HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2754
•19 July 2022
HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2754 (19 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3515
Re:HQNW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 19 July 2022
Date of Written Reasons: 23 August 2022
Place:Brisbane
The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant a Protection (Class XA) Visa.
............................[SGD]........................................
Senior Member Theodore Tavoularis
CONTENTS
INTRODUCTION AND BACKGROUND
An important procedural aspect of the matter
Issues arrising from legislative framework
Does the Applicant pass the character test?
Should the Tribunal exercise its discretion to refuse to grant the visa to the Applicant?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
Summary of the Applicant’s offending
The more serious of the Applicant’s offences
The Applicant’s remaining offences
Summary of the Applicant’s Evidence with particular reference to the relevant paragraphs at 8.1.1(1) of the Direction
Application of Factors in Paragraph 8.1.1(1) of the Direction
The nature and seriousness of the non-citizen conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraphs 8.1.1(1)(a)(ii) and (iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
(ii)evidence of rehabilitation achieved by the time of the decision
Conclusions about risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: Family Violence
PRIMARY CONSIDERATION 3: The best interests of minor children in Australia
Identification of the relevant minor children
The parties’ respective contentions
The Applicant’s evidence
The evidence of the other witnesses around the extent of the Applicant’s connection to the five relevant children
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Findings about the relevant minor children
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4: Expectations of the Australian Community
Conclusion: Primary Consideration 4
other considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Paragraph 9.4.1(1) - strength, nature and duration of the Applicant’s ties to “immediate family members in Australia”
(2) Paragraph 9.4.2 - “impact on Australian business” resulting from the Applicant’s removal from Australia
Weight allocable to Other Consideration (d): links to the Australian community
Further Other Consideration (e): Prolonged or Indefinite Detention
Findings: Other Considerations
CONCLUSION
DECISION
ANNEXURE A – Exhibit List
ANNEXURE B – Short-form Decision
CATCHWORDS
MIGRATION – refusal of application for Protection (Class XA) visa – where Applicant does not pass the character test – whether the discretion in section 501(1) should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Khalil v Minister for Home Affairs (2019) 271 FCR 326
SECONDARY MATERIALS
Explanatory Memorandum - Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 August 2022
INTRODUCTION AND BACKGROUND
HQNW (“the Applicant”) is a 35-year-old male of Afghani nationality born in 1987.[1] He first arrived in Australia in September 2006 when aged 19 years. He arrived on a Refugee Humanitarian – Woman at Risk (Subclass 204) visa. This particular visa was granted to the Applicant, his mother and his siblings in June 2006, several months prior to his arrival.[2] The Applicant’s father died in Iran in 1998.[3]
[1] R1, page 1.
[2] Ibid, page 330.
[3] Ibid, page 334.
For the purposes of these Reasons, in addition to HQNW being referred to as “the Applicant”, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs will hereinafter be referred to as “the Respondent” or “the Respondent Minister” or “the Minister”. The Migration Act 1958 (Cth) will hereinafter be referred to as “the Act”.
The Applicant has compiled a history of criminal offending in this country. Stated shortly, his offending consists of the commission of some 13 offences[4] that were dealt with across six separate sentencing episodes. Stated in tabulated form, his offending history looks like this:
[4] Note: I have counted the Applicant’s conviction on 22 October 2010 at the Adelaide Magistrates Court for “Fail to comply with bail agreement (4)” as one offence. This could, of course, be viewed as four offences.
Court Date Offence Sentence South Australia, Magistrates Court October 2010 Fail to comply with bail agreement (4) Convicted Discharged without penalty South Australia, Magistrates Court December 2010 Drive under disqualification or suspension Convicted Fined $200 South Australia, Magistrates Court December 2010 Commit assault that causes harm – aggravated other – no weapon Convicted Good behaviour bond $100
2 years
South Australia, Magistrates Court December 2011 Commit assault – basic offence Immediately preceding sentence applied to this offence to be served concurrently South Australia, Magistrates Court December 2011 Fighting Immediately preceding sentence applied to this offence to be served concurrently South Australia, Magistrates Court December 2011 Commit an assault that causes harm – basic offence Immediately preceding sentence applied to this offence to be served concurrently South Australia, District Court April 2012 Intentionally cause harm – aggravated offence – other Sentenced 2 years 9 months imprisonment Non-parole period 9 months from 6/12/2011 South Australia, District Court April 2012 Damaging building or motor vehicle (not graffiti or unknown) Immediately preceding sentence applied to this offence to be served concurrently South Australia, Magistrates Court June 2012 Carry offensive weapon Convicted Discharged without penalty South Australia, Magistrates Court June 2012 State false personal detail Immediately preceding sentence applied to this offence to be served concurrently South Australia, District Court January 2015 Blackmail (aggravated offence) Sentenced 4 years 8 months imprisonment Non-parole period 3 years 6 months South Australia, District Court January 2015 False imprisonment Immediately preceding sentence applied to this offence to be served concurrently South Australia, District Court January 2015 Intentionally cause harm – aggravated offence – other Immediately preceding sentence applied to this offence to be served concurrently
The upshot of the aforementioned criminal history is that the Applicant has been incarcerated – whether in criminal custody or immigration detention – on a continuous basis since March 2013. Stated sequentially, the Applicant’s pattern of criminal offending and subsequent incarceration, can be recorded thus:
·He committed offences in Australia during the period October 2009 until February 2013;
·He was placed into criminal custody from April to June 2010;
·He was returned to criminal custody from October 2010 until December 2012;
·He was returned to criminal custody in March 2013;
·He remained in criminal custody until his sentencing episode in January 2015;
·Upon completing the custodial portion of sentence imposed on him in January 2015, he was, in January 2018, taken into immigration detention where he has remained since.
Also, of relevance in this introductory portion of these Reasons is the trajectory of this Applicant’s progress through the numerous stages involving his visa status entitling him to remain in Australia.[5] Stated in tabulated form[6], this trajectory can be summarised thus:
[5] This includes the Applicant’s attempt to acquire Australian citizenship.
[6] The basis of this tabulation is derived from the Protection Visa Decision Record appearing in the material, specifically, page 330 of Exhibit R1. This entire Decision Record appears at pages 330-362 of Exhibit R1. The reference to “AAT” in this tabulation is, of course, a reference to the Administrative Appeals Tribunal.
Date
Event Details
June 2006
Refugee Humanitarian – Woman at Risk (subclass 204) visa granted
September 2006
Arrived in Australia and immigration cleared on a Woman at Risk (subclass 204) visa
July 2009
Applied for Australian Citizenship by conferral
March 2010
Australian Citizenship application refused
August 2016
Woman at Risk (subclass 204) visa cancelled under s501.
September 2016
Revocation of cancellation commenced
January 2018
Detained under s189 of the Migration Act
July 2018
Revocation outcome for Women at Risk (subclass 204) visa – not revoked
July 2018
AAT review of the decision to mandatorily cancel the Applicant’s Woman at Risk (subclass 204) visa cancellation (Conducted by the AAT at its South Australian Registry – Application number 2018/3863)
September 2018
AAT affirmed the decision not to revoke the cancellation of the Applicant’s Woman at Risk (subclass 204) visa.
December 2018
Applied for a Permanent Protection (subclass 866) visa
September 2019
A delegate for the Respondent Minister refused the application for a Protection (subclass 866) visa, pursuant to s36(1C)
September 2019
Applied to the AAT for review of the immediately preceding refusal decision
February 2021
AAT set aside the immediately preceding refusal decision and ordered “…the further processing of HQNW’s application for a [Protection (Class XA)] visa”.
November 2021
The Department of the Respondent Minister issued a notice of intention to consider refusal of the Applicant’s Protection (Class XA) visa under s 501(1) of the Act
22 April 2022
A delegate of the Respondent Minister exercised a discretion, pursuant to s.501(1) of the Act to refuse to process and grant the Protection (Class XA) visa.
28 April 2022
The Applicant applied to this Tribunal for review of the immediately preceding s 501(1) refusal decision made on 22 April 2022.
28 & 29 June 2022
The AAT hearing of the immediately preceding application was held at its Brisbane Registry (Application number 2022/3515)
For the purposes of these Reasons, any reference hereinafter to “the visa” will be a reference to the Protection (Class XA) visa. As recorded in the last abovementioned tabulated entry, this hearing proceeded before me on Tuesday 28 and Wednesday 29 June 2022 by way of Microsoft Teams. The hearing received both oral and written evidence. In terms of the written evidence, I caused the relevant material to be reduced to an Exhibit List – duly agreed by the parties - which list is attached to these reasons and marked “Annexure A”.[7]
[7] See Transcript, page 3, lines 7-40.
In terms of oral evidence, in addition to the Applicant, the witnesses who gave oral evidence at the hearing comprised[8]:
[8] Note to reader: this Applicant has been allocated a pseudonym and, therefore, in order to further protect his identity, each of his witnesses – excluding the expert witnesses – will not be named in full. The same will apply to minor children when I refer to them later in these reasons particularly when discussing Primary Consideration 3.
·Dr Keyvan Abak – Director, Wellness & Healing Psychology & Counselling;
·Sister RA;
·Sister ZE;
·Sister FA;
·Ms CA – Partner/Spouse of the Applicant;
·Ms NS – The Applicant’s mother; and
·Mr SAH – Prospective employer of the Applicant.
8.I also consider it pertinent, at this early stage of these detailed written Reasons, to define the nature and extent of the Applicant’s family – both biological and extended - in Australia. Those people comprise:
·Ms NS – the Applicant’s mother[9];
[9] Note to reader: It will be recalled the Applicant’s father died in Iran in 1998. It should be further noted that the Applicant’s two adult brothers in Australia – Brother MO and Brother JA – were both killed in a motor vehicle collision that occurred on 2 May 2020.
