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

[2021] AATA 3888

JLJF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3888 (22 October 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/0738
GENERAL DIVISION	)

Re: JLJF
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Member R Bellamy

DATE OF CORRIGENDUM:            22 October 2021

PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:

1. The text in paragraphs 16, 26 and 121 stating “36(1C)(2)(b)” be replaced with “36(1C)(b)".

...............................[SGD]....................................

Member R Bellamy

Division:GENERAL DIVISION

File Number(s):      2021/0738

Re:JLJF

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Bellamy

Date:22 October 2021

Place:Brisbane

The reviewable decision is affirmed.

...........................[SGD]............................................

Member R Bellamy

Catchwords

MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – violent offending including family violence – decision under review affirmed

Legislation

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Crimes Act 1900 (NSW)

Migration Act 1958 (Cth)

Cases

DOB18 v Minister for Home Affairs [2019] FCAFC 63

KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

WKCG and Minister for Immigration and Citizenship [2009] AATA 512

REASONS FOR DECISION

Member R Bellamy

22 October 2021

BACKGROUND

1. The Applicant is a 33 year old citizen of South Sudan. He arrived in Australia in August 2006 as a holder of a Refugee (Class XB) (Subclass 200) visa (‘visa’).[1] 

   [1]     Exhibit T1, Section 37 T-Documents, T2, page 11.

2. The Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on 23 December 2015 on the basis that he did not pass the character test (because he had been sentenced to a term of imprisonment of 12 months or more) and he was serving a full-time term of imprisonment. His request to have the mandatory cancellation revoked was unsuccessful.

3. On 10 July 2017, the Applicant applied for a Protection visa. The application was initially refused on 25 July 2017 on the basis that the Applicant was not a person in respect of whom Australia owed protection obligations.[2] That decision was set aside by the Migration and Refugee Division of the Tribunal on 17 October 2017, which found that the Applicant was owed complementary protection.[3] On remittal, a delegate of the Minister (“the Respondent”) decided to refuse the application under s 501 of the Act on character grounds.[4] That decision was set aside by consent in the General Division of the Tribunal on 27 November 2018 and remitted to the Respondent for reconsideration.[5]   

   [2]     Exhibit T1, Section 37 T-Documents, T6 pages 68 to 84.

   [3]     Exhibit T1, Section 37 T-Documents, T7, pages 87 to 105.

   [4]     Exhibit T1, Section 37 T-Documents, T8 pages 106 to 116.

   [5]     Exhibit T1, Section 37 T-Documents, T9, pages 117 to 118.

4. On 10 February 2021, the Respondent refused the application having found that he did not satisfy subsection 36(1C) of the Act which is an essential criterion for a Protection visa. The delegate also found that subsection 36(2C)(b) of the Act applied to the Applicant, meaning he could not satisfy the criteria in subsection 36(2)(aa) of the Act.

5. On 11 February 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.[6] The Tribunal has jurisdiction under section 500(1)(c) of the Act to review the decision.

   [6]     Exhibit T1, Section 37 T-Documents, T1, page 1 to 7.

6. This matter was heard on 26, 27, 28 and 30 July 2021. The Applicant gave evidence via videoconference and his partner, mother and brother gave evidence by telephone. The Tribunal also received the documentary evidence that is listed in the attached exhibit list, marked “Annexure A”.

7. The Applicant’s mother required the assistance of an interpreter. She started her evidence at the end of the second hearing day. Some of her evidence was unresponsive or difficult to reconcile with evidence she had previously given. On the third hearing day, a different interpreter assisted her. Her evidence was much more coherent, and some matters that she had given evidence about the previous day were clarified to my satisfaction. My assessment was that the Applicant’s mother was a reliable witness but that she and the first interpreter had difficulty communicating. I have borne this in mind with respect to the weight I have given her evidence.

8. There were also some problems with the evidence of the Applicant’s partner, “Ms T”. She often gave unresponsive answers and on several occasions she suddenly started yelling angrily and ranting. This is not so apparent in the Transcript of the proceedings, but it is evident in the audio recording. Further, while it was clear that she wanted a good outcome for the Applicant, she spontaneously said some things that were against his interests. I have not had regard to any evidence she gave that was against the Applicant’s interests and that concerned a matter that was not put to him when he (earlier) gave his evidence. Ms T conceded that she had a poor memory of events that occurred several years ago, and had difficulty recalling details or specific events.      

   ISSUES

9. Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that:

   ·criteria for the grant of the visa have been satisfied (including any health criteria);

   ·the grant of the visa is not prevented by other sections of the Act; and

   ·any visa application charge payable has been paid.

   the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.

10. Subsection 36(1A) of the Act provides that:

    An Applicant for a protection visa must satisfy:

    (a)  both of the criteria in subsections (1B) and (1C); and

    (b)  at least one of the criteria in (2).

11. Subsection 36(2) of the Act relevantly provides:

    A criterion for a protection visa is that the applicant for the visa is:

    (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

    …

12. Paragraph 36(1C)(b) of the Act relevantly provides:

    “A criterion for a protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:

    …

    (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”

13. This provision excludes a non-citizen from satisfying the criteria for a protection visa (whether their claim is on the basis that they are a refugee or on the basis of complementary protection).

14. Section 5M of the Act provides that “a particularly serious crime” for the purposes of
    s. 36(1C)(b) includes a crime that consists of:

    ·“a serious Australian offence”; or

    ·“a serious foreign offence”.

15. Paragraph 36(2C)(b) of the Act provides:

    “A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

    …

    (b)  the Minister considers, on reasonable grounds, that:

    …

    (ii)  the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

16. This provision excludes a non-citizen from satisfying the criteria for a protection visa on the basis of complementary protection, and seems redundant given s 36(1C)(2)(b) of the Act, however the delegate’s decision is expressed to have been partly based on the application of both s 36(1C)(2)(b) and s 36(2C)(b) of the Act.

17. Accordingly, I am to determine whether I am satisfied on reasonable grounds that:

    (a)the Applicant has been convicted by a final judgment of a particularly serious crime; and,

    (b)the Applicant is a danger to the Australian community.

18. Section 5 of the Act provides that “serious Australian offence”:

    means an offence against a law in force in Australia, where:

    (a)the offence:

    (i)involves violence against a person; or

    (ii)is a serious drug offence; or

    (iii)involves serious damage to property; or

    (iv)is an offence against section 197A or 197B (offences relating to immigration detention); and

    (b)the offence is punishable by:

    (i)imprisonment for life; or

    (ii)imprisonment for a fixed term of not less than 3 years; or

    (iii)imprisonment for a maximum term of not less than 3 years.

19. The Applicant’s criminal history[7] indicates that he has been convicted by way of final judgment of an offence that involves violence against a person punishable by imprisonment for a maximum term of not less than three years on at least one occasion. Indeed, it indicates that he has been convicted of six such offences.[8] The Applicant did not dispute the fact of any of those convictions.[9] Accordingly, I am satisfied that the Applicant was convicted by a final judgment of a “particularly serious crime”. The remaining issue is whether the Applicant is a danger to the Australian community.

    [7]     Exhibit T1, Section 37 T-Documents, T21.

    [8] Assault with act of indecency (21 May 2008) – maximum penalty 5 years imprisonment under the now repealed s61L Crimes Act 1900 (NSW) (“Crimes Act”); Aggravated robbery (3 December 2010) – maximum penalty 14 years imprisonment under s95(1) Crimes Act; Threaten injury to person w/I commit indictable offence (3 December 2010) – maximum penalty 12 years imprisonment under s33B(1)(b) Crimes Act; Destroy or damage property (3 December 2010) – maximum penalty 5 years imprisonment under s195(1)(a) Crimes Act; and Assault occasioning actual bodily harm (DV) (two offences) (31 July 2015) – maximum penalty 5 years imprisonment under s59(1) Crimes Act.

