LMFV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2676

LMFV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2676 (3 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3359

Re:LMFV

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:3 August 2023

Place:Sydney

The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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

Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – refusal to revoke mandatory cancellation – citizen of Sierra Leone – sexual intercourse with person with cognitive impairment – reckless grievous bodily harm by transmission of HIV – PTSD – psychologist evidence low risk of offending – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

3 August 2023

1. The applicant has sought review of the delegate’s decision not to revoke the cancellation of the applicant’s Global Humanitarian (Class XB) (Subclass 202) visa. There is no contest that the applicant does not pass the character test, and the question in the review is whether there is another reason to revoke the cancellation of the applicant’s visa.

2. The applicant is a national of Sierra Leone, and gave his evidence in English, which is spoken in Sierra Leone. He graduated from high school in Sierra Leone, and completed a three year course at the Port Loko Teachers Training College and graduated with a Higher Teacher Certificate which qualified him to teach students up to high school level.

3. He began work as a high school teacher, teaching physics, chemistry, biology and agriculture at junior, junior secondary and senior secondary level. His teaching work lasted for six years.

4. In 1991 a civil war broke out in Sierra Leone. In 1997 when he was 27 years old, it reached the area where he and his family lived. The school where he worked as a teacher was attacked and ransacked. He ran to his home to find that his parents had been shot. They were still living at that time but later died from their wounds. He was shot in the leg and, as Judge Wells SC later noted, in the back of the head. He was passed out. He was found by UN peacekeeping troops and taken to a hospital in neighbouring Guinea. He was in a coma for 6 months. He went to a refugee camp in Guinea.

5. He had four full siblings and eight half siblings and he was reunited with them in a nearby camp. After ten years he all his 12 siblings got the visa permitting them to travel to Australia and they came here together. He obtained employment in Rockhampton in Queensland, where he worked as a meat packer. He moved to Sydney in 2012, but was unable to find work and lived on Centrelink payments. He ended up homeless and began living in the streets during the first half of 2012. In a pub he met a woman who I will identify as Ms K, who befriended him.

6. For a time he lived with Ms K in her home in Balmain.

7. Around November 2013 he became seriously ill, was admitted to Royal Prince Alfred Hospital, where he was diagnosed with HIV and tuberculosis. Discharged in December 2013 he went back to the home of Ms K in Balmain.

8. In February 2014 police imposed an apprehended violence order on him, apparently acting on information provided by the daughters of Ms K. He said that after he was served with the AVO he went back to the home of Ms K to collect his belongings and says that he was then arrested for breach of the AVO, although, according to his account, he did not interact with Ms K when collecting his belongings. The magistrate before whom that charge first came set aside the AVO, and permitted him to visit Ms K’s home on condition that he drink no alcohol before entering her home and was of good behaviour.

9. After his arrest in February 2014 he never again lived at Ms K’s home on a permanent basis but obtained other accommodation at first in Chippendale, but later in Redfern.

10. At first, while he was still at Ms K’s home, there was a community worker who came there to administer his medication for HIV. That seems to have stopped, sometime after he moved out from the Balmain address.

11. Precisely what happened to cause his medication to be interrupted is not entirely clear on the evidence. He said that he became persuaded that he had been wrongly diagnosed. Ms Battisson who appeared for the applicant submitted that he may have been affected by a cognitive condition which was a by-product of his HIV infection. I will return to that matter below. He had been told in the hospital when he was diagnosed in 2013 that he must continue his medication faithfully and that he must always wear a condom if having sex, and that he must inform his partners of his diagnosis. Somehow he persuaded himself that he was not suffering from HIV, prior to his most serious offending of 2018.

12. His most serious offending took place in 2018, but other offences took place earlier and I will discuss them first. The purpose of discussion of his offending is that Direction 99, made under s 499 of the Migration Act 1958 (the Act) binds decision-makers including this Tribunal.

13. The Direction is published and I will not for the most part repeat its terms in these reasons. This proceeding arises under s 501CA of the Act, and the ultimate question is whether there is another reason to revoke the cancellation of his visa, given that he does not pass the character test, in the light of the sentence imposed upon him.

14. Direction 99 sets out in cl 5.2 certain Principles which are a framework within which decision-makers should approach their task, inter alia, of deciding whether to revoke the cancellation of a visa. I note the terms of the Principles.

