Morales Alvarado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 269
•7 February 2022
Morales Alvarado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 269 (7 February 2022)
Division:GENERAL DIVISION
File Number: 2021/8821
Re:Ervin Benito Morales Alvarado
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:7 February 2022
Date of written reasons: 22 February 2022
Place:Sydney
The Tribunal is satisfied that there is another reason why the Minister’ decision to cancel the applicant’s visa should be revoked. As such the decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s Class BO Subclass 115 – Remaining Relative Visa.
......................................[sgd]..................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – applicant suffering from serious medical condition resulting in appointment of Guardian – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2985
Folau v Minister for Immigration and Border Protection [2016] FCA 1149
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK 19 (2021] FCAFC 153
Mukiza v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
22 February 2022
The Applicant seeks review of a decision of a delegate of the Respondent (‘the Minister’) made on 15 November 2021 (‘the original decision’) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) to revoke the original decision made under s 501(3A) of the act made on 31 July 2020 to cancel the Applicant’s Class BO Subclass 115 – Remaining Relative visa (‘the visa’).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
On 7 August 2020 the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 15 November 2021 a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). The Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 20 and 21 January 2022 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’ or ‘Direction 90’).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
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 measureable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5.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 8.4(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 measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration A’);
(b)whether the conduct engaged in constituted family violence (‘Primary Consideration B’);
(c)best interests of minor children in Australia (‘Primary Consideration C’); and
(d)expectations of the Australian community (‘Primary Consideration D’).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 46 years of age, was born in Nicaragua on 25th of February 1975. The Applicant is a citizen of Nicaragua. He arrived in Australia in 1996 at 21 years of age.
Statements
The mother of the applicant who resides in Australia has provided a statement dated 11 January 2022, and the applicant’s adult daughter Ms C M provided a statement by email dated 1 October 2021.
The Tribunal has been supplied with the following psychological assessments:
a.mental health assessments conducted by Canberra Clinical Forensic Psychology dated 7 January 2020 and 17 January 2022 signed by Professor Bruce A. Stevens;
b.report of the Western Sydney Local Health District, NSW Health, Brain Injury Rehabilitation Service dated 18 December 2017;
c.witness statement of Ms Sarsha Costigan, Acting Principal Guardian for the Public Guardian, NSW Trustee and Guardian dated 7 January 2022;
d.letter of Ms Sarsha Costigan addressed to the National Character Consideration Centre, Melbourne, dated 1 October 2021;
e.Temporary Guardianship Order dated 15 May 2017 made by the New South Wales Civil and Administrative Tribunal (‘NCAT’) under the Guardianship Act 1987 (NSW) appointing the Public Guardian as the guardian of the applicant for a period of 30 days;
f.Subsequent Guardianship Orders appointing the Public Guardian as Guardian of the Applicant made under the Provisions of the Guardianship Act 1987 (NSW) by NCAT as follows:
i.Order dated 6 September 2018 appointing the Public Guardian as the guardian of the applicant for a period of 4 months from 7 September 2018, providing limited guardianship of the applicant, namely the power to make medical/dental consent and the power to make decisions for legal services for the applicant; and the power to override objections to medical treatment.
ii.Order dated 14 January 2019 extending the guardianship order for 12 months from 14 January 2019 and providing limited power to the guardian in respect of the functions of advocacy; healthcare; medical/dental consent, legal services; and authority to override objections to medical treatment;
iii.Order dated 21 January 2020 extending the guardianship order for period of 12 months from 21 January 2020 and providing the following functions to the Guardian: advocacy; accommodation; authority to others including Members of the NSW Police and the Ambulance Service of NSW to take the applicant to a place approved by the Guardian; to keep them at that place; return them to that place should they leave it; healthcare; medical/dental consent; services; and legal services.
iv.Order dated 21 January 2021 extending the guardianship order for a period of 12 months from 21 January 2021 providing the same functions to the Guardian as contained in the order made on 21 January 2020.
g.The Respondent has provided the following information:
i.Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
ii.International Covenant on Civil and Political Rights;
iii.Universal Declaration of Human Rights;
iv.Nicaraguan 2020 Human Rights Report;
v.a publication of the Inter—American Commission on Human Rights 2020 report on Nicaragua entitled ‘Persons Deprived of Liberty in Nicaragua in Connection with the Human Rights Crisis that Began on April 18, 2018’.
Oral evidence
The Tribunal heard oral evidence from the Applicant and from his mother and adult sister.
Other witness’ evidence
The Tribunal also received oral evidence from Professor Stevens and from Ms Sarsha Costigan.
APPLICANT’S CRIMINAL HISTORY
The applicant has an extensive criminal history as contained in the report dated 2 March 2021 prepared by the Australian Criminal Intelligence Commission. The applicant’s offending, in summary, is as follows:
JOINT SUMMARY OF COURT OUTCOMES
Date of Court outcome
Sentencing Court
Offence
Sentence imposed
15 July 2020
Liverpool Local Court
Use offensive language in/near public place/school
Section 10A conviction with no other penalty
15 July 2020
Liverpool Local Court
Assault officer in execution of duty
Imprisonment (aggregate): 12 months with non-parole period of 9 months
15 July 2020
Liverpool Local Court
Assault officer in execution of duty
Imprisonment (aggregate): 12 months with non-parole period of 9 months
15 July 2020
Liverpool Local Court
Resist officer in execution of duty
Imprisonment (aggregate): 12 months with non-parole period of 9 months
12 June 2020
Liverpool Local Court
Assault officer in execution of duty
Intensive Correction Order (ICO): 9 months.
