JSWC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2
•2 January 2024
JSWC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2 (2 January 2024)
Division:GENERAL DIVISION
File Number: 2023/7427
Re:JSWC
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:2 January 2024
Place:Melbourne
Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the Reviewable Decision. In substitution, the Tribunal finds that it should not exercise discretion under section 501(1) of the Migration Act to refuse the Applicant the Visa.
........................[sgd]................................................
Ms A E Burke AO, Member
Catchwords
MIGRATION – decision of a delegate of the Respondent to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) – whether the Applicant passes the character test – whether discretion should be exercised not to refuse the grant of the Applicant’s Visa under s 501(1) of the Migration Act – substantial criminal record - Ministerial Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor child – expectations of the Australian community – legal consequences of the decision – a protection finding has been made with respect to the Applicant – Applicant unable to be removed – Tribunal finds that it should not exercise discretion under s 501(1) of the Migration Act to refuse the Applicant the Visa – Reviewable Decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Hughes v The Queen (2017) 263 CLR 338
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
MZZLD v Minister for Immigration and Border Protection (No 2) [2017] FCA 31
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Taufahema v Minister for Immigration and Citizenship [2010] FCA 328WKBF v Minister for Immigration and Citizenship and Multicultural Affairs [2023] AATA 3728
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 (commenced 3 March 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
2 January 2024
On 15 November 2022, a delegate of the Minister administering the Migration Act 1958 (Cth) (The Act) (the Minister) notified the Applicant, JSWC, of an intention to consider refusal to grant a Protection (Class XA) visa on character grounds under section 501(1) of the Act. On 23 December 2022 and 6 April 2023, JSWC’s legal representatives provided a response to the notification.
On 10 October 2023, the delegate refused to grant JSWC a Protection visa. The delegate found that JSWC has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(1) of the Act to refuse to grant JSWC’s visa. I hereby refuse to grant JSWC a Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons.
In particular, the delegate found that JSWC remained an ongoing risk of similar offending and the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in recidivist offending to remain in Australia.
On 10 October 2023, JSWC applied to the Administrative Appeals Tribunal (the Tribunal) under section 501 of the Act seeking review of the delegate’s decision. The basis upon which review was sought was that: The decision is wrong and a different decision should be made allowing the grant of the Protection, especially in circumstances where expert evidence was provided confirming the applicant poses a low risk of any offending, and that the already low risk would be further mitigated with access to counselling (the Reviewable Decision). At the time, JSWC had been released into the community.
At the hearing of his application on 7 and 8 December 2023, JSWC was represented by counsel, Mr Chadwick Wong, instructed by Ms Arti Chetty of Russell Kennedy Lawyers. Ms Catherine Oppel, lawyer at the Australian Government Solicitor appeared for the Minister. JSWC submitted a statement of facts issues and contentions (SFIC), two tender bundles comprising numerous witness statements and psychological reports. The Minister lodged SFIC, a set of paginated G-Documents and a supplementary tender bundle.
BACKGROUND
JSWC is a 36 year old Lebanese citizen who identifies as a gay man and has been found to be owed protection by the Australian community because of his sexual orientation. JSWC completed his education in Lebanon and completed only one week of compulsory military service before absconding. He then spent about two weeks in military prison in Lebanon, paying a bribe to be released. He did not work while in Lebanon.
JSWC has a long and complicated migration history, commencing in November 2006 when he arrived in Australia on a short stay Sponsored Family Visitor Visa (subclass 679), departing on 15 February 2007. On this occasion his uncle, an Australian citizen, arranged for JSWC to come to Australia for three months to be engaged, by arrangement, to a woman, however when JSWC arrived in Australia he refused to get engaged.
JSWC has a long and complex criminal history which commenced in 2013 almost entirely with his addiction to methylamphetamine. JSWC’s last criminal activity was in 2018 for which he was convicted and charged in January 2019, and in July 2020 he had a proven contravention of a Community Correction Order (CCO).
JSWC has a long and complex record of incidents whilst he was in and out of immigration detention, between 27 March 2015 to 23 October 2023.
From 2007 to 2013, JSWC worked in various jobs in Australia as a glazier, in his uncle’s business selling wheels and tyres and in an aluminium business.
On 12 February 2009, JSWC returned to Australia on a Prospective Marriage Visa (Subclass 300), JSWC’s grandfather had arranged for his friend's daughter to meet JSWC. They married and lived in Adelaide where JSWC was working in his wife’s family’s fish and chip shop. They divorced in August 2010, but JSWC maintained his application for a permanent partner visa on family violence grounds, which was refused
On 19 April 2012, JSWC married his second wife, an Australian citizen, and returned to Lebanon and applied for a provisional partner visa from there with her sponsorship. He returned to Australia on 28 May 2012. They subsequently divorced, and his visa application was refused on 11 June 2014.
On 11 July 2013, JSWC was arrested and charged with the indictable offences of Possess Explosive Substance without Excuse, Traffick Drug of Dependence, Possess a Drug of Dependence (2 charges) and Retention of Stolen Goods; and summary charges of Deal Property Suspected Proceed of Crime, Fail to Store A/B Longarm Correctly, Possess Imitation Firearm without Exemption/Approval, Possess Prohibited Weapon without Exemption/Approval. On 28 May 2014 was convicted having pled guilty and sentenced to 169 days imprisonment.
On 19 November 2013, JSWC was found guilty and convicted of Carry Unregistered General Category Handgun and sentenced to 6 days’ imprisonment; he was also found guilty of Possess Methylamphetamine and fined $250 without conviction.
From 19 November 2013 to 16 December 2013, JSWC was in immigration detention having lived unlawfully in the community since the cessation of his bridging visa on 19 October 2012.
On 30 May 2014, JSWC was sentenced to 2 days’ imprisonment concurrently served for each of two charges of driving whilst authorisation suspended and fined $100 for Possess Methylamphetamine.
On 20 November 2014, JSWC committed offences while on bail and was taken into remand. On 27 March 2015, JSWC was sentenced to an aggregate 127 days' imprisonment (already served) for possessing amphetamine, escape from police custody, and stealing a vehicle. He was also convicted and fined for stating a false name and possessing a drug of dependence.
On release from prison on 27 March 2015, JSWC was taken into immigration detention where he remained until February 2017.
On 30 April 2015, JSWC applied for a protection visa, claiming that he feared harm from a Salafist Sunni militia group who kidnapped him in 2008 and 2012. JSWC later recanted the claims, admitting he had lied out of fear of being returned to Lebanon.
On 9 May 2016, JSWC was convicted of intentionally damaging property and fined.
On 14 February 2017 JSWC was released from immigration detention on a Bridging visa E.
On 9 January 2019, JSWC was sentenced to four aggregate sentences of 6 months' imprisonment, to be served concurrently, for offences including Reckless Conduct Endanger Serious Injury, Fail to Render Assistance after Accident, and Unlawful Assault as well as charges of failure to answer bail, contravention of a family violence order and drug and weapon possession. A 12-month CCO was also imposed, requiring JSWC to be assessed and undergo treatment (including testing) for drug abuse or dependency upon release from prison, and to attend offending behaviour programs as directed.
On 2 March 2019, JSWC was released into the community from Prison and became an unlawful non-citizen in May 2019.
He was subsequently found to have contravened the CCO.
On 1 July 2019, JSWC was again taken into immigration detention.
On 30 April 2015 JSWC applied for a protection Visa. In February and March 2021, in his Protection Visa claim before the Migration Review Division of the AAT (the MRD), JSWC advised he feared returning to Lebanon because of his sexuality.
On 29 March 2021, the MRD remitted the matter to the Minister with the direction that JSWC satisfied section 36(2)(a) of the Act, as they were satisfied JSWC was owed protection because he faced a real chance of serious harm in Lebanon as a gay man. The MRD concluded that he did not have a propensity for telling untruths and that his reasons for delaying putting forth his genuine protection claim were reasonable.
On 25 March 2022, a delegate found that JSWC satisfied section 36(1C) of the Act and accepted the risk of JSWC reoffending was low and that he was not a danger to the Australian community.
On 31 July 2023 the Minister intervened under section 195A of the Act and granted JSWC a Bridging (subclass 050) visa E, pending the outcome of his protection visa application releasing him from detention.
On 10 October 2023 JSWC was notified his Protection Visa had been refused and was again taken into immigration detention).
On 23 October 2023, JSWC was granted a Bridging (subclass 050) visa E following the Minister’s exercise of their ministerial intervention power under section 195A of the Act and has been in the community since.
JSWC’s immigration history taken from MRD Decision record of 29 March 2021 where the Member found it was satisfied that JSWC was a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act states:
Departmental records indicate that the applicant arrived in Australia on the first occasion on 18 November 2006 on a Sponsored Family Visitor visa. On 15 February 2007 he returned to Lebanon.
The applicant arrived in Australia on the second occasion on 12 February 2009 on a Prospective Marriage visa. On 23 April 2009 he was married in Australia. In May 2009 the marriage broke down amidst family violence claims against his wife.
On 22 July 2009 the applicant applied for a Combined Partner visa on family violence grounds. On 21 August 2010 he divorced his first wife.
On 11 February 2011 he was refused the grant of a Subclass 820 (Partner-Temporary) visa. On 5 April 2012 the Migration Review Tribunal affirmed this decision.
On 19 April 2012 the applicant married his second wife. On 17 May 2012 he returned to Lebanon. On 21 May 2012 he applied offshore for a Partner (Provisional) visa (Subclass 309).
On 28 May 2012 he arrived in Australia on a bridging visa associated with his partner visa application.
On 21 September 2012 the Federal Magistrates Court dismissed his judicial review application. On 19 October 2012 his bridging visa ceased and he remained in Australia unlawfully.