    Primary considerations

15. Clause 7 refers to primary considerations which “generally” should be given greater weight than other considerations. The first primary consideration is the protection of the Australian community from criminal or other serious conduct, and that consideration is described in

    
    

    cls 8.1, 8.1.1 and 8.1.2 of the Direction. The Direction requires consideration, first, of the nature and seriousness of the applicant’s conduct to date.

    Protection of the Australian community (cl 8.1)

16. The applicant’s national police certificate discloses the 2014 local court conviction for contravening prohibition/restriction in AVO, being the offence mentioned in [8] above. He was given a bond for 18 months.

17. Next, it discloses two convictions in 2016 for which he was fined. The offences were for shoplifting and having custody of a knife in a public place.

18. Finally, it notes the serious offending of the applicant of 2017, which resulted in the arrest of the applicant in 2018 and his being imprisoned on remand, pending being dealt with in the District Court, which occurred in 2020. The applicant was sentenced by Judge Wells SC and her remarks on sentence commence at page 37 of the G documents.

19. At the hearing the applicant pleaded guilty. The victim, a woman of 23, made a victim’s impact statement.

20. There was also before the judge a statement of agreed facts and a letter of apology written by the applicant.

21. On 7 January 2017 the victim met the applicant at Central railway station. The judge noted a dispute between the victim and the applicant as to whether he told her that he was a doctor. Her Honour did not resolve that dispute. The applicant repeated his denial that he told her he was a doctor on oath before me. I did not hear from the victim.

22. The victim went with the applicant to his unit in Redfern. She stayed overnight. They spent the next day together. The judge says that during the day, the applicant drank some alcohol. Her Honour said that “there is no suggestion that he was affected by alcohol at that or at any time that the relevant offences occurred”.

23. The applicant told me that he did drink a lot of alcohol while he was in the company of the victim. He said that he drank cask wine and that when a cask was finished, he bought another cask. Quite strange remarks are attributed to the applicant during the relevant events and are undisputed. I think that he probably was under the influence of alcohol at least some of the time over the relevant period.

24. The victim told the applicant that she had a disability and a heart syndrome which affects her hearing and speech, and that people believe it was okay to take advantage of her. The judge observed that when she made her impact statement, it was immediately apparent that she suffers from a significant disability.

25. I now quote from the remarks on sentence of Judge Wells:

    She stayed with him on the second evening at his unit and he slept on the lounge and gave her his bed. After she was asleep for a period of time, she woke to find him in the bed without any lower clothing on. He began to remove her clothing and she told him that she had a boyfriend. She also asked him to use a condom. He then proceeded to have penile/vaginal sexual intercourse with her without a condom. That forms the basis of the charge of sexual intercourse with a person or taking advantage of a person with a cognitive impairment.

    She spent the following day, that would be roughly 9 January, with him and slept in his bed again that night and again, he had penile/vaginal intercourse with her without a condom. That act gives or forms the basis of the charge on Form 1. She described that act of intercourse as lasting for a long time and included kissing, and the offender grabbing her breasts.

26. On about 15 January the victim returned again to the applicant’s unit, and again they had sexual intercourse, with no condom. The victim’s parents came to pick her up, and there was mild resistance by the applicant to her being removed from him. He told the parents that his parents were coming from the United Kingdom and that the victim was pregnant and he was the father. He told them that she wanted to stay with him because “she is my woman” and that her mother “could not take her”, that is, the victim “or his child”.

27. In July 2017 she was tested for sexually transmitted diseases and the test returned a positive result for HIV of the same type as the offender.

28. Dr Lewis of Western Sydney Sexual Health Centre described that she remained medically well from the HIV perspective but had struggled psychologically and emotionally with respect to having now another “stigmatising and potentially life-threatening medical condition”. He commented that if she complied with her medication her expected lifespan would not be impacted adversely by her HIV condition.

29. The judge commented that the applicant’s letter contains his admissions and an expression of his remorse, and indicated an awareness on his part of the serious damage he had done to her. She added: “He says that she told him that she did not want to [have sex] without a condom and he admitted lying to her along the lines that he was healthy and well, and that he did not have any sexually transmitted diseases.” He also admitted that in late 2016 he had stopped taking medications and that he knew that the viruses in his system were getting dangerously high. At the time of the offence he was 46 years old.

30. The judge treated his background in Sierra Leone as significant matters that serve to mitigate his offending in terms of providing a context for his offending. She also mentioned that he had suffered severe headaches since the shooting in Sierra Leone.

