoners. He did not admit to the other drugs. In the hearing, he said there had been a death in his family at that time and he took some “bupe” because he had problems sleeping.[87] The death in the family was an uncle who lived in Uganda and had spent a couple of years with them in Egypt.[88] Under cross examination, the Applicant admitted that he used methamphetamine in gaol, but he was not using as much as he did in the community because it was very expensive and he did not have as much access to it.[89]
[84] Exhibit R2, TB2, page 172.
[85] Exhibit R2, TB2, page 173.
[86] Exhibit R2, TB2, page 174.
[87] Transcript, page 24, line 46 to page 25, line 5.
[88] Transcript, page 104, lines 25 to 43.
[89] Transcript, page 108, lines 18 to 30.
Between May and September 2014, the Applicant participated in an intensive drug and alcohol treatment program. However, he was removed from the program due to his “violence and poor interaction with participants”, his “genuine lack of respect towards staff” and his ongoing drug use.[90] In the hearing the Applicant said he did not get along with some people in the group or the facilitator and he did not want to be around them.[91]
[90] Exhibit R2, TB2, page 182.
[91] Transcript, page 118, line 37 to page 119, line 28.
The Applicant was transferred back to Bathurst on 30 October 2014.[92] On 6 November 2014, the Assistant Superintendent at Bathurst requested a classification review of the Applicant, stating that the Applicant had been in the correctional Centre “X Wing” for less than a week, he was already presenting as a problem, and he was to be removed from minimum-security pending a classification review. He referred to reports of the Applicant standing over smaller inmates and taking things from them. He said that while that was commonplace in any correctional centre, the Applicant was now at serious risk of reprisal from other inmates. He added that X Wing housed many inmates in custody for violent offences who were nearing the end of their sentence who did not want to be put into a position where they were forced to act. He noted that when he told the Applicant the reasons for moving him to the main gaol, he became agitated and animated saying all the inmates in X Wing were “dogs” too afraid to confront him one on one.
[92] Exhibit G1, G3 page 91.
The Assistant Superintendent noted that the Applicant had “an absolute multitude of negative case notes” and that he was recently transferred to Bathurst due to having been identified by “local intel” as being involved in “undercurrent destabilising activity”. He concluded that it was clear that the Applicant was not suitable for minimum-security.[93]
[93] Exhibit R2, TB2, page 175.
In the hearing, the Applicant characterised the reports as allegations maliciously made by inmates who did not like him or wanted him transferred to a different location.[94]
[94] Transcript, page 109, lines 1 to 28.
On 8 January 2015 the Applicant and three other inmates ignored directions from an officer and treated him with contempt. Later the Applicant came to the office window demanding to know what that officer and another officer were entering on the computer. He was asked several times to leave but did not. A third officer, “Mr W”, made a written report of this and he noted that the Applicant’s tone and posture could be described as threatening and intimidating. He added that he had had several dealings with those inmates and had witnessed them using intimidation and passive aggression on each occasion.[95]
[95] Exhibit R2, TB2, page 176.
In the hearing the Applicant said he was approached by an officer who “always puts eyes on” him and had a vendetta against him. The officer told him to shut his mouth, then he saw the officer write a report. He did not threaten the officer or say anything bad to him but that he asked if he was writing a report. He was told to leave and became very upset and “really pissed off” and told the officer there was no need to write a report.[96] Later, in re-examination, when prompted by his counsel to look at the incident report which included Mr W’s name prominently at the top and the name of the officer who had approached him in a paragraph of text, the Applicant identified Mr W as the officer who had the vendetta against him.[97] However, Mr W was not either of the officers whom the Applicant harassed at the computer. Mr W was the officer who reported that incident. I do not accept that the officer who approached the Applicant had been carrying out a vendetta against him, but I note that the Applicant was prepared to give made-up evidence to support his case.
[96] Transcript, page 112, lines 1 to 19.
[97] Transcript, page 156, lines 1 to 20.
On 9 January 2015, Mr W reported that he had directed the inmate who shared the Applicant’s cell to pack his property and move to another wing. The Applicant then said words the effect:
“If you move any gronk c--ts into my cell I will smash his skull and kill the c--t. Make sure you write it down so I have warned you two”.
He continued to make those and other threats.[98]
[98] Exhibit R2, TB2, page 177.
In the hearing, the Applicant did not deny this. Rather, he said he had told prison staff that he needed a room to himself because of his asthma. He described the threat as “tactics”, explaining:
“So these are tactics they, like, criminal people use in jail where you treat, like - you tell, like, for the safety of the person. So if you said those kinds of things for the safety of the person they can’t put you in there”[99]
[99] Transcript, page 109, lines 35 to 48.
He said the connection between his asthma and wanting a cell to himself was that the cell was too small, making it hard to breathe with only him there, let alone with someone else in the room.[100]
[100] Transcript, page 113, lines 15 to 28.

