HWFR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

HWFR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3198 (27 August 2020)
Division:GENERAL DIVISION
File Number: 2016/1316
Re:HWFR
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:27 August 2020
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Refugee and Humanitarian (Migrant) (Class BA) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
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
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
Assessment of the Applicant’s claims
The Applicant’s written position regarding international non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests and (d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
Exhibit Annexure
REASONS FOR DECISION
Senior Member Theodore Tavoularis
27 August 2020
INTRODUCTION AND BACKGROUND

HWFR (“the Applicant”) is a 37 year old citizen of the former Yugoslavia. The area in which he lived as a young child is now known as Bosnia-Herzegovina.[1] Movement records indicate that the Applicant arrived in Australia on 3 April 2001 on a Refugee and Humanitarian (Migrant) (Class BA) Subclass 200 visa (“the visa”).[2] He has not left Australia since his arrival.[3]
[1]      Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraphs [1] and [2].
[2]      Ibid. See also Exhibit 2, Remittal Bundle, RB19, page 231.
[3]      See Transcript, 19 February 2020, page 17, lines 24-25.
The Applicant has a relatively lengthy criminal history in Australia, commencing on 3 November 2003.[4] Since then, he has been a frequent offender finding himself before the sentencing authorities in 2005 (two times), 2006, 2007 (three times), 2008 (three times), 2009 (two times), 2012 (two times), 2013 (two times) and 2014 (three times). These offences have resulted in convictions for:
[4]      Exhibit 2, Remittal Bundle, RB19, pages 232-235.
·3 November 2003:
obehave in a disorderly manner;
·28 March 2005:
obreach of bail granted condition;
·23 May 2005:
opossessing dangerous drugs;
·6 September 2006:
ounlawful entry of vehicle for committing indictable offence at night, damages property (two charges);
ostealing (two charges);
obreach of bail granted condition;
ofailure to appear in accordance with undertaking;
obreach of bail granted condition;
ofailure to appear in accordance with undertaking;
·9 July 2007:
oburglary and commit indictable offence;
oenter premises and commit indictable offence;
·10 July 2007:
opossessing dangerous drugs;
ounregulated high-risk activities;
opossess utensils or pipes for use;
·22 November 2007:
obreach of probation order imposed on 6 September 2006 re: unlawful entry of vehicle for committing an indictable offence at night, damages property (two charges), stealing (two charges);
·12 March 2008:
ofailure to appear in accordance with undertaking (two charges);
·8 August 2008:[5]
[5]      Southport District Court.
obreach of intensive correction order imposed on 9 July 2007 re: burglary and commit, enter premises and commit;
·8 August 2008:[6]
[6]      Southport Magistrates Court.
opossessing relevant substances or things;
opossessing dangerous drugs;
obreach of bail granted condition;
opossess utensils or pipes that had been used;
·6 March 2009:
oburglary and commit indictable offence;
oenter premises and commit indictable offence (seven charges);
·9 July 2009:
ounlawful use of motor vehicles, aircraft or vessels - use;
·31 August 2012:
opossessing controlled precursors;
·9 November 2012:
onumberplate/registration not properly issued/issued for another vehicle;
ouse unregistered/suspended vehicle;
ouse uninsured vehicle;
olearner driver unaccompanied;
olearner driver not display L Plates as required;
·9 October 2013:
ounauthorised dealing with shop goods;
·8 November 2013:
ocontravention of domestic violence order;
·4 February 2014:
ocommon assault;
·15 August 2014:
opossess utensils or pipes that had been used (two charges);
obreach of bail granted condition (two charges);
opossess utensils or pipes for use;
ostealing;
ofailure to appear in accordance with undertaking (five charges);
ounauthorised dealing with shop goods (maximum $150);
·3 September 2014:
owilful damage.
His latest period of incarceration commenced on or about November/December 2014. While on parole for his offending at that time, he returned a positive urine sample to methylamphetamine which was in breach of a direction to abstain from illicit substance use while serving that parole. This resulted in the cancellation of the Applicant’s parole on 3 December 2014.[7]
[7] Exhibit 2, Remitted Bundle, RB25, pages 904-907.
The matter then followed this timeline:
·20 March 2015:
owhile serving this term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test;[8]
[8]      Exhibit 1, Respondent’s SFIC, page 2, paragraph [6], see also Exhibit 2, Remittal Bundle, RB12, page 84.
·17 April 2015:
othe Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa;[9]
[9]      Ibid, paragraph [7], see also Exhibit 2, Remittal Bundle, RB19, page 304.
·24 February 2016:
othe delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the cancellation of the subject visa;[10]
[10]     Exhibit 1, Respondent’s SFIC, page 2, paragraph [8], see also Exhibit 2, Remittal Bundle, RB8, page 69.
·14 March 2016:
othe Applicant lodged an application with this Tribunal seeking a review of the abovementioned decision dated 24 February 2016 not to revoke the cancellation of his visa;[11]
[11]     Exhibit 2, Remitted Bundle, RB6, pages 44-54.
·17 and 18 October 2016:
othe immediately preceding application came on for hearing before this Tribunal, then differently constituted;
·7 April 2017:
othis Tribunal affirmed the abovementioned non-revocation decision of the delegate dated 24 February 2016;
·12 May 2017:
othe Applicant applied to the Federal Court for judicial review of the Tribunal’s decision made on 7 April 2017;
·5 September 2017:
othe Federal Court (per Her Honour Judge Kenny) heard the application for judicial review;
·18 October 2018:
oin her Reasons for Judgment, Judge Kenny set aside the Tribunal’s decision of 7 April 2017 and remitted the matter to this Tribunal for re‑determination; and
othe basis of the remittal was that the Tribunal had proceeded on a false basis that any claimed risk of harm made by the Applicant that may have been supportive of a non-refoulement obligation would fall for consideration in the event of the Applicant making an application for a protection visa.
The hearing of this remitted matter proceeded before me on 19 and 20 February and 13 March, 2020. The remittal hearing received oral evidence from the Applicant, plus additional evidence from two lay witnesses, namely, Mr NI and Mr MR. The remittal hearing also received expert evidence from the Consultant Psychiatrist, Dr Kym Jenkins. The written material in this matter was voluminous. For ease of reference during the hearing, and for the purposes of the writing of these Reasons, the complete suite of written material forming the exhibit record of this proceeding was particularised into an agreed format, a true and correct copy of which comprises the Exhibit Annexure attached hereto and marked “A”.
The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[12]
[12] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[15] I will address each of these grounds in turn.
[15] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 6 March 2009, the Applicant was convicted of “Burglary” and “Commit Indictable Offence”, and was sentenced to a head custodial term of 18 months.[16] In addition to this custodial term, even a cursory review of the Applicant’s criminal history demonstrates further head custodial terms in the approximate total sum of 74 months, or six years and two months.
[16] Exhibit 2, Remitted Bundle, RB19, page 233.
In written material now before the Tribunal, there are at least two readily made concessions by or on behalf of the Applicant that he does not pass the character test. Relevantly, they appear at:
·The delegate’s abovementioned decision dated 24 February 2016, wherein the following is noted:
o“8. In the representations/documents that [the Applicant] submitted, he accepts that he does not satisfy the character test and he does not dispute the information in the National Police Certificate dated 28 April 2015 regarding his criminal conviction(s) and sentence(s)/criminal offences.”[17]; and
·There was a concession in the Applicant’s SFIC to this effect:
o“2…The Applicant was found not to meet the character test because he had a substantial criminal record pursuant to s 501(7)(c) and was at the time serving a sentence of imprisonment…”[18]
[17] Ibid, RB8, page 61.
[18] Exhibit 4, Applicant’s Materials, AM29, Applicant’s SFIC, paragraph [2].
During submissions, the Respondent’s representative made the following submission, with which the Applicant’s representative did not appear to cavil:
·“There is no dispute between the parties that the applicant does not pass the character test…”[19]
[19] Transcript, 13 March 2020, page 230, lines 44-45.
Due to the operational effect of ss 501(6)(a) and 501(7)(c), I am therefore satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[20] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[21]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[20] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Note: (1) the previous decision of this Tribunal dated 7 April 2017 was decided pursuant to Direction 65, and (2) for present purposes, this instant remitted matter must be determined pursuant to Direction 79.
[21] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[22]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[22] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