·Sister RA – aged 24 years[10];
[10] A3, page 58, para [2].
·Sister ZE – aged 26 years[11];
[11] Ibid, page 51, para [2].
·Sister FA – aged 37 years[12];
·Mr YA – the husband of Sister FA and, therefore, the Applicant’s brother-in-law;
·Child A – a male, aged 11 years[13] – the first of the two children of Sister FA and Mr YA;
·Child C – a female, aged 9 years[14] – the second of the two children of Sister FA and Mr YA;
·Ms ZA – aged 28 years[15] – previously married to the Applicant’s now-deceased brother, Brother MO[16];
·Child S – a male, aged 5 years[17] – the only child of the Applicant’s sister-in-law (Ms ZA) and his late brother (Brother MO)[18];
·Ms CA – current partner/wife[19] of the Applicant (i.e., since 2018);
·Child K – a female, aged 16 years[20] – the first child of Ms CA from a previous relationship;
·Child P – a male, aged 6 years[21] – the second child of Ms CA from a previous relationship.
AN IMPORTANT PROCEDURAL ASPECT OF THE MATTER
[12] Ibid, page 23, para [2].
[13] A2, page 151, para [10].
[14] Ibid.
[15] R1, page 605.
[16] Ibid, page 593.
[17] A2, page 151, para [10].
[18] Ibid.
[19] Note to reader: Ms CA and the Applicant are islamically married. They underwent a nikah ceremony in October 2019. While I will more substantially discuss the nature and extent of the relationship between the Applicant and Ms CA later in these reasons, I am satisfied that Ms CA can be classified as a member of the Applicant’s family for the purposes of these Reasons (See Transcript, page 128, lines 20-24).
[20] A2(c), para [6].
[21] Ibid.
As mentioned, this hearing proceeded before me on 28 and 29 June 2022. Both parties were represented by very experienced Counsel and both Counsel were instructed by equally experienced solicitors. The material before the Tribunal was voluminous. Including the Transcript resulting from the hearing, the totality of the material comprised some 3500 pages. It suffices to say that as a result of their very professional and expert conduct of the case by the learned representatives, there was a deal of material – both oral and written – for the Tribunal to consider in the process of the production of written reasons.
In all the circumstances, I did not consider that I could give the necessary fulsome consideration to the respective cases put to me during the hearing in the period between the end of the hearing (on 29 June 2022) and the occurrence of the 84th day which was 19 July 2022. I therefore caused a short-form decision to be published to the parties on the 84th day so that this Tribunal could meet its statutory obligation pursuant to s 500(6L)(c) of the Act.[22] Attached to these reasons and marked “Annexure B” is a true and correct copy of that short-form decision.
[22] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
As will be noted from the short-form decision, I set aside the Respondent’s decision made on 22 April 2022 and substituted it with a decision that this Tribunal does not elect to exercise its discretion inherent in s 501(1) of the Act to refuse to grant the Applicant the visa. I now publish my detailed written reasons for that short-form decision.
ISSUES ARRISING FROM LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
(1)…The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must reach a decision of non-refusal of the visa sought by the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As will be noted from the above tabulation of the Applicant’s criminal offending, he was sentenced to respective head custodial terms of two years and nine months imprisonment in April 2012 followed by four years and eight months in January 2015. There is a ready concession by the Applicant in both oral and written submissions put on his behalf that he does not pass the character test.[23] The Applicant’s position on the character test had its parallel in written and oral submissions relied upon by the Respondent.[24]
[23] See A2, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, para [7]; see also Transcript, page 158, lines 45-47 and page 159, line 1.
[24] R3, Respondent’s SFIC, page 1, para [2]. See also Transcript, page 179, lines 7-9.
There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[25] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[26] I am therefore satisfied that the Applicant does not pass the character test and thus cannot, on this basis, displace the discretion inherent in s 501(1) of the Act.
[25] Act, s 501(6)(a).
[26] Act, s 501(7)(c).
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[27] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[28]
[27] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[28] Direction, paragraph 6. See also Direction sub-paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Sections 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[29]
[29] Direction, s 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[30]
[30] Direction, s 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction directs decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Summary of the Applicant’s offending
Prior to any discussion and analysis around (1) the nature and seriousness of the offending and (2) the Applicant’s recidivist risk, it is necessary to properly understand the nature and extent of his offending. To my mind, one should proceed cautiously in basing any understanding of an offending history purely or predominantly on what the offender has to say about the circumstances in which those offences were committed. The surely more reliable path towards an understanding the nature of an offence(s) is to review and understand what a totally independent but expert observer had to say about it. Thus, I will turn to the relevant sentencing remarks in order to demonstrate an understanding of the nature and seriousness of the Applicant’s offences.
I am also of the view that it is a dangerous exercise to simply bundle up all offences appearing in a criminal history and to arbitrarily make an assessment of the nature and seriousness of the totality of the offending on that type of arbitrary basis. Here, the Applicant has committed 13 offences. But five of those offences are, to my mind, in a different league of seriousness compared to the remaining five. The five more serious offences derived from the Applicant’s sentencing episodes at a South Australia Magistrates Court in June 2012 and at a South Australia District Court in January 2015.
The more serious of the Applicant’s offences
In January 2012, the Applicant found himself before a South Australia District Court for sentencing. Following a fully contested hearing before Judge and jury, the jury convicted the Applicant (and a co-accused) on one count of aggravated intent to cause harm and one count of damaging property. The Judge was satisfied that “…it is plain that by their verdicts the jury declared that they were satisfied that both of you had committed the basic offence of causing harm with intent to cause harm and also that you were both armed and in company with each other when you did so.”[31]
[31] R1, page 53.
A fulsome understanding of the nature of the conduct giving rise to these convictions can be most reliably gleaned from His Honour’s sentencing remarks:
“The victim of your crimes was a man named [Victim P]. On the day in question, he drove to the Arndale Centrelink office with a friend of his named [Victim E] and parked his car in the car park underneath the Centrelink building.
The two of you arrived at the Centrelink building at about the same time. [Applicant], you thought that [Victim E] had been involved in an assault on your brother and you informed [Mr RAG] of your suspicions. The two of you then armed yourself with a hammer and an axe and lay in wait for [Victim E] in the car park and you attacked them with your respective weapons when they came on the scene and, between you, you caused minor lacerations to [Victim P’s] hand and upper arm and pain and bruising to his shoulder and [Victim E] also suffered a cut to his head during the course of the incident.
[Victim P] and [Victim E] eventually escaped whereupon you turned your attention to [Victim P’s] car. Between you, you struck the vehicle a number of blows with the axe and the hammer smashing some of the windows and denting some of the body panels.
You are plainly responsible for each other’s actions over the entire incident encompassing, as it does, the assault and the property damage. Your crime of causing harm with intent was plainly premeditated to some extent at least. You must have had a motive for doing what you did but whether you were motivated by revenge or something else is simply unknown. Your crime of damaging property was committed on the spur of the moment.
Your counsel each submit that the minor nature of [Victim P’s] injuries suggests that you were not wielding your respective weapons with any great degree of force. I do not agree. By their verdicts the jury have declared that you were intending to cause harm and your choice of weapons suggests that you had it in mind to hand out a severe beating and some of the eyewitness evidence suggests that at one stage of the incident you were pressing home your attack with a good deal of ferocity and that [Victim P], and for that matter [Victim E], were simply lucky that they were not more severely injured.
…
[Applicant], you are 24 years of age. You are Afghani by birth. You endured a harsh and horrific upbringing before you came to this country when you were 15. You suffer from a severe chronic post-traumatic stress disorder and from depression as a result of your experiences in your homeland. You have some employment history and as head of (your family it was your responsibility to support them if you could. You want to use your time in custody productively and you have sensible ambitions for the future. You too have a conviction for assault causing harm arising out of an incident the day before you committed your current crimes and you also need to reassess your attitude towards violence. You have spent some three months on home detention bail. You are concerned that you will be unable to support your family if you are imprisoned and this is a matter of cultural significance to you.
But the sentencing process is not all about the two of you. Your intention, your premeditation, your teamwork and your choice of weapons disclose the seriousness of your crime of causing harm with intent and the deterrence of others who might be minded to do what you did must play a significant part in fixing your sentences, both for that crime and for the crime of damaging property.
Although I have not mentioned everything which has been said and written about you, I have in fact taken all of it into account and I have given each aspect of it the significance which I think it deserves.
The maximum sentence for aggravated causing harm with intent to cause harm is imprisonment for 13 years and for damaging property, it is 10 years.
I will fix one sentence to cover both of your crimes. You will each be sentenced to imprisonment for four years. I fix non-parole periods of two years.
Your overall conduct was simply too serious to allow for good reason to suspend your sentences to be found.[32]
[My emphasis]
[32] Ibid, page 53-55.
The Applicant (and his co-accused) appealed against the sentence imposed. The appeal came before the South Australian Court of Criminal Appeal in 2012. For all intents and purposes, the sentences of the Applicant (and his co-accused) were not disturbed to any significant extent. The Court of Criminal Appeal delivered the following decision:
“Having heard submissions from both counsel we are satisfied that the judge erred in failing to make allowance for the time spent in custody. There is no dispute about the fact of the error as between counsel for the DPP and for [the Applicant] nor, as we understand it, any dispute about the calculations.
In our opinion the sentence that the judge imposed, subject to the reductions, was an appropriate sentence.
In resentencing we consider that we should start from the same sentence as that which the judge imposed.
It is appropriate [the Applicant] and his co-offender each receive the same sentence and there is no real criticism of the figure from which the judge started.”[33]
[My emphasis]
[33] Ibid, page 56.