On 2 January 2013 he requested ministerial intervention but the Department found it was inappropriate to consider this.
On 19 November 2013 he was taken into immigration detention. On 16 December 2013 he was granted a bridging visa.
On 11 June 2014 he was refused the grant of a Subclass 309 visa.
On 7 October 2014 he was refused the grant of a Subclass 801 visa. On 3 February 2015 his bridging visa ceased. On 27 March 2015 he was again taken into immigration detention.
On 30 April 2015 he applied for this protection visa. On 6 May 2015 he was refused the grant of an associated bridging visa.
The Department refused the application for protection on 30 April 2015. This Tribunal, differently constituted affirmed the decision on 15 September 2015 (First Tribunal Decision).
He applied for ministerial intervention under s.417 of the Act on 22 September 2015. He referred to the fact that he and his partner Ms B had a son called C who was three months old. On 11 January 2016 the Department advised the applicant that it would not be in the public interest to intervene in his case.
On 24 August 2017 the Federal Circuit Court of Australia ordered by consent that the decision of 15 September 2015 (First Tribunal Decision) be quashed and the matter be remitted for reconsideration by the Tribunal. The orders were made on the basis that the Tribunal denied the first applicant procedural fairness, a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. The court found that the existence of a Certificate pursuant to s.438 of the Act was not disclosed to the applicant and information or some information in the Certificate was relevant to the issues arising on the review.
On 29 March 2019 the Tribunal differently constituted affirmed the decision under review (Second Tribunal Decision).
On 16 June 2020 the Federal Circuit Court ordered by consent that the decision of 29 March 2019 be quashed and the matter be reconsidered by the Tribunal. The basis for this order was that the Tribunal fell into jurisdictional error by adopting the views of a differently constituted Tribunal about the applicant and therefore failed to discharge its statutory task, pursuant to MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154.
ISSUES
In his Statement of Facts, Issues and Contentions, filed on 14 November 2023, JSWC conceded that he did not pass the character test for the purposes of section 501(1) of the Act, and he confirmed this at the hearing. The Tribunal is satisfied that JSWC does not satisfy the character test under section 501 on account of his substantial criminal record as defined under section 501(7)(d), being sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Accordingly, the issue for consideration by the Tribunal is whether the refusal of JSWC’s visa, taking into account the relevant considerations in Ministerial Direction No 99 – Visa refusal under s 501 (the Direction), should be affirmed.
LEGISLATIVE FRAMEWORK
The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct review of decisions made under other pieces of Commonwealth legislation, including the original decision made concerning JSWC. Under section 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision-maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.
Visa refusals on character grounds is established in section 501 of the Act. Under section 501(1) the Minister may refuse to grant a visa if satisfied a person does not pass the character test. For the purposes of section 501(6)(a), a person does not pass the character test if they have a substantial criminal record, as defined in section 501(7)(d) as the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
A direction has been made under section 499 of the Act that provides guidance to a decision-maker of what must be taken into account when considering a visa refusal under section 501. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March 2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.
Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
EVIDENCE
JSWC’s Offending
The following table has been derived from a national criminal history check relating to JSWC produced by the Australian Criminal Intelligence Commission on 18 May 2021:
COURT DATE
OFFENCE
COURT RESULT
06/07/2020
CONTRAVENE COMMUNITY
CORRECTION ORDER
Proven
09/01/2019
RECKLESS CONDUCT ENDANGER
SERIOUS INJURY
FAIL TO RENDER ASSISTANCE AFTER ACCIDENT
CONTRAVENE FAM VIOLENCE INTERVENTN ORDERFAIL TO ANSWER BAIL (3 Charges)
UNLAWFUL ASSAULTAggregate 6 MONTHS
imprisonment. Concurrent.
Convicted and a Community Correction Order
for 12 MONTHS.09/01/2019 POSSESS METHYLAMPHETAMINE
(3 Charges)
ON EACH CHARGE:
Aggregate 6 MONTHS
imprisonment. Concurrent.
Convicted and a Community Correction Order for 12 MONTHS.
The order commences upon release from Imprisonment09/01/2019
POSS/USE/CARRY PROH WEAPON
WO EXEMT/APPRAggregate 6 MONTHS
imprisonment. Concurrent.
Convicted and a Community Correction Order for 12 MONTHS.
The order commences upon
release from Imprisonment09/01/2019
FAIL TO STOP VEHICLE ON POLICE
DIRECTIONAggregate 6 MONTHS
imprisonment. Concurrent.
Convicted and a Community Correction Order for 12 MONTHS.
The order commences upon
release from Imprisonment09/05/2016
INTENTIONALLY DAMAGE
PROPERTY
With conviction, fined $300.00 with $74.00 statutory costs.
Pay compensation $825.00
27/03/2015
POSSESS AMPHETAMINE
Aggregate 127 DAYS imprisonment. Concurrent.
27/03/2015
ESCAPE FROM CUSTODY FROM
POLICE MEMBER
COMMIT INDICTABLE OFFENCE
WHILST ON BAILAggregate 127 DAYS
imprisonment. Concurrent.
27/03/2015
THEFT OF A MOTOR VEHICLE
Aggregate 127 DAYS
imprisonment. Concurrent.
Licence cancelled anddisqualified for 6 months.
27/03/2015
STATE FALSE NAME WHEN
REQUESTED
With conviction, fined an
aggregate of $500.00
27/03/2015
POSSESS A DRUG OF
DEPENDENCE
With conviction, fined an
aggregate of $500.00
30/05/2014
DRIVE WHILST AUTHORISATION
SUSPENDED (2 Charges)ON EACH CHARGE:
2 DAYS imprisonment.Concurrent.
30/05/2014
POSSESS METHYLAMPHETAMINE
With conviction, fined $100.00
30/05/2014
POSS CARTRIDGE AMMUNITION W/
O LIC/PERMITWith conviction, fined $100.00
28/05/2014
TRAFFICK DRUG OF DEPENDENCE
169 DAYS IMPRISONMENT.
28/05/2014
RETENTION OF STOLEN GOODS
POSSESS EXPLOSIVE SUBSTANCE
W/O EXCUSE3 MONTHS IMPRISONMENT ON EACH COUNT CONCURRENT AND CONCURRENT
28/05/2014
DEAL PROPERTY SUSPECTED
PROCEED OF CRIME2 MONTHS IMPRISONMENT
CONCURRENT.
28/05/2014 POSSESS A DRUG OF
DEPENDENCE (2 Charges)
POSS IMITATION FIREARM WO
EXEMPT/APPROVL
POSS PROH WEAPON W/OEXEMPTION/APPROVAL
1 MONTH IMPRISONMENT ON EACH
COUNT CONCURRENT AND CONCURRENT.28/05/2014
FAIL TO STORE A/B LONGARM
CORRECTLY14 DAYS IMPRISONMENT
CONCURRENT.
19/11/2013
CARRY UNREGISTERED GENERAL
CATEGORY HGUN6 DAYS imprisonment.
Concurrent.
19/11/2013
POSSESS METHYLAMPHETAMINE
Without conviction, fined $250.00
Family violence protection orders taken out against JSWC:
(i)On 4 May 2015, a temporary protection order was issued by the Magistrates’ Court to protect his ex-partner, Ms B (named as the aggrieved), her 2 children and a family relative.
(ii)On 4 July 2019, an interim intervention order was issued by the Melbourne Magistrates’ Court to protect his ex-partner, Mr G.
(iii)On 9 January 2019, the Applicant was convicted of contravention of a family violence order.
