HZCP and Minister for Immigration and Border Protection (Migration)
[2017] AATA 775
•29 May 2017
HZCP and Minister for Immigration and Border Protection (Migration) [2017] AATA 775 (29 May 2017)
Division:GENERAL DIVISION
File Number: 2017/1288
Re:HZCP
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:29 May 2017
Place:Perth
The decision under review is affirmed.
.......[Sgd].................................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 -- s 501(3A) – s 501(6) – s 501(7)(c) – s 501CA(4) – s 501K(1)(a) –
s 501K(2)
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1), 14(1)(a), 14.1, 14.2, 14.4, 14.5
CASES
Lau and Minister for Immigration and Border Protection [2017] AATA 138
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673
Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Du Pont and Minister for Immigration and Ethnic Affairs [1983] AATA 180
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Tawhi and Minister for Immigration and Border Protection [2017] AATA 74Toelau Hohua and Minister for Immigration and Border Protection [2016] AATA 486
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report, Sri Lanka, 24 January 2017
UN High Commissioner for Refugees, UNHCR CDR Background Paper on Refugees and Asylum Seekers from Sri Lanka, 1 June 2001
UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009, available at:
United States Department of State, Country Report on Human Rights Practices 2014 - Sri Lanka, 25 June 2015,
United States Department of State, Country Reports on Human Rights Practices 2015 - Sri Lanka, 13 April 2016, org/docid/57161206c.html
Kristine Höglund, “Violence and the Peace Process in Sri Lanka”, Civil Wars, 2005, Vol.7(2), 156 at 164-165, 13698280500422843?src=recsys&journalCode=fciv20
Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE), including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (2011-January 2015) (11 February 2015), 54f03b7e4,0.html
International Truth and Justice Project, Silences: survivors of torture and sexual violence in 2015, 2016,
Human Rights Watch, UN Human Rights Council: High Commissioner's reports on human rights of Rohingya Muslims and other minorities in Burma/Myanmar and on Sri Lanka, 30 June 2016, 577667ad4.html
Human Rights Watch, World Report 2016: Sri Lanka (2016), Cumming-Bruce, “Torture Is ‘Common Practice’ in Sri Lanka, U.N. Panel Finds”, New York Times, 7 December 2016, Lionel Bopage, “Deliver Promises First and Then Welcome Refugees Back”, Daily Telegraph, 16 February 2017,
UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, 10 February 2017, A/HRC/34/20,
March 2014 report by the Bar Human Rights Committee of England and Wales / International Truth and Justice Project Sri Lanka,
Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015, F
Freedom from Torture, submission to the UN Human rights committee – list of issues for the 5th periodic review of Sri Lanka, October 2014 org/docid/53748b604.html
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
29 May 2017
INTRODUCTION
The Tribunal will refer to the Applicant in these proceedings by the pseudonym “HZCP”. Sub-sections 501K(1)(a) and (2) of the Migration Act 1958 (Cth) (the “Migration Act”) provide that, when a review by the Administrative Appeals Tribunal (“the Tribunal”) relates to a person who seeks or has a protection visa, the Tribunal will not publish any information that identifies that person or any relative or other dependants. The names of witnesses appearing before the Tribunal and those who provided letters of support have also been altered to ensure confidentiality.
By application dated 8 March 2017, HZCP seeks review of a decision of a Ministerial delegate dated 6 March 2017 that refused, pursuant to s 501CA(4) of the Migration Act to revoke the mandatory cancellation of HZCP’s protection visa. HZCP’s protection visa had previously been cancelled pursuant to s 501(3A) of the Migration Act because it was determined that he did not pass the “character test” (as that term is defined in the Migration Act) by reason of him having a “substantial criminal record” and because he was “serving a term of imprisonment for a crime against a law of the Commonwealth or a state”.
The Tribunal is asked to determine whether it should revoke the earlier decision to cancel HZCP’s protection visa, which he has held since in 2010. For the reasons outlined below, the Tribunal has determined that it should not revoke this earlier decision.
BACKGROUND FACTS
The Tribunal notes the summary provided by solicitors for HZCP in a Statement of Facts, Issues and Contentions dated 21 April 2017 at paragraphs 6-17 and the summary provided by counsel for the Minister in a Statement of Facts, Issues and Contentions dated 5 May 2017 at paragraphs 2-10. The Tribunal highlights the following undisputed facts.
HZCP is a 30 year old citizen of Sri Lanka. He is of Tamil ethnicity. He has a younger brother and a mother. Both reside in Sri Lanka. The family do not know the fate of HZCP’s father. They believe he was kidnapped in 2004 when HZCP was 16.
HZCP’s father was involved in the paramilitary organisation, the People's Liberation Organisation of Tamil Eelam (“PLOTE”). HZCP alleges that after his father disappeared, members of the PLOTE targeted, harassed and threatened him and his family and continue to do so. His brother was recently assaulted with a knife and his mother claims to be receiving threatening phone calls. These events, HZCP alleges, have occurred because PLOTE believed HZCP’s father ran away and was "selling them out".