On 10 January 2015 a female medical staff member reported that the Applicant frequently attended the medication window to obtain Ventolin puffers and she had tried to educate and question his use of this medication. She stated that on these occasions she had found him to be “an extremely unpleasant patient to the point where he becomes volatile, aggressive and intimidating”.[101]
[101] Exhibit R2, TB2, page 178.
In the hearing the Applicant said he behaved that way because the nurse told him he was using the puffer too much and she could not give him more until he was assessed, which really upset him.[102]
[102] Transcript, page 114, line 1 to 16.
On 31 January 2015, the Applicant was transferred to Lithgow Correctional Centre (“Lithgow”).[103] He had spent the two weeks before his transfer in segregated custody because, according to the pre-release report mentioned below, of his intimidation of correctional officers, standing over other inmates and threatening to stab any prospective cellmates.[104]
[103] Exhibit G1, G3 pages 90 and 91.
[104] Exhibit R2, TB2, page 181.
In the hearing, the Applicant said the management at Lithgow prison was better than it had been at Bathurst. He said they had good programs, if you wanted to see a doctor you could see a doctor straight away,[105] and the level of conflict among the prisoners was less than it was at Bathurst.[106]
[105] Transcript, page 26, lines 10 to 18.
[106] Transcript, page 26, lines 20 to 26.
On 2 March 2015 a pre-release report was prepared as the Applicant was nearing the end of his non-parole period.[107] The reports described the Applicant’s response to custody as “poor at best” and concluded that he was not suitable for parole. The report included the following additional information:
·   when questioned about the circumstances contributing to his recent segregation, he became agitated and defensive. He admitted to intimidating officers and inmates and general “gangster” behaviour however he insisted that this conduct was restricted to the prison environment and would not be continued in the community. He commented several times that he did not consider intimidation to be a serious charge;
·   he tended to ignore prison rules and directions and challenge staff when issued with warnings. Several staff had noted that, despite being shown leniency on numerous occasions, he a strong disrespect for staff while demanding that staff show him respect. This was exemplified when he demanded to see the Manager of Bathurstthen threatened to kick him because he was dissatisfied with prison routine;
·   more recently the Applicant had threatened to assault a female officer upon his release;
·   he said he would not attend any further custodial programs although he offered to attend them in the community if released; and
·   he lacked insight into his offending behaviour, his unsatisfactory community-based supervision history and the impact of his actions upon his victims and the community.
[107] Exhibit R2, TB2, page 181.
One of the authors of the report, a Unit Leader, commented that the Applicant’s assurance that his intimidatory behaviour was restricted to the prison environment and would not be continued in the community indicated not only that he regarded the correctional centre as a place where antisocial and criminal activity could be carried on, but also that his general notion of law and order was greatly underdeveloped.
In relation to the report that the Applicant had threatened to assault a female officer when released, he said he might have done that, but he could not remember. He went on to say he said those kinds of things to intimidate and:
“I thought at the time where she was scared or she will treat me differently or something like that.”[108]
He was asked:
“So you thought that in that environment at that time the best way to get your own way was to intimidate people. Is that right?”
to which he replied:
“Just to put a fear in them, yes, but in a way - not to intimidate them but just put a fear or just even some of the things that I said, to be honest here… I really - it just come out of - it didn’t come out of my heart. It just came out of my frustration, to be honest with you.”[109]
[108] Transcript, page 117, line 37 to page 118, line 5.
[109] Transcript, page 118, lines 8 to 14.
On 14 March 2015 the Applicant told prison officers at Lithgow that he could not share a cell because he had been a child soldier in Sudan and that he was supposed to be a “medical one”. He was informed that the only alert that could be found was that he was asthmatic. He was informed that he had previously been in a cell with two people, and he acknowledged that, however he kept repeating that he was a child soldier from the Sudan and had to be in a cell by himself. He was asked if he knew anyone who he felt comfortable to share a cell with and answered in the negative. He was given some time to think about the situation and when asked again he said that he would assault anyone who was placed with him. The report noted that the Applicant was a “formidable and intimidating inmate by his size and has been involved in standover’s in other centres”. The report also noted that his claim that he was a “boy soldier” in Sudan made it extremely difficult to discuss issues with him. As a consequence of that incident, he was put in segregation.[110]
[110] Exhibit R2, TB2, pages 186 and 187.
In the hearing, the Applicant acknowledged that he had not been a child soldier, and he admitted making that claim to get cell to himself, also known as “one out”. When it was put to him that it was not Bathurst where he had stated that the cells were very small, he agreed and said:
“I have been using these kinds of things so I can get my – the - what I want at that time. So it was a part to make my - the reason of my getting my one out easier”.
The Applicant agreed that he was successful: he was put in a holding cell for two or three weeks, a psychiatrist came and saw him, he used the same kind of tactics, and he was given a cell to himself.[111] When he was asked if the psychiatrist recommended a cell to himself on the basis of him having been a child soldier, he changed his evidence and rather unconvincingly said it was because he was a chronic asthmatic. He said he told the psychiatrist that there were some nights where he gets up and screams and that was “part of a thing that I’m using to get my one out certificate”.[112] When he was asked if he thought it was this a serious thing to threaten to kill somebody, he said he did not think about it at the time. [113]
[111] Transcript, page 114, line 24 to page 115, line 3.
[112] Transcript, page 115, lines 5 to 10.
[113] Transcript, page 116, lines 25 to 26
On 23 April 2015 the Applicant’s visa was cancelled. Corrective Services New South Wales provided a report entitled “Report in Support of Request for Revocation of a Mandatory Visa Cancellation”[114], dated 28 May 2015 that includes the following:
[114] Exhibit G1, G3 pages 96 to 101.
·the Applicant is 195cm tall;
·the Applicant reported that as refugees in Egypt, he and his siblings were not allowed to attend school so he effectively had no formal primary education;
·he had previously disclosed in an interview at Windsor on 29 April 2014 that he had been suspended from school for wearing earrings, smoking and fighting;
·in an interview with parole he had said that he used alcohol and methamphetamine because he wanted to escape reality, he was bored and he had the wrong friends;
·he had used a substance about five months ago and his uncle had died in the Sudan Civil War;
·the “Modified South Oaks Gambling Screen”, a 16-part questionnaire that provides a score that indicates the level of a person’s gambling problem from nil to severe, was administered to the Applicant. He scored 13 indicating a “considerable problem” with gambling;
·from the age of 23 for about two years he would spend all his pay or Centrelink money in poker machines, he would steal and borrow money to continue gambling;