    [9]     i.e that he was in fact convicted.

    Meaning of Danger to the Australian Community

20. Subsection 36(1C) of the Act is in essentially the same terms as Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Convention’).

21. Article 33(1) of the Refugees Convention provides that:

    No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

22. Article 33(2) of the Refugees Convention provides that:

    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

23. In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin QC, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention:

    “The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

    …

    The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

    The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:

    ...

    Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk.

    ...

    In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future…as Brennan J, pointed out (Salazar at 100) it involves an assessment of the Applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.””

24. In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:

    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.

25. In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in obiter:

    “Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63;(2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”

26. The meaning of danger must contemplate both the probability of a thing occurring and the harm that will result from its occurrence. For example, a high probability that a person will park illegally presents much less of a danger than a moderate probability that a person will commit murder. I do not interpret “danger” in the context in which it is used in s 36(1C)(2)(b) or s 36(2C)(b) of the Act, to refer only to probability. Nor do I think that Logan’ J’s formulation of “present and serious risk” or Bromberg J’s “high level of risk” are intended to confine the meaning of the word in that way.  

27. The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of removing him to South Sudan.[10]

    BACKGROUND AND CRIMINAL OFFENDING

    [10]    SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 and DOB18 per Logan J at [51] and [52].

    Before coming to Australia

28. The Applicant was born in 1988[11] in what was formerly known as Sudan and is now South Sudan. In June 2006, at the age of 18 he came to Australia on a Refugee (Class XB)(Subclass 200) visa with his mother, step-father and five step brothers.

    [11]    Exhibit T1 Section 37 T documents, T3, page 27.

29. According to a statutory declaration dated 28 January 2009[12] (“the 2009 statutory declaration”) that was submitted to the (then) Department of Immigration and Citizenship (“the Department”) in response to a notice of intention to cancel the Applicant’s visa on character grounds:

    ·     the Applicant, his mother and stepfather fled Sudan to Ethiopia in 1989 when he was one year old, while his brother and two sisters remained in Sudan with their father;

    ·     he, his mother and his step-father lived in a refugee camp until they were forced out by the Ethiopian government in 1992;

    ·     they then relocated to the Kakuma refugee camp in Kenya;

    ·     he was regularly physically assaulted by his step-father and, because of that, their relationship is strained;

    ·     when he was around 10 years old, his stepfather beat him with a stick and hit him in the eye. His mother was very upset and tried to stop him. In retaliation his step-father punched his mother. As a result of this incident the Applicant lost sight in one eye;

    ·     he first drank alcohol in Kenya at the age of 15 because of problems with his step-father;

    ·     upon arrival in Australia, he did not drink any alcohol for about six months however he resumed alcohol use due to leaving the family home and pressure from peers; and

    ·     in around September 2006, he was in a relationship and his girlfriend had an abortion without consulting him. The relationship ended. He was very upset and turned to drinking alcohol even more than he had been before.

    [12]    Exhibit T1 Section 37 T documents, T10, pages 157 to 162.

30. There is some inconsistent evidence about how the Applicant’s eye was injured and his movements after leaving Ethiopia. These matters are not directly relevant to whether he is a danger to the Australian community, but they speak to his credit as a witness which impacts some of my findings of fact that relate to my assessment of his risk to the community. There is no need to address the evidence about the Applicant’s eye but it is useful to set out the evidence concerning the Applicant’s claims to have been abducted.

31. One version the Applicant gave is contained in an International Health and Medical Service (“IHMS”) record made by a counsellor, “Ms L”, in relation to a mental health consultation, dated 29 June 2017. Under “history” Ms L said the Applicant:

    “Age 7 years in Sudan was forced to be a soldier and ‘killed many people’ which disturbs him to this day. At age 12, solo, he escaped carrying with him 3 guns and ammunition and travelled for about 1 month to Uganda arrival to a small village. The people at first were angry but the leader let [the Applicant] stay for about 3 months. He sold the guns to the leader who then organised a bus escort to Kenya, city. From there he made his way to a refugee camp in Kenya called [Kakuma]which is between Sudan and Kenya. He had a total of 6 years on his own surviving to the best ability he could, by shooting animals for food...To [the Applicant’s] amazement, his mother was in the refugee camp, who had previously held a funeral, believing he had passed away…[The Applicant] shared how at a young age and currently he/his would/having/has flashbacks/dreams and memories of people/children he was forced to kill being a soldier.”[13]

    (errors in original)

    [13]    Exhibit A5, International Health and Medical Services IHMS Medical Records, page 43

1. However, in the Applicant’s Protection visa application form, dated 4 July 2017, the Applicant said he had lived in the Kakuma refugee camp in Kenya from 1992 until 2 August 2000 which is consistent with the time-frames he gave in the 2009 statutory declaration.[14] The Protection visa application is dated only five days after the mental health consultation referred to above.

   [14]    Exhibit T1 Section 37 T documents, T3, page 42.

2. In the hearing, the Applicant was asked if he recalled telling a psychologist that he had been at abducted by rebels. He said he did and that he was abducted and tortured in 1992 when he was around eight or nine years old in a place between South Sudan and Kenya. He was away for two or three years and he crept out when they lowered their guard. He walked around for two weeks until he came to the Kakuma refugee camp by himself.[15] He survived during that two weeks by mostly eating leaves and plants.[16] He said before being abducted he had been living with his family, and:

   “when the war happened is everyone run for it all night. So, you go to any direction or you take cover from - anywhere. So, what happened they escaped and I was trying to hide until they got me.”[17]

   [15] Transcript, page 6, lines 20 to 48.

   [16] Transcript, page 7, lines 1 to 9.

   [17] Transcript, page 17, lines 30 to 45.

3. The Applicant was asked about the omission of any reference to having been abducted in a submission that Legal Aid made on his behalf in 2009 in response to a notice of intention to cancel his visa.[18] He said the experience was traumatic and he did not want to relive it.[19] When asked why he did not mention the abduction in his Protection visa application he said he did not want to tell the person who filled in the application about it because he did not want to remember it.[20]

   [18] Exhibit T1 Section 37 T documents, T10, pages 163 to 173.

   [19] Transcript, page 20, lines 45 to 48.

   [20] Transcript, page 25, lines 1 to 14.

4. The Applicant’s mother gave evidence that the Applicant was born in 1988, they went to Ethiopia with her husband, the Applicant’s step-father, in 1990, and they spent eight years in Ethiopia. She said in South Sudan they had been captured and tortured by the rebels, although I note that the Legal Aid submission only refers to her being detained and tortured.[21]

   [21] Exhibit T1 Section 37 T documents, T10, page 163.

5. The Applicant’s mother said the Applicant always lived with her while they were in Ethiopia. They went from Ethiopia to the refugee camp in Kenya, and the Applicant lived with her there the entire time.[22] They got assistance from white people who gave them tents, food and water.[23] She consistently indicated that the Applicant had never been apart from her in Africa. She said plenty of children came to the refugee camp without their parents.[24] She also said there were dangerous people in the camp who would attack people at night and the Applicant was aware of this danger.[25]

   [22] Transcript, pages 127 to 129.

   [23] Transcript, page 145, lines 30 to 45.

   [24] Transcript, page 146, lines 38 to 48.

   [25] Transcript, page 146, lines 25 to 35. Transcript page 147 lines 35 to 40.

6. I do not accept that the Applicant was abducted by himself and forced to commit atrocities or that he spent any extended time away from his family before coming to Australia. I think it likely that parts of his account were taken from the experiences of others. The fact that the Applicant told such a fabrication to the Tribunal undermines the credibility of his evidence in general.     