I will now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non‑citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. As previously mentioned, the material discloses that between 3 November 2003 and 3 September 2014, the Applicant came before the courts for sentencing on approximately 19 occasions and that he was convicted of some 54 offences broadly capable of categorisation as (1) dishonesty offences; (2) drug-related offences; (3) offences of violence; (4) breaches of court orders; and (5) traffic offences.
The Nature and Seriousness of the Applicant’s Conduct to Date
As will become apparent as these Reasons evolve, it is likely that the determinative consideration or factor for present purposes will be the weight ultimately attributable to this Primary Consideration A. There must therefore be a fulsome and detailed analysis of the evidence surrounding the Applicant’s history of offending. There must also, likewise, be a detailed analysis of the extent to which the Applicant can be reasonably expected to re-commence his pattern of offending were he to be returned to the community. The main pillars of evidence around this componentry of Primary Consideration A comprise (1) the Applicant’s evidence in chief; (2) his evidence under cross-examination; and (3) the written and oral evidence of Dr Kym Jenkins, Consultant Psychiatrist.
As mentioned earlier, the Applicant gave extensive oral evidence at the hearing before me. In the main, he seemed to understand the nature of his offending history and appeared to readily concede commission of the relevant offences. Having regard to his evidence (about his offending as a whole) it is correct to say that he is aware of the wrongfulness of what he has done, the reasons behind that wrongful and unlawful behaviour and what he must do (more correctly, continue to do) so as to minimise his prospects of re-offending. He was not at all defensive about the predominant extent to which his abuse of illicit drugs and alcohol are to be seen as the primary causative factors behind his criminal history to date.
The Respondent contends in its SFIC that, having regard to the Applicant’s offending history, and, in particular, to the multiple sentences of imprisonment that have been imposed upon him, the totality of his history is “indicative of the seriousness of the applicant’s cumulative criminal offending, which has involved more than 50 convictions over a period of almost 11 years…”[23]
[23] Exhibit 1, Respondent’s SFIC, page 9, paragraph [35].
In the SFIC filed on his behalf, the following general observation is recorded with regard to the nature and extent of the Applicant’s criminal history:
“19. As to the seriousness of past offending, no offending is acceptable, but that is a far too simplistic analysis of life. Here, the Applicant’s offending mostly consists of property and drug offences and some offences of dishonesty.
20. There is only one offence which is properly characterised as an offence against the person…
…
25. The Applicant has not been convicted of any other offences against the person and his criminal record, although lengthy, does not evidence any propensity towards violence.
26. With respect to the rest of the Applicant’s criminal history, it is acknowledged that the Applicant has committed many offences over a defined period of his life. However, the Applicant’s behaviour cannot be understood without appreciating the drug addiction and, importantly, the cause of his substance abuse, being the untreated mental illness that the Applicant was suffering as a result of the family violence perpetrated against the Applicant by his father and stepmother as well as the atrocities that the Applicant witnessed during the Bosnian conflict when he and his family were taken as prisoners of war. The Applicant arrived in Australia as a minor with no understanding of language, culture or society and no support settlement services available to him…”[24]
[My underlining]
The Applicant’s evidence in chief
[24] Exhibit 4, Applicant’s Materials, AM32-34, Applicant’s SFIC.
In terms of his early life, the Applicant confirmed that he was born in the nation state currently known as “Bosnia”. He arrived in Australia at the age of 17 years. During his childhood and before his arrival in Australia, he first lived with his mother for a period – mostly when he was a baby/toddler. He then went to reside (i.e. while in Bosnia) with his father and step-mother. He clarified this aspect of his evidence by saying that his biological father was not often at home and he was consequently placed in the care of his great grandmother and aunties during this phase of his life.
He told the hearing that for a period of his childhood he also was taken to live in Germany and Croatia. In all, he said that he had resided in a total of four countries during his life, they being: Bosnia, Germany, Croatia and Australia. Specifically, he said he spent “…about four years – four or five years in Germany. And I spend about a year in Croatia. I spend the rest in Bosnia and then I come to Australia when I was 17.”[25] He confirmed that he spent something in the order of five or six years of his life living outside of Bosnia before eventually arriving in Australia in April 2001.
[25] Transcript, 19 February 2020, page 15, lines 19-21.
In his evidence in chief, the Applicant spoke of the traumatic history he experienced while living with his father and step-mother. He recalls meeting his step-mother when he was “…like really young.”[26] He spoke of being subjected to episodes of corporal punishment for displays of what can only be described as regular childhood petulance about the most mundane things. Following the birth of his step-brother, the Applicant spoke of having to endure episodes like this:
“THE APPLICANT: That’s when she really, like, just turned on me for some reason. She started locking me in the room, she started like - like she hit me, she started punishing me for things that I haven’t done. Like even for going to toilet I was like, I would have knock - like, I been little room (indistinct) you know it was like two by three maybe. I’ll be in a little room and I’ll be like on this - I could hear on the other side playing with my brother and toys and she’d lock me in the room with nothing. And I knocked, ‘I want to go toilet’, she’d open the door and she’d just like - she’d slap me all the way to the toilet and all the way back.
…
MR MUTTON:[27] Was it just your step-mother that did things like that?
THE APPLICANT: Yes, she done it like a lot. She was the one that done it like much - young, the young days. After my father started, like, after she sort of half broke me and then yes then my father started just like being a little bit, like he’d punish me but, like I’d scream then like the neighbour would come there, like, you know. My grandmother from upstairs she’d call him and she’d said, ‘I’ll jump off the stairs if you don’t stop hitting him.’ Like there’ll be - like, he’d miss me with belt. He would have this belt that was like a (indistinct), because he used to get into his rider boots and cowboy boots and all that. So he had this belt and the table was like this material and like he’d come after me and run under the table and he’d hit on top of the table and put a hole straight through it.
MR MUTTON: When you signified with your hands that circle shape, when you were talking about the belt - are you talking about the belt itself or a buckle on the belt?
THE APPLICANT: The buckle, yes…”[28]
[26]     Ibid, page 15, line 42.
[27]     Mr Nicholas Mutton of Counsel.
[28]     Transcript, 19 February 2020, page 16, lines 1-9 and lines 16-30.
The Applicant gave evidence about his traumatic life growing up in war-torn former Yugoslavia. He spoke of his first-hand experience of mortar attacks and localised shelling in the area in which he resided. His evidence in chief proceeded as follows:
“MR MUTTON: Apart from those issues in the home, you grew up during the war that was going on in the former Yugoslavia. In brief terms, what was it like for you growing up at that time during the war?
THE APPLICANT: Well it was a very - it was, you know, like since I was a kid, so, for kid it was, it was terrifying. It was - the war just kept (indistinct) up, you know, like, we - when you feel the whole ground shaking, you’re in bunkers underneath buildings and you have sandbags on your windows and doors and, like, lockers exploding and under (indistinct) we had to leave city, from city to city. Yes, it just ripped everything apart, the country, it just, terrible, yes.”[29]
[29] Ibid, lines 40-46, and page 17, lines 1-2.
Upon his arrival in Australia in April 2001, the Applicant initially resided with his biological mother, his step-father and his half-sister. Within a relatively short period of time, he had left that domestic environment. When asked about the reason for his departure (bearing in mind that he was only 17 years of age at the time and a new arrival in a completely new country), the following transpired in the evidence:
“MR MUTTON: Why was it that you moved from that house?
THE APPLICANT: You know, with my step-father I had a lot of problems always, like, in my life. They had - I - they never really wanted, like, somehow, mum, I don’t even know how she talked him into it to bring me here. You know, the - a lot of friends used to say, oh - her friends, their friends - they used to say, Tommy thinks that it really how he would speak about me. And, he never really like the idea of me being around. Yes, it didn’t work. It didn’t work. He had like, he had arguments. He was quite like, sometimes he would get really abusive and drink. Get really abusive and, yes, there was a lot of things happened. (Indistinct) I had to move out when mama said, ‘I want you to move out for your safety, for our safety, for everyone’s safety.’
MR MUTTON: When you say, ‘abusive’, what behaviours did he engage in that you’d see?
THE APPLICANT: He would go - he would be all right when he was not drunk, but when he gets drunk he gets like very like, you know, he just - it wasn’t him, you know, like it would - like once when he attacked my sister and at that time when I had to move out he gave my sister and his boyfriend, like he just went, like, you know, he was, he went off. Like properly.
MR MUTTON: Did he physically attack your sister?
THE APPLICANT: Yes, of course. That’s why the whole thing is because I jumped in between, I sort of jumped - they got, like, at that moment I didn’t really understand, but he like he - he twisted (indistinct) as if I attacked him, you know. Which I didn’t attack him, I just jumped in between him and my sister because I didn’t want him to hurt her.
MR MUTTON: And was he physically abusive to you?
THE APPLICANT: That day, yes. That particular day, yes. He was very abusive.
MR MUTTON: So you that then your mum asked you to leave the house, is that right?
THE APPLICANT: Yes, yes.”[30]
[30] Ibid, page 17, lines 32-47, and page 18, lines 1-14.
The Applicant gave evidence of his mother asking him to leave the house where the family resided. She placed the Applicant in a homeless person’s shelter on the Gold Coast. He was asked about what it was like trying to make a life for himself in the homeless person’s shelter, and the following transpired:
“MR MUTTON: What was it like living there?
THE APPLICANT: Terrible. You know, like, pretty bad.
MR MUTTON: Can you describe the shelter?
THE APPLICANT: Oh, it’s for homeless people. Like, really, it’s, you know, homeless shelter, man, it’s just, it’s not a good place.
MR MUTTON: How long after you arrived in Australia was it that you moved to the homeless shelter?
THE APPLICANT: Good question. Maybe a year, two years. Two years maybe. About two years, I reckon.
MR MUTTON: And how long did you stay at that homeless shelter?
THE APPLICANT: Three weeks.
MR MUTTON: Sorry, was that three weeks?
THE APPLICANT: Three weeks, yes.”[31]
[31] Ibid, page 18, lines 19-30.
After those three weeks, the Applicant’s mother facilitated his placement into a one bedroom apartment in Southport at the Gold Coast. He spoke of having difficulty to adjusting to life living on his own in a new country. He was asked about whether his history of trauma had any effect on him upon his arrival in Australia, and he said:
“MR MUTTON: Did your history of trauma have an effect on you once you were in Australia?
THE APPLICANT: Yes, of course. Yes, I was - I was always just, I had a lot of trauma and it was all unresolved. So if, you know, if a child goes through heaps of traumatic events and never gets to see a psychologist, gets - talks to anyone or gets diagnosed with, put on medication or any sort of help, that affects.
MR MUTTON: What sort of effects were you experiencing at that time?
THE APPLICANT: A lot of things. Like, I could have find myself, I couldn’t understand the life around me, I couldn’t understand, like, how does society function and I couldn’t - I didn’t really have much understanding of that. Like, really depressed all the time. (Indistinct) problems, not being able to commit to things like, yes, just a general - - -
MR MUTTON: Now, after you arrived, did you have access to any settlement services or services to help you deal with trauma or mental health? Anything like that?
THE APPLICANT: No, I don’t think so. I don’t think I’ve ever, like, every had, any, like, any help when it comes to - I never had any - I never knew I had that problem until long time after.”[32]
[32] Ibid, page 18, lines 39-47 and page 19, lines 1-10.
The Applicant seemed reasonably proficient in the English language and he confirmed that he had undertaken some English language classes in the early phase of his time in Australia. He spoke of spending time at TAFE and also attending Year 11 in high school. He is currently undertaking a Diploma in Business and Construction and has a plan to re‑involve himself in the building industry and to undertake further study if released back into the Australian community.
He was then taken to various aspects of his criminal history and questions about specific offending episodes were put to him. He was asked about his offending on 3 November 2003 involving a conviction for behaving in a disorderly manner. He said:
“MR MUTTON: So, you were first found guilty of an offence on 3 November 2003 for behaving in a disorderly manner. Is that right? Could you explain the circumstances of that offence? Do you remember what happened?
APPLICANT: I was only 20. No, I can’t remember exactly what happened.
MR MUTTON: It would have had something to do with you drinking?
APPLICANT: Yes, it would been me drinking, but I’m not sure exactly what, why, what happened, there but.
MR MUTTON: Well, I believe the information we have suggests it was - well, you’ve said in your previous statements that it related to you being drunk in the street and having an open alcohol container. Does that sound right?
APPLICANT: Yes, that’s correct, yes. (Indistinct) to it.
MR MUTTON: And you were convicted and fine a hundred dollars for that?
APPLICANT: Mm.”[33]
[33] Ibid, page 19, lines 22-36.
On 9 July 2007 the Applicant was convicted of “burglary and commit indictable offence” and “enter premises and commit indictable offence”. For this offending, Her Honour Judge Kingham of the Southport District Court sentenced the Applicant to a term of imprisonment for 12 months, to be served by way of an intensive correction order (“ICO”) having a duration of 12 months. The Applicant breached the terms of that ICO as a result of subsequent offending. The consequences of that breach came before His Honour Judge Samios of the Southport District Court for sentencing on 8 August 2008. The learned Judge Samios noted the following in his sentencing remarks:
“You’ve breached that order [i.e. the ICO] in the period of 12 months since that order was imposed. You failed to report as required, and go to counselling as required. You’re considered not appropriate for any community-based type orders. You simply seem to have failed to comply with your obligations under the intensive correction order. You’ve not performed any community service under that order.
But what seems to be the case is, you have kept your full-time employment. You’ve got a drug problem, clearly, and you need assistance with that. You’ve been dealt with in the Magistrates Court today for other offences, and the learned Magistrate imposed six months’ imprisonment, but with a parole release date of today.
You also, with respect to the current offences, have been in custody for 68 days, which I’m not able to declare. But, taking into account the 253 days previously, and the 68 days currently, it seems to me that you have spent some considerable time in custody, but, at the same time, you simply have failed to comply with this intensive correction order.
I’ve come to the view that, in light of your full-time employment, and your struggle with the drug problem, that it would be appropriate here to revoke the intensive correction order, and I revoke that order imposed by Her Honour[34] on the 9^th of July 2007, and for those offences, I sentence you to 9 months’ imprisonment, but fix today, the 8^th of August 2008, as your parole release date.”[35]
[My underlining]
[34] That is, Judge Kingham’s sentence imposing the ICO on 9 July 2007.
[35] Exhibit 2, Remittal Bundle, RB12, pages 174-1176.
The Applicant readily acknowledged his convictions for offences of dishonesty, such as stealing and burglary. In particular, he was taken to his conviction at the Southport Magistrates Court on 6 March 2009 involving the imposition of a custodial term of 18 months for an offence of “Burglary and Commit Indictable Offence”. He recalled the circumstances of the offending and also recalled the custodial term of 18 months. He said:
“THE APPLICANT: Yes, I was, I was really, like, I didn’t have a place to live at that time. I come out of from prison, I think. And I didn’t have any place to live and I started living with my friend, partner, and, yes, my life was just pretty messy at that stage. I borrowed the car and person that had - that the car belonged to, reported it as stolen because I didn’t return it on time. And after I went and (indistinct) finished my parole, and after I went to pick up all my stuff, he got the car back straight after that. I pick up all my stuff, he wouldn’t give me my clothes. (Indistinct) my stuff he wouldn’t give it to me. So, at that time I thought that that give me the right to go and break in and take my stuff. And I took some of his stuff as well, while I was taking my stuff.
…
MR MUTTON: But you said before that you pleaded guilty to stealing all of the items, even though you don’t remember stealing each of the ones that I read out?
THE APPLICANT: That’s correct. I remembered there was a DVD player, camera and a ring. I know there was a watch and the TV.
MR MUTTON: Why did you plead guilty to stealing all of those items if you didn’t take them?
THE APPLICANT: I’m not sure why. I think it was more like I couldn’t prove that I didn’t, and I was in prison and I just wanted to plead guilty to the whole thing, get my sentence and - - -
MR MUTTON: You wanted to have the matter finalised, is that - - ?
THE APPLICANT: Finalised, yes.”[36]
[36] Ibid, page 20, lines 1-11 and 27-37.