In January 2015, the Applicant was sentenced to a head custodial term of imprisonment of four years and eight months with a non-parole period of three years and six months. He was convicted of (1) Blackmail (aggravated offence); (2) False imprisonment; and (3) Intentionally cause harm – aggravated offence – other. An initial point to note is that the Applicant had two co-accused in the commission of these offences. They consisted of a “Mr RFD” and the abovementioned now-deceased brother of the Applicant, specifically, Brother MO.
The Applicant (and his two co-accused) came before a South Australia District Court Judge who, in respect of the Applicant, said the following in sentencing remarks:
“[Applicant] you are before the court for sentence on charges of false imprisonment, aggravated causing harm with the intent to cause harm and aggravated blackmail. The maximum penalty for false imprisonment is at large, it is 13 years for the aggravated harm offence and 20 years for the aggravated blackmail. The elements of aggravation come about by committing the harm offence in the company of your brother [Brother MO] and because the blackmail was committed in conjunction with [Mr RFD].
The background to these offences is that you arranged to meet a man with whom you had been imprisoned at a house occupied by [Mr RFD] in Devon Park. He came with his girlfriend who remained outside in their car. You had understood [Mr RFD] was in poor health. Inside the house he was assaulted by [Mr RFD] in the course of an argument, an argument over money he owed you and money you owed [Mr RFD]. Two weeks earlier you lent this man some money you had saved and which he had not repaid. Afterwards you forced him into a vehicle parked in the driveway. You sat in the rear seat and repeatedly assaulted him with an iron bar whilst the car was driven away by [Brother MO]. This constitutes the aggravated causing harm charge.
He was forced to telephone his girlfriend, then to write notes relinquishing ownership of his vehicles, under threat. He was detained in the vehicle for approximately three hours. This constitutes the charge of false imprisonment and the demands for relinquishing ownership of his cars and a motorcycle constitutes the charge of blackmail.
You have heard the statements of the victim demonstrating just how psychologically and physically damaging these events were. You later insisted on some security so he produced a document of ownership relating to the car which you did not consider to be sufficient. You were keen to obtain the money back because you acknowledged owing a relatively small amount of money to [Mr RFD] whom you wanted to assist in difficult times and you also wanted it for pressing family reasons.
After he continued to make excuses, you resolved to use violence and the threats and blackmail, a course of events very much developing on your own initiative. You committed these offences out of a misplaced sense of obligation as the eldest male of a family of six for whom you considered yourself to be responsible. The case against you in relation to the blackmail charge is that you were part of an initial enterprise with [Mr RFD] but that you went well beyond the scope of the common understanding in doing the things that later occurred.
You are now 27, having arrived in Australia at the age of 19 leaving a situation of great emotional trauma behind in Iran. You obtained work as an apprentice in air conditioning and later as a tiler’s labourer but became redundant during the GFC. There is testimonial material before the court speaking of the positive sides of your personality. You are assessed as highly emotionally unstable and suffering from post-traumatic stress disorder. You fell into a loose end and got yourself involved with undesirable company and the abuse of alcohol and marijuana.
You have been in custody since your arrest on 4 March 2013, two months and 17 days of which you served as an unserved portion of an earlier sentence. That sentence was related to an aggravated offence of causing harm, so that you have effectively been in custody on these present charges, custody you have found to be very difficult, since […] May 2013.
In all the circumstances, it is appropriate to impose one single sentence for all three offences. The head sentence will be five years and six months imprisonment. That will be reduced by 10 months, or about 15%, to four years and eight months on account of your pleas of guilty on 12 May 2014, on slightly lesser charges.
When it comes to fixing the appropriate non-parole period there is a strong need to maintain a significant degree of personal deterrence given your antecedents so that a non-parole period of three years and six months is set. It is plainly inappropriate to suspend the sentence which is to commence from […] May 2013.”[34]
[My emphasis]
[34] Ibid, page 58-59.
The Applicant’s remaining offences
First, during cross-examination, the Applicant was taken to his conviction of October 2010 for “Fail to comply with bail agreement (4)”. He recalled that conviction relating to those four breaches. He also confirmed that he understood that one of the conditions of his bail during that period was that he had to reside at a particular address and that he was not allowed to leave that address without approval from his Community Corrections Officer. He further agreed that, without permission of that Officer, he attended his girlfriend’s house during that period.[35]
[35] Transcript, page 79, lines 36-47; page 80, lines 1-7.
With further reference to these breach of bail offences, the Applicant was asked whether he knew that by visiting his girlfriend’s house at this time was conduct that constituted a breach of his bail conditions. Rather unconvincingly, he said the following in cross-examination:
“APPLICANT: I didn’t have any understanding of it at that time. I didn’t know anything about the rules of the law or anything, you know. So, I was working at those times as well, you know, and on the way - my girlfriend was living on my way to my work when I was working, which was in the meat factory, you know. So, and – at the end of the day they said where did you go from here. I said well I went to see my girlfriend. I told him the truth because I – yes. I didn’t – like, back then I didn’t know much about it, like you shouldn’t do this, you shouldn’t do that. I didn’t know that. They didn’t explain to me properly that, you know – that if I have a pass to go to work and I find the way to work I can’t go see my girlfriend because – yes. I didn’t think anything was wrong was it.
MS COLEMAN: Well, I suggest to you, [the Applicant], that you did know that that was a breach of your bail conditions?
APPLICANT: All right.
MS COLEMAN: Do you agree with that?
APPLICANT: I don’t agree with that, but if you say so.”[36]
[36] Ibid, page 80, lines 9-31.
Second, in cross-examination, the Applicant was taken to his conviction of a South Australian Magistrates Court in December 2010 for “Drive under disqualification or suspension”. Notably, the Applicant committed this offence on 23 March 2010 which was the very next day after his abovementioned offending at the Arndale Centrelink carpark. When questioned about commission of this offence, the Applicant responded that he was not aware of his disqualification from driving. Further, he propounded a position of not being sufficiently fluent in English to understand that he had actually signed an acknowledgement of disqualification document on 18 February 2010 wherein he duly acknowledged the subject disqualification. His unconvincing evidence in cross-examination emerged thus:
“MS COLEMAN: And those offences were committed on 22 March 2010. I’ll take you now to a series of offences that were committed the next day, on 23 March 2010. The first was drive under disqualification?
APPLICANT: Yes.
MS COLEMAN: And you knew, didn’t you, as at 23 March 2010 that you’d been disqualified from driving?
APPLICANT: No. I didn’t.
MS COLEMAN: Well, do you recall on 18 February 2010 that you attended a Transport South Australia customer service office?
APPLICANT: Yes.
MS COLEMAN: And do you recall that on that occasion you signed an acknowledgement of disqualification?
APPLICANT: Yes. I did. But at the same time again at that time I couldn’t really speak a – or I could speak only a few words of English, you know. So, I don’t know what I signed. There was no interpreter. There was no-one to tell me how – what has been written or anything. I was just, you know – they said that they write – they sent a letter to my family’s house that my licence was disqualified but I wasn’t picking up my – like my mum’s house. Like, I wouldn’t go there often, you know. So, then I didn’t see any papers or anything, you know, that indicates that I’ve actually lost my licence.
MS COLEMAN: So, is your evidence that you signed a document but you didn’t know what you were signing?
APPLICANT: Yes.”[37]
[37] Ibid, page 78, lines 18-47; page 79, line 1.
Third, the Applicant was, during cross-examination, taken to his respective convictions of June 2012 at an South Australian Magistrates Court on respective counts of (1) “Carry offensive weapon”; and (2) “State false personal detail”. He recalled committing these offences but gave both an illogical and unconvincing response to why he did so. This is how his evidence emerged in cross-examination:
“MS COLEMAN: And you’ll recall that you were also charged with offences of carry offensive weapon and state personal – state false personal detail?
APPLICANT: Yes.
MS COLEMAN: And you agree, don’t you, that when you were confronted by police on three occasions in relation to those offences you gave a false name to the police?
APPLICANT: Yes.
MS COLEMAN: And do you agree that in providing that false name to the police you were seeking to avoid responsibility for your actions?
APPLICANT: No. I wasn’t. But the thing is that at that time I have not seen the way that the police arresting people and – like, I was afraid. I was actually – the only reason I did it because I was scared. I thought what are they going to do to me, you know.
MS COLEMAN: So, if you were scared about what they were going to do to you why did you give, was it your brother’s details that you gave to the police?
APPLICANT: Yes.
MS COLEMAN: So, why did you give your brother’s details if you were scared about what the police were going to do?
APPLICANT: Because they told me they looking for [the Applicant], so I said I’m not him because I was scared. They have all the guns drawn. There was cars after cars from everywhere. I was scared.”
Fourth, there are the three offences in the criminal history for which the Applicant was dealt with at a South Australian Magistrates Court in December 2011. He was not asked about these offences during cross examination in the hearing before me. He was, however, taken to those offences at the earlier ventilation of this matter in this Tribunal. In particular, he was taken to the relevant South Australian Police Apprehension Report which reads thus:
“***BRIEF OVERVIEW***
COUNT 1
At about 3.30 a.m. on 17/10/09 the victim in this matter was at Isobar nightclub when he was assaulted by three males including the accused in this matter. Accused punched victim and then when victim fell to the ground kicked him. As a result of this assault, victim required treatment at Royal Adelaide Hospital for bruising and concussion.
COUNT 2
As a result of the assault that occurred in Count 1 a fight started in Hindley Street that involved numerous persons. This accused seen on video footage as an active person in the fight punching and kicking people in company with other males. In total approximately 10 people involved in the affray with up to 40 people standing around watching it.
COUNT 3
At about 5.17 a.m. the victim in this matter was walking with a friend along Hindley Street. The accused in this matter, walking in a group of six approached from the opposite direction and as the accused walk past victim he punched the victim to the face causing cuts to victims upper and lower lips.”[38]
[38] R2, p 673.
