GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 178
•11 February 2020
GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 178 (11 February 2020)
Division:General Division
File Number: 2018/2353
Re:GQVS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:11 February 2020
Place:Melbourne
The Tribunal decides to:
set aside the decision of a delegate of the respondent made under s 501CA(4) of the Migration Act 1958 and dated 24 April 2018 refusing to revoke the cancellation of the applicant’s Class BA Subclass 200 Refugee visa under s 501(3A) of the Migration Act 1958; and
substitute a decision that the decision to cancel the applicant’s Class BA Subclass 200 Refugee visa be revoked under s 501CA(4) of the Migration Act 1958.
......................[sgd]..............................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke cancellation of revocation of cancellation of Class BA Subclass 200 Refugee visa – whether non-refoulement obligations owed – decision under review set aside
Legislation
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
Migration Act 1958; s 501; 501CA; 36(2)(a)
Secondary materials
Chambers 21st Century Dictionary (1999, reprinted 2004)
DFAT Country Information Report: South Sudan (5 October 2016)
Prochaska JO and Di Clemente CC; Transtheoretical Therapy: Towards and Integrative Model of Change; Psychotherapy: Theory Research and Practice
UN Office for the Coordination of Humanitarian Affairs: Humanitarian Needs Overview for South Sudan 2019
UNHCR Position on Returns to South Sudan – Update II (April 2019)
United States Department of State Country Report on Human Rights Practices for 2017: South Sudan
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; 203 ALR 112; 78 ALD 8
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
AXT19 [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
BAL19 v Minister for Home Affairs [2019] FCA 2189
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
BKS18 v Minister for Home Affairs [2018] FCA 1999
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; 302 ALR 192
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Djalic v Minister for Immigration [2004] FCA 151; (2015) 139 FCR 292
DKXY v Minister for Home Affairs [2019] FCA 495
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2019] FCA 1132
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Omar v Minister for Home Affairs [2019] FCA 279
Plaintiff M64/2015 [2015] HCA 50
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523; 362 ALR 9
Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 362 ALR 48
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Sowa v Minister for Home Affairs [2019] FCAFC 111
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146; 344 ALR 1
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531; 162 ALD 13
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Deputy President SA Forgie
GQVS came to Australia in October 2001 as the holder of a Class BA Subclass 200 Refugee visa (Refugee visa) when he was 15 years of age. He had been born in South Sudan before moving to Sudan with his family when he was two or three years of age and then to Egypt with his stepmother and brother, whom I will call “YB” when he was 12 years of age. He remains a citizen of South Sudan. GQVS has been convicted of a number of offences, for which various sentences have been imposed. His most recent offences against the law of New South Wales led to his being sentenced to a term of imprisonment of seven years. That meant that he is regarded as having a substantial criminal record within the meaning of s 501(7)(c) of the Migration Act 1958 (Migration Act) and so did not pass the character test. As he was then serving a sentence of imprisonment on a full-time basis for an offence against the law of a State, s 501(3A) of the Migration Act obliged a delegate of the Minister for Home Affairs (Minister) to cancel his Refugee visa. The delegate did that on 13 April 2017.
As he was obliged to do, the delegate invited GQVS to make representations to the Minister about revocation of the decision to cancel his Refugee visa under s 501CA(4) of the Migration Act. GQVS made those representations on 20 April 2017 and on 28 December 2017. On 24 April 2018, a delegate of the Minister decided not to revoke the cancellation. A differently constituted Tribunal reviewed the delegate’s decision after GQVS lodged an application for review. The Tribunal affirmed it on 17 July 2018 but, on 21 March 2019, O’Bryan J quashed that decision with the consent of the parties and after the Minister conceded that it had been affected by jurisdictional error in that the Tribunal had failed to consider GQVS’s representation that he would be harmed on return to South Sudan on account of his ethnicity.
As agreed with the parties, I have heard GQVS’s application afresh without regard to the previous decision that was reached by the Tribunal but with regard to the evidence that has been lodged to date. I have decided to set aside the decision of a delegate of the Minister dated 24 April 2018 refusing to revoke the cancellation of GQVS’s Refugee visa under s 501(3A) of the Migration Act. In its place, I have substituted a decision that the decision to cancel GQVS’s Refugee visa under s 501(3A) be revoked under s 501CA(4).
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which GQVS’s Refugee visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of that decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
The word “imprisonment includes any form of punitive detention in a facility or institution.”[1]
[1] Migration Act; s 501(12)
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(a) are relevant in this case for the purposes of s 501(3A). The relevant circumstance is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
GQVS was sentenced to a term of imprisonment of more than 12 months when he was convicted in the Downing Central District Court (District Court) of special aggravated break and enter and commit serious indictable offence (weapon) and sentenced to a term of seven years’ imprisonment. That means that he does not pass the character test as defined in s 501 because he has a “substantial criminal record” as defined by s 501(7)(c). As GQVS was also serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of New South Wales, the Minister was also required to cancel his Refugee visa under s 501(3A).
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
“The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.”
[2] Migration Act; s 501CA(1)
In the circumstances of this case, GQVS cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test in s 501. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[5] Those directions must not be inconsistent with the Act or the Regulations made under it.[6] The person or body to whom the directions are given must comply with them.[7]
[5] Migration Act; s 499(1)
[6] Migration Act; s 499(2)
[7] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 79” and applies to the decision made in relation to a visa of the sort held by GQVS. A person or body, including the Tribunal, must comply with any direction made under s 499.[8] I will come back to Direction No. 79 and to the particular considerations which it sets out and to which I must have regard.
[8] Migration Act; s 499(2A)
BACKGROUND
Early life in South Sudan, Sudan and Egypt
GQVS was born in what is now South Sudan in 1986. When he was two or three years of age, he and his family moved to Sudan. It was at or about that time that GQVS was parted from his biological mother. He has no memory of her and, until the age of ten or so, thought that his step mother was his biological mother. The family lived in Khartoum where he saw a lot of fighting where people would pull out swords or machetes. He also heard gunfire and saw people drinking a great deal of alcohol. GQVS was not allowed to play outside the house as it was too dangerous. Their father drove them to school each day. Despite his parents’ trying to keep them from seeing any violence, GQVS and YB would sneak out of the house to play soccer with other children. They would get into a great deal of trouble when they returned home. Their father would hit them and it makes him “… sad to remember the way he would beat … [him] up.”[9] One day, he saw a man stab another in the stomach and he “… saw all of his insides coming out.”[10] GQVS felt helpless and could do nothing to help a man whom he knew was dying and who was asking him for help.