Serco Incident Reports of JSWC’s behaviour whilst in detention state:
o23/05/2021: Swearing abuse at compound officers;
o11/05/2020: Involved Category 1 - Minor | Assault - Minor;
o30/04/2020: Alleged Offender Category 1 - Minor |Assault - Minor;
o03/04/2020: Alleged Offender Category 1 – Minor | Abusive/Aggressive Behaviour;
o14/01/2020: Detainee threatened Self Harm;
o17/11/2019: Detainee non compliant during medical escort. Alleged Offender Category 1 - Minor |Abusive/Aggressive Behaviour;
o06/10/2019: Abusive and Aggressive Behaviour towards Officers. Alleged Offender Category 1 - Minor | Abusive/Aggressive Behaviour;
o08/07/2019: Abusive and aggressive behaviours displayed by detainee whilst on an external escort in a public hospital. Alleged Offender Category 1 - Minor | Abusive/Aggressive Behaviour;
o06/07/2019: Detainee displayed abusive/aggressive behaviour towards IHMS (International Health and Medical Services) Staff. Alleged Offender Category 1 - Minor | Abusive/Aggressive Behaviour;
o06/01/2017: Contraband - 1 x blade out of razor, 2 x sharp paper pins were recovered during target room search. Involved Minor Contraband found;
o11/11/2016: Detainee abusive behaviour towards Serco staff in the Dining Room. Alleged Offender Major Use of Force;
o11/11/2016: Detainee made verbal threats towards staff on medical escort. Alleged Offender Minor Assault - Minor Incident …. During an incident where force was used on detainee he repeatedly stated he would self harm by “bursting” his head against the wall at the earliest available opportunity;
o24/10/2016: Detainee assaulted another detainee by pushing him in the chest with force using both hands. Involved Minor Assault – Minor;
o12/10/2016: Abusive/Aggressive behaviour by a detainee towards an Officer. Involved Minor Abusive/Aggressive Behaviour;
o10/10/2016: Detainee was abusive and aggressive towards staff which disrupted the good order and peace of the zone. Alleged Offender Minor Abusive/Aggressive Behaviour;
o21/09/2016: Detainees assaulted one another over room cleanliness. Alleged Offender Minor Assault - Minor;
o19/08/2016: Contraband Found – razor Blade found in DVD Case. Involved Minor Contraband found;
o27/07/2016: Detainee became aggressive towards officers. Alleged Offender Minor Abusive/Aggressive Behaviour;
o24/07/2016: Detainee Displayed Abusive/Aggressive Behaviour Towards Serco Staff Member. Alleged Offender Minor Abusive / Aggressive Behaviour;
o19/07/2016: Detainee became abusive towards staff after a mattress was removed from his room. Alleged Offender Minor Abusive/Aggressive Behaviour;
o18/07/2016: Detainee appeared to push another detainee. Alleged Offender Minor Assault - Minor;
o02/07/2016: 4 x detainees were involved in verbal altercation over the computer usage. Involved Minor Abusive/Aggressive Behaviour;
o05/06/2016: Detainee became abusive towards a Serco staff member. Alleged Offender Minor Abusive/Aggressive Behaviour;
o24/04/2016: Contraband found during a routine matrix room search. Involved Minor Contraband found;
o12/03/2016: Detainee displayed abusive behaviour towards staff at hospital. Alleged Offender Minor Abusive/Aggressive Behaviour;
o04/03/2016: Two Diazepam tablets (Identified by IHMS) recovered from detainees clothing. Alleged Offender Minor Contraband found;
o24/02/2016: Detainee was abusive and aggressive towards Serco staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o16/02/2016: Detainee was aggressive towards an officer. Alleged Offender Minor Abusive/Aggressive Behaviour;
o10/02/2016: Detainee punched the window between the kitchen and day room and shattered the glass. Alleged Offender Minor Damage;
o09/02/2016: Detainee displayed abusive and aggressive behaviour towards hospital staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o08/02/2016: Contraband found during a targeted room search. Alleged Offender Minor Contraband found;
o07/02/2016: Detainee was Abusive towards a Serco Officer. Alleged Offender Minor Abusive/Aggressive Behaviour;
o30/01/2016: Detainee displayed abusive and Aggressive behaviour towards Serco staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o20/01/2016: Two detainees involved in minor scuffle. Involved Minor Assault - Minor;
o18/01/2016 Detainee was abusive and aggressive towards escort team at WGH hospital. Alleged Offender Minor Abusive/Aggressive Behaviour;
o08/01/2016: Detainee was abusive and aggressive towards Serco staff on escort. Alleged Offender Minor Abusive/Aggressive Behaviour;
o23/12/2015: Detainee became abusive towards another detainee in Zone A. Alleged Offender Minor Abusive/Aggressive Behaviour;
o22/12/2015: Alleged Assault – Detainee was assaulted by other detainee. Alleged Offender Minor Assault - Minor;
o18/12/2015: Detainee was abusive and aggressive towards another detainee. Involved Minor Abusive/Aggressive Behaviour;
o08/12/2015: Detainee made threats that he is going to hurt a staff member. Alleged Offender Minor Assault - Minor;
o07/12/2015: Detainee kicked the panel heater off the wall in the Zone. Alleged Offender Minor Damage - Minor Incident; Detainee became abusive and aggressive towards Serco Officers. Alleged Offender Minor Abusive/Aggressive Behaviour; Detainee grabbed a pair of scissors and threatened to self harm at WGH. Alleged Offender Major Weapon - Client in possession; Detainee assaulted staff by pushing and spitting towards an officer. Alleged Offender Minor Assault – Minor;
o04/12/2015: Detainee was verbally abusive to a Serco Officer. Alleged Offender Minor Abusive/Aggressive Behaviour;
o03/12/2015: Detainee damaged a window by throwing a pool ball at it. Alleged Offender Minor Damage – Minor;
o26/11/2015: Detainee was abusive towards Serco staff over catering provisions. Alleged Offender Minor Abusive/Aggressive Behaviour;
o24/11/2015: Detainee became abusive towards Serco Staff. Involved Minor Abusive/Aggressive Behaviour;
o23/11/2015: Two detainees having verbal altercation over tennis match on television. Involved Minor Abusive/Aggressive Behaviour; Detainee abusive towards IHMS staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o22/11/2015: Detainee became abusive and aggressive towards a Serco officer. Alleged Offender Minor Abusive/Aggressive Behaviour; Detainee self harmed by hitting his hand on the glass window. Involved Major Self Harm - Actual; Minimal force used to move an aggressive detainee. Alleged Offender – Major Use of Force;
o14/11/2015: Detainee was abusive and aggressive towards Serco officers. Alleged Offender Minor Abusive/Aggressive Behaviour;
o06/11/2015: Two detainees created a minor disturbance by fighting and arguing with each other;
o20/10/2015: Detainee threatened to assault another detainee. Alleged Offender Minor Assault - Minor;
o16/10/2015: Detainee was abusive/aggressive towards DSO. Alleged Offender Minor Abusive/Aggressive Behaviour;
o01/10/2015: Detainee became abusive towards Serco Staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o17/09/2015: Detainee made threats to harm staff. Alleged Offender Minor Assault – Minor;
o16/09/2015: Detainee was abusive towards another detainee. Alleged Offender Minor Abusive/Aggressive Behaviour; Detainee damaged a window. Alleged Offender Minor Damage – Minor;
o30/08/2015: Detainee became abusive towards another detainee. Alleged Offender Minor Abusive/Aggressive Behaviour;
o25/08/2015: Detainee threatened to kill the Duty Operations Manager. Alleged Offender Minor Assault – Minor;
o24/08/2015: Detainee Threatened self harm. Alleged Offender Major Self Harm - Threatened; Detainee threatened to kill all Serco Officer's present if taken to Zone C. Involved Minor Abusive/Aggressive Behaviour;
o09/08/2015: Detainee became abusive and aggressive towards a Serco Officer. Alleged Offender Minor Abusive/Aggressive Behaviour;
o31/07/2015: Detainee displayed abusive and aggressive behaviour by kicking the basketball on top of the roof. Involved Minor Abusive/Aggressive Behaviour; During a targeted room search of, a male detainee was rude and aggressive towards staff and made threats to hurt staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o29/07/2015: A male detainee was abusive and aggressive towards staff during a targeted search of room A09 and interfered during target search of. Alleged Offender Minor Abusive/Aggressive Behaviour;
o06/07/2015: A male detainee was rude, abusive and aggressive towards an officer whilst conducting morning Welfare check and Head count. Alleged Offender Minor Abusive/Aggressive Behaviour;
o31/05/2015: Detainee was abusive and aggressive towards Serco staff when waiting for a visit to take place. Alleged Offender Minor Abusive/Aggressive Behaviour; Detainee reportedly self harmed by punching a wall due to not wanting to wait for a visit. Alleged Offender Major Self Harm;
o28/05/2015: Detainee was abusive and aggressive towards an officer. Alleged Offender Minor Abusive/Aggressive Behaviour;
o26/05/2015: Detainee was Abusive and non compliant with Serco officer when asked to leave dinning area. Alleged Offender Minor Abusive/Aggressive Behaviour;
o06/12/2013: A male detainee was very rude, aggressive and uncooperative towards staff. Alleged Offender Minor Abusive/Aggressive Behaviour; A male detainee attempted to escape during a Hospital escort. Alleged Offender Major Escape – Attempted;
o28/11/2013: Detainee became abusive/aggressive towards medical staff. Alleged Offender Minor Abusive/Aggressive Behaviour;
o25/11/2013: Altercation between 2 detainees. Involved Minor Disturbance – Minor; Alleged assault on a male detainee. Alleged Offender Major Assault – Serious.
In addition to the oral evidence from the Applicant, his former partners, his friend/current house mate and expert testimony from Dr Nina Zimmerman, Forensic Psychiatrist, the Tribunal had before it:
·numerous statutory declarations and statements from JSWC;
·numerous statutory declarations and statements from Mr G, Mr P, Ms B, Ms V and Ms S;
·two reports from Dr Zimmerman; and
·numerous text message and letters from Western Health, Thorn Harbour Health, Association of Services to Torture and Trauma Survivors (ASeTTS), Many Coloured Sky, Caraniche, Rainbow Door and Pride in Place.
PRIMARY CONSIDERATIONS
Primary Consideration 1 - Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The Direction requires the Tribunal to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege given in the expectation that non-citizens are law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.
This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).
The nature and seriousness of the conduct (paragraph 8.1.1)
JSWC did not contest he had a substantial criminal record.
Counsel for JSWC submitted that without diminishing the Applicant's past conduct, the nature and seriousness of JSWC’s past offending was towards the lower end of the spectrum.
Counsel for JSWC submitted the most serious offence JSWC committed, based on the maximum penalty available, was the trafficking charge for which he was sentenced to 169 days imprisonment, reflecting time served, which was far below the maximum penalty of 15 years. Counsel contended the Tribunal should consider that JSWC was convicted of trafficking on one occasion, in relation to offending that occurred over ten years ago in July 2013, concerning offending that occurred on one day, and which related to his drug addiction.
Counsel for JSWC acknowledged that custodial sentencing indicates a level of seriousness of offending and submitted that the relatively short custodial sentences JSWC had received were on the lower end of custodial sentences and indicated the lower severity of the offending. The sentence imposed by each offence, on its own, would not have triggered section 501(7) in relation to 'substantial criminal record'.
The Respondent contended that the serious nature of JSWC’s conduct to date weighs in favour of affirming the visa refusal.
Paragraph 8.1.1(1)(d) of the Direction requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness.
Submissions
JSWC’s counsel submitted:
·JSWC’s offending occurred during periods where he was using methylamphetamine frequently and his offending ceased when he stopped using illicit drugs.
·JSWC’s last conviction and charge for an offence was in May 2019 (save for a proven contravention of a CCO in July 2020), some 5 years ago.
