HWLJ and Minister for Home Affairs (Migration)

[2019] AATA 6931

HWLJ and Minister for Home Affairs (Migration) [2019] AATA 6931 (21 October 2019)

Division:GENERAL DIVISION

File Number(s):2019/4650      

Re:HWLJ

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:21 October 2019

Place:Sydney

The decision under review is affirmed.

.............[Sgnd]......................................................

Senior Member B J Illingworth

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – convicted of sexually based offences involving a child - whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCA 500

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197

Oluwafemi v Minister for Home Affairs [2018] AATA 690

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

Jacek Debiec, “A sudden and lasting separation from a parent can permanently alter brain development”, The Conversation (online), 22 June 2018, < FOR DECISION

Senior Member B J Illingworth

21 October 2019

INTRODUCTION

1. This matter relates to an application for review filed by HWLJ (“the Applicant”) on 1 August 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 29 July 2019 not to revoke the mandatory cancellation of his Class BB Subclass 155 (Five Year Resident Return) visa.

2. At the hearing before the Tribunal, the Applicant appeared in person and was represented by Mr Michael Jones, Parish Patience Immigration Lawyers. The Respondent was represented by Ms Mia Donald, Sparke Helmore Lawyers.

   BACKGROUND

3. The Applicant is a 43-year-old citizen of Sierra Leone, Africa, born in December 1975.

4. The Applicant described a traumatic childhood. He was the child of his father’s second of two wives and he was subjected to abuse at the hands of his father, who would often beat him with a stick. This continued until just after the Applicant started high school. The Applicant was also subjected to long-standing sexual abuse as a child at the hands of a female friend of his adult sister. He also witnessed horrific events during the civil war between 1991 and 2002.

5. The Applicant attended university and, when aged 19, he fathered a daughter, who was born in December 1994. His university studies were, on occasions, interrupted during the civil war and he had to escape to neighbouring countries. He graduated in 2000. He thereafter obtained a diploma certificate in data processing and, in 2002, was employed as an account officer/relationship manager with a bank in Sierra Leone.

6. In 2004, he was employed by the United Nations Peace-Keeping Mission in Sierra Leone and, in May 2006, he secured a position in Sudan as an advisor on a disarmament, demobilise and reintegration program. He met his wife (“NM”) in Sudan. She is an Australian citizen and was employed as a Child Protection Specialist for an international non-governmental organisation (“NGO”). They married in August 2008 in Khartoum.

7. In 2009, NM accepted a position as Chief of Child Protection for an international NGO in the Philippines. The Applicant and NM moved to the Philippines. The Applicant was employed as program manager for children on armed conflict programs. In November 2010, their daughter (“ML”) was born in the Philippines. Whilst living in the Philippines, the Applicant was demonstrating signs of mental health issues and drug abuse.

8. In 2011, the Applicant and his family moved to Australia and resided in Melbourne. NM obtained employment with a Government department, however the Applicant had difficulty obtaining employment in Australia.

9. In September 2011, and at the recommendation of his counsellor, the Applicant travelled alone to Hobart for a short one week holiday. On 18 September 2011, he there committed offences of assault with indecent intent and indecent assault on two 16-year-old male youths. He pleaded guilty to those charges and, on 30 March 2012, Justice Evans of the Supreme Court of Tasmania sentenced the Applicant to six months imprisonment and the Applicant’s name was placed on the Sex Offenders Register with conditions to comply with reporting obligations for seven years.

10. On 5 June 2014 in Victoria, the Applicant committed two acts of indecent assault upon two young men aged 20 and 21 years. On 10 February 2016, the Applicant appeared before the Sunshine Magistrates Court, Victoria, and pleaded guilty to two charges of indecent assault and received a concurrent sentence of 70 days imprisonment, being time already served in custody.

11. The Applicant and his family moved to New South Wales where the Applicant committed numerous driving offences including driving whilst disqualified, drink driving, drug driving, breaches of Community Service and Intensive Correction Orders and entering enclosed land without lawful excuse. He was sentenced for his recidivist offending between 1 March 2017 and 5 October 2018.

12. On 2 August 2018, the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa was cancelled under s 501(3A) of the Migration Act 1958 (“the Act”), as a delegate was satisfied that he did not pass the character test because of the operation of s 501(6)(e) of the Act (sexually based offences involving a child) and because he was serving a full-time sentence of imprisonment at Hunter Correctional Centre in New South Wales for driving a motor vehicle while disqualified (“the Original Decision”).

13. On 29 August 2018, the Applicant made representations seeking revocation of the mandatory visa cancellation within the period and in the manner specified.

14. On 29 July 2019, a Ministerial delegate decided that the Minister was not satisfied that the Applicant passed the character test; nor was there another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.

15. On 1 August 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.

    LEGISLATIVE FRAMEWORK

16. Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)paragraph (6)(e) (sexually based offences involving a child); and               

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

17. Relevantly, s 501(6)(e) of the Act states:

    (6) For the purposes of this section, a person does not pass the character test if:

    …

    (e) a court in Australia or a foreign country has:

    (i) convicted the person of one or more sexually based offences involving a child; or

    (ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

    …

18. Pursuant to 501(6)(a) of the Act, a person also does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    …

19. Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.

    ISSUES

20. The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:

    (a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or

    (b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

21. The Applicant concedes that he does not pass the character test because he has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more, and that this amounts to a “substantial criminal record” as defined by s 501(7) of the Act. The Respondent agrees.

22. However the Applicant, in his Statement of Facts, Issues and Contentions (“SOFIC”) at paragraphs 7 – 11 inclusive, submits that he does not fail the character test because of the operation of s 501(6)(e) of the Act. The Applicant submits that, in respect of his Tasmania offences, he has always claimed that he believed the complainants to be in their “early to mid-twenties” and whether or not the Applicant was convicted of a sexually based offence involving a child is a factual matter for the Tribunal to determine on the available evidence. He argued that, unless the Tribunal is satisfied that in respect of each offence the complainant was a child, the Tribunal should find that ground on which his visa was cancelled is not made out.

23. The Applicant submits that there is insufficient evidence for the Tribunal to be satisfied that, in respect of the Tasmanian offending, the Applicant was rightly convicted of a sexually based offence involving a child. This is despite the fact that on 30 March 2012, in the Hobart Supreme Court, the Applicant was, by his plea of guilty, convicted and sentenced for sexual offending directed at two male youths both under the age of 17 years. The Tribunal will return to this argument and the Applicant’s offending generally later in the decision.

24. Nonetheless, it is accepted that the Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

25. In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:

    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)The performance of those functions; or

    (b)The exercise of those powers.

26. The relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.

    Ministerial Direction No. 79

27. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)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 to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (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.

    (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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

28. Paragraph 8 of the Direction provides:

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One of more primary considerations may outweigh other primary considerations.