HZCP arrived in Australia as an illegal maritime arrival on 28 June 2009. He was 22 at that time. He was detained and transferred to immigration detention on Christmas Island. On 16 August 2009, he applied for refugee status on the ground that he faced a real risk of serious harm in Sri Lanka. On 25 September 2009 he was assessed through the Refugee Status Assessment and found to be owed protection. On 10 September 2010, the Minister intervened to lift the section 46A bar to allow HZCP to lodge a protection visa (subclass 866) application. On 15 September 2010, HZCP lodged a protection visa application. The visa was granted on the same day. HZCP then settled in Perth.
On 19 August 2011, two years after arriving in Australia, HZCP was involved in a violent incident between members of the Sri Lankan community who were known to him. The assault involved a piece of gym equipment (a metal pipe) by HZCP, which he used to strike two victims. Both men sustained head injuries. HZCP and three others were charged with grievous bodily harm and unlawful wounding of the two victims.
On 30 October 2013, HZCP was convicted of these offences in the Perth District Court. He was taken into custody. In December 2013, he was sentenced to two years and six months imprisonment for the charge of grievous bodily harm and 12 months imprisonment for unlawful wounding. The sentences were served concurrently with a minimum 15 months non-parole period.
On 31 July 2015, HZCP’s visa was cancelled by a Ministerial delegate under s 501(3A) of the Act. This was a mandatory cancellation as HZCP was serving a sentence of imprisonment. HZCP was released from prison on parole on 3 August 2015. He was then transferred to immigration detention and is now in detention.
On 3 August 2015, HZCP made representations seeking revocation of the mandatory visa cancellation.
An International Treaties Obligation Assessment (“ITOA”) was conducted and concluded on 13 February 2017 that HZCP is not a refugee and Australia does not have any non-refoulement obligations to him under the Refugees Convention. In effect, the ITOA concluded that the Sri Lanka of today is not the Sri Lanka of 2009 (when HZCP arrived in Australia) and there were no reasons to conclude that HZCP was unable to return to Sri Lanka.
On 28 February 2017, HZCP’s migration agent provided further submissions disputing the finding in the ITOA. In effect, it was argued that HZCP was still very much in danger if returned to Sri Lanka and, as such, the decision to cancel his visa should be revoked.
On 6 March 2017, a Ministerial delegate determined that they were not satisfied that HZCP passed the character test or that there was another reason why the original decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel HZCP’s protection visa.
On 8 March 2017, HZCP lodged an application for review of the delegate’s decision by the Tribunal.
ISSUES
The issues for determination by the Tribunal are:
(i)whether HZCP passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in HZCP’s favour (i.e. whether the decision to cancel his visa should be revoked by the Tribunal standing in the Minister’s shoes).
EVIDENCE
General
This matter was heard in Perth on 17 May 2017. HZCP appeared in person and was represented by counsel, Ms Jonker. The Minister was represented by Mr Gerard. The Tribunal thanks Ms Jonker, Mr Gerard and their instructors for their considerable assistance. Matters of this sort raise complex legal issues and are emotionally charged for all involved. The Tribunal was greatly assisted by the cooperative nature of the advocacy before it. This style of legal advocacy is well suited to a tribunal of this sort, particularly given what is at stake, and is much appreciated. The Tribunal also acknowledges the quality of the written work prepared by Refugee Legal on behalf of HZCP. It is clear that an extraordinary amount of time and effort has gone into assisting a young man who might otherwise be unrepresented. Others would do well to emulate Refugee Legal’s efforts in this regard.
The evidence before the Tribunal consisted of:
·A Statement of Facts, Issues and Contentions from HZCP dated 21 April 2017 (A1)
·A statement from HZCP dated 14 December 2016 (A2)
·A statement from HZCP dated 21 April 2017 (A3)
·An email sent to the Department of Immigration and Border Protection case officer from HZCP dated 17 January 2017 in relation to preparation for hearing before the Tribunal (A4)
·Statement in support of HZCP from Ms D dated 13 April 2017 (A5)
·Statement in support of HZCP from Ms M dated 30 March 2017 (A6)
·Letter in support of HZCP from Mr H dated 13 April 2017 (A7)
·Letter in support of HZCP from Mr T dated 19 April 2017 (A8)
·Letter in support of HZCP from Ms B dated 29 March 2017 (A9)
·Letter from Refugee Legal, "Comment on information relevant to the International Treaties Obligation Assessment", dated 23 December 2016 (A10)
·Bundle of clinical records of HZCP, various dates, printed 7 April 2017 (A11)
·Copy of record from HZCP’s biodata form, dated 1 July 2009 (A12)
·Copy of Form 3 Request for a Report under the Bail Act 1982 (WA) dated 30 October 2013 (A13)
·Chronology of HZCP's Movements in Australia (A14)
·Bundle of documents tendered by the Applicant (A15) with four sections:
oTab A – Various documents (numbered 1-185) in relation to the revocation hearing before the AAT, including certificates of attendance, clinical records, letters of support and personal statements from HZCP
oTab B – Various documents relevant to HZCP’s protection visa application dated 2009/2010
oTab C – Letter from Member of the Sri Lankan Parliament
oTab D – Various documents relevant to Australia’s non-refoulement obligations.