·JSWC accepted there were a number of incidents reported during his time in detention. However, the conduct referred to in the report has not been judicially scrutinised. None of the incidents resulted in any criminal charges. The only evidence of their occurrence is the report itself. For these reasons, limited weight should be given to the report.
·In any case, the report indicates that the nature of the incidents became less frequent and severe during JSWC’s time in detention. As the delegate observed in their decision, 'there has been a reduction in the number and severity of incidents' when comparing the incidents during the period 2013 to 2016, and the period 2019 to 2021. The delegate noted the frequency of the Applicant's incidents in detention were more frequent when he initially entered detention and lessened somewhat in later years.
·On two occasions in November 2022 and May 2023, JSWC was invited by Serco officers to a 'Welfare and Engagement BBQ' in recognition of his 'positive, cooperative and compliant behaviour in detention and was commended for his 'ongoing positive attitude and cooperative behaviour'.
·While JSWC has been in immigration detention for a large period of the time since his last conviction, during periods where he has been released, he has lived in the community without incident.
·There is no trend of increasing seriousness or frequency of JSWC’s offending.
·The trend in JSWC’s behaviour has become more positive and compliant with authority in recent years.
JSWC’s counsel acknowledged the seriousness of JSWC’s criminal offending, but contended his offending was on the lower end of the spectrum and should be considered in the context of his past drug abuse, taking into account his more prosocial conduct over the past five years since his last conviction.
The Respondent submitted:
·The serious nature of JSWC’s conduct to date weighs in favour of affirming the visa refusal.
·His offending was serious and frequent, especially when considered cumulatively having committed 35 offences during an approximately 5-year period, during which he was at liberty in the community for an elapsed time of only 3 years.
·JSWC’s offending commenced with drug possession and firearms offences, his offending increased in seriousness to drug trafficking, escaping from police custody, unlawful assault and recklessly endangering serious injury violence.
·JSWC has accepted that the unlawful assault involved violence, and it was violence against a woman.
·JSWC has numerous reported incidents whilst in detention – the most serious being causing criminal damage by breaking a window, for which he was convicted of intentionally damaging property and fined.
·As the damaged property arose out of events in immigration detention, it is another factor going to the seriousness of JSWC’s offending.
·JSWC has also provided false information to the Department in making untrue protection claims and in failing to declare a large number of his convictions in his visa application.
The Respondent contended that JSWC’s drug trafficking, circulation of illegal weapons, theft, assault, and the physical/emotional harm to individuals in conjunction with his conviction which resulted out of events in immigration detention are all factors pointing to the seriousness of the offending.
Findings
The Tribunal, having regard to the evidence before it and as stated earlier, accepts that JSWC’s conduct reflected in the offences for which he was convicted was very serious.
The Tribunal found that JSWC had a considerable criminal record and a disturbing number of incidents whilst in detention. When viewing JSWC’s convictions individually, the Tribunal did not consider they fell within the serious or very serious category. Offences such as possession of drugs, dishonesty offences and providing false details to police can be categorised at the lower end of the scale, and weapons possession as being of a moderate level of seriousness.
Nevertheless, the Tribunal considers there are degrees of very serious conduct and, on a spectrum of very serious conduct, JSWC’s offending is at the lower end of the spectrum.
The Tribunal accepted that JSWC’s drug addiction was the root cause of his offending and this in turn was driven by his homophobia. The Tribunal arrived at this conclusion noting JSWC’s statement of 16 December 2021:
My criminal offending, I don't want to blame the drugs, but they played a big part. If I was not on the drugs, I believe that I would not have done what I did. There are a lot of stupid things, like not stopping for the police and driving without a license, I would not have done that, but I know it is not acceptable what I did. I was taking drugs to the point that I lost control of myself. Not being able to live the life I wanted to live and be myself - I think this is what led me to the drug taking. I was always frustrated and felt like I was living a lie - I was always pretending to be someone else.
I think it was the easy way out - just to be sedated. I was using it as a way to not deal with my issues - the biggest issue is I have always known who I am and what kind of person I am especially when it comes to my sexuality, but do you know how hard it was to get used to it and come to terms with it? I used to think, in the future, how can I be a gay person? This is impossible. This will all blow away soon and it will be okay - I will be a "normal" person. I used to think there was something wrong with me because of the ideas my family put in my head - I used to think I can't be like this there is something wrong with me. Whenever I used to think about this topic, I used to take drugs and this is what led to my criminal offending.
There was a lot of pain. Some part of it about taking the drugs was about being able to get to a certain comfortable point where I could speak about my sexuality - to someone who can listen to the topic I am talking about. When I was sober I always wanted to talk about it but I could never speak about it. I thought I had an illness - I thought that being gay was not acceptable.
The Tribunal also relied upon the expert evidence of Dr Zimmerman who opined in her report of 25 October 2021:
There is a clear and direct link between much of JSWC’s offending behaviour and his methamphetamine misuse disorder. This includes possession and trafficking offences and offences committed when he was "high" on Ice, including the time when he failed to stop at the scene of an accident and drove recklessly, thus endangering serious injury. His possession of guns/imitation guns is likely to have been associated with his participation in the drug culture.
In terms of the common assault, minor driving offences and failure to state his name, it is evident that these offences occurred over a period of time when JSWC was using drugs - particularly Ice - very heavily. It is likely that his ability to think through the consequences of his actions as a result of his chronic intoxication would have been reduced
………
I believe that internalised negative views about his same sex desire likely played a significant role in his developing a dependence on drugs and, in relation to this, becoming involved in offending.
Whilst the Tribunal accepted that JSWC’s drug addiction drove his offending, the Tribunal did not consider his drug addiction mitigated, excused, or diminished his offending. Given the link between JSWC’s drug use and his offending behaviour, the Tribunal does, however, agree that his remission from his drug addiction and his ability to stay abstinent from illicit drugs is a relevant factor to be considered in assessing the likelihood of him reoffending. This will be considered in the relevant section on the risk to the Australian community below.
The Tribunal was concerned by JSWC’s numerous reported minor incidents whilst in detention, involving altercations with other detainees, displaying abusive/aggressive behaviour towards medical and detention staff and other detainees. The Tribunal notes, that many minor incidents were reported throughout the period 2013 to 2016, with few incidents recorded during 2019 to mid-2021 with a marked reduction in the number and severity of incidents since. Additionally, the Tribunal noted that JSWC’s records indicate he has behaved himself in detention over the last three years and on two occasions has been rewarded for good behaviour.
The Tribunal accepts JSWC’s counsel’s contention that these detention incidents were based on unsubstantiated reports that have not been tested in court. JSWC’s counsel took the Tribunal to the most recent remarks of Justice Kyrou in WKBF v Minister for Immigration and Citizenship and Multicultural Affairs [2023] AATA 3728 where his Honour held:
…that care must be taken in deciding what reliance is placed upon documents which set out alleged crimes or acts of antisocial behaviour by a person which are not reflected in court records.
The Tribunal finds that JSWC’s actions in detention were serious and frequent, showing disregard to authority and other detainees. However, the Tribunal also considered the length of time JSWC was held in detention and also considered that his rotating in and out of detention undoubtedly caused him great distress contributing to outbursts of aggression. The Tribunal noted that JSWC’s evidence was that he always apologised for his inappropriate behaviour, and this was reflected in the Serco incident reports. The Tribunal relied upon the expert evidence of Dr Zimmerman who opined in her report of 25 October 2021:
I believe that JSWC’s prolonged and indefinite period in immigration has reduced his capacity to regulate his emotions and has aggravated his depressive symptoms.
The Tribunal also notes JSWC’s complex immigration history in which he has been fast and loose with the truth in his bids to remain in Australia. The Tribunal notes that several of JSWC’s visa applications were based on the fact he was previously married to Australian citizens and notes the Member’s finding in JSWC’s protection claim dated 29 March 2021:
The applicant has made new claims to this Tribunal that he fears returning to Lebanon because of his sexual orientation. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s.423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence.
The applicant told the Tribunal that it has taken him many years to acknowledge his sexual orientation to himself and to others. He said that when he applied for protection, he was in a state of denial. Later at the First and Second Tribunal stages, he had still not fully accepted his sexual orientation, and also did not realise he could make a claim for protection based on his sexual orientation. The Tribunal is satisfied that the applicant has a reasonable explanation for not raising the claim at an earlier stage, given his attempts to marry according to his parents’ wishes and to deny his homosexuality, and other factors, discussed in more detail below. The Tribunal is not required therefore to draw an inference unfavourable to the credibility of the claim
Thirdly, the Tribunal notes that although the applicant has lied extensively in documents provided to the Department and this Tribunal differently constituted in the past, the Tribunal is not persuaded that this means that he has a propensity for telling untruths, which includes devising the current claims. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan, Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’.
The Tribunal found JSWC to be a credible witness who did not seek to shy away or dispute any of his “stupidity and the bad things he had done in the past” nor did he seek to minimise or dispute his behaviour in immigration detention, accepting that he had called people names and caused disturbances. The Tribunal found that JSWC’s criminal offending, incidents in detention and misleading information in his numerous Visa applications was frequent but was not increasing in seriousness. Indeed, the Tribunal considers that since 2019, JSWC has shown a decrease in all his unacceptable behaviours and, since being released by the Minister on a bridging Visa, has been a model citizen.
Whilst the Tribunal concluded JSWC engaged in serious conduct at the lower end of the spectrum, the scale and length of his offending was considerable. Overall, the Tribunal found that the nature and seriousness of JSWC’s conduct weighs in favour of discretion being exercised to refuse to grant the Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
This part of this primary consideration requires the Tribunal to have regard to the Government’s view that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ (8.1.2(1)).