[9] Statement of GQVS dated 5 July 2018 at [5]; G documents at 459
[10] Statement of GQVS dated 5 July 2018 at [7]; G documents at 459
When GQVS was 12 or so, he and his stepmother and siblings moved to Egypt to escape the civil war in Sudan. His father could not afford to join them initially but did so at a later time. Until their father arrived in Cairo, GQVS and YB worked. YB worked at a supermarket and GQVS worked at a gas station. Between them, they would earn $3 to $5 a day. They would take that money home to their stepmother and would hustle to get a bag of food to take home to her as well. GQVS described life in Egypt as being as bad as that in South Sudan and Sudan in many ways:
“… We witnessed fighting and abuse there too. I still get upset and emotional when I think about this time in our life. I remember there was a day when I had finished work early. I went to meet … [YB] and was helping him finish up at work. He had to go to another suburb to pick up something for his workplace. I remember that … [YB] was riding a bike and we had to cross a bridge. When we were coming back, we came across a group of bad people. I told my brother that he should stand next to me. As I was pushing the bike, one of them hit me. The bike fell over. I was trying to protect my brother. One of them came with me with a blade and slashed … [YB] on the neck. I took my jumper off and used it as a bandage for the wound. It was bleeding a lot. He kept asking me if he was going to die. I break down just remembering this. I was so afraid that he was going to die. He still has a scar on his neck to this day.”[11]
[11] Statement of GQVS dated 5 July 2018 at [12]; G documents at 460
Early life in Australia
A passage in a Psychological Assessment Report prepared by S Momartin, Clinical Psychologist after conducting a two hour assessment of GQVS, summarises his early years in Sydney. He and his family arrived in Australia in 2001 when he was 15 years of age:
“… [GQVS] said that the family settled in Sydney in 2001. He added that two of the siblings were born in Egypt and two in Australia. When in Australia, … [GQVS] reported that he eventually enrolled in … college … where he attended secondary school in order to attain a year ten certificate and also to learn English, but was asked to repeat the year. He then attended … High School in order to attain his year ten certificate, although due to the pressures of life, financial difficulties and also bullying in school, he was not able to complete the course and left school and found employment. He expressed disappointment that he could not complete his course as he said his parents also wanted him to complete his education, although he said the bullying at school and other pressures became difficult to deal with. … [GQVS] said that he worked at various jobs such as building, bricklaying, concreting, car washing and other labour jobs always keeping busy and supporting his family financially. … [GQVS] reported that around the age of eighteen, he started ‘befriending the wrong type of friends’ which resulted in getting involved in alcohol consumption and drug use. He reported using cannabis and mixing this with alcohol which resulted in trouble with the police several times. He mentioned that he was arrested a few times with various charges and served short periods of time in prison. … … [GQVS] reported that after release, he continued to work and support his siblings, encouraging them to continue attending school and completing their education. … [GQVS] said that he helped and encouraged his biological brother [YB] to finish his education and learn a trade, who then became a carpenter and is now a successful businessman. … [GQVS] said that he is very happy and proud of his brother …”[12]
[12] G documents at 71-72
This summary is consistent with that included in the Treatment Completion Report completed by the Services & Programs Officer of the Intensive Drug and Alcohol Treatment Program (IDATP) when he wrote:
“… [GQVS] reported that he was raised by his father and step mother and described his relationship with his parents as strained due to their constant arguments over his behaviour and life style choices and this resulted in him leaving home and living with various relatives and friends at the age of 17 years of age. … [GQVS] reported all of his family reside in Victoria, and he has no family in New South Wales. … [GQVS] openly acknowledged that his AOD use had led to a destructive relationship. …”[13]
[13] G documents at 84
In his statement made in July 2018, GQVS elaborated on his life at school:
“17. I started going to school in Australia. I found English was hard to pick up – I struggled with reading and writing. I studied hard but I still couldn’t get good marks like other people got. I always wanted to be like the kids who were born in Australia and already knew English. I didn’t know why I couldn’t read as fast as them.
18.If the teacher asked me to read something, some of the kids would laugh at me. They would say mean things and try to make me uncomfortable but I would ignore it. They would say racist things – somebody would call me the ‘n’ word. At lunchtime I would grab a basketball and play by myself. I went to English school for one year and qualified for high school. I started in year 10. I finished year 10 but they asked me to repeat it. I did six months and then decided to stop. I started working in a demolition job. I’ve been doing construction work since then.”[14]
[14] G documents at 332-333
In his statement, GQVS added that he was surrounded by drugs when he was young and he did not think of the consequences of using them. He thought only of how he felt at the moment. In 2005, he was introduced to alcohol by a friend with whom he played basketball. In his oral evidence, GQVS said that alcohol became a problem for him because he hardly ate and could not sleep at night. He needed something to block out the moment and alcohol would make him do that by making him pass out. GQVS drank like that until he was 19 years of age.
When he was at school GQVS worked at the weekend for a man engaged in demolition. During his holidays, the work became full-time. GQVS would also drive his father to work and would get up at 4:00am to do so. That saved his father $50 in taxi fares. On his return, he would take the younger children to school and his mother shopping. He taught them how to drive. He made sure that the police did not catch him.
GQVS said that he was introduced to cannabis by friends in 2006. He found that it did not make him ill and did not get him into trouble. Cannabis was followed by methamphetamine. An Australian woman introduced him to that drug, GQVS said. He knew her through one of his friends. He continued to use methamphetamine because he became addicted to it. GQVS could not place an exact date on the time he started using methamphetamine but said he was using all three drugs – methamphetamine, cannabis and alcohol - during the period of his offending between 2007 and 2013. In June 2013 when he went to his former partner’s house an refused to leave for some time, GQVS said that he was using two grams of methamphetamine each day.
Looking back, GQVS said that he could see that this was a real turning point for him as all of his offences had been related to getting, or being under the influence of, drugs or alcohol. When his biological mother died in 2007 from cancer, he used more drugs and consumed more alcohol to help with the pain he felt. One of his father’s business associates had told his father of her death. His father had told two of his siblings and his sister told him when he visited the house, GQVS said. He felt devastated and as if he had nothing to live for. He felt that he did not have anyone to talk to about her death and he started using more drugs and alcohol to help with the pain.
Convictions
In the following table, I will set out GQVS’s convictions interspersed with other relevant events. The details are taken from the National Police Certificate but supplemented by the Criminal History – Bail Report (Bail Report) prepared by the New South Wales Police Force in so far as the date of the offence, or the date on which the charge was laid, is concerned. The date of the offence is relevant in viewing the course of GQVS’s conduct. Dates for those committed between approximately May 2012 and April 2013 have not been included as I do not have police records from Victoria where they were committed. In so far as offences committed in New South Wales are concerned, I have added the supplementary information only where the conviction is referred to in both documents because the Bail Report specifically states that it is based solely on a name check and not verified by fingerprints. In all, I have calculated that GQVS has been convicted of 68 offences in all. A number of those offences were offences of Failing to Answer Bail.
Court
Date of Conviction
Date of Offence(s) or charge(s)
Offence
(counts)Result
Unidentified Victorian Court
10 January 2019
Offences committed in 2012
Exceed prescribed concentration 3hrs breath-drive vehicle
Drive motor vehicle without licence
Use unregistered motor vehicle- highway
Theft of motor vehicle
1. Convicted.
2. Good Behaviour Bond for two years, fined $1,500 with 12 months to pay and disqualified from driving for three years.
Downing Centre District Court
23 Oct 2015
21 April 2014
Sp agg b&e & commit serious indictable offence-weapon-si
3. H 195438596: imprisonment: 7 years commencing 27/04/2014 concluding 26/04/2021 non parole period with conditions: 3 years and 6 months commence 27/04/2014 conclude 26/10/2017. Release subject to supv court case reference number 2014/00125274
I set out further details relating to this offence under the heading of “Sentencing remarks”.
At the time of the offence, GQVS said, he was on a good behaviour bond following his convictions on 21 January 2014 but his use of ice was at its worst. He had been high on ice and not slept for the previous 11 days and was not in his “right mind”. At the time, he was homeless and moving from couch to couch. The ice was affecting his decision-making.
GQVS said that he knew where the victim lived and said that the victim owed him money but he should not have done what he did. He was accompanied by a Lebanese man who was also using ice.