Requirements of ICO:
Complete anger management or similar intervention programs.
Participate in practice guide for intervention program and participate in all other programmes recommended and directed to by Community Corrections supervision.
Supervised by Community Corrections service treatment programs. Rehabilitation/treatment – abstention – alcohol.
12 June 2020
Liverpool Local Court
Assault officer in execution of duty
Intensive Correction Order: 12 months
Requirements of ICO:
Complete anger management or similar intervention programs.
Participate in practice guide for intervention program and participate in all other programmes recommended and directed to by Community Corrections supervision.
Supervised by Community Corrections service treatment programs. Rehabilitation/treatment – abstention – alcohol.
12 June 2020
Liverpool Local Court
Resist officer in execution of duty
Intensive Correction Order: 12 months.
Requirements of ICO:
Complete anger management or similar intervention programs.
Participate in practice guide for intervention program and participate in all other programmes recommended and directed to by Community Corrections supervision.
Supervised by Community Corrections service treatment programs. Rehabilitation/treatment – abstention – alcohol.
12 June 2020
Liverpool Local Court
Behave in offensive manner in/near public place/school
Imprisonment: 4 weeks.
3 February 2020
Fairfield Local Court
Refuse/fail to comply with direction under Part 14
Fine: $150.
3 February 2020
Fairfield Local Court
Use offensive language in/near public place/school
Fine: $300.
28 August 2019
Bankstown Local Court
Cause harm to Commonwealth official (not law/police officer)
Imprisonment: 3 months.
8 May 2018
Parramatta Local Court
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment: 12 months with non-parole period of 3 months.
NOTE: Sentenced imposed following call up from suspended sentence of 12 months’ imprisonment with s 12 bond imposed on 15 March 2018. Prior to imposition of s 12 bond, applicant was subject to a s 9 bond, ordered on 13 March 2018.
8 May 2018
Parramatta Local Court
Stalk/intimidate intend hear physical harm (personal)
Imprisonment: 16 months imprisonment with non-parole period of 5 months.
NOTE: Sentence imposed call up from suspended sentence of 16 months’ imprisonment with s 12 bond imposed on 15 March 2018.
8 May 2018
Parramatta Local Court
Destroy or damage property
Imprisonment: 16 months imprisonment with non-parole period of 5 months.
NOTE: Sentence imposed call up from suspended sentence of 16 months’ imprisonment with s 12 bond imposed on 15 March 2018.
8 May 2018
Parramatta Local Court
Intimidate police officer in execution of duty w/o abh
Imprisonment: 16 months imprisonment with non-parole period of 5 months.
NOTE: Sentence imposed call up from suspended sentence of 16 months’ imprisonment with s 12 bond imposed on 15 March 2018.
8 May 2018
Parramatta Local Court
Goods in personal custody suspected being stolen (not m/v)
Imprisonment: 2 months.
26 April 2017
Fairfield Local Court
Larceny value <= $2000
Section 9 Bond: 15 months.
Conditions of bond:
Attend counselling, educational development, drug or alcohol rehabilitation.
26 April 2017
Fairfield Local Court
Destroy or damage property <= $2000
Fine: $500.
31 March 2017
Fairfield Local Court
Behave in offensive manner in public passenger vehicle etc
Fine: $300.
31 March 2017
Fairfield Local Court
Shoplifting value <= $2000
Fine: $600; Section 9 Bond: 12 months.
Conditions of bond:
Attend counselling, educational development, drug or alcohol rehabilitation. Supervision of NSW Probation Service.
27 February 2017
Fairfield Local Court
Larceny value
Section 10A conviction recorded with no other penalty.
27 February 2017
Fairfield Local Court
Continue intoxicated etc behaviour after move on direction
Fine: $100.
27 February 2017
Fairfield Local Court
Use offensive language in/near public place school
Fine: $200.
11 August 2015
Parramatta Local Court
Contravene prohibition/restriction in AVO (Domestic)
Section 10A conviction recorded with no other penalty.
11 August 2015
Parramatta Local Court
Contravene prohibition/restriction in AVO (Domestic)
Section 10A conviction recorded with no other penalty.
19 February 2014
Parramatta District Court
Stalk/intimidate intend fear of physical/mental harm
Imprisonment: 3 months.
NOTE: Sentence confirms earlier sentence of 3 months’ imprisonment imposed by Penrith Local Court on 22 November 2013. The 22 November 2013 sentence was imposed at a call up hearing in relation to a s 9 bond imposed on 3 April 2012.
19 February 2014
Parramatta District Court
Common assault (DV)
Imprisonment: 3 months.
NOTE: Sentence confirms earlier sentence of 3 months’ imprisonment imposed by Penrith Local Court on 22 November 2013. The 22 November 2013 sentence was imposed at a call up hearing in relation to a s 9 bond imposed on 3 April 2012.