·the Level of Service Inventory - Revised (“LSI-R”) was administered on 29 April 2014. His score was 30 which was within the medium risk category for general re-offending;
·he was referred to the EQUIPS Addictions and EQUIPS Aggression programs which are cognitive behavioural therapy treatment programs; and
·he expressed interest in engaging in counselling when released to the community, specifically culturally focused services provided by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”).
On 3 September 2015, the Applicant and seven other inmates rioted and refused to go to their cells. Staff secured themselves in an office, and the inmates threw items at the office windows and threatened staff. The Applicant was subsequently segregated due to having been an active participant who was involved in property damage and obstructing access points. His behaviour was captured on video.[115]
[115] Exhibit G1, G3 page 93; TB2, pages 189 and 202.
From 5 to 19 November 2015, the Applicant was accommodated at the Metropolitan and Remand Reception Centre (“Silverwater”).[116] A file note dated 18 November 2015 described the Applicant as abusive to officers and said he seemed to have a big problem with female officers and should not be left alone with any female staff member.[117] The next day he was transferred to the South Coast Correctional Centre (“SCCC”).[118]
[116] Exhibit G1, G3 page 90.
[117] Exhibit R2, TB2, page 203.
[118] Exhibit G1, Section 501 G-Documents G3, page 90.
On 25 December 2015, the Applicant was involved in a fight where he and the other inmate ignored directions to stop and had to be restrained by staff.[119]
[119] Exhibit G1, Section 501 G-Documents G3, page 93; TB2, page 204.
On 5 February 2016, the Applicant refused to participate in an acquired brain injury assessment. He was “aggressive and rude” and said the assessment was “shit”.[120]
[120] Exhibit R2, TB2, page 211.
On 3 March 2016 the Applicant was transferred to Lithgow.[121]
[121] Exhibit G1, G3 page 90.
On 27 April 2016, the Applicant completed the EQUIPS Aggression program. It was noted that he was always co-operative, and he participated in all activities. He reported that he now appreciated that walking away when anger or arousal was high was the stronger thing to do.[122]
[122] Exhibit R2, TB2, page 215.
On 10 June 2016, a supplementary pre-release report was prepared.[123] It noted that the Applicant remained a maximum-security offender although he had not incurred any further misconduct charges since the previous report.
[123] Exhibit R2, TB2, pages 215 to 217.
On 13 July 2016, the Applicant completed the EQUIPS addiction program. It was noted that he always appeared motivated to listen and participate, and he appeared to have a firm commitment to remaining substance free. He expressed empathy for the consequence of his offending on both the victims and his family.[124]
[124] Exhibit R2, TB2, page 218.
That day a second supplementary pre-release report was prepared. It referred to a failure to comply with correctional centre routine and a refusal to attend work muster that had occurred and been met with sanctions since the last report. It noted that the Applicant’s participation in, and completion of, the EQUIPS Addiction program showed an acceptance of responsibility in relation to his offending behaviour and an expressed commitment to remain substance free. Accordingly released to parole was recommended.[125] I note the report did not indicate that any evaluation had been done as to the beneficial impact, if any, of the course on the Applicant’s risk of re-offending. It appears that the author simply assumed that the Applicant’s completion of the course equalled an acceptance of responsibility and commitment to remain substance free which seems to be a very big assumption and one that turned out to be incorrect.
[125] Exhibit R2, TB2, pages 218 to 220.
The Applicant was paroled on 27 July 2016.
At this point it is worth noting, that the Corrective Services records indicate that reports were made about the Applicant engaging in what can broadly be described as verbal abuse and intimidating behaviour at four different correctional centres.[126] The reports were made by several different staff including very senior staff. While the Applicant denied and downplayed some of the alleged behaviour, looking at all of those records together, and given the concerns I have identified in relation to the reliability of the Applicant’s evidence, I prefer the Corrective Services records to the Applicant’s evidence where there is an inconsistency. I accept the accuracy of the Corrective Services records with respect to anti-social behaviour by the Applicant in custody.
[126] Bathurst, Lithgow, Silverwater and SCCC.
Upon being released on parole, the Applicant was placed in immigration detention. He was asked in the hearing when and how he found out he would not return to the community, and he replied “I was very…angry and pissed off. Very, very pissed off when I knew that”[127] and he claimed that he was only notified that his visa had been cancelled two weeks before his release from prison.[128] I reject that evidence given the Applicant’s visa was cancelled in April 2015, and on 29 May 2015, he commenced his application for revocation of that cancellation.[129]
[127] Transcript, page 26, line 46 to page 27, line 2.
[128] Transcript, page 27, lines 7 to 18; page 66, lines 17 to 23.
[129] Exhibit G1, G3 page 340.
The Applicant was initially accommodated at Villawood Immigration Detention Centre (“Villawood”). Before me are some records from the International Health and Medical Service (“IHMS”) that were provided to Dr Zimmerman, and subsequently filed by the Applicant. There are also some incident reports included in the “G Documents” and summonsed material.
On 7 September 2016, the Applicant used a wet piece of toilet paper to block a CCTV camera and he kicked a door constantly for approximately five minutes. During that time, he and another detainee yelled at officers and abused them calling them “dog c--ts” and “mother f--kers” for around 10 to 15 minutes.[130] In 2019, he said he could not recall that incident.[131]
[130] Exhibit G1, G3 page 86.
[131] Exhibit G1, G3 pages 166 to 168.
On 27 September 2016, officers saw the Applicant punch the outside of a cubicle so hard that it created a hole on the outside of the door. He eventually accepted liability and said he was sorry.[132] Dr Zimmerman referred to this incident in her November 2021 report, put forward by the Applicant, and the Applicant has not commented on it.[133]
[132] Exhibit G1, G3 page 84.
[133] Exhibit A6, page 21.
On 5 October 2016 there was an incident involving the Applicant and the Emergency Response Team (“ERT”). The Applicant’s feelings about that incident featured strongly in his evidence in these proceedings. The incident was the subject of a complaint by the Applicant to the Australian Human Rights Commission (“AHRC”) which investigated and produced a report. The Applicant provided a version of the report dated September 2019[134] to Dr Zimmerman in October 2021 for the purpose of an updated psychological report. I am grateful to the Respondent for provided the final version of that report, dated November 2019,[135] to the Tribunal. Each version of the report indicates the following[136]:
[134] Exhibit A10.
[135] Exhibit R3.
[136] References are to the November 2019 version.
(a)In preparation for transfer to the detention centre in Christmas Island, the Applicant was moved into a “high care room” in Villawood.[137] According to the Department, SERCO and IHMS staff, the Applicant told an IHMS nurse that he had a razor blade, showed the nurse the razor blade, cut his right wrist in a self-harm attempt, and said that he did not want to go to Christmas Island. Additionally, he was behaving abusively and aggressively towards detention staff, and making repeated threats to kill himself and Serco officers. Use of force was apparently exercised to obtain the razor blade and prevent him from self-harming.[138]