Submissions
JSWC’s counsel contended that the evidence demonstrates JSWC presents a low risk of future offending. Counsel submitted that this contention was consistent with Dr Zimmerman’s psychiatric report of 25 October 2021, in which she found JSWC:
·presents a low risk of future violent offending, including family violence;
·does not pose a ‘present and serious’ risk to the Australian community and does not pose a risk of serious violence in the future;
·does not pose a present risk of violence;
·risk of general reoffending is low;
·low risk of offending will be reduced again when he is able to engage with identified services, including drug and alcohol counselling; and
·has ‘tended to help-seek’, and will likely engage with identified services and will likely maintain the stability required in the community to engage with services.
JSWC’s counsel submitted there were five broad factors which underpin JSWC’s low risk of future reoffending:
(a)the context for his past offending, being his struggle with his sexual identity and how that has since been addressed;
(b)his past substance abuse, related to his difficulties with his sexual identity, which is now being addressed through counselling services;
(c)his genuine remorse and insight into his previous behaviour;
(d)the support of his community; and
(e)his plans for the future.
JSWC’s counsel submitted that the Tribunal should consider the following factors, in respect of JSWC’s sexual identity and past offending:
·Dr Zimmerman states in her report that there is a ‘clear and direct link’ between much of JSWC’s offending behaviour and his methamphetamine misuse disorder. This includes possession and trafficking offences and offences committed when he was high on ice. She states that it is likely that his ability to think through the consequences of his actions as a result of his chronic intoxication would have been reduced. This includes his ability to exercise appropriate judgement and inhibit impulses, which limited his ability to appreciate the seriousness and consequences of his behaviour at the time of offending.
·Dr Zimmerman found that JSWC’s ‘internalised negative views about his same sex desire likely played a significant role in his developing a dependence on drugs and, in relation to this, becoming involved in offending’. She found that his addiction and offending was in the context of his internalised homophobia and his struggle to accept his own desires throughout his twenties.
·JSWC’s circumstances have since changed considerably. He has come to terms with his sexual identity and orientation over the past few years and is now comfortable with his homosexuality. He states in his statutory declaration of 22 December 2022, that ‘I am just not the same person anymore. I am a proud gay man and I have a loving partner, and loving friends waiting for me in the community. There will be no need to fake who I am, and so I won’t need to numb myself, which is what led me to taking drugs in the past.’
·Dr Zimmerman states that there has been a ‘significant increase’ in JSWC’s level of comfort with his identity as a gay male, and this is associated with a substantial reduction in the likelihood of him using drugs in the future.
·Although his long-term relationship with Mr P has recently ended, he remains determined to ‘be free and not hide [his] sexuality.’
·This increased comfort in his sexual identity and corresponding substantial reduction in the likelihood of him using drugs in future forms the context for Dr Zimmerman’s opinion that JSWC does not pose a risk of serious violence in the future, or a present and serious risk to the Australian community, including in relation to family violence.
JSWC’s counsel submitted that the Tribunal should consider the following factors in respect of JSWC’s past substance abuse:
·JSWC’s past substance abuse is linked to his struggles with his sexual identity. At the time of Dr Zimmerman’s report, he was in ‘sustained remission’ from methylamphetamines, in that he had not used methylamphetamines for 18 months.
·Since that report, JSWC acknowledges that he has lapsed once, around 16 October 2023, following his return to immigration detention. He explains that this occurred because he was fearful for his safety as a gay man and as a suspected informant to the Australian Border Force (ABF) and felt pressured to smoke the drug.
·Notwithstanding this lapse, JSWC has not used methylamphetamine since his release from detention. He states that he has ‘not even thought about taking ice’ and has not relapsed.
·JSWC acknowledges that he did have two puffs of a marijuana joint after being offered it by a friend after he was released from detention in July 2023. He explains that at the time, he was desperate for Suboxone to manage the pain from his stomach and leg arising from a shooting in 2017. He had been unable at that point to see a doctor for a Suboxone prescription. He asked a friend for help and was offered a few puffs of the joint. He states that he immediately regretted this, and that marijuana has never been a drug that he has really liked or used.
·Notwithstanding these two instances of drug use, JSWC’s substance abuse is in the past and the fact that he has admitted to his drug use on these occasions, against his interests, shows that he is committed to confronting his past substance abuse and moving forward in life without drugs.
·Since his release on 23 October 2023, JSWC has been in touch with counselling and support services for alcohol and drug support. This includes:
ohaving an appointment booked for a comprehensive drug and alcohol assessment with Caraniche;
ohaving commenced treatment at Western Health Alcohol and Drug Centre for Suboxone replacement therapy under a specialist nurse;
ois on a waitlist for alcohol and other drug support through Thorne Harbour Health; and
oworking with Pride in Place who have been making referrals for him for counselling, alcohol and other drugs support (counselling and medication replacement therapy), housing and case management.
·JSWC had difficulties accessing remote counselling programs while he was in detention and did not feel safe talking about his sexuality (linked to his drug use) while in detention. The evidence clearly indicates, that since his release, he has actively engaged in, and continues to engage in, alcohol and drug counselling programs as well as broader counselling programs.
·JSWC’s friends have also noticed the change in him since he has stopped his drug use. His friend and housemate, Ms V, states that she has previously kicked him out of her house and cut off contact because of his drug use. She has allowed him to move back in with her because he has stopped using drugs. This is based on her observations of his behaviour. As his housemate, she knows his routine and observes his behaviour, and states that she would not continue to allow him to live with her if he were to use drugs again.
JSWC’s counsel submitted the Tribunal should consider the following factors in respect of JSWC’s remorse:
·Dr Zimmerman reports that JSWC expressed genuine remorse in relation to his offending that he recalled, specifically the possession of weapons and his reckless conduct endangering serious injury. While there was some offending that he could not recall, he recognised the illegality of those offences and regretted his use and possession of ice. Dr Zimmerman observed that the reason for JSWC’s change in insight over time is because he was no longer using ice, enabling him to exercise reflection and judgment.
·JSWC has expressed his remorse and regret in relation to his past offending and substance abuse on multiple occasions. In his statutory declaration dated 16 December 2021, he states ‘I am very sorry about my behaviour and about the way I used drugs to deal with my emotions and any risk I caused other people.’ And:
My criminal offending, I don’t want to blame the drugs, but they played a big part. If I was not on the drugs, I believe that I would not have done what I did. There are a lot of stupid things, like not stopping for the police and driving without a license, I would not have done that, but I know it is not acceptable what I did.
·With respect to JSWC’s treatment of former partners, while he denies that he was violent in any relationship, he accepts that his behaviour was unacceptable. He states in his statutory declaration of 12 May 2022:
I feel disgusted by who I was then and I am disappointed in myself. I really do regret everything that happened and I do believe that violence against any person is not okay and I do respect this. I support what the government is doing to protect people from family violence.
…I was wrong and I take full responsibility for my behaviour, both in terms of my criminal offending and in terms of my relationships. I do believe that it will not happen again.
·In his most recent witness statement dated 14 November 2023, JSWC expresses particular remorse in relation to the incident that resulted in his conviction for reckless conduct endangering serious injury. He states:
That was so stupid and so wrong and so reckless. I regret all of my actions and should never have run away from the police and put anyone’s life in danger including the police. I really was completely selfish. I was off my face – it was disgusting. I regret all of it. Every time I think about it, I cannot believe it. It was really disgusting. I had become someone awful. I was so out of it and stupid.
JSWC’s counsel submitted the Tribunal should consider the following factors in respect of JSWC’s community support:
·JSWC has a supportive network of both friends and community services, which, according to Dr Zimmerman, will assist in further reducing the already low risk of future offending.
·JSWC is currently residing with his long-time friend, Ms V, who he has known for around 12 years. During the period where he was abusing drugs, she stopped contact with him because she ‘didn’t want a person on drugs in [her] house’. She has since reconnected with him on the basis that she sees he has changed. She provides him with housing support, emotional support and encouragement.
·Ms V’s evidence was that she talks to JSWC about needing to change his mindset to work towards the future, rather than focusing on the past. She has provided support and advice on how to re-engage with society. She has encouraged him to develop a routine, to have a more regular sleep schedule and to eat regularly. As his housemate, she sees him regularly and has observed the improvements in his routine and behaviour. She states that she would like the Applicant to live with her for as long as he needs and would like him to live with her ‘indefinitely’.
·JSWC continues to be supported by his former partner Mr G whose evidence was that JSWC has a beautiful heart and he wants to keep him in his life. Mr G’s evidence was that they care about each other deeply, even if they are no longer in a relationship.
·JSWC is receiving support from Many Coloured Sky, an LGBTQI+ refugee and asylum seeker service. In his letter of 8 November 2023, the Executive Director states that they have worked with JSWC for almost two years, and since his release into the community, he has attended their drop-in centre and participated in group activities.
·Since JSWC’s release from detention between 31 July and 10 October 2023, and since 23 October 2023, he has lived in the community without incident. During this time, he has been working with community services, attending appointments, helping out around the house, looking for work and spending time with friends.
JSWC’s counsel submitted the Tribunal should consider the following factors in respect of JSWC’s future plans:
·JSWC plans to find a job, to contribute to the Australian community, to be a father to his son, to explore his life as an openly gay man and to properly engage in counselling. Finding work was identified by Dr Zimmerman as something that would help reduce his risk of relapsing into substance abuse.
JSWC’s counsel submitted the Tribunal should consider the following factors in respect of JSWC’s conclusion on risk of offending:
·JSWC’s risk of future offending is low. Dr Zimmerman’s evidence was that JSWC presents a low risk of future offending, with her report of October 2021 stating that he does not pose a risk of serious violence in future; that his risk of violent offending, including family violence, is low; that his risk of general reoffending is low; and his low risk will be reduced again if he is able to engage with identified services including drug and alcohol counselling. Dr Zimmerman maintained her views in her addendum report and in her oral examination.