19 February 2014
Parramatta District Court
Destroy or damage property
Imprisonment: 3 months.
NOTE: Sentence confirms earlier sentence of 3 months’ imprisonment imposed by Penrith Local Court on 22 November 2013. The 22 November 2013 sentence was imposed at a call up hearing in relation to a s 9 bond imposed on 3 April 2012.
19 February 2014
Parramatta District Court
Commit act of indecency with person 16 years or over
Imprisonment: 6 months.
NOTE: Sentence confirms earlier sentence of 6 months’ imprisonment imposed by Penrith Local Court on 22 November 2013.
19 February 2014
Parramatta District Court
Assault with act of indecency
Imprisonment: 18 months with non-parole period of 10 months.
NOTE: Successful appeal against sentence of Penrith Local Court. Penrith Local Court had imposed a sentence of 2 years’ imprisonment with non-parole period of 18 months’ on 22 November 2013.
20 November 2012
Parramatta Local Court
Use offensive language in/near public place/school
Fine: $100.
Costs: Court – $83.
18 March 2008
Fairfield Local Court
Behave in offensive manner in/near public place/school
Fine: $400.
Costs: Court – $70.
12 December 2007
Central Local Court
Assault occasioning actual bodily harm
Imprisonment: 12 months with non-parole period of 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
12 December 2007
Central Local Court
Contravene prohibition/restriction in order (domestic)
Imprisonment: 4 months.
The applicant has served numerous periods of imprisonment as follows:
JOINT SUMMARY OF SENTENCES OF IMPRISONMENT[1]
[1] Table only sets out sentences of imprisonment. For an outline of the periods that the applicant was admitted to prison (e.g. following arrest, prior to bail, et cetera) see Tender Bundle 250-252.
Offence and term of imprisonment imposed
Date sentence imposed
Date imprisonment commenced
Date imprisonment concluded
Period of imprisonment
Assault officer in execution of duty
Term of imprisonment: 12 months with non-parole period of 9 months
15 July 2020
15 July 2020
14 April 2021
9 months
NOTE: Applicant released on parole on 14 April 2021
Assault officer in execution of duty
Term of imprisonment: 12 months with non-parole period of 9 months
15 July 2020
15 July 2020
14 April 2021
9 months
NOTE: Applicant released on parole on 14 April 2021
Resist officer in execution of duty
Term of imprisonment: 12 months with non-parole period of 9 months
15 July 2020
15 July 2020
14 April 2021
9 months
NOTE: Applicant released on parole on 14 April 2021
Behave in offensive manner in/near public place/school
Term of imprisonment: 4 weeks
12 June 2020
14 May 2020
10 June 2020
4 weeks
Cause harm to Commonwealth Official (not law/police officer)
Term of imprisonment: 3 months
28 August 2019
22 August 2019
21 November 2019
3 months
Goods in personal custody suspected being stolen (not m/v)
Term of imprisonment: 2 months
8 May 2018
26 March 2018
25 May 2018
2 months
Destroy or damage property
Term of imprisonment: 16 months with non-parole period of 5 months
8 May 2018
26 March 2018
25 August 2018
5 months
Intimidate police officer in execution of duty w/o abh
Term of imprisonment: 16 months with non-parole period of 5 months
8 May 2018
26 March 2018
25 August 2018
5 months
Stalk/intimidate intend fear physical etc harm (personal)
Term of imprisonment: 16 months with non-parole period of 5 months
8 May 2018
26 March 2018
25 August 2018
5 months
Contravene prohibition/restriction in AVO (Domestic)
Term of imprisonment: 12 months with non-parole period of 3 months
8 May 2018
26 March 2018
26 June 2018
3 months
Stalk/intimidate intend fear of physical/mental harm
Term of imprisonment: 3 months
22 November 2013
9 March 2013
8 June 2013
3 months
Common assault
Term of imprisonment: 3 months
22 November 2013
9 March 2013
8 June 2013
3 months
Destroy or damage property
Term of imprisonment: 3 months
22 November 2013
9 March 2013
8 June 2013
3 months
Commit act of indecency with person 16 years or over
Term of imprisonment: 6 months
22 November 2013 (original sentence by Local Court)
19 February 2014 (sentence confirmed by District Court)
9 June 2013
8 December 2013
6 months.
Assault with act of indecency
Term of imprisonment: 18 months with non-parole period of 10 months
22 November 2013 (original sentence by Local Court)
19 February 2014 (resentenced by District Court)
9 June 2013
8 April 2014
10 months
NOTE: Applicant released on parole on 8 April 2014.
Assault occasioning actual bodily harm
Term of imprisonment: 12 months with non-parole period of 4 months
12 December 2007
19 November 2007
15 May 2008
18 January 2008
12 September 2008
4 months
3 months 29 days
Total: 7 months and 29 days
NOTE A: Applicant released on parole on 18 January 2008.
NOTE B: Parole revoked on 15 May 2008.
Contravene prohibition/restriction in order (domestic) (10 counts)
Term of imprisonment: 4 months
12 December 2007
19 September 2007
18 January 2008
4 months
Sentencing observations
The Tribunal reproduces below extracts from several sentencing observations in relation to the applicant’s convictions.