29. The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation.  Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.

30. Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)       The best interests of minor children in Australia; and

    (c)       Expectations of the Australian community.

31. The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties;

    (c)       Impact on Australian business interests;

    (d)       Impact on victims; and

    (e)       Extent of impediments if removed.

32. The Tribunal will now address these considerations.

    Primary Consideration A: Protection of the Australian community

33. Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:

    (1)When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2)Decision-makers should also give consideration to:

    (a)The nature and the 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.

34. The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.

    (1) The nature and seriousness of the Applicant’s conduct to date

35. Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a)The principle that… violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g)…

    (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …

    The Criminal Offending

36. The Applicant’s antecedent history is contained in the G Documents at pages 24 – 26. It is summarised in a schedule in the Respondent’s SOFIC which the Tribunal reproduces with amendments as follows:

Item Number	Court date	Offence	Sentence
1	5 October 2018 (Hornsby Local Court)	Enter enclosed land not presc premises w/o lawful excuse	Fine: $200
2	28 August 2018 (Waverly Local Court)	Drive motor vehicle during disqualification period – 2nd + off	(call up) Imprisonment: 3 months and 19 days commence 10/05/2018 conclude 28/08/2018
3	28 August 2018 (Waverly Local Court)	Drive motor vehicle during disqualification period – 2nd + off	(call up) Imprisonment: 3 months and 19 days commence 10/05/2018 conclude 28/08/2018
4	14 March 2018 (Manley Local Court)	Drive motor vehicle during disqualification period – 2nd + off	Intensive correction order: 8 months commencing on 14/03/2018 concluding 13/11/2018
5	14 March 2018 (Manley Local Court)	Drive motor vehicle during disqualification period – 2nd + off	(call up) Bond s9: 2 years supv NSW prob service
6	14 March 2018 (Manley Local Court)	Drive motor vehicle during disqualification period – 2nd + off	Bond s9: 3 years to attend for counselling, educational development, drug or alcohol rehab. Supv NSW prob service Disqualification- Driver: 6 months commencing 14/03/2018 concluding 13/09/2018
7	14 March 2018 (Manley Local Court)	Drive vehicle, illicit drug present in blood etc- 1st off	Fine: $400 Disqualification- Driver: 6 months commencing 14/03/2018 concluding 13/09/2018
8	20 September 2017 (Waverly Local Court)	Drive motor vehicle during disqualification period- 2nd + off	Community service order: 75 hours cumulative Disqualification- Driver: 2 years disqualification (habitual offender); quashed
9	20 September 2017 (Waverly Local Court)	Drive motor vehicle during disqualification period- 2nd + off	Community service order: 100 hours cumulative Disqualification- Driver: 2 years disqualification (habitual offender): quashed
10	6 June 2017 (Burwood Local Court)	Drive motor vehicle during disqualification period- 2nd + off	S10A conviction with no other penalty/statutory period-driver: disqualification (habitual offender: quashed
11	5 June 2017 (Downing Centre Local Court)	Drive motor vehicle during disqualification period- 1st off	Bond s9: 2 years Disqualification: 2 years
12	5 June 2017 (Downing Centre Local Court)	Special category driver drive with special range PCA- 1st off	Fine: $550 Disqualification- driver: 6 months
13	1 March 2017 (Belmont Local Court)	Drive with low range PCA- 1st off	Fine: $300 Disqualification- driver: 3 months attend for ID & fingerprinting
14	1 March 2017 (Belmont Local Court)	Drive with low range PCA- 1st off	Fine: $500 attend for ID & fingerprinting: and to submit to the taking of particulars of identification, namely fingerprints to present himself/herself to the officer in charge of police at Belmont within 48 hours Disqualification- driver: 3 months
15	1 March 2017 (Belmont Local Court)	Possess prohibited drug	Dismissed s 10
16	5 August 2016 Pending charge	Drive whilst authorisation suspended	At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt
17	10 June 2016 Pending charge	Drive whilst authorisation suspended	At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt
18	10 February 2016 (Sunshine Magistrates Court	Indecent assault (2 charges)	Aggregate 70 days imprisonment. Concurrent
19	10 February 2016 (Sunshine Magistrates Court	Fail to comply with reporting obligations	With conviction, fined $1500.00
20	6 June 2014 (Werribee Magistrates Court)	Fail to comply with reporting obligations	Without conviction, fined $500.00 with $73.20 statutory costs
21	30 March 2012 (Hobart Supreme Court)	Assault with indecent intent; Indecent assault	Conviction recorded. Sentenced to 6 months imprisonment. Ordered that name to be placed on register pursuant to the community protection (offender reporting) Act 2005 and to comply with reporting obligations under that Act for 7 years

Tasmania offences

1. The Applicant arrived in Australia in 2011 and his first offences were committed approximately six months later in Tasmania on 18 September 2011, for which he was sentenced on 30 March 2012. The factual circumstances of his offending are contained in the learned sentencing judge’s sentencing remarks as follows:[1]

   On the 18 September 2011 the defendant was staying at [a] Hotel. In the early hours of that morning as he walked down Macquarie Street he came upon a man aged 36 who’d been drinking at the hotel the previous night. They recognised each other and engaged in idle conversation. The defendant placed his arm around this man’s shoulder and asked if he would like to return to his hotel room for a few drinks. When this man refused the defendant said, “Oh come on”, and placed his arms around the man and began kissing his neck and squeezing his buttock. The man told the defendant he was barking up the wrong tree and they parted.

   Subsequently at about 9:00 a.m. the defendant approached a sixteen year old male waiting for a bus at Franklin Square. The defendant went to shake the youth’s hand, pulled him towards him, dropped his left hand and grabbed hold of the right cheek of his buttock and squeezed it. Notwithstanding that the youth took offence at this the defendant tried to get him back to his hotel room. This harassment continued for about three minutes until the youth’s bus arrived and he was able to board it. This conduct is the subject of the defendant’s conviction on the charge of assault with indecent intent.

   Thereafter at about 9:15 am the defendant approached another male youth in the Hobart Mall. The defendant tapped this youth on the shoulder and asked whether he wanted to come back to his hotel room with him. When the youth declined the defendant struck him to the chin, but not sufficiently hard to mark or injure him. When the youth persisted with his refusal to go with the defendant the defendant grabbed his jumper. The youth was vulnerable, he was sixteen years of age, he was living in a shelter and was estranged from his father and his level of concern was heightened by the death of a friend some nine months previously. Scared and intimidated, the youth accompanied the defendant. As they walked to the hotel the defendant told the youth he’d taken speed which made him horny, the youth told the defendant to get a prostitute.