The Applicant was then questioned about his conviction in 2012 involving him being in possession of controlled precursor with intent that it be used to manufacture a dangerous drug. He explained the circumstances of that offending as follows:
“MR MUTTON: Could you explain the circumstances of your involvement in that matter?
THE APPLICANT: I collected a package that belonged to someone else. And I was - I was arrested with it in my hands. And (indistinct) that I had no knowledge of what - of the pseudoephedrine tablets being in the package. It was some totally different thing than what is meant to be in the package. And because I was in possession of - because I had it in my hands - I still, I pleaded guilty to being in possession with it. That’s after they - after the prosecutor said that I wasn’t going to prison, that this is a thing where - they first charged me with something heaps bigger. Which is something they firstly they charged me they thought was that I imported this substance and that I was going to make drugs from. And I said there’s no way in the world I - what is youse talking about here? I’ve never left this country. I don’t even have any, you know, like, what gives me the opportunity to go and organise this big thing sent to me from another country that I don’t, you know. They didn’t have any evidence obviously of anything like that. So they downgraded it to possession. I wasn’t going to please guilty to possession either, because that’s not my fault. I did not have no knowledge of what’s inside it. But I did plead guilty because of - they said to me that it was reckless. Like I could have, I should have seen there was something else inside this package. They told me that, you know, I should have seen that there was something more. I was recklessly in possession.
MR MUTTON: Do you accept that that’s right? That you were recklessly in possession?
THE APPLICANT: Yes, I should have, like, I should have probably seen that this was coming because it was all - but I thought through that time, yes, well I’m getting something out of it, and I sort of went and collected it. When I’m, you know - - -
MR MUTTON: What do you mean you were, ‘getting something out of it’?
THE APPLICANT: Well, like that I was - like, they told me it was (indistinct), it was clothes, it was like a lot of clothes, Versace clothing inside. There was a lot of - the guy that was, that was - they told us, he gave us money for it. He gave us the clothing - some of the clothing that was inside it. He was having his business online and he was selling stuff and, so, yes. I was getting some money for it and I was getting some clothing for it. I thought I was getting - - -
MR MUTTON: But you didn’t know at that point that the pseudoephedrine was inside?
THE APPLICANT: No. I had no idea.”[37]
[37] Transcript, 19 February 2020, page 20, lines 46-47 and page 21, lines 1-36.
In terms of judicial sentencing remarks in relation to this offending, His Honour, the learned Judge McGill of the Brisbane District Court, noted the following:
“The circumstances of the offending were that in August 2010 a package which contained 2,346 tablets, which in turn contained some pseudoephedrine, an effective total of 188 grams of pure ephedrine all together, was delivered to a property which was next door to where you were living at the time, and you collected the parcel and took it into your property, and when the customs people raided the property you were found in possession of it.
The parcel had been identified as a result of custom surveillance on parcels coming into Australia as containing something which hadn’t been disclosed on the label, and when it was examined the tablets were found. There was then a controlled delivery by the customs people to the purported addressee, who was fictitious, and you picked up the parcel.
The use of methylamphetamine is a serious problem and one way in which the methylamphetamine is produced is by extracting pseudoephedrine from tablets such as this. So, that in this way, you were contributing to the problems associated with the use of methylamphetamine. The amount of pseudoephedrine was not insignificant, but it wasn’t very great and I think it probably fair to say that overall it’s not a particularly serious example of the offence for which the maximum penalty is two years’ imprisonment.
...
So, there was some not insignificant criminal history and you have previously been imprisoned, but nothing for anything similar to this. There was some drug offending, but again nothing similar to this. There have been no other offences, it seems, since 2009, which may well be significant in terms of your rehabilitation since it seems that you are now working in the building industry and that may well be helping you.
…
But in view of your plea of guilty and the fact that this is the first significant drug offence, and your cooperation and so on, matters to which I have referred, I am prepared to order that you be released on recognisance forthwith. So, you are convicted and a conviction is recorded. In respect of the one count on the indictment, you are convicted and sentenced to imprisonment for six months…by order I direct that you be released forthwith upon your giving security by recognisance in the sum of $1000 conditioned that you be of good behaviour for a period of 12 months….
Now, the effect of that is that you have been sentenced to six months’ imprisonment, but I have made an order that you be released immediately once you have signed a recognisance requiring you to be of good behaviour for a period of 12 months…
If you commit any further offences or in any other way breach a condition of this recognisance at any time during that period of 12 months, you may be brought back before this Court to be dealt with for that breach…”[38]
[My underlining]
[38] Exhibit 2, Remittal Bundle, RB22, pages 470, lines 25-58, page 471, lines 1-15, page 472, lines 11-22 and lines 51-55, and page 473, lines 1-12, 19-25, and 38-44.
He was then taken to the component of his offending history involving a conviction (at the Southport Magistrates Court on 8 November 2013) for contravening a domestic violence order. He spoke of the circumstances of that offending involving a former domestic partner – Ms BT. The Applicant told the hearing that Ms BT’s family did not approve of her relationship with the Applicant. He spoke of Ms BT experiencing ongoing difficulties with her ex-partner. In particular, he gave evidence about an incident where the ex-partner of Ms BT attended the kindergarten attended by Ms BT’s daughter and simply removed the child from that kindergarten in circumstances akin to a kidnapping.
The Applicant gave further evidence of restrictive and imposing conduct by Ms BT’s ex‑partner as follows:
“APPLICANT: …Then he starting imposing rules on her, like, if you want to see her you have to do this, you have to do that. And what he really wanted to do is to separate us. Because it was working fine for him. Her not having a partner and just looking their kid. And not having a life, pretty much. You know, like she was addicted to this prescription medication and it was a mess. Yes, so, it come to a point where he wanted her to put a DVO on me to be able to see the kid again. He wanted like, yes - she done it, obviously she’s going to do it, it’s her kid. At that time, you know, but after she tried to - she went and changed it and told the courts what was it about.
MR MUTTON: When did she change it?
THE APPLICANT: Well one day we were in the car and she was driving my car at the time and we got pulled over by police and they said that (indistinct) she has a DVO on me and you’re not meant to be, you know, that close to each other. So I got arrested and taken to the police and then while I was in the police she come to court and asked for it to be changed.
MR MUTTON: And what’s your understanding of how it was changed?
THE APPLICANT: Well, I think she made application for it to be - what’s the word for it? Altered, another word (indistinct).
SENIOR MEMBER: Varied?
THE APPLICANT: Varied, yes.
MR MUTTON: Varied, yes. So, my understanding of your evidence is that she had the order put in place as a result of something that was happening with her former partner and some - and you’re indicating that there was some pressure from him to - he didn’t want you around their child?
THE APPLICANT: Yes, definitely but [MS BT] - yes, definitely 100 per cent. Because [MS BT] was like there was never any need for [MS BT] to put a DVO on me ever.
MR MUTTON: And that then you were arrested because - so the order that was put in place - and this is confirmed by a copy which is at the middle bundle, page 836 prevented you from going within a certain distance of her and that then you were caught in a car and you were too close. Is that right?
THE APPLICANT: Yes, that’s correct.
MR MUTTON: And after that she varied it so that it didn’t stop you being close to her. Is that right?
THE APPLICANT: Yes, that’s correct.
MR MUTTON: And was there any allegation of violence by you in relation to the making of that order in the first place?
THE APPLICANT: No, no, never. Never with [MS BT].”[39]
[39] Transcript, 19 February 2020, page 22, lines 14-46, and page 23, lines 1-8.
In terms of sentencing and sentencing remarks, the learned sentencing Magistrate[40] said the following:
“…The breach of the domestic violence order – I accept it as a technical matter and I am told that the aggrieved has actually applied to vary and has varied that order, so that you can both be together again as a couple.”[41]
[My underlining]
[40] Ms Pirie, SM, Southport Magistrates Court.
[41] Exhibit 4, Applicant’s Materials, AM49, lines 19-21.
The Applicant was then taken to his conviction for common assault at the Southport Magistrates Court on 4 February 2014. The incident had its roots in his attempt to collect his car keys from a family member of Ms BT. It transpired that, for no apparent reason, the partner of Ms BT’s mother intervened in an apparently confronting way that resulted in the Applicant’s conduct upon which he was convicted. The conduct did not involve the application of physical violence by the Applicant against anyone. Rather, it involved the Applicant spitting in the direction of the domestic partner of Ms BT’s mother:
“MR MUTTON: Could you explain how that came to happen?
THE APPLICANT: Yes, my car key was in with [Ms BT’s sister], which is like a sister from [Ms BT] in her car. And I come to the house, [Ms BT] used to borrow her car all the time and I come to the house - well, I first tried calling to get my car key delivered to me, because I didn’t - I had the car and no car key. So I tried calling them and no one was answer - no one would answer - so I thought, oh, yes, well, it could have been - it could have been anything… And I just wanted my car key, that’s all I wanted. I wanted it, my car key, that’s it. There’s nothing else. And he’s - he come and he holding his hand like this behind his, you know, behind his back. Like he’s holding a knife, or something, you know. Just going, yes, like that. And he’s going off just screaming and yelling and I just couldn’t believe it. Like this guy was mentally, like his wife was going to call the immigration and get his visa cancelled and he put all their money, all his savings, into [Ms BT’s mother]’s account and she was going to call the immigration, get his visa cancelled…
MR MUTTON: Sorry, I might just stop you there. Just trying to bring it back to the actual incident that happened. And I understand there’s some background to it, involving - - -?
…
THE APPLICANT: …And the next thing he was doing to me was this. I was just in shock. I was like, what is this guy doing? Why is he doing this? And I just couldn’t believe it. And I (indistinct) like I was walking away, he was provoking me to do something aggressive to him. I didn’t want to nothing like that. I just (indistinct) in front of him like this. I said, ‘You disgust me.’ And I spat. And I turned away and I jumped in the car and gone away. After that he called - they called the police and I was charged with common assault.
MR MUTTON: And that related to you spitting, didn’t it?
THE APPLICANT: Yes.
MR MUTTON: When you say that he was provoking you, what was he doing that was provoking you?
THE APPLICANT: Well that, like he was calling me every name in the world, coming at me from like, when I every time I tried to jump in the car he would, like he was just provoking me to do something. To push him or to punch him.
MR MUTTON: You made an action then, when you said every time you tried to get into the car, you put your arm forward - - ?
THE APPLICANT: Yes, I tried to close the door, he wouldn’t let me. Like, he stood in the door. So, I’d get out, like - that’s why it was a bit provocative to me, that he’d done.
MR MUTTON: Now, you ended up pleading guilty to that common assault charge?
THE APPLICANT: Yes, I did. Yes.”[42]
[42] Ibid, page 23, lines 20-26 and lines 39-47, and page 24, lines 15-17 and 21-43.
It emerged during the Applicant’s evidence in chief that the sentencing remarks of the learned sentencing Magistrate (Mr Kilner SM of the Southport Magistrates Court) largely accorded with the nature of the circumstances surrounding the conduct, as explained by the Applicant:
“…I agree…having regard to the explanation given about the breach of domestic violence, that there are no substantive offences of a violent nature and that this is a one-off situation which was, to some extent, aggravated and provoked by the complainant.
…
Having regard to submissions made by Mr Oden[43]and despite your reasonably extensive criminal history, I do not intend to record the conviction. Having regard to the relatively trivial nature of the offence and the fact that you have no previous offences of violence.”[44]
[43] The Applicant’s legal representative at the sentencing hearing.
[44] Exhibit 4, Applicant’s Materials, AM46, lines 7-10 and 32-36.
In terms of penalty, Mr Kilner SM (as mentioned) did not record a conviction and made a community service order compelling the Applicant to undertake 60 hours of unpaid community service.[45]
[45] Ibid, lines 12-13.
The Applicant was then taken to the circumstances of his conviction of the charge of wilful damage at the Southport Magistrates Court on 3 September 2014. Once again, the circumstances of that offending involve the Applicant in almost inadvertent conduct resulting in the breakage of the window of a car belonging to Ms BT’s sister.
“MR MUTTON: Can you just explain briefly what happened, leading to the events that led to that damage being caused?
THE APPLICANT: Yes, we had an argument - - -
MR MUTTON: Sorry, when you say “we”, who are you referring to?
THE APPLICANT: Me and [Ms BT’s sister], and we had an argument and I went to the sister’s house …and I just wanted to speak to her, and when I come to the house, they come sort of in the car, and I was leaning on the car. She had her window open, I was leaning inside the window talking to her, and there was a bit of an argument and the other sister just sort of got upset about the whole thing and she hit the accelerator into reverse while I was still, like, hanging inside the car, and I pulled the window with me and the window broke.
MR MUTTON: So, you were leaning inside the vehicle?
THE APPLICANT: Yes, like, just, like, kind of talking, like that.
MR MUTTON: And she reversed?
THE APPLICANT: M’mm.
MR MUTTON: And as she reversed, you moved back?
THE APPLICANT: Yes, I went back and the window broke, yes.
MR MUTTON: And the window got broken?
THE APPLICANT: It was a Hyundai, like, one of those little cars, and it was very - yes. Like I said, I paid for the window straight away and apologised, and they still don’t know that it was an accident, no.
MR MUTTON: When you say you moved back, why did you move back?
THE APPLICANT: I had to get (indistinct) away from the car, you know? Like, she it the accelerator, like, properly, you know - - -
MR MUTTON: While you were still half in the vehicle?
THE APPLICANT: Half in the vehicle, yes.
MR MUTTON: And you paid for that window to be repaired, did you?
THE APPLICANT: Yes, of course.”[46]
[46] Transcript, 19 February 2020, page 26, lines 13-43.
In terms of sentencing and judicial comment about this aspect of the Applicant’s offending, the learned sentencing Magistrate (Mr Kehoe SM of the Southport Magistrates Court) said the following:
“…I take into account your early plea of guilty…I also note that you did make immediate restitution in relation to this particular matter…I intend to make a community service order…
…
In relation to the matter today…imprisonment would have been considered if you hadn’t either paid that restitution back immediately in relation to the matter. I consider a community service order should be imposed, and I will order you perform 50 hours of unpaid community service within a period of 12 months…”[47]
[47] Exhibit 2, Remittal Bundle, RB19, page 345, lines 1, 3-4, 7-8, and 23-26.
The Applicant was then questioned about his breaches of various court-imposed orders compelling him to do certain things. He seemed to attribute primary blame for these repeated breaches on his past illicit drug dependency and alcohol abuse:
“MR MUTTON: Yes. Thank you. In addition to the offences that we’ve been through, you’ve also had a number of breaches of bail, haven’t you, in terms of you have breached bail conditions a number of times and you have also failed to answer, meaning you have failed to show up to Court a number of times?
THE APPLICANT: Yes.
MR MUTTON: And you have breached other orders as well, haven’t you, for example, probation order and your intensive corrections order I think you breached as well?
THE APPLICANT: Yes. Yes, I have.
MR MUTTON: So, it might be put to you that because you haven’t complied with the orders and you’ve breached bail for example, that you simply don’t - that you disregard those orders and you disregard bail conditions, or that you deliberately don’t comply with them. What do you say about your history of not complying with those conditions and orders?
THE APPLICANT: I’ve come to this country from a rough place, from a rough time of my place, and I’ve come to this country and I - like, I didn’t understand, I didn’t understand nothing of this country, I didn’t understand anything, really. My first order, when I got given a probation order, like, I remember I didn’t have no idea what it all is, or what do I have to do, or, like, the extent - like, how serious things are, or - you know? I had a drug dependency, I was treated for my depression, so my memory was shocking - my memory is, even now, shocking, but with the other treatment is much worse. Without medication, it’s much worse. So, a lot of those things were - just, going to drugs, taking drugs, and missing appointments or forgetting about appointments and forgetting about court hearings, and then remembering next day and going, “I had Court yesterday.” Stuff like that.
MR MUTTON: So, you are saying it wasn’t deliberate disregard for what you were meant to be doing?
THE APPLICANT: It wasn’t like, I am just going to - no. No, it wasn’t. Of course. It was a lot of, you know, it was like I was lost. That’s how I can explain it. I was lost and I didn’t understand, fully, how all of this - how much all - how much - how much I was negatively impacting or anything, how much anything was - yes. I don’t think I have the words to explain it.
MR MUTTON: You just mentioned that you had a drug dependency?
THE APPLICANT: Yes.
MR MUTTON: Do you still use drugs?
THE APPLICANT: No, I don’t.
MR MUTTON: Do you still drink alcohol?
THE APPLICANT: No.
MR MUTTON: I understand you used to smoke as well?
THE APPLICANT: Yes, I did.
MR MUTTON: Do you still smoke?
THE APPLICANT: No.”[48]
Cross-examination of the Applicant
[48] Transcript, 19 February 2020, page 27, lines 24-47, and page 28, lines 1-20.
The Applicant was questioned about his conviction on 23 May 2005 at the Southport Magistrates Court on a charge of possessing a dangerous drug. He confirmed that he was in possession of some ecstasy tablets and that they were for his own use. He confirmed that “Yes, I was – I was using them because I went out on that weekend, and I had some, yes.” He was questioned about whether he sold ecstasy tablets to other people, to which the Applicant replied, “No.” [49]
[49] Transcript, 20 February 2020, page 97, lines 40-43.