31. It is, of course, possible, having regard to his comatose state for some six months, that he suffered a brain injury in the shooting.

32. As to alcohol consumption he said in the Tribunal that he came to appreciate that he had alcoholism during courses which he attended in gaol. He has abstained from alcohol altogether since he went to prison and since he has been in detention.

33. The charges to which he pleaded guilty were a charge of having sexual intercourse with a 23 year old woman, taking advantage of her cognitive impairment and a similar charge taken into account on a Form 1, and a charge of recklessly causing grievous bodily harm by infecting the victim with HIV. Her Honour imposed an aggregate sentence of seven years and two months, and a non-parole period of four years backdated to the start of the time he was taken into custody on 23 April 2018.

34. The offending was, of course, very serious, and if it were repeated the conduct would be very harmful to members of the community.

35. As to the likelihood of the applicant engaging in further criminal or other serious conduct, the applicant called two witnesses.

36. The first was Dr Kwok, who is a psychologist. She interviewed him in October 2022 over a period of one and a half hours and inspected certificates for courses he undertook in drug and alcohol abuse, understanding addictions, domestic violence, anger management, behaviour management, sexual harassment compliance, building self-esteem, decision-making skills, confidence building, emotional intelligence, etiquette, conflict resolution and assertiveness training. In gaol he completed TAFE courses in Adobe inDesign for Beginners, chemical awareness, preparing to undertake employment, and information, digital media and technology. She noted that according to his statutory declaration his viral loads for both HIV and tuberculosis were undetectable in 2022, following antiviral therapy for HIV.

37. In 2016 he was treated for alcohol induced psychosis.

38. He reported one serious long-term relationship during his lifetime with Ms K.

39. At paragraphs 59 and 60 of her report she wrote:

    59Dynamic risk factors. Dynamic risk factors are those that relate to an offender’s current psychological state and life circumstances. These can change over time and are therefore amenable to intervention. [LMFV’s] dynamic risk factors include:

    ·Homelessness (note, he said he could return to Brisbane and live with his family if he cannot find accommodation in Sydney)

    ·Lack of prosocial activities

    ·History of alcohol abuse

    ·Unemployment. I note that [LMFV] would still want to become a teacher if he is permitted to return to the community; however, his criminal history and prior sex offence would be barriers. [LMFV] would need to consider other areas of employment.

    ·[LMFV’s] level of distress increased due to the possibility that he will be forced to return to Sierra Leone or be detained indefinitely in Australia.

    60The following issues are protective against [LMFV’s] risk of re-offence:

    ·[LMFV] does not present with a lifestyle that is congruent to sexual deviance.

    ·[LMFV] does not currently present with attitudes consistent with sexual offending.

    ·[LMFV] expressed remorse for his offending and understood the impact of his behaviours on the victim.

    ·[LMFV] has sought education on domestic violence, sexual harassment compliance, and safe sex. He expressed a willingness to seek further information on healthy relationships.

    ·[LMFV] has also obtained certificates in courses including drug and alcohol abuse and understanding addictions.

    ·[LMFV] does not present as inherently antisocial.

    ·[LMFV] expressed a willingness to seek employment or further education if he is permitted to return to the community.

    ·[LMFV] has family support in Brisbane

40. Dr Kwok expressed the opinion that the applicant poses a low risk of re-offending with respect to a crime like those of which he has been convicted, and with respect to a crime unrelated to those crimes.

41. She also diagnosed the applicant with post-traumatic stress disorder.

42. Dr Kwok has the degrees of Ph. D (University of Sydney), Master of Psychology (Forensic) (UNSW) and Bachelor of Advances Science (Hons) (UNSW). She is a fellow of the College of Clinical Psychologists and College of Forensic Psychologists of the Australian Psychological Association. She is currently undertaking a further Ph. D at Macquarie University.

43. I accept her evidence.

44. Her evidence is significant in relation to the predictive task involved in cl 8.1.2 of the Direction. See generally in Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424 (Mortimer J as her Honour then was) especially at [101].