During the previous hearing in this Tribunal, the Applicant was asked to read the abovementioned paragraphs from the Police Apprehension Report.[39] As best as I understood the transcript from that previous hearing, the Applicant’s representative sought to raise an objection about the Applicant being asked questions about these three convictions because of an apparent absence of a summons to the South Australian Magistrates Court for the purpose of obtaining any sentencing remarks relating to these three convictions.[40]
[39] R2, p 970, lines 20-45 and p 971, lines 1-2.
[40] Ibid, p 971, lines 4-46 and p 972, lines 1-4
It would appear that no questions were put to the Applicant about these offences at the previous hearing. In the final analysis, it is, to my mind, safe to find that the Applicant does not cavil with these convictions because during his evidence in chief, he readily accepted that the abovementioned criminal history appearing in the material accurately represented his criminal history in Australia and that the offences appearing in that history are true and correct.[41]
[41] See generally, Transcript, p 18, lines 15-44.
Fifth, the final remaining offence in the criminal history refers to a conviction for “Commit assault that causes harm – aggravated other – no weapon” for which the Applicant was dealt with at a South Australian Magistrates Court in December 2010. As best as I understood the Transcript from the hearing before me, the Applicant was not asked any questions about this offence in either cross examination or evidence in chief. The position seems to be the same upon a review of the Transcript from the previous ventilation of this matter in this Tribunal. With this offence, it would be safe to make a similar finding about the Applicant’s acceptance of this offence on the same basis as I have done in the immediately preceding paragraph.
Summary of the Applicant’s Evidence with particular reference to the relevant paragraphs at 8.1.1(1) of the Direction
I thought it pertinent that prior to any application of the paragraphs at 8.1.1(1) of the Direction to the instant facts, it would be helpful to review the Applicant’s evidence referrable to the content of, or inquiry compelled by, those relevant paragraphs of 8.1.1(1). During his evidence in chief, the Applicant was taken to his criminal history. After reading through his criminal history, the Applicant (1) accepted the correctness and accuracy of the criminal history; (2) accepted that considered in totality, his conduct involves very serious criminal offending; and (3) he readily agreed that his criminal offending has increased in seriousness from when it commenced:
“DR DONNELLY: Can I get you to go to page 52, looking at the numbers on the bottom in black bold on the left-hand side bottom, left-hand side you’ll see number 52. It’s a copy of your criminal record check?
APPLICANT: Yes.
DR DONNELLY: Do you have a copy of that?
APPLICANT: Yes.
DR DONNELLY: And can I get you to turn over the page, [the Applicant], page 53 and you’ll see that the final entry there dated […] October 2010 fail to appear with bail agreement. Do you see that?
…
APPLICANT: Yes.
DR DONNELLY: I’m just going to start with the final entry at the bottom, […] October 2010 which is fail to appear with bail agreement. Do you see that?
APPLICANT: Yes.
DR DONNELLY: Now, before I ask you any questions I just want you to have a look at all of those entries if you can. Just read that if you can?
APPLICANT: Yes.
…
DR DONNELLY: Have you looked at all of that?
APPLICANT: Yes.
DR DONNELLY: And, so do you accept that that represents your criminal history in Australia, what you’ve just read?
APPLICANT: Yes. But - - -
DR DONNELLY: Sorry, just - before I ask you anymore questions, those offences that are listed on page 53 that you read, do you agree that they are true and correct?
APPLICANT: Yes.
DR DONNELLY: Thank you. And do you also accept having a look at those offences considered in totality that’s a very serious criminal offending?
APPLICANT: Yes.
DR DONNELLY: And do you accept that your criminal offending has increased from when you first came to Australia?
APPLICANT: Yes. It did. Yes.”[42]
[42] Transcript, p 17, lines 18-30; p 18, lines 1-13, lines 31-47; and p 19, lines 1-7.
Also in evidence in chief, the Applicant was asked about his perspective on his history of criminally offending in Australia. This is what transpired between himself and his representative:
“DR DONNELLY: Having a look at those offences now, as in on 28 June 2022, what’s your perspective on your criminal history in Australia, your whole criminal history? What’s your perspective?
APPLICANT: Well, what I said, I’m very very ashamed and very, how do I say it, I just can’t believe that I’ve done all those things, you know, and I wish – I wish I could turn the time back and go back and do everything – I wouldn’t do these things if I could turn time back and go again, you know.”[43]
[43] Ibid, p 19, lines 9-16.
These concessions were helpfully repeated by the Applicant’s representative during closing submissions:
“Can I turn first to clause 8 of Ministerial Direction 90, and the first primary consideration for the tribunal to consider, being of course protection of the Australian community. Turning to the first facet of that, being the nature and seriousness of conduct, and just to take the tribunal through some aspects of the evidence relevant to this aspect of the first primary consideration. The tribunal will note that the applicant agreed that the contents of the criminal record document, which I put to him in examination-in-chief. He accepted that that was true and correct. He also accepted and conceded, consistent with the written material, that he’s engaged in various criminal offending in Australia.
He also accepted that his offending has increased since first coming to Australia, both in examination-in-chief when asked by me, and when put to him in cross-examination. He’s accepted independent of his criminal record itself, particularly in cross-examination, that he took illegal substances in the Australian community, those drugs of course being ecstasy, cocaine and cannabis, and that was really teased out in cross-examination by my learned friend.
He also accepted in cross-examination that he had been engaged in a number of fights, particularly in the custodial environment in prison. He also accepted that particularly in the early years of his period in immigration detention that he had been involved in a number of both verbal and physical aggression, and of course those matters are all relevant to the nature and the seriousness of the applicant’s offending, as the tribunal of course is aware, not limited to criminal convictions.”[44]
[44] Ibid, p 195, lines 18-43.
When questioned about his offending during cross-examination, the Applicant accepted (1) that some of his offending was committed while on parole for previous offences; (2) that some of his offending was not the result of his abuse of alcohol or illicit drugs; (3) that his criminal offending has increased in seriousness since its commencement; and (4) that his offending was not gang related. This is what transpired between the Applicant and the Respondent’s representative:
“MS COLEMAN: I’d like to ask you now about the February 2013 offences, and in February 2013 you were nearly 26 years-old?
APPLICANT: Yes.
MS COLEMAN: And you were on parole at that time for your previous offences and your previous gaol term?
APPLICANT: Yes.
MS COLEMAN: And you knew, didn’t you, that while you were on parole you had to be of good behaviour?
APPLICANT: Yes.MS COLEMAN: And you’ve said that you weren’t using any drugs at the time of this offence. Is that still your evidence?
APPLICANT: Yes.
MS COLEMAN: And you were just very angry and under a lot of pressure at the time?
APPLICANT: Yes.
MS COLEMAN: And you also said that you recall just losing it. Is that right?
APPLICANT: Well, not – not until – I wasn’t like getting angry or anything when I was working and stuff but I got angry when I actually lent this guy, like, $10,000 when he lied to me telling me that he’s going to give it back to me in two weeks but then he could just disappear. That’s the, you know, reason I got really angry, you know. I’ll admit that I made a mistake, you know. I shouldn’t have even trusted the guy and given him the money but it’s human being, I got greedy. I thought, you know, I wanted five more extra thousand dollars to – so I can give it to my mum so she can spend it, you know, so - - -
MS COLEMAN: And you agree, don’t you, that these offences in February 2013 were not caused by the influence of drugs?
APPLICANT: Yes.
MS COLEMAN: And they weren’t caused by the influence of alcohol?
APPLICANT: Yes.
MS COLEMAN: And, on your account, they weren’t gang-related. That’s right, isn’t it?
APPLICANT: Yes
MS COLEMAN: You gave evidence this morning that you accept that your criminal offending has increased since you arrived in Australia. Do you remember giving that evidence?
WITNESS: YesMS APPLICANT: And just so that I’m clear you accept now, don’t you, that your offending has increased in its seriousness over time?
APPLICANT: Well, look how many years it’s been since 2013? It’s almost nine years now. I have not committed any sorts of that – that seriousness while I was in gaol or in detention centre, you know.
…MS COLEMAN: If I can just ask you then to focus your attention on the offences that you committed between 2009 and 2013, do you accept that your offending during that period increased in its seriousness over time?
APPLICANT: Well, I do. I do believe that. Yes. It did. But it has – it stopped. It’s not like, it didn’t – you know, I didn’t have – I don’t have any other like criminal charges any more after that, have I?”[45]
[45] Ibid, p 80, lines 20-46; p 81, lines 1-45; and p 82, lines 1-3, lines 19-25.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The nature and seriousness of the non-citizen conduct to date
It is plain from the material, including both the Applicant’s oral evidence together with written and oral submissions put on his behalf, that although his history may not be long in terms of the number of offences committed or the period of the criminal history itself, there is no doubting its level of seriousness. It is offending that has involved a total lack of respect for the lawful authority governing the rights of people in the community to go about their business knowing they are safe or that property they own is safe from damage or destruction by others. I will now apply the relevant paragraphs appearing in paragraphs 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(a)(i)
This paragraph addresses the commission of violent and/or sexual crime. The Direction provides that if an Applicant has committed such offences, then such conduct must be viewed “very seriously” by the Australian government and the Australian community. The Applicant’s convictions in January 2015 (before a South Australian District Court) and in January 2012 (also before a South Australian District Court) plainly and obviously involve convictions for crimes of violence. The offending against the victims at the Centrelink carpark was both premeditated and very violent. The offending against the debtor from whom the Applicant was trying to collect money was intentionally designed to inflict both psychological and physical harm as a means of extracting funds from the victim.
There can be little or nothing to cavil with the proposition (which will be my finding) that the Applicant’s history is replete with convictions for crimes of violence falling squarely within the ambit of this paragraph 8.1.1(1)(a)(i). I accordingly find that this aspect of the Applicant’s offending in Australia has been very serious.