22 November 2013
On 22 November 2013 before the Local Court of New South Wales at Penrith, Magistrate Sinclair referred to the evidence before the Court and stated inter alia:
Since his arrival in Australia in 2006 he has come into contact with the criminal law on a number of occasions including a December 2007 a conviction for assault occasioning actual bodily harm and ten counts of contravening a domestic violence order which he received sentences of imprisonment. The parole in relation to those sentences was subsequently revoked in April 2012 he was placed on good behaviour bonds for intimidation and assault and damaging property in a domestic situation. There was also an offence of offensive behaviour and all of [the applicant’s] offences involved over consumption of alcohol and a majority contained allegations of violence.
Such observations were made in respect of convictions for committing an act of indecency; and indecent assault.
19 February 2014
On 19 February 2014 in the District Court of New South Wales Criminal Jurisdiction, Judge Colefax SC dealt with appeals from a number of a sentence imposed in the Local Court on 3 April 2012. His Honour stated inter alia:
The offence of assault with an act of indecency is towards the top, if not at the top of the range, of offences of that kind and it is not necessary for me on a severity appeal to re--state the facts. …
Having referred to the fact that the applicant had been seriously assaulted on two occasions whilst in custody and noting that the applicant had been placed in protective custody, His Honour said in allowing the appeals before him:
In addition to that, he has a long-term problem with alcohol, which has finally been attributed to very severe child deprivation in his homeland of Nicaraguan where he was dragooned as a child soldier at a very young age…
8 May 2018
On 8 May 2018 in the Local Court of New South Wales at Parramatta, Magistrate Andrews referred in his sentencing remarks in respect of the pleas of guilty to a charge of goods in custody and breaching a bond, to remarks of his legal representative and to a Justice Health report dated 24 January 2018. His Honour said:
That refers to certain things about some hospital admissions and that you are taking medication at various times, that you had a long history of alcohol abuse and indeed alcohol is a problem. It seems to have got you back here. I am of the view that I am well required under the law to revoke the s 12 bond.
12 June 2020
On Friday, 12 June 2020 before the Local Court of New South Wales at Liverpool, Magistrate Keogh said in relation to the offences of assaulting an officer in the execution of his duty (two counts: resisting an officer in the execution of his duty); and behaving in an offensive manner near a public place/school:
In relation to the first matter you were obviously intoxicated. You pleaded guilty that. Police asked you to move on. You were the front of an establishment on the street and you broke a bottle of wine. The police obviously had to move you on and you were very difficult to deal with. You attempted to spit on one of the officers and thank goodness he was able to deflect that with his arm.
You did plead guilty to it. You have obviously got an alcohol problem and I see also that you have had a head injury that might contribute to your difficulty to control your impulses. So I do take all that into account. But also I take into account your history and it is a lengthy one, particularly in relation to some violence. So the report indicates you would benefit from some supervision. But the Court has to indicate through the penalty it imposes the condemnation of the community in relation to this kind of behaviour and punishment as well as deterrents.
The matter is one where a gaol sentence should be imposed, but instead of serving that time in custody it will be a gaol sentence within the community with intensive supervision.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted included violent and sexual crimes committed against a woman in a domestic violence context: they were committed against the applicant’s partners on separate occasions. In respect of the crime against a woman but not in a domestic situation, the victim was a passenger in a train who was sexually assaulted by the applicant on 9 March 2013. The victim was a stranger to the applicant.
The applicant was convicted of assaulting a police officer in the execution of his duty. There is no doubt that such conduct is serious, as is the remainder of his offending.
Details of his offences are as follows:[2]
[2] Respondent’s Statement of Facts Issues and Contentions dated 14 January 2022.
On 1 July 2007 the applicant’s girlfriend advised him that she no longer wished to be in a relationship with him. The applicant reacted violently and twice punched his girlfriend on the cheekbone. The applicant was convicted of assault occasioning actual bodily harm. He was sentenced to a term of 12 months’ imprisonment, with a non-parole period of 4 months.
As a consequence of his assault on his ex-girlfriend, an Apprehended Violence Order (AVO) was imposed on the applicant. Between 11 July 2007 and 31 August 2017, the applicant called his ex-girlfriend’s personal phone on a number of occasions and left messages on her work phone. Further, on 17 September 2007 the applicant attended his ex-girlfriend’s place of work. The applicant was convicted of 10 counts of contravene prohibition/restriction in order (domestic). He was sentenced to a term of 4 months’ imprisonment
On 21 January 2012 the applicant, after a night out drinking with his girlfriend, passed out in his car. He later woke up and was upset that his girlfriend had not woken him up; he suspected that she wanted to sleep with another man while he slept. He attended his girlfriend’s home, where he grabbed his girlfriend and pushed her onto a couch and verbally abused her. He then threw a number of household items, causing them to break. The applicant was convicted of stalk/intimidate intend fear of physical/mental harm, common assault (DV) and destroy or damage property (DV). After two call ups, he was sentenced to 3 months’ imprisonment.