·A 250 page set of G-Documents (G1-G43) (R1)
·A Statement of Facts, Issues and Contentions from the Minister dated 5 May 2017 (R2)
·A DFAT Country Information Report, Sri Lanka, dated 24 January 2017 (R3)
·WA Court of Appeal decision in relation to HZCP (2014) (R4)
·Closing Written Submissions from counsel for HZCP dated 22 May 2017
·Closing Written Submissions from counsel for HZCP dated 22 May 2017
The Tribunal also heard oral evidence from HZCP.
This matter was expedited and was heard and decided on a tight timeframe. A decision on this application for review was legislatively required within 84 days of the notification of the decision (i.e., not later than 29 May 2017). If a decision had not been made by that time, the original decision would be taken to be affirmed. In effect, the Tribunal had less than a week to hear and decide a matter that raised complex legal and factual issues. The Tribunal thanks counsel for their considerable efforts in ensuring that written closing submissions were filed quickly so that the Tribunal could meet the legislative timeframe.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i) Does HZCP pass the Character Test?
The Tribunal must first consider whether HZCP passes the “character test” as that term is defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) 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 (b) or (c); or
… 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 Territory.
Section 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]
Section 501(7) of the Migration Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added]
It is agreed that:
·as a consequence of receiving a sentence of a term of imprisonment in excess of 12 months, HZCP has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. This arises because HZCP was charged with grievous bodily harm and unlawful wounding of two victims. He was then convicted of these offences in the Perth District Court and sentenced to two years and six months imprisonment for the charge of grievous bodily harm and 12 months imprisonment for unlawful wounding. The sentences were served concurrently with a minimum 15 months non-parole period; and
·as HZCP was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that HZCP does not pass the character test as that term is defined in the Migration Act.
(ii) Should the Tribunal Revoke the Decision to Cancel HZCP’s Visa?
Having determined that HZCP does not pass the character test and was liable for mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of his visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the original decision to cancel a visa 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. [Emphasis added]
The central question before the Tribunal is whether there is “another reason” to revoke the original decision to cancel HZCP’s visa. In considering HZCP’s request for revocation of the cancellation of his protection visa, the Tribunal must comply with Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501(CA) (“Direction No 65”).
Direction No 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It states:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 Principles
(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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit 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.
…
(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.
Paragraph 7(1) of Direction No 65 provides guidance to the Tribunal on how to determine whether the mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, 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.
Paragraph 8 of Direction No 65 further states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(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 the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Migration Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
(i)The protection of the Australian community from criminal or other serious conduct;
(ii)The best interests of minor children in Australia; and
(iii)The expectations of the Australian community.
(i) The Protection of the Australian Community
Paragraph 13.1(1) of Direction No 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a) Nature and seriousness of the persons’ conduct to date
Paragraph 13.1.1(1) of Direction No 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. They include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c) The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeat offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The evidence shows that HZCP has a criminal record that includes crimes of violence. The full extent of HZCP’s criminal between June 2009 (when he arrived in Australia) and December 2013 (when he was sentenced to two and half years imprisonment) is as follows:
Court
Court Date
Offence
Court Result
Perth District Court of Western
19 Dec 2013
Grievous Bodily Harm
Unlawful Wounding
Convinced. Imprisonment for 2 years 6 months concurrent.
Convicted. Imprisonment for 12 months concurrent
Fremantle Magistrates Court
02 Oct 2013
Exceed .05%
Convicted. Fined $250. Driver’s licence disqualified for 3 months concurrent
No Authority To Drive – Never Held
Convicted. Fined $200. Driver’s licence disqualified for 3 months.
In determining whether HZCP’s criminal conduct should be viewed as “serious”, the Tribunal notes the sentences imposed by the courts for his crimes. The Tribunal notes, in particular, the transcript of proceedings before the District Court judge charged with sentencing HZCP for his crimes of violence (G11 at 36) on 19 December 2013. These sentencing remarks demonstrate how serious His Honour viewed HZCP’s criminal conduct:
All four accused men were charged in the Perth Magistrates Court on 22 August 2011 with unlawfully doing grievous bodily harm to [MT] and unlawfully wounding [NS]. The offences were said to have been committed … on 19 August 2011.
All four of the men before me today appeared and entered pleas of not guilty and all charges were committed to this court for a trial.
…
The facts of your convictions are that the two complainants … lived in August of 2011 at ______ Avenue, Shelley. They did so with a number of others all, as I understand it, Sri Lankan men.