·On two separate occasions in recent months, the Minister has granted JSWC a Bridging (subclass 050) visa E, releasing him from detention. On 23 October 2023, after the delegate exercised their discretion to refuse the Visa on character grounds on 10 October 2023, the Minister granted JSWC a second Bridging visa until 23 October 2024. In exercising his discretion to release JSWC into the community after the delegate refused the Visa on character grounds, the Minister has made an assessment that any risk of harm posed by JSWC is outweighed by the harm faced by him in continued detention.
JSWC’s counsel contended on the evidence and the Minister’s own determination to release JSWC into the community where he now resides, that the need to protect the Australian community from criminal or other serious conduct does not weigh in favour of visa refusal.
The Respondent contended that should JSWC engage in further:
·criminal or other serious conduct, there was a real prospect that it could cause significant harm to individuals and to the Australian community.
·drug trafficking, he would contribute to harm that costs Australia up to $16.5 billion a year and leads, on average, to 40 people being admitted to Australian hospitals daily from methamphetamine, heroin or cocaine use alone.
·offences of assault, personal injury and theft, he would cause economic, physical and emotional harm to individuals; noting the possession and circulation of illegal weapons is also connected with drug trafficking and is itself a ‘significant safety concern for the Australian community’.
The Respondent submitted:
·The risk of JSWC reoffending is unacceptably high.
·All of JSWC’s offending was linked to his use of illicit drugs and to his drug addiction. The history set out above indicates that the Applicant’s history of drug use is extensive. There was evidence from JSWC that his drug use stems back to heroin smoking in Lebanon from his late teens, which according to his own account, continued for 10 years. From 2013 to early 2019 JSWC reports that he smoked amphetamines daily which suggest it may not have abated when in immigration detention from 2015 to 2017.
·JSWC’s daily amphetamine usage led to his criminal and other behaviour that was clearly erratic, involved frequent abusive outbursts, including self-harm, some violence and extreme verbal abuse directed towards women.
·JSWC’s drug use was persistent, and his drug-related offending was recidivist. There was no evidence that he undertook the recommended treatment and therapy upon which his pleas for more lenient sentencing in 2014 were based.
·The Tribunal should place little weight on Dr Zimmerman’s two reports as it would appear she was unaware of the extent of JSWC’s drug use, for example, she appears not to have been aware of his heroin usage, or the extent of his Suboxone dependency. Additionally, Dr Zimmerman was unaware of the extent of JSWC’s psychological issues which appear to run deeper than she may have been aware. For example, she was unaware of his previous diagnosis of an acquired brain injury, requiring specialist treatment, and also Generalised Anxiety Disorder unrelated to drug use. Further still, Dr Zimmerman was also not provided with the full detention incident reports, but only with a high level description of them and a few excerpts.
·Although the MRD, Dr Zimmerman and the section 35(1C) delegate were aware that JSWC’s elaborate original protection claims were untrue, it appears JSWC used those same false claims to convince a psychologist that he suffered Post Traumatic Stress Disorder (PTSD), for the purpose of presenting mitigating circumstances for the County Court plea, which were unfounded.
·Ms Carla Lechner’s report was based on an acceptance of JSWC’s claims that he used ‘ice’ as a form of ‘self-medication’ for psychological problems stemming, among other things, from imprisonment, and physical and sexual abuse in Lebanon which were not in fact true.
·As JSWC has previously misled Ms Lechner, a Clinical and Forensic Psychologist, who provided an expert report to the County Court, the Tribunal should take a very cautious approach to the claims he now makes, once again through the medium of expert evidence, in relation to his alleged ‘self-medication’ through drug addiction.
·JSWC’s claims about his drug taking and the conflict he experienced in denying his homosexuality are undermined not only by the evidence showing that he has deliberately misled professionals regarding the supposed root causes of his addictions in the past, but also by evidence before the Tribunal in relation to his not having overcome his drug dependency such that he is currently struggling with the misuse of an opioid substitute drug, a habit which he claims he developed over 4 years of daily usage in immigration detention.
The Respondent contended that both the adequacy and the genuineness of JSWC’s current steps towards rehabilitation should be critically assessed in light of his long history of drug abuse, and his offensive, abusive and aberrant behaviour more generally. The Respondent submitted:
·Even after saying that he accepted Dr Zimmerman’s recommendation in October 2021 that he attend drug and alcohol counselling, JSWC had not availed himself of the drug and alcohol counselling on offer in immigration detention; his excuses in this regard appear unconvincing given the IHMS records are replete with his references to his homosexuality.
·JSWC availed himself of only five sessions of counselling at AseTTs over 3 years and under the supervision of Western Health, he appears to have abused Suboxone during his time in the community in August and September 2023 to such an extent that he required hospitalisation for withdrawal almost immediately upon his arrival at MITA.
·The protective factor considered important by Dr Zimmerman of a stable partner disappeared as soon as the Applicant was released. JSWC currently resides with a friend who has shown herself in the past to be extremely intolerant of his drug usage. If JSWC were to relapse even briefly (presuming that his Suboxone misuse is not already a relapse) her support would presumably evaporate, and the Applicant would be without housing.
The Respondent contended that all these factors should lead the Tribunal to conclude that it is far from clear that JSWC has freed himself from addiction, that the psychological source of this problem is far from treated, and that the measures being taken to address his addictions are far from adequate. Given his addictions are inextricably linked to his behavioural issues, which are also linked to his offending, the Minister contends that the risk to the community from the applicant remains very real and his rehabilitation is far from tested.
For these reasons, the Respondent contended that the protection of the Australian community weighs heavily in favour of affirming the visa refusal.
Findings
The Tribunal found the evidence of JSWC’s friends (Ms V, Mr G and Mr P) to be credible, and their offers to provide him with support in the community to be genuine. All were completely aware of JSWC’s drug addiction, his criminal offending, his issues with domestic violence, as well as his terms in prison and detention.
The Tribunal found them to be prosocial persons who all have full time employment, stable accommodation, have all known JSWC for a long time, and have maintained their friendship with him and seen that he has changed.
Ms V’s evidence gave the Tribunal great comfort that JSWC has the support in the community, which he needs to stay away from his previous destructive lifestyle. Ms V’s evidence was that she has known JSWC for 12 years having shared houses with him in the past and is currently offering a high level of support, providing him with stable rent-free accommodation, supporting him financially, as well as providing strong emotional support. Ms V has in the past cut off her friendship with JSWC because of his drug addiction and JSWC is fully aware Ms V will not tolerate him using any form of illicit drug whilst in her home. The Tribunal finds that JSWC is less likely to return to drugs and reoffend because he knows Ms V’s support will evaporate, and he will be left without housing and other supports.
The Tribunal also accepted JSWC’s evidence that he is incredibly grateful he has Ms V’s support and that he is also grateful he can repay her kindness by providing her with support to stay in her home while she deals with her current significant health issues.
The Tribunal was impressed by both Mr G and Mr P’s frank evidence at the Tribunal about their relationship with JSWC and his journey to accept his sexuality. The Tribunal accepted that both men will continue to offer JSWC support to stay away from his former destructive lifestyle.
Contrary to the Respondent’s view, the Tribunal accepted that JSWC has sought and engaged with professional supports to deal with his substance abuse, issues with domestic violence and acceptance of his sexuality. The Tribunal also accepts that he is keen to work and is actively seeking employment. All this demonstrated to the Tribunal that JSWC is doing everything he can to be drug-free, no longer engage in criminal activity and to be able to show that he is worthy of playing a positive role in his son’s life.
The Tribunal found Dr Zimmerman’s evidence thoughtful and based on a full appreciation of all JSWC’s past illicit substance abuse, convictions, detention incidents, domestic violence and his current usage of Suboxone. Contrary to the Respondent’s contention, the Tribunal found Dr Zimmerman’s expert evidence was informative, was not advocating for JSWC and was of assistance to the Tribunal’s deliberations. The Tribunal relied upon the expert evidence of Dr Zimmerman who opined in her report of 25 October 2021:
When I assessed JSWC, he expressed remorse predominantly on two occasions. Firstly, he volunteered the observation that it was wrong of him to be in the possession of weapons, real or imitation. He stated that he felt that he needed them to protect himself and recognised that they could be frightening to others.
The second occasion when he expressed the most heartfelt remorse was when he was talking about the incident when he drove recklessly. He explained that he could have hurt others badly and that he was behaving in a stupid fashion while high on Ice.
I believe that he showed genuine remorse in relation to this offending.
In relation to the other charges, JSWC appeared to have genuine problems remembering the details. He did not deny repeatedly driving without a licence or L-plates or indeed any driving offences and recognised that this was illegal and not something he would do again. He appeared baffled by the property damage charge and could only link it in his mind to kicking a heater in detention.
He regretted his Ice possession/use, predominantly because it led to his offending and to bad effects on him.
If JSWC’s insight has changed over time, what is my opinion on the reasons for this change
I believe that the reason that JSWC’s insight has changed over time is predominantly linked to the fact that he is no longer using Ice, enabling him to exercise reflection and exercise judgement and think through the consequences of his behaviour in a manner not possible when he was using Ice heavily.
The Tribunal also relied on Dr Zimmerman’s oral evidence:
So I’m just ascertaining that the breadth of knowledge that we’re dealing with here. So you’ve done an assessment and the bottom line for me, you know, there’s a couple of things – well it’s many factors I’ve got to look at. But from your expertise to assist me, risk of reoffending for the applicant? --- It remains low, yes.
Just based on your original assessment, meeting JSWC, albeit over the phone, the internet, and then looking at the material, still remains low risk of reoffending? --- That’s correct.
