HGBY and Minister for Immigration and Border Protection (Migration)

HGBY and Minister for Immigration and Border Protection (Migration) [2017] AATA 2824 (13 December 2017)
Division:GENERAL DIVISION
File Number: 2017/5733
Re:HGBY
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member M Kennedy
Date:13 December 2017
Date of written reasons: 03 January 2018
Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
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Member M Kennedy
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Application for review of decision to refuse a class XB Subclass 200 refugee visa – refusal of visa on character grounds under section 501 – Consideration of principles under Ministerial Direction 65 – decision under review affirmed
LEGISLATION
Migration Act 1958, s 501
CASES
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 116
Minister v BCR16 [2017] FCAFC 96
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Ministerial Direction 65
REASONS FOR DECISION
Member M Kennedy
03 January 2018

At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

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Administrative Assistant
Dated: 03 January 2018

Date(s) of hearing: 5, 6 and 11 December 2017

Counsel for the Applicant: Ms K Eaton

Solicitors for the Applicant: Bourne Lawyers

Advocate for the Respondent: Ms L Butler

Solicitors for the Respondent: Australian Government Solicitor
EXTRACT OF TRANSCRIPT PROCEEDINGS

As I mentioned at the outset, I appreciate that oral reasons in this situation is not ideal but I have elected to use the time available to me the best way I could by spending that time with the evidence, reflecting on what is a difficult decision, rather than preparing carefully crafted written reasons. Unfortunately the oral reasons are very lengthy, so we will be here for a little while, while I work through all of the material and all of the deliberations that I have had.
[Directions made as to written reasons]
HGBY is convicted of 38 offences occurring over a period of five years. The offences include an aggravated assault of his wife, extensive offending relating to deception and dishonesty, driving offences, and making off without payment. HGBY contravened a good behaviour bond and as a result was subject to a term of imprisonment of three years and six months after sentences of imprisonment previously imposed has been suspended. HGBY has also breached bail conditions.
Among the convictions HGBY was sentenced to two counts of deceiving another to benefit self on 9 September 2013 and sentenced to 20 months’ imprisonment. As HGBY was therefore sentenced to a term of imprisonment of 12 months or more he is taken to have a substantial criminal record for the purpose of section 501(7) of the Migration Act. And not to pass the character test, as provided for by section 501(6) of the Act. Other convictions in isolation would also meet this test.
Subsection 501(3A) of the Act relevantly obliges the Minister to cancel a visa, if satisfied that a person does not pass the character test because of substantial criminal record and is serving a sentence of imprisonment on a fulltime basis in a custodial institution for an offence against the law of the State. Accordingly, on 4 February 2016 a delegate of the Minister cancelled HGBY’s class XB Subclass 200 refugee visa.
The Act provides for persons in these circumstances to seek revocation of the visa cancellation in section 501CA. HGBY took this step on 22 February 2016.
On 21 September 2017 the delegate decided not to revoke the cancellation. HGBY applied to the Tribunal for review on 25 September 2017. Paragraph 500(1)(ba) of the Act provides for applications of this nature to be made to the Tribunal legislative framework.
Under subsection 501CA(4) the Minister may revoke the visa cancellation, if the person makes representations in accordance with an invitation to do so within a prescribed time and the Minister is satisfied that the person either passes the character test or there is another reason why the original decision should be revoked.
To avoid doubt the proper construction of subsection 501CA(4) does not involve the exercise of a discretion to revoke per se. Rather the structure of the provision is such that where the Minister is satisfied that one or other of the two conditions identified by subparagraph 501CA(4)(b)(i), the character test, or subparagraph 501CA(4)(b)(ii), another reason why the original decision should be revoked, is met, the Minister is required to revoke the decision.
So understood the permissive ‘may’ in subsection 501CA(4) is to be construed as must, if the necessary state of satisfaction is reached and is provided for in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [35] and [38].
With that understood I will continue to use the language of the legislation and any further reference to the concept of discretion that I may make must obviously be understood as applying judgment and weighing the various factors I am to take into account.
The visa cancellation may be revoked, if I decide that HGBY passes the character test as defined by section 501. I find however, that HGBY does not pass the character test on account of his serious criminal record demonstrated by the sentencing remarks of Magistrate Sheppard of 9 September 2013 and corresponding court and criminal records. I may also revoke the visa cancellation, if satisfied there is another reason why it should be revoked subparagraph 501CA(4)(b)(ii) of the Act. This review is concerned with that broad issue.
MINISTERIAL DIRECTION 65, THE DIRECTION:
Section 499 of the Migration Act authorises the Minister to give written directions to a body such as the tribunal having functions or powers under the Act about the performance of its functions and the exercise of powers. The Tribunal must comply with directions issued under this provision.
The Ministerial Direction 65 (the Direction) at Part C engages directly with the performance of my functions and exercise of powers in reviewing the decision not to revoke HGBY’s visa cancellation.
I am to treat the protection of the Australian community from criminal and other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community as primary considerations. Each of these terms is elaborated upon in the Direction.
Other considerations must also be taken into account, namely international non-refoulement obligations, the strength, nature and duration of ties, impact on Australia’s business interests, impact on victims, and the extent of impediments, if HGBY is removed. Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance in terms of the objectives of the Migration Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation, that non-citizens are and have been law abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my power in this matter are that the community expects that the Government can and should cancel visas of non-citizens, if they commit serious crimes in Australia. A non-citizen who has committed a serious crime, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia. Sometimes criminal offending or other conduct is so serious and the harm that would be caused, if it were to be repeated, are so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa.
Australia has a low tolerance for any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time. However, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a cancellation for minor children or other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.
With compliance with these principles in mind I turn to consider the particular circumstances in this review and I do so within the framework of the Direction
THE PRIMARY CONSIDERATION OF THE PROTECTION OF THE AUSTRALIAN COMMUNITY
I have regard to the Government’s commitment to protect the community from harm as a result of criminal activity by non-citizens and acknowledge the Government’s view, that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I am to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk of the Australian community should the non‑citizen commit further offences or engage in other serious conduct, the nature and seriousness of the conduct.
A full chronology of the applicant’s offending is annexed to the respondent’s statement of facts and contentions and I adopt that document as background to these reasons.
It can be observed that HGBY’s offending primarily took place within an envelope of three years ending with his incarceration. It’s convenient to examine HGBY’s offending by reference to four categories of offending. I turn first to consider the circumstances of HGBY’s deception offences.
The first set of offences relate to HGBY passing valueless cheques and deception against sellers of used cars. Magistrate Sheppard dealt with those offences, which took place between April and September of 2011, on 9 September 2013. I will use the words of the court to describe the offences:
You pleaded guilty to a charge of passing valueless cheques. The applicable maximum penalty is $10,000 or two years’ imprisonment. On 2 April 2011 you gave a cheque, which was worthless, in the amount of $1,900 in exchange for a motor vehicle belonging to Ms D ... She had arranged for her boyfriend Mr J … to handle the sale for her. I referred to witness statements in familiarising myself with the facts of the matter.
On 30 March you test drove the vehicle, which was offered for sale on Salisbury Highway and gave a cheque to Mr J in the amount of $1,900. You filled out the disposal notice on the registration papers and took possession of that vehicle.
The following day you called Mr J telling him that you cancelled the cheque because you couldn’t transfer the registration with the papers provided. Ms D and her boyfriend met you at an agreed location in Pooraka where you provided another cheque to the same amount. When the cheque was presented to a bank that day it was rejected.
Ms D phoned you but you did not answer her calls until 9 o’clock that night but you yelled at her not to call you anymore. You promised to call in an hour or two and you hung up on her. You called Mr J on 1 April 2011 where you say you may or may not pay for the car and you promised to call in one hour to pay. Mr J reported the matter to police and you have never paid any money for the vehicle.
You were located with the assistance of your father and you were arrested on 2 April 2011, interviewed and charged with deception. When spoken to you admitted that you gave the cheque knowing you had no money in your account and you said that it was the first time you had used the cheque to pay for something. You told police that after buying the car you realised you didn’t like it, so you sold it after two days for $1,300.
The inference flowing from the circumstances is that you knew there was no money and you never intended to pay. You were on notice that this was conduct which was illegal and that you would be arrested and prosecuted from that time. You were granted bail.
I’ve read from paragraphs 14 to 20 of the sentencing remarks. I now read from paragraphs 54 to 106.
I move now to the deception charges. On 14 August 2012 you committed an offence of deception. It carries with it a maximum term of imprisonment of 10 years. You pleaded to it on 9 May 2013. The offence is aggravated because you were on bail for committing a similar offence the previous year.
You deceived Mr G into giving you his black Holden Astra by handing him a cheque made out to $7,000 dishonestly benefiting yourself. Mr G had offered his car for sale on the Salisbury Highway on 13 August 2012. The following day you called him to inquire about the car. You were given contact details for Mr G’s father who was to handle the sale. You gave a cheque to his father in exchange for the vehicle on that day. You drove the vehicle away.
I refer to a witness statement for the prosecution version. Mr G Senior who was also from Country A states that he was helping his son sell the vehicle and left for sale signs in the window and the asking price was noted. He was contacted by you on his mobile number and you spoke in your native language about you wanting to test drive the vehicle.
He said that he met you at 7 pm. You drove the vehicle and reached an agreement to pay $7,000. You said you would need to sign a cheque, which would take about three days to clear.
I proceed with extracts from the reasons, some remarks are taken out.
He called you and said that you said you would not be providing money for the car because the vehicle had been damaged before the sale. You told him to pick the vehicle up at the police station but when you were asked “Which police station” you hung up on him.
Meanwhile on 24 August 2012 the ANZ bank notified Mr G that the cheque that you had provided had been dishonoured. He called you that day and the call was not answered. You did eventually call back and when he asked you where the vehicle was you told him it was in Murray Bridge and that he could collect it there.
You now admit that when you said that you were lying to him. You sent the address for him to go to by text and when he arrived there with his son and spoke to the elderly occupants of the address they were told that there was no car there, that they were familiar with your surname and were angry because other people had come there looking for a person also with your surname.
The occupant of this particular address says that they had been living there for 47 years and had never heard of you apart from when your name had been mentioned in connection with the vehicles.
I read from paragraph 58.
When you were called from a different mobile number, that is Mr G’s wife’s mobile, you answered this time. And when asked about the car you claimed that you were in Adelaide but provided no address.
Another call was made to Mr G who recognised your voice. You spoke in your native language. He told you he was going to report you to the police and this time he said that you threatened him by suggesting that if he did that he and his children would not be safe. All of this conduct, in my view, aggravates the offending.
You were arrested in relation to a number of matters. Your version to police was that you wrote a cheque to purchase the vehicle in the amount of $7,000 and that you had the money in your account but it was stolen by someone. On this occasion you were also asked about your bail address nominated for the aggravated assault, bail granted in July and again in August. You said you stayed at this bail address for only two years albeit you were aware that you were on bail to live there.
Meanwhile police spoke to the residents of the address and learnt that they had lived there for two years and did not know you and therefore what you had said about the bail address to the police was wrong.
In oral submissions you instruct that initially there was money in your account when you wrote the cheque for $7,000 but the funds were stolen. In the absence of independent corroboration of your version of events I reject this account and find that it conflicts with the weight of credible evidence, particularly when examined in the wider context of your pattern of offending, which you now admit.
I read now from paragraph 63.
It appears that the vehicle was retrieved and returned but because the wrong fuel was put in the vehicle the engine and transmission were damaged costing Mr G almost $2,000 to repair.
I read from paragraph 65.
Moving to count 3 on that charge sheet, it is the deception of Ms K.
From paragraph 66.
Ms K offered her red Toyota Camry for sale on the Internet site Gumtree.
From paragraph 67.
Mr M called you about it and you agreed to meet him at about 11.30 am at the ANZ Elizabeth where you told him that you would be giving him the cash. He and Ms K attended that day, as agreed, but you did not come. They waited for you for 40 minutes. When they tried many times to call you, you failed to answer. They reported the matter to police.
You phoned him around midday urging them to agree to return at 1 pm to meet you again. They did but again, you failed to do as you agreed to do. You called Ms K about 3 pm on Tuesday, 21 August asking for her address, which she would not give you, and you became abusive towards her.
From paragraph 70.
You are said to have phoned her a short time later claiming that she should go to … Avenue, Murray Bridge where you would return the vehicle. But again, you failed to do that and the residents at that address said they had never heard of you.
From paragraph 75.
You should try to understand that because of what you did this young woman has suffered severe personal mental anguish as well as some physical illness requiring her to have ongoing medical help. It has caused depression, loss of friends and support, anxiety and fear. Just when you decided to deceive this young woman, which cost her a lot of money as a result, she had been trying to get herself to the point of returning to a good job after having two years off to have her children. As a result of what you did she was unable to get back to work because of the problems flowing from your offending. She has had to sell her house and move in with a relative.