Parramatta Local Court
20 Nov 2014
18 June 2013
Stalk/intimidate intend fear physical etc harm (domestic)-t2
H 51977838: (call up) imprisonment: 3 months commencing 20/11/2014 concluding 19/02/2015
4. On 8 April 2014, Magistrate at the Bankstown Local Court directed that a notice of call up be given to GQVS when it was reported by the Fairfield Community Corrections Office that he had failed to comply with condition (3) of his bond by failing to report on 7, 12 and 27 February 2014, 3, 11 and 24 March 2014 and 4 April 2014 as directed. He had also failed to provide notice of a fixed address. A Community Corrections Officer had visited GQVS’s last known address but he was not there. The officer had asked one of GQVS’s brothers to tell GQVS to make contact and GQVS did so later in the day. In this period, GQVS reported as required on 1, 8 and 15 April 2014. The Community Corrections Officer reported that it was difficult to implement interventions for GQVS’s anger management and drug and alcohol issues given his transient lifestyle. The purpose of the call up request was to allow an alternative penalty to be imposed.[15]
5. GQVS said that his use of ice escalated in 2013. During this year, he threw a brick – or perhaps three on the police evidence – through his former partner’s front window. As part of the sentence imposed on him for the offences he committed on that day, GQVS was placed on a good behaviour bond but he found he was really struggling between February and April 2014. His use of ice was “out of hand” and, as he did not have secure housing. One of his close friends had died in a car accident and he felt that bad things kept happening to him. At the time, he was using too many drugs and could not think straight. It made it very hard for him to comply with his corrections order but in his head, he said in his statement dated 5 July 2018, he was not ready to get off drugs.[16]
Bankstown Local Court
21 Jan 2014
14 October 2013 and
5 December 20136. Fail to appear in accordance with Bail Granted undertaking (conviction – 62701403)
7. H 51977838: imprisonment: 1 month commencing 17/12/2013 concluding 16/01/2014
Fail to appear in accordance with, Bail Granted undertaking (conviction - 62712441)
H 51977838: imprisonment : l month commencing 17/12/2013 concluding 16/01/2014
8. Fall to appear in accordance with Bail Granted undertaking (conviction - 62724613)
9. H 51977838: Imprisonment: 1 month commencing 17/12/2013 concluding 16/01/2014
18 June 2013
10. Destroy or damage property (dv)
H 51977838: imprisonment; l month commencing 17/12/2013 concluding 16/01/2014
18 June 2013
11. Stalk/intimidate intend fear physical etc harm (domestic)-t2
H 51977838: bond s9 : 2 years supv nsw prob service
The bond required GQVS to (1) be of good behaviour, (2) appear before the Court during the bond term as required, (3) accept supervision and guidance and comply with all reasonable direction of the Probation and Parole Service and (4) to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.GQVS’s evidence is that he had been in a relationship with a woman, whom I will call “AW”, and he had spent many nights at her residence. At the time, GQVS was living at the home of one of his brothers in Sydney and working as a casual labourer.
On 18 June 2013, he was still hung over from drinking the night before. At the time, he was drinking alcohol and taking up to two grams of methamphetamine each day. He had gone to his place of work but work had been cancelled for the day. He decided to go to AW’s home as some of his mail was sent there. He did not have his key and knocked on the door and knew someone was there because he had seen a curtain move as he approached the home. After waiting for what he thought was 10 or 15 minutes, GQVS said that he became angry. A neighbour came out of her house and asked him what he was doing there. As he was walking away, he grabbed a brick, returned to AW’s house and threw it through her front window. When the police came and challenged him about breaking the window, he said that he told them he lived there and was seeing his partner. He admitted throwing the brick.
In cross-examination, GQVS said that, while he had been living at his brother’s house, AW had been having an affair with her former partner. He had no idea that had been so and thought that he and she were in a relationship. GQVS said that he ended the relationship when he was charged and told that he was not allowed to go back to AW’s house.
GQVS’s evidence is broadly consistent with the version of events set out in the Facts Sheet prepared by the police for the Blacktown Local Court.[17] The Facts Sheet includes reference to a conversation between GQVS and AW when he knocked on her door. She told him that he was not allowed to be there and that she would not open the door. He shouted to her that, if she did not do so, he would break the window. AW became very scared when GQVS continued to bang on the door and her windows. When she heard the sound of breaking glass, she ran into her back yard and from there to her neighbour’s front yard. After an hour or so, GQVS left on his BMX bike and was subsequently detained.
In a statement made by the arresting police officer, he said that GQVS had admitted to kicking AW’s door and damaging it because she would not let him in and he did not have his keys. There was another man there and she would not let him in. GQVS took some mail from his back pack to show the police officer that he lived there.[18]
Parramatta Local Court
02 Oct 2013
26 July 2013
Possess prohibited drug
H203593195; fine: $300 drug to be destroyed
12. In a letter dated 26 April 2013, an officer of the Department of Immigration and Citizenship wrote a formal counselling letter to GQVS. The letter advised him that he had a substantial criminal record and that brought him within the provisions of s 501 of the Migration Act. The letter drew GQVS’s attention to s 501(2) and the power it gave the Minister to cancel his visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test. It explained that there are a number of ways in which a person does not meet the character test, which is defined in s 501(6). A copy of s 501 was enclosed with the letter.
13. The letter concluded with the following statements:
“At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.”[19]
14. On 2 May 2013, GQVS signed an acknowledgment that he had received the Formal Counselling Letter. Part of the acknowledgement read:
“I understand that under the provisions of section 501 of the Migration Act, any visa that I hold may be considered for cancellation if I am convicted of further criminal offences or engage in any conduct that comes within the scope of subsection 501(6) of the Migration Act.”[20]
05 April 2013
Recklessly cause injury
Intentionally cause injury
Wilfully trespass in a public place
Unlawful assault
15. At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the Individual named above.
Sunshine Magistrates Court
14 Jan 2013
16. Contravene community correction order
Proven
Breach re 22/05/2012
17. Original order has been varied. Convicted and a community correction order for 6 months, Unpaid community work, to perform 50 hours of community work. This condition starts on 14/01/2013 and goes for 6 months.
18. Assault police (2 charges)
19. Drive motor vehicle without licence
Resist police
Fail to give way to vehicle- turn at intersection
Pending Charges
01 January 2013
20. Exceed prescribed concentration 3hrs breath-drive vehicle
At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the Individual named above.
Dealt with on 10 January 2019.
21. Drive motor vehicle without licence
22. Use unregistered motor vehicle- highway
Theft of motor vehicle
Sunshine Magistrates Court
22 May 2012
23. Assault police (2 charges)
24. Convicted and a community correction order for 6 months. Unpaid community work, to perform 50 hours of community work. This condition starts on 22/05/2012 and goes for 3 months. Also with conviction, adjourned to 23/05/2013
Resist police
25. Drive motor vehicle without licence
Convicted and a community correction order for 6 months. Unpaid community work to perform 50 hours of community work. This condition starts on 22/05/2012 and goes for 3 months.
Fail to give way to vehicle- turn at intersection
In giving evidence, GQVS said that he could not recall the details of the events that led to his being convicted of the offences on 22 May 2012 beyond the fact that they were committed in Victoria. At the time, he would have been using Ice, alcohol and cannabis.
In cross-examination, GQVS said that he had no memory of the events that led to his being convicted of assaulting police as he had blacked out.