[137] Exhibit R3, page 9.
[138] Exhibit R3, page 22.
(b)The AHRC noted that video footage from outside the room showed officers attending the door of the Applicant’s room, as though speaking with him, numerous times.[139]
[139] Exhibit R3, page 24.
(c)An email from the nurse who reported that the Applicant had a razor blade to SERCO, that she sent nine days after the incident said:
“I was advised by Serco officers that [the Applicant] required his asthma medication. Then when I went down to give it to him he said (in more words or less) ‘no I don’t want the puffers. I can’t go to Christmas Island. I have a razor blade and I will use it on myself’ and at the same time he showed me the actual razor blade held in his fingers which I could clearly see through the little open window in the door. Then I advised Serco of his possession of a razor blade and advised the team leader [redacted] and HSM [redacted] and the three of us were there while ERT requested the razor from him. He then denied having the razor each time he was asked (multiple times).”[140]
[140] Exhibit R3, page 25.
(d)The first incident occurred at 2.44pm when seven ERT officers wearing “PPE” (tactical gear typically used for riot and crowd control) ran into the room to along with four additional SERCO staff.[141] There was no footage from inside the room of the moments when officers first entered the room because the Applicant had covered the CCTV camera lens with toilet paper.[142]
[141] Exhibit R3, page 20.
[142] Exhibit R3, page 23.
(e)A Serco Centre Manager provided a statement on 27 October 2016 that:
“Based upon previous incidents with significant injuries inflicted by razor blades, the violent and aggressive behaviour of the detainee, the lack of response to over 60 minutes of negotiation by staff, and consultation with A/FOM [redacted] and [redacted], as well as ERT Team Leader [redacted], I directed that welfare clothing be brought to Hotham and that ERT were to wear PPE and activate body cameras. I also directed that the room camera was to be made operational upon entry to the room by removing the wet paper from the lens cover…”[143]
[143] Exhibit R3, page 29.
(f)It was difficult to determine from the footage exactly what occurred because of the number of officers in the room.[144] The first available footage from inside the room shows the Applicant pinned down on the floor. The AHRC found that at least six ERT officers had lowered the Applicant to the ground, turned him face down and restrained his limbs, head and body by way of downward force to the floor. Handcuffs were applied, a pat search, a metal detector search, and a strip search were conducted. During the strip search, the Applicant’s clothes were removed, and he was re-clothed in standard issue clothing. The room was also searched. No razor blade was found. All staff left the room at 2.54pm.[145]
[144] Exhibit R3, page 23.
[145] Exhibit R3, pages 31 to 35.
(g)The CCTV footage shows that immediately after the officers left the room, the Applicant walked to the door, looked through it, gestured and spoke. He then kicked the door with the back of his left foot. At 2.55pm, he approached the camera, appeared to take a small, rectangular, grey object from his mouth, showed it to the camera and appeared to place it back in his mouth. For approximately the next 15 minutes, the Applicant appeared to cough, retch, double over and touch his chest and face in apparent pain. He sat on the floor next to the door slumped over. He lay on the floor in a curled up position and sat on the bed and rocked. At various times he looked through the slot in the door into the common room and kicked the door several times with his left foot.[146]
[146] Exhibit R3, pages 36 to 37.
(h)At 3.10pm, seven ERT officers again wearing PPE gear quickly entered into the room in tight formation, accompanied by two Serco staff. The Applicant was already lying on the floor of the room face up.[147] At least six ERT officers rolled him face down and restrained him on the floor in a similar fashion, holding down his limbs, head and body. They applied handcuffs again, conducted a pat search, and then lifted him into a sitting position on the bed. He was then guarded by at least one ERT officer until an ambulance arrived to transport him to hospital. No razor blade was found. Nor was there evidence of the Applicant having ingested a razor blade.[148]
[147] Exhibit R3, page 38.
[148] Exhibit R3, page 21
(i)An IHMS clinical record dated 8 October 2016, made by a mental health nurse noted that:
“[The Applicant’s] alleged comments about the incidents as follows:
a)he had threatened self-harm in the form of swallowing a razor blade
b)at no time did he intend to harm or kill himself
c)his intention was rather to abort transfer to Christmas Island; he was in shock at the news of the transfer and his first thought was to threaten to harm himself with a razor blade
d)it is common knowledge among detainees that the way to abort transfer is with a razor blade.”[149]
[149] Exhibit R3, page 43.
(j)The Applicant was found to have a fracture to his hand that required surgery.[150] Around a week later he reported an injury to his right ankle which he claimed to have sustained in the incident. He was found to have a very minimal fracture.[151] The rest of the email from the nurse who reported that the Applicant had a razor blade stated:
“He then got searched by the ERT team twice and afterwards I was informed that he showed the razorblade to the camera in his room. Also after the second search I could hear him say he swallowed it. I didn’t witness the actual search but I also heard him say ‘my wrist is broken’. Then I left while the team leader stayed and called the ambulance.”[152]
(k)The Applicant complained to SERCO and the Australian Federal Police that he had been subjected to assault and aggravated sexual assault. The AFP declined to investigate because the CCTV footage showed no evidence of an offence.[153]
(l)On 19 October 2016 the Applicant complained to the AHRC that his human rights under Articles 7 and 10 of the International Covenant on Civil and Political Rights (“ICCPR”) had been breached.[154] Article 7 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 10 provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The AHRC determined that the Applicant’s human rights under both Articles had been breached in that excessive use was used on the Applicant on both occasions, even allowing that the officers believed that he possessed a razor blade and had concerns about the potential for self-harm, and the strip search did not pay due regard to the Applicant’s dignity and privacy.
(m)The AHRC determined that the injury to the Applicant’s right-hand and potentially to his right ankle were a result of the excessive use of force. It was further determined that the authorities had failed to follow correct procedures including failure to use body-worn cameras.[155]
(n)The Applicant had claimed that he had not been in possession of a razor blade and that the items shown to the camera was a piece of plastic that he found in the room; he did not threaten to commit self-harm and did not commit self-harm either by cutting his right wrist or swallowing a razor blade; he did not act extremely abusively and aggressively towards officers; and he did not make repeated threats to kill himself.[156]
(o)However, the AHRC found that there was information indicating that, even if the Applicant did not have a razor blade, he at least wanted to give the impression that he possessed and swallowed a razor blade, and that the concerns of detention staff about the potential for self-harm were legitimate.[157] The Commissioner was of the view that the Applicant wanted staff to believe he had a razor blade.[158]
[150] Exhibit R3, page 44.
[151] Exhibit R3, page 43.
[152] Exhibit R3, page 25.
[153] Exhibit R3, page 10.
[154] Exhibit R3, page 10.
[155] Exhibit R3, pages 55 to 56.
[156] Exhibit R3, page 22.
[157] Exhibit R3, page 10.
[158] Exhibit R3, page 48.