And risk of committing family violence? --- Again, I consider that to be low. I’m heartened that he is planning to see a counsellor about behaviours in relationships. I think that is going to help him in relationships in the future. So that’s terrific to hear.
So his risk – his offending is all related to his drug addiction? --- I believe so.
Yes. Predominantly? --- That’s right.
Leave aside – not leave aside but excluding the family violence which may have also been related to – so again the risk then of him returning to drugs of dependence in your view? That is the crucial risk factor that needs to be Caraniche counsellors, is fantastic because they specialise in offenders who have drug and alcohol problems. All their staff are psychologists so you don’t get the sort of perhaps less skilled counsellors who sometimes work with this cohort. So all of those, I think, put in place the things that are needed to try and bring that risk down of relapsing into ice use. Because that will be the key determinate of whether he returns to offending behaviours in the future, I believe.
So the prosocial factors that he’s got around him, that he’s got stable accommodation, that he’s got support networks. He doesn’t have work but he’s looking for work. Those are the other sort of factors that, you know, you think would be assisting with risk – mitigating risk of going back to drugs and to offending? --- That’s correct.
And the fact that he has reached out to get, you said self-help, he’s looking for it himself and he’s trying to get those services when he can? --- That’s correct.
And with the Suboxone I – for whatever reason that word I can’t get out – but anyway, the program he’s on through Western Health and the tapering off, do people have a successful outcome with that? You know, that they usually can get off it? --- Yes. Many of them do, yes. And look, with drug and alcohol some people it’s going to work, so it happens at the right time in their life and for others it doesn’t. And that’s why all those other protective factors you mentioned like stable accommodation and prosocial groups around to add support are going to be important.
And a person’s own desire to do it as well? --- Yes.
You know, so the fact is that if he doesn’t, he won’t get a visa and he’ll – he could face life in indefinite detention may also be a factor that might be assisting him to stay clean and not offending? --- I think it would be a fairly strong motivator, yes.
And you took into account also the factor of maybe wanting to reconnect with his child? --- Yes. Of course.
JSWC obviously has some other medical issues that require pain management. So he comes off the Suboxone but he’s still got his gut and leg issues. So there may be a requirement for some sort of opioid to deal with that. And then people get onto, you know, some other horrible stuff that you then become addicted to. Did you consider or look at that? Or given his addictive nature, you know, you don’t do ice for that long without having one. Did you think about those sort of things? --- Yes. And I think that’s something that his GP will have to work with the drug and alcohol counsellors and come up with a long term plan for managing chronic pain in a way that doesn’t tip back into a pattern of abusive use of substances.
The Tribunal found JSWC’s evidence credible, and his statement of 22 December 2022 reflected his desire to be an active contributor to Australia:
I really apologise for my stupidity and the bad things I have done in the past. There is no excuses for that. I am very committed to fixing my mistakes. I am confident in myself and I am confident that I will not offend again because I don’t need to take drugs and numb myself anymore. I am just not the same person anymore. I am a proud gay man and I have a loving partner, and loving friends waiting for me in the community. There will be no need to fake who I am, and so I won’t need to numb myself, which is what led me to taking drugs in the past. I think back to my offending and my behaviour in the past and I feel ashamed and very sorry for my behaviour. I am sorry to those who I have hurt, I really am.
Since I left Lebanon, I was so relieved to be away from a culture that terrorised gay people. I cannot wait to be a community member in Australia. I want to really not just be a part of the Australian community and the LGBTQ community, I really want to give back to the community that has already given me so much, especially the safety to finally be able to come out and accept myself.
Overall, The Tribunal found the Australian community would expect someone with JSWC’s disregard for Australian laws and conventions not to be granted a Visa and found this factor weighs in favour of discretion being exercised to refuse to grant the visa.
Other considerations
Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see section 198 of the Act), noting that section 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Submissions
JSWC’s counsel submitted that:
·The Tribunal is required to consider the legal consequences of a decision to refuse the grant of the Visa, in particular where non-refoulement obligations are engaged.
·In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, Allsop CJ (with whom Markovic and Steward JJ agreed) stated:
…where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved.
Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
·Following the recent determination of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37 (NZYQ), the likely human consequences for JSWC should his Visa be refused is that he will spend a prolonged period in immigration detention where he will lose access to much of his drug and alcohol counselling services, mental health and LGBTQ+ counselling services, as well as access to his friends and support network and the ability to build his relationship with his son, only to be ultimately released into the community at some unknown time in the future with or without a visa.
·The reason for this consequence is because of the unlawfulness of indefinite detention. The High Court determined in NZYQ that an unlawful non-citizen facing the prospect of indefinite detention cannot lawfully be detained under sections 189(1) and 196(1) of the Act in circumstances where there is no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future. The Court's findings establish that the ongoing detention of an unlawful non-citizen in these circumstances is unconstitutional and unlawful.
·On 29 March 2021, the Tribunal found that JSWC satisfies the criterion in section 36(2)(a) of the Act and on 25 March 2022, a delegate of the Minister found that he satisfies the criterion in section 36(1C) of the Act. By reason of those findings, and in accordance with the meaning given by section 197C(4) and (5)(a), JSWC is covered by a protection finding. As a result, he cannot be returned to Lebanon under section 197C(3), unless he asks to be removed.
·JSWC is currently on a Bridging visa which expires on 23 October 2024. Under section 501F(1) and (3), this Bridging visa will be cancelled if a decision is made to refuse the grant of the Visa under section 501(1). The operation of section 189(1) will then require JSWC to be detained in immigration detention. By reason of the determination in NZYQ, he would be detained until he can be removed to a safe third country or until it is determined that there is no real prospect of his removal becoming practicable in the reasonably foreseeable future.
·There is no evidence before the Tribunal that there is any consideration being given to the removal of JSWC to a safe third country, or that there is any likelihood that he could be so removed. The delegate acknowledged that the prospects of finding another country willing to receive JSWC are poor. This is especially so when considering the prospects of finding a third country that is safe for JSWC as an openly gay man.
·JSWC does not have a right of residence in any country other than Lebanon. Given his established fears of returning to Lebanon as a gay man, he would not ask to be removed to Lebanon. Any removal of him to a third country would also have the effect of further separating him from his eight-year-old son.
·The practical consequence is, at some point it is likely that it will be determined that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. At that point, JSWC would then be released into the community, given his detention cannot lawfully continue. JSWC may or may not be granted a visa upon release, and he may or may not have access to services, depending on his visa status.
·That is, should the Tribunal decide to affirm the decision of the delegate, the legal (and human) consequence will be that JSWC will needlessly suffer again in immigration detention only to be released at an unknown time in future, where he will need to rebuild his mental health, recommence his counselling services and re-establish his support network. If he is released into the community without a visa or entitlement to services, this would be a significant impediment to his rehabilitation. In this sense, further detention of JSWC is pointless and needlessly harmful.
·The consequences of being returned to immigration detention on JSWC are severe. JSWC has detailed the sexual, physical and verbal assaults he has suffered in detention. He has detailed the need for him to hide his sexuality due to the homophobic environment in detention and his fear of being assaulted as a result; he believes he is 'damaged' because of detention; that he will 'not survive' and that he is still recovering from being re-detained in October 2023.
·The Minister has implicitly acknowledged this harm in twice granting JSWC a Bridging visa this year to be released from detention.
·Dr Zimmerman has opined that JSWC has experienced significant depressive and anxiety symptoms for many years which are 'closely related to his situation in indefinite detention'. JSWC has experienced major depressive disorder during his time in detention. A counsellor at ASeTTS has assessed that, based on her five counselling sessions with JSWC, he has 'unprocessed trauma from his past' which has been 'further exacerbated by his experience in detention and persistent fear of being harassed, discriminated against and persecuted for being homosexual, which manifests as poor mental state.' His friend and housemate Ms V has observed the worsening of his mental health and traumatisation following his return to detention in October 2023.
·JSWC will also lose the alcohol and drug counselling, mental health counselling and community supports he is currently accessing in the community.
JSWC’s counsel contended that the legal consequence of prolonged detention and then ultimate release into the community should weigh significantly in his favour.
JSWC’s counsel contended this is a situation where this ‘other consideration’ should be given greater weight than any ‘primary considerations’ which are in favour of refusal.
The Respondent submitted that it was accepted that JSWC has been found to engage international non-refoulement obligations, as a delegate of the Respondent has found that if returned to Lebanon, he would face persecution. This finding means that his removal to that country is neither required nor authorised in the present circumstances.
The Respondent submitted JSWC will be able to remain in the community, having been granted a Bridging visa from a beneficial exercise of Ministerial intervention. The Respondent did not agree with JSWC’s counsel that section 501(f) of the Act would result in JSWC’s current bridging visa being cancelled if the Tribunal affirmed the determination.
The Respondent submitted section 501(f)(3) of the Act applied to visas JSWC held when the protection visa was refused under section 501(1) on 8 August 2023, and that as JSWC’s bridging visa was issued on 23 October 2023, when the Minister exercised a discretion under section 195(a), two-and-a-half months after the refusal decision, section 502(f)(3) therefore did not apply. The Respondent submitted section 501(f)(3) of the Act only applied if the person holds another visa at the time the visa refusal decision is being made, and as JSWC did not hold the bridging visa that he now holds at that time, his bridging visa will be unaffected by the Tribunal’s decision.
The Respondent submitted if the Tribunal affirms the decision, JSWC will be able to stay in the community on that bridging visa for its duration and if the decision is set aside then the Minister will have to consider whether the remaining protection visa criteria are met before making a final decision on the protection visa application and in the meantime, he remains in the community on the bridging visa.
The Respondent contended in light of JSWC being owed protection, he is not a person for whom there is a real prospect of removal becoming practicable in the reasonably foreseeable future. He will therefore not be returned to Lebanon as long as he is owed protection.