Paragraphs 8.1.1(1)(a)(ii) and (iii)
There is no reference to any conviction for a crime of violence against women or children. Likewise, the Applicant has no convictions for acts of family violence nor is there any reference in the material to an act of family violence committed by the Applicant which may have been investigated or looked into by intervening police but in respect of which no further action was taken. Accordingly, both of these paragraphs 8.1.1(1)(a)(ii) and (iii) have no application to the instant facts and do not speak to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(i)
None of the Applicant’s unlawful (or other) conduct in Australia points to any conviction for an offence in the realm of causing a person to enter into, or become a party to, a forced, marriage. This paragraph 8.1.1(1(b)(i) of the Direction is not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(b)(ii)
This paragraph involves itself with the commission of any offence against people described as “vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials…in the performance of their duties”. To my mind, a decision-maker should approach the application of this paragraph with a degree of caution. First, it is not a difficult exercise to ascertain whether any of the Applicant’s victims were elderly, disabled or otherwise physically vulnerable. He has no convictions for offending against such people. Second, it is important to differentiate between, for example, a failure to meet an obligation with an actual offence committed against a government representative or official (most commonly, police officers).
Here, the Applicant has failed – it would appear on four occasions – to meet the obligations of a bail agreement. He has also stated false personal details to police officers enquiring about his identity. His failure to meet his bail obligations is, to my mind, a matter between the Applicant and the legislation from which the subject bail agreement derives. His failure to tell police his correct name is not a refusal to comply with a lawful direction from a government representative or official. He did comply with that direction but he did so dishonestly.
Accordingly, it would not be safe to draw either of these two convictions from the Applicant’s criminal history and to cause them to be placed within the ambit of this paragraph 8.1.1(1)(b)(ii). It is not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(b)(iii)
With specific reference to paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the language in “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision maker’s opinion (for example, section 501(6)(c)”. In this application, the Applicant fails the character test as a matter of law due to the operative effect of s 501(7)(c) of the Act. Accordingly, it is not necessary to traverse this paragraph in determining the instant application.
Paragraph 8.1.1(1)(b)(iv)
This paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. I focus specifically on the word “crime” as none of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention. In the SFIC filed on behalf of the Respondent, there is a helpful summary of the Applicant’s conduct while in criminal custody. It is expressed thus:
“Behaviour in custody
[55] The Applicant’s general conduct since his last criminal offending is relevant to the Tribunal’s consideration of the protection of the Australian community, including by reason of the period of approximately 9 years that has transpired since the last offences were committed in February 2013.
[56] As already outlined, the Applicant has been in custody since March 2013 and in immigration detention since January 2018. Records maintained by the Department for Correctional Services note the following incidents during that period:
(a) In September 2013, the Applicant assaulted a prisoner causing coffee burns to his wrist;
(b) In March 2014, the Applicant was observed on camera assaulting another prisoner;
(c) In July 2014, the Applicant assaulted another prisoner;
(d) In August 2014, the Applicant was reported to be standing over prisoners for their canteen buys and physically stopping them from using the phone system;
(e) In April 2015, the Applicant was investigated for an assault on another prisoner;
(f) In November 2015, the Applicant was suspected of being involved in an assault on another prisoner;
(g) In December 2015, the Applicant was captured on video footage assaulting another prisoner;
(h) In February 2016, the Applicant was accused of sexually and physically assaulting another prisoner;
(i) In September 2016, the Department for Correctional Services observed that the Applicant had been reported twice within a week as orchestrating assaults in prison; and
(j) In April 2017, the Applicant was served with a Notice of Charge for “consume drug of dependence”.”[46]
[Internal citations omitted]
[46] R3, pages 15-16, paras [55] and [56].
There are two difficulties with relying on the abovementioned incidents as a basis for reliably utilising this paragraph 8.1.1(1)(b)(iv) of the Direction as a means of assessing the nature and seriousness of the Applicant’s conduct. First, none of it resulted in any conviction. Second, it is not conduct committed “…while the non-citizen was in immigration detention”.
Further in the Respondent’s SFIC, there is reference to the Applicant’s “non-compliant and anti-social behaviour” after his placement into immigration detention in January 2018. It is expressed thus:
“[60] Allegations in relation to the Applicant’s non-compliant and anti-social behaviour continued after the Applicant entered immigration detention in January 2018, following which the Applicant has been involved in alleged incidents of assault, physical and verbal abuse, possession of contraband and substance abuse. In one such incident, the Applicant was found in possession of Suboxone. He was asked by staff to hand over the drugs, and instead he put them in his mouth. The Applicant reported that he told officers that it was ice “to worry them”. The Applicant has not taken any responsibility for his conduct in immigration detention and nor has he demonstrated either insight or remorse in respect of that conduct, instead stating he was “never charged in relation to any of these alleged incidents and have not been found guilty of any offence”. Those statements reflect poorly on the Applicant’s capacity to accept responsibility for his actions and to rehabilitate himself in the future so as to minimise the risk that he poses to the Australian community.”[47]
[Internal citations omitted]
[47] Ibid, p 16, para [60].
During his evidence in cross-examination, the Applicant did not cavil with the nature and extent of his conduct in both prison and criminal custody:
“MS COLEMAN: I’d like to ask you now about your behaviour during that time; that is during your time in prison and subsequently in immigration detention. Turning first to your time in prison, and this is looking at the period between 2010 and 2018. It’s right, isn’t it, that you were involved in a number of physical altercations during that time, or a number of fights?
APPLICANT: Yes. Yes. I was
MS COLEMAN: And you agree that you assaulted other prisoners during that time?
APPLICANT: Yes. I did
MS COLEMAN: And life has, during the period that you were in immigration detention – so this is looking at January 2018 onwards – you agree you’ve been involved in a series of – while in immigration detention?
APPLICANT: Sorry. I didn’t – I didn’t get the question
MS COLEMAN: Well, let me repeat that for you. I was just asking about the time that you’ve been in immigration detention, so this is January 2018 onwards, and you agree that during that period you’ve also been involved in a number of incidents in immigration detention involving verbal aggression?
APPLICANT: Yes
MS COLEMAN: And also physical aggression?
APPLICANT: Yes.”[48]
[48] Transcript, p 82, lines 33-47 and p 83, lines 1-13.
While there have been incidents arising from the Applicant’s non-compliant and anti-social behaviour in both prison and immigration detention and while the Applicant may readily accept responsibility for such conduct, none of it resulted in the commission of “a crime” committed while the Applicant was in immigration detention or in any of the other paradigms contemplated by this paragraph 8.1.1(1)(b)(iv). It is not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(c)
This paragraph precludes sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[49] (2) acts of family violence;[50] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[51] The Applicant has no convictions involving conduct described in any of these three categories.
[49] Direction No 90, para [8.1.1(1)(a)(ii)].
[50] Ibid, para [8.1.1(1)(a)(iii)].
[51] Ibid, para [8.1.1(1)(b)(i)].
But that is not the end of the enquiry. I am required to take into account “the sentence(s) imposed by the courts” for the crimes of this Applicant. Although the offending history is relatively short, both in a temporal and quantitative sense, the offences he has received for five of his 13 offences are very significant and, to my mind, squarely engage the auspices of this paragraph 8.1.1(1)(c). His other sentencing was, respectively, punished with the following sentences:
·October 2010 “Convicted Discharged without penalty”;
·December 2010 “Convicted Fined $200”;
·December 2010 “Convicted Good behaviour bond $100, 2 years”;
·December 2011 “Convicted”;
·June 2012 “Convicted Discharged without penalty”
However, the nature of the sentences imposed on this Applicant exponentially increased at his respective sentencing episodes on:
·April 2012 where he was sentenced to “2 years 9 months imprisonment, Non parole period 9 months from 6/12/11”; and
·January 2015 where he was sentenced to “4 years 8 months imprisonment, Non parole period 3 years 6 months”
The extent of any sentence imposed upon an offender is a reliable indication of the sentencing judicial officer’s objective impression of the nature and seriousness of the conduct being punished. The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.
It would be incorrect to say that this Applicant has experienced a necessarily broad range of sentences. His criminal history is, to some extent, unique because its sentencing pattern seems to be grounded in two extremes. His offending was punished by either relatively unremarkable sentences involving his conviction and discharge without further penalty (or with a fine or bond) or, taken to the other extreme, by sentencing involving the imposition of multiple years in actual custody. While his criminal offending only ran from 2009 to 2013, it attracted the imposition of head custodial sentences in the order of 7-8 years.
It is therefore safe to find that the sentences imposed by the courts for the crimes of this Applicant across the four-year history of that offending are militative of a finding that his unlawful conduct in Australia has been of a very serious nature.
Paragraph 8.1.1(1)(d)
This paragraph deals with two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, the Applicant readily conceded, both in his evidence in chief and in cross-examination that his offending has been of a frequent nature. A similar concession has been made by the Respondent’s representatives during closing submissions.[52] He committed 13 offences across an offending period running barely four years from 2009-2013. This constitutes the commission of over three offences per annum. The offending must be surely found to be frequent.
[52] See Transcript, p 159, lines 29-31.
Second, the Applicant has also accepted the reality of a trajectory of increasing seriousness across his offending history. As mentioned, the history is relatively short, both temporally and quantitatively. It contains two distinct evolutions. The offending punished at sentencing hearings in October 2010 through to April 2012 ranged from breaches of bail, driving while disqualified or suspended and relatively low-level assault offences to the very serious and violent offending at the Arndale Centrelink carpark that was punished by a head custodial term of two years and nine months by a South Australian District Court in January 2012.