The two, [NS] and [MT], both had jobs. 19 August 2011 was a Friday and both had been at work.
[NS] finished work at about 2 o'clock and drove home in his vehicle and [MT] finished work at about 3.30 pm and drove home in his vehicle, arriving home at about 4 o'clock.
Each having changed out of their work clothes, got a beer and they either sat or stood at the front of the house drinking and smoking cigarettes. [MT] had his mobile phone with him.
While at the front of the house he got a call. The caller spoke to him in Tamil and said, "It's [S] speaking.
Where are you? I'm going to come and hit you".
[MT] knew who [S] was, recognising the voice. That was SP.
While [MT] was using the phone, [NS] went inside to get some food. He returned to the front of the house with another beer and the food that he had got from inside and not long after, while they were eating at the front of the house, a small white sedan car appeared in _____ Avenue and drove past their home. The four of you were in that vehicle. [MT] said that he saw the car go past and he knew one of the occupants as [HZCP].
Two of them, two of the people in the car, [HZCP] and one other that [MT] didn't know, got out, approached him and asked him for a cigarette. He gave [HZCP] the one that he was smoking.
[HZCP] then asked if he could use the toilet in the house. [MT] pointed to the direction of the toilet and the two men who'd come from the car went inside the house.
[NS], in his evidence, said that both [HZCP] and [SS] came from the car.
Both men, he said, went inside and remained there for a few minutes. While he, that is, [NS], was looking at the road, he was hit on the head with a metal bar he said wielded by [HZCP]. He was knocked to the ground.
[SS] joined in once he was on the ground, kicking him in the lower vertebrae. The metal bar referred to was part of gymnasium equipment at the house.
I conclude and am satisfied beyond reasonable doubt that when the two men went into the house, [HZCP] found the metal bar with that equipment in the house and armed himself with it.
[SP] and [AG] came from the car, the former carrying a knife. I am not satisfied, on the evidence, that AG was armed. There is some suggestion that he was carrying a metal bar.
[MT], however, denied in cross-examination that [AG] was armed.
All four men gathered around [MT] who had gone to the assistance of [NS] lying on the footpath bleeding from his head. [HZCP] hit [MT] with the gym bar, the gymnasium bar to the back left-hand side of his head, knocking him down. He was momentarily unconscious. He tried to get up but couldn't do so, feeling pain in his leg.
Now, in due course, an ambulance or ambulances were called to the house in _____ Avenue and the two men, …, were admitted that evening to Royal Perth Hospital. [MT] was found to have a comminuted compound depressed skull fracture, a subdural haematoma, two scalp lacerations down to the bone and an open compound fracture of his right tibia.
The skull injury was debrided, washed and raised in surgery. The right tibia fracture was fixed internally.
He was given antibiotics and analgesia. Following a week in hospital, he walked with the aid of crutches for several months. [NS] was found to have a head wound which was repaired, he said, with sutures or stitches. He was only in hospital for a day or two.
…
The State has filed sentencing submissions calling for sentences of imprisonment to be immediately served to be imposed on all four men. The maximum penalty provided by law for count 1 is five years' imprisonment and for count 2 is 10 years' imprisonment.
All counsel concede that, having regard to the seriousness of the offending, sentences of imprisonment are appropriate. That is an appropriate concession in each case, Mr Bodeker and Mr Lemmon each suggested any term of imprisonment might be suspended. I'll come back to those matters later.
Mr Grinceri, for the State today, having heard pleas in mitigation, reiterated the State's position so far as a term of imprisonment is concerned, calling for terms to be immediately served.
…
All four men were involved in both counts to one degree or another, but it does seem clear that the significant injury to [NS], being, the head wound, was caused by [HZCP] with the gymnasium bar.
There is clear evidence that, so far as [MT] was concerned, the first blow, being a blow to the back of the head, was struck by [HZCP] with the bar from the gymnasium equipment.
It does seem to me to be clear on the evidence that it was [HZCP] who welded that piece of gymnasium equipment as a weapon. That is not to say that the others did not land blows in the course of this particular incident. But it's not possible to tease out precisely who did what beyond what I've just said and beyond [SS] kicking [NS] in the lower back while he lay on the ground.
There is no evidence that either of the complainants said or did anything which might have provoked the attack upon them. There is evidence to the effect that all four men went to the house on that afternoon with the specific intent of inflicting harm on [MT].
It does appear to me, having regard to the evidence as it unfolded, that the target of the four men in the car was not [NS]. I'm satisfied that the entry into the house was not to use the toilet, but rather to make sure that none of the other male occupants of the house, who were tenants or residents there, were present on that occasion.
It does appear that [NS] was struck to take him out of the action, so to speak. What was not clear during the trial, and remains unclear to the present time, is the motivation of those involved in these attacks.
…
Beyond those circumstances to which I've just referred, there doesn't appear to be any obvious cause or factor giving rise to the events of the late afternoon of 19 August 2011.