   When in the defendant’s hotel room the defendant offered the youth a drink, which the youth declined. The youth went to the bathroom in the passage of the hotel with a view to getting away. The defendant followed him and told him not to nick off. The only stairwell from that part of the hotel went past the defendant’s room. When the youth exited the bathroom the defendant was standing at the door of his room wearing underpants only. The defendant was agitated and offered the youth twenty dollars to stay. The youth backed away and the defendant grabbed him by his jumper, hugged him and ground his penis against youth’s right leg. Next the defendant grabbed the youth, struck him to the right cheek and threw him to the ground. The defendant asked the youth to have anal sex with him. The youth was terrified and tried to talk his way out before conceding. The defendant removed youth’s pants and started masturbating him. The defendant removed his own pants and when completely naked went to his knees in a hunched position and guided the youth’s penis between the defendant’s buttocks. The youth was crying. This incident continued for a minute before it stopped and the youth was able to leave. There was no penetration. The youth felt dirty and disgusted by the smell of the defendant on his clothes and had several showers when he returned to his accommodation, scrubbing each time. He burnt his jumper as it smelt of the defendant. The experience – or the episode has had a profound and adverse impact on this youth.

   This conduct is the subject of the Applicant’s conviction for indecent assault.

   [1] Exhibit A, G Documents, pages 32 – 34.

2. The learned sentencing judge noted that when interviewed the same day, the Applicant said that he’d been “really drunk and had taken speed”. The Applicant acknowledged giving the youth at the bus stop a hug and ultimately agreed he may have touched his bottom with his hand. As to the second youth, the Applicant said that they went to his hotel so that he could give the youth cash for a bus fare, which he did, and he denied any criminal conduct.

3. The learned sentencing judge summarised the offending as follows:

   In summary, on the morning in question the defendant, when intoxicated, embarked on an indiscriminate search for a partner to provide him with sexual gratification. He paid little regard to the age of those he propositioned or their interest in what he had in mind. He ultimately intimidated a vulnerable sixteen year old youth into accompanying him to his hotel room. Whilst the force that the defendant used to intimidate the youth was not great it was sufficient for the defendant to achieve his criminal objectives. I consider that the only appropriate penalty for the defendant’s criminal conduct is an immediately effective sentence of imprisonment …

4. The Tribunal received into evidence the Respondent’s Tender Bundle[2] (excluding documents 4(B), 6(C), 12(C) and 12(D)). Exhibit B included:

   (a)the transcript of audio record of interview with the victim of the second offence in which he said he was 16 years of age and born in 1994;[3]

   (b)redacted statutory declarations of both victims with 1994 as their years of birth;[4] and

   (c)the Crown’s Statement of Facts which referred to both victims as being 16 years old.[5]

   [2] Exhibit B.

   [3] Ibid, at pages 17 – 49.

   [4] Ibid, at pages 143 – 144.

   [5] Ibid, at pages 152 – 157.

5. The Tribunal infers that these documents were before the learned sentencing judge and would also have been disclosed to the Applicant as part of the criminal prosecution process.

6. The Applicant maintained that, despite his pleas of guilty, he did not believe any sexual offence occurred with respect to either victim, and that he should not have pleaded guilty for something he did not believe he did. Further, he maintained he had no choice but to plead guilty on the basis of “negligible” advice provided by his legal representative.[6] The Tribunal understands the Applicant to mean “negligent” advice which was consistent with his evidence and that of his wife in the proceedings before the Tribunal.

   [6] Exhibit F, Applicant’s Statement of 6 September 2019, at paragraphs 20 – 21.

7. The Tribunal rejects the Applicant’s submission that the Tribunal must be satisfied that each complainant was a child. Albeit the documents referred to in paragraph 40 above are evidence capable of proving the complainants’ ages and does satisfy the Tribunal that each complainant was aged 16 years at the time of the offending, this submission is nonetheless fundamentally misconceived. The submission invites the Tribunal to engage in an enquiry that would impugn the essential facts found by the learned sentencing judge in the course of his deliberations concerning sentence and upon which the sentence was based. Those findings of fact include that each victim was aged 16 years at the time of the offending and this must be accepted by the Tribunal, which the Tribunal accepts. The Tribunal finds the Applicant was convicted of sexually based offences each involving a child.

   Applicant’s Evidence

8. The Applicant’s evidence in chief included a statement dated 6 September 2019,[7]  and further statement dated 30 September 2019[8] together with various documents contained within the Respondent’s G Documents.[9]

   [7] Exhibit F.

   [8] Exhibit G.

   [9] Exhibit A.

9. The Tribunal received a document headed “Statement/Recollection to Lawyer” dated 15 November 2011 and signed by the Applicant[10] which the Tribunal was advised was his instructions to his lawyer in respect of the offending in Tasmania. He there writes “I have been shocked, dismayed and confused over all these allegations that are forthcoming especially over a young man I met somewhere in the street of Hobart. I still cannot believe that someone could make up such horrible allegations against me”. In relation to the victim at the bus stop, he described a good and friendly conversation and was silent on any inappropriate touching. As to the second victim, he instructed that the victim had lost his wallet, didn’t have much cash, and the Applicant said “I felt sorry for him and as a humanitarian person and the person who always extends his hands to help everyone even the beggars and the homeless people in the street that I usually encountered” he invited him to his hotel to give him some cash. He then wrote “I am confused because I’m not quite sure whether someone is writing a story for this young man so that he can make all these fabrications against me, or, whether, this young man is indeed making up these stories because he wants me to pay the price of abuses he has suffered over the years since his childhood, may be, by his parents or other family members within his circle”. The Applicant denied any sexual misconduct. He said he was a married man - not a gay man - with two children and he would never attempt hurt a child, young person, or anyone, whether male or female. He described the allegations as “a story is so brutally fabricated against me”.

   [10] Ibid, at pages 545 – 547.

10. The Tribunal received a letter signed by the Applicant and dated 19 August 2018[11] in which he said “In 2012 I pled guilty to offences I did not commit because my legal aid lawyer advised it was the only option. This was in hindsight a large mistake, but I trusted my lawyer, and I have been paying for this ever since”.

    [11] Ibid, at pages 152 – 153.

11. In his statement dated 6 September 2019 under the heading “Tasmanian conviction”[12] he described drinking heavily after he booked into the hotel. He said he was sorry for his conduct and that he should never have interacted with the victim(s). He said he does not have the same recollection of events as presented to the Tasmanian Supreme Court and he does not have a clear recollection of the events as recorded by police. He referred to his mental health issues and drug issues that were impacting upon him at the time. He said “It still doesn’t mean that these incidences didn’t occur”. This is in stark contrast to the other documents prepared by the Applicant and referred to above, and is also in stark contrast to his evidence in cross-examination, in which he denied any inappropriate touching and maintained that the allegations of indecency were untrue.

    [12] Exhibit F, at paragraphs 18 – 24.