There followed some questions about his conviction on 6 September 2006 at the Southport Magistrates Court for unlawful entry into a motor vehicle for the commission of an indictable offence. He was asked to explain the circumstances of that offending and the following transpired in cross-examination:
“MR BROWN:[50] Yes, what happened, what was happening?
THE APPLICANT: When I did - I think that’s one of those offences when I woke up in the police station and I had no idea why I was in the police station, and the police wouldn’t tell me until I went to court, and I learnt when I was in court that I - and then I remembered the offence. Yes, I - I’m pretty sure I remember, yes.
MR BROWN: What happened on that occasion?
THE APPLICANT: I’ve broken into a car and steal - stole some change, or something like that - - -
MR BROWN: And how did you break into the car?
THE APPLICANT: I’m not sure, maybe I broke the window, maybe I got in through a door, I’m not sure.
MR BROWN: So was that your modus operandi, you broke a window to get in?
THE APPLICANT: Excuse me?
MR BROWN: Was that the way you approached breaking into cars by breaking a window?
THE APPLICANT: In that particular yes, I broke in like that. I never broke into a car till that time.”[51]
[50] Mr David Brown, Senior Lawyer, Australian Government Solicitor.
[51] Transcript, 20 February 2020, page 98, lines 1-18.
As will be noted from the Applicant’s criminal history, the learned sentencing Magistrate punished that offending by way of a non-custodial probationary regime having a duration of 12 months. The Applicant purported to suggest that his failure to comply with the requirements of this probation order was attributable to a lack of understanding of its terms which, in turn, was attributable to his mental health issues resulting from his abuse of drugs and alcohol:
“MR BROWN: Did you understand at the time what that probation order required you to do?
THE APPLICANT: No.
MR BROWN: Was it not explained to you?
THE APPLICANT: Maybe it was explained to me but I still didn’t understand it.
MR BROWN: Who was it explained to you by?
THE APPLICANT: I don’t recall, it’s been quite a long time.
MR BROWN: But your evidence is that although it was explained to you, you didn’t understand what it required you to do?
THE APPLICANT: I didn’t understand, no. I had no idea. Like, when people tried to tell me that I had to report, I was like, what are you talking about? When people - when some of my - people that I knew then, when they tried to tell me that I had to go to report to probation office, I didn’t - like, I was like, what are you talking about, what is a probation office? Yes, I had no idea what was expected from me.
MR BROWN: And was this lack of understanding - what was that attributable to?
THE APPLICANT: I think it attributed to my mental health issues, and contributed to my drug and alcohol use, and to my traumatic upbringing, and not knowing the country, and that was a big thing.”[52]
[52] Ibid, page 98, lines 31-45, and page 99, lines 1-4.
The Applicant was cross-examined about his offences of dishonesty involving, in the main, his unlawful entry into residential dwellings and stealing property of relatively significant value. There are multiple examples of this offending committed between 29 October 2008 and 6 November 2008. This mode of offending also occurred two years earlier in 2006. On 29 October 2006, the Applicant committed the offence of “burglary and commit indictable offence” by scaling the outside of an apartment building. While doing so, he broke into a residential unit on the seventh floor, where he stole jewellery and a number of other items. This offending episode also saw him convicted for “enter premises and commit indictable offence” because he stole a set of keys from the building’s reception area prior to scaling the building.
The Applicant attributed virtually all of his offending conduct on his heavy involvement with illicit drugs:
“MR BROWN: Now, shortly after the conviction for breaking into those two cars, you were arrested after being caught exiting a building, a building that you had climbed up the outside of, do you remember that?
THE APPLICANT: Yes, that was - that was the next - the next - that’s the offence that I went to prison for, and it was the next, on the role of my addiction towards drugs that was the next - that’s when I got really addicted to heavy drugs.
MR BROWN: Can you just expand upon that a bit?
THE APPLICANT: So what happened is first I started smoking weed, mixing - mixing alcohol, then it was ecstasy and then it was ice and Xanax, and that particular occasion it was ice and Xanax, that’s when I was - - -
MR BROWN: So on this particular occasion when you climbed up the outside of the building you were under the influence of ice?
THE APPLICANT: Ice and Xanax.
MR BROWN: And Xanax, yes?
THE APPLICANT: Lots of Xanax and lots of ice, yes.
MR BROWN: I understand that you were climbing up the building to try and get to a flat that was occupied by a friend of yours, is that right?
THE APPLICANT: At that time, yes.
MR BROWN: Why were you trying to do that?
THE APPLICANT: She was asleep, they were both asleep at that time. They fall asleep from all those Xanaxes that we all consumed, and when I come back I tried to get in but they - they just - they were all - yes.
MR BROWN: Now, on the way up the building you broke into another flat, didn’t you?
THE APPLICANT: I stole from other flat, yes.
MR BROWN: And why did you do that?
THE APPLICANT: Because at that time I didn’t know any better.
MR BROWN: You didn’t know that was wrong?
THE APPLICANT: I didn’t - I might’ve known that that was - I knew that was - like I would’ve known that was wrong, but I didn’t know what I was doing, if it makes sense, like you always know that stealing’s wrong, but somehow I’ve done it as well, which is like I obviously mustn’t have known that it was wrong. I was heavily on drugs as well, I would like to add, and I was lost at that time as well. I was definitely lost. Like, when they put me - when the judge was refusing the bail I think that she made a comment like, something like, we have to put you away because you’re endangering your own life.”[53]
[53] Ibid, page 99, lines 6-43.
The Applicant’s predisposition towards illicit drug abuse also seems to have been at the root of his numerous breaches of non-custodial forms of punishment previously imposed on him. These have included an intensive correction order and at least one probation order. It is clear that the effect of drugs (often accompanied by the abuse of alcohol) on the Applicant have caused him to repeatedly fail to distinguish between right and wrong and consequently find himself in yet further trouble with the law:
“MR BROWN: Now, on 8 August 2008 you were required to attend the Southport District Court in relation to a breach of the intensive corrections order that had been imposed on you in July 2007. That’s the one we just looked at. Do you recall what had happened to cause you to be charged with breaching that intensive corrections order?
THE APPLICANT: Yes, I do, I remember, yes.
MR BROWN: What had occurred?
THE APPLICANT: I went with one of my friends at that time. There was a - Indi car racing on the Gold Coast in Queensland, as they have every - every - every - every year, and I had drunken a lot of alcohol, and I had drunken some liquid fantasy liquid, and as I was walking in Surfers I hit my head into the lighting pole on the street and I knocked myself out, and the ambulance picked me up, took me to Gold Coast Hospital, and they had to revive me back to life, my heart stopped and everything. After I’d woken up the doctor said, “We had to bring you back to life, and luckily we found in your pocket a little bottle containing fantasy so they knew what happened to me. And the police officers charged me with possession of drugs, and, yes, it all started from there, and then downhill; I breached my IC order.
MR BROWN: Prior to going to this Indi car racing event?
THE APPLICANT: Yes.
MR BROWN: And since having been released in July ‘07 from the period of imprisonment that you had served on remand, during that period prior to the Indi car event, were you clean for that time?
THE APPLICANT: Yes, I was so clean. That’s what I think the effect of alcohol has such a big impact on me, because I was clean in prison and I was clean on the outside as well.
MR BROWN: So what had helped you to get clean when you were released from prison in early July 2007, what had contributed to that?
THE APPLICANT: Well, I tried to stay clean because I wanted - I didn’t want to go back to prison ever again. My family - I wanted to do it for me, for my family, and I wanted to - I wanted to have a good life and be a normal person. Like I - I - I was very young at the time also, and I would like to say, you know, when I was coming out of that prison, like I remember my mum; I said to her, I said, “Mum, I’m scared”, and she asked me this, “Are you still scared of coming out?” I said, “I’m scared of coming out because I really don’t want to go back to the drugs and to that lifestyle.”
MR BROWN: And she helped you to get a job?
THE APPLICANT: She helped me to - yes.
MR BROWN: What was that job?
THE APPLICANT: That job was plastering, working for Brighton Australia, working on high rises, commercial plastering.
MR BROWN: In Brisbane?
THE APPLICANT: In the Gold Coast.
MR BROWN: And that was a job you were good at?
THE APPLICANT: I was really good at, yes.
MR BROWN: So you were full-time employed?
THE APPLICANT: Yes.
MR BROWN: Now, the mate that you went to the Indi car event with, what sort of mate was he?
THE APPLICANT: Not a good one. He was my first friend I met sort of in Australia, but he wasn’t a good one.
MR BROWN: And was he somebody who was also taking fantasy?
THE APPLICANT: Yes.
MR BROWN: So you say that you took some of this liquid fantasy and you’d already had an amount of alcohol?
THE APPLICANT: Yes.
MR BROWN: And you walked into a pole?
THE APPLICANT: A pole, yes, right in front of police officers, like there was 10 police officers, and right in front of them I knocked myself out.