On 9 March 2013 the applicant boarded a train. He was intoxicated. He sat next to the victim, who was the only other person in the carriage. He made advances towards her, which were not reciprocated. He kissed the victim on the lips, unbuttoned her shirt, made contact with her breast, neck and head and removed her jeans and underwear. This made the victim visibly distressed. The applicant leaned his head towards the victim’s genital area and the victim pushed him away. He then exposed his penis to her and said “suck me”. The applicant was convicted of commit act of indecency with person 18 years or over and assault with act of indecency. He was sentenced, after an appeal, to 6 months’ imprisonment in respect of the act of indecency and 18 months’ imprisonment in respect of the assault with the act of indecency
On 23 January 2018 the applicant was the subject of another AVO in respect of his girlfriend.6 He engaged in a heated argument with her on the side of a road. The victim was backed up against a fence. She attempted to get away from her but he moved in such a way that prevented her from doing so. She was eventually able to get away, running across the street screaming “Let me go!” She told the police that he had grabbed her by the neck and this was consistent with a large red mark on the side of her neck, which was observed by the police. The applicant was convicted of contravene prohibition/restriction in AVO (domestic). After two call ups, he was sentenced to 12 months’ imprisonment, with a non-parole period of 3 months.
On 14 March 2018 NSW Police attended the Fairfield Centrelink after the applicant behaved in an unruly manner and threatened to harm a Centrelink employee if he came outside. The applicant was arrested. While in custody, he advised a police officer that he would kill his or her family and mother. He also urinated in the cell that he was being held in. The applicant was convicted of stalk/intimidate intend fear physical etc harm (personal), destroy or damage property and intimidate police officer in execution of duty w/o abh. After a call up, he was sentenced to 16 months’ imprisonment, with a non-parole period of 5 months.
On 14 May 2019, while detained in the Villawood Immigration Detention Centre, the applicant walked towards a Serco guard. He grabbed the guard’s jacket with one hand and attempted to punch the guard with his other hand. The guard evaded this punch and moved backwards, but the applicant advanced towards him. The applicant pushed the guard, causing him to fall. The guard then defended himself by pushing and punching the accused. The applicant ran down a flight of stairs and was followed by the guard. The applicant and the guard then repeatedly grabbed and punched each other. The applicant was convicted of cause harm to Commonwealth official (not law/police officer). He was sentenced to 3 months’ imprisonment.
On 29 April 2020 NSW Police attempted to move the applicant on from a venue outside of which he was sleeping. The applicant was intoxicated. The applicant became aggressive with the police and attempted to incite a fight. He was arrested. Upon arrival at the police station, police requested that the applicant remove his shoes. The applicant removed his shoes but threw one of them at a police officer, hitting him in the lower body. He also attempted to spit in the face of a police officer, but his spit was blocked by the police officer’s forearm. The applicant was convicted of assault police officer in execution of duty. He was sentenced to a 9 month Intensive Correction Order (ICO).
On 14 May 2020 the applicant attended the ANZ Bank while intoxicated. He attempted to withdraw money and became aggressive with staff, prompting staff to press the hold-up alarm. The applicant kicked and punched the walls of the bank while this occurred. The police arrived and the applicant was arrested as he was in breach of bail conditions. The applicant resisted arrest by clenching his fists and dragging his feet as he was carried to the police truck. He refused to get inside the truck and, once inside the truck’s cage, he kicked the cage door to stop police from shutting it. Upon arrival at the Fairfield Police Station, police officers attempted to conduct a search of the applicant. The applicant threw items of clothing at the police and resisted an attempt to search him. He also spat at one of the police officers. The applicant was convicted of assault officer in execution of duty, resist officer in execution of duty and behave in offensive manner in/near public place/school. He was sentenced to a 12 month ICO.
On 15 June 2020 the applicant displayed aggressive behaviour towards the public, resulting in the attendance of the NSW Police. The applicant was aggressive towards the officer, saying “fuck you motherfuckers, suck my fucking dick”, throwing an item of clothing at one officer and directing threats towards the officers. The applicant was convicted of assault officer in execution of duty (2 counts) and resist officer in execution of duty. He was sentenced to 12 months’ imprisonment, with a non-parole period of 9 months.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community.
(a)The applicant has had a troubled life since a very young age, as is referred to in the evidence of the applicant’s mother hereunder. This may have had a significant bearing upon his past criminal conduct. Many of the offences for which the applicant was convicted were the result of excessive consumption of alcohol.
(b)The applicant committed many offences prior to sustaining a severe brain injury. The Tribunal, on the available material, is unable to discern whether the applicant’s offending since his brain injury has contributed to or compounded his offending. The applicant’s alcoholism from an early age and continued alcohol abuse has been responsible for much of the offending. Accordingly, the cause of his offending is not solely related to such injury, but result from other influences;
(c)there is no indication that the applicant has any insight into his condition which has no doubt in part resulted in the necessity to appoint a guardian in 2017.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. The Tribunal finds that there is no evidence before it to indicate that the applicant will not reoffend in the future, and the recent history and past history extending over 15 years suggests that there is a real likelihood that he will offend again in the future.