45. I also heard from Ms Foy, a social worker employed by the Booby Goldsmith Foundation, an organisation which works with HIV sufferers. Ms Foy was in contact with the applicant when he was released from detention for a short period earlier this year. Asked how she found his motivation to rehabilitate himself, Ms Foy replied: 

    [LMFV] is highly motivated and he’s incredibly proactive in engaging in activities that he knows is going to improve his quality of life. What he has been able to demonstrate in terms of resilience, but also in terms of resourcefulness, is to be able to provide me with the activities that he wants to attend to and a plan and an organised attempt to be able to engage in those things. I think the way that - to provide an example of him demonstrating that is the amount of courses and short courses that he has undertaken throughout his time in detention. But also the activities that he was engaging in outside of detention when he was living in community, it was very clear to me that [LMFV] was very much wanting to sustain ongoing education and to also be able to learn how to provide that education to others around him who might have been in a situation like his previously, but didn’t necessarily have the coping skills to be able to manage what they were going through. And I find that [LMFV’s] insight and reflection on the decisions that he took many years ago has had a profound impact on his capacity to grow as a human but also to learn who he is and what he can contribute in a valuable way to community. And from that we have - I would like to be able to engage him in a consumer advisory group which is in person, to be able to inform the policy status, but also working with communities in order to be able to provide opportunities to other people living with HIV that might not find themselves in a situation or proactive situation in terms of being able to manage their healthcare in the same way that [LMFV] has.

46. She said she wanted to invite him to be a member of a committee within her Foundation and she described that committee as follows:

    So that meets once a month. It’s facilitated by a colleague of mine who is also HIV positive. Fifty per cent of the organisation are workers who are living with HIV. There is a group of people from across Australia, primarily South Australia, the Northern Territory and New South Wales at the moment, who are there to represent certain communities that are affected by HIV. The virus doesn’t discriminate and it can impact or affect anyone from any creed, culture or ethnicity. So we encourage a diversity of views which includes [LMFV’s].  

47. She also said that:

    [LMFV] was very clear on his want to give back to community. And through talking with him about his skills as a teacher from his home country and also by way of education, that he has participated in, plus his time in detention, it was very clear to me that he was well skilled in being able to teach but also bring people on a journey. So I thought that it was appropriate to bring up peer based options. There is a lot of research and evidence that suggests that peer based engagement creates better outcomes long term for people living with HIV.

1. Ms Foy also explained some matters concerning HAND (HIV-associated neurocognitive disorder). She said that with an HIV diagnosis can come a gamut of comorbid health issues. One of them is HAND where the virus can climb up the spinal cord and into the brain. When the virus is not controlled (like with the applicant in 2016) one is more likely to experience HAND. Coping skills may be taught but the process is not reversible.

2. The G documents contain a neuropsychological report concerning the applicant dated 11 April 2018. It notes at page 315 of the G documents that when the applicant was at Royal Prince Alfred Hospital (RPA) in December 2013 a CT brain scan reported severe generalised cerebral and cerebellar atrophy. At page 317, it notes that while results of this assessment must be treated with a degree of caution given the applicant’s cultural background, the overall pattern of impairments found on testing overlaps with that expected of HAND with cognitive slowing and executive function deficits. At this time the applicant had been in gaol for some seven months. The date of the report is about 16 months after the offending, and the applicant’s brain condition (apart from the atrophy noted in December 2013) may have bene present before the offending itself.

3. As I have found is likely, the applicant may also have been significantly affected by alcohol at the time of the offending, and at the time he made the remarks about the victim being pregnant as mentioned in [26] above.

4. The possible presence of HAND, the atrophy noted at RPA and the drinking may each have affected the applicant at the time of his offending. The mention of these possibilities should not be construed as any suggestion that the applicant was not guilty of the offences with which he was charged.

5. Ms Foy’s evidence provides some confirmation of the applicant’s remorse and his intention to make a prosocial change in his life, a matter also noted by Dr Kwok.

6. The applicant is in contact with only one of his sisters, who also gave evidence before the Tribunal. She explained that the applicant is ashamed of his offending and does not at the present time speak to his other siblings. The sister who gave evidence is a nurse, who has recently given birth to a baby in Queensland.

7. Generally as to cl 8.1.2 of the Direction, I accept that the likelihood of recidivism for any offence is low, and that the various courses which the applicant has undertaken tend towards his rehabilitation. The circumstance that Ms Foy wants him to join a committee within the Bobby Goldsmith Foundation also tends to confirm the applicant’s desire for self-improvement and commitment to others. The considerations in cls 8.1,8.1.1 and 8.1.2 count again the applicant, with qualifications noted above.

   Family violence (cl 8.2)

8. The respondent submitted that this clause is engaged on two grounds; first the breach of the AVO granted by the police, and second with the serious offending of the applicant. I was referred to the decision of Halley J in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 and have also consulted the Full Court appeal reported at [2022] FCAFC 115 (Farrell, Moshinsky and Burley JJ).