There is no indication that removal to another country is feasible or has even been considered. Nor is there any indication that the Applicant will request removal to South Sudan.
Under s 195A of the Act the Minister may personally grant the Applicant a visa in the public interest, although the Minister is not under any obligation to consider exercising this power. Under s 197AB of the Act the Minister may, in the public interest, make a determination to the effect that a person reside at a specified place instead of being detained with certain conditions applying to the person. I have been provided with Guidelines in relation to the referral of cases to the Minister under s 195A and s 197AB of the Act.[274]
[274] Exhibit R4.
The lawyer for the Respondent, in written submissions, advised that all cases are assessed on a case by case basis, what is in the public interest is determined by the Minister, and on at least five occasions since May 2018 the Ministerial has exercised his discretion under section 195A of the Act to grant a visa to a person who failed the character test and was refused or cancelled a protection visa under s 501 of the Act.
It was contended on the Applicant’s behalf that the Respondent’s submissions are not evidence and have no evidentiary value in the Tribunal’s determination of what will or will not happen in respect of the Applicant. The rules of evidence do not apply in Tribunal proceedings, but regard should be had to them. It is true that the information provided by the Respondent was not provided in the form of evidence, but it is information that I consider relevant. The lawyer who appeared for the Respondent is subject to the ethical standards that apply to all legal practitioners, and the Respondent is subject to s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) which requires decision makes to use their best endeavours to assist the Tribunal and to the standards of the “the Model Litigant”. I have no reason to doubt that these obligations were discharged in these proceedings. I take into account the information provided by the Respondent.
The “Guidelines on Minister’s detention intervention power – section 195A of the Migration Act 1958”[275] provides guidance on what sort of cases should be referred to the Minister for consideration, what sort of cases should not, and what sort of information should be provided to the Minister.
[275] Exhibit R4.
Cases that should be referred relevantly include cases where:
· the non-citizen has individual needs that cannot be properly cared for in a secured immigration detention facility; and
· the person has no outstanding primary or merits review processes in relation to their claims to remain in Australia but there are compelling or compassionate circumstances which justify the consideration of the use of the public interest powers and there is not other intervention power available to grant a visa to the person.
However, when assessing cases that may be referred, the Department is expected to balance the above considerations against any adverse information about the person arising, for example, from:
·     whether the person poses a risk to another individual or group within Australia, including risks of a health or security nature;
·     whether the person has a criminal history; or
·     the person’s behaviour in immigration detention and/or the community.
Additionally, the Minister would generally not expect to have cases referred where a person’s visa has been refused or cancelled under section 501 of the Act. I note the use of the term “generally” and the fact that the Minister has exercised the s 195A power on five occasions since May 2018. The Applicant’s mental health, if it deteriorates to a great extent, is something that could warrant referral to the Minister. It would be balanced against the Applicant’s criminal history which is static, and his behaviour in detention and the risk he poses to the community which are both dynamic factors that can change in his favour over time.
The Guidelines on the “Minister for Immigration and Border Protection’s residence determination power under section 197AB and section 197AD of the Migration Act 1958” [276] provides that cases that should be referred for consideration include, relevantly:
· where a person has an ongoing mental health illnesses that requires ongoing medical intervention; or
· there are unique or exceptional circumstances.
[276] Exhibit A5.
Cases that should generally not be brought to the Minister’s attention include, relevantly:
· where it is believed that a person may fail the character test under section 501 of the Act; or
· where there is a real chance the person may not comply with the conditions specified in the determination (such as not residing at the specified address) or cause harm to the Australian community;
unless there are exceptional reasons or the Minister has requested it:
Again, I note the use of the word “generally”. An ongoing mental health issue that requires ongoing care provides grounds for referral for consideration under the Guidelines.
When considering whether to make, vary or revoke a Residence Determination, the Minister will take into account information including, relevantly:
·     the person’s health and well-being;
·     the person’s conduct while in detention or previously in the community;
·     the person’s character concerns;
·     their cooperation with immigration processes and the likelihood of compliance with Residence Determination conditions; and
·     where a person has engaged in or threatened self-harm.
The Applicant’s poor conduct in detention and his character concerns are relevant but they do not necessarily preclude exercise of this power according to the Guidelines.
The Department is expected to case-manage a specified person in the community under a Residence Determination, and any change in their circumstances which affects their compliance with the Residence Determination conditions should trigger a reassessment of whether a Residence Determination, or variation to the Residence Determination, is appropriate.
A Residence Determination can be revoked. The Guidelines stipulate that the referral of cases to the Minister to consider exercising his public interest power to revoke or vary a Residence Determination should be made where, relevantly:
·     a community detainee has been charged and/or convicted of an offence against a law of the Commonwealth, a State, a Territory;
·     an agency responsible for law enforcement or security in Australia has advised the department that a community detainee is under investigation by that agency and, in that agency’s view, should not remain in the Australian community;
·     a community detainee is the subject of an ongoing investigation by police in relation to possible criminal offences;
·     there has been a serious event, not involving police charges, where a community detainee has behaved violently or aggressively, including harassment, molestation, intimidation or stalking of another person in Australia;
·     a community detainee has engaged in work or any other activity which would normally receive remuneration in breach of the conditions of their Residence Determination; or
·     a community detainee has repeatedly and deliberately breached the conditions of their Residence Determination.
The Residence Determination scheme appears to be akin to parole in the criminal justice system in that a person will be subject to conditions, will be supervised and can have the Residence Determination revoked for non-compliance or criminal or harmful conduct.
I am satisfied that it is possible that the Applicant could meet the criteria for the Minister to make a Residence Determination under s 197AB of the Act or grant a visa under s 195A of the Act at some future time if some dynamic factors change in his favour. I will proceed on the basis that those outcomes are only possibilities at this stage.
The Applicant has been in immigration detention since July 2016. He seems to have held a belief that he would be released into the wider community. That belief has been encouraged by Ms R, and she has given him hope of a loving relationship and a place for him in her family should he be released to the community. In those circumstances, I accept that a visa refusal decision will be devastating to him. I accept that the loss of hope will worsen the Applicant’s mental health, which has already deteriorated in detention.
According to Dr Zimmerman, indefinite detention has been shown to be associated with negative mental health consequences as a result of prolonged exposure to factors including uncertainty, lack of autonomy, deprivation of liberty, dehumanisation, isolation and lack of social support. She said prolonged uncertainty created by a system of indefinite detention is a major factor in increasing hopelessness and depression. Dr Zimmerman noted the risk of the Applicant’s resilience deteriorating the longer he is held in indefinite detention. Dr Zimmerman is concerned about an increased risk of suicide should the Applicant remain in detention. The Applicant previously reported having suicidal thoughts without an intention to act on them at a time when he had hope of a positive outcome.