The next evolution in the trajectory of increasing seriousness can be seen when comparing the offences punished in January 2015 by a South Australian District Court involving “Blackmail (aggravated offence), False imprisonment” and “Intentionally cause harm – aggravated offence – other”. This offending was punished by a head custodial of four years and eight months and was, to my mind, significantly more serious than the Applicant’s unlawful conduct committed at the Arndale Centrelink carpark.
I am therefore satisfied that this Applicant’s offending has been of a frequent nature. I am further satisfied that taking into account the two evolutionary phases of the offending, a trend of increasing seriousness in its commission can be readily detected. I thus conclude that both elements of this particular paragraph 8.1.1(1)(d) are strongly militative of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(e)
This paragraph compels an enquiry into any discernible cumulative effect(s) of the Applicant’s repeated offending. While not necessarily long in either temporal or quantitative terms, I am of the view that the Applicant’s offending does betray several cumulative effects. First, whether it is due to his involvement with a Criminal Gang[53] or whether it stems from the Applicant himself, the Applicant’s pattern of offending represents a blatant challenge to, and an obvious disregard of, the confines of lawful authority governing the community back into which he now seeks re-admission. While he attributes his failure to meet the requirements of bail to an apparent lack of proficiency in English, I find it very difficult to accept that the relevant Corrective Services Officer did not make it plain and clear to the Applicant that he, for example, should not do certain things while on bail and, by way of further example, that he was required to be at a certain place at a certain time in order to meet the terms of the bail.
[53] Note to reader: to protect the Applicant’s identity, I have removed the actual name of the specific criminal gang with which the Applicant was affiliated. Instead, I will refer to this gang as the “Criminal Gang”.
The Applicant has refused to accept the requirements of lawful authority compelling him to do certain things and take certain steps in order to be under lawful control of a motor vehicle on Australian carriageways. He has similarly ignored the compulsions of lawful authority by very seriously interfering with the personal rights of other people in the community, with whom he may have had certain differences or in respect of whom he wanted to make a point or make his feelings known. Taken in its totality, the offending pattern is indicative of an offender who simply does not care about the legal consequences of dealing with someone, or otherwise doing something, in an unlawful way.
Second, although the offending history is temporally and quantitively limited, it is plain from the sequence of sentences imposed on him, that the Applicant has abjectly failed to experience any deterrent or dissuading effect from those sentences. His first five offences saw convictions recorded but also saw him either discharged without penalty and/or fined with, on one occasion, the imposition of a bond. He took nothing from these non-custodial and quite lenient punishment and, instead, went on to commit the very serious conduct in the Arndale Centrelink carpark. For this conduct, he received a head sentence of two years and nine months in January 2012.
One would have thought the Applicant may have taken some measure of warning from this significant custodial term but, on the contrary, went on to commit the even more serious offences of “Blackmail (aggravated offence), False imprisonment” and “Intentionally cause harm – aggravated offence – other”. For these offences, he received a head custodial term of four years and eight months.
Third, the nature and extent of the Applicant’s offending has given rise to significant questions about the extent to which he may now have overcome his previous inclination to abuse both alcohol and illicit substances, particularly when faced with some type of life stressor or stricture. On his own evidence, he speaks of becoming involved in criminal offending at or about the time he lost his lawful employment in 2009 as a result of the global financial crisis. While I will discuss the Applicant’s past difficulties with illicit drugs and alcohol later in these Reasons in relation to assessment of his recidivist risk, it suffices to say that he has admitted to returning positive drug tests while in criminal custody[54] and that he otherwise continued to use drugs while he was in prison.[55] He now says he has not taken any drugs during his time in immigration detention which commenced in January 2018.[56]
[54] See generally, Transcript, p 72, lines 20-40.
[55] Ibid, p 73, lines 1-17.
[56] Ibid, p 73, lines 24-29.
Fourth, this Applicant’s offending is of a such a level of seriousness that it has, well and truly, consumed more than its fair share of the community’s policing and judicial sentencing resources. It does not take all that much of a detailed review of the material to apprehend that the Applicant was squarely in the sights of law enforcement authorities as a result of his demonstrated attachment to the Criminal Gang. In a similar vein, the Applicant’s offending has also consumed an inordinate share of the community’s healthcare resources. There were at least two victims in his offending committed at the Arndale Centrelink carpark. There was at least one victim involved in the Applicant’s attempts to extract repayment of monies loaned to the person in respect of whom the Applicant committed the offences of “Blackmail (aggravated offence), False imprisonment” and “Intentionally cause harm – aggravated offence – other”.
I am of the view that the abovementioned cumulative effects of this Applicant’s repeated offending do militate in favour of finding that his offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(f)
This paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. I have earlier referred to the Applicant’s conviction (on 20 June 2012) for the offence of “State false personal detail”. This was, of course, conduct deliberately designed to mislead the enquiring party about his identity. It was both false and misleading.
However, it was not conduct involving the provision of false or misleading information “to the Department.” It was not, as is most usually seen in these types of applications, conduct involving a failure to disclose a history of prior criminal offending on an incoming passenger card, for example. I have checked the material and cannot locate any reference to the Applicant travelling out of Australia since the time of his initial arrival in 2006. Further, there is nothing before the Tribunal to indicate the Applicant has provided false or misleading information to the Department on any other issue.
As best as I understood the material, neither side propounds the application of this paragraph 8.1.1(1)(f). It is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph compels an enquiry into whether or not the Applicant has re-offended since being formally warned about the consequences of further offending on his visa status to remain in Australia. There is nothing before the Tribunal consisting of any document purporting to be a notice from the Respondent’s Department giving any indication of the adverse impact of further offending on the Applicant’s visa status.
Of course, the Applicant underwent a process of mandatory cancellation of his visa, but this was during the period September 2016 until December 2018. He has been removed from the community on a continuous basis from 2013 until the end of 2017 (in criminal custody) and then from January 2018 to the present time (in immigration detention). Thus, while the previous mandatory cancellation process could now be regarded as “a warning” to the Applicant, two things must be said about it.
First, he was ultimately unsuccessful in that mandatory cancellation process and he was compelled to apply for a protection visa to prevent his removal. Second, even though the applicant has been continually removed from the community post-September 2018, he has not committed any offences in either criminal custody or immigration detention.
Therefore, this paragraph 8.1.1(1)(g) cannot be safely applied to the instant facts and cannot be utilised in any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Conclusion about the nature and seriousness of the Applicant’s conduct
Sister ZE provided oral and written evidence for the instant hearing. In her statutory declaration made on 22 March 2020, she speaks of not being able to work because “…I have to take care of my mother as she is pensioner [sic] due to severe depression. Her depression is linked to [the Applicant’s imprisonment].”[211] In her written statement, she says that in terms of the impact on her and the broader family in the event of the Applicant’s removal:
[211] A3, p 51.
“[37] I confirm that my mother’s condition will be uncontrollable if [the Applicant] is deported to Afghanistan. It will be a trigger for her since my dad has passed away [The Applicant] has been beside my mother to help her raise us and do everything to provide for us. We have never felt like we didn’t have a dad.
[38] My whole family has put a pause into enjoying our life and [the Applicant] being deported will leave the family heartbroken. It will be a big loss to the family.
[39] I will personally be distraught beyond words would explain if [the Applicant] was to be deported. The bond I have with my brother is so strong it would break my heart if anything happens to him. I have been impacted by [the Applicant’s] imprisonment so much I would love for my family to be together one day I have experienced a childhood without a father which was very painful I do not want my brother that raised me like a father to be taken away from me. It is my biggest dream to see him get married and have a family of his own. I truly believe he is deserving of another chance. I would sincerely appreciate the member to understand what this will do to my family if he was to be deported.”[212]
[212] Ibid, p 54.
In her oral evidence, Sister ZE told the Tribunal that she has partially completed a bachelor’s degree in Social Work. She says that due to the pressure that accumulated upon the family when the two brothers died in May 2020, she ceased her substantive studies and completed a Certificate III in phlebotomy. She describes the Applicant as a “fatherly figure”[213] and that “…everything he tells me is like – it means a lot to me.”[214] She travelled from Adelaide to Western Australia to visit the Applicant in either 2018 or 2019. This is what she said when asked about the impact on her in the event of the Applicant’s removal:
[213] Transcript, p 94, line 26.
[214] Ibid, line 30.
“DR DONNELLY: All right. And just the final question from me, if your brother was unable to get his protection visa in Australia, how would that make you feel?
SISTER ZE: Honestly like I’m not even exaggerating, it will break me because I - like I can’t imagine my brother being away from us. He’s already been away for so many years. It just - it’s like - it breaks my heart. I - I can’t - like I can’t comprehend him not being with us.”[215]
[215] Transcript, p 97, line 18-23.
Sister ZE had clearly been adversely impacted by the Applicant’s absence from the family unit. This has exacerbated since the death of the two brothers in May 2020. Sister ZE has had to step up into a more involved “family-care” type role for the family given the Applicant’s physical absence. This has precluded her from completing her bachelor’s degree in Social Work. I am satisfied the Applicant has very close and strong ties with Sister ZE for whom he has acted, and continues to act, as a mentor. There is no doubting that she would be devastated were he to be permanently removed from Australia. I am satisfied of the very strong nature and duration of ties between the Applicant and Sister ZE in Australia who I presume qualifies as a person within one of the categories appearing in paragraph 9.4.1(1) of the Direction.
Sister FA
As mentioned earlier, Sister FA provided both oral and written evidence to the instant hearing. In her written statement made on 20 June 2022[216] she spoke of her mother’s health issues comprising “…high blood pressure, heart issues and mental health issues.”[217] In her oral evidence, she confirmed (as I have mentioned earlier) that the Applicant and her husband (Mr YA) have a close relationship.[218] In terms of the specific impact on her in the event of the Applicant’s removal, she said the following:
[216] A3, pages 23-25.