12. In cross-examination, the Applicant said that, during the evening before the offending, he was drinking whiskey and did not have a full recollection of that night. He recalled attending a club where he met an elderly man whom he said was in his early 50s. He had seen this individual before and thought he was following him. The Applicant went outside the hotel for a smoke. The gentleman joined him and gave him a drug which the Applicant ingested. The Applicant said it looked like salt and it had a similar effect to methamphetamine, but he did not know what the drug was.

13. The Applicant was directed to his record of interview[13] conducted on 20 September 2011 in which he described the drug as speed. The Applicant accepted that he told police the drug was speed but said that, even to the day of the hearing before this Tribunal, he did not know the drug that was given to him. He said that a lot of drugs were suggested to him by police during the course of the record of interview. However, the Tribunal notes there is no evidence of such conversation on the transcript.

    [13] Exhibit B, Respondent’s Tender Bundle, pages 50 – 140, at page 51.

14. The Applicant’s attention was drawn to page 62 in which he said the drug he took was speed and the person that gave it to him said it was speed. He also said in that interview that the drug made him feel crazy, he couldn’t sleep, and it made him become very friendly and wanting to talk to everyone. The Applicant accepted the content of the record of the interview. The Applicant’s evidence before the Tribunal about his knowledge of the drug type was unreliable.

15. The Applicant was asked to outline his history of drug taking. His evidence was confusing. He said he only took chemical drugs when he came to Australia but, before that, he used to smoke cannabis. When he came to Australia he took methamphetamine. He said before 2011 he had not taken the drug ice, albeit he had taken other drugs at parties or social functions. He said he was not into drugs except at parties or social functions. He had taken cocaine, which he snorted, and consumed tablet drugs once or twice. He then said that, prior to 2011, he had only smoked cannabis. He said he had consumed MDMA in the form of a liquid, which he drank. He admitted to smoking cannabis when in the Philippines but could not remember if he had consumed any other drugs when living there.

16. The Applicant was again taken to his record of interview at page 65. He was asked if he had taken similar drugs before. He said he never had those drugs in his country (Sierra Leone), or even in Sudan, but he started having something like that when he went to the Philippines. He said, in reference to the Philippines, that was where he did drugs but his wife had been trying to stop him. This is in stark contrast to his earlier evidence that he only consumed chemical drugs after coming to Australia. Again, his evidence was unreliable.

17. The allegation in respect of the incident at the bus stop was put to the Applicant in the record of interview. He there denied squeezing the right buttock of the victim but admitted to giving him a hug. When asked if it was possible his hand dropped down, he said he remembered that his hand did not touch the victim’s buttock, he wouldn’t do that, and that such conduct was very inappropriate. He repeated it was very inappropriate and in a public place. When advised that there was a surveillance system mounted on buses showing an external view of the bus and that police were going to review the surveillance system, he then said it may be possible that his hand came down, but that he only remembered hugging the youth. When again asked if he squeezed his buttock, he said he didn’t, he can’t remember, he didn’t think he did it, but he was not one hundred percent sure. He later admitted it was possible that he touched the complainant’s buttock. He said he was not a normal person at the time.

18. He said in evidence that, as the victim was entering the bus, he tapped the victim on his back, and demonstrated with his right hand that he touched the area around the back of the victim’s head. He subsequently demonstrated to the middle of his back. When pressed by the Tribunal to clearly identify where he touched the victim, he demonstrated the area of the right-hand side of his mid to lower back, but not his buttock. He denied touching the complainant’s buttock.

19. In relation to the second offence, he said that the victim told him that someone stole his wallet, that he did not have any cash, and that he lived an hour out of Hobart. The Applicant said he paid for coffee, he told the youth that he had cash, and that the victim’s next bus was in two hours so they returned to the Applicant’s hotel.

20. The Applicant was then, in cross-examination, directed to his record of interview at pages 96 - 98. There, he denied hugging the second victim and pressing his groin against him in what was described as a grind. In evidence, he said he could not remember but it was possible he hugged him. He then said he did not touch the victim and did not hug him. At page 127 of his record of interview, he denied hugging the victim and then said the victim was a bad boy and was making it up. This is to be contrasted with his later evidence before the Tribunal that he hugged him with one arm as he left his hotel via the stairs, but denied any inappropriate sexual contact. He did accept that he was only wearing his underpants when this occurred.

21. The Applicant said that what he did was wrong. The Tribunal asked the Applicant to explain what of his conduct was wrong. He said he shouldn’t have spoken to him, shouldn’t have invited him to his room, shouldn’t in retrospect be hugging an under-age boy, shouldn’t have been under the influence of drugs, and shouldn’t have been in that situation. Nevertheless, he maintained the allegations of indecency were untrue.

22. The Applicant’s evidence was disingenuous. His evidence relating to the offending in Tasmania lacked credit and reliability. His lack of memory may in part be due to the effects of drugs and alcohol, but the Tribunal does not accept his evidence of denial of indecent behaviour. In any event, it is the findings of the learned sentencing judge that the Tribunal must accept.

    Victorian offences of indecent assault

23. On 10 February 2016, the Applicant appeared for trial before the Melbourne Magistrates Court charged with two counts of indecent assault committed on 5 June 2014. Both complainants were present in court. There was also a charge of drive whilst suspended before the court. Following a request for an indication with respect to potential penalty in respect of all matters, the Applicant pleaded guilty on an agreed factual basis which can be summarised as follows:

    (a)On 30 March 2012 in Tasmania, the Applicant was convicted of two sexual offences with persons under the age of 17 years.

    (b)On Thursday, 5 June 2014 at 12:15 p.m. the Applicant approached Mr VD and had a conversation with him in which the Applicant invited Mr VD to his hotel. Mr VD accepted the invitation and put his bicycle in the back seat of the Applicant’s car. After driving for some time, Mr VD realised they were not driving to the hotel. He asked the Applicant where they were driving to. The Applicant said he had to go somewhere first. When they reached a park, the Applicant parked his vehicle behind two shrubs. The Applicant produced an ice pipe from underneath his chair and a small amount of methamphetamine. The Applicant started smoking the drug. Mr VD told the Applicant he only wanted beer. The Applicant reached behind a chair and produced a beer for Mr VD. In the course of conversation, the Applicant said that he had been smoking methamphetamine since he arrived in Australia three years previously.

    (c)The Applicant asked Mr VD if he had ever tried a blowback. Mr VD said he did not know what that was. The Applicant then put his left hand around Mr VD’s neck, pulled his head towards him, and the Applicant started kissing Mr VD and blew smoke from his pipe into Mr VD’s mouth. Mr VD tried to pull away but the Applicant was too strong. The Applicant inserted his tongue into Mr VD’s mouth and blew smoke into his mouth. During this interaction, the Applicant caused a small scratch to the right side of Mr VD’s neck with his fingernail. Mr VD was stunned and nervous. The Applicant began talking about having sex with males and that Mr VD should try it with the Applicant and another male. The Applicant talked about MDMA making him “horny”. He then grabbed Mr VD in the same way, three or four times more, and blew smoke into his mouth.