I think it most unlikely that Ms R would abandon the Applicant. In addition to her support, he will continue to have the support of his mother and some siblings. He has his religion and although he is Muslim and Ms R is Christian they worship together. He has access to psychiatric and psychological services in detention. While he remains there, his physical and psychological wellbeing must be monitored and managed pursuant to the duty of care owed to him.
In 2016, there was a failure to properly discharge that duty of care. The Applicant played an integral part in that. As recently as 2021 he said he gets flashbacks and does not feel safe. In the five years since the ERT incident there have not been any further failures in the duty of care owed to the Applicant, and the reprisals he expected because he made a complaint have not eventuated. The Applicant’s fears then appear to be a function of his mental health rather than rational and credible. That does not make them any less real to him, but it means they can be managed with treatment.
Dr Zimmerman was of the view that the Applicant is better off with the supports he has in detention than he would be without them, but there is a limit to what can be done to alleviate mental stress that is caused by an environment without taking the person out of that environment.
It was contended on behalf of the Applicant that the indefinite detention of refugees on grounds of adverse security assessments has been held by the UN Human Rights Committee to constitute arbitrary detention in breach of Article 9(1) of the International Covenant on Civil and Political Rights (“ICCPR”). The cases that were cited[277] differed in material respects from the case at hand. In those cases, the refugees had been put straight into immigration detention upon arrival, they were not told the basis of the adverse security assessments and there was no mechanism to challenge the reasons for the adverse assessments. When assessed against the criteria of what is justified as reasonable, necessary and proportionate in the circumstances, the refugees’ detention was considered to be arbitrary. In the Applicant’s case, he is detained because of character concerns and the reasons are well known to him, the decision was subject to merits review and the Tribunal’s decision will be open to judicial review. It seems unlikely that, in the current circumstances, a body with jurisdiction to determine whether or not the Applicant’s continued detention is arbitrary, would determine that it is.
[277] F.J. et al. v. Australia, No. 2233/2013, UN Human Rights Committee (2 May 2016); F.K.A.G. et al. v Australia, UN Doc CCPR/C/108/D/2094/2011 (23 August 2013)
Considering all the matters I have canvassed, I allocate heavy weight to this Other Consideration against refusal of the visa.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
There is no prospect of the Applicant being removed to South Sudan while he engages Australia’s non-refoulement obligations. If he is removed there it will be because he no longer engages those obligations. It is impossible to predict what changes in South Sudan would lead to that outcome or when that might happen. Accordingly, I cannot make any sensible assessment of the matters I am required to assess under this Other Consideration. Further, applying weight to this Other Consideration would be inconsistent with applying weight to Other Consideration (a) on the basis that the Applicant is facing indefinite detention.
This Other Consideration is neutral.
(c) Impact on victims
This Other Consideration (c) requires me to assess the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of 15 and has lived in Australia for 22 years including the years he has spent in prison and immigration detention. He commenced offending within three years of arriving in Australia.
The Applicant has held gainful employment although it was patchy due to his substance abuse. He volunteered at the PCYC, coaching basketball and mentoring youth for around two or three years. While Ms H said, in her statement, that the Applicant helped people in their community,[278] she did not give details, there is no corroborative evidence and that seems unlikely given the Applicant’s substance abuse and anti-social lifestyle from the time he was 18 to his incarceration. I am not satisfied that the Applicant did voluntary or community work apart from his involvement in the PCYC.
[278] Exhibit A5.
The Applicant has familial links to the Australian community and there is a family friend who is prepared to give him a job. He has many siblings, including half-siblings and step-siblings, in Australia, who were identified in his visa application and oral evidence. While I accept that he has re-established contact with his siblings, there is little evidence of strong emotional bonds. The only sibling other than Ms H who has visited the Applicant in detention is a brother who lives in Canberra.[279] I acknowledge that the Applicant said he did not want his siblings to see him in detention and preferred to keep in touch by phone.
[279] Transcript, page 142, lines 11 to 16.
Ms H gave evidence specific to her and about her family as a whole. She is a single mother who works and studies at TAFE. She and her mother look after Child H. She thinks that having the Applicant around to help look after their mother and Child H would make a big difference. She expects that the Applicant will play with Child H and take him out places. Ms H said that since the Applicant has been in gaol, no-one in the family has been truly happy, and it has been very hard on them. She said the family would be devastated if the Applicant is not released from detention. However, of all the Applicant’s siblings, only Ms H gave evidence. The fact that the other siblings did not provide any evidence in support of the Applicant, not even a letter or email, was not explained. I am satisfied that a visa refusal will cause Ms H emotional hardship and worry, but I give less weight to the impact on the other siblings.
Ms H said if the Applicant were there helping to take care of her mother, she could work more hours than she currently does, and when her son starts school, the Applicant could take her son to school so she will not have to change her timetable. This assumes that the Applicant’s working hours would accommodate that which seems unlikely if he will be working as a gardener or in construction. However, I accept that the Applicant could be of some help with Child H.
The Applicant said his siblings are too busy with work to be of much help to his mother.[280] Ms H said she has step-sisters in Sydney but they work, and that all the siblings have a good relationship with each other and with her mother, and it is only their work commitments that stop them from all seeing each other.[281] I think it is an exaggeration that the Applicant’s siblings could not help much because of work, given that people do not work around the clock and they have a good relationship with the Applicant’s mother.
[280] Transcript, page 65, lines 6 to 33.
[281] Transcript, page 195.
The Applicant’s mother suffers from diabetes, a thyroid condition, high blood pressure and she has had operations on both of her knees. I accept that she has a close bond with the Applicant, having visited him in gaol and immigration when he could, and maintaining phone contact once or twice per week. She thinks that her worry about the Applicant’s situation is impacting her health although there is no medical evidence substantiating that. She feels depressed and anxious and does not sleep well. She would like to have the Applicant’s financial support as she has a lot of medical expenses. She would also like his help with day-to-day tasks like shopping and going to appointments.[282]
[282] Exhibit A4; Transcript, page 29, lines 1 to 19.
I think the extent to which the Applicant could assist his mother is limited as he intends to work. However, outside of working hours, he could perform tasks to assist her. I accept that the Applicant’s mother will suffer emotional hardship if he is not released to the community and this is likely to continue to cause her to feel depressed and anxious.
I do not accept that the Applicant’s mother needs the Applicant to take care of her or that he could do much to take the pressure off Ms H. However, I accept that he could be of some help and that would make a positive difference.
Ms R loves the Applicant, is very devoted to him, and wants to live with him, and eventually Child A, in a family unit. I accept that she is finding his continued detention emotionally difficult, and it seems to be consuming her thoughts. She believes the Applicant will be released. A visa refusal decision will shatter the belief she has held for four years and cause her great emotional hardship. She has a home in Melbourne with people who love her, and her son who she misses, which will likely provide some emotional cushioning. She is not dependent on the Applicant in a financial or practical capacity.
A visa refusal decision will impact Child A, and the Applicant’s nieces and nephews as discussed in Primary Consideration 3. Child M is 19 years old. The matters I canvassed with respect to Child D apply equally to him.