MR BROWN: You hit your head?
THE APPLICANT: Yes.
MR BROWN: Did you get any medical treatment for that?
THE APPLICANT: Yes, I went to hospital.
MR BROWN: Yes?
THE APPLICANT: Yes, my heart stopped.
MR BROWN: Yes, I understand that, but in terms of striking your head?
THE APPLICANT: I - after I woke up I sort of - I just wanted to leave the hospital and go, so they were they trying to tell me to stay, but I didn’t want to do that.
MR BROWN: So although you were in hospital and although you were told you were very lucky to be alive because your heart had stopped, you still wanted to discharge yourself and get out of there?
THE APPLICANT: Yes.
MR BROWN: Why was that?
THE APPLICANT: I don’t know, I just didn’t understand - didn’t understand that I needed to stay in and get some - yes, I was - that’s how I was, that kind of person back in those days, thought I knew everything; I thought I was smart and I thought I - didn’t listen to other people’s opinions and didn’t listen to other people’s instructions and professional opinion, I didn’t understand, and I never listened really to it.
MR BROWN: Okay?
THE APPLICANT: I was half wild, you know, like half broken, half wild.”[54]
[54] Ibid, page 103, lines 42-46, page 104, lines 1-47, and page 105, lines 1-30.
As became apparent during the Applicant’s cross-examination, a promising trend – usually in the form of him declaring an intention not to partake in illicit drugs and/or alcohol abuse – invariably saw him fail to fulfil that intention. What is of concern is not only his failure to meet the requirements of these non-custodial sentences on the grounds of disorientation and/or distraction arising from his abuse of drugs and/or alcohol, but his further evidence that work commitments similarly prevented him from doing so:
“MR BROWN: I don’t dispute that. What I’m trying to understand I think is what was the trigger on this occasion for you to step off the promising trend that you had managed to maintain since you were released from prison, what was it that caused that at that time?
THE APPLICANT: Going out to drink alcohol. Going out with somebody I thought was my friend but wasn’t - wasn’t a good friend, and drinking alcohol. That’s it, that’s - not - not complying with my order properly.
…
MR BROWN: So why was it that you were not reporting as required by your ICO, and why was it that you were not attending the counselling that you were required to attend?
THE APPLICANT: I was working.
MR BROWN: Yes?
THE APPLICANT: Yes, that’s it. I was having a lot of problems with the reporting and working, because an intensive correction order is like, it’s a very intensive order, and I reported every time. I always reported, but it was always - like, it was - it was - sometimes it would be late, I’d come after work, like, (indistinct) would be at 4 o’clock I would make it at 4 o’clock, I would juggle it around, yes.
MR BROWN: But why was it that you thought that that was okay?
THE APPLICANT: In my mind then I thought that the job was the only thing that was keeping me normal, keeping me on track, keeping me away from - from negative influences from drugs and that I had - I thought the job was like almost my foundation. Well, it was almost, it was my foundation at that time, and I thought if I - if I don’t do my job properly and if I - like if I lose my job then I’ll definitely go back to prison.”[55]
[55] Ibid, page 105, lines 40-46, page 106, lines 41-47, and page 107, lines 1-11.
The Applicant was asked about perhaps the high-point of his offending history (in terms of seriousness) involving his conviction for “possession of a controlled precursor to manufacture controlled drug”. That offending came before His Honour Judge McGill for sentencing at the Brisbane District Court on 31 August 2012. The Applicant initially took umbrage at the suggestion seemingly put to him in cross-examination that his commission of this offence necessarily denoted an actual intention to manufacture a dangerous drug. As best as I understood his evidence, the Applicant was concerned to ensure that the Tribunal understood that his commission of this offence occurred on the bases of him (1) not, at any time, knowing what was contained in the subject package; (2) simply carrying a particular package from Point A to Point B at the request of others; and (3) not being part of a greater criminal enterprise involving the production/trafficking of a dangerous drug:
“MR BROWN: So, Mr Applicant, I raise this with you because it’s important that you are given an opportunity to explain to the tribunal what involvement you had in this offending, and given that you were sentenced to possession of a controlled precursor, with intent that it be used to manufacture a dangerous drug?
THE APPLICANT: So what was the question?
MR BROWN: What was your involvement in the offending?
THE APPLICANT: Like I said, I pleaded guilty to the offence, and the offence is of a minor nature, and I don’t have nothing to add to that. It’s not my – the way I see it or the way I understood it, I can’t understand what is said in the paperwork and I will go with that.
MR BROWN: Yes. So what my learned friend was questioning you yesterday he invited you to characterise your involvement as one of recklessness?
THE APPLICANT: Yes.
MR BROWN: That is not what the charge that you pleaded guilty to and were convicted of says at all, is it?
THE APPLICANT: According to the paperwork or according to me?
MR BROWN: It’s the paperwork that the tribunal is going to have to abide by?
THE APPLICANT: You always assume that that’s what it says in the paperwork.
…
MR BROWN: You’re now saying to the tribunal that you pleaded guilty to something that you didn’t do?
THE APPLICANT: I pleaded guilty to exactly what I did. I pleaded guilty to picking up a package and that has something inside that was illegal in Australia, and that’s what I pleaded guilty to.
MR BROWN: And you say you didn’t know what that was?
THE APPLICANT: I did not know what that was, no.
MR BROWN: And you didn’t know it was going to be used to manufacture a dangerous drug?
THE APPLICANT: No, I did not know.”[56]
[56] Ibid, page 124, lines 1-19 and 41-47, and page 125, lines 1-2.
Counsel for the Applicant helpfully and ably assisted with the following explanation of the operative effect of the relevant provision:
“MR MUTTON: The offence was under section 308.2(1) of the Commonwealth Criminal Code, which makes it an offence for a person to possess a substance if the person intends to use it to manufacture a controlled drug and the substance is a controlled precursor. Now, the fault element for the substance being a controlled precursor is recklessness at the time and it still is today and in relation to the intention to manufacture a controlled drug, there’s a reverse onus provision in section 308.2(3).
So, that section deems a person to have intended to use a substance to manufacture a controlled drug if they possessed it, the possession wasn’t required to be authorised by law and it was not – sorry, possession was required to be authorised by law – and it was not so authorised. In those circumstances, an accused person bears the onus of proving that they didn’t have the relevant intention and that reverse onus provision applied in this case because the relevant precursor was essentially a scheduled poison and it wasn’t acquired in a lawful way.”[57]
[57] Transcript, 13 March 2020, page 207, lines 14-29.
For the purposes of assessing the nature and seriousness of this offence, I am satisfied that Judge McGill sentenced the Applicant on the basis that (1) the Applicant did not know what was inside the subject package, and (2) the Applicant was not part of a greater criminal enterprise involving the production and/or trafficking of unlawful drugs. As noted by His Honour: “The amount of pseudoephedrine was not insignificant, but it wasn’t very great and I think it probably fair to say that overall it’s not a particularly serious example of the offence...”[58]
[58] Exhibit 2, Remittal Bundle, RB22, page 471, lines 9-13.
Ultimately, the seriousness of the offence was duly acknowledged by the Applicant, as was the reality that Judge McGill was giving him yet another chance to remain in the community:
“MR BROWN: … This – I’m sorry, what – we start with the bottom line on page 470, this is the judge speaking,
The use of methamphetamine is a serious problem, and one way in which the methamphetamine is produced is by extracting pseudoephedrine from tablets such as this, such as the ones that were in the package.
And he goes on to say,
So that in this way you (Mr Applicant) were contributing to the problems associated with the use of methamphetamine.
Do you remember that?
THE APPLICANT: I don’t remember the whole spiel that the judge has given, like obviously I don’t remember the whole thing, but I can read it if you like me to.
MR BROWN: Do you remember him saying that in this way you were contributing to the problems associated with the use of methamphetamine?
THE APPLICANT: I understood it how – like what – what was going on, it was a big like – it shocked me, everything shocked me, and I understood that it was a big problem and I understood everything about the charge, but like exactly what the judge says here, like I don’t really understand every single word that he says, I don’t remember – I don’t (indistinct) – I don’t – you know, I remember – I know the seriousness of the offence though, I understand that fully.
MR BROWN: It was a big deal?
THE APPLICANT: Well, it’s – you know, the judge says – and explains it, what the drugs are evil, I call the devil’s handywork, you know, so anything that contributes to that evil, to that’s making a ruckus inside this community, it’s obviously a big problem.
…
MR BROWN: … the judge was prepared to order that you be released immediately, but over the page, you were convicted and a conviction was recorded… So essentially, Mr Applicant, the judge was giving you another chance, wasn’t he?
THE APPLICANT: Yes, the charges – he was giving me another chance, yes.”[59]
[59] Transcript, 20 February 2020, page 127, lines 18-46, and page 128, lines 1-2, 27-29 and 38-40.