Pending Charge
21 May 2012
Theft
At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.
The IDATP report noted that GQVS had reported that he had participated in a one month detoxification programme in 2010 for his alcohol abuse. GQVS had:
“… Described the detox program as being 'useful’ as it allowed him to reduce the frequency and quantity of his drinking. He stated that following the detox program his drinking had reduced from daily to weekly use. Other than this detox program and the IDATP, … [GQVS] indicated that he has not received any other alcohol or drug treatment.”[21]
Liverpool LocaI Court
02 Sep 2010
25 February 2010
Enter inclosed land not presc premises w/o lawful excuse
H 40160861: fine: $550 costs - court: $79
Parramatta Local Court
30 Apr 2010
26 April 2009
Destroy or damage property
26. H 39675986: (call up) bond s9: 12 months supv nsw probservice comply with all reasonable direction of the probation and parole service for as long as deemed necessary. To obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation to report to probation and parole at liverpool community offender services within 7 days.
(est 3857)
27. Parramatta Local Court
08 Jul 2009
26 April 2009
28. Behave in offensive manner in/near public place/school
1. H 39675986: bond s9: 12 months supv nsw prob service to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the FairfieId probation office within 24 hours of his release
Destroy or damage property
Campbelltown Local Court
03 June 2009
4 March 2009
Common assault (dv)-t2
H 36246030: Imprisonment: 3 months commencing 03/06/2009
Contravene prohibition/restriction in avo (domestic)
H 36246030: Imprisonment: 3 months commencing 03/06/2009
Campbelltown Local Court
03 September 2008
18 June 2008
Common assault – t2
H 36072680: Imprisonment: 2 months commencing 18/06/2008
In cross-examination, GQVS said that the offences of which he was convicted on 3 September 2008 and 3 June 2009 both involved women.
Parramatta Local Court
29 January 2008
3 June 2007
Larceny value < = $2,000 – t2
H 27494407: (call up) bond s9: 12 months (eeco4461)
Behave In offensive manner in/near public place/school
2. H 30379123: bond s9: 12 months supv NSW prob service report to probation & parole service Fairfield office within 24 hours of release from custody
3. An officer of the Department of Immigration and Citizenship wrote a formal counselling letter dated 7 December 2007 to GQVS. It was written in terms similar to those used in the later formal counselling letter dated 26 April 2013. The letter concluded with the following statements:
“Your visa is not currently being considered for cancellation.
However, the purpose of this letter is to counsel you that any other conduct on your behalf that comes within the scope of subsection 501(6) could result in the consideration of the cancellation of your visa or refusal of any future visa application under section 501 of the Act. Please note that the consequences of visa cancellation under section 501 of the Act may include your removal from Australia and, in certain cases, you may not be able to return to Australia.”[22]
Parramatta Local Court
26 Nov 2007
25 October 2007
Use offensive language in/near public place/school
H 31961105: fine: $440
Drink alcohol in zone on same day as warning given
H 31961105: fine: $110
Resist or hinder police officer in the execution of duty
H 31961105: bond s9 : 12 months supv nsw prob service obey all reasonable directions for counselling, education development of drug and alcohol rehabilitation and report to Fairfield probation office within 7 days
Parramatta District Court
02 Nov 2007
27 October 2006
Receive/dispose stolen property-min. Indict. Off. <=$5000·t2
H 28165520: conviction confirmed: sentence to commence 021107 & conclude 010208 (District Court 90011750) court case reference number 07/22/0272
Burwood Local Court
14 May 2007
27 October 2006
Receive/dispose stolen property-min. Indict. Off. <=$5000·t2
H 28165520: conviction confirmed: sentence to commence 021107 & conclude 010208 (District Court 90011750) court case reference number 07/22/0272
Parramatta Local Court
14 Feb 2007
25 December 2005
Larceny
value <=$2000-t2H 27494407: bond s9: 6 months supv nsw prob service obey all reasonable directions for counselling educational development drug & alcohol rehabilitation report to the Parramatta probation office within 7 days costs- court $67 (eeco 3660)
Fail to appear in accordance with Bail Granted undertaking(conviction- 61415787)
H 27494407: dismissed s 10
Penrith Local Court
10 Jan 2007
25 November 2006
Intimidate police officer in execution of duty w/o abh·t2
H 29078940: Imprisonment: 3 months commencing 25/11/2006
Use offensive language in/near public place/school
H 29078940: fine: $100
In giving evidence, GQVS said that he would have been drinking alcohol and using cannabis at the time of the offence.
When asked in cross-examination about the circumstances that led to his convictions on 10 January 2007, GQVS said that he could not recall them. It was many years ago but would have been similar to those leading to his convictions on 10 May 2006. When asked in what way they were similar, GQVS recalled that there had been a party and he and friends wanted to attend. As they walked there, they got into an argument with a group of Islanders. The police were called but the Islanders ran when they heard the police siren. The Islanders were 100 metres away by the time the police arrived and the police stopped him and his friends. GQVS then started to abuse the police when he was arrested. Six or eight of the group were arrested in all.
Parramatta Local Court
10 May 2006
25 December 2005
Behave In offensive manner in/near public place/school
4. H 25981962: imprisonment: 3 months suspended on enter bond sl2: 3 months supv nsw prob service
to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development, drug and alcohol rehabilitation and anger management and report to the Bankstown probation office within 7 days
Assault police officer in execution of duty w/o abh·t2
5. H 25981962: imprisonment: 6 months suspended on enter bond sl2: 6 months supv nsw prob service
6. to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling , educational development, drug and alcohol rehabilitation and anger management and report to the Bankstown probation office within 7 days.
costs - court: $657. When his attention was drawn to the events that led to his convictions on 10 May 2006, GQVS said in cross-examination that this was the first time he had been arrested for drinking in a public place. That is how it all started. He was drunk when arrested and placed in the police cells. The police started to call him names such as “monkey” and told him to “go back to your country”. He started to swear back at them and they came into the cell. After turning off the camera and the light, he said, they started to hit him. He hit one of them in the jaw but could not recall pleading guilty to the offence of assaulting a police officer in the course of his duty. GQVS said that he lodged a complaint about his treatment but no action was taken. He did not take photographs of his own injuries.