7. I accept that the Applicant experienced hardship and trauma before coming to Australia.    

   Offending and other serious conduct in the Australian Community

8. The Applicant came to Australia in June 2006 and by April 2007 he had been convicted of his first offence, being common assault. He received a fine.

9. On 30 May 2007 he was convicted of another common assault in addition to offences arising from not having a valid train ticket and smoking on a train. He was fined for each offence.

10. In January 2008 the Applicant and an associate indecently assaulted a girl. According to the fact sheet prepared by the New South Wales police[26] the victim was sitting on a bench on a train station platform. The Applicant sat next to her, pressed his body up against her and put his arm around her shoulders. She asked him what he was doing, and he said “I love you. I’m coming wherever you’re going.” He continued touching her inappropriately, and his associate sat on the other side of the victim and pressed his body up against her. The Applicant tried to hold the victim’s hand. She pulled it away from him and he said “You know what we want” as he continued to touch her. At one point both the Applicant and his associate had their arms around the victim’s shoulders.

    [26] Exhibit T1 Section 37 T documents, T19, pages 274 to 276.

11. The train arrived, the victim got on, and the Applicant and two associates followed her. Upon seeing two other passengers she mouthed the words “Help me” to them. The Applicant sat down next to the victim on the same seat and continued the assault. The victim began to cry. The Applicant put his hand on her chest, stroking the top part of her breasts on the outside of her clothing and tried to kiss her. His associate moved to sit directly opposite her. The Applicant got up, lent down and was holding her by both shoulders trying to wrap his arms around the back of her neck. The train stopped, she started screaming for help and the Applicant and his friends got off the train.

12. The two other people in the carriage had called the police who detained the Applicant and his two associates at the station. The Applicant was affected by alcohol and was hostile to the police. CCTV footage obtained from the first station shows the Applicant sitting down next to the victim and the victim being in between him and his associate until a train arrived.

13. In the 2009 statutory declaration, the Applicant said he and his friends had been drinking all day, he could not remember what happened because he was under the influence of alcohol, he would never intentionally frighten anyone, and it was only because he was very drunk that the incident happened.[27]

    [27] Exhibit T1 Section 37 T documents, T10, page 160.

14. In the hearing the Applicant said that the victim was the girlfriend of a friend and he denied touching her private parts but admitted to touching her bottom because the police showed him video footage (from the train station) of him doing that.[28] He said was so drunk that he blacked out.[29] He denied all the other inappropriate conduct.[30] He claimed the victim followed him and his associates onto the train[31] and denied having sat next to her on the train.[32]

    [28] Transcript, page 11, line 30 to page 12, line 22.

    [29] Transcript, page 33, lines 35 to 46.

    [30] Transcript, page 34.

    [31] Transcript, page 35, lines 1 to 13.

    [32] Transcript, page 35, lines 26 to 30.

15. A Community Offender Services Probation and Parole Service Presentence Report was prepared on 15 May 2008.[33] It included the observation that:

    “It would appear that the offender lacks pro social associates in his immediate networks.”

    [33] T10, pages 154 to 156.

16. Under the heading “Alcohol and Drugs Issues” it stated that:

    “The offender commenced alcohol use in Kenya at the age of fifteen. He reported that he would consume a bottle of spirits several days a week. Upon his arrival to Australia the offender reported that he abstained from alcohol use for a period of six months and resumed alcohol use due to pressure from his associates. He admitted that up until his arrest he would consume a cask of wine in one to two days out of the week. The offender asserted a desire to abstain from alcohol use.”

17. Under the heading “Attitude to the Offence(s)” it said:

    “The offender minimised his involvement in the offences of Common Assault and Assault with Act of Indecency. He admitted that he was intoxicated at the time of the offence and he was accompanied by his peers. He denied inappropriately touching the victim. Perusal of [the Applicant’s] criminal history indicated two other Common Assault matters which occurred in March and May 2007. The offender did not admit to any anger management issues.

18. The report recommended a type of intervention that would include strategies to address alcohol issues, anger management, and further education and developmental training.

19. On 21 May 2008 the Applicant was convicted of assault with act of indecency and imprisoned for 12 months with a non-parole period of nine months, and common assault and sentenced to imprisonment for six months. He was also convicted of shoplifting and given two years of probation. A condition of his probation was that he obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.[34]

    [34]    Exhibit T1 Section 37 T documents, T2, page 13.

20. In passing sentence, the learned sentencing Magistrate said:

    “You have known for a long time that alcohol was getting you into trouble but you did nothing about it. You continue to make more people victims because of your bad behaviour. On this occasion you terrified a young woman and you committed upon her, an indecent act and that is not to be tolerated.”[35]

    [35]    Exhibit T1 Section 37 T documents, T10, page 153.

21. In the hearing the Applicant said he recalled the learned sentencing Magistrate saying that he had a problem with alcohol.[36]

    [36]    Transcript, page 37, lines 22 to 31.

22. On 13 November 2008, the Department sent him a notice of intention to cancel his visa on character grounds. Legal Aid New South Wales made representations on his behalf asking that his visa not be cancelled. The Applicant also provided the 2009 statutory declaration. In that, he said:

    “My anger and abuse of alcohol has resulted in my crimes. I am aware that the Department of Immigration and Citizenship is considering cancelling my Visa because of my charges…”[37]

    and

    “I have taken positive steps with my rehabilitation by successfully completing the induction course which includes an alcohol and drug awareness course… I know that I do not want to turn to alcohol ever again. Drinking alcohol creates problems. I have seen the effect that it has had on me and on my immediate and extended family and I do not ever want to go down that path again. I intend on addressing my issues once I get out of gaol… I am also willing to do any courses that are available in the Coffs Harbour community to address my alcohol and anger issues”. [38]

    [37]    Exhibit T1 Section 37 T documents, T10, page 160

    [38]    Exhibit T1 Section 37 T documents, T10, pages 160 to 162.

23. The submission from Legal Aid said:

    “[The Applicant’s] status as a refugee allows him to access specialised services within the public health system, including a Refugee Health Nurse at Coffs Harbour Base Hospital. This nurse…has experience in identifying the special health needs of refugees…and making appropriate referrals. In [the Applicant’s] case, this would likely involve a referral to the Drug and Alcohol Nurse Consultant at the hospital. There is also a residential drug and alcohol rehabilitation farm at Glenreagh, just outside Coffs Harbour, that provides a 6 month counselling and rehabilitation service and [the nurse] believes this would be suitable for [the Applicant].”

24. In the hearing the Applicant said he saw a psychologist and psychiatrist in Coffs Harbour and he saw the nurse every week and he was given antidepressants, but he did not undertake residential rehabilitation.[39] He acknowledged that, at that time, he knew that if his visa was cancelled he might have to go back to Sudan and that he was afraid of that.[40]

    [39]    Transcript, page 40, lines 25 to 45.

    [40]    Transcript, page 39, lines 20 to 35.

25. The Applicant was released on parole on 11 February 2009.

26. According to a Probation and Parole Service report dated 24 February 2009[41], it was alleged that the Applicant assaulted his mother when she travelled to Sydney to try to persuade him to return to Coffs Harbour with her per his parole conditions. In the hearing, the Applicant denied this.[42] However Ms T, in her evidence, volunteered that the Applicant’s mother’s efforts to stop him drinking “made him bash her” without specifying when that was. Given Ms T’s evidence that the Applicant did assault his mother at some stage, I comfortably prefer the Probation and Parole Service’s contemporaneous records over the Applicant’s denial.  

    [41]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 117.

    [42]    Transcript, page 41, lines 26 to 42.