The applicant received a warning when his Visa was cancelled on 18 May 2018. However, as a result of representations to the department, such decision was revoked on 20 September 2019. He continued to offend after that date, including assaulting a police officer, resisting arrest, using offensive language in the vicinity of a public place/school. However, there is no evidence that the level of seriousness has escalated since 2019.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful (emphasis in original)’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a) a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b) the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c) rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
The conduct of the Applicant constitutes, inter alia, domestic violence. A New South Wales police facts sheet dated 19 September 2007 records that after the applicant and the victim had been in an intimate relationship for four months, a domestic dispute arose in which the applicant repeatedly punched and kicked the victim twice without provocation, resulting in police arranging for an apprehended violence order (AVO) being issued. Despite the order, the applicant made multiple phone calls and left voice messages on the victim’s mobile and work phones and was also loitering in the victim’s workplace. The applicant admitted to police that he called the victim in breach of the AVO.
On 21 January 2012 following a night of excessive drinking, the applicant attacked his partner of three months when she left him sleeping in the car. The applicant accused the partner of having an affair and threatened her. When apprehended by police, he became aggressive. The conduct of the applicant in relation to his former partner, and in relation to his aggressive conduct demonstrated at a bank, suggests that his offending is increasing in seriousness. This is despite the fact that he has appeared before the courts on frequent occasions.
On 13 March 2018 the applicant was convicted of contravene prohibition/restriction in AVO (domestic) and received an 18 month bond. The applicant had been in an eight year relationship with the victim and whilst the relationship had ended they continued to reside in the same dwelling. The victim inflicted a large red mark on the left side of the victim’s neck.
On 15 March 2018 the applicant was convicted of destroyed or damaged property, stalk/intimidate intend fear physical et cetera harm (personal) and intimidate police officer in execution of duty and received a 16 month term of imprisonment on each offence and all terms of imprisonment were suspended on entering a bond. His contravene prohibition/restriction in AVO (domestic) conviction was ‘called up’ and he received a 12 month term of imprisonment suspended on entering a 12 month bond.
On 15 July 2020 the applicant was convicted of use offensive language in/near public place/school, two counts of assault officer in execution of duty and resist officer in execution of duty and received 3 terms of imprisonment, each of 12 months duration.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs against revocation
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has no infant children. He has one adult daughter who residing in New South Wales who has a daughter now three years of age. The applicant has never met his granddaughter. Whilst the applicant’s adult daughter testified that she would like to see a relationship developed between her father and her daughter, she stated that if the applicant continued to offend, she would prefer that he had no relationship with her. The extent of the relationship between the applicant and his daughter has been confined to telephone communications and occasionally the grandchild is heard in the conversation but at that age, it is plain that no meaningful conversation could be held between the applicant and his granddaughter.
Finding on Primary Consideration C
The Tribunal considers that the best interests of the grandchild weighs slightly in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is ‘in substance … adverse to any applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Statement of applicant’s mother
The statement of the applicant’s mother records that she, her husband, the applicant and the applicant’s brother resided together in Nicaragua. The applicant’s father had been conscripted to join an army when he (the father) was approximately 21 years of age. The father was taken to the mountains and disappeared. The applicant’s mother believes that her husband was killed. The applicant’s mother and two children, one of whom was the applicant thereafter resided with her mother. A change of government occurred in Nicaragua and in the unstable environment the applicant’s mother left for Costa Rica, leaving the care of her two sons with her mother. At that time the applicant was approximately five years old and she did not see him thereafter until he arrived in Australia in 2006.
The applicant’s mother remained in a refugee camp in Costa Rica for about 12 years. During that period she formed a relationship with another man and as a result gave birth to two more children.
The applicant’s mother and her children of the later relationship came to Australia in 1987. In 1996 the applicant’s mother arranged for the applicant and his brother to come to Australia. The applicant was then approximately 21 years of age and they resided with their mother thereafter. The applicant has not seen his mother for the past three years.
The applicant spoke to his mother of violent scenes which he told her he witnessed when he was forced to join the army at about 15 years of age. The applicant’s mother noted that the applicant was drinking heavily. The applicant’s mother encouraged the applicant to consult a counsellor. The applicant denied any issue with alcohol.
In oral evidence, the applicant’s mother stated that the applicant obtained employment in Australia with a concreting firm for approximately eight months and thereafter worked as a steel fixer. He also became a labourer and worked in the construction industry as well as undertaking painting and handyman jobs. The applicant suffered a brain injury in 2017 and has not worked since that time.
The applicant’s mother states that she maintains contact by telephone with the applicant. She is in receipt of a disability support pension’s and suffers from chronic pain. Her husband is her carer and is in receipt of carers payments. She does not have the financial resources to assist in supporting the applicant.
The applicant’s mother expressed the fear that the applicant would be killed if he returned to Nicaragua, because he becomes aggressive as a result of his mental illness.
Evidence of applicant’s daughter
The applicant’s daughter states that she loves her father and respects him and will be happy to visit him once he has a place to stay. She testified that she separated from her mother when she was four years old and thereafter lived with her grandmother and two aunts, who have now passed away. The applicant’s daughter came to Australia when she was 11 years old with her father (the applicant). She stated that she would be happy to go out for coffee or dinner or to the park where they might spend time with her daughter who is now three years old. She requested the applicant be provided with a ‘fresh start’.