Burwood Local Court
12 April 2006
Drive while disqualified from holding a licence
8. H 22666526: (call up) fine: $500 costs - court: $65 bond s9: 2 years
(eeco 3041)Parramatta Local Court
07 Sep 2005
19 August 2005
Possess prohibited drug
H 24758038: fine: $200 costs· court: $65
9. Goods in personal custody suspected being stolen (not m/v)
H 24758038: fine : $200 costs -court: $65
Liverpool Local Court
14 Jun 2005
15 March 2005
Larceny value
<=$2000·t2H 23606343: fine: $300 costs - court: $63
Liverpool Local Court
18 Mar 2005
28 January 2005
>=3 people use violence cause fear
H 22762315: fine: $800 costs -court: $63
Downing Centre Local Court
08 Mar 2005
24 August 2004
Goods in personal custody suspected being stolen (not m/v)
H 23902686: bond s9: 3 months
Shoplifting
value <=$2,000-t2H 23902686: fine : $150
10. Receive property-theft=serious Indictable offence
<=$5000-t211. H 23902686: bond s9 : B months supv nsw prob service obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Bankstown probation office within 7 days
Burwood Local Court
19 Jan 2005
14 December 2004
Drive while disqualified from holding a licence
H 22666526: community service order: 150 hours disqualification: 2 years commencing 02/12/2006
Driver/rider state false name or address
H 22666526: fine $600 costs- court: $63
Disobey no right turn sign – motor vehicle
H 22969643: fine: $200 costs – court: $63
Driver/rider state false name or address
H 22969643: fine: $800 costs – court: $63
Drive while disqualified from holding a licence
12. H 22969643: imprisonment: 6 months suspended on enter bond s12: 6 months supv nsw prob service obey all reasonable directions for counselling educational development or drug and alcohol rehabilitation and report to the Bankstown probation office within 7 days. Disqualification: 2 years commencing 02/12/2008
Burwood Local Court
23 Nov 2004
4 November 2004
Drive while disqualified from holding a licence
13. H 22742442: fine: $1,000 costs - court: $63
disqualification : 12 months cumulative
(eeco 2040)Burwood Local Court
09 Nov 2004
19 October 2004
Drive while disqualified from holding a licence
H 89950593: fine: $800 costs - court: $63
disqualification : 12 months commencing 06/03/200514. Use unregistered vehicle on road area (not a trailer)
H 89950693: fine: $300 costs - court: $63
Use uninsured motor vehicle
H 89950693: fine: $300 costs - court: $63
S Momartin, a Clinical Psychologist, from STARTTS, the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Victims prepared a Psychological Assessment Report after conducting a two hour assessment of GQVS on 17 December 2017:
“… GQVS reported that the first time he was imprisoned, his father refused to pay $500 for bail, trying to teach him a lesson. “… GQVS said that he contacted his previous employer who was a family friend and pleaded with him to pay the amount. The family friend agreed and paid the $500 bail whereby he was released, although “… GQVS reported that he was arrested again for similar charges and imprisoned. He said that his ex-employer paid the amount of money to ‘bail him out’ again, but the[n] he told “… GQVS that he could not help him financially to and pay for bail any longer. …”[23]
In his statement dated July 2018, GQVS said:
“When I was about 18, I started surrounding myself with the wrong crowd. I began to use drugs and drink. At this time in my life, I found it very difficult to say no because I felt like I was surrounded by drugs and I was young. I wasn’t thinking of any consequences, I only thought about how I felt in the moment. I can see now that this was a real turning point for my life as all of my offences have been related to getting or being under the influence of drugs or alcohol.”[24]
[15] G documents at 73-75
[16] G documents at 461 and see also 333
[17] G documents at 262-263
[18] G documents at 261-268
[19] G documents at 139
[20] G documents at 141
[21] G documents at 82
[22] G document at 138
[23] G documents at 71-72
[24] G documents at 333
Sentencing remarks
GQVS was found guilty by a jury after pleading not guilty to breaking and entering a dwelling house and committing a serious indictable offence, namely robbery in circumstances of special aggravation. The special aggravation was that he was armed with a dangerous weapon. The offence carried a maximum term of 25 years’ imprisonment with a standard non-parole period of seven years’ imprisonment. Both the maximum penalty and the non-parole period are legislative guideposts that informed the sentencing Judge of the District Court of New South Wales when sentencing GQVS for his offence that occurred on 21 April 2014. Judge Baly sentenced GQVS on 23 October 2015. She described the facts that she found consistent with the jury’s verdict:
“… [O]n the evening of 21 April 2014 Mr B… was at his unit watching television when he heard a knock to the door. This was at about 7pm or 8pm. He went to his door and he opened the internal wooden door. The external screen door was closed and locked. When he opened the wooden door he saw the offender. He had known the offender for about 4 or 5 years. The offender said, ‘S… I am here to see you.’ Mr B… is also known as S… Mr B… asked the offender how he knew where he lived. The offender asked the victim to open the door and he said that he would not do so. He told the offender that he would see him at Granville where they would talk.
Eventually the victim said he was tired and that he needed to rest. He shut the door and went and sat on his sofa. Shortly thereafter he heard loud banging. At that point Mr B… called triple-0. This call, it seems, was not recorded. Mr B…, in his evidence said he put his phone into his shoe and took hold of a broken phone. He said that he did this because he expected that he would be asked by the intruders for his mobile phone. The door was forced open and the offender and another male entered Mr B…’s home. Exhibit F contains photographs that show the screen door and the damaged door jamb of the internal door.
The offender was carrying a baseball bat. The other man was described by Mr B… as ‘chubby’ and ‘Lebanese’. The other man was armed with a gun. The gun was described by Mr B… as an old style German pistol. The offender said ‘… where is the money?’ The other man said ‘Where it the money you owe … [GQVS]?’ At that time the other man pointed the gun at the victim’s face. When Mr B… was asked how he felt in his evidence he replied that he felt relaxed and said that he was not scared of death. He related his lack of fear to the fact that he is from Sierra Leone where there was war. Although the transcript does not fully record the victim’s answer, I recall the answer that gave as it was unexpected. The victim, however, did contemplate that the gun might be used.
From the description given by Mr B… I accept the submission made by the Crown that the firearm that was used was in the nature of a pistol. The victim responded to the question that he was asked by the offender by asking, ‘What money are you asking about?’ The Lebanese man said that the money was the money he owed the offender, … [GQVS]. Again, the victim said he knew nothing of it. The demand for money was repeated a number of times by both men. When the offender made his demands he was sitting on the couch holding the baseball bat. The Lebanese man tried to grab the victim’s wallet and his iPad. He took the wallet from its position on a table and opened it, there was no money in it. The man then asked the victim if he had an ANZ card. The man asked the offender how much the victim owed him and the offender replied, ‘$200’.
At this time Mr B… said he was shocked, and he asked the offender what he owed the money for. The offender was also asking the victim for his phone. The victim at that point showed the men his broken phone and gave it to them. The Lebanese man threw it onto the carpet. The offender said, ‘If you decide to call the police we are coming back,’ and the Lebanese man said a similar thing. The victim’s iPad was carried away by the Lebanese man. At that time the Lebanese man had the baseball bat and the offender still had the gun.
The two men left and the victim followed them. As they went down some stairs the Lebanese man said that if he kept following he would smash him over the head with a bat. At this time the victim was trying to grab them. He told them that he intended to keep following. He kept close behind, despite being threatened. The men then ran. The victim said he heard a lady screaming and at that point the victim retreated. The victim saw the Lebanese man get into a car that appeared to be waiting. The car then drove off. At that point the victim again called triple 0. The victim, Mr B…, told the operator what had happened and named the offender as one of the assailants. The following day Mr B… identified the offender from photographs.”[25]
[25] G documents at 35-37
Judge Baly found that GQVS’s offending fell squarely into the mid-range of seriousness having regard to the fact that the offending included two weapons: a gun and a baseball bat. Mr B gave evidence that he did not feel fear when the gun was held at him because he is from Sierra Leone. Judge Baly assumed that Mr B was intimating that the use of a weapon in Sierra Leone is commonplace. She also took Mr B’s following the two men as indicative of his lack of fear. Despite that, Judge Baly regarded his lack of fear as an irrelevant factor. She did take account of the fact that there were two weapons and two offenders. The presence of two offenders was not specified as an aggravating factor but the fact that they acted in company was clearly a matter that added to the seriousness of the offence and was also an aggravating factor. The two offenders did not engage in any significant planning but the very fact that weapons were taken and that they made threats for money indicated some degree of planning. A further significant aggravating factor was that the offence was committed at a time when Mr B was likely to be at home.