27. The Applicant’s parole was subsequently revoked, and he was returned to custody. In the hearing he admitted that he knew he was not allowed to drink alcohol but he did start drinking and he was found to be in breach.[43] Although the report stated that he had lapsed into alcohol and other drug use, he denied having used drugs.[44] The Applicant was released in June 2009.

    [43]    Transcript, page 41, lines 14 to 24.

    [44]    Transcript, page 41, lines 26 to 42.

28. On 20 August 2009 the Applicant was convicted of “behaving offensive manner in/near public place/school” and fined.

29. On 2 February 2010, while the Applicant was on probation, he committed an aggravated assault and some other related offences. He was heavily intoxicated with two friends, when he encountered the victim. He initially harassed the victim and demanded money from him while he tried to walk away. Another male, who was presumed to be an associate of the Applicant, stood between the Applicant and victim and said “Leave him alone” but the Applicant leaned over him and punched the victim several times, knocking him to the ground. He kicked the victim when he was on the ground in the foetal position. He took the victim’s backpack. The victim received lacerations and bruising to his eye, cheek and lip, bruising and soreness to his throat, back and ribs and torn ligaments in his right shoulder.[45]

    [45]    Exhibit T1, Section 37 T-Documents, T19, pages 263 to 266.

30. A husband and wife nearby witnessed the assault and tried to help the victim. The Applicant yelled at the husband “I’m gonna fucking kill you” half a dozen times as he approached with a rock in his hands. He held it over the husband as if to strike him. When the husband tried to walk away the Applicant then slapped the back of the husband’s head and struck him on the right thigh. The husband walked away and the Applicant then went up the driveway of a nearby residence, still holding the rock. The resident retreated into her home. The Applicant hit the door with a rock and knocked down some pot plants. The day after the incident the Applicant was remanded in custody.

31. In the hearing, the Applicant claimed that the victim had asked for a cigarette, started abusing him and his friends, and pushed him, so he punched the victim. The Applicant pulled the victim’s bag away and they left.[46] He denied having kicked or punched the victim. He said he used the rock because he feared for his safety.[47] He claimed the two witnesses were actually friends of the victim and they were not coming over to help the victim but to fight him. He also denied smashing the door to a residence and knocking over pot plants after the occupant had fled inside.[48] He said he only pleaded guilty because he was on remand and wanted to be released, and it did not mean he was guilty.[49] He agreed that he had a lawyer representing him.[50] 

    [46]    Transcript, page 12, line 45 to page 13, line 25.

    [47]    Transcript, page 43, lines 29 to 45.

    [48]    Transcript, page 45 line 30 to page 46, line 35.

    [49]    Transcript, page 44, lines 22 to 42.

    [50]    Transcript, page 43, lines 1 to 7.

32. On 3 December 2010, the Applicant was sentenced for common assault, destroy or damage property, threaten injury to person with intent to commit indictable offence and aggravated robbery. For the aggravated robbery he was sentenced to imprisonment for three years with a non-parole period of 18 months and he was given lesser sentences for the rest.

33. In passing sentence, the learned Judge took into account the Applicant’s traumatic childhood which caused him to suffer nightmares. He warned the Applicant that if he continued to abuse alcohol in the amounts that he was, he would kill himself and told him to get help for his trauma. In the hearing the Applicant acknowledged that he had been given that warning.[51]

    [51]    Transcript, page 47, lines 45 to 47.

34. Earlier, on 14 July 2010, the Applicant was convicted of “have custody of an offensive implement in a public place” and given a 12 month good behaviour bond.

35. On 28 July 2011, Community Corrections conducted a home visit at Ms T’s home presumably for the purpose of approving that address for parole. During that visit, Ms T disclosed that she had been caught attempting to smuggle illicit drugs into a Correctional Centre[52] given a fine and a good behaviour bond, and banned from visiting or entering any Correction Centres.[53] According to a subsequent record, dated 29 August 2011, the illicit drug was cannabis and Ms T had claimed the Applicant was being stood over by other inmates who wanted the drug.[54]

    [52]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 101.

    [53]    Exhibit R2, Respondent’s Tender Bundle, R2, page 100.

    [54]    Exhibit R2, Respondent’s Tender Bundle, R2, page 102.

36. In the hearing the Applicant said the cannabis was not for him, he did not know why Ms T tried to bring it in, he was angry when he found out[55], and he has never smoked cannabis.[56] However, Ms T gave evidence that she tried to smuggle the cannabis to see if she could get away with it, to walk in with it and walk out with it, then afterwards tell the Applicant that she had it the whole time to torment him for nagging her to bring it in. When asked if she was saying that the Applicant had been asking her to bring in cannabis, she said:

    “Well they’ve got it on intel. If you actually go back and get the recordings, you’ll hear that they have the recordings of [the Applicant]…asking me to bring in some pot for him”.[57]

    [55]    Transcript, page 48, lines 22 to 45.

    [56]    Transcript, page 49, lines 1 to 15.

    [57]    Transcript, page 168, lines 16 to 34.

37. I am satisfied that the Applicant asked Ms T to smuggle cannabis to him.

38. The Applicant was released on parole on 2 August 2011.[58]

    [58]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 121.

39. In early December 2011, it was recommended that the Applicant’s parole be revoked due to multiple breaches. The breach of parole report[59] included the following reports of non-compliance with his parole conditions:

    ·failure to attend counselling with an alcohol and drug counsellor when directed;

    ·failure to comply with a Formal Written Direction issued on 31 August 2011 to abstain from alcohol use;

    ·failure to abstain from drug use; and

    ·failure to make contact with a residential rehabilitation facility despite a direction to do that “due to a litany of excuses”.

    [59]    Exhibit R2, Respondent’s Tender Bundle, TB3, pages 121 to 125.

40. The report noted that the Applicant had attended a meeting on 11 August 2011 in which he claimed he was not consuming drugs or alcohol. He made the same claim on 17 and 24 August 2011. A breath test on 29 August 2011 revealed a blood alcohol content of 0.121. He said he had consumed “a few beers” at his mother’s place before the meeting. At the next meeting on 8 September 2011 he again claimed to be abstinent of drugs and alcohol. A urine sample the Applicant gave on 24 September 2011 tested positive for cannabis. He admitted to having used cannabis with a friend. On 31 September 2011 he admitted to having used cannabis on a few occasions and claimed not to be using alcohol. A random home visit was conducted on 8 November 2011 at which the Applicant gave a urine sample which was positive for cannabis and alcohol.

41. In the hearing, the Applicant said he recalled receiving the direction to abstain from alcohol[60] but denied any direction about cannabis.[61] However, a Community Corrections file note of an interview held on  31 October 2011[62] states:

    “Cannabis use: Claimed he only used cannabis on a few occasions, however, he acknowledged that he knew he should not use it. Blamed his associates for enabling him to use that cannabis”.

    [60]    Transcript, page 53, lines 1 to 17.

    [61]    Transcript, page 53, lines 19 to 45.

    [62]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 105.

1. That day the Applicant was issued a warning to abstain from cannabis.[63] Further, a file note, dated 22 December 2011[64] said that the Applicant:

   “explained that his cannabis use had been ongoing and increasing. He failed to abstain from alcohol and he was too slow to assist with entry into rehab as directed”.

   [63]    Exhibit R2, Respondent’s Tender Bundle, TB3 page 105

   [64]    Exhibit R2, Respondent’s Tender Bundle, TB3 page110.

2. The October and December 2011 file notes were put to the Applicant, and he denied that he was using cannabis at that time.[65] He said all his incidents related to alcohol and he had never tried cannabis.[66] Indeed, the Applicant denied cannabis use throughout his evidence in chief and cross-examination. In re-examination, in response to a very leading question from his lawyer that was expressly intended to resolve the inconsistency between the objective evidence of cannabis use and the Applicant’s denials, the Applicant admitted to having used cannabis once, twice or three times when he was young at parties, a long time ago[67], in 2009 and 2010.[68] The Applicant’s late admission to limited use did not restore his credibility in my mind. 