    (d)Mr VD was shocked and pleaded with the Applicant not to put his tongue in his mouth again and to drive him to the hotel. Park rangers then arrived and asked the Applicant to move the vehicle, which he did.

    (e)While driving to the hotel, there was a conversation about sex. The Applicant placed his hand on Mr VD’s groin. Mr VD shook the Applicant’s hand away and asked him to stop. At the hotel, the Applicant refused Mr VD’s request to take his bike out of the car so he could ride home. The Applicant said he would drive him home. They both entered the hotel. The Applicant said that he had another friend who was on his way to meet them. Mr VD went to the toilets and telephoned the manager from his place of work to come and help him.

    (f)Upon returning to the bar, the Applicant introduced Mr VD to another male, Mr VP, who had just arrived. Mr VD’s manager soon arrived and, with his assistance, the bicycle was removed from the Applicant’s car. The Applicant told Mr VD he wanted to meet up later and he would telephone Mr VD at about 8 p.m. Mr VD and the manager left.

    (g)Mr VP remained with the Applicant and there was discussion about how great it was to have sex whilst affected by MDMA. Mr VP told the Applicant that he did not do drugs. The Applicant said “hey, come on, man.” and, with an upward motion with his hand, touched Mr VP’s penis with his index finger.

    (h)Mr VD went to the police station and while there at about 7.05 p.m. the Applicant sent Mr VD text message to meet up at around midnight. Mr VD declined the invitation and said “… I’m not happy about you kissing me or being touchy feely.” The Applicant responded “Fuck, I’m sorry about it, mate. I was really out of my face and was hard to control myself. Not like that when I’m my normal self, sorry about it though. Please don’t go and talk about me around to your mates and other people I don’t know. It will not happen again, okay.” The Applicant sent another message which read “I hope you would try to understand and not get upset with me, mate. Again, sorry about it, yeah.” This was followed by a further message “I hope you will try not to get upset with me, mate. Again sorry about it though.”

    (i)Mr VD provided blood and urine samples to police, which, when tested, showed the presence of methamphetamine in both samples.

    (j)During the record of interview, the Applicant denied any criminal conduct but said that if he had done anything that the investigators were suggesting, it would have been between “consensual adults”.

1. The Applicant through his counsel agreed to the above summary of the facts of the matter.

2. The Applicant’s antecedent history, including reference to the offences in Tasmania involving underage males with an element of violence, was admitted.

3. Mr VD had provided a victim impact statement which included the following:

   (a)that he felt violated being touched in places he didn’t want to be touched;

   (b)he lost trust in people, felt vulnerable and intimidated around other men;

   (c)the offending caused strain on his family and his relationships, including sexual relationship;

   (d)he felt dirty, lost his job due to stress and easily becomes violent;

   (e)he drinks heavily and is seeing a counsellor;

   (f)he suffers from anxiety, including in big crowds and anxiety dealing with the proceedings before the court;

   (g)the conduct had taken a toll on the way he raises and deals with his children; and

   (h)that his relationship broke apart for three months, he was drinking heavily, he was not wanting to be touched, not wanting sexual activity, had lack of trust and constant anxiety for two years waiting for closure of the matter.

4. The Applicant asked through his Counsel to express an apology to Mr VD for the trauma and sorrow in consequence of the offending and that, by his plea of guilty, he would enable Mr VD to get on with his life. The Applicant said he was moving interstate and he wanted Mr VD to feel safe. He accepted that alcohol and drugs had caused him to misbehave terribly and he was very sorry.

5. Counsel for the Applicant also said that he was “accepting and assuming legal responsibility for his conduct [as] particularised on the Crown case, and that’s most significant as it is an acceptance and assumption of legal responsibility for his conduct in relation to both victims.”

6. On 20 February 2016, before the Magistrate in the Melbourne Magistrates Court, the Applicant admitted his prior history of offending in Tasmania. The Magistrate had before him a summary of that offending and a court file which indicated that there were 15 conditions imposed on the Applicant, the last being that the Applicant seek intensive psychological counselling with a nominated psychologist. The Applicant submitted that counselling was completed, and that he was then currently seeing another psychologist.

7. The Applicant was convicted and sentenced to 70 days imprisonment for the two charges of indecent assault.

8. The Applicant, in his evidence before the Tribunal, denied those charges and said that the sexual allegations were untrue.

9. The Applicant was asked in evidence to explain his conduct in relation to each offence. In summary, he said he was taking drugs and had just lost his job at a bank. He was in a bad state of mind had an argument with his wife and got drunk. He left home, had some drugs, and didn’t want to return home. He went to a tobacco store and bought some cigarettes. He met the young man who was on a bike. He put the bike into the car and drove to an area to smoke methamphetamine. The Applicant denied kissing the victim; he acknowledged that he touched him on the leg but not in a way that was inappropriate and he did not touch him on the groin. Nothing inappropriate happened. He repeated that he did not kiss or touch him inappropriately. The Applicant denied any inappropriate contact of a sexual nature. The Applicant was invited to comment on his text communication to the victim, Mr VD, when that victim was at the police station as referred to above. His response was that he could not remember; but repeated that he did not kiss him. The Applicant’s evidence lack credibility and reliability. The Tribunal does not accept the Applicant’s evidence of denial of indecent behaviour, and accepts the agreed facts before the learned magistrate as the factual basis accepted by the learned magistrate and upon which the Applicant was sentenced.

10. The Applicant said that he was not in a normal state of mind. He said they blew smoke at each other but there was no kissing.

11. He said he was using methamphetamine fortnightly when addicted, but not when he was employed. He smoked ice every fortnight. He was having counselling.

12. In April 2016, he obtained a job in Sudan. He was to be flown home every eight weeks to see his family. However, on arrival at the airport, Sudan Border Force detained him. They had been advised he was on the Sex Offenders Register and he was returned home on the same plane. He renewed his drug habit. He consumed methamphetamine fortnightly but on occasions more often than this, and consumed cocaine up to three times a week.

    Driving offences and other matters

13. The Applicant said that the offending for which he was dealt with in the Belmont Local Court on 1 March 2017 was committed in October 2016 after his return from Sudan (See Schedule Item 13 above). He was also before the court on that occasion for offending committed four months later on 7 February 2017 (See Schedule Items 14 and 15 above).[14] As for the October offending, the Applicant failed to stop at a red light and drove through an intersection. He was not wearing spectacles or contact lenses, which was a condition of his driver’s licence. His breath analysis returned a reading of 0.062 grams of alcohol per 100 millilitres of blood. On 7 February 2017, he committed a further offence of drink-driving, recording a blood alcohol level of 0.060. He also had in his possession a small quantity of cannabis which, in evidence, he said was one small “joint”. His driver’s licence was suspended for three months.