The applicant’s daughter stated the applicant cannot read nor write Spanish nor English. She said that he never went to school although other evidence suggests she had one year of primary school education. As a child, his family did little for him and he was often rejected from the home and forced to sleep on the streets.
In the past five years she has seen the applicant on five or six occasions when he called to visit her at work or when they met at a shopping centre. She believed it would be of advantage to the granddaughter if her father played a role in her life. This witness has never seen her father whilst he has been incarcerated. However, the daughter states that she had telephone calls with him every day whilst he was in a detention facility. She states that she would lose contact with the applicant and at one stage went to the police to find out about his whereabouts and was informed that he was in gaol. She expressed strong affection for her father.
The Tribunal was impressed by the daughter’s testimony. She has succeeded in completing her education at school and succeeded in obtaining a suitable professional qualification. The Tribunal considers that the daughter has a capacity to play a very important role in the future life of the applicant if he were to remain in Australia.
The applicant’s daughter said that they had other relatives in Nicaragua but has had no contact with them for three years and that she has had no contact with her mother since she was four years of age. She visited her grandmother in Nicaragua are for her 90th birthday in 2015. The applicant’s daughter states it would be impossible to keep contact with the father if he were returned to Nicaragua because he has no funds, no telephone and he would have no friends in Nicaragua. She claims that she talked by telephone every day to her father whilst he was at a place of detention near Sydney. However, she acknowledged that the applicant did not play any part in her life when she was at school while she was being brought up by her grandmother and grandfather until she was 22 years of age in approximately 2016.
Evidence of clinical psychologist
Professor Bruce A. Stevens, Clinical Psychologist, has provided an extensive report dated 7 January 2020 concerning the mental health of the applicant, and a subsequent report dated 17 January 2022. It should be observed that Professor Stevens has conducted his interview remotely and has never held a consultation in person with the applicant.
First psychological report
The first report was prepared following a 90 minute interview conducted by video link on 5 January 2020 and the interview was assisted by a Spanish-English interpreter. Psychological testing was not completed since the facility where the applicant was residing was placed in lockdown and Professor Stevens stated the validity of the applicant’s responses was uncertain.
According to the history provided to Professor Stevens by the applicant, the applicant’s father would encourage him to drink alcohol and he (the applicant) became an alcoholic. The applicant was brought up by his grandmother. Following his arrival in Australia the applicant has worked as a labourer performing concreting work but has not worked since 5 May 2017 following a brain injury when he was struck by motor vehicle.
Professor Stevens considered that the applicant is suffering from a major depressive disorder recurrent with moderate to severe symptoms. He states in his report dated 7 January 2020:
He met almost all the criteria for this disorder. This included being withdrawn, with restricted interests and activities, loss of appetite, sleep problems, agitation (observed in reports), low self-esteem, low energy, possible concentration difficulties, and previously attempts at suicide. Depression is a treatable condition but it needs a clear commitment to counselling and a willingness to take medication. I recommend that (the applicant] see a psychiatrist…
There were some indications that [the applicant] had additional difficulties with anxiety including panic attacks, possible trauma history with nightmares relating to experiences in Nicaragua and a brief period of auditory hallucinations…
The applicant] appears to me to have been trying to self-medicate his depression with an excessive use of alcohol. He is likely to be dependent given the estimates of alcohol intake and frequency of intoxication…
I believe that his offending behaviour is primarily due to untreated depression and an excessive alcohol use. If these are addressed I think the risk of reoffending would be reduced. In the last three or four years there has been a contribution from his brain injury with the result that he tends to be highly impulsive and has poor emotional regulation especially with anger.
[The applicant] appears to be highly motivated to engage in treatment for both depression and alcohol dependence. I believe that the depression is the primary disorder and this should be addressed as soon as possible.
Report dated 17 January 2022
This report was compiled following a telephone conference call, assisted by a Spanish – English translator. In this report the applicant, in response to questioning about his experience as a soldier in Nicaragua told Professor Stevens:
I was the witness of torture, I saw people being taken from (their) home and being beaten. I was not only witness, it happened to me. It was by the army and the police…
I remember being tortured and I was shot at.
I cried. I feel anxious. I isolate myself. I drink alcohol to forget my problems.
Professor Stevens recorded that the applicant’s memories caused him distress and that the applicant tried to avoid any images of war and continues to suffer nightmares, observing that the applicant states he suffers nightmares ‘nearly every night. I cry in the day in my dreams’. The applicant added: ‘I wake up suddenly in the night. Then I am very afraid. I started crying’.
The applicant stated he was constantly vigilant and constantly nervous; when he feels vigilant, he looks for a distraction or goes to church. The applicant denied that he was impatient and stated he felt ‘stable now. I understand my situation’.
Professor Stevens recorded that the applicant was frightened about the prospect of returning to Nicaragua stating:
I quit the army, I’m a deserter. As soon as I get there I will be killed. That is the reason I came to Australia.
He continued:
I went to different countries before coming here. The only time I went back was to get my daughter.
The applicant stated that he felt that if he returned to Nicaragua he would remember the distressing aspects of his life; that he has no one in Nicaragua and that all his life is in Australia.