   [65]    Transcript, page 93, line 35 to page 94, line 2.

   [66]    Transcript, page 93.

   [67]    Transcript, page 99, lines 1 to 13.

   [68]    Transcript, page 99, lines can 20 to 25.

3. The Applicant blamed his parole officer for his failure to engage in residential rehabilitation, saying he was not given an application form.[69] He added that his parole officer wanted to send him to prison and refused to give him the phone number of the residential rehabilitation program.[70] 

   [69]    Transcript, page 54, lines 35 to 46.

   [70]    Transcript, page 55, lines 10 to 13.

4. When it was put to the Applicant that he had failed to take advantage of the opportunities given to him to address his alcohol and drug abuse, he said he tried but “they” did not help him.[71]

   [71]    Transcript, page 55, lines 43 to 45.

5. The Applicant’s parole was revoked and on 22 December 2011 he was returned to custody.[72] He served the rest of his sentence in gaol and incurred some breaches during that time, being possession of a gaol made syringe,[73] aggressive behaviour towards a guard,[74] and assault against another inmate,[75] all of which he denied in the hearing.[76]

   [72]    Exhibit R2, Respondent’s Tender Bundle, TB3, pages 126 and 127.

   [73]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 136.

   [74]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 138.

   [75]    Exhibit R2, Respondent’s Tender Bundle, TB3, pages 139 to 140.

   [76]    Transcript, page 49, lines 17 to 25; page 62, lines 26 to 44.

6. In 2011, the Applicant received a written warning from the Department that if he committed further offences his visa could be cancelled.[77] In the hearing, he acknowledged having received that warning. He said he responded that if he went to South Sudan he would die, there was nothing that would save him and it was better to die in the detention centre than to go to South Sudan and die there.[78]

   [77]    Exhibit T1, Supplementary Section 37 T documents, ST2.

   [78]    Transcript, page 51, lines 28 to 44.

7. While the Applicant was in prison in 2012, he attended a psychologist for Post-Traumatic Stress Disorder (“PTSD”) and he attended a Get SMART Alcohol and Drug program. He declined to participate in the sex offender treatment program.[79] His sentence expired on 22 February 2013.[80]

   [79]   Exhibit R2, Respondent’s Tender Bundle, TB3 page 129.

   [80]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 129.

8. In September 2013 the Applicant was caught in possession of cannabis and he was later convicted in October 2013 of possess a prohibited drug and fined. Contemporaneous police records[81] indicate that cannabis was found in his pocket when a vehicle he was in was intercepted by the police. He told the police he found it. In the hearing, the Applicant said the drugs belonged to his friend, not to him. He said he was in the passenger seat and the drugs were found under the passenger seat. He said the police had lied “so they’re the police, they can make up anything they want. So that’s a lie.”[82]

   [81]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 78.

   [82]    Transcript, page 57, line 5 to page 58, line 13.

9. According to police records[83], on 12 October 2013, Ms T reported that the Applicant had assaulted her the previous day. She said they had separated a month ago and when the Applicant was visiting to see their child, he punched her in the eye. When she reached for her phone, the Applicant grabbed her wrist to stop her. In the hearing the Applicant said she hit him first, then he hit her.[84] Ms T gave evidence that the report “sounds about right” but she did not appear to have a specific memory of the incident.[85] The Applicant was not prosecuted for this alleged assault.

   [83]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 77.

   [84]    Transcript, page 58, lines 27 to 35.

   [85]    Transcript, page 175, lines 33 to 48.

10. There is also a police record[86] of an incident on 24 December 2013 when the Applicant had demanded to see his daughter and when Ms T refused, he sent her a text saying “Do it, you will die very soon”. The police applied for a Provisional AVO. In the hearing the Applicant denied having sent the text, saying he had only told Ms T to let him see his daughter.[87] Ms T she denied having any memory of the text message.[88] She said she thought the AVO was issued because the Applicant hit her and “he needed an AVO slapped on his ass and pull his head in. You can’t just go hitting women.”[89]

    [86]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 74.

    [87]    Transcript, page 58, lines 34 to 45.

    [88]    Transcript, page 176, lines 10 to 18.

    [89]    Transcript, page 176, lines 27 to 30

11. Based on the police records and Ms T’s evidence, I am satisfied that the Applicant was violent to Ms T.

12. On 7 August 2014, the Applicant was caught driving at 81 km/h in a 50 km/h zone while on a P1 driver licence which restricted his permitted blood alcohol to 0%. He admitted to having consumed three to four stubbies of full-strength beer earlier that day and a breath analysis returned a reading of blood alcohol concentration of 0.051.[90] In September 2014 he was convicted for these offences and was disqualified from driving for three months.

    [90]    Exhibit R2, Respondent’s Tender Bundle, TB3, page 146.

13. In late 2014, the Applicant was no longer in a relationship with Ms T and was seeing “Ms S”. According to police records[91], on 1 December 2014, the Applicant had been in a relationship with Ms S for around three months. During an argument while in a car, Ms S got out of the car, and the Applicant followed her and punched her in her face four or five times. As she lay with her back flat on the ground, he knelt over her punched her in the head about another ten times. Ms S got away, sat in the driver's seat and tried to lock the car doors. However, the Applicant had already got into the rear passenger seat. He climbed into the front passenger seat and struck her in the head again, around five times. He then got a soft drink from inside the car, shook it and sprayed soft drink all over Ms S. He then took money from her purse. This information appears to have been provided by Ms S afterwards.

    [91]    Exhibit R2, Respondent’s Tender Bundle, TB2, pages 66 and 67.

14. The police took photographs of Ms S’s face.[92] Those colour photographs depict heavy eye make-up around Ms S’s eyes and separate discoloration around her orbital bones. The discoloration looks like bruising. There is blood around her nose and mouth.

    [92]    Exhibit R3, Colour copies of Exhibit R2 pages 154 to 159. 

15. A Provisional Apprehended Violence Order (AVO) was made prohibiting the Applicant from approaching or contacting Ms S.[93]

    [93]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 62.

16. The Applicant said he was drunk and did not remember what happened, but he understood from what the police told him that he and Ms S had argued and he had slapped her face.[94] He denied having done any more than slapped Ms S once.[95] This is perhaps the most obviously implausible denial that the Applicant gave in the hearing as it seems impossible that one slap could have resulted in bruising to both of Ms S’s eyes and a bloody nose. When shown the colour photographs, the Applicant said the apparent bruising was          make up, that Ms S had lied about the assault[96], and one slap could have caused bruising to both eyes[97].

    [94]    Transcript, page 14, lines 35 to 42.

    [95]    Transcript, page 59, lines 30 to page 60, line 11.

    [96]    Transcript, page 60, line 35 to page 61, line 21.

    [97]    Transcript, pages 74 to 77.

17. According to contemporaneous police file notes[98] on 25 January 2015 the Applicant was intoxicated and drug affected, driving with Ms S. The Applicant hit Ms S on the mouth, causing her lip to bleed and swell. Ms S got out of the car and the Applicant drove off. He drove on the wrong side of the road and crashed into a wall of units, causing structural damage. A resident came out and tried to write down the registration of the vehicle. The Applicant reversed and then drove toward that person who took evasive action. The Applicant drove to where he had left Ms S and she got in. He got out. When the police attended, Ms S was hostile and refused to make a statement. The police records note that Ms S had a cut, bruised and swollen lip and that a witness had reported seeing her and the Applicant yelling and screaming at each other and hitting each other on the side of the road, and that Ms S was assaulting the Applicant.[99] The Applicant ran away from the police but he was apprehended and remanded in custody.[100]

    [98]    Exhibit R2, Respondent’s Tender Bundle, TB2 pages 62 and 63.