…
[HZCP] who is aged 26 years also pressed his innocence to the author of the pre-sentence report, claiming that he'd been at work at the material time.
…
In the matter before me it's not easy to judge which of the four men might be more culpable in terms of providing leadership to, or enlisting the help of others. It is, on the evidence, easier to conclude that, in terms of the unlawful wounding, it is the case, that it was inflicted with the gymnasium bar wielded by [HZCP]. He continued to use it in the attack upon [MT], striking him to the back of the head with such force that he was knocked down and was rendered momentarily unconscious. I am satisfied beyond reasonable doubt in that regard. His counsel takes no issue with that finding.
Both complainants suffered serious injuries. Those suffered by [MT] were the more serious. Neither suffered a permanent injury, in that each has fully recovered. Neither is left with a permanent disability.
In each case however the blow to the head could have led to far more serious, even tragic, consequences for the victims.
Apart from the fact that a weapon was employed and that the attacks were on that afternoon completely unprovoked, it does seem to me that the fact that all four acted in concert adds to the seriousness of what happened.
I agree with the contention that attacks such as these must be dealt with by the imposition of terms of imprisonment. Undoubtedly in the case of [HZCP] the term must be immediately served. He bears, in my view, a higher degree of culpability.
Yes. [HZCP], in your case I impose sentences of 12 months' imprisonment with respect to count 1 and two years six months' imprisonment in the case of count 2.
I have given consideration to whether that term ought to be suspended and conclude that, having regard to the seriousness of the offences and your part in them, they should not be.
…
[HZCP] must be regarded as being, in my view, the most culpable in terms of the injuries inflicted, but it's difficult to say who was more culpable in terms of leadership and organisation of what clearly was an expedition with some degree - not a lot, but some degree of organisation.
In oral evidence before this Tribunal, HZCP indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the metal bar, as found by the judge).
The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs [1983] AATA 180.
In relation to the broad issue of the “seriousness” of HZCP’s conduct, counsel for HZCP contended as follows in a Statement of Facts, Issues and Contentions dated 21 April 2014 (A1), as follows:
44.It is accepted that the offences for which the applicant was convicted are serious. He was sentenced to two years and six months imprisonment for one count of grievous bodily harm which, it is submitted, is substantially lower than the maximum available penalty of ten years. On the second count of unlawful wounding he was sentenced to 12 months imprisonment which is also substantially lower that the maximum penalty of five years.
45.The sentencing judge remarked that the applicant bore a higher degree of culpability. Even in that circumstance, the Judge did give consideration to whether the term of imprisonment imposed ought to be suspended however concluded that, having regard to the seriousness of the offences and his part in them, it should not be (p13 of sentencing remarks). The sentence was commensurate to the offending and the applicant has served his time without incident.
46.The incident was isolated. There is no other evidence of the applicant offending, other than the one minor traffic offence. Although the offences were serious there is not a pattern of offending which would suggest "any trend of increasing seriousness."
47.The applicant's offending is inexcusable against Australian cultural norms. However, whilst not meaning in any way to lessen or excuse the offending conduct, it is submitted that the applicant's conduct cannot simply be considered in a vacuum. This is someone who was raised as a boy in the Sri Lankan civil war. He has seen things as a boy that no person should see in his lifetime, including dead bodies. Violence for him was a norm. His offending conduct is the product of the harsh and violent reality that was his world until he left Sri Lanka to come to the safe shores of Australia. The applicant maintains that his lack of communication skills and initial difficulty integrating into the Australian community played a significant factor in his offending as he did not understand the serious consequences of his actions at the time. The differing cultural norms between Sri Lanka and Australia should be considered in regard to his understanding and behaviour at the time.
48.He has done a lot of work during his time in both detention and prison to understand his conduct and how to ensure it never happens again. His letter to the Parole Board (G17) is a good example of how far he has come in recognising and understanding his offending behaviour and learning skills to combat that behaviour. The letter is in his own words and, it is submitted, shows a level of insight the Australian community would hope and expect from someone who is genuine about re-integrating into society and making a positive contribution to the Australian way of life. The steps he has taken to better educate himself and his communication skills, such as completing Certificate i in English and undertaking a number of courses in detention and prison, show his commitment and motivation to enhance himself as a person and understand and fit within the cultural and legal expectations of Australia.
Counsel for the Minister, in turn, in a Statement of Facts, Issues and Contentions dated 29 November 2016 (R2) contended:
23.Pursuant to Direction No 65, any violent offending is serious. The applicant has convictions for the violent offences of grievous bodily harm and unlawful wounding. Therefore, the applicant’s offending is serious.
24.The seriousness of the offending can also be seen in the sentencing remarks of the court and the sentences imposed by the court. Imprisonment is a sentence of last resort, generally reserved for conduct which is considered to be serious. The applicant has been sentenced to two and a half years, with a concurrent sentence of 12 months imprisonment.