Judge Baly summarised GQVS’s convictions and found that it did not entitle him to leniency:
“ The offender has convictions dating from 2005. The convictions in the main are for crimes of relatively minor seriousness, including have goods in his custody, receiving, shoplifting, larceny and possession of prohibited drugs. There are a number of driving offences and convictions for offensive manner. There are convictions for serious matters, including for assaulting police, intimidation of police, common assault, stalking with intent to cause fear, damaging property and failing to appear. As the Crown has properly submitted, the prior offending involves both dishonesty and violence. However, I do note that there are no convictions for matters anywhere near as serious as this matter.
The offender’s record does not entitle him to leniency.”[26]
[26] G documents at 44
In quite some detail, Judge Baly set out GQVS’s history from his childhood in what was to become South Sudan, then in Sudan, Cairo and, finally, Sydney and Melbourne. One of GQVS’s brothers, YB, gave evidence at the sentencing hearing. He impressed Judge Baly as he did me at the hearing. She accepted the evidence he gave without hesitation and I will return to it later in these reasons. GQVS’s history established deprivation of the sort referred to in Bugmy v The Queen.[27] Her acceptance meant that she found GQVS’s deprivation as a mitigating factor that reduced his moral culpability to some significant extent. Judge Baly balanced her finding against the objective seriousness of the offence, which she had found to be very serious. She could not, she noted, let her finding regarding the deprivation GQVS had suffered:
“… in that a sentence must reflect the objective seriousness of the offending. Nevertheless, as I have said, it is a factor I take into account in mitigation, and a significant factor.”[28]
[27] [2013] HCA 37; (2013) 249 CLR 571; 302 ALR 192; French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ
[28] G documents at 44-45
As to rehabilitation, Judge Baly considered whether she could make a positive finding about his prospects of rehabilitation. Until she had heard from his brother, Judge Baly said that she would have made a finding that his prospects were not good. The fact that GQVS had expressed to his brother that he does wish to change for the better, led her to find that his prospects of rehabilitation are quite good. She continued:
“… Of course, that finding will depend upon whether he is able to address the use of illicit drugs that have dominated his life for some years. The fact that he failed to provide a sample for the testing of illicit drugs whilst in custody to attend to that issue, as well as to deal with his grief for the loss of his mother and for other aspects arising from the deprivation he suffered as a child and as a young man.
I, therefore, make it clear that I do find as a mitigating factor that the offender has good prospects of rehabilitation. I cannot make a finding that he is unlikely to reoffend, although my finding that he has good prospects of rehabilitation does give me some hope in that respect.”[29]
[29] G documents at 45
Deterrence both of GQVS from committing an offence and of others more generally was also relevant in considering sentence. So too were special circumstances, which Judge Baly found to be:
“ The special circumstances arise because of the need for a longer parole period to enable counselling to take place and treatment to take place to facilitate rehabilitation. I make it clear that I am not double-dipping when I make my finding of special circumstances. The prospects of rehabilitation I have found are good, and that is a mitigating factor. The special circumstance that I find is that there I a need for a longer parole period to address the various factors that I have outlined, and that is a separate finding.
Balancing all of the various factors, including the significant maximum penalty and standard non parole period, the sentence overall will be one of 7 years’ imprisonment.
… comprising a none parole period of 3 years and 6 months to date from 27 April 2014 and to expire on 26 October 2017. The total term of 7 years will expire on 27 April 2021.”[30]
[30] G documents at 46
Drug and alcohol use
I have set out some of GQVS’s history of alcohol and drug use in the table of offences at [21] above. A Services & Programs Officer of the Intensive Drug and Alcohol Treatment Program conducted by the New South Wales Justice Corrective Services prepared a report following GQVS’s attendance at IDATP. He did so on 19 December 2016 and his report and recommendations were supported by the Acting Therapeutic Manger of the IDATP. I will call the report the “IDATP report”.
GQVS gave evidence about his drug and alcohol use but it is more fully summarised in the IDATP report. Before undertaking the IDATP, GQVS is reported as saying, he had participated in one detox programme in 2010. That programme addressed his alcohol use and he had found it useful as he reduced his drinking from daily to weekly. His history recorded in the IDATP report is:
“… [GQVS] reported a history of poly-substance use commencing at 17 years of age when he reportedly began drinking to excess and smoking cannabis on a daily basis. He stated that he continued to drink daily until age 26 and continued to smoke cannabis daily until he was arrested for his current offences. At age 25, … [GQVS] indicated that he began snorting excessive quantities of cocaine on a monthly basis, … [GQVS] claimed that when had the available finances he would spend approximately $9000 - $10,000 on an ounce of cocaine which he reported he would consume by himself over a period of 3 weeks. This highlights … [GQVS’s] impulsive behaviour at the time. Soon after he began snorting cocaine, … [GQVS] reportedly developed methamphetamine dependence (i.e. ‘ice’) at age 26. He state that he began smoking methamphetamines on a daily basis until his arrest in 2014. More recently … [GQVS] has reported smoking buprenorphine which he asserted commenced in custody. He attributed this to having access to buprenorphine while in custody in addition to being able to use the substance to block out negative without increasing his aggression (i.e. unlike stimulants).”[31]
[31] G documents at 82
GQVS has been imprisoned either on remand or serving his sentence from 27 April 2014 until he was granted parole on 26 October 2017 and taken into immigration detention. During his period of imprisonment, the IDATP report recorded, GQVS had:
“… been drug tested via instant testing on 72 occasions with 17 positive results for methamphetamines and buprenorphine and 2 fail to attend (FTA); he has maintained clean urinalysis since the 12 October 2016. … [GQVS] has been formally urine tested on 2 occasions, returning 1 positive result for buprenorphine and 1 negative result, and breath tested for alcohol on 4 occasions, returning all negative results.”[32]
[32] G documents at 81
Treatment, courses and programmes addressing psychological issues
GQVS undertook completed the following programs or courses during his most recent term of incarceration:
Date Completed
Issuing body
Program or course
16 May 2016
The “RUSH” Program
Real Understanding of Self-HelpThe 23 session programme contained the following modules:
· Healthy Mind, Healthy Body
· Dealing with Distress
· Looking After Number One
· Getting the Best out of Yourself & Your Relationships[33]19 December 2016
Criminal Conduct & Substance Abuse Treatment ‘Pathways’ Program
Program Philosophy: High intensity addiction based program addressing the need for change. Strongly links criminal conduct and Alcohol and Drug Use. Builds knowledge and skills to take responsibility for behaviour. High intensity program which is three phased i) Challenge to Change ii) Commitment to Change iii) Taking Ownership of Change
Duration: Phase i) – 20 x 2 hour sessions
Phase ii) – 22 x 2 hour sessions
Phase iii) – 8 x 2 hour sessionsTheoretical Orientation: Cognitive behavioural approach. Skills acquisition – Community, self control and self management, Rational Emotive Behavioural Therapy
Program Contents: Issues of addiction particularly alcohol and drug misuse.