    [99]    Exhibit R2, Respondent’s Tender Bundle, TB2, pages 62 and 63.

    [100] Exhibit T1, Section 37 T-Documents, T10, page 129.

18. The Applicant contested the police account and a witness gave evidence that Ms S was driving the car and she had driven the car towards him and the Applicant.[101] It is apparent from the cross-examination of this witness that he did not give that information to the police, or even make himself known to attending police officers. The guilty verdict indicates that this witness’s evidence was not accepted.  

    [101] Exhibit T1, Section 37 T-Documents, T10, pages 130 to 140.

19. On 31 July 2015 the Applicant was convicted of:

    ·assault occasioning bodily harm (DV) and sentenced to 18 months imprisonment with a 12 months non-parole period for the offending on 1 December 2014;[102]

    ·assault occasioning actual bodily harm and contravene AVO, and sentenced to 18 months imprisonment with a non-parole period of 12 months for the offending on 25 January 2015; and

    ·shoplifting and sentenced to imprisonment of six months.

    [102] Exhibit T1, Section 37 T-Documents, T10, page 129.

20. Since 25 January 2015, the Applicant has been in either prison or Immigration Detention. Incident reports and IHMS file notes include several allegations of misbehaviour between 2015 and 2017, including the following, all of which the Applicant denied[103]:

    [103] Transcript, page 64, line 32; page 65, line 2; pages 103 and 104; page 65, lines 34 to 39; page 65, line 42 page 66, line 1; page 66, lines 2 to 24; page 66, lines 27 to 40; page 67, line 42 page 68, line 2.

    ·on 17 September 2016, officers attended an altercation between two detainees and the Applicant, who appeared to be intoxicated, challenged the officers and became extremely aggressive;[104]

    [104] Exhibit R2, Respondent’s Tender Bundle, TB3 page 171 to 173.

    ·on 7 December 2016, the Applicant punched another detainee in the head;[105]

    [105] Exhibit R2, Respondent’s Tender Bundle, TB3 page 176.

    ·on 19 February 2017, during an incident involving several detainees, the Applicant yelled abuse at an officer, saying "Don't fucken touch me I’ll smash you” while advancing in his direction very aggressively. He then ran around a railing and advanced towards the officer from a different direction saying “You with the sunglasses let’s fucken go I’ll smash you”;[106]

    [106] Exhibit R2, Respondent’s Tender Bundle, TB3 page 180.

    ·on 26 April 2017, the Applicant and another detainee were assaulting each other;[107]

    [107] Exhibit R2, Respondent’s Tender Bundle, TB3 page 184.

    ·on 9 May 2017, the Applicant was brought to IHMS for a welfare check after being found intoxicated;[108]

    [108] Exhibit A5 International Health and Medical Services (IHMS) Medical Records.

    ·at a mental health consultation on 11 May 2017 with Ms L, it was recorded that:

    “client has been apprehended for brewing alcohol and drinking with three other clients”.[109]

    [109] Exhibit A5. International Health and Medical Services (IHMS) Medical Records

    ·At another consultation on 17 May 2017 with Ms L, she recorded that:

    “I had previously seen [the Applicant] with 3 other clients who had been making alcohol in their compound to assess re their possible substance abuse of alcohol and drugs.”

    and:

    “[the Applicant] was asked by other clients to assist him in making the “brew” of alcohol which consisted of fruit and bread. It was put into a new beanbag, being 20 L. He was concerned about being caught and was.”[110]

    ·Another a mental health consultation with Ms L, on 29 June 2017, she recorded that:

    “[The Applicant] admitted today that he is an alcoholic and desperately needs help, which I agreed to. He craves at times for a drink and would seem in his past was a “binge” drinker. He does not “crave” for any form of drugs.”[111]

    ·on 29 September 2017 the Applicant, and several other detainees, were drunk. A nurse was asked to see the Applicant because he was allegedly intoxicated, and she noticed normal gait and slight slurring of speech.[112]

    [110] Exhibit A5 International Health and Medical Services (IHMS) Medical Records.

    [111] Exhibit A5, International Health and Medical Services (IHMS) Medical Records.

    [112] Exhibit A5, International Health and Medical Services (IHMS) Medical Records, page 17.

21. During 2017 the Applicant completed some rehabilitative courses, being “Combat my life traps”, “Exploration of anger”, “Breaking my cycle of addiction”, “Getting to know you” and “Recovery from trauma”.[113] However, he continued to be the subject of adverse allegations, including that:

    ·on 4 October 2018 a bong was found in his room and at the conclusion of the search the Applicant claimed ownership of it.[114] In the hearing, the Applicant said the bong belonged to another inmate[115] and he claimed ownership because other people in the room threatened to harm him with a knife if he did not.[116] However, he did not give a convincing explanation of how there was sufficient time for such a threat between the search and when he claimed ownership;[117]

    ·on 1 May 2019 the Applicant held a plastic chair, poised to hit or throw it at another detainee, and he was spoken to about it.[118] In the hearing the Applicant denied having done that or having been spoken to about it;[119]

    ·on 13 November 2020, the Applicant and other detainees were involved in a physical altercation and appeared to be intoxicated. The Applicant was in an agitated state, stumbling, lashing out and assaulting officers.[120] In the hearing the Applicant said he had never been involved in any sort of “agitation behaviour” and that the report was a lie;[121] and

    ·on 20 April 2021 at Christmas Island Immigration Detention Centre, suspected homebrew was found in the Applicant’s room.[122] In the hearing the Applicant said his roommate made homebrew and that the report was a lie.[123]

    [113] Exhibit T1. Section 37 T-Documents, T12, pages 196 to 204.

    [114] Exhibit R2, Respondent’s Tender Bundle, TB3 page 189 to 190.

    [115] Transcript, page 9, lines 20 to 38.

    [116] Transcript, page 10, lines 1 to 34.

    [117] Transcript, page 78, line 12 to page 79, line 10.

    [118] Exhibit R2, Respondent’s Tender Bundle, TB3 page 193.

    [119] Transcript, page 79, line 16 to page 80, line 26.

    [120] Exhibit R2, Respondent’s Tender Bundle, TB3 page 200 to 202.

    [121] Transcript, page 81, lines 1 to 9.

    [122] Exhibit R2, Respondent’s Tender Bundle, TB3 page 210.

    [123] Transcript, page 81, lines 17 to 44.

22. In the course of cross examination, it was put to the Applicant that he had consistently claimed that information recorded by doctors, nurses, prison officers, parole officers and SERCO officers were lies, and that, in fact, the information was correct and accurate. The Applicant said that some of it was true and some was not.[124]

    [124] Transcript, page 81, line 45 to page 82, line 20.

23. I consider it very unlikely that so many unrelated people all falsely accused the Applicant of the same kinds of wrongdoing over an 11 year period. Some of the Applicant’s exculpatory evidence seemed far-fetched, and some was internally inconsistent. I do not expect the contemporaneous records made by police, parole and probation officers, prison staff, detention centre staff and IHMS staff to be completely accurate. For example, the IHMS file note dated 29 June 2017, that I have referred to above, incorrectly stated that the Applicant came to Australia in 2004 rather than 2006. However, those records as whole paint a coherent picture of a person who has a problem with alcohol and cannabis and is prone to predatory behaviour and violence. I consider that evidence, as whole, to be more reliable than the Applicant’s exculpatory evidence and I prefer it where there is a difference. I accept that the Applicant engaged in the crimes and other serious conduct alleged in that evidence.  

    IS THE APPLICANT A DANGER TO THE COMMUNITY?