…
27.Taking into account the violent nature of the offences, the sentences imposed, the comments of the sentencing Judge, and the specific guidance and principles set out in Direction No 65, the respondent contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant’s visa.
The Tribunal notes that in considering the nature of HZCP’s criminal offending, offences that are violent in nature are viewed quite seriously.
It is clear from the above that some of HZCP’s offences were violent in nature. The injuries inflicted on the two victims cannot be described as anything other than the result of an act of violence. It is also evident from the sentencing judge’s remarks that this incident was unprovoked, organised, premeditated and that HZCP was more culpable than his friends for both assaults with a metal bar on two innocent men.
The nature of HZCP’s violent offences evidence a degree of recklessness toward the well-being of the Australian community that cannot be excused or dismissed. This is made more problematic by his complete failure to acknowledge his central role in the commission of these offences and his blanket denial in relation to at least one of the violent charges against him for which he was ultimately found guilty. This, in turn, says a great deal about the extent to which he really is remorseful.
The Tribunal accepts that HZCP suffered unimaginable horrors as a young man in Sri Lanka. His past haunts him to this day, as it would anyone who lived through what he lived through as a child. This was recognised by the sentencing judge. Despite this, however, HZCP was sentenced to a term of imprisonment and ultimately spent a lengthy period of time in prison. This is despite his background, his relative young age and the fact that he had few criminal offences at the time. This says much about the nature of the violent offences and the seriousness of HZCP’s offending. No penalty but one of immediate imprisonment was deemed appropriate by a highly respected judge. Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of HZCP’s protection visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 13.1.2(1) of Direction No 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)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).
In relation to the risk to the Australian community should HCZP commit further offences or engage in other serious conduct, particularly of the sort for which he was convicted, the Tribunal notes that in one of a personal statement dated 21 April 2017 (A3), HCZP writes:
2.I am devastated by the Department of Immigration decision not to revoke the cancellation of my Protection visa. I know I have made mistakes and I have let a lot of people down especially the people who were hurt in my offending, my family and myself. I cannot change the past but I will make sure nothing happens again like this in the future. It was a privilege to get protection and have a new chance at life, a chance to get away from the bad people and groups in Sri Lanka. When I was sent to the detention centre again after prison I realized that my life was on the line again and how important the visa is to my life and safety. I am having a really hard time in detention and with the thought of being returned to Sri Lanka. If I am given the chance to remain here in Australia, I will not do anything again to jeapordise my visa.
3.Since going to prison and having my visa cancelled I have grown up a lot. I realize the consequences of my actions and I will never forget these consequences. When I was in prison I completed various courses including a Medium Intensity Violence Program (MIVP) which talks about violence, time outs, mindfulness etc and really makes you think a lot about the consequences of your actions before you act. This is always on my mind. I have learnt a lot of things in a really hard way in the last few years. Now I understand better how to deal with high risk situations and how to avoid getting into these situations in the first place. If I am allowed back into the community, I will stay away from troublemakers and not get involved in any more problems. I will not think negative thoughts. All of this will make sure I do not offend again.
4.Despite the challenging environment in immigration detention, I have not been in any trouble since I have been in detention. I have been issued with a Certificate of Appreciation as someone who has demonstrated ongoing positive behaviours in the detention centre and I have been placed on the Education 1 list which is behavior incentive based and means that I have had no incidents in Immigration Detention. This week, they have started taking detainees on the Education 1 list out on excursions as part of the incentives program. I was taken out on an excursion on 19 April 2017 and this will continue on a weekly or fortnightly basis. This is evidence that I am not a risk to the community as my behavior has been excellent in the very stressful detention environment and the excursions include doing community work with people from the Christmas Island community.
5.I also started attending counselling while I was in prison and I have continued with counselling throughout the time I have been in immigration detention.
Since I was transferred to Christmas Island in October 2015, I have been having counseling every two weeks. My current Torture and Trauma Counsellor, Andres Osorio, was intending to provide me with a report for the Tribunal but he has told me that the Department of Immigration has put a temporary stop on any documentation given by the torture and trauma service to detainees. He has told me that when he is allowed to do so by Immigration, he will give me a report.
6.As I have already explained throughout the course of my protection claims and the revocation process, I have been through a lot of terrible experiences in Sri Lanka and I am also going through a very hard situation now with the cancellation of my visa. Counselling has been helping me with this. At first when I was asked to attend counselling, I didn’t understand why they wanted me to talk about my past and my present but now I can see that they showed me a path to clear my mind and think about what I want from the future and how to get this. I am always struggling with the pain of the past but the counselling is trying to help me move on from this. The counselling has helped me to learn to control negative thoughts by teaching me that I need to do positive things like keeping busy and having balance in my life. Like the courses I completed in prison, the counselling also helps me think about the consequences of my actions and about how I am thinking.