The Applicant’s SFIC attempts to crystalise that fear in two specific paragraphs:
“53. If forced to return to Bosnia and Herzegovina, there is a real risk that the Applicant will suffer harm on account of his ethnicity and religion. Although the country has not experienced large-scale active conflict since the Dayton Accords were signed, the rise in ethno-nationalism and ultra-right wing rhetoric means that the stability of the country is precarious. Ethnic violence could again erupt if prompted by a political or economic crisis within the region.
54. To the extent that the above matters are insufficient to give rise to non-refoulement obligations, then at the very least they are still relevant to the assessment of how readily the Applicant might re-integrate into Bosnia and Herzegovina.”[219]
[My underlining]
[219] Ibid, AM42.
The underlining in the immediately preceding paragraph [53] is mine. I have underlined these portions for this specific reason: there is a reference to a “real risk” of claimed harm because the Applicant may apparently experience suffering because “of his ethnicity and religion”. To my mind, this is a bald statement and nothing more. There is no explanation or particularisation of how this “risk” would crystalise or manifest in reality. There is no credible evidence of the persecution of people belonging to the “ethnicity and…religion” of the Applicant. Indeed, the paragraph acknowledges that Bosnia-Herzegovina “has not experienced large-scale active conflict since the Dayton Accords were signed.”[220] The paragraph speculates that that “Ethnic violence could again erupt…” but this, to my mind, does not safely ground a purported fear of harm in the mind of the Applicant such as to engage Australia’s non-refoulement obligations. The next quoted paragraph [54] is not relevant to this Other Consideration (a) and, if at all, may be relevant in any discussions about the extent of impediments the Applicant may face if returned to Bosnia‑Herzegovina.
The Applicant’s oral evidence
[220] The Dayton Accords were signed on 14 December 1995.
In evidence in chief, the Applicant said the following:
“MR MUTTON: Okay. Do you think Bosnia is a safe place for you to live?
THE APPLICANT: Safe place? No, I don’t think so. I don’t think Bosnia is a safe place still.
MR MUTTON: Why not?
THE APPLICANT: There’s a lot of conflict still. There’s a lot of conflict. I don’t know whether - like, what’s shown, but, sometimes, like, I watch documentaries. I wanted to see, like, for myself, like, I actually wanted to see what it was like in Bosnia, so I went on YouTube and I found some documentaries to see what it is like, and what I found was quite shocking still to see. It was a school, same school, and you had fencing between and one side was, like, a Christian side school for kids go in, and one side for Muslim kids go in. This Christian side was, like, nicely renovated with, like, marble. This side was, like, all, like, the Bronx, and the kids on their lunch break, these kids could play on this side, and these kids play on this side, and that was Bosnian school for kids.
MR MUTTON: So you’re saying that the Muslim children and the Christian children are separated - - ?
THE APPLICANT: Yes, everything it separated, yes.
MR MUTTON: - - -and there was facilities available to them depending on which religion they were?
THE APPLICANT: Yes. Yes, still available to - yes.
MR MUTTON: How safe do you think it would be for you as a Bosnian Muslim if you went back there?
THE APPLICANT: The country is unstable, you know, the country is very unstable. It depends what part - like, this guy that had tortured my uncle and has beaten him up and my uncle ended up dying because of his torture, like if he - I don’t know where he lives and, like, if - you know, like, that - he was my next-door neighbour then. I don’t know if he’s still around, if he’s not around, if he’s - like, you know, like, what he has done to my uncle is just - just because of us kids having a little argument on the side of the street they took that to the next level and he ended up killing my uncle because of us kids having an argument. It’s just, like, it’s ridiculous. Yes, that’s one aspect of it, but it’s definitely not safe for - everything is separated and if you go into the wrong place I think you’re - that’s why we are - there’s a lot of people misplaced in around the world. My mum is in Australia because she couldn’t go back to her house because the last person who went back to their house was killed because he tried to get into his house and the guy was living in his house.
MR MUTTON: Why was - - ?
THE APPLICANT: You know what I mean, like, they - even if Serbians have a house and Bosnians have houses, they don’t go to their houses. They swap their houses to someone else’s house or they - it’s all separated.
MR MUTTON: And why was that person killed?
THE APPLICANT: Because he went back and tried to live in his house.
MR MUTTON: Who killed him?
THE APPLICANT: I’m not sure who killed him. Like, it would’ve been the people that were living in that village.
MR MUTTON: Do you fear that you could be harmed if you went back there?
THE APPLICANT: I feel so, yes, of course. The war hasn’t ended. Nothing has ended. It’s all - like, we have three Presidents. The country has three Presidents, one from Muslim side and one from Christian Catholic side, one from the Orthodox side. And they - the presidency goes for three years and they have eight months or something like terms. You know, like, three different ethnic groups and it’s just, like, it’s not safe. It’s unsafe. They’re all - the one side was trying to separate itself from the country recently and they had a referendum and they were threatening with war and, like, it’s still all going. It’s still not finished. I escaped that country in a UN armoured vehicle once, and the second time I almost got killed by a sniper and I got out of it, you know.”[221]
[221] Transcript, 19 February 2020, page 68, lines 5-45, and page 69, lines 1-17.
I have checked through the material and cannot find any statement from another witness corroborating this evidence from the Applicant. Neither his mother nor his half-sister have had anything to say in these proceedings about any threat to the Applicant’s safety in the event of his removal to Bosnia-Herzegovina.
The Applicant’s Stated Fear(s) of Harm: An Analysis
I accept the Tribunal has an obligation to assess the Applicant’s non-refoulement claims and, more particularly, to ascertain whether the apprehension of harm that he has expressed does or does not rise to the level of engaging Australia’s non-refoulement obligations. This will be the primary basis on which weight, if any, can be allocated to this Other Consideration (a).
I have sought to fulsomely review the oral and written evidence before the Tribunal on this issue. As a result of that exercise, I am not of the view that the circumstances in Bosnia‑Herzegovina are such that the Applicant’s claim to fear significant harm upon his return to that country is successfully made out. As noted by the Respondent, the Applicant’s claimed fear(s) of harm “…have been made on behalf of the applicant by his lawyers [and they] travel at a very high level of assertion in relation to what they say are the generic circumstances in Bosnia Herzegovina.”[222]
[222] Transcript, 13 March 2020, page 238, lines 27-30.
In my view, those largely speculative and generic submissions about a state of political affairs that may manifest at some future point do not validly ground the Applicant’s stated fear(s) of harm and do not establish that the Applicant is entitled to non-refoulement obligations owed to him by this country. As is readily apparent from his evidence in chief, the Applicant was not able to point to any particular threat or basis that could result in him being confronted with significant harm were he removed to his country of origin. Generalised references to sourcing and watching documentaries on the internet and/or YouTube, which apparently depicted segregation of schoolchildren and/or residents, does not rise to the level necessary to ground a fear of harm such as to activate this country’s non-refoulement obligations.
Put simply, the totality of the Applicant’s evidence in relation to this Other Consideration (a) is too generalised and too speculative. It is incumbent upon him to identify precisely what it is that he fears he will suffer and why that is a likely eventuality in the event of his removal to Bosnia-Herzegovina. To my mind, the evidence goes nowhere near reaching that threshold.
The Applicant has referred to examples of violent and/or fatal conduct occasioned upon people with whom he was connected in Bosnia. His evidence in chief purported to explain apparent instability in Bosnia-Herzegovina on this basis:
“The country is unstable, you know, the country is very unstable. It depends what part - like, this guy that had tortured my uncle and has beaten him up and my uncle ended up dying because of his torture, like if he - I don’t know where he lives and, like, if - you know, like, that - he was my next-door neighbour then. I don’t know if he’s still around…”
It is less than credible to suggest that an entire country is unstable because this Applicant asserts that “…this guy had tortured my uncle…” but at the same time, to say that “I don’t know where he [the alleged perpetrator] lives,” and that, in turn, the Applicant has a fear of harm of returning to Bosnia-Herzegovina on the basis that the alleged perpetrator was or may become his next-door neighbour in circumstances where the Applicant concedes, “I don’t know if he’s [the alleged perpetrator] still around…”
Similarly, I have difficulty in allocating any credibility to a fear of harm now being sought to be grounded on an asserted lack of residential compatibility between Serbians and Bosnians and whether someone was “killed…because he went back and tried to live in his house.” This is especially so in circumstances where the Applicant said “I’m not sure who killed him. Like, it would’ve been the people that were living in that village.”
I am of the view that the Respondent’s contention[223] is well made: this evidence does not rise to the level of the Applicant successfully demonstrating his claimed fear(s) of harm were he to be returned to Bosnia-Herzegovina. They do not demonstrate that the Applicant himself will be the subject of any similar or other threat of harm arising from his Bosnian ethnicity or his Muslim religion.
[223] Ibid, see Transcript, 13 March 2020, page 238, lines 46-47 and page 239, lines 1-2.
The Applicant’s evidence purports to speak of a fear of harm somehow arising from a difficulty he has observed in other people who have returned to Bosnia-Herzegovina and have apparently struggled to re-settle there. Again, I have difficulty in allocating any measure of credibility to a claimed apprehension of the Applicant suffering a risk of harm based upon what he says he has identified as difficulties experienced by others in this regard. I think the Respondent’s further contention is correct:
…references made in the applicant’s submissions to how a number of persons who have returned to Bosnia have struggled to reintegrate and have struggled to secure themselves work, that really doesn’t establish that this applicant, in the event of him being returned to Bosnia Herzegovina, would necessarily experience the same consequences that those other individuals have experienced. It is necessary to look at the specific circumstances of this applicant on return to Bosnia in order to then be able to argue as to what sort of risk he was exposed to in that instance, in relation to his inability to subsist at an acceptable level.”[224]
[My emphasis and underlining]
[224] Ibid, page 239, lines 3-11.
Two further observations can be made. First, any re-settlement difficulties the Applicant says he may experience if removed to Bosnia-Herzegovina are more relevantly addressed in any discussion relating to impediments he may face upon his removal. Second, there is no evidence before the Tribunal as to how a risk of a fear of harm would manifest in the event of the Applicant experiencing difficulty in such a re-settlement exercise.
Findings and Allocation of Weight to Other Consideration (a)
I have found that the Applicant’s evidence of a fear(s) of harm upon his removal to Bosnia-Herzegovina does not constitute a properly detailed or articulated claim about the harm he may face if so removed. It is thus unsafe to find that this particular claim(s) of the Applicant rises to the threshold of a “clearly articulated and substantial or significant representation of risk of harm.”[225] Accordingly, I do not consider that any of the Applicant’s contentions engage any non-refoulement obligations this country may otherwise owe him.
[225] Omar, at paragraph [39].
Consequently, I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations. To the extent that this Other Consideration (a) may weigh in favour of revocation, it is of slight weight only. It is determinatively outweighed by the heavy weight I have attributed to the Primary Considerations A and C, and that I may attribute (against the Applicant) to the relevant Other Considerations.
(b) Strength, nature and duration of ties
The Respondent made the following concessions during submissions:
“Now as far as ties with the community is concerned, ordinarily one would clearly accept that the applicant’s family, his mother and his sister, would be adversely affected by the applicant’s removal from Australia. And I don’t propose to submit anything different.
…
“I don’t propose to submit anything other than that the family will be adversely impacted in terms of their emotional state by the applicant being removed from Australia.”[226]
[226] Transcript, 13 March 2020, page 242, lines 36-39 and page 243, lines 4-6.
Upon an application of the factors appearing in paragraph 14.2 of the Direction, I am of the view that the position taken by the Respondent is correct, subject to my following findings. The Applicant was born in July 1983 and arrived in Australia in April 2001. He has spent approximately half of his life in Australia. He first offended in this country in about November 2003, which is slightly more than two years after his arrival in Australia. Applying paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances – that is, where the Applicant began offending soon after arriving in Australia.
There is evidence that the Applicant has made some contributions to Australia. I have earlier outlined positions of paid employment he has held here. There is no reference to any community participation or contributions appearing in the Applicant’s Personal Details Form or in any of his three abovementioned written statements. The highest his evidence goes with regard to community participation appears in his statement of 28 January 2020, where he says:
“I plan to be connected to a mosque when I am released into the community. In Australia I am blessed that I can practise [sic] my faith freely. If I am released into the community I plan to stay with my friend and colleague, Mr MR, earlier mentioned. There is a mosque near his home that I plan to attend in my free time. I also hope that once I’m ready to move out on my own I will find a place close to a mosque so I can attend after work.”[227]
[227] Exhibit 4, Applicant’s Material, AM521.
His community contributions and participation is largely speculative and non-existent. However, I am of the view that his paid employment contributions do attract some weight in the Applicant’s favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
Greater (but not determinative) weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). As mentioned, he has no biological or other children in Australia and is not married or otherwise domestically partnered. His Personal Details Form reveals his mother, his half-sister and step-father reside here.[228] There is no reference to any uncles/aunts, nieces/nephews, cousins or grandparents to whom the Applicant is related residing in either Australia or Bosnia‑Herzegovina.
[228] Exhibit R2, Remittal Bundle, RB19, page 309.
There is a likelihood that the Applicant’s mother and half-sister would be impacted by his removal to Bosnia-Herzegovina. In his statement of 7 September 2016, the Applicant said:
“k. The impact of me being deported to a country where my life will be in danger and I could get executed would mentally break her [the Applicant’s mother]. She keeps saying ‘you never hurt anyone, you never abused no one and you never killed no one, you’re loving and caring just like me, your life and drugs led you astray, you’re a good person, why don’t they help you.”[229]
[229] Ibid, RB1, page 23.
In his statement of 28 January 2020, the Applicant said:
“37. I know that my mother will be terrified if I am forced to return to Bosnia. She knows the risks of harm that I face there are very real and she fears that she will lose me again. She knows that my language ability is childlike, that I don’t know anything about that country, that I don’t have any skills to get a job and even if I did the unemployment rate is 50%. I think this will kill the last bit of hope and fight that she has in her.”[230]
[230] Exhibit 4, Applicant’s Material, AM523.
As against that, it should be noted that neither the Applicant’s mother, nor his half-sister, have provided any supportive oral or written evidence to support the Applicant in these proceedings. The sister is apparently well-educated and it is difficult to accept that she does not have the intellectual wherewithal to (1) understand the seriousness of the instant proceeding, and (2) assist the Applicant by providing some kind of ameliorative or supportive statement. She has not done so.
Likewise, I accept that the Applicant’s mother does have to contend with mental health issues of her own, but this should surely not preclude her from providing some kind of (at least) written support on behalf of her son. The position of the mother, in particular, is unusual in circumstances where (1) her position of silence is at odds with what the Applicant has to say about the impact of his removal on her, and (2) the Applicant’s half‑sister could have readily collaborated with the Applicant’s legal representatives in the preparation of a statement by the mother. Despite this, there is no statement from the Applicant’s mother. At best, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of moderate weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests and (d) Impact on victims
There is agreement between the parties that neither of these Other Considerations (c) or (d) have application to the instant facts. In submissions, the Applicant’s representative said: “In relation to the impact on Australia’s business interests and the impact on victims, no submissions are made.”[231] Also in submissions, the Respondent’s representative said: “…I agree with my learned friend that there’s no relevance to either victims or to businesses.”[232]
[231] Transcript, 13 March 2020, page 227, lines 11-12.
[232] Ibid, page 242, lines 30-31.
Accordingly, these Other Considerations (c) and (d) are not relevant to determination of this application and are thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.