Addresses criminal thinking and behaviour and relapse prevention.22 March 2017
EQUIPS Aggression Program
20 session
[33] G documents at 118
Following GQVS’s attendance at IDATP, the IDATP report was prepared. It concluded:
“… [GQVS] has participated in all aspects of the IDATP as required to a satisfactory level. He appears to have achieved much gain and made demonstrated positive changes to his thinking patterns and behaviour. … [GQVS] reported that his confidence in his ability to avoid drug use and further offending behaviour has increased throughout his time in the program; however he will continue to need a high level of support with a particular focus on his maintenance if he is granted the opportunity to reside at the Honour House and obtain an off complex Section 6.2 or a C3. This will be an imperative step in his transition and reintegration into the community. In addition … [GQVS] will be required to continue to engage with the IDATP reintegration team in order to develop a more detailed release plan and start working with an external agency to support housing and case management on release. This will also be able to assist with emotional support and living skills to ensure that he engages in a pro-social lifestyle. Additionally he would benefit from engaging with an AOD counsellor to assist him to maintain his abstinence. In consideration of all of the above risk factors, it would be a high priority for… [GQVS]’s Case Manager to engage him in a structured day plan commencing on his release as a way of ensuring that his future support is amplified.
To consolidate and maintain his treatment gains the following recommendations are suggested:
·Work towards obtaining a Classification of C3 with a view to residing in the Honour House, working off complex and engaging in day release if approved.
·Engagement with the Senior Services and Programs Officer/Reintegration to support reintegration planning and connect with potential support service providers upon release.
·Comply with the conditions imposed by the State Parole Authority. … [GQVS] would likely benefit from an initial period of high supervision on conditional release. Such requirements would aid to support successful community integration and adjustment by facilitating engagement with community support services and monitoring compliance with Parole conditions.
·… [GQVS] has been found suitable for the EQUIPS Aggression program and this can be completed in custody or during his parole period to further support his treatment gains.
·… [GQVS] would benefit from intervention provided by a Psychologist specialising in anger and relationships. As such it would be highly recommended that he engage with a relevant service once he has established an approved address on eventual release. To receive Medicare subsidised rebates, he will require a referral to a Psychologist from his General Practitioner.
Undergo regular breath/analysis testing as part of Parole requirements in order to ensure that he remains abstinent from alcohol and other drug use. … [GQVS] would benefit from initial daily attendance at AA/NA meetings ph.: … This is strongly encouraged in order for … [GQVS] to maintain his abstinence and as a way to build pro-social relationships and combat boredom. Additionally … [GQVS] may benefit from engaging in Crystal Meth Anonymous meetings are held in the Sydney area …
·It is strongly recommended that … [GQVS] attend the IDATP Maintenance group on a weekly basis whilst he is in custody at OMMPC and if travel permits on release he can attend IDATP maintenance groups on a monthly basis at … Community Corrections Office.
·Maintain his commitment to pro-social lifestyle pursuits. Consequently, … GQVS will need to continue to address antisocial and unhelpful thinking styles, attitudes and core beliefs; avoid associations with criminal others; and maintain structure in his everyday life that includes engagement with pro-social leisure activities in addition to employment.”[34]
[34] G documents at 85-86
In reaching that conclusion, the IDATP report addressed a number of risk factors including attitudes/orientation, anti-social peers, emotional control/impulsivity, accommodation, education and work, medical/mental health, lifestyle and leisure and relationships and family. I will set out passages from two of them:
“Attitudes/Orientation
… [GQVS] had shown in the community a history of anti-social attitudes and reckless behaviour, which appears to stem from a lack of boundaries as a teenager and his associations with negative peer influences. … [GQVS’s] first contact with the Criminal Justice System was in 2004 when he was sentenced to an 8 month Section 9 Good behaviour Bond. … [GQVS] entered adult custody at the age of 20 years serving a 3 month sentence. Since then … [GQVS] has been supervised by way of further Good Behaviour Bonds and a Community Service Order.
Since commencing the IDATP … [GQVS’s] attitude has shifted from being careless and perceiving himself as a victim to being future-oriented and focussed on achieving his goals of living a pro-social lifestyle. … [GQVS] has also explained that in the past he would often harbour negative judgments and feelings which tended to lead to aggression. Since gaining insight about this, he has expressed that he has been learning to be more ‘forgiving’ and indicated that this is assisting him to control his reactivity to negative comments and allow him to focus on his future goals. Not only has … [GQVS] self-reported this shift in his attitudes but it has also been reflected in his participation and behaviour in the group. That is, on several occasions … [GQVS] was seen to support and encourage other group members to not react impulsively or ‘get caught up in others’ games’ but rather to walk away from the situation and think through the consequences of their actions.
… [GQVS] appeared to find it difficult to take responsibility for his offending and had a tendency to blame his co-offender and business partner as well as the victim. He found it difficult to connect with the gravity of his actions, minimising his violence and justifying his actions believing that he was coerced and forced into action. … [GQVS] engaged in the world in the guise of a criminal. He appeared to be involved in criminal activities and made his money via drug dealing. At times … [GQVS] found it difficult to express his needs appropriately thus magnifying his underpinning belief that no one cared about him. He felt overlooked in the group as he found it difficult to be assertive in his scheduling of his own treatment tasks. He would be regularly seen to sulk and shut down. Facilitators continued to challenge him to express his feelings, however he continued to struggle. During the end stage of the IDATP … [GQVS] started to become increasingly angry and he projected his anger towards his facilitator. When asked to explore these feelings he stated that he felt that he had been overlooked and was afraid that he wouldn’t graduate. It became clearer to him that he needed to take responsibility for his own treatment goals and that in doing so he was challenging his unhelpful thoughts and belief systems around him being stupid and uncared for. During the IDATP he has been able to challenge himself and was compliant with attendance, engagement and homework tasks. He has applied for his Section 6.2 with a future goal of gaining a C3 classification with a view to commence work off complex to assist him with reintegration.
Anti-Social Peers
… [GQVS] said he had very few friends prior to coming into custody and most of his free time revolved around drug use and most of his peers engaged in this lifestyle. Anti-social peers appeared to have a significant impact on … [GQVS’s] alcohol and drug use in the community as well as his offending behaviour and this is consistent with his pre-treatment psychometric results. … [GQVS] reflected that all his peers could be described as ‘criminals’, and the victim of his offence was a long term friend from school whom he described as being like a ‘brother’.
In terms of his future plans … [GQVS] identified that he would have difficulty associating with old friends and maintaining his abstinence, and instead reported that he would like to spend more time with his brother and rebuilding relationships with his other family members. At the commencement of the Pathways Program … [GQVS] believed that it was ‘impossible’ for him to refuse illicit substances when he was confronted with them by antisocial peers. Since then he has been challenged on numerous occasions and demonstrated his ability to utilise assertiveness skills to refuse illicit substances and involvement in antisocial behaviour. … [GQVS] has also identified in relation to future plans engaging with his local church and engaging in education courses as a way to meet positive pro social peers with a view to building friendships that support his good life goals.
Emotional Control/Impulsivity
… [GQVS] identified that remembering difficult memories and feelings of anxiety and frustration have been triggers for his problematic alcohol and drug use in the past. … [GQVS] has a history of impulsive behaviour and this was apparent during his participation in IDATP. Throughout RUSH and Phase I of Pathways, … [GQVS] appeared to be easily triggered by situational stressors or negative comments made by others and he would often respond to this by engaging in drug use or by threatening to self-discharge from IDATP. During the course of the Pathways Program however, it is noted that … [GQVS] demonstrated that he was able to progressively regulate his emotions, reflect on situations, challenge his unhelpful thoughts and problem solve to produce a positive outcome rather than act impulsively.