7.On a day to day basis at the detention centre I try to keep myself busy in order to stay positive. I go to the gym every day, I watch movies, talk to the other detainees and spend time socially with them doing activities such as playing cards. I would like to undertake courses to improve myself but unfortunately there is not the opportunity to do this in the Christmas Island detention centre. We have access to the internet but I have been unable to sign up to online classes as I need to be able to provide a phone number for contact and I do not have one. Instead, I try to improve my English language skills myself by self- study on the computer, watching English movies and speaking to people in English.
8.When I think about the future, there are many things I want to do and that I know I can achieve as long as I am safe in Australia, First of all I would like to formally improve my English skills through classes so I can enroll in further courses at TAFE. When I was living in the community in Perth, I met a mechanic, …., who became my friend. I was working assembling radiators at that time and he taught me some basic mechanic skills which I really enjoyed. I would really like to get qualified as a mechanic and work in this area in the future. I also want the things all people hope for - to build a house, get married and have children. I want to have a good, simple life without any drama.
9.I had many friends when I was living in Perth. When I was in prison and in the detention centre in Yongah Hill, many of my friends came to visit me regularly. Since I have been on Christmas Island, it is much harder. I stay in touch with my friends through Facebook and Messenger but none of my friends have been able to visit me in Christmas Island since I was transferred here in October 2015. Although I had many friends before, being in this situation, you find out who your true friends really are. Now I know there are a few good friends who will always be there for me no matter what.
10.I have had one visitor in person since being in Christmas Island, [Ms D] and her partner … who came to visit me just after Christmas last year. [Ms D] obtained my name from members of the community in Perth and it was very kind of her to come and spend some time with me while she was on Christmas Island. I appreciate the support of [Ms D] and others in the community like her who support my release and understand that I made a terrible mistake but that it is not something I will ever repeat in the future.
In a Statement of Facts, Issues and Contentions dated 21 April 2014 (A1), solicitors for HZCP contended:
21.In making its decision to release the applicant on parole, the Parole Board took into account the release considerations in s 5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that his release would not present an unacceptable risk to the safety of the community due to:
(a)The salutary impact of a first term of imprisonment and first opportunity for parole supervision and monitoring.
(b)His participation in intensive treatment interventions which have addressed consequential thinking and violence related behaviour. The respective completion reports detailed gains in the areas of decision making, recognition of emotions and the identification of high risk situations and how to manage these which included seeking support from community based agencies.
(c)The conditions of parole will further reduce the risk to the safety of the community.
(d)His release plan has confirmed supportive accommodation with employment.
(e) Minimal court history.
22.In a letter to the Parole Board, the applicant stated that he had learnt coping skills to address his behaviour, such as positive self-talk, mindfulness, time out, empathy, assertive communication, balanced lifestyle, consequential thinking, accessing support agencies and employment. He has practiced these techniques in prison in an effort to be prepared for conflicting situations in the future. He expressed his commitment to 'live a pro-social, balance and non-violent life while in the community.’
23.The applicant's conduct while in prison was excellent. His Individual Management Plan details that he was polite and respectful to staff and did not come to the attention of the officers. He was quietly spoken. He responded well to instructions given and was positive regarding direction and unit rules. He interacted well with fellow prisoners in the unit and block. He maintained his cell and personal hygiene to the required standard. He was employed in the Medical Centre on a level one gratuity. He was responsible for the general cleaning of the medical wards and preparing meals for the prisoners housed in the centre. He carried out his duties to the best of his ability, with no issues. He had a good work ethic and was very keen to work and took on extra tasks when asked from other staff without complaint. He never missed a shift. He completed all tasks to the required standard. Whilst in prison he received regular visits from 6 friends in Perth whom he met whilst in the community.
24.He participated in a number of training sessions and courses whilst in prison and detention:
(a)Think First Program (a 30 session program that helps to develop social problem solving skills and to apply those skills to real life situations, with special emphasis on the offending). Completed on 27 May 2015.
(b)Alternatives to Violence Project - basic and advanced workshop (as a volunteer). Completed on 14 February 2014 and 23 November 2014, respectively.
(c) A number of accredited units provided by ASPAC Training:
(i)Operate a personal computer (17 March 2015, in partial completion of Certificate I in Information, Digital Media and Technology)
(ii) Engage with simple texts for personal purposes
(iii) Create simple texts for personal purposes
(iv)Work with numbers and money in simple familiar situations
(v)Work with simple design and shape in familiar situations (21 January 2015, in partial completion of Certificate 1 in General Education for Adults (Introductory)).
(d) Medium Intensity Violence Program.
(e) Drug and Alcohol Program (Green Lighthouse).
(f)Anger management and social problem solving skills courses.
(g)Relationship/conflict - good stress v bad stress; what is domestic violence? - self-esteem/self image; combat life traps (5 day IHMS training). Completed on 14 March 2017.