The Applicant contends that:
“57. In terms of re-integration difficulties, the Applicant has not returned to Bosnia and Herzegovina since his departure at the age of 16 in 1999. He has no meaningful employment or community ties there, and would face great difficulty reintegrating after 18 years in Australia.
58. More generally, country information about the situation for returnees indicates that they face numerous obstacles to resettlement, including accessing labour markets, social benefits and healthcare [footnote in original omitted].
…
62. A large segment of the population experiences depression, anxiety and other disorders related to stress including acute psychotic disorders as a result of their lived experience during the War…
63. This of course is not abstract but directly relevant to the Applicant, given his history of mental illness…
64. The Applicant does not have any functioning relationship with his father, who is assumed to be still living in Bosnia – it will be recalled that the father was violent towards the Applicant as a child…”[233]
[233] Exhibit 4, Applicant’s Materials, AM42-44.
In his Personal Details Form, the Applicant records the following under the heading “Health Information”:
“Do you have any diagnosed medical or psychological conditions?
(The Applicant did not tick either the ‘yes’ or ‘no’ box)
If yes, please provide details of the condition/s and explain what treatment you are receiving (e.g. if you are on any prescription medication or you are receiving counselling. Also, please show below the name of any medications and what conditions they were prescribed for.)
Depresion & angsaity currently on medication adwansa and Lirika [errors in original].