From paragraph 89.
I move now to count 2. 2 March 2013 deception of Ms P, a vehicle worth $10,000.
From paragraph 91.
On 2 March 2013 you deceived this victim by giving her a cheque in the amount of $10,000, which you well knew would be dishonoured, and you took her vehicle away.
From paragraph 95.
In count 3 I turn to the deception of the person who worked at Auto Traders with respect to the vehicle in the amount of $3,500. This was on 2 March, the same day as the offending concerning Ms P. On the same day that you deceived Ms P into letting you take her vehicle away unlawfully you went to Auto Traders to sell the vehicle, deceived them into believing that you had lawful entitlement to the vehicle and that it was unincumbent. As a result you received $3,500 in cash, which you were not entitled to. It was not until 8 March that Mr … was advised that the vehicle had been subject to a fraudulent purchase and therefore he had been deceived.
Paragraph 105.
Your offending, in my view, when looked at all together demonstrates that you are clearly capable of doing reasonably sophisticated things, for example, searching the Internet noting details, making commercial arrangements with strangers in English as well as your own language, of course, following through with those parts of the arrangements, which suit you. It appears that you learn very quickly how to deceive people who are willing to engage with you in good faith and how to fob them off once they had been deceived.
These, in my view, were not the actions of a person who suffers confusion. They are not the actions of a person who does not know right from wrong. Your persistent offending only came to a stop once it became clear that you would be held accountable in court and it looked like you might be kept in custody.
Your conduct overall in my mind demonstrates a reasonably complicated matter of planning and conducting yourself. It undermines your claim that you suffer confusion and memory loss.
I turn to consider the circumstances of HGBY’s 13 offences for obtaining a financial advantage by deception. I again use the words of the sentencing magistrate, this time Magistrate O’Connor, who dealt with the offences that occurred between April 2011 and October 2011 in April 2015. At that time HGBY was in custody for his other offences.
I read from paragraph 8 through to 11 with some extractions.
The offences I am dealing with occurred between 6 April 2011 and 6 October 2011. You received a youth allowance from Job Seekers between 27 January 2010 and 14 October 2011. You left the country and you then reapplied for the same benefit when you came back in May 2012.
Before you left the country you helped yourself to $8,698.58 that you were not entitled to. Your offending is serious given the contempt that you showed to a number of people who you purported to assist in the Centrelink office. Mr C was trying to report his earnings in the Kilkenny office by using the self-help web system. You offered to help him. He would have been grateful. And after he left the office you took advantage of him because he did not know how to log off the computer and you redirected the money Mr C was entitled to into your bank account.
A month later you did the same thing to Mr S. The other offences are of a like nature.
You suggest that you committed the offences because somebody showed you what to do. I consider you committed the offences because you are greedy, antisocial and disrespectful to others. It is chilling to think that you would pretend to befriend someone who was vulnerable and cheat them. I do not consider that this manipulative behaviour suggests other than you are able to contrive or create crime no matter what brain injury you may have suffered in the past.
When you were dealt with in the Elizabeth Magistrates Court some of the offences were being committed at the same time. Five days before you misled Mr … you had robbed a woman of her car and wrote out a worthless cheque for $1,900. And then after your return to Australia you committed the same sort of offences during 2012.
As I have said informally, it is most unfortunate that the community has been treated in this way by a person who sought protection and refuge.
From paragraph 11.
Your theft of over $8,000 from the taxpayers was deliberate and systemic fraud and under the principles of Kovacevic v Mills warrants a period of imprisonment. This is more serious than the usual case because you manipulated people, took advantage of those who were trying to secure their own personal financial support, and as such warrants one period of imprisonment pursuant to section 4K, which I fix at five months.
I turn to consider the circumstances of the aggravated assault and subsequent breach of an intervention order. This matter was dealt with by Magistrate Sheppard on 9 September 2013.
The next offence to deal with is one of aggravated assault on 17 July 2012. The applicable maximum term of imprisonment is three years for this offence. You pleaded guilty on 9 May 2013. This charge originally alleged a much more aggravated version of assault. It was an assault upon your young wife.
She has provided a statement and she has made it plain that she does not wish to go to court and that she is embarrassed about the incident. There has been discussion about the factual basis of your plea and the lead up to sentencing today.
I extract the next sentence but will return to it later.
The prosecution relied upon an agreed version of events on the basis of your admissions to police that you slapped your young wife causing redness to her cheek. I bear in mind that Ms Z HGBY had only been living in Australia for about two months and did not speak English. You and your wife were living in a home with your extended family, including your father and two younger sisters. Your young wife had no other family or friends in Australia and was completely reliant on you and your family. I bear in mind that she would have felt quite vulnerable.
In that paragraph, in the sentence that I have extracted, the magistrate describes the offences as follows:
Ultimately, as it turns out, this will be one of the, whilst serious, less serious offences in the scheme of things than some of the later offending.
However, from the whole of the sentencing remarks it is evidence that the magistrate was asked to deal with the offence on a limited basis. The magistrate refers to a pre-sentencing report being prepared on the basis of more serious allegations abandoned because HGBY’s wife was unwilling to go to court.
I have before me the affidavit by HGBY’s wife and an affidavit of HGBY’s mother. I am conscious that HGBY was not convicted on the basis of those matters but I take them into account in these proceedings in any event.
The Direction does not limit me to considering only conduct for which the applicant was convicted. I am to consider criminal and other conduct, conscious that I should do so, however only on probative evidence.
I will read the entirety of the affidavit of Ms Z HGBY.
I provide this statement to Constable Fuller at 9.05 am on Thursday, 19 July 2012 at Elizabeth Park. I am providing this statement with the assistance of an interpreter.
I have been in a relationship with HGBY for seven years and married for that long. I am from Country A. I have been in Australia since around May 2012 and have been living with HGBY’s family. I do not have any family or friends outside of who HGBY knows here in Australia.
About eight months ago HGBY was involved in a fight in which I believe he hurt his head and lost a lot of blood. Since around that time he has become violent. He was violent in Country A but it has become worse since coming to Australia. Since the fight HGBY was involved in he has become violent almost every day. Sometimes he would be violent about once an hour each day. He will be violent towards me, HGBY’s mother (M HGBY), his younger sisters M, S and F, and sometimes his younger brothers, A and A, and his sons R and K.
HGBY can be quite controlling over everyone. He will force his sons to lie down with him even when the boys are crying and screaming out for their mother. HGBY will hit me and then an hour later be upset and deny that it was him that was violent. He seems to not believe that he is causing pain to the family. He will be very remorseful after he has hit me or anyone else.
Three days ago on 16 July 2012 he became very angry and started hitting me with a cricket bat. He hit me twice but kicked me several times. His younger sisters called the police because they were scared.
On 17 July 2012 he became violent again. He hit me at least three times with a right clenched fist to the face, which caused my cheek to bleed and my tooth to be sore. He also kicked me several times. I still have a sore face and sore arms, shoulders and back. On this date he locked me inside our bedroom and started hitting me. No one could see but the girls could hear, that is why they called the police.
I feel that his mental condition is to blame for his violent nature. I think if he does not receive treatment his behaviour will continue. He told me once that he will kill me. I am in constant fear, not only for myself but also for the family because he hits everyone and everyone becomes upset and starts crying.
HGBY is not very willing to see a doctor to help himself. His father has to push him to go but he does not think that there is anything wrong with him. Anything can trigger his behaviour, he is so unpredictable. His behaviour is getting worse and worse. After he beats me he will begin crying. He tells me that I must sit down and must never go to sleep. This is another way that he tortures me.
I have mentioned to my mother-in-law many times that if it was not for the children I would want to kill myself. I am tired of living like this. I do not wish to attend court because I feel embarrassed about what is going on and I am scared to go to court.
In her evidence to the tribunal Ms Z HGBY was adamant that there had only ever been one incident of violence perpetrated on her and that her statements in that sworn affidavit were incorrect. She said she had made those statements because she was angry.
I also have before me the affidavit of Ms M HGBY who is Mr HGBY’s mother. Ms M HGBY was originally listed to give evidence to the Tribunal but the applicant decided not to call her. In these circumstances I will infer that Ms M HGBY’s evidence would not have assisted the applicant.
I nonetheless take into account the evidence she gave to the police in an affidavit. I will read the entirety of that affidavit:
I am providing this statement to Constable Woon at 9.30 am on Thursday, 19 July 2012 at Elizabeth Park. I am the mother-in-law of Ms Z HGBY. My son HGBY is married to her. I live with my son and daughter-in-law. I am providing this statement with the assistance of an interpreter.