25.The applicant's conduct while in immigration detention has also been excellent. He was awarded a certificate of appreciation in regards to the immigration detention incentives program. He was identified by the Australian Border Force as someone who has demonstrated on-going positive behaviours in immigration detention and has contributed to the good order of the Christmas Island Immigration Detention Centre. He was thanked for his co-operative behaviour and courteous attitude. He has been placed on the Education 1 list and recently commenced excursions out of the detention centre in recognition of ongoing positive behaviour.
26.He studied English whilst in prison and has been practicing his English since. He attained his Certificate I in English during his period of detention. He wants to continue to study English when released from detention. It is difficult for him to participate in online English courses in detention. The Courses require you to have a phone number, which the applicant currently does not have. The uncertainty of his situation makes it all the more difficult to commit to online courses which he must pay for in order to complete.
27.He intends to attend TAFE and learn mechanics upon release.
…
(b)Risk to the community should the Applicant commit further offences or engage in other serious conduct
49.The likelihood of further offending by the applicant is low. Further, any risk he poses to the community is not an unacceptable one.
50.It is very unlikely the applicant will reoffend in the way he did in 2011. His fear of returning to Sri Lanka where he has previously been physically and psychologically affected by events of the civil war is a constant reminder to him that should he lapse again into any kind of criminal conduct he risks being returned to Sri Lanka under Australian law. This, it is submitted, is incentive enough for the applicant not to re-offend.
51.He is extremely remorseful for the offending. He says he was trying to break up a fight between two quarrelling factions in the house. He regrets getting "mixed up" in something he never should have. He has successfully completed relevant rehabilitation programs and been a "model prisoner". He vows to never involve himself in offending in the future. To use his own words, "I have a strong attitude towards change and I want to be the best person I can be. I plan to live the Australian way of my life, being a house hold working; holidays and a beautiful trusty relationship. I am truly remorseful for my actions. I can't change the past but I can have a say on what I will do in the future.” (G21).
52.It is submitted that the applicant has a deep desire and motivation to re-enter the community to work and send money to his unwell mother so she can get the medication and treatment she needs.
53.Further, the attack on his brother in 2016 has only heightened his fears for his own life if he were to return to Sri Lanka, it also makes it more imperative in his mind to help his family financially now that his brother lives in India with his family and puts his life in danger every time he travels to Sri Lanka to see his mother.
54.Other than the one-off incident that led to his incarceration and the minor traffic offence, the applicant is generally of good character. The support letters attest to this. Members of his cricket team which he played for are asking about his return. His offending conduct is in stark contrast to the affable person he usually is. A good example is what … says in his letter of support:
As the leading, and the fastest bowler at our club, he had the power to intimidate when bowling, but he was always apologetic if bowling a ball which had the potential to harm the batsman had it not been played in a skilful way.
55.The applicant has not had any behaviour concerns in prison nor in detention despite being in a remote and isolated location where he can no longer receive visits from friends like he did when in prison and despite of being under enormous stress regarding his future, his family, his potential return to Sri Lanka and how the three factors may intersect to produce unwelcomed consequences for him and his family, especially his mother. His experience in prison was, as the sentencing judge remarked, "made more difficult by reason of the knowledge that he may, by ministerial fiat, be deported."
56.The statement of reasons not to exercise the discretion to revoke the mandatory cancellation visa, found that the applicant's rehabilitated state of mind is yet to be tested in the community. Significant weight was given to this. Untested rehabilitation should not be given the sort of weight given to it in the reasons for decision. The applicant has made some contributions to the Australian community during his time living in the community through his employment, sporting activities and church membership. After years in confinement he has paid for the harm he has brought to the victims of his actions and should be allowed to continue to forge ties and make a meaningful contribution to society. It is submitted that in the circumstances of the education and training that the applicant has received, the ties to the Australian community he has managed to create in a small space of time and in the absence of any family members as well as the fact that his offending behaviour was a one off incident, makes any risks to the Australian community of having that rehabilitated state of mind tested, low.
Given the nature of the crimes committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that HZCP’s visa would remain cancelled.
The Tribunal has reviewed the evidence before it and finds that Australia has no non-refoulement obligations in relation to HZCP – either because of a threat of harm from PLOTE, the government or others or because of his mental health issues.
There are considerations that weigh in favour of revocation. This includes HZCP’s ties to the Australian community. There is also no evidence that there will be any negative impact on the victims of HZCP’s crimes or their families if HZCP is allowed to stay in Australia. The Tribunal also accepts that HZCP will face some difficulties, including difficulties in relation to his current mental health, if he is returned to Sri Lanka.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the primary considerations referred to above, which should generally be given more weight.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65 the correct and preferable decision is to refuse to revoke the cancellation of HZCP’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall
........[Sgd]................................................................
Administrative Assistant
Dated: 29 May 2017
Date of hearing: 17 May 2017 Date final submissions received: 22 May 2017 Counsel for the Applicant: Ms T Jonker Representative of the Applicant: Ms C Benjamin Solicitors for the Applicant: Refugee Legal Representative of the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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