The Applicant does not appear to have any employment links or pro-social friends in the community.
Conclusion: Other Consideration (d)
Overall, the I allocate moderate to heavy weight to the Applicant’s ties to the Australian community against refusal of the visa application.
CONCLUSION
This matter is unusual in that the legal consequence of visa refusal is undoubtedly indefinite detention, and the prospects of that coming to an end are speculative.
It was contended on behalf of the Applicant that protracted or indefinite detention is inflicting, or could reasonably inflict, serious psychological harm upon him which would be contrary to Article 7 of the ICCPR, and that the possibility of Australia breaching its non-refoulement obligations should be given dispositive weight. If prolonged detention were to result in the Applicant’s mental health deteriorating to an extent that it could be said that the Government was subjecting him to torture or to cruel, inhuman or degrading treatment, it is the role of the executive to address that and it can be brought to the attention of the AHRC. The Tribunal’s function is to apply the law, and the law does not permit me to give dispositive weight to the possibility, or even the certainty, of Australia breaching its international refoulement obligations. It requires me to apply the Direction, which expressly states that Australia’s non-refoulement obligations should be balanced against the seriousness of the Applicant’s criminal offending and other serious conduct,[283] and that the relevant primary and other considerations must be taken into account, with the Primary Considerations generally being given greater weight than the Other Considerations.[284]
[283] Paragraph 9.1(2).
[284] Paragraph 7(2).
As unpalatable as the thought of a person being detained indefinitely is, so it the thought of multiple members of the community (and welcome guests in our country) having been assaulted and menaced and the very real risk of further harm of that nature occurring. The Direction stipulates that being able to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they, among other things, will not cause or threaten harm to individuals or the Australian community.[285] Further, non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.[286] The Australian community expects that the Australian Government will not grant a visa to a non-citizen who raises serious character concerns, and this expectation applies even regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
[285] Paragraph 5.2(1).
[286] Paragraph 5.2(2).
Primary Considerations 1, 2 and 4 combined, outweigh Other Considerations (a) and (d), and the best interests of the Applicant’s minor niece and nephews, combined. In addition, there is a young child who is an Australian citizen and a member of the Australian community who has not had his mother with him for two and a half years and that separation will continue for a lengthy and indeterminate period if the Applicant is released to the community. That child’s best interests provides additional reason to affirm the decision.
The decision under review is affirmed.