The interpreter is named.
On 16 July 2012 I was at the shops at about 4 pm. My daughter in law was at home with her husband. I had left a mobile phone at home and told her to call, if anything happened. I left the mobile phone there because I do not like leaving Ms Z HGBY at home by herself with my son. He has been violent towards her for about eight months since we have been in Australia. He was in an accident where he was punched in the head and since then he has been worse.
On 16 July 2012 I received a phone call from Ms Z HGBY to say that my son had hit her with a cricket bat. The police came to our house and took him away.
On 17 July 2012 my son punched Ms Z HGBY in the face more than two or three times. He also kicked her with his feet. The police came again and took him away and he is in gaol now.
I believe that HGBY is capable of killing Ms Z HGBY and he has said to me, “I will kill all of you even if I spend all of my life in gaol I will be happy.” I think he could do this, if he does not get treatment.
My brother-in-law was violent towards his wife and also towards me. He encouraged my son to be violent towards women. Everyone in my family is afraid of my son. Since the accident he is worse.
I would not be able to go to court because I think it would be better for my son to get treatment rather than go to court. I think that he has become worse because of his injury. If he gets treatment and then does not change I would consider court.
In our culture no man will teach another to be violent. Men work very hard. Sometimes there is violence but it is not taught.
The content of Ms M HGBY’s affidavit was drawn to Ms Z HGBY’s attention but she maintained her position in her evidence to me, that her affidavit was incorrect and that there had only ever been one incident of violence.
HGBY was invited to comment on the allegations in those statements but declined to do so in the exercise of his right against self-incrimination. I draw no adverse inference from that.
However, I do reject Ms Z HGBY’s evidence, that there was only one incident of violence. I prefer the evidence in her affidavit, which I note was prepared with the assistance of an interpreter and prepared contemporaneously with events in question. I also prefer it because it is corroborated by the evidence of Ms M HGBY, which is also in a contemporaneous affidavit prepared for police with the assistance of an interpreter.
I note also paragraph 35 of the sentencing remarks.
Elsewhere in the report it is now clear that you sought to discredit what was alleged by your wife by claiming that she would have given an accurate account to police, if she was able to speak English, and that the sisters who translated the account to police also were unreliable in their English skills.
As it transpired once your wife was assisted with an interpreter and made a statement her account was consistent with that of the sisters and did not support your account at all. I infer from this that other witnesses made statements to police, that also corroborate the version of events in Ms Z HGBY’s statement.
I note also the magistrate’s consideration of HGBY’s version of the events at the time and rejection of it. This takes place at paragraph 30:
In oral submissions I have been asked to accept that the incident took place in the context of a playful tapping of the cheek. I am not prepared to do that. In my view that would not amount to an assault and it is inconsistent with your plea. The plea is entered on the basis that the slapping of the cheek was intentional and unlawful and that you knew it was unlawful.
And from a pre‑sentence report:
Despite his poor memory HGBY told me that he remembers the circumstances surrounding this offence and reports that he was talking to his wife, joking and laughing, and because she was laughing so much her nose automatically began to bleed.
As they were living at his parents’ home his father entered the room and saw his wife’s nose bleed and asked, “Is someone crying?” to which he replied, “No, laughing.”
He told me that he tried to tell his father that it was due to her laughing too much but that his father did not believe him and mistakenly thought they had been fighting and subsequently called the police. He reports that his wife often suffered from nosebleeds in P due to the hot weather.
From paragraph 36.
Having considered what you stated to the report writer about slapping your wife’s face, excluding any reference to punching or kicking, I agree with the observation that you have minimised your offending here notwithstanding the cultural factors, which have been discussed during submissions.
And from 37, an extract.
I have elaborated to this extent about the aspect of your offending because it gives rise to a concern that I have about your lack of insight into the way in which you have dealt with your wife and any degree of remorse that you might now have. It is not very clear to me that you are remorseful.
The Tribunal received a hybrid version of events from the applicant in his oral evidence about this offending. He described laughing and joking and then a sudden deterioration in the mood resulting in him slapping his wife. I reject that version of events as implausible and inconsistent with the content of the affidavits of Ms Z HGBY and Ms M HGBY when read in their entirety.
I view the applicant’s evidence in this regard as a perpetuation of the matters that led Magistrate Sheppard to be concerned about the applicant’s lack of insight and the lack of clarity as to any remorse.
Magistrate Sheppard also dealt with the breach of an intervention order on 28 July 2012, which I note was just over a week after the date of the aggravated assault.
I turn again to the words of the magistrate at paragraph 44:
You admit breaching the order by driving to the home where your wife and extended family lived. This was only about nine days after the order was served on you and had been confirmed in court. You rang your brother-in-law … telling him that you were coming to the house to see your wife and children. … told your wife that you called him saying you were coming to see the children.
Your wife stated that a short time later you were at the door saying that you were sorry. She stated that at this time she was not scared and you did not enter the house but spoke to her at the doorway staying only a few minutes.
… told the police that you stayed for 10 to 15 minutes before the police arrived. He did not tell your father but he said he knew that you were subject to the intervention order with conditions preventing you from going there.
You were seen at the house in your car by police. When they arrived you drove away. When spoken to about this later on 23 August 2012 you claimed that you were aware of the intervention order but that you only went there to collect property. You claimed that you did not realise that it was an offence and what you did not realise that you needed to attend in the company of a police officer, if you wanted to get property.
Your lawyer has submitted that once again you only went to the home to get property and you did not realise that you could not do that. I reject your explanation in the circumstances.
I find that you have minimised your guilt concerning the breach of intervention order. I find that you knew you were not to go to the house in the circumstance. Everyone else in your family seemed to know. You knew that you were not to communicate with your wife and not to go to that home. I find that you did not go there to get property. The circumstances are inconsistent with that.
You went there to speak to your wife and to see your children. I proceed on the basis of your wife’s version of events, that you only stayed a few minutes and that you apologised at the doorway. I at least acknowledge that you did not intend to frighten anyone and you did not enter the property.
The law is designed specifically to protect persons who are in danger of being abused and the courts are required to give effect to the underlying policy of the legislation.
Ultimately the order was varied and confirmed on 4 April 2013 with the removal of the strict conditions and thereby allowing contact but prohibiting you from assaulting, threatening, intimidating or harassing your wife and sisters and damaging their property. Your wife stated that since the original incident there had not been further incidents and she and the children missed you and wanted you back home.
Finally, I turn to consider the circumstances of the breach of a good behaviour bond. By way of background Magistrate Sheppard had sentenced HGBY cumulatively to four years and six months’ imprisonment for the deception and aggravated assault.
As an aside I note that HGBY was then sentenced to a further five months’ imprisonment for the obtaining advantage by deception offences to be served cumulatively and with the benefit of having already been served at the time of sentencing.
Returning to Magistrate Sheppard’s sentencing, her Honour says this:
As to the questions of suspension, I have serious reservations about prospects of rehabilitation here, however I am very mindful of the personal, cultural and possible traumatic matters in your past. Whether or not your prospects of rehabilitation are going to be reasonable depend on you developing insight into your offending and the consequences for you and others, if you continue to offend.
I am not very confident at all about your prospects but I am mindful that you have not reoffended in recent months yet you have frustrated the completion of the court process in the lead up to today.
In all the circumstances given that you have virtually no previous convictions, I am prepared to find good reason to suspend today. You will be placed on a three year good behaviour bond to be supervised for the first 18 months of the bond.
One of the conditions will be to present yourself for eligibility and assessment for a domestic violence intervention program and to successfully complete that, if you are regarded as eligible, within the next 12 months.
You will be ordered to pay compensation in the amounts I have stipulated. You are to be supervised by the Department of Correctional Services for the first 18 months of the bond and to attend and complete any course, which you are directed to attend by your supervising officer, concerning anger management, if you are ineligible to undertake the domestic violence intervention program.
I give a warning as to disqualification. I do not know what the status of your driver’s licence now is but your licence is cancelled today and you are not to drive a motor vehicle for the next four months. If you drive within that time you will be in serious trouble. You will breach your bond and you may have to go to prison. At the end of four months you can reapply for your licence but you must not drive until you have gone through that process.