24. The Applicant’s offences include a brutal attack on a stranger in which he punched him and then kicked him when he was on the ground curled up in a defensive position. He then threatened and assaulted a person who tried to help the victim. On two occasions, the Applicant punched Ms S in the face multiple times (and did other things to her). He has been violent to Ms T, who is the mother of his child. This is very serious offending. His offending against the girl at the train station was not only appalling because of what he actually did to her but also because of what he threatened to do to her – he clearly implied that he intended to engage in sexual activity with her in circumstances where he and his associates had her surrounded. That kind of revolting, dehumanising, terrifying behaviour is unacceptable in the Australian community. The violent offences caused physical harm to the victims. It is reasonable to infer that they also caused psychological harm. The sexual offence caused immediate distress to the victim and quite possibly long-term psychological harm. It is reasonable to infer that repeated offending would cause physical and/or psychological harm to victims.          

25. In a letter to the Respondent, dated 5 August 2019, the Applicant expressed remorse for his offending and asked for another chance to have a better life and be a good part of the community. He said he had changed and would never go back to being his old self.[125] In the hearing he said he wants to continue treatment for alcohol in the community, get himself a job and support himself and his family.[126] He said three of his brothers are employed and two are studying.[127] They will all support him.[128]

    [125] Exhibit T1, Section 37 T documents, T15, page 234.

    [126] Transcript, page 15, lines 19 to 24.

    [127] Transcript, page 16, lines 24 to 27.

    [128] Transcript, page 16, lines 38 to 40.

26. The Applicant has previously, in response to the threat that his visa would be cancelled in 2009, acknowledged the link between alcohol and his offending and expressed a commitment to engage in treatment to avoid re-offending. He did not do that while in the wider community even when he was on parole between August and December 2011. He completed some courses in 2017 but he went on to consume alcohol in detention and engage in aggressive behaviour.   

1. I have before me a psychological report from a Mr Hasan Cinar, psychologist at Mindways Psychological Services for Children & Adults, dated 6 August 2019.[129] The report indicates that Mr Cinar spoke with the Applicant for around 2 ½ hours which included a structured clinical interview and psychometric testing. The Applicant told Mr Cinar that during the civil war in Sudan he witnessed murders, bombings and people losing limbs. He currently experienced nightmares and flashbacks regarding the war, and was provisionally diagnosed with PTSD. Mr Cinar administered tests to assess the Applicant’s current risk of alcohol related problems and drug use disorders. However, the tests, on which the Applicant score indicated a low risk level, only took into account his alcohol and substance use in the past 12 months.

   [129] Exhibit T1. Section 37 T documents, T15, pages 236 to 245.

2. Mr Cinar administered the Level of Service Inventory Revised (LSI-R) which indicated a low-moderate risk of offending that Mr Cinar said was largely attributable to his criminal history. These tests relied to some extent on the Applicant’s self-report, which is demonstrably unreliable, and it is not apparent that Mr Cinar was informed of the reports of incidents in gaol and Immigration Detention.[130] Mr Cinar said addressing his substance abuse problems and continued abstinence from alcohol could reduce the Applicant’s risk of reoffending. He noted a number of protective factors including his relationship with his family, his wife (Ms T) and their daughter, secured employment upon release and access to psychological treatment surrounding his PTSD. Mr Cinar’s assumption that Ms T would serve as a protective factor is, for reasons I will come to, most likely incorrect. I do not have confidence in Mr Cinar’s conclusions because they are not based on reliable information. I note that since Mr Cinar’s report, the Applicant was suspected of being intoxicated on an occasion when he was exhibiting aggressive behaviour, and on another occasion home brew was found in his room. I do not give Mr Cinar’s report much weight. 

   [130] See paragraph 2 of Mr Cinar’s report at Exhibit T1. Section 37 T documents, T15, page 238.

3. In relation to the Applicant’s PTSD and history of trauma, in 2016 and 2017, he engaged with the IHMS Mental Health Team on multiple occasions through group programs, individual counselling sessions and scheduled mental health screenings.[131] The Applicant said there were weekly appointments for torture and trauma counselling, and for alcohol counselling[132] but he stopped attending trauma counselling when he was transferred to Sydney in 2018.[133] However, in a report dated 30 May 2018, it was noted that he had not attended his scheduled mental health screenings during the reporting period.[134] He said he did not seek any trauma counselling in 2019 because no counselling was set up for him in Sydney.[135] Indeed, a report dated 9 January 2019 noted that the Applicant had not presented with any mental health issues during the reporting period[136] as did a report dated 20 May 2019[137] and a report dated 25 November 2019[138]. A report dated 10 June 2020 noted that that the Applicant had declined to attend all of his scheduled mental health screening appointments from November 2019 to May 2020.[139] The Applicant said he did not refuse counselling but rather nobody had called him.[140]

   [131] Exhibit R2, Respondent’s Tender Bundle, TB3 page 28.

   [132] Transcript, page 64, lines 1 to 20.

   [133] Transcript, page 78, lines 7 to 11.

   [134] Exhibit R2, Respondent’s Tender Bundle, TB3 page 30.

   [135] Transcript, page 79, lines 11 to 15.

   [136] Exhibit R2, Respondent’s Tender Bundle, TB3 page 32.

   [137] Exhibit R2, Respondent’s Tender Bundle, TB3 page 34.

   [138] Exhibit R2, Respondent’s Tender Bundle, TB3 page 36.

   [139] Exhibit R2, Respondent’s Tender Bundle, TB3 page 38.

   [140] Transcript, page 80, lines 28 to 30.

4. On 30 October 2020, the Applicant asked for mental health counselling saying “I feel depressed & Anxiety. I would like to see IHMS mental health. Self harm - 2 years ago I attempted to hang my self”.[141] 

   [141] Exhibit R2, Respondent’s Tender Bundle, TB3 page 26.

5. My overall impression is that the Applicant’s treatment for his past trauma has been patchy and his commitment has been inconsistent. This is important because of the link the Applicant identified between his past trauma and his abuse of alcohol and, in turn, between his alcohol abuse and his offending. 

6. A IHMS clinical note dated 27 April 2021 recorded that the Applicant identified that he consumed alcohol to cope with his memories of trauma.[142] While the note went on to detail an account of the Applicant having been a child soldier, which I have rejected as untrue, I do not think that undermines the link between past trauma and alcohol abuse as the Applicant did experience trauma in Africa.

   [142] Exhibit R2, Respondent’s Tender Bundle, TB3 page 59.

7. In a letter dated 17 December 2020[143] the Applicant said he wants to continue with his rehabilitation, for example by seeing a psychologist to discuss any sort of hardship he might face in future so he will better deal with stress and keep away from drugs. He said:

   “Since I went to jail, I had a great deal of insight for my offending behaviour. I managed to figure out that my problem was related to drinking lot of alcohol and this led me to make lots of wrong decisions. I take full responsibility for my actions and I am extremely ashamed of myself. I promise not to go through the same path I used to.”

   [143] Exhibit T1. Section 37 T documents, T17, page 254.

8. The Applicant appears to have outstanding treatment needs in relation to past trauma, dealing with stressful situations, alcohol dependency and drug abuse. Further, despite having committed an indecent assault, he has not engaged in any sex offender treatment program and did not indicate any plan to do so. The Applicant’s approach to rehabilitation in the past has been passive and he blamed others for his failure to engage.

9. The Applicant is not currently on any medication for his mental health[144] but he has previously taken Diazepam for sleeping and another drug for depression.[145]

   [144] Transcript, page 107, lines 14 to 16.

   [145] Transcript, page 107, lines 30 to 31.