[217] Ibid, p 23.
[218] Transcript, p 113, 32.
“DR DONNELLY: If your brother was not granted the visa, how would you feel?
INTERPRETER: I will really become upset and - until now I lost two brothers and - I lost two brothers and [the Applicant] should be with us and all these years [the Applicant] was away from us, it was really really difficult for us. When [the Applicant] is not with us, we feel lonely and we feel we have no-one else to rely on.”[219]
[219] Ibid, p 114, lines 36-43.
Also in her oral evidence, Sister FA reiterated the impact any removal of the Applicant would have on the mother:
“DR DONNELLY: Just finally, what relationship does your brother have with your mum?
INTERPRETER: I apologise. She’s really really attached to [the Applicant], she relies on [the Applicant]and because [the Applicant] was behind her as a supportive - like a mountain, like a mountain behind her and all these years [the Applicant] was away she really in contact with [the Applicant]and if [the Applicant] - if she doesn’t speak one night with [the Applicant] she doesn’t feel - she couldn’t sleep very well in that night and since [the Applicant] away her health has deteriorated and her physical as well as psychological health was impacted and now she got a heart problem and she got the blood pressure problem.”[220]
[220] Ibid, p 114, lines 45-46; and p 115, lines 1-8.
[Errors in original]
Sister FA has her own nuclear and immediate family. This is not to suggest or dispel the ties she says she has had, and will have, with the Applicant in Australia. Having regard to the totality of her evidence, I am satisfied the Applicant has a discernible strength, nature and duration of ties with Sister FA (and her husband Mr YA) who I presume qualify as people within one of the categories appearing in paragraph 9.4.1(1) of the Direction.
Ms ZA
As will be recalled, Ms ZA is the widowed sister-in-law of the Applicant who was formerly married to the Applicant’s brother MO. She did not provide oral evidence at the hearing before me, but there is a rather aged written statement from her in the material dated 7 September 2016 which, of course, pre-dates her husband’s death by some four years. Be that as it may, in this statement she nevertheless says:
“I married [the Applicant’s] brother [Brother MO] in May 2013 and arrived in Australia in February 2014. By that time [the Applicant] was in prison and I didn’t know him personally. But I have visited him twice at Port Augusta and I feel that I have come to know him and can see why his family think so highly of him.
…
[The Applicant] has a good heart. I saw that as soon as I first met him. He was open and interested, caring about me and my family, my pregnancy and our new child. I saw goodness in [the Applicant], a family man. He was like a brother.”[221]
[221] R1, p 605.
As mentioned, Ms ZA did not give oral evidence at the hearing and her abovementioned statement is now quite aged. It should be remembered that Ms ZA, by virtue of marrying the Applicant’s now-deceased brother, was and remains his sister-in-law. I am satisfied that she can be regarded as a member of his immediate family for present purposes. I have already found that the Applicant does have and will have a close bond with Child S. It logically follows that the Applicant does have, and will have, a measure of strength, nature and duration of ties to Ms ZA in Australia who I presume qualifies as a person within one of the categories appearing in paragraph 9.4.1(1) of the Direction.
Ms CA
As mentioned earlier, Ms CA provided both written and oral evidence to the instant hearing. Her most recent statement is dated 29 May 2022[222] and appears in the material. I have earlier recounted her written evidence about the committed and loving relationship she says that she and the Applicant have. I have also recounted the extent to which he and she remain in telephonic and/or electronic contact. In her written statement, she makes the following plea to the Tribunal:
[222] A2(c), pages 1-2.
“[9] I plead with the Tribunal to give my partner [the Applicant] a second chance at life in Australia. We have all had enough suffering. I continue to have daily telephone and videocalls with my partner [the Applicant]. My children often join in those calls. The nature of our calls is always warm and loving.”[223]
[223] Ibid, p 2.
In her oral evidence, Ms CA spoke of financial difficulties in sometimes making ends meet and there seems little to cavil with the proposition that, if returned to her life, the Applicant will be able to provide a range of supports for her:
“DR DONNELLY: …How would you describe your current live [sic] circumstances?
MS CA: So as in - can you just elaborate a little bit more on that one, please?
DR DONNELLY: Sure. So starting first with your financial capacity with the children and ability to take care of them?
MS CA: Obviously we struggle, sometimes it’s hard. But I do provide, you know, a roof over their head and things like that, like any mum should do for their child.
MS CA: Yes.
DR DONNELLY: So you said you struggle from time to time, can you give me some examples of why you would say that?
MS CA: So as in financially, or just…
DR DONNELLY: Whatever you - so you’ve given evidence that you struggle from time to time, and I asked you, and you can take your time before you answer this question, what makes you say that you struggle from time to time? Can you give examples of why you would say that?
MS CA: Mentally, physically, emotionally, sometimes financially.”[224]
[224] Transcript, p 125, lines 13-29.
She was asked about the impact on her in the event that the Applicant is not granted the visa he seeks and she responded thus:
“DR DONNELLY: I see. Let me ask you this question, it might sound like a silly question, but I just want you to think about it. If [the Applicant] was not granted a protection visa, particularly as a result of these proceedings, what does that mean for you?
MS CA: I’d be heartbroken, absolutely devastated, you know. Sad, grief, I’d be grieving, I guess. Yes, there’s lots of things that I would feel. I would be incomplete. You know, I think my mental health would deteriorate a lot more than what it has previously. It’s just, yes, it wouldn’t be fair. Yes.”[225]
[225] Ibid, p 126, lines 6-12.
Ms CA was asked about the extent of her contact and interaction with the Applicant’s mother and she responded thus:
“DR DONNELLY: So starting with your mother-in-law, what sort of contact do you have with your mother-in-law?
MS CA: So I go there once, twice a week, sometimes, it depends on, you know, how busy the schedule is, but I do make sure that we take some time out to at least see each other once a week, whether that be throughout a week day, a weekend.”[226]
[226] Ibid, lines 30-34.
She received a similar question about the extent of her contact with the Applicant’s three sisters, ZE, RA and FA and she responded thus:
“DR DONNELLY: Could you just describe for the tribunal what sort of relationship you have with them?
MS CA: We have a sister relationship, loving, caring. You know, we talk, we joke, you know, we do things together like with beauty. Yes, stuff like that. I go there, let the kids - yes.
DR DONNELLY: When you say you go there, where do you go?
MS CA: To my mother-in-law’s in (indistinct).
DR DONNELLY: So you see your sisters-in-law at your mother-in-law’s house?
MS CA: Yes.
DR DONNELLY: Okay?
MS CA: We’ve been for dinner and stuff too, so, yes, out for dinner and things like that.”[227]
[227] Ibid, p 126, line 46-47; and p 127, lines 1-10.
During her oral evidence Ms CA confirmed that she first met the Applicant in a social context in 2008 and that they commenced a romantic relationship at the end of 2018.[228] She also confirmed that she is Islamically married to the Applicant having undertaken a “Nikah” ceremony with him over the telephone in 2019:
[228] See generally, Transcript, p 130, lines 19-29.
“DR DONNELLY: I know you’ve given evidence the effect of which is you’re in a close and loving relationship with [the Applicant], what is the nature of the relationship? Are you engaged? Are you married? What is the position?
MS CA: So we are Islamically married. We did a nikah, back in 2019, October. So we are classed and thought of as husband and wife, yes.
…
DR DONNELLY: Nikah, what exactly is that?
MS CA: So it’s where we speak to a sheik, I think it’s called, and they, you know, basically write it up and give us, yes, so like we have - they - I’m not too sure how to explain that, sorry. Sorry.”[229]
[229] Transcript, p 128, lines 20-24 and lines 38-40.
During her evidence in chief, Ms CA was asked where the Applicant would be residing if he were released back into the community. To my mind, she gave the somewhat confusing response that “…he would be residing with me or his mum.”[230] I found this response somewhat confusing because it did not seem consistent with the evidence of a couple in a close de facto-type relationship. I sought to clarify this at the end of her evidence:
[230] Ibid, p 128, lines 10-11
“SENIOR MEMBER: - - - about the applicant’s history and maybe you want him to come out of custody and maybe go and spend some time with his mother and observe him from afar and if he works out okay then you’ll have him in your own home. Is that the kind of evidence you’re giving to the tribunal?
MS CA: No, sorry, that was not meant in that way at all. So what I had meant was that [the Applicant] would be with us but because of his mum and her deteriorating health as well, also not having her other two sons present, I would also like for [the Applicant] to spend time with them, you know, throughout the nights as well. So, you know, he can - they’ve had a lot of lost time together, so I would like them as mother and son to also be able to spend time together without, like, myself being there if that makes sense as well.
SENIOR MEMBER: Right. So your evidence to this tribunal or the impression that you want this tribunal to take from your evidence is that if the applicant is released from immigration detention - I’m just theorising here, I’m not saying it’s going to work out this way but just follow my pattern of thinking if you can and then you’ll understand the question. So if the applicant is released from immigration detention in Perth, he will fly back to Adelaide, you will go to the airport and he will run into your loving arms off the aeroplane at Adelaide Airport, and from Adelaide Airport, together you will drive to your place - I repeat, your place in Adelaide where he will put his suitcase in your bedroom and he will live there with you. Is that the impression that you want to give to the tribunal? Or, is it the case that you’ll drop him off at his mum’s place, let him live there for a bit, see how things go and then move in with - or then he moves in with you in a few months time. Which of the two is it?
MS CA: No, the first one. So he will - yes, I will meet him there, come home and drop the suitcase of.
SENIOR MEMBER: As his wife? As his wife?
MS CA: As his wife.
SENIOR MEMBER: And he comes to your home which would then be a matrimonial home, a family home. You, him, [Child K] and [Child P]. That’s what you’re asking me to understand?