HGBY did precisely what he was warned not to do. That was dealt with by Magistrate Chin on 20 August 2014. I read from Magistrate Chin’s reasons at paragraph 7 and then 3:
On a separate file you were driving whilst disqualified on 28 November 2013 and this was at Elizabeth Park.
Back to paragraph 3:
The defendant has previously pleaded guilty before me to the following offences. Did not pay for petrol, 22 August 2013. Did not pay for petrol, 21 September 2013.
And from paragraph 11:
Police have applied for a breach of this bond, which is admitted by his committing the subject offences for sentence before me today. On that same token the Department for Correctional Services had also on their own accord filed a separate application for breach of the suspended sentence bond on the basis that he failed to respond to supervision, as required by a condition of that bond.
And paragraph 40:
Although he did not have any significant or relevant offending history until he was sentenced on 9 September last year, having already resided in Australia for a good part of at least 10 years or so, I am nevertheless of the view that the subject offences before me are serious enough in terms of their proximity in time to the suspended sentence bond to warrant also penalties of imprisonment.
In relation to the suspended sentence bond I will now sentence him.
And a file number is identified being the police application.
Having found that the bond breached and also taking into consideration that he did not respond to supervision with Community Corrections as well and also by committing all these subject offences that are now before me to be sentenced.
The respondent characterises the Centrelink deception offences as offences targeting the vulnerable. The respondent also contends that the deception offences involving motor vehicles were remarked upon by the sentencing magistrate as “So serious that a term of imprisonment was warranted” noting the aspects of the offences that showed them to be highly calculated and perpetuated with ongoing deceit of the victims.
The respondent contends that the violent offence committed against the applicant’s wife is also a very serious offence as is the contravention of an intervention order.
The respondent adds that the pattern of offending reveals repeat offences in relation to deception. The respondent contends that the nature of the offences weigh against revoking the visa cancellation.
The applicant’s submissions remind me that all offences were either summary or minor indictable offences dealt with in the Magistrates Court as summary offences. In this regard it is submitted that none of the offences justified committal to the District or Supreme Courts and as such in the broader context of the criminal justice system in this State they have been dealt with on the basis that they are of the less serious variety.
I am also reminded that all offences were dealt with on the basis of guilty pleas, a circumstance given considerable credit in the criminal justice system, and that the term of imprisonment served is the result of a series of shorter sentences being imposed cumulatively.
It is submitted that the offending as a whole does not disclose a pattern of increasing seriousness.
In relation to the aggravated assault and associate breach of the intervention order, it is submitted that it is a significant factor to take into account, that the Magistrates Court subsequently varied the intervention order. In this regard it is agreed between the respondent and the applicant that an order remains in force offering a range of protections to the protected person, Ms Z HGBY, but no longer including a restriction on the applicant approaching or living with his wife and children.
I note that the variation of the order in this regard took place on the basis of a police application and was made by consent and I understand took place prior to the applicant being released on home detention bail.
It is submitted that the fact that the court varied the intervention order in this way is a significant factor as is the fact that there is no evidence of any repeat of the offending of the nature of the assault while the applicant was on home detention bail.
I agree with the respondent’s characterisation of the Centrelink deception offences as serious. Like the magistrate who dealt with the offences, I am struck by the characteristic of the deceitful exploitation of vulnerability demonstrated by the offences.
While in one sense the offending can be described as foolish because the applicant substituted an account in his own name and therefore the offence must have been easily detected, this feature does not on reflection deprive the offence of the characteristics that lead me to view it as serious.
As Magistrate O’Connor said:
It is indeed chilling to think that the applicant would pretend to befriend somebody who was vulnerable and cheat them. I add also that it was to cheat them of their very means of subsistence through Centrelink payments. Likewise, the deception offences in relation to motor vehicles share similar characteristics.
I am concerned by the observations of the magistrate. Accepting that aspects of the offending were accompanied by threats and the applicant would put his victims to ongoing inconvenience by sending them on pointless errands to retrieve their property.
The Magistrate who dealt with the offences saw in them characteristics warranting a significant term of imprisonment albeit a sentence that was suspended. For example, the offence against Ms P and Auto Traders of themselves attracted a sentence of 20 months in the accumulation of 61 months of imprisonment, which was then reduced to 54 months and suspended.
The crimes involved a series of sophisticated activities calculated to deceive strangers wishing to engage with the applicant in good faith. The Magistrate viewed these offences as more serious than the aggravated assault also being dealt with at the same time and I think this says something as to the seriousness with which the Magistrate viewed those offences.
The victims of these offences do not fall into any obvious category of vulnerable person. They are essentially random members of the public who had the misfortune to come across the applicant at that time. Nonetheless, having regard to the observations of the Magistrate and the sentence imposed for the offending, I view this offending as serious.
As to the aggravated assault, I am most troubled by all the circumstances surrounding the conviction and the evidence compiled by the police. I place less weight on the Magistrate’s remark, that although serious, the offence is less serious than the motor vehicle deception offences in circumstances where the Magistrate has taken the time to explain for the record the restricted basis upon which the offence was to be approached in the criminal context given Ms HGBY’s unwillingness to give evidence to court.
As mentioned above, I’m not bound by those restrictions for these purposes but proceed on the basis that I am making findings as to conduct and not only the crime the subject of the conviction. I view that course of conduct, including the events that resulted in the applicant’s conviction for aggravated assault is very serious, indeed. Other than perhaps a child, it is difficult to imagine a more vulnerable victim than Ms Z HGBY at that time and the conduct, I am satisfied, has taken place is the perpetration of violence on such a vulnerable person. At the time of the conduct leading to conviction, Ms Z HGBY had been living in Australia for two months, did not speak English and had no friends and family in Australia.
She was reliant then, as she is now, on HGBY’s extended family. Given her circumstances then and now, it is unsurprising that Ms Z HGBY has done her best to withdraw the allegations she made to the police in her statement given the potential consequences faced by HGBY in these proceedings. However, as mentioned previously, I reject her evidence in that regard and I am satisfied that she was subjected to the conduct she described in her affidavit, which is of a nature significantly more serious than the single instance resulting in conviction. I place weight on the remarks of Ms M HGBY as to her belief that HGBY was capable of killing his wife and treat it as a conclusion based on observations HGBY’s mother had made about his treatment of his wife. For HGBY’s mother to make such a statement to police, I infer that she must have been very fearful for her daughter-in-law indeed.
I’ve considered carefully the submissions regarding all offences proceeding summarily and understand the logic and force in the submission. However, I place greater weight for my purposes on the sentences imposed, albeit suspended at first, and based on the accumulation of offending, and I also place weight on the remarks that I have recounted of the Magistrates who dealt with the offending. Other than remarks made as to HGBY’s difficult background in Country A, little by way of mitigation can be identified in the remarks of any of the three Magistrates who dealt with HGBY’s offending. HGBY’s contentions as to the effects of mental illness were explicitly rejected by Magistrate Sheppard when dealing with the aggravated assault and deception relating to motor vehicles.
Magistrate Chin, I note, did proceed on the basis that HGBY’s mental health ‘had not been well’ and he was prepared to attribute the offending to HGBY being brought up in an environment of strife and war.
In summary, I now reach my findings by reference to the items identified at the direction in item 13.1.1.
As per item (a), HGBY has committed the offence of aggravated assault and engaged in a course of conduct described in the affidavits of Ms Z HGBY and Ms M HGBY, that have not resulted in convictions, that I consider very serious violent offences and conduct and perpetrated against a person who was particularly vulnerable.