9. Ms K, described as she was by the applicant in terms set out in [38] above, is a candidate to be considered a family member. He met Ms K after he received the diagnosis of 2013, and until 2016 cohabited with her. The relationship ended in 2018 (if not before) when he went to gaol. They apparently drank a lot of alcohol together. He said there was no violence between them. I will assume that Ms K qualifies as a family member. However, the facts proved before me do not satisfy me that there was any violent, threatening or other behaviour that coerced or controlled a family member or caused her to be fearful. The action constituting the breach of the AVO was entering her premises to recover his belongings, and for no other purpose. He lived downstairs and Ms K was upstairs.

10. So far as the serious offending is concerned, I do not see that the victim was a family member of the applicant. They had a sexual relationship which was brief. The victim lived elsewhere, with her parents. Both Halley J and the members of the Full Court in Deng took into account sections 5CB and 5G of the Act, neither of which seems to me to make the victim a family member of the applicant. For instance, she was not a de facto partner of the applicant.

    The strength, nature and duration of ties to Australia (cl 8.3)

11. The most obvious application of this consideration relates to the sister with whom the applicant has regular telephone conversations. The applicant presently has no other strong ties to the community. That in some ways is part of the sad history of the applicant. He strongly wants to remain here for reasons to do with his need for continued access to the good medical care available here.

    The best interests of minor children in Australia (cl 8.4)

12. The applicant’s sister would permit or welcome continued contact between her newborn baby and the applicant. The relationship with that baby has not yet been established and the applicant has never seen the child. While there is reason to hope that the applicant may establish such a relationship, and that the relationship will benefit the child, that is as much as can be reasonably concluded about this consideration at this time.

    Expectations of the Australian community (cl. 8.5)

13. This consideration is based upon deemed expectations, not open to review, and in the light of his offending, does not favour revocation of the cancellation of the applicant’s visa.

    Other considerations

14. A non-exhaustive list of “other” considerations appears in cl 9 of the Direction. Two of those may be relevant to this case, considerations (a) and (b). The other two are unsupported by any evidence before the Tribunal.

    Legal consequences of the decision (cls 9.1, 9.1.1,and 9.1.2)

15. Ms Battisson argues that protection obligations are owed in respect of the applicant. He fled a civil war in Sierra Leone, which the facts of this case show was very dangerous to life and limb, and why the applicant’s parents were murdered, and why the applicant himself was gravely injured by rebel forces when he was 27 is unexplained. The civil war has now ended.

16. The applicant has not yet applied for a protection visa, and it is possible that he will not do so if the cancellation of his visa is revoked. If the rebels of the civil war are in government now, then the applicant may still be at risk from them.

17. Some paragraphs in the applicant’s Statement of Facts, Issues and Contentions suggest that the applicant is owed protection obligations as a refugee or under s 36(2)(aa) of the Act. I have decided that in this case, while protection obligations may be owed in respect of the applicant, that question is best left to be decided on a protection visa application if made by the applicant, despite the fact that any contest about such any application may involve delay.

    Extent of impediments if removed (cl. 9.2)

18. The applicant has a PTSD diagnosis, and requires continuing and lifelong treatment for his HIV and tuberculosis. Those conditions are readily treated in Australia by health services readily available in the community in this country. By contrast in Sierra Leone mental health care, and the availability of health care for persons with HIV, who are stigmatised, and whose mortality rates in hospitals is very elevated by Australian standards, shows that the applicant, if returned to Sierra Leone, would be at very great risk. He has no one living there who would be known to support him. He might be homeless and unemployed. Health is a matter expressly to be taken into account under this provision of the Direction: cl 9.2(1)(a).

19. Thus, removing the applicant to Sierra Leone, rather than releasing him into the community, would expose him to consequences far more serious than the sentence imposed upon him by the courts.

    Balancing the considerations

20. In my opinion, the weight to be attributed to the considerations discussed above, balancing one against the other, and taking into account the protective factors relevant to the prospect that the applicant might reoffend, is such that the correct or preferable decision is to release the applicant.

21. The decision under review is set aside and substituted with a decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act).

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 3 August 2023

Date(s) of hearing:	26 & 27 July 2023
Solicitors for the Applicant:	Ms A Battisson, Human Rights for All
Solicitors for the Respondent:	Ms H Kim, Australian Government Solicitor