I certify that the preceding 383 (three hundred and eighty three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

...............................[SGD].........................................
Associate
Dated: 23 December 2021

Dates of hearing: 18, 19 and 22 November 2021

Counsel for the Applicant

Solicitors for the Applicant:

Ms Tanya Skvortsova

Refugee Legal

Solicitor for the Respondent:
Mr David Brown

Australian Government Solicitor

ANNEXURE A- EXHIBIT LIST

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents (G1 to G4 paged 1 to 402) R - 23 September 2021

A1
Applicant's Statement of Facts, Issues and Contentions (paged 1 to 15) including annexure:

A. Von Wethern et al, ‘The impact of immigration detention on mental health: a systematic review’ (2018) 18(1) BMC Psychiatry 382.
A -
19 October 2021

A2 Statement of the Applicant (9 pages) A 18 October 2021
19 October 2021

A3 Statement of the Applicant’s Partner (7 pages) A 15 October 2021
19 October 2021

A4 Statement of the Applicant’s Mother (3 pages) A 29 October 2021 1 November 2021

A5 Statement of the Applicant’s Sister (3 pages) A 29 October 2021 3 November 2021

A6 Psychiatric Report of Dr Nina Zimmerman, consultant forensic psychiatrist (29 pages) and Cover Sheet (1 page) lodged on 15 November 2021 A 9 November 2021 10 November 2021

A7 International Health and Medical Services (IHMS) Records October 2016 to October 2021 (33 pages) A - 10 November 2021

A8 Applicant’s Reply A 15 November 2021 15 November 2021

A9 Letter of Instruction to Dr Nina Zimmerman (2 pages) A 22 October 2021 15 November 2021

A10 Australian Human Rights Commission (AHRC) Report, FZ and Commonwealth of Australia (Department of Home Affairs) (54 pages] A 3 September 2019 15 November 2021

A11 Applicant’s Closing Submissions (12 pages) A 24 November 2021 24 November 2021

A12 Applicant’s Reply to Respondent’s Closing Submissions (3 pages) A 26 November 2021 26 November 2021

R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16) R 10 November 2021 10 November 2021

R2 Respondent’s Tender Bundle (TB1 to TB2, paged 1 to 220) R - 10 November 2021

R3 Australian Human Rights Commission (AHRC), FZ and Commonwealth of Australia (Department of Home Affairs) [2019] AusHRC 135 (72 pages] R November 2019 17 November 2021

R4
Respondent’s Submissions attaching:

· Department of Home Affairs: PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s detention intervention power

· Department of Home Affairs: PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
R - 24 November 2021

R5 Respondent’s Closing Submissions R 25 November 2021 25 November 2021

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G4 paged 1 to 402)	R	-	23 September 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 15) including annexure: A. Von Wethern et al, ‘The impact of immigration detention on mental health: a systematic review’ (2018) 18(1) BMC Psychiatry 382.	A	-	19 October 2021
A2	Statement of the Applicant (9 pages)	A	18 October 2021	19 October 2021
A3	Statement of the Applicant’s Partner (7 pages)	A	15 October 2021	19 October 2021
A4	Statement of the Applicant’s Mother (3 pages)	A	29 October 2021	1 November 2021
A5	Statement of the Applicant’s Sister (3 pages)	A	29 October 2021	3 November 2021
A6	Psychiatric Report of Dr Nina Zimmerman, consultant forensic psychiatrist (29 pages) and Cover Sheet (1 page) lodged on 15 November 2021	A	9 November 2021	10 November 2021
A7	International Health and Medical Services (IHMS) Records October 2016 to October 2021 (33 pages)	A	-	10 November 2021
A8	Applicant’s Reply	A	15 November 2021	15 November 2021
A9	Letter of Instruction to Dr Nina Zimmerman (2 pages)	A	22 October 2021	15 November 2021
A10	Australian Human Rights Commission (AHRC) Report, FZ and Commonwealth of Australia (Department of Home Affairs) (54 pages]	A	3 September 2019	15 November 2021
A11	Applicant’s Closing Submissions (12 pages)	A	24 November 2021	24 November 2021
A12	Applicant’s Reply to Respondent’s Closing Submissions (3 pages)	A	26 November 2021	26 November 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)	R	10 November 2021	10 November 2021
R2	Respondent’s Tender Bundle (TB1 to TB2, paged 1 to 220)	R	-	10 November 2021
R3	Australian Human Rights Commission (AHRC), FZ and Commonwealth of Australia (Department of Home Affairs) [2019] AusHRC 135 (72 pages]	R	November 2019	17 November 2021
R4	Respondent’s Submissions attaching: · Department of Home Affairs: PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s detention intervention power · Department of Home Affairs: PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power	R	-	24 November 2021
R5	Respondent’s Closing Submissions	R	25 November 2021	25 November 2021