As to item (b), HGBY has committed further offences relating to obtaining financial advantage by deception that are serious because they were committed against vulnerable members of the community and other offences I characterise as serious on account of the course of conduct leading to the deception of members of the public.
As to item (c), although I accept that the offences were dealt with summarily and the sentence served by HGBY was the product of an accumulation of offending, I consider the sentences imposed by the courts, particularly Magistrate Sheppard, in relation to particular counts, nonetheless, reveal the seriousness of the offending as viewed by the court. The course of conduct, viewed as a whole through the bringing down of the suspended sentence, also reveals that the conduct, as a whole, is very serious.
As to items (d) and (e), I accept that there is no trend of increasing seriousness of offending but I also note that HGBY has been convicted of many offences, 38 in total, over the course of approximately three years. I note that HGBY was offending while being dealt with by the courts for other offences.
As to item (f), I have no evidence to suggest that HGBY has provided false or misleading information to the department about his conduct.
As to item (g), HGBY has not previously been warned about the consequence of offending on his migration status but I also accept the absence of a warning is not to be considered in his favour.
As to item (h), the crimes were not committed while in circumstances relating to immigration detention.
Finally, the respondent has made submissions regarding other convictions, such as driving while disqualified, making off without payment, being offences which brought down the suspended sentence on HGBY. While these offences have characteristics that are serious, for the purpose of my deliberations I have focussed on the offending that I’ve described in greater detail. I consider that the nature and seriousness of HGBY’s offending weighs heavily against revocation of the visa cancellation.
I turn to consider the risks should further offences be committed, or HGBY engage in other serious conduct. In accordance with the Direction, my consideration that the risk should further offences be committed incorporates cumulatively an assessment as to the potential harm to the Australian community should the conduct be repeated and also the likelihood of HGBY engaging in further criminal, or other serious conduct.
As to the first limb, and as mentioned above, I found that HGBY’s conduct is of the nature of a violent assault against his vulnerable wife. Other conduct, best described as instances of domestic violence directed towards his wife and calculated and manipulative conduct directed towards members of the public, including vulnerable members of the public. I consider the potential harm to the Australian community, should conduct of that nature be repeated to the grave.
As to the aggravated assault, and the other conduct opposed to in the affidavits of Ms Z HGBY and Ms M HGBY, I’m concerned by the remark in the affidavit of Ms M HGBY that HGBY was considered by her, at that time, to be capable of killing his wife and, indeed, has said as much to her and the family. That remark from HGBY’s mother, who has observed his behaviour over time and provided to police in an affidavit, has resurfaced in my mind time and again, as I have deliberated over this matter. It finds its moment as I consider the potential harm to the Australian community if HGBY’s conduct is repeated.
As to other offending, HGBY has demonstrated his capacity to bring varying amounts of harm to the members of the public on multiple and drawn out occasions. The past harm to the victims is not of a violent nature but, no doubt, took a heavy toll on the victims and this was described further in the sentencing remarks. I consider that should HGBY engage in a further course of conduct of the nature of deception, it would produce equivalent harm to that previously experienced by the victims of his offending. As to the likelihood of HGBY engaging in further criminal conduct, objective evidence is limited and there is no evidence from professionals in the field of predicting or explaining offending behaviour or offering expert opinions on the degree of rehabilitation and the likelihood of reoffending based on cogent evidence available to them.
In this regard, however, I note that the solicitors and counsel acting for HGBY received their instructions very late in this process, such that there would have been no realistic opportunity to compile evidence of this nature and, given the nature of these proceedings, there was no capacity for me to adjourn the proceedings for such evidence to be obtained. I must proceed on the evidence that I have. There is ample evidence from HGBY himself, and members of his family, as to their confidence and belief that the offending will not be repeated. It is also submitted that I should draw inferences from the fact that HGBY was granted parole by the Parole Board.
The respondent contends that there is a complete absence of evidence of rehabilitation pointing to the applicant having completed no course directed towards addressing aggression or anger. The evidence demonstrates that the applicant completed phase 1 of the ‘Making Changes’ course but this was described by the respondent as a general course with limited value for present purposes. I have no detailed evidence about the content of the course, other than the references to it I have seen in the notes from the Department of Community Services. Having regard to that material, I consider that the completion of phase 1 of the ‘Making Changes’ course is the barest of starts towards any cogent demonstration of rehabilitation.
I accept that HGBY has completed a number of other courses of education while in prison but the nature of these courses is directed towards basic vocational skills and health and safety. I take into account also the evidence indicating that HGBY was terminated from an education course late in his sentence due to tardy attendance. This event does little to assist HGBY in circumstances where I have searched for evidence of rehabilitation through education.
It was submitted by the respondent that HGBY has demonstrated a propensity to minimise his offending and to blame others. This submission has foundation in the remarks of the sentencing Magistrates and the submission, therefore, has some force. The respondent also contends that the applicant displays a demonstrable lack of insight into his offending and the impact on his victims and disregard for the authority of law.
In his oral evidence to the Tribunal, the applicant tended to minimise the circumstances of the aggravated assault in the way I have earlier described, offering a hybrid version of events between the account he is recorded to have given police and the court and rejected by the Magistrate and an account acknowledging the basis of his guilty plea. As to the other offences, I observed that HGBY did make remarks expressing concern for his victims in the course of his evidence but these were overshadowed by his concern as to the effect of his punishment on himself. It is difficult to assess whether HGBY does genuinely have a concern for the effect of his offending on the victims or whether he was telling me what he suspected might assist him in these proceedings.
Overall, while I have considered carefully the statements made by HGBY during the hearing as to his remorse and concern for the victims, I accept the submission ultimately made by the respondent that there is limited insight into the nature of offending revealed and HGBY’s expressed commitment not to reoffend is more likely the product of him being punished rather than a deep insight into the effect his offending has had on the community and his victims. Therefore, I do not place greater weight on HGBY’s statements in his evidence than the weight I place adversely on the absence of objective evidence and opinion of rehabilitation. The applicant and his family have attributed his offending to mental illness and a brain injury. I note that such an attribution was expressly rejected by Magistrate Sheppard in relation to the offences her Honour was dealing with, at least insofar as it related to the references to a brain injury.
The medical evidence before me is thin and it is difficult for me to be satisfied that any aspect of HGBY’s offending is attributable in whole, or in part, to either mental illness or a brain injury with the consequence that I have difficulty with any proposition that treatment of such a condition will reduce the likelihood of reoffending. HGBY has stated in exhibit B9 that at the time of the offence (and he does not specify which) he had been diagnosed by a psychologist with a mental health issue (and he does not specify what). He states that his offending was not in keeping with his normal behaviour. I place little weight on these remarks in the absence of greater specificity and corroboration and the extended envelope of time in which the offending took place.
In 2014, Dr Wilson, a General Practitioner, wrote a letter explaining that she considered HGBY did suffer from mental health issues and she had commenced HGBY on unspecified medication for PTSD, with the effect that he was stabilising. Dr Wilson referred to HGBY telling her he had suffered a beating at the hands of the Group A leaving him with a head injury causing forgetfulness and confusion. Dr Wilson also provided a copy of a report of Dr Bastiampillai, a Psychiatrist, of 19 March 2013. Dr Bastiampillai then reported that HGBY minimised his level of aggression but had not been treated for depression. Dr Bastiampillai stated that he considered that HGBY has components of both PTSD and depression, which I am prepared to interpret as a diagnosis of these conditions, but Dr Bastiampillai said he did not consider these matters to be pervasive or of high severity.