The Respondent contended therefore there was no basis for weight being assigned in the favour of JSWC in relation to any risk of long-term detention.
The Respondent contended the legal consequences of the decision should be assigned neutral weight.
Findings
The Tribunal endorses the sentiment expressed by Mortimer J in MZZLD v Minister for Immigration and Border Protection (No 2) [2017] FCA 31, as her Honour then was, as quoted by JSWC’s counsel at the hearing:
‘The sense of powerlessness and helplessness that can attend individual experiences of immigration detention, or of living with uncertainty and isolation on bridging visas should not be underestimated.’
The Tribunal concurs with JSWC’s counsel that the legal consequences will undoubtedly create profound uncertainty in JSWC’s situation which will cause him continued distress and anxiety.
The Tribunal finds that this uncertainty would be a greater precursor to JSWC reoffending than it would to refuse the Visa. The Tribunal found Dr Zimmerman’s evidence informative on this point:
In your October 2021 report you stated your opinion that he has experienced significant depressive and anxiety symptoms for many years and that he continues to experience these symptoms. You stated in your opinion – you state that your opinion was that these symptoms are closely related to his situation in indefinite detention. What is your opinion on these depressive and anxiety symptoms if his immigration status and return to detention is uncertain?‑‑‑It’s well documented that the uncertainty around indefinite detention, whether that’s in the immigration setting or whether it’s for people who are on remand and are not yet sentenced in prisons, is associated with negative impacts on mental health. And that particularly results in problems with mood and anxiety disorders. So I would be concerned about any uncertainty prolonged indefinite detention in terms of the impact on the applicant’s mental health.
Do you have any broader concerns about prolonged uncertainty about his immigration status?‑‑‑Well, there are increasing numbers of studies that show that release from detention itself is not necessarily associated with an improvement in mental state if there’s ongoing uncertainty about which way a visa application is going to fall. So it’s that uncertainty, not knowing what the future holds, whether you’re going to be plopped back in detention or sent back into a potentially traumatic situation, I guess. That is associated with ongoing problems with mental health.
The Tribunal notes the recent finding by the Tribunal in XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357, “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights". JSWC’s capacity to create the certainty in his life to seek the professional help he needs to deal with his drug addiction and underlying psychological issues would be constrained or impossible. JSWC’s capacity to implement plans he might have had for his future, getting a job, getting off Suboxone, reconnecting with his son and engaging with his community would be constrained or impossible. The denial of his Visa could see him returned to indefinite detention in the future and he would lose all hope and be denied freedom and would not be at liberty. As such, he would be denied "one of the most basic human rights and fundamental freedoms known to the common law”.
Overall, the most likely and immediate consequence of a decision to affirm the Reviewable Decision is that JSWC will remain in immigration limbo for an indefinite period, that is an uncertain period with no fixed chronological end point. The Tribunal finds on the evidence before me that the prospect and actuality of indefinite detention is likely to be materially adverse given JSWC’s particular circumstances
The Tribunal therefore finds that this consideration weighs strongly against discretion being exercised to refuse to grant the Visa.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments a non-citizen may face if removed to their home country, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.
JSWC’s counsel submitted that JSWC cannot be returned to Lebanon, and so there was no occasion for considering the extent of impediments if he was removed.
The Respondent submitted as there was no realistic prospect of JSWC being returned to Lebanon, the impediments faced on return consideration should be assigned neutral weight.
Findings
The Tribunal found that this consideration was not of any relevance in this proceeding as it has been conceded by the Responded that JSWC cannot be returned to Lebanon.
Impact on victims (paragraph 9.3)
The Tribunal must consider any evidence of the impact of a non-citizen's offending on a member of the Australian community.
Both JSWC’s counsel and the Respondent submitted there was no evidence before the Tribunal of the impact of its decision on victims of JSWC’s criminal offending, and therefore this consideration should be assigned neutral weight.
Findings
Neither party contended, and nor was it apparent on the material before the Tribunal, that this consideration was of relevance in this proceeding.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if JSWC is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
The evidence before the Tribunal indicates JSWC worked predominately as a glazier in Australia for a short period of time on his own account. He did not work for significant periods whilst in prison or detention or when he was heavily dependent on methylamphetamine.
The Tribunal does not consider that there will be any impact on Australian business interests if JSWC is not granted his visa. The Tribunal finds that this other consideration is therefore not engaged.
CONCLUSION
In summation JSWC’s counsel contended this case is about a gay Lebanese man, who as a result of his struggles with his sexuality over almost the entirety of his teenage and adult life, became addicted to methamphetamines, which then led to criminal offending. The most serious of his offending resulted in six months imprisonment. Save for a contravention of a CCO, his last offence was committed over five years ago. Since then, he has taken active steps to change his life.
JSWC’s counsel contended the Tribunal heard evidence
·about what steps he has taken and continues to take to come to terms with his sexuality. He is undertaking drug and alcohol counselling and is waiting to commence on a family violence course and counselling, and mental health counselling. He is on a Suboxone treatment programme to help him stay drug-free, a program which Dr Zimmerman describes as appropriate, and he is determined to remain drug free, and has a strong incentive to do so.
·JSWC’s strong incentive lies in his determination to contribute as a member of the Australian community and not to return to detention. As JSWC is also determined to be a father to his eight-year-old son, and has a strong desire to maintain his strong friendships with people who are not drug users and to continue living with Ms V. He is applying for jobs and is eager to start making money so he can contribute to rent and food while living with Ms V and to start making financial contributions to his child.
·JSWC is at low risk of relapsing back into drugs and low risk of reoffending in the future. This is consistent with the evidence given by Dr Zimmerman in each of her reports, and under cross-examination. The nature and seriousness of JSWC’s past offending combined with the low risk of reoffending should lead to the Tribunal setting aside the delegate’s decision and substituting it with a decision that the discretion in section 501(1) not be exercised to refuse JSWC’s visa.
JSWC’s counsel submitted of the primary considerations set out at section 8 of the Directions, greater weight should be given to JSWC’s low risk of future offending, along with the strength, nature and duration of his ties to Australia and the best interests of his minor child; while less weight should be given to the family violence considerations and the expectations of the Australian community. Finally, considerable weight should also be given to the legal consequences of a decision to refuse his protection visa under section 501(1).
In summary the Respondent contended the Tribunal should affirm the determination to refuse JSWC’s protection visa. The Respondent submitted that JSWC obviously has a long and complicated history of drug addiction, which has led him to offending, reoffending, and to a pattern of recidivism. The Respondent submitted that JSWC has offered shifting explanations for why he became addicted to drugs, and these explanations are important because they are linked to rehabilitation and the steps needed to address the underlying problem.
The Respondent submitted JSWC has repeatedly not sought psychological assistance that he knew was available for his alleged problems. Instead, he has shown disrespect for Australian law by taking illegal drugs for years. Apart from breaking the laws of various kinds designed to protect the Australian community as evidenced in his 35 convictions, JSWC’s offending shows specific disregard for Australian law enforcement, the justice system and government officials.
The Respondent submitted JSWC evaded police, crashing into other cars to do so, lied about his name to them, breached his bail conditions and the terms of IVOs; has been abusive and threatening to staff in immigration detention on many occasions and in evidence he tried to blame them for his behaviour to some degree and was convicted of an offence in immigration detention. The Respondent submitted JSWC had choices about how to medicate for his problems and he chose an illegal solution, and that led him into further illegality.
The Respondent contended in assessing the risk that JSWC poses, his credibility is very important, because what he does is up to him, and it does depend, to some degree, about whether the Tribunal believes his intentions to reform, and that there are reasons not to believe him.
Consistent with the Directions, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, "the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501".
Of the primary considerations the Tribunal found:
·JSWC was a low risk of reoffending, and whilst his offending was at the lower end of the spectrum, the scale and length of his offending, however, was considerable. The Tribunal therefore considered that protection of the Australian community weighs in favour of discretion being exercised to refuse to grant the Visa.
·The evidence before the Tribunal demonstrated JSWC had been convicted of family violence and found that this consideration weighs slightly in favour of affirming the visa refusal.
·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh in favour of granting the visa.
·The Australian community would expect someone with JSWC’s disregard for Australian laws and conventions not to be granted a Visa and found this factor weighs in favour of discretion being exercised to refuse to grant the visa.
·The uncertainty of JSWC’s Visa status was tantamount to indefinite and so consideration of legal impediments weighs strongly against discretion being exercised to refuse to grant the Visa.
The Tribunal accepted that JSWC has breached the expectation that he be law-abiding and respect Australian institutions. As a general principle, the Directions establishes that his visa should not be granted.
The Tribunal considered that certain factors in JSWC’s circumstances be given greater weight. The Tribunal considered the risk of JSWC being in the community with the uncertainty of his Visa status along with the prospect of being returned to detention at any stage would present a greater risk to the Australian community than giving him an incentive to stay clean and law-abiding.
Overall the Tribunal did not consider that JSWC’s circumstances raise character concerns of sufficient seriousness to the Australian community that would warrant discretion be exercised to refuse to grant his protection Visa.
DECISION
Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the Reviewable Decision. In substitution, the Tribunal finds that it should not exercise discretion under section 501(1) of the Migration Act to refuse the Applicant the Visa.
I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
...............................[sgd].........................................
Associate
Dated: 2 January 2024
Date of hearing:
7 & 8 December 2023
Counsel for the Applicant
Mr Chadwick Wong
Advocate or the Applicant
Ms Arti Chetty
Solicitors for the Applicant:
Russell Kennedy Lawyers
Advocate for the Respondent:
Ms Catherine Oppel
Solicitors for the Respondent:
Australian Government Solicitor
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