    [14] Exhibit A, pages 182 – 185.

14. He received the benefit of bonds, which he breached, and an Intensive Correction Order, which he also breached. He was cross-examined about those numerous offences referred to in the Schedule above.

15. On 6 June 2017 in the Downing Centre Local Court, the Applicant was dealt with for the offences of drive disqualified and drive with special range PCA committed on 8 April 2017 between 1.25 a.m. and 2.00 a.m. He was driving home from a party and was pulled over by police. He underwent a breath analysis and returned a reading of 0.035 and, because he was driving disqualified, that reading breached a special range blood alcohol level. He gave a false name and address. The Applicant said that at the time he was on a two year good behaviour bond and subject to licence disqualification (See Schedule Items 11 and 12 above). The Applicant subsequently breached the bond and the offence of drive disqualified was called back on before the Manly Local Court for sentencing on 14 March 2019 (See Schedule Item 5 above).

16. On 6 June 2017 in the Burwood Local Court, the Applicant was dealt with for the offence of drive disqualified committed on 22 April 2017 when he was stopped by police driving home from work (See Schedule Item 10 above). On 20 September 2017 in the Waverley Local Court, the Applicant was dealt with for offences of drive disqualified committed on 11 June 2017 (See Schedule Item 8 above), and 5 July 2017 (See Schedule Item 9 above). On the latter occasion he also gave a false name to police.

17. On 14 March 2018 in the Manly Local Court, the Applicant was dealt with for the offence of drive disqualified committed on 14 October 2017 (See Schedule Item 6 above). He was also dealt with on this occasion for his last driving offences which occurred on 24 December 2017 in respect of two separate incidents (See Schedule Items 4 and 7 above). In cross-examination, he said that he smoked ice the night before and had limited sleep. He said that he took the risk. He was driving to Newcastle where his wife and daughter were living. He passed a stationary Highway Patrol at 4.40 p.m. which had stopped another motor vehicle. He accelerated above the speed limit to avoid being detained. He was charged for driving whilst disqualified for that conduct (See Schedule Item 4 above). At approximately 4.45 p.m. the same day, the Applicant then passed another Highway Patrol. Police followed him and he accelerated to avoid them, but he drove down a dead-end street and he was stopped. He tested positive to methamphetamine which gave rise to the other charge (See Schedule Item 7 above). He was placed on an Intensive Corrections Order.

18. In the Intensive Correction Order Breach Report dated 24 April 2018,[15] it reads that on 17 April 2018 he was arrested on further charges which included the offence of enter enclosed land for which he was sentenced on 5 October 2018. The Tribunal notes that the other offences were dismissed.

    [15] Exhibit B, pages 280 – 282.

19. On 28 August 2018, the Applicant was brought before the Waverley Local Court (See Schedule Items 2 and 3 above) to be further dealt with for those drive disqualified offences for which he was previously before that court on 20 September 2017 (See Schedule Items 8 and 9 above).

20. On 18 April 2018 when Newcastle Community Corrections attempted to schedule a reporting interview, the Applicant was noted to be hostile, aggressive and uncooperative. He was next scheduled to report in respect of supervision on 23 April 2018, but failed to report. However, the Applicant was, by that date, admitted to hospital as an inpatient from 19 April 2018 to 26 April 2018. The Applicant said attempts were made, including text messages, to advise he would not be attending due to his hospital admission. The Tribunal accepts that evidence. The Applicant was taken into custody on 9 May 2018 and has remained in custody or in detention since that time.

21. The Community Service Order (“CSO”) was revoked. The Application for Revocation of Community Service Order is dated 20 July 2018.[16] The Applicant said this application and its contents were a surprise to him. He did not see this document until he was in detention. He said that as part of the CSO he was attending Lifeline but, when it was realised he was on the Sex Offenders Register, that ceased. The annexure to the application is a report signed by Corrective Services Officer Ms KM, which reads:

    [The Applicant’s] response to his Community Service Order has been unsatisfactory.

    On 30 October 2017, [the Applicant] attended the Community Service Work Induction program and signed a work instruction to report for community service work on 11 November 2017, and attend every Saturday from 9 am to 4 pm thereafter.

    The offender failed to attend a community service work on 18 November 2017, 25 November 2017 and 9 December 2017, and every Saturday thereafter.

    On 15 January 2018, the offender was informed he had been withdrawn from the community service work placement, and directed to report Newcastle Community Corrections for interview on 2 February 2018. The offender failed to report for this interview.

    [16] Ibid, pages 220 – 222.

22. When the Tribunal pressed the Applicant as to why he failed to attend in accordance with the CSO, he said that he thought he was working and called her (Ms KM) up. He said he informed her that he was working and that this report was a surprise to him. The Applicant was asked to comment on the report which also reads as follows:

    On 12 April 2018, [the Applicant] stated that he felt completing both an Intensive Correction Order and Community Service Order was “unfair”, and declared that he would not undertake his Community Service Order hours.

23. The Applicant said that Ms KM told him the CSO was suspended, that he was to complete his Intensive Correction Order, and then he was to be given new instructions. He said he was shocked to read this report.

24. The Tribunal notes that report references the Applicant being sentenced to the Intensive Correction Order on 14 March 2018 for a period of eight months. He reported to Newcastle Community Corrections on 3 April 2018 at which time he advised that he was employed Monday to Friday and he was only available to undertake community service work on a weekend. The Intensive Correction Order was a priority and his CSO was placed on hold until he could arrange further availability. However, this does not explain his failure to attend community service work from 18 November 2017. His evidence with respect to the CSO revocation was unreliable.

25. The Tribunal had before it an Incident Report from Villawood dated 20 October 2018 in which the Applicant was involved in a verbal altercation with a detainee during which the Applicant punched the detainee who then retaliated. The Applicant said this occurred at Blaxland rather than Villawood, and occurred because it became known he was a sex offender. He ran from the altercation and locked himself in a room. He was relocated.

26. The Incident Report dated 27 April 2019 says that the Applicant became abusive and aggressive towards staff. He had just concluded a visit and was told he was not permitted to take food back to the compound and that the food must be returned to his visitor. He became verbally abusive and the Emergency Response Team was called to assist. The Applicant was escorted back to the compound. The Applicant said that he was upset his wife and daughter were leaving, and he acknowledged that he was wrong. He said that he subsequently apologised to the staff member that he abused. The Tribunal accepts the Applicant’s evidence in respect of those two incidents in detention.