Dr Bastiampillai said he was not sure if HGBY’s aggression was mediated by depression but believed irritability might be contributing to aggressive behaviour. Dr Bastiampillai recommended antidepressants but it is by no means clear from the evidence of Dr Wilson, HGBY, or his family, whether the medication that was mentioned in the course of their evidence was an antidepressant medication. In August 2015, HGBY was seen by a prison psychologist (and the reference is at supplementary G document 4, page 350) who observed that HGBY did not, at that time, appear to be experiencing any significant mental health problems not being managed at present and had not reported symptoms of PTSD, although had given a history of symptoms of that nature in the past.
Ultimately, I can make no finding to the effect that HGBY’s offending was linked to a mental illness or a head injury and, therefore, cannot be satisfied that treatment of any mental health issues will reduce the risk of reoffending. There is limited to no support in the evidence before me to suggest that the offending and HGBY’s mental health are linked.
I place some weight on the submission that the Parole Board saw fit to release HGBY on parole and, in so doing, must have conducted a serious review of the readiness of the applicant for release into the community. I note also, however, that HGBY was released into immigration detention and I cannot speculate whether this feature of his circumstances was known to the Parole Board or whether that factor would have been taken into account.
I note that HGBY was previously refused parole and served his sentence well beyond the non-parole period. A note made by the Department of Correctional Services indicates that HGBY was refused parole in February 2015 because the Board considered he presented a significant risk in returning to the home and outlined poor work compliance and compliance with previous orders. That reference is at supplementary T document 4 at page 356. I place some weight also on the fact that between 18 February 2014 and 14 May 2014, the applicant was on home detention bail in the company of his family and committed no further offences during that time. Given the short duration of time, however, it provides only a limited answer to the respondent’s concern that the extent of any rehabilitation on the part of the applicant is untested. The respondent submits that HGBY’s circumstances have not really changed. If the visa cancellation is revoked, HGBY will return to the same home with the same support and family dynamics that were present during his offending.
In this regard, the respondent observed, as I did, that HGBY’s father appeared to be completely unaware of the offending in relation to obtaining advantage by deception and appeared shocked by the nature of that offending when it was recounted to him. I am not satisfied of the family’s capacity to influence HGBY’s behaviour in light of this and in light of the extensive previous offending while HGBY was in the same circumstances. It is submitted, on behalf of the applicant, that he has matured in prison. HGBY was aged between 18 and 22 when he committed the offences and gave evidence that he offended without thinking about the consequences. Incarceration, it is submitted, has served to motivate HGBY not to offend again in the future. This submission certainly has foundation in the remarks made by HGBY to the Tribunal in the course of his evidence as to his commitment in this regard and his plans for the future.
I accept that incarceration has had a very significant effect on HGBY’s perceptions of the consequences of his offending and the deprivations of imprisonment provide a significant motivating force against offending again in the future. After careful reflection, however, I am not satisfied that this feature, of itself, is sufficient to reduce the risk of reoffending to a level that gives me any comfort in my concern to protect the Australian community in accordance with the Direction.
Finally, on the question of likelihood of offences being repeated, it is submitted on the applicant’s behalf that he remains subject to an intervention order requiring that he not assault, threaten, harass or intimidate his wife, among other matters. It is submitted that the consequences for HGBY of infringing that order are so dire that it provides strong motivation not to offend against his wife in the future. Similarly, HGBY is subject to parole until January next year and so the intervention order and supervision might satisfy me that the risk of reoffending is low. However, the difficulty I have I accepting that submission is that HGBY has previously been the subject of supervision and has previously been the subject of an intervention order, and promptly breached his obligations in respect of both.
While I understand the logic and force of the contention regarding the dire consequences for HGBY, in particular for breaching the intervention order, I find little reassurance when his past behaviour in relation to such matters contradicts what would otherwise be a strong submission. Accepting that there would, indeed, be dire consequences for HGBY of any breach of the intervention order, I am left with the question of at what cost taking that chance would be in respect of the protected person. On balance, I have no particular sense of security that HGBY possesses a low risk of engaging in criminal conduct again on the evidence before me addressing the risk of the non-citizen reoffending. I am concerned that the applicant has completed only limited rehabilitation courses while in prison and I do not have sufficient information about the course to be reassured that it reduces the risk of violent offending against his wife or engaging in a course of conduct relating to deception of members of the public.
I agree with the respondent that HGBY’s own evidence to the tribunal does not overcome that problem in that I remain unconvinced that he has full insight into the effect of his offending on persons other than himself. The evidence of his family members, namely his wife and Mr G HGBY, likewise, does not overcome the problem. The evidence takes the form of what I would describe as desperate assurances, and not insights based on actual observations of HGBY’s longer term conduct or cogent developments since his offending.
I have taken into account the evidence of Pastor Stanley Smith. I give his evidence little weight for any purpose in this review because he has had contact with the family for only a very limited period of time and was completely inaccurate in his recounting of the offending with which HGBY has been convicted.
I do not find that Pastor Smith was misled by HGBY as to his offending because that matter was not put to the applicant. For my purposes, it is sufficient that I indicate that I place little weight on the Pastor’s evidence generally for these reasons.
I received evidence from Ms Saliba of the Australian Refugee Association outlining the services her organisation might be able to offer the family. I was concerned that Ms Saliba was not aware that HGBY had been convicted of an aggravated assault of his wife but, again, I do not find that she had been misled in this regard because, as she said, she had been offered a full criminal history by HGBY but had not followed up that offer.
I accept that the Australian Refugee Association is well-placed to coordinate support for the family, either with or without HGBY’s presence. However, I place no weight on Ms Saliba’s evidence to the extent that she purports to say that HGBY has insight into his ‘decision making’, which I suspect to be a euphemism for offending, and deep remorse. Ms Saliba is inaccurate in referring to HGBY’s offending taking place when he was an adolescent. Ms Saliba explains that she is a counsellor and has qualifications in that field and I am sure she approaches HGBY’s, and the family’s, situation from a completely different perspective to that which I must approach the situation, and she approaches it without the evidence that I have.
Ms Saliba is not qualified to express an opinion on the degree to which HGBY has taken ownership of his decisions to the extent that this terminology might suggest a professional assessment of rehabilitation, and she is certainly not in a position to express such an opinion on the basis of two meetings with HGBY following his visa cancellation and in the absence of more detailed knowledge of the actual offending that has taken place. I will accept Ms Saliba’s evidence as to her observations of the family unit and the difficulty they have faced, and will face, in the event that the cancellation is not revoked.
Finally, on the risks of reoffending, I have considered the remarks of the sentencing Magistrates on this very question. Magistrate Sheppard expressed serious reservations about prospects of rehabilitation but was mindful of the personal, cultural and possible traumatic matters in HGBY’s past. The Magistrate again expressed that she was not very confident. Since then, of course, much has happened, including the bringing down of a suspended sentence upon the commission of further offences tending to justify Magistrate Sheppard’s concerns, but then also a lengthy period of incarceration, the effect of which, of itself, cannot really be known in relation to HGBY’s rehabilitation. I have not identified persuasive evidence to contradict the reservations of Magistrate Sheppard in passing sentence, notwithstanding that it was some time ago.
It follows that, on the evidence available to me, the likelihood of the applicant reoffending cannot be describe as low. It is untested and not reduced through a body of achievement in undertaking rehabilitation courses or a clear demonstration of insight. I consider the risk of reoffending is high in light of HGBY’s breach of good behaviour bonds and non-compliance with intervention orders. I am not persuaded on the mere representation of HGBY, or his family, to form a different view than the view that I have formed on the history of his offending and breach.
On the evidence, I am not confident as to the applicant’s full rehabilitation. The risks of the applicant reoffending are potentially dire in terms of his history of aggravated assault and the evidence of domestic violence. I think the risk is unacceptable and is a risk the community would not tolerate. My concern about this risk is made greater by the actions of Ms Z HGBY in attempting to retract from her affidavit evidence about the full nature of the offending in light of HGBY’s current circumstances and the family’s unwillingness to give evidence in court to allow the full nature of the allegations to be tested.
Given HGBY’s current circumstances, with the existence of an intervention order and the focus on the consequence of his offending for his migration status, I am very concerned that there exists an incentive for the police not to be made aware of any future instances of violence. I was concerned by Mr G HGBY’s reference in his evidence to his belief that calling the police, in relation to the aggravated assault, was a mistake. For Ms Z HGBY, if she and her family now have a reason to be reluctant to again seek the help of authorities to protect her from violence by HGBY, she may be at greater risk than she once was.
In relation to the other categories of offending, I also consider there is a real risk that offending of that nature may be repeated with the potential to cause harm to the community. I consider that the risk to the Australian community weighs very strongly against revoking the visa cancellation. I am of the view that the Australian community must be protected from the unacceptable risk posed by HGBY.
I now consider the best interests of minor children affected by the decision. HGBY has three children who are under the age of 18. I am to consider each of their interests individually to the extent that their interests differ. I have not received any evidence as to any differing interests of the children in this regard but I am conscious of their different ages. I have regard to exhibit B12, an unsigned statement from the Assistant Principal of St Thomas More School. The respondent contends that I should give limited weight to that evidence because it is unsigned and Ms Kilmister was not called as a witness. However, I think her evidence is uncontroversial. Ms Kilmister explains that Child R is in Year 4, Child K is Year 3. Ms Kilmister wished to provide support for the children and she recounts that HGBY had expressed a wish to create a stable home life for his wife and children and to become a good citizen. HGBY said as much to me in his evidence.
Ms Kilmister described the struggle faced by Ms Z HGBY to support her family in HGBY’s absence and that St Vincent de Paul and the Australian Refugee Association have also provided support. Ms Kilmister says that the boys missed their father immensely and recounts that Ms Z HGBY has said the boys are happier when HGBY is at home with his family. The boys have struggled emotionally at home and at school. I accept all of these matters in relation to the two older children. HGBY’s offending, and its consequences, have surely taken an irreparable toll on the children already. HGBY has a younger child, who was born at about the time HGBY was incarcerated. He was eight months old when HGBY was sentenced while in custody on 17 April 2015.
The respondent contends that HGBY was not a positive influence on his children’s lives during the time of his offending. I think this is inescapable having regard to the nature of the offences, particularly the evidence of family violence. Likewise, the deception offences are the antithesis of acting as a positive role model for children to the extent that the children are aware of why their father has been in prison. HGBY’s unwillingness to cease offending, despite the suspended sentence, has deprived the children of his presence and whatever positive influence he had in the household for many years. As for family violence, in her affidavit, Ms Z HGBY does allege that HGBY was violent towards Child R and Child K but provides no further particulars. Given the attitude adopted in her oral evidence, this could not be explored any further.
The respondent points to instances in the Department of Correctional Services records that suggest the children were observed to be going to the park unaccompanied while in HGBY’s care or that he intended to arrange a taxi to collect the children from school so that he could attend a parole appointment. While perhaps undesirable, these events, I consider are insignificant in light of the brief reference in Ms Z HGBY’s affidavit to the older children being the target of violence in the past and the poor role model and influence HGBY has undoubtedly provided, given the nature of his offending. Also, the respondent draws to my attention that the family have reduced visitation to the applicant over time but I accept that this is the result of HGBY being transferred to Mt Gambier.
Also, I accept the evidence from multiple sources that HGBY regularly communicates with his sons by telephone and Skype. I draw no adverse inference as to the relationship between HGBY and his children from visitation records. I accept that HGBY has maintained ongoing contact with his children while incarcerated.
I accept the respondent’s contention that there are other adults who perform a parental role for the children. I received evidence from Mr G HGBY, who described his role and support for the children. I consider Mr G HGBY has filled the void to the extent that he can in the absence of HGBY for the boys. I consider that if the visa cancellation is not revoked, Mr G HGBY will continue to perform that role, along with his wife, the children’s mother and extended family.
Despite all of these things, however, I do consider that the best interests of the children lie with the revocation of the visa cancellations. While there is evidence that reveals HGBY to have been a poor role model, and concerning evidence regarding an instance, or instances, of violence directed towards the children, the evidence falls short, in my view, of demonstrating that the best interests of the children are served by excluding HGBY from them indefinitely. In this regard, I accept the observations of Ms Saliba that the family struggle without HGBY and he has continued to play a role within the family despite being incarcerated. I also accept that if HGBY is removed from Australia, and returns to the country of his nationality, Country A, there is little prospect for an ongoing meaningful relationship between HGBY and his sons.
It is submitted that the children need the practical, emotional and financial support of their father. I agree, subject to the concern about Ms HGBY’s evidence that violence was directed towards them and subject to an acknowledgement that Mr G HGBY, and the extended family, have appeared to fill the void created by HGBY’s absence. It is submitted that the older children would also be aware of the risks posed to their father should he return to Country A and this would add to their distress. I do accept that submission.
There are a number of specific matters that I must take into account in accordance with the Direction and I do so now.
The Directions provide that less weight should generally be given where a relationship is non-parental and/or there is no existing relationship, or there have been long periods of absence or limited meaningful contact. I do not think this applies based on the findings I have recounted.
I am to take into account the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the children turn 18 and including and court orders related to parental access and care arrangements. In this regard, I recognise that the children are young, especially the youngest. There is a considerable length of time before the children turn 18 and I note that there are no court orders or restrictions on the extent to which HGBY can play a positive parental role in the future. However, I do refer to the concerns I have about the nature of his role in the past.
In that regard, I am to take account of the impact of the non-citizen’s prior conduct and any likely future conduct and whether that conduct has, or will have, a negative impact on the child. As I have explained, I am concerned about this point. I do not think HGBY has been a positive role model and I am concerned about the reference to violence being directed towards the children in the evidence of Ms Z HGBY through the affidavit. I am to take into account the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to remain in contact in other ways.
As I have mentioned, in the event that HGBY is returned to Country A, I consider that there would be a very limited prospect of an ongoing relationship being able to be maintained.
I am to take into account any known views of the children, with those views being given due weight in accordance with the age and maturity of the child. I take into account the documentary evidence in that regard contained in the G documents.
I am to take into account evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect. I have mentioned already the concern I have about the brief reference in Ms Z HGBY’s affidavit that violence was once directed towards the children and I take that into account. There is, otherwise, no evidence of sexual or mental abuse or neglect of the children that I am prepared to accept.
I am to take into account any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. I do not have any evidence in that regard, other than the remarks I have already made about the antithesis of a good role model. I find that the best interests of the children weigh in favour of revoking the visa cancellation, notwithstanding the limitations and concerns that I have. I consider this is a strong countervailing consideration to the matters previously discussed but it is lessened, to an extent, by the existence of other family support, as I have mentioned, and the concerns I have expressed in relation to the quality of HGBY’s influence in the past. Overall, however, I accept that the best interests of the children weigh in favour of the cancellation being revoked.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