… [GQVS] is also committed to developing a network of support people, such as his brother and other family members to assist him remain motivated and determined. It is noted it would be beneficial for … [GQVS] to engage with a support person such as AOD counsellor or sponsors, to help him further develop in this area when he is not coping effectively.”[35]
[35] G documents at 82-84
What is meant by a “particularly serious crime” referred to in s 36(1C)(b) is the subject of s 5M of the Migration Act:
“For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.”
The expression “serious Australian offence” is defined in s 5(1) to mean:
“… an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.”
The expression “serious foreign offence” is defined in similar terms in s 5(1).
An applicant for a protection visa must also satisfy one of the criteria set out in s 36(2). On the information I have, it would seem unlikely that GQVS would be able to meet those specified in ss 36(2)(b) and (c). That would follow from the fact that, even if members of his family have not become Australian citizens and remain non-citizens, they came as the holders of Class BA Subclass 200 Refugee visa as did he. This is not a class of visa that GQVS would be able to apply for as he is onshore and an applicant for that class of visa must be offshore.
While he is onshore, he may apply for a Subclass 866 Protection visa as he came to Australia legally. The criteria GQVS would have to satisfy are set out in clause 866 of Schedule 2 to the Migration Regulations. He would have to satisfy either subclause 866.211(2) or (3). Subclause 866.211(3) would require GQVS to claim that he is a member of the same family as a person to whom subclause 866.211(2) applies and who is an applicant for a Subclass 866 Protection visa. There is no evidence that this is the case.
If GQVS wished to satisfy subclause 866.211(2), he would have to claim that the criterion in either ss 36(2)(a) or (aa) of the Migration Act is satisfied in relation to him. Those criteria must continue to be met at the time a decision is made on the applicant’s application. They are:
“(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …”
GQVS held a Refugee visa before it was cancelled but the fact that he did so does not mean that he is a refugee for the purposes of s 36(2)(a). The word “refugee” is defined in s 5H of the Migration Act to mean:
“(1) for the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:For the meaning of well-founded fear of persecution, see section 5J.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non-political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.”
Whether Australia has protection obligations referred to in s 36(2)(a) is qualified by ss 36(3) to (7) but they are not relevant in this case.
What is relevant is what is meant by the expression “well-founded fear of persecution”. It is the subject of s 5J. Section 5J(1) provides:
“(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Note:For membership of a particular social group, see sections 5K and 5L.
If a person fears persecution for one or more of the reasons mentioned in paragraph 5J(1)(a):
“(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.”
Instances of what is “serious harm” for the purposes of s 5J(4)(b) are set out in s 5J(5) but those instances do not limit what may amount to serious harm for the purposes of that paragraph. Those instances are:
“(a) a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”
Even if a person has a well-founded fear of persecution as determined after consideration of ss 5J(1), (4) and (5), he or she will not do so if ss 5J(2) or (3) applies. Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to him or her in a receiving country. In summary, s 5J(3) provides that a person does not do so if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country but so that the modification does not conflict with a characteristic that is fundamental to his or her identity or conscience or conceal an innate or immutable characteristic.
If an applicant comes within s 36(2)(a), the criteria specified in s 36(2)(aa) do not apply to that person. The criteria specified in s 36(2)(aa) are that:
“a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
In considering the criteria in s 36(2A)(aa), it is necessary to have regard to ss 36(2A), (2B) and (2C). Sections 36(2A) and (2B) are concerned with those circumstances in which a non-citizen will suffer “significant harm” and a “real risk that the non-citizen will suffer significant harm”:
“(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subject to torture; or
(d)the non-citizen will be subject to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country in the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm;
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
Section 36(2C) sets out the circumstances in which a non-citizen is taken not to satisfy the criterion in s 36(2)(aa). Section 36(2C)(a) is drafted in the same terms as those used in s 5H(2) in the definition of “refugee”. Section 36(2C)(b) adds a further ground on which a non-citizen will be taken not to satisfy the criterion in s 36(2)(aa). That ground is that:
“the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia’s security; or
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.”
Among the criteria that must be satisfied at the time a decision is made on an application, are those set out in clause 866.225, which sets those of the public interest criteria that an applicant must meet. The public interest criteria are set out in Schedule 4 to the Migration Act. In GQVS’s circumstances as a person aged at least 18 years, public interest criteria 4001, 4003A and 4019 are relevant. Of particular relevance is public interest criterion 4001, which is among those specified in clause 866.225(a). It provides:
“Either:
(a)the person satisfies the Minister that the person passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.”
Direction No. 75 was made by the Minister on 5 September 2017 and is entitled “Direction No. 75 - Refusal of Protection Visas Relying on Section 36(1C) and (36(2C)(b)” (Direction No. 75). Its objectives are set out in cl 4:
“1) The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2)Under section 36(1C) of the Act, a criterion for a Protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia’s security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. If the person is a person who the delegate considers falls within the ambit of one or both limbs of section 36(1C), the delegate must refuse the visa under section 65 of the Act.
3)Under section 36(2C)(b) of the Act, an applicant for a Protection visa relying on complementary protection grounds, is similarly ineligible for the grant of a Protection visa if: the Minister considers, on reasonable grounds, that: (i) the non-citizen is a danger to Australia’s security; or (ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
4)Section 5M of the Act provides that a ‘particularly serious crime’ for the purposes of section 36(1C)(b) and section 36(2C)(b) consists of commission of: (a) a serious Australian offence or (b) a serious foreign offence. ‘Serious Australian offence’ and ‘serious foreign offence’ are defined in section 5(1) of the Act.
5)Sections 36(1C) and 36(2C)(b) reflect the Government’s intention that regardless of whether other criteria for the grant of a visa are met, a person who poses a danger to Australia’s security or to the community should not be granted a Protection visa.
6)The purpose of this Direction is to direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) rather than to refer the case for consideration under section 501 where an applicant presents a danger to Australia’s security or to the community. Under section 499(2A) of the Act, relevant decision-makers must comply with a direction made under section 499.”
“General Guidance” is the next heading in Direction No. 75 and it states:
“1) The Government is committed to protecting the Australian community from harm. The principles below reflect the Governments’ commitment to protecting the Australian community while complying with its international obligations.
2)In order to effectively protect the Australian community where Protection visa applicants present serious character or security risks, these issues should be considered as early as possible and, where possible, as part of the process for assessing whether the section 36 criteria are met. Decision-makers should assess whether the refugee and complementary protection criteria are met before considering ineligibility grounds.
3)The following principles provide a framework within which decision-makers should approach their task of deciding whether to refuse an applicant’s visa under section 65 on the basis of section 36(1C) or section 36(2C)(b).”
The principles are:
“1) Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.
2)The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.
3)It is unacceptable to grant a Protection visa to a non-citizen who is considered to present a serious character or security risk to the Australian community.
4)Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.”
Part 2 of Direction No. 75 directs the order in which decision-makers are to consider the matters raised by an application for a Protection visa when the applicant raises character or security concerns. The order is:
“1) The decision-maker must first assess the applicant’ refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.
2)Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa specific ineligibility criteria at section 36(1C).
3)Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
a)Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage in Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4)If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5)The decision maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).”
| I certify that the preceding two hundred and twelve [212] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
.................[sgd]................................................
Associate
Dated: 11 February 2020
| Date of hearing: | 15 and 16 August 2019 |
| Counsel for the Applicant Solicitor for the Applicant | Ms Tanya Skvortsova Ms Rachel Mason |
| Solicitor for the Respondent: | Mr Adam Cunynghame |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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