    (2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

27. Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:

    (1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

28. The Applicant has been treated by a number of mental health professionals since his offending in Tasmania. In a report dated 15 June 2015, clinical psychologist Dr K Trusewiscz[17] reports that after nine sessions with the Applicant she had become very familiar with him and described a history of serious traumatic events in his life, including witnessing and experiencing extreme violence in war during his adolescence. Those stories, she said, were some of the most extreme she had heard. At the time of that assessment, the Applicant had very little ability to control his emotions and required long-term support with a clinical team.

    [17] Exhibit A, pages 181 – 182.

29. Dr Trusewicz opined that the Applicant suffered from post-traumatic stress disorder (“PTSD”) and was suffering from a major depressive disorder with a possible neurological disorder. She reported “Since having encounters with law enforcement in Australia he is showing behavioural signs of agitation, irritability, hostility, hypervigilance, self-destructive behaviour, and social isolation. [The Applicant] is vulnerable to self-harm and has had suicidal thoughts … At the time of assessment [the Applicant] has very little ability to control his emotions especially when challenged or when triggers are raised. [The Applicant] repeats himself regularly in conversations about traumatic events and has memory blanks.”

30. Clinical psychologist Dr K Sidhu, in a report dated 24 January 2018[18] to the Applicant’s legal representatives, said that the Applicant was referred to her by his general practitioner for therapeutic counselling for depression and high level anxiety. She first saw him on 10 January 2018 and he attended sessions with her up to the date of that report. She opined that he “revealed considerable symptomology and high level of anxiety and panic…” She referred to the challenges he faced with employment and police issues for driving charges which she opined had impacted on his mental health. She recommended further psychological sessions.

    [18] Ibid, page 616.

31. Dr K Eagle is a Forensic Psychiatrist. On 7 March 2018,[19] at the request of the Applicant’s legal representatives, Dr Eagle prepared a report for the sentencing hearing at the Waverly Local Court for two charges of driving disqualified. That report included the Applicant’s prospects for rehabilitation. Dr Eagle concluded that the Applicant does not display a pro-criminal or antisocial personality style, has supportive and stable relationships, has a high level of premorbid function and does not routinely associate with criminal peers. Dr Eagle recommended a treatment plan. Dr Eagle opined that were the Applicant to adhere to the recommended treatment plan, his prospects of rehabilitation are optimistic. Conversely, if the Applicant remains untreated, his risk of offending and the risks to the community of his offending would remain elevated.

    [19] Ibid, pages 183 – 193.

32. Dr Eagle referred to the Applicant’s driving offence and also the Tasmanian offending. It is reported that the Applicant went on a holiday to Tasmania. Someone gave him drugs at a club which made him “mental”. He wandered the streets and met a 16-year-old boy who appeared older. The boy told him he had no money and the Applicant invited him to stay at his premises. He gave the boy $20, the boy gave him a hug when he left. The Applicant said the boy was “stitching me up”. The Applicant reported that he was accused of touching the boy’s crutch and was convinced by legal counsel to plead guilty. He was placed on the child protection register. The report does not refer to the charges of indecency dealt with in the Melbourne Magistrates Court.

33. Dr Eagle referred to the Applicant’s substance use history. The Applicant said he first tried cannabis after he finished school and that his best friend smoked cannabis. He said it made him feel tired. The Applicant is quoted as saying “I hardly smoke weed because it knocks me out.” The Applicant reported that he first smoked methamphetamines in Tasmania, he only smoked methamphetamines on occasions, he had occasionally used cocaine at parties, and he had tried ecstasy in the Philippines. Dr Eagle also referred to a telephone conference with NM who said that she observed symptoms of PTSD in the Applicant when living in the Philippines and that they sought help for those symptoms and depression when living there. Further, NM reported that the Applicant was diagnosed in the Philippines with bipolar affective disorder and was prescribed medication which did not help.

34. Dr Eagle opined that the Applicant was likely to have had an untreated bipolar disorder, and suffered from PTSD and substance use disorder. Albeit the Applicant only described periodic use of drugs, he was of the view that due to his severe mood disorder and untreated bipolar disorder, he was likely experiencing manic or hypomanic episode during the commission of offences. Dr Eagle was of the view that the Applicant has a mental illness, being severe disturbance of mood, but further that he was not a mentally ill person when he was assessed on 21 February 2018. He had suffered symptoms of bipolar disorder at least since 2009, and symptoms of PTSD at least since leaving Sierra Leone. His illness contributed to his offending conduct in driving without a licence.

35. Dr Eagle’s recommended treatment plan included regular consultations with a psychiatrist for at least 9 to 12 months, regular psychological interventions with a clinical psychologist, and recommended that he abstain from all illicit substances and alcohol. Dr Eagle said the Applicant would benefit from engagement in outpatient drug and alcohol rehabilitation for a period of at least 12 months of sustained abstinence. The Applicant was likely to remain unwell if untreated which placed him at increased risk of reoffending. She said “If [the Applicant] were to adhere to the recommended treatment plan, I am of the view that his prospects of rehabilitation are optimistic. If he remains untreated, his risk of reoffending and the risks to the community of his offending conduct would remain elevated.”

1. The Applicant arrived in Australia with his family in about February 2011 and commenced offending in September 2011. He thereafter offended regularly until his hospital admission.

2. The Applicant has now resided in Australia for approximately 8½ years, during which time he has had difficulty securing long-term employment or employment commensurate with his experience in previous roles within the United Nations. The Tribunal accepts that he has nonetheless diligently sought employment and, when living in Sydney, obtained various jobs on probation albeit he subsequently lost those jobs due to his criminal record. The Tribunal also notes that he has undertaken voluntary work from time to time. However his contribution to the Australian community has not been significant, particularly given his work has been interrupted by sentences for criminal offending and drug abuse.

3. NM and ML are both Australian citizens and will remain in Australia. The Tribunal accepts that ML has learning difficulties as discussed above. NM was an impressive witness who has had the primary care of ML for an extended period of time whilst dealing with her own mental health issues. She said, and the Tribunal accepts, that she has suffered depression since 2006, is on medication for her condition, and has access to psychological treatment and counselling through work.

4. NM reaffirmed her love and support for the Applicant, and said that both she and her daughter will be devastated were the Applicant to be removed from Australia. NM states that ML has been deeply impacted by the Applicant’s current detention, has separation anxiety, is struggling in school, and that these issues can be repaired if she is reunited with the Applicant.

5. NM acknowledged the Applicant’s mental health issues but sees a positive future now that the Applicant is taking new medication. She and her daughter will not relocate to Sierra Leone if the Applicant were to be removed from Australia. Both the Applicant and NM agree it is too unsafe and not in the best interests of ML.

6. It is noteworthy that NM did not provide evidence of specific plans for the future with respect to the Applicant, nor how she will support the Applicant to abstain from drugs and alcohol and lead a meaningful life. At its highest, NM’s evidence confirmed her continued love and support for the Applicant. The Tribunal also notes that NM’s support did not deter the Applicant from offending previously. It is, however, significant that since he has commenced sodium valproate medication, NM has confirmed a significant change in the Applicant and that she has her old husband back.