I turn to the next primary consideration, the expectations of the Australian community. The Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia, or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerned, or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In that regard, I have revisited the principles set out at item 6.3 of the Direction. I take into account that there is an expectation that non-citizens will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. I take into account that the community expects that the Australian Government can, and should, refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. I take into account that a non-citizen, who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community, such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to or to forfeit their privilege of staying in Australia.
I take into account that conduct may be so serious that any risk of similar conduct in the future is unacceptable and, in these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. I mentioned those extracts from the principles but take into account the entirety of the principles.
The respondent submits that the Australian community would expect the cancellation of the visa to be maintained, pointing to HGBY’s disregard for the authority of the courts, the squandering of opportunities afforded by bail and home detention and a good behaviour bond, and the nature of the offences with which he has been convicted, pointing, in particular, to the vulnerable nature of his victims.
The respondent’s submissions in this regard mesh thoroughly with the principles set down by the Government as to what is to inform my assessment of the expectations of the Australian community.
The applicant contends that the community would expect offenders who have completed their court imposed penalty and who do not pose an ongoing danger should be released to work and support their families and pay taxes.
On reflection, my judgment on this issue is with the respondent, having regard to the principles set out in the Direction by which I’m bound. I think that the nature of HGBY offending has characteristics which are particularly objectionable in the way they targeted those who are vulnerable.
I consider, in particular, the community would have no tolerance for the risk presented to Ms Z HGBY of being subjected to further assault, nor of HGBY’s targeting of vulnerable Centrelink clients. My conclusion, in this regard, is formed both through applying the Direction and reflecting on the observations about the offences made by the sentencing Magistrates. I conclude that the Australian community would expect that HGBY, a non-citizen, having been given many chances by the criminal justice system, has now forfeited the privilege of residing in this community. This is a weighty factor, in all circumstances, but is not, of itself, determinative. The expectations of the community, to the extent that they exist separately and distinctively from the views of the Government, as set out in the Direction, may well be informed by other factors I must take into account, including the best interests of the children and the matters to which I will now turn, and these are other considerations in the Direction.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
It is now settled that I must assess any international non-refoulement obligations that might arise if HGBY is returned to Country A. In this regard, the Full Court in Minister v BCR16 [2017] FCAFC 96 set aside a decision of an Assistant Minister who had followed the approach set out in the Direction, albeit not bound by the Direction itself, to the effect that it was considered unnecessary to determine whether non-refoulement obligations are owed to a non-citizen where that non-citizen could make a valid application for another visa, relevantly, of course, a protection visa.
Essentially, this approach assumed erroneously that whether a non-refoulement obligation existed would be assessed in the course of such an application. The Full Court has pointed out that the legislation does not necessarily guarantee such an assessment will be made. The High Court refused special leave to appeal as recently as 17 November 2017. My brief outline of these issues, as considered in BCR16, obviously does a disservice to the reasoning of the Full Court.
I received and accept the assurances made in the matter before me, on instructions, that the department will consider whether Australia has protection obligations in respect of HGBY, noting that he has long ago applied for a protection visa, and I will elaborate on this later. Nonetheless, the bottom line is that I must form a view about, and take into account, non-refoulement obligations owed by Australia in respect of the applicant. This was the position of both the respondent and the applicant. For completeness, at the commencement of the hearing, I posed a question as to whether BCR16 might be distinguishable because it related to a decision of a Minister who was not bound, as I am, to the Direction.
However, having regard to the reasoning of the Full Court, I do not think that approach is sustainable, and although not expressly considered, was not an approach taken by Kendall DP recently in matter XFKR and Minister for Immigration and Border Protection (Migration) [2017 AATA 2385.
The recent clarification of the law in this regard has, therefore, expanded the scope of this review. Taking into account that matters such as these are urgent, and must be dealt with within 84 days of the applicant being given notice of the original decision of non-revocation, practical adjustments must be made to the ordinary approach in assessing Australia’s non-refoulement obligations. In this regard, the task of the Tribunal is made more difficult because the delegate had followed the Direction to the effect that the issue was not to be considered in HGBY’s case.
In this regard, HGBY has had an application for a protection visa on foot for about 18 months with no decision or assessment having been made. Furthermore, the Minister has not provided the Tribunal with an “International Treaty’s Obligation Assessment”. Again, this appears to be in observance of the approach dictated by the Direction because HGBY’s visa that I am concerned with is not a protection visa. However, as observed by Kendall DP at paragraph 93:
Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment. That is not the case here. Before this tribunal, in an expedited hearing that requires the tribunal to make an assessment in a very short period of time (here, less than four days from final oral submissions), the tribunal does not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an applicant deserves) in a protection visa hearing.
Likewise, in this matter, I do not have HGYB’s claims. I do not have the records relating to the assessment for a protection visa of his father, who arrived many years ago and was assessed and granted a protection visa. I do not know if HGBY has been interviewed in relation to his claims and, if he was, I do not have those records. I do not have the deliberations of the department’s expert staff in this area, in either the making of a primary decision on a protection visa, or the completion of an International Treaties Obligation Assessment. Essentially, as the law has been clarified only very recently, I must approach this onerous and complex task cold in the midst of a review about the character provisions of the Act and within 48 hours of completion of submissions.
Finally, and this is not a criticism of the respondent’s representative, who I am quite confident did her best to assist the Tribunal in this difficult task, I foreshadowed on the first day of the hearing that in the circumstances of this matter the Minister really should have a position as to whether Australia had non-refoulement obligations in respect of the applicant, given the recent clarification of the law, and the submission that was advanced that I must form a view and take it into account. However, no position has been taken by the Minister in this regard, leaving it to me. Now that the law has been clarified, I doubt this approach is sustainable going forward in circumstances where the law is clarified and an assessment of Australia’s international non-refoulement obligations has been held to be a required and relevant consideration in such cases.
My assessment will, necessarily, be abridged and, in this regard, Kendall DP observed that the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 had said:
An exercise of the statutory power conferred by section 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and section 36 is invoked.
It is sufficient for the following reasons that I limit my consideration to the question of whether Australian has protection obligations in respect of HGBY because he is a refugee. I note this is a criterion for the grant of a protection visa but, I stress, I am not assessing HGBY for a protection visa and my finding is not to be taken as a finding of satisfaction of any component of section 36 of the Act. The definition of a refugee is at section 5H of the Act. It is expressed to be for the purposes of the application of the Act and so I consider the definition applicable for my purposes. Having regard to that definition, I find the following matters, but note none of these factors are the subject of evidence before me, or corroborating evidence before me, but I do consider them non-controversial in all the circumstances.
I find that HGBY is a national of Country A and no other country. I find that he is outside his country of nationality. I find that HGBY has not committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments, nor has he committed a serious non-political crime before entering Australia, nor is HGBY guilty of acts contrary to the purposes and principles of the United Nations.
HGBY will be a refugee under the definition in the Act if I am satisfied that, owing to a well-founded fear of persecution, HGBY is unable, or unwilling, to avail himself of the protection of Country A. The meaning of a well-founded fear of persecution is provided for at section 5J of the Act, again, for the purposes of the application of the Act. Relevantly:
The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
And it is well accepted that a political opinion may be an imputed one. Additionally:
(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; and
(c)That the real chance relates to all areas of a receiving country.
Effective protection measures will result in the person not having a well-founded fear of persecution or if the person could take reasonable steps to modify their behaviour to avoid the real chance, other than identified modifications and that would also mean that the applicant does not have a well-founded fear of persecution. In this regard, I remark very briefly that the Parliament has moved to codify many aspects of refugee law and there are slight but important changes to the test for refugee status now evident in the Migration Act.
Additionally:
If a person fears persecution for one or more of the reasons mentioned:
(a)that reason must be the essential and significant reason; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
Serious harm, amongst other things, includes a threat to a person’s life. In HGBY’s evidence, both written and oral, HGBY has explained that he left Country A because Group A had killed his uncle and his father had run away. HGBY said that the people of his village thought the family would be killed because his father had come to [Australia]. HGBY stated that he feared being killed, should he return to Country A, because he went to [Australia]. HGBY identifies that the family has enemies, identifying the Group A, among others. He points out that his father has never returned. HGBY believes the Country A authorities are incapable of protecting themselves and would not protect him. The people HGBY fears harm from operate throughout Country A.
In his evidence, Mr G HGBY told me that his brother had held [an identified role]. He had been killed by people, who he presumed to be the Group A, on account of his involvement with the [role]. Mr G HGBY explained that when this happened he realised the entire family was in danger and they fled to Country B in 2001 and he then travelled on to Australia alone. HGBY has also raised claims in his evidence relating to the circumstances in which he took his wife out of Country A. [Details removed]. Ms Z HGBY also gave evidence purporting to corroborate this claim. Also, HGBY is concerned that he will be identified as a person returning from [Australia] and will be targeted for harm in Country A on this basis.
I am very cautious in accepting evidence of such matters from HGBY, who has many convictions for offences relating to deception. Unfortunately, I have also lost confidence in the accuracy and reliability of the evidence of Ms Z HGBY, given the purported retraction of her affidavit to police. I was concerned that Mr G HGBY appeared completely unaware of the basis of the claims regarding Ms Z HGBY but I do note he was not there at the time. Care will need to be taken, as I am sure it will, in a more thorough assessment of HGBY’s claims.
However, for present purposes, I accept Mr G HGBY’s evidence as to the circumstances in which the family left Country A and the concern that the family had essentially been identified as supporters of the Country A Government by forces hostile to the Country A Government. Also, I accept that given the length of absence, HGBY will be identified as a person who is returning from [Australia] should he return to Country A. I received a bundle of general country information about the circumstances in Country A. I rely primarily on exhibit A3, which is the Department of Foreign Affairs and Trade Country Information Report on Country A dated […].
The Department of Foreign Affairs and Trade asses at item 3.23: [Quotation removed].
I accept that HGBY will be seen as a person with associations with the Country A Government, arising out of the circumstances of his family’s departure from Country A and accepting the evidence of Mr G HGBY as to what happened to his brother. Furthermore, I accept that HGBY will be recognised within Country A society as a person who has returned from [Australia] country and I accept that such a group is cognisable in Country A society. In this regard, the Department of Foreign Affairs and Trade states at item 5.22: [Quotation removed].
For the context of assessing international protection, I place greater weight on the first part of DFAT’s paragraph, which, in a sense, contradicts itself. I consider that the combination of HGBY being seen as a person with associations with the Country A Government, and also being a returnee from [Australia] having lived here for many years, combined, demonstrate that HGBY does face a real chance of harm, either on account of an imputed political opinion or identification as a member of a particular social group, being a social group that is targeted for harm for reason of membership of the social group.
As to the matters set out in section 5J of the Act, I am satisfied that HGBY fears being persecuted for reasons of imputed political opinion or membership of a particular social group. I am satisfied that there is a real chance that if HGBY is returned to Country A he would be persecuted for one or more of the reasons mentioned in paragraph (a), namely political opinion or membership of a particular social group. I am satisfied also that the agents of the feared harm do operate throughout Country A and in no part of Country A are the chances of persecution reduced below real. I accept on the basis of the information that I have seen that effective protection measures are not available to persons in HGBY’s position should he return to Country A.
I do not consider even reasonable steps to modify behaviour will avoid a real chance of persecution in Country A on these grounds. I am satisfied that the identified grounds are the essential and significant reasons for the persecution and the harm involved has the potential to be serious harm. The targeting of harm in this regard is systematic and discriminatory, in my view. It follows through applying section 5J of the Migration Act that I find that HGBY has a well-founded fear of persecution, and owing to that fear, is unwilling to avail himself of the protection of Country A.
I find him, albeit I stress again for my purposes only, to be a refugee. He is, therefore, a person in respect of whom Australia has protection obligations. I find also, on the basis of the representations made to me in the course of the hearing, the representations made to Kendall DP, as recorded in his reasons for decision, that as such the Australian Government will not refoule HGBY to Country A. He will not be removed to Country A. This, however, raises another complex issue, in that refusing to revoke the visa cancellation may, therefore, expose HGBY to indefinite or permanent immigration detention.
Before I assess that further, I note that the Direction appears to envisage that there may well be circumstances where indefinite immigration detention, in this way, is to be the result of a non-revocation. At item 14.1, paragraph 6, the Direction explains in the context of a cancellation of a protection visa that:
Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
I note, however, that these Directions remain matters relating to a non-primary consideration and the conclusion of those remarks conspicuously do not require decision-makers to therefore revoke a visa cancellation in the circumstances discussed. As Kendall DP explains at paragraph 118:
The risk of permanent detention is arguably an unacceptable result in any circumstance.
Without it being necessary to agree with that general statement, I do not consider that permanent detention of HGBY would be an acceptable result of my application of these Directions. The question, therefore, is would there be permanent detention of HGBY? In the course of closing submissions, reference was made to Direction 75, which is likewise a direction issued under section 499 of the Migration Act and is, therefore, binding on all decision-makers. The context is, as previously mentioned, that HGBY has applied for a protection visa. That application will be decided on the application of section 36 of the Migration Act.