Name of medication

Condition prescribed for

If you are currently being treated by any doctor/health professional/counsellor, please provide their name/s and contact details.

Name

Type (eg – doctor, physiotherapist)

Address/phone number/email address, if known

Psychologist

Suport Leter

…”[234]
[234] Exhibit 2, Remittal Bundle, RB19, page 314. Note: the psychologist referred to in Ms Wu and her abovementioned but undated report that appears in the material at RB19, page 324.

The material contains a document titled “Human Development Indices and Indicators: 2018 Statistical Update; Briefing Note for Countries on the 2018 Statistical Update; Bosnia and Herzegovina.”[235] This document runs for 7 pages and contains a reference to what it describes as a “Human Development Index (HDI)”. The document explains that:
“The HDI is a summary measure for assessing long-term progress in three basic dimensions of human development: a long and healthy life, access to knowledge and a decent standard of living. A long and healthy life is measured by life expectancy. Knowledge level is measured by mean years of education among the adult population, which is the average number of years of education received in a life-time by people aged 25 years and older; and access to learning and knowledge by expected years of schooling for children of school-entry age, which is the total number of years of schooling a child of school-entry age can expect to receive if prevailing patterns of age-specific enrolment rates stay the same throughout the child’s life. Standard of living is measured by Gross National Income (GNI) per capita expressed in constant 2011 international dollars converted using purchasing power parity (PPP) conversion rates.”[236]
[235] Exhibit 3, Respondent’s Further Documents, page 1043.
[236] Ibid.
The Tribunal was referred to the table appearing in this document titled “Table A: Bosnia and Herzegovina’s HDI trends based on consistent time series data and new goalposts.”[237] It is clear from this table that in 1990, the GNI per capita figure for Bosnia‑Herzegovina was 1,562 (expressed in constant 2011 international dollars converted using PPP conversion rates). By 2010, this figure had increased to 9,879. By 2017, this figure had increased to 11,716. According to the HDI value defined in the document, a GNI per capita figure of 11,716 in 2017 is sufficient to place Bosnia‑Herzegovina in the category of “high human development” for the purposes of the relevant United Nations Development Plan.
[237] Ibid, page 1044.
As noted by the Respondent, these figures do not necessarily mean that Bosnia‑Herzegovina -enjoys the same level of national wealth as does Australia. However, nor can it be said that Bosnia-Herzegovina can be reasonably depicted as a third-world backwater, the development of which is perpetually affected by past or future political instability and conflict. On any reasonable reading, the national wealth of Bosnia‑Herzegovina as defined by its GNI per capita figures has increased more than seven-fold in the 17 years between 1990 and 2017.
Likewise, with particular reference to labour force participation rates, Bosnia-Herzegovina has, with particular reference to a male labour force participation rate of 58.7%, a comparable rate of labour force participation to other countries in Europe and Central Asia (70.3%).[238] While Bosnia-Herzegovina may lag marginally behind other European and Central Asian countries, its labour force participation rate of almost 60% is supportive of a contention that this Applicant, with his skills and experience developed in the building industry in this country, is more likely than not to source remunerative employment such that he can be reasonably expected to establish a satisfactory standard of living.
[238] Exhibit 3, Respondent’s Further Documents, page 1047.
With particular reference to support the Applicant may require for his mental health symptomatology, reference ought to be had to a document in the material titled “The mental health context in Bosnia and Herzegovina”.[239] Relevantly, this document provides that the region of Bosnia-Herzegovina (“BiH”):
“…has made significant progress in the area of mental health reform, which was launched in 1996 focusing on community-based mental health. BiH is the only country in South-East Europe [SEE] region that has set up a network of 74 community-based mental health centers which provide services to 3.8 million residents. The centers employ multi-disciplinary teams comprising psychiatrists, psychologists, social workers and medical nurses: some centers, however, also employ occupational therapists, defectologists, speech therapists – somatotherapists, child psychiatrists. The essential change of the context of service provision in mental health implies a decrease in the rate of psychiatric bed occupancy, opening a network of mental health centers, a multi-disciplinary approach and teamwork, development of other community-based services and improvement of inter-sectoral cooperation. These processes aim to build an effective, efficient and quality mental health service focused on the user needs and accessible to as many people as possible in the context of the integrated system of service delivery. The mental health care system needs to protect human rights, ensure gender equality and efficiently respond to diverse needs of the population especially of the most vulnerable groups.
Mental health services in the Federation of Bosnia and Herzegovina are provided in a network of 45 community-based mental health centers (CMHCs), where each center has 10 beds available on psychiatric wards in general hospitals for acute cases. Secondary and tertiary health care services are provided by the teaching clinical centers in Sarajevo, Tuzla and Mostar and 9 psychiatric wards in general hospitals (694 beds) in other major cities…”[240]
[Emphasis in original, my underlining]
[239] Ibid, pages 1040-1042.
[240] Ibid, page 1040.
Regard must be had to the ambit of paragraph 14.5(1) of the Direction which stipulates that the extent of any impediments to be confronted by the Applicant if removed from Australia – in terms of establishing himself and maintaining basic living standards – is to be considered in the context of what is generally available to other citizens of that country. In my view, the abovementioned range and extent of mental health services in Bosnia‑Herzegovina mean that the Applicant will be entitled to the same access to those facilities in the same manner and to the same extent as they are available to other Bosnian citizens. More generally, he will also have access to the same level of governmental/social support to the same extent as that which is available to other citizens of Bosnia‑Herzegovina.[241]
[241] Section 14.5(1)(c) of the Direction.
It is acknowledged that the level of mental health and general health facilities in Bosnia‑Herzegovina may not be to the same standard as that experienced by the Applicant in Australia. While the Applicant contends that he does have certain mental health symptoms/conditions, much of his work experience in this country has involved him performing tradesman-type roles, and it would not appear that the claimed symptoms/conditions have impacted upon his capacity to perform those remunerative tasks while he has been in the Australian community.[242]
[242] Section 14.5(1)(a) of the Direction.
The Applicant resided in Bosnia-Herzegovina for at least the first 16 years of his life. It can be fairly said that there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Bosnia-Herzegovina.[243] To the extent he may face some difficulty in re-establishing himself in Bosnia-Herzegovina, this would only present as a relatively short-term hardship and would not preclude his successful re‑settlement there.
[243] Section 14.5(1)(b) of the Direction.
He has a relatively strong employment history in Australia, with specific and demonstrated skills in tiling, plastering and gyprocking. There is little evidence in the material to cavil with a contention that the Applicant will be able to deploy the work experience and skills he has obtained in Australia to re-establish himself in Bosnia-Herzegovina. While he may face impediments upon a return to Bosnia-Herzegovina, it could not be reasonably expected that those impediments would be insurmountable.
The evidence disclosed that the Applicant does have some (albeit limited) family connections in Bosnia-Herzegovina. The evidence demonstrated that he has re-established contact with his father during the last year or so and that he speaks with his father approximately once per month. While it is not suggested that the Applicant’s relationship with his father is necessarily a close one, it is not unreasonable to make a tenuous presumption that this relationship can develop over the course of time. It can also be accepted that the Applicant’s grandparents who live in Bosnia-Herzegovina are not people of means. That said, his relationship with those grandparents has always been a loving and caring one, and, again, it is not unreasonable to make an albeit tenuous presumption that he would, at least on an initial basis, receive some measure of accommodation and other from them support until he more fully re-establishes himself in Bosnia-Herzegovina.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) weighs moderately in favour of the Applicant with reference to determination of this application. I am of the further view that this weight does not outweigh the combined weight I have allocated to Primary Considerations A and C, both of which favour non-revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: weighs slightly in favour of revocation;
·strength nature and duration of ties: of moderate weight in favour of revocation;
·impact on Australian business interests: not relevant and thus neutral;
·impact on victims: not relevant and thus neutral; and
·extent of impediments if removed: is of moderate weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B is not relevant and is thus neutral; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to all of the applicable Other Considerations, combined, outweighs the very significant combined and determinative weight I have attributed to Primary Considerations A and C.
A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding three-hundred and seven (307) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

..............................[SGD]..........................................
Associate
Dated: 27 August 2020

Date of hearing: 19 and 20 February, and 13 March 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Nicholas Mutton

Asylum Seeker Resource Centre

Solicitor for the Respondent: Mr David Brown (Senior Lawyer)
Australian Government Solicitor
“A”
EXHIBIT ANNEXURE

Exhibit Number	Description of Evidence
1	Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 8 October 2019
2	Remittal Bundle (two volumes) (pages 1-1027)
3	Respondent’s Further Documents filed on 11 October 2019 (pages 1028-1050)
4	Applicant’s complete bundle of documents, filed with the Tribunal on 28 January 2020 (pages 1-566)
5	Transcript – Tribunal Hearing Day 1 (17 October 2016) (pages 1-67)
6	Transcript – Tribunal Hearing Day 2 (18 October 2016) (pages 68-128)

[2020] AATA 3198

27 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

*Name*	*Type (eg – doctor, physiotherapist)*	*Address/phone number/email address, if known*
Psychologist	Suport Leter