7. The Applicant’s mother, brother and eldest daughter reside in Sierra Leone. The Applicant has other friends who reside there, albeit the majority of his friends he says now reside in the United States of America or England.

   Conclusion: Other Consideration 2

8. The Applicant’s ties to Australia lie with NM and ML who are both Australian citizens. Both his NM and ML looked to him for love and support, including supporting NM’s mental health conditions and ML’s learning difficulties and adjustment disorder. Should the Applicant be permitted to remain in Australia, it is expected that he will contribute to the parental care of his daughter which has, from 2016 to date, been very limited.

9. The Tribunal accepts that the Applicant’s family will suffer emotional and financial impact if the Applicant is removed from Australia. ML will also lose the opportunity to learn and develop her African culture, albeit the Applicant will be able to continue to communicate with her by various electronic means.

10. Having regard to the whole of the evidence, the Tribunal gives this Other Consideration medium weight in favour of the Applicant.

    Other Consideration 3: Impact on Australian business interests

11. No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of neutral weight.

    Other Consideration 4: Impact on victims

12. No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of neutral weight.  

    Other Consideration 5: Extent of impediments if removed

13. Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:

    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)  The non-citizen’s age and health;

    (b)  Whether there are substantial language or cultural barriers; and

    (c)   Any social, medical and/or economic support available to them in that country.

14. The Applicant suffers from bipolar affective disorder and is prescribed sodium valproate. There is no evidence before the Tribunal with respect to medical support that will be available to him in Sierra Leone, however the Tribunal accepts that it will not be to the standard one might expect in Australia.

15. There is no substantial language or cultural barriers given the Applicant spent most of his life in Sierra Leone. His mother, brother and eldest daughter also reside there. The Applicant has been employed in a range of industries in Australia and has extensive experience in the humanitarian work. He likely has the capacity to gain employment if returned to Sierra Leone.

16. The Applicant expressed a number of concerns should he be returned to Sierra Leone, albeit he submitted that those concerns did not enliven Australia’s international non- refoulement obligations.

17. The Applicant submits, however, that he would not be able to take up employment due to his criminal record, as gay people in Sierra Leone face violence, stigma, discrimination, blackmail, public attack and denial of public services such as healthcare and justice, and can face automatic life imprisonment. The Tribunal understands the Applicant is not saying that he is gay, but that may be a perception given his antecedent history.

18. The Applicant has provided the Tribunal with a number of publications referred to in the Applicant’s SOFIC which detail difficulties with telecommunications, substandard prison facilities, and human rights issues in Sierra Leone. The Applicant has also referred to a publication referencing an order by the President of Sierra Leone that sex offenders all receive a sentence of life imprisonment. The Applicant expressed fear and concern for his own safety should he be returned to Sierra Leone given his antecedent history.

19. The Applicant refers to the incident in Sudan when he was refused entry and returned to Australia because he was on the Sex Offenders Register. He also referred to a news article, in respect of his Tasmanian offending,[35] which article named the Applicant, detailed his offending and reported that he was on the Sex Offenders Register for seven years.

    [35] Exhibit A, at page 615.

20. The Applicant expressed concern that his offender history, the fact that he has been on the Sex Offenders Register, and other information, including the news article, will become known to Sierra Leone authorities and that he may be arrested. The Applicant and his wife also referred to people who have been deported to Sierra Leone from America and taken into custody upon arrival.

21. The Respondent submitted that there are no linguistic or cultural issues that give rise to an impediment. The Applicant obtained a Bachelor Degree in English in Sierra Leone. He also speaks Creole, the native language of Sierra Leone. He has worked there in a bank and he could also utilise work experience in Australia and the United Nations to obtain employment. He is no longer on the Sex Offenders Register. He also has his mother, brother and daughter still living in Sierra Leone.

22. The Respondent accepts that the medical support in Sierra Leone will not be to the same standard as Australia, and the health system is poor. However, there has been no evidence presented which informs the Tribunal about mental health care.

23. The Respondent submits that there is no good reason why the Applicant’s offender history will become known to the authorities in Sierra Leone. It was submitted that the prospects of the news article becoming known are remote and there is no reason to suspect that a sex offender flag would be placed on the Applicant as had previously occurred when he returned to Sudan.

24. It was submitted that, although there are articles produced including reference to new legislation with respect to sex offenders, there is nothing to suggest that this will apply to returnees such as the Applicant.

25. It was accepted that the Applicant may undergo significant hardship, and in particular emotional hardship, being separated from his family. It is also accepted he may initially have some difficulty finding work, but it is submitted these do not outweigh Primary Considerations A and C. There is no evidence, it was submitted, upon which the Tribunal can rely to suggest the Applicant will be further punished in Sierra Leone for his criminal offending.

    Conclusion: Other Consideration 5

26. The Tribunal accepts that the Applicant has a genuine fear of returning to Sierra Leone because of his childhood trauma, reports about poor standards and human rights issues, together with those factors referred to above. However, in the absence of any acceptable evidence that there is a rightly held basis for such fear and that an impediment does exist, the Tribunal does not accept that this factor will, in fact, be an impediment to the level submitted by the Applicant.

27. Having regard to the whole of the evidence, the Tribunal finds this Other Consideration is to be given slight weight in favour of the Applicant.  

28. The Applicant submitted that the impact non-revocation of the Applicant’s visa cancellation will have upon NM and her mental health issues are an Other Consideration that should be considered separately. The Tribunal has taken into account NM’s personal circumstances, including her mental health in Other Consideration 2, in considering the impact of non-revocation on the Applicant’s immediate family. Accordingly, this should not be considered again as a separate Other Consideration.

29. There are no more Other Considerations that arise on the available evidence.

    CONCLUSION

30. Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

31. Based upon the Applicant’s criminal record, he does not pass the “character test” as defined in s 501(6) of the Act. In then 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, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:

    (a)Primary Consideration A weighs heavily in favour of the Respondent;

    (b)Primary Consideration B is of medium weight in favour of the Applicant;

    (c)Primary Consideration C weighs heavily in favour of the Respondent; and

    (d)The combined weight of Primary Consideration B and the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to Primary Considerations A and C.

32. The Tribunal therefore finds that, balancing the weight of all of the considerations in the Direction, they weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.

33. Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

34. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

.........[Sgnd]....................

Associate

Dated: 21 October 2019

Dates of hearing:

Advocate for the Applicant:

8 and 9 October 2019

Mr Michael Jones

Solicitors for the Applicant:

Advocate for the Respondent:

Parish Patience Immigration Lawyers

Ms Mia Donald

Solicitors for the Respondent:

Sparke Helmore Lawyers