Direction 75 is produced, in part, to assure me that there will be a full assessment of non-refoulement obligations in relation to HGBY, notwithstanding that the statute itself does not necessarily require it, as observed by the Full Court in BCR16. As Direction 75 is made under section 499 of the Act, I accept that its terms do require the department to assess whether refugee or complementary protection criteria are met before considering any ineligibility grounds, which include character grounds. I accept the assurance, because it is backed by statutory force in section 499 of the Act.
However, the concern raised in the course of closing submissions is that, notwithstanding a finding that HGBY is a refugee, on one construction of the legislation he would not be granted a protection visa in any event, and will remain in definite immigration detention. This concern arises through the following operation of the Act.
The criteria for the grant of a protection visa are now set out in section 36 of the Act. Section 36, as I mentioned, has recently, in the sense of in the last few years, been amended to codify many of the aspects of the Refugee Convention and other aspects of Australian refugee law. Section 36 now contains provisions which may be described as ineligibility provisions relating to the grant of a protection visa. The concern is that one of the ineligibility conditions will apply to HGBY in light of his offending. Relevantly:
A non-citizen is taken not to satisfy the criteria for a protection visa if the Minister considers, on reasonable grounds, that 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.
The concern is that having regard to HGBY’s particular convictions, he will fall within the definition of having been convicted by a final judgment of a particularly serious crime. A particularly serious crime includes a serious Australian offence. That term ‘particularly serious crime’ is defined at section 5M of the Act and it is for the purposes of the application of the Act and it consists of the commission of a serious Australian offence, among other things. That term, itself, is further defined in section 5 of the Act to mean:
An offence against a law in force in Australia where, relevantly, the offence involves violence against a person and the offence is punishable by imprisonment for a maximum term of not less than three years.
As I have mentioned earlier, the aggravated assault conviction is an offence under the law of South Australia, punishable by a term of imprisonment of three years. It would seem, therefore, that HGBY has committed a serious Australian offence and there will be a real issue as to the application of the ineligibility provisions of section 36 of the Act in his application for a protection visa. The concern raised at submissions is that an initial reading of these provisions may inevitably lead to the conclusion that HGBY will face permanent or indefinite immigration detention unless I revoke the cancellation of his visa. I have already mentioned that that would be an inappropriate outcome of my application of the Directions.
However, on further review, I am satisfied that the inevitability of HGBY not being granted a protection visa for these reasons is not, in fact, correct. However, I do remain very grateful to counsel for HGBY for raising this as a potential issue. It is very important that I followed it up and I agree the initial construction of the legislation was quite reasonable on first sight. I have studied the departmental policy in relation to the application of section 36 and, in particular, the ineligibility provisions. Under Direction 75, which I restate are binding on decision-makers, a decision-maker must take into account relevant guidance provided for in the Refugee Guidelines on assessing items in matters 36(1C) and paragraph 36(2C)(b)(ii). That guidance is found item at 14.3 of the Refugee Law Guidelines, being a publication of the Department of Immigration. The guidelines indicate that:
Whether a person constitutes a danger to the community of Australia involves more than a reference to the crime committed by that person and is to be assessed on a case by case basis.
The guidelines draw attention to a decision of this Tribunal, WKCG and Minister for Immigration and Citizenship [2009] AATA 512, pointing out that that case developed a test that could be applied to consideration of these provisions. In fact, WKCG predates the amendments to the Act that I referred to, but is focussed on the application of the Refugee Convention that has been codified by these provisions. I agree that the reasoning of that decision of the Administrative Appeals Tribunal, the Hon B Tamberlin QC DP, would be applicable to any assessment of the application of the ineligibility provisions for the grant of a protection visa.
The Refugee Law Guidelines go on to indicate that:
A decision-maker is to consider the seriousness and nature of the crimes committed; the length of the sentence imposed; any mitigating or aggravating circumstances, the criminal record in totality, including the extent and nature of any prior convictions and the period over which they took place; the risk of reoffending and recidivism; the likelihood of relapsing into crime; and any prospects of rehabilitation.
The guidelines restate that:
Tamberlin DP emphasised that the danger to the Australian community, that is mentioned in section 36 as a provision that leaves a person ineligible for a protection visa, will be assessed as a separate additional matter to be independently established and not causally connected to the crime for which the person has been convicted.
Therefore, I conclude that indefinite detention of HGBY is not an inevitable consequence of any decision not to revoke the cancellation of the visa. It is possible, but it is not inevitable. It may be the case, if HGBY is assessed in that context, to represent a danger to the community. For my purposes, I do not face the stark choice of exposing the Australian community to risk that I consider unacceptable, or making a decision that will inevitably have the effect of permanent immigration detention, or perhaps de facto refoulement as a consequence.
As mentioned above, I do not consider that permanent detention of HGBY is an acceptable outcome in applying the Directions to this matter but I have now concluded that it is not the only possible outcome. As there is some prospect that HGBY will be assessed as not presenting a danger to the community, in the context of refusal of a protection visa, for that reason alone I conclude that this consideration does not outweigh the first and third primary considerations that I consider strongly weigh against revoking the visa cancellations.
I am to take into account the strength, nature and duration of ties. HGBY arrived in Australia at the age of 17 in 2008. He has been in Australia for less than 10 years and has spent a substantial proportion of that time, either regularly offending or incarcerated. HGBY gave evidence of an intermittent work history and limited study. The respondent contends that the community would have low tolerance of criminal conduct by a person such as HGBY who has contributed so little. Having regard to the Direction, I agree with the submission insofar as it relates to HGBY’s ties to the wider community.
HGBY’s contention, however, is on the basis that the strength of his ties to Australia are as found in his family. I accept that HGBY’s entire family live in Australia and HGBY does not have immediate family elsewhere. I accept the submission that HGBY’s family remain highly supportive of him and this was demonstrated in the course of the hearing. I also take into account the observations made by Ms Saliba in her evidence as to the continuing role HGBY has played, despite his incarceration. I accept that the family have faced very significant difficulties throughout HGBY’s absence but it is difficult to distinguish that hardship from the hardship faced when he was offending, including the conduct that was directed towards them.
I have taken into account the medical evidence at B8 (a), (b) and (c), being medical certificates attributing depression of Ms M HGBY and Ms Z HGBY to the circumstances of HGBY’s incarceration in immigration detention. I note, also, the medical evidence indicating that mental stress has been suffered by Mr G HGBY and this is also attributed to the same cause. In a similar vein to my findings as to the best interests of the children, I accept that non-revocation will have a significant detrimental effect on HGBY’s immediate family. I consider, however, that this consideration, as it is represented in the Direction, is evenly balanced in that I am not satisfied of any significant ties HGBY has with the wider community but I do see the detrimental effect that non-revocation will have on his immediate family.
This consideration, of itself, does not outweigh the primary considerations, being the first and third primary considerations that I consider in favour of non-revocation. I have taken into account the impact on Australian business interests but neither the respondent nor the applicant contend that there is any immediate impact on business interests as a result of HGBY’s visa status. The applicant contends that, indirectly, non-revocation would prevent HGBY from working to assist his family and the community will continue to carry this cost but I do not consider this is what the consideration is directed at. In any event, I place little weight on the consideration of the impact on Australia’s business interests.
As to the impact on victims, it is submitted that if HGBY’s visa cancellation is not revoked, amounts unpaid from the compensation orders made by the court will remain unpaid. I accept that would be the case but I place little weight on this consideration in the greater scheme of things. Otherwise, I accept that the victims of HGBY’s previous offending, other than his wife, have no ongoing contact with him. Ms Z HGBY made it quite clear to the Tribunal that it is her wish for the visa cancellation to be revoked. It is submitted that she remains protected by the intervention order imposed upon HGBY. As mentioned previously, however, I remain concerned for Ms Z HGBY’s safety and well-being in circumstances where she was a direct victim of an aggravated assault from HGBY and I have not been persuaded that the risk of reoffending is low. My conclusions in this regard reduce the weight that I attach to Ms HGBY’s wishes as a victim.
As to the impediments facing HGBY if he is removed, I have found that he will not be removed to Country A on account of Australia’s international obligation not to refoule him. It becomes, therefore, somewhat artificial to consider what impediments HGBY would face on removal to Country A but I, nonetheless, turn my mind to this issue. I accept the respondent’s contentions that HGBY can speak a local language of Country A. Against this, however, I accept that HGBY spent his formative years in Country B, having fled Country A as a child. I am also mindful of the country information discussed during the course of submissions to the effect, and I’ll use the term ‘survival’, that survival in Country A is dependent on holding extensive family and tribal connections and support.
I accept that HGBY will have no such support and in light of the country information, for example, at item 5.15 of the DFAT report, which I will not recount, I consider that HGBY would face significant impediments in establishing himself and maintaining basic living standards in Country A. Also, I observe that it is difficult to divorce these impediments and hardships from the findings that I have made as to HGBY also having a well-founded fear of persecution in Country A in any event. Having regard to the circumstances that HGBY would return to, if removed from Australia to his home country, I consider that his consideration weighs in favour of revoking the visa cancellation. However, the weight I attach to this consideration is reduced considerably because I do not consider that HGBY will be refouled to Country A if he is found to be a refugee, as I am satisfied, on the limited evidence I have, that he will be.
So, it comes to my final assessment. I am to decide if there is another reason why the decision to cancel HGBY’s visa should be revoked, being a matter that I am to consider in accordance with the Direction. I have found that the primary consideration of the protection of the Australian community, including the nature and seriousness of HGBY’s offending and the risk to the community should HGBY reoffend, is such that I consider the risk posed by HGBY to be unacceptable. In respect of another primary consideration, namely the expectations of the Australian community, I consider that, guided by the Direction as to what the expectations of the community are, HGBY’s case is, indeed, a case where the community would expect the visa to remain cancelled.
I have considered the best interests of HGBY’s three children, another primary consideration. I consider that these best interests will be served through the revocation of the visa cancellation. Although I have formed this view, I hold some reservations in this regard, arising out of the poor role model HGBY has been to date through his offending, particularly against the children’s mother, and my concerns arising out of what is a brief reference to violence being directed towards the two older children, as set out in the affidavit of Ms Z HGBY.
On balance, as to the primary considerations, I find that the primary considerations fall in favour of not revoking the cancellation. I have considered that the seriousness of the offending, and the unacceptable risk of the conduct being repeated, is too great for me to place greater weight on the best interests of HGBY’s three children, particularly as my view as to their best interests has been reached with some reservation.
I have considered the non-primary considerations. The Direction provides for the primary considerations to generally be given greater weight than these considerations.
As to the non-primary considerations listed in the Direction, I have considered carefully the effect of my finding that Australia has non-refoulement obligations in respect of HGBY. I have considered this finding in the context of HGBY having applied for a protection visa that has not yet been determined. I have considered carefully whether refusing to revoke the visa cancellation would have the effect of bringing about indefinite or permanent immigration detention and mention that such a result would not have been an appropriate outcome in this case, even having regard to the seriousness of HGBY’s offending and my wish to protect the community from the risk of him reoffending.
However, on the further analysis that I have set out, I do not consider indefinite or permanent detention to be inevitable. The scheme of the Act, the department’s policy and the decisions of this Tribunal demonstrate that the danger posed by HGBY to the community will be individually assessed and it will take place in a different context, being the context of the refusal of a protection visa. I do not wish to make a decision that will remove the need for such an important analysis to take place in that context, even though I do recognise that there is a degree of overlap in the various considerations that are to be taken in account.
Throughout the course of my reasons, I have expressed some concerns arising out of the absence of cogent evidence addressing rehabilitation. I have mentioned also that circumstances conspired to really prevent evidence of that nature being provided to the Tribunal once competent counsel and representation was procured by HGBY. Perhaps some of the concerns I have expressed in this regard can be alleviated in the course of proceedings that will not be subjected to the strict timeframes that I am subject to and the limitations on receipt of evidence in advance of a hearing that I am subjected to.
As to the other non-primary considerations, I accept that the impediments to HGBY establishing himself and maintaining basic living standards are very great. However, this factor does not outweigh the primary considerations in circumstances where I consider the question really only comes about in the abstract, as I am satisfied the Australian Government will not return HGBY to Country A. I also have found that the impact on HGBY’s family of non-revocation weights in favour of revocation but HGBY’s ties to the wider Australian community are limited.
Overall, I have decided that the non-primary considerations fall both in favour and against the revocation of the visa cancellation. Ultimately, my deliberations are resolved by the weight I attach to the seriousness of HGBY’s offending, and the risk of repeating his offending, on the evidence I have available to me and the consequential risk to the Australian community. I consider these matters outweigh the best interests of the children and the adverse effect on the family of not revoking the visa cancellation.
Australia’s non-refoulement obligations, the impediments HGBY will face if removed and the conclusion that HGBY would face indefinite immigration detention would have outweighed the primary considerations, except I am satisfied that Australia will not remove him to Country A in any event and there is established a clear process in context to assess whether HGBY presents such a danger to the community that he should not be granted a protection visa. Therefore, indefinite detention is not an immediate consequence of non-revocation.
I am able, therefore, to give full effect to the concerns that I have about the protection of the community and conclude that there is not another reason why the original decision to cancel HGBY’s visa should not be revoked. I affirm the decision not to revoke the cancellation of HGBY’s Class XB Subclass 200 visa.
END OF ORAL DECISION [5.31 pm]

[2017] AATA 2824

13 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	5, 6 and 11 December 2017
Counsel for the Applicant:	Ms K Eaton
Solicitors for the Applicant:	Bourne Lawyers
Advocate for the Respondent:	Ms L Butler
Solicitors for the Respondent:	Australian Government Solicitor