MS CA: Correct. Correct, yes.”[231]
[231] Transcript, p 113, lines 35-45; and p 134, lines 1-23.
At the end of her cross-examination, I wanted to know from Ms CA whether she has ever physically been in the presence of the Applicant. The following exchange transpired between me and her:
“SENIOR MEMBER: …for all of the time of the romantic side of the relationship, you’ve never physically been with the applicant, have you? In other words, physically in his presence, not physically been with, in any other sense. Just you haven’t been in his physical presence, have you?
MS CA: No, not since starting, however I did - we visited him whilst he’s been in the detention centre but apart from that, no, not…
SENIOR MEMBER: When did you visit him in the detention centre?
MS CA: So that would have been in 2019.
SENIOR MEMBER: So after your romantic relationship started?
MS CA: Yes.
SENIOR MEMBER: Okay?
MS CA: Yes, correct. Yes, I did. We visited - we went to Western Australia to visit him. Me, [the Applicant’s] mum, my mother-in-law and my sister-in-law, yes. For five days, four to five days we stayed there.”[232]
[232] Transcript, p 130, lines 38-46; and p 131, lines 1-5.
I wanted to explore the financial side of Ms CA’s life and, in particular, how she currently sustains herself and her family and how the Applicant will positively impact her life in this regard if he is returned to the community. She gave evidence about previous work as a cleaner and then to obtaining a “ticket” in traffic management. Currently, she is working as a beauty therapist and operates a home-based beauty salon business.”
Ms CA confirmed that she supplements whatever income she derives from her home-based beauty salon business with Centrelink benefits. She confirmed that she is looking forward to the day when the Applicant will be able to make a meaningful financial contribution to their family unit:
“SENIOR MEMBER: And you’re still on some Centrelink benefits, to help you through?
MS CA: Yes, I am.
SENIOR MEMBER: Okay. So the way you’re getting through, at the moment, financially, is with Centrelink benefits and additional income that you’re growing - sorry, that you’re receiving and growing, through your home beauty business, that’s right, isn’t it?
MS CA: That’s right, yes.
SENIOR MEMBER: So if the applicant were to come out of Immigration detention and come into the community, you’d be expecting him to get a job pretty quickly and assist you and the family to get by, financially?
MS CA: Definitely, yes.”[233]
[233] Ibid, p 132, lines 13-23.
I am satisfied of (1) the currency and genuineness of the relationship between Ms CA and the Applicant; (2) that she genuinely regards herself as the de facto partner of the Applicant; (3) that she and the Applicant fully intend to create and maintain their own family unit upon his return to the community; (4) that both of her children regard the Applicant as their father, especially Child P; (5) that she and the Applicant are Islamically married at that they intend to broaden this holy religious union into a marriage that is formally recognised under Australian law; (6) that although she currently sustains herself from income she derives from her home-based beauty salon business together with augmenting Centrelink benefits, she nevertheless (7) looks forward to the day when the Applicant will be able to make his financial contribution to the sustenance of the family and (8) the Applicant will return to her and live with her in the family unit comprising herself, the Applicant and his two stepchildren, in the event of the Applicant’s return to the community.
In these circumstances, I am satisfied the Applicant has very strong and durable ties to Ms CA in Australia who I presume qualifies as a person within one of the categories appearing in paragraph 9.4.1(1) of the Direction.
Having regard to the state of the evidence and circumstances surrounding the Applicant’s immediate family, I am safely led to the view (and finding) that the strength, nature, and duration of his ties to those particular immediate family members in Australia carries a very heavy level of weight in favour of a finding that this Tribunal should not exercise its power to refuse the subject visa sought by the Applicant. I make this finding on the presumption that each of the Applicant’s abovementioned immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Paragraph 9.4.2 - “impact on Australian business” resulting from the Applicant’s removal from Australia
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to his immediate family members in Australia), I am of the view that the totality of the evidence points to the allocation of a very heavy level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carries a very heavy level of weight in favour of a finding that this Tribunal should not exercise its power to refuse the subject visa sought by the Applicant.
Further Other Consideration (e): Prolonged or Indefinite Detention
I am mindful that this Tribunal should account for any legal consequences of this decision arising from the outcome of this application.
Section 189(1) of the Migration Act provides:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 198(1) of the Migration Act provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Section 197C of the Migration Act relevantly provides:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
…
In the Present case, the Respondent accepts that a protection finding has been made in relation to the Applicant.
The expression of that policy in the Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).[234] Pages 13–14 of that Explanatory Memorandum states the following:
[234] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.
The Minister’s powers to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances.
The legal and practical consequences of a refusal to grant this visa will be that the Applicant will not be removed to Afghanistan. It is open to the Minister to consider alternative management options available including those under ss195A and 197AB of the Migration Act or resettlement in a third country. It should be noted however that these powers are not compellable and there is no time limit within which the Minister can make a decision.
There is no probative evidence before me that the Minister has had any consideration of the above options and, to my mind, it is highly unlikely that any of these alternative management options will be exercised or applied towards the relief of the Applicant. In any event, any such decision made by the Minister will post-date my decision in this matter and the very real outcome of an adverse decision for him is that he face a prolonged period in detention. There is simply no evidence for me to find otherwise.
The Applicant is currently detained In Yongah Hill Immigration Detention Centre in Western Australia, isolated from his family who are located in South Australia. In the circumstances, significant consideration needs to be given to the Applicant’s prolonged and potentially indefinite detention.
In weighing this additional consideration of prolonged and potentially indefinite detention, I find that it is of moderate, but not determinative, weight in favour of a finding that this Tribunal should not exercise its power to refuse the subject visa sought by the Applicant.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (nominated in the Direction[235]) relevant to the present matter:
[235] Plus, an additional consideration which I have referred to as ‘Other Consideration (e)’ which I have added as part of my consideration.
(a)International non-refoulement obligations is not relevant to the instant determination;
(b)Extent of impediments if removed: is not relevant to the instant determination;
(c)Impact on victims: is not relevant to the instant determination;
(d)Links to the Australian community: carries a very heavy level of weight in favour of this Tribunal to not refuse to grant the visa sought by the Applicant; and
(e)Prolonged or indefinite detention: is of a moderate level of weight in favour of this Tribunal to not refuse to grant the visa sought by the Applicant; .
CONCLUSION
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s 501(1) to refuse to grant the subject visa sought by the Applicant.
In reaching this conclusion, I have had regard to both the Primary and Other Considerations in the Direction and have found as follows:
·Primary Consideration 1: carries a certain, but not determinative, level of weight in favour of the Tribunal refusing to grant the visa sought by the Applicant;
·Primary Consideration 2: is not relevant to determination of the instant Application;
·Primary Consideration 3: carries a very heavy level of weight in favour of the Tribunal not refusing to grant the visa sought by the Applicant;
·Primary Consideration 4: carries a certain, but not determinative, level of weight in favour of the Tribunal refusing to grant the visa sought by the Applicant;
·I have outlined the weight attributable to the relevant Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3, Other Consideration (d) and the additional Other Consideration (e) are sufficient to outweigh the combined weight I have allocated to Primary Considerations 1 and 4;
·A holistic view of the Considerations in the Direction therefore favours of the Tribunal not refusing to grant the visa sought by the Applicant.
Consequently, I do not exercise the discretion to refuse to grant the visa sought by the Applicant.
DECISION
The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant a Protection (Class XA) visa.
I certify that the preceding 293 (two hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.
.............................[SGD]................................
Associate
Dated: 23 August 2022
Dates of hearing:
28 & 29 June 2022
Counsel for the Applicant:
Solicitors for the Applicant:
Dr Jason Donnelly
Zarifi Lawyers
Counsel for the Respondent:
Ms Louise Coleman
Solicitors for the Respondent:
Australian Government Solicitor
ANNEXURE A – EXHIBIT LIST
Between HQNW (Applicant)
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED R1 Section 37 T Documents
(G1-G75, 774 pages)R Various 12 May 2022 R2 Supplementary Section 37 T Documents (1-22) (1,224 pages) R Various 14 Jun 2022 R3 Respondent’s Statement of Facts, Issues and Contentions (29 pages) R 14 Jun 2022 14 Jun 2022 R4 Further Supplementary T Documents (1-15) (89 pages) R Various 27 June 2022 A1 Applicant Submissions
(a) Cover email
(b) Original Statement of Reasons
(c) Relevant materials 1 A-K
(d) Relevant materials 2 L-R
(e) Relevant materials 3 S-Z
(f) Relevant materials 4 AA RR Part 1
(g) Relevant materials 4 AA RR Part 2
(h) Relevant materials 4 AA RR Part 3
(729 pages total)
A Various 6 May 2022 A2 Applicant Statement of Facts, Issues and Contentions dated 29 May 2022 (39 pages)
and Attachments(a) Tender Bundle (A-F, 111 pages)
(b) Statement dated 29 May 2022 (2 pages)
(c) Statement dated 29 May 2022 (2 pages)
(154 pages total)
A 29 May 2022 30 May 2022 A3 Supplementary Applicant Submissions (258 pages) A Various 22 Jun 2022 A4 Further Applicant Submissions
(103 pages)A Various 23 Jun 2022 ANNEXURE B – SHORT-FORM DECISION
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2022/3515 GENERAL DIVISION ) Re: HQNW
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member Theodore Tavoularis
DATE: 19 July 2022
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal:
(1)Sets aside the decision made by the delegate of the Respondent, dated 22 April 2022, to refuse to grant the Applicant’s visa under section 501(1) of the Migration Act 1958 (Cth); and
(2)Substitutes it with a decision that the Applicant not be refused the grant of a Protection (Class XA) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
.
.……………………[SGD]….………………..
Senior Member Theodore Tavoularis
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Standing
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Statutory Construction
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