10. The Applicant has a nine year old daughter with Ms T. He speaks with her daily and is motivated to support her.[146] Ms T said that the Applicant and their daughter speak almost every day and that she is in no doubt that he loves her.[147] He put forward Ms T as someone who would support him if he were returned to the community and described her as very supportive.[148] However, Ms T’s evidence was that she expected the government to put supports in place for the Applicant, stating:

    “I intend to back [the Applicant] up in getting-making sure-yeah, and supporting him with all of that stuff, but I expect you guys have kept incarcerated for seven years - he is going to need some serious help when he gets out - are you going to do that? Are you going to make sure that he is going to be able to integrate back into society (indistinct) or are you going to be just dumping all of that on the community?”[149]

    [146] Transcript, page 15, lines 25 to 35.

    [147] Transcript, page 165, lines 20 to 36.

    [148] Transcript, page 16, lines 4 to 6.

    [149] Transcript, page 161, lines 17 to 38.

11. Ms T was not helpful when the Applicant was released on parole in 2011. During the home visit on 8 November 2011, she told the parole officer they had been caught out because they were not expecting a visit and she complained about the direction given to the Applicant not to consume alcohol, saying it was really hard.[150] She also complained that it was unfair when the Applicant was directed to enter residential rehabilitation.[151]

    [150] Exhibit R2, Respondent’s Tender Bundle, TB3 page 106.

    [151] Exhibit R2, Respondent’s Tender Bundle, TB3 page 107.

12. In the hearing, Ms T said she used to grow cannabis illegally and she shared it with anybody and everybody including the Applicant.[152] She said they did not live in the same location and every second weekend she would pick him up and they would smoke cannabis together then she would drop him back to Coffs Harbour which is when he would “drink and carry on and get in trouble”.[153]

    [152] Transcript, pages 170 to 171.

    [153] Transcript, page 172, lines 2 to 10.

13. Ms T said that she had a bad attitude back then but does not have a bad attitude now, she has respect for rules now that she did not have before.[154] However, that evidence was undermined by other evidence she gave, for example, with respect to the Applicant’s mother’s efforts to stop him from drinking, Ms T said:

    “she… wanted to control him, wanted to control his every second, every move to make sure he didn’t go drinking, to make sure he didn’t go do that and make sure that she deprived him of every freedom which sent him insane and made him bash her.”[155]

    [154] Transcript, page 173, lines 12 to 15.

    [155] Transcript, page 176, lines 39 to 45.

14. Ms T said that she does not drink anymore, and she gave up cigarettes about a month ago. She said she is legally allowed to have marijuana[156] however it costs three times as much as illegal cannabis does and if the Applicant wants cannabis, she is not going to give him any of hers.[157]

    [156] Transcript, page 179, lines 4 to 7.

    [157] Transcript, page 179, lines 37 to 45.

15. Ms T sought to put forward adverse evidence about Ms S, seemingly to blame her, despite earlier evidence that she had barely had any contact with the Applicant when he was seeing Ms S.

16. Overall, I am not confident that Ms T would hold the Applicant accountable for his behaviour or that she would encourage him to abstain from drugs and alcohol.  

17. The Applicant has a 27 year old brother who is married with a young daughter. He owns his own business and two of their brothers work with him in that business. He will give the Applicant a full-time job and accommodation in his home, and he will provide transport. He can afford to pay for any rehabilitation or other help the Applicant might need. He said he and his brothers are adults now and they can sit the Applicant down and make sure he is doing the right thing at all times.[158]

    [158] Transcript, pages 183 to 184.

18. A “Ms M” provided an email in support of the Applicant. She said she had known him for around ten years and described him as always having been respectful towards her and her family. She did not give further details about her interactions with him or offer support if he were to be returned to the wider community.

19. The Applicant’s mother speaks with him around four times a month.[159] When the family arrived in Australia the Applicant lived with her and he continued to live with her until the first time he was incarcerated.[160] She said that when he would go and drink alcohol with his friends she told him to stop.  When he came out of gaol in 2009, he lived with her again and she did not think he resumed drinking. She used to tell him to stay out of trouble and to study.[161] His siblings, who are all younger than him, used to tell him to stop drinking.[162] She did not think he was drinking prior to being imprisoned in 2015, and in that period she used to go with the Applicant to counselling.[163] The Applicant’s mother lives in Victoria, very close to the brother who will give the Applicant accommodation and a job.[164] She does not think he will resume drinking if he is allowed out this time.[165]

    [159] Transcript, page 121, lines 35 to 42.

    [160] Transcript, page 130, lines and 15 to 26.

    [161] Transcript, pages 148 to 149.

    [162] Transcript, page 153, lines 35 to 36.

    [163] Transcript, page 150.

    [164] Transcript, page 151, lines 25 to 43.

    [165] Transcript, page 152, lines 18 to 25.

20. The Applicant’s mother seems like a responsible person who will encourage the Applicant to abstain from drugs and alcohol. However, in the past he was able to hide his drug and alcohol use from her. The Applicant’s brother is a significant protective factor as he will provide the stability and support the Applicant will need if he chooses to get treatment and abstain from substances and crime. However, his rehabilitation will very much depend on him making that choice as none of his family members were previously able to persuade him to stop drinking. Nor was he deterred from drinking or offending by the threat of gaol or deportation. Even allowing for the fact that his brothers have now grown from teenagers into young men, I am not confident that the Applicant’s family could persuade the Applicant to engage in appropriate treatment or abstain from substance abuse or crime if the Applicant is not minded to do that for himself.     

21. While the Applicant expressed a commitment to some forms of rehabilitation, the fact that he avoided taking responsibility for much of his past wrongdoing, denied his significant cannabis use, and sought to blame others including victims for his offending does not give me confidence that he is genuinely committed to rehabilitation or that he would consider himself to be responsible for his behaviour in the future and would therefore refrain from abusing drugs/alcohol and offending. 

22. I think it is likely that if the Applicant were allowed to re-enter the wider community he would re-offend in the ways he has before.

    CONCLUSION

23. I am satisfied that the Applicant poses a present and serious risk to the Australian community. I am satisfied, on reasonable grounds, that having been convicted by a final judgment of a particularly serious crime, he is a danger to the Australian community. Accordingly, applying subsection 36(1C)(2)(b) of the Act, he does not satisfied the criteria for a protection visa. (He is also caught by subsection 36(2C)(b) of the Act, meaning he does not satisfy s 36(2)(aa) of the Act).

    DECISION

24. The Tribunal affirms the reviewable decision.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member R Bellamy

........................[SGD]................................................

Associate

Dated: 22 October 2021

Date(s) of hearing:

26, 27, 28 and 30 July 2021

Solicitors for the Applicant: 

Mr Fardin Nikjoo

Nikjoo Lawyers

Solicitors for the Respondent: 

Ms Mia Donald

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (T1 to T21 paged 1 to 283)	R	-	13 April 2021
T2	Supplementary T Documents (ST1 to ST3 paged 1 to 10)	R	-	20 July 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 8)	A	21 May 2021	21 May 2021
A2	Applicant’s Reply (paged 1 to 4)	A	6 July 2021	6 July 2021
A3	Letter from Ms T (one page)	A	17 April 2021	21 May 2021
A4	Letter from Ms T (undated) (one page)	A	-	21 July 2021
A5	International Health and Medical Services IHMS Medical Records (pages 1 to 110)	A	-	21 May 2021
A6	Letter from Ms M (two emails)	A	4 July 2021	21 July 2021
A7	Letter from the Applicant’s Brother (undated) (one page)	A	-	23 July 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 19)	R	25 June 2021	25 June 2021
R2	Respondent’s Tender Bundle (TB1 to TB7, paged 1 to 211)	R	-	25 June 2021
R3	Colour copies of Exhibit R2 pages 154 to 159.	R	-	27 July 2021