Professor Stevens referred to the applicant’s history of chronic depression; and diagnosed post-traumatic stress disorder (PTSD). Professor Stevens considered that the abuse and dependence on alcohol was a major factor in his offending prior to the brain injury; and that ‘there are many factors that have exacerbated his tendency to offend’. He notes that the applicant’s continued abuse of alcohol with excessive drinking has continued and refers to the neuropsychological report prepared by Ms Massey which is considered. He states that the applicant witnessing torture would lead to PTSD and has numerous symptoms which are characteristic of PTSD including hyper arousal, frequent nightmares, generalised anxiety, hypervigilance, somatic reactions and avoidance.
In oral evidence, Professor Stevens referred to the history that both the applicant’s parents had abused alcohol and that the applicant had consumed alcohol to address depression. He considered that PTSD was treatable with medication which would have to be prescribed by a psychiatrist. However, he acknowledged that if the alcohol abuse continued, there will be no progress. Professor Stevens referred to a three month residential program conducted by the Salvation Army which he believed would assist the applicant’s resort to alcohol.
Certain incident details recorded whilst the applicant was detained were put to Professor Stevens in cross examination. Incidents of violence took place on 19 January 2019, 22 January 2019, 23 January 2019, 2 February 2019, when the applicant was recorded to have become agitated, hurled articles and a monitoring officer, damaged property and became abusive. Professor Stevens stated that there needed to be caution concerning the success of future treatment for the applicant.
Evidence of Ms Sarsha Costigan
Miss Costigan has provided statements dated 1 October 2021 and 7 January 2022 and provided oral testimony to the Tribunal. She referred to a hearing that took place on 15 May 2017 before the Guardianship Division of the NSW Civil and Administrative Tribunal concerning the continuing guardianship of the applicant. Miss Costigan states in summary:
a)that a further review of the guardianship order will take place on 22nd of January 2022;
b)that as a result of the injury on 5 May 2017 when the applicant was found unconscious at Parramatta train station, it was found that the applicant had suffered multiple skull fractures and fractures to the nose and face.
c)She states that medical imaging showed that the applicant’s brain had shifted from the midline and there was a significant bleed. Ms Costigan stated:
Dr Jeganathan of Westmead Hospital reported that [the applicant’s] presentation was that of someone who had a significant cognitive impairment.
d)the applicant’s family are all in Australia and the applicant has no remaining relatives in Nicaragua. The applicant’s daughter has advised that she resides in Sydney and has a relationship with her father: if the applicant is granted a visa, his daughter will continue to have a relationship with her father and provide him with social support and will facilitate a relationship between her father [the applicant] and her child;
e)information was received from the applicant expressed a desire to end his life on 20 September 2021;
f)the Public Guardian will ‘advocate for [the applicant] to access psychological assessment and appropriate support and treatment to address mental health concerns’. The Public Guardian understands that the support which the applicant requires is not available in Nicaragua and that if returns that country, the applicant would not receive adequate treatment and support, placing is health and well-being at risk;
g)if the applicant is permitted to remain in Australia he would be eligible to access the National Disability Insurance Scheme (NDIS) and the Public Guardian has arranged a meeting scheduled for Tuesday 8 February 2022 with NDIS concerning appropriate support for the applicant. Miss Costigan states:
Once NDIS access is granted, [the applicant] will undergo psychological, occupational therapy and behaviour support assessments. These assessments will inform funding for the types and level of support that [the applicant] will require to develop greater independence, receive support in areas where he is unable to care for himself & receive support to manage emotional and behavioural regulation to live successfully in the community.
h)Ms Costigan has described the support available by virtue of the appointment of a support coordinator; supported accommodation; community participation support; assistance with learning, education and employment; therapies and specialist behavioural intervention support. She states that the Public Guardian has broad reaching powers under the Guardianship Act 1987 (NSW) to assist the applicant which will include advocacy, accommodation, healthcare, legal decision-making, medical/dental consents and services to determine the support required and to assist him and to exchange information on his behalf.
Ms Costigan provided extensive oral evidence concerning the measures which she proposed to adopt in the event that the applicant is permitted to remain in Australia. Ms Costigan stated the applicant came under her care in approximately August 2021. She explained that the health care requirements for the applicant falls within the jurisdiction of the Public Guardian but limited to the medical requirements and the choice of the professional who would undertake such healthcare. That is, the medical treatment is not undertaken by the Public Guardian but health care of the applicant would include medical care and mental health care.
Ms Costigan stated that she was confident that the applicant would meet the requirements for the National Disability Insurance Scheme (NDIS) and that as such, the NDIS would provide psychiatric and psychological treatment and intervention. If refused by NDIS, Ms Costigan stated that she would appeal such decision, if necessary to this Tribunal in a quest to obtain such care.
Ms Costigan also explained that the mental health experts would need to apply for a Community Treatment Order for the applicant and that the Mental Health Review Tribunal would be required to assess the applicant’s condition. Miss Costigan stated that she had already liaised with the prison medical authorities (IHS) and that she had spoken with the applicant’s daughter and the National Character and Consideration Body. She stated that in October 2020 the applicant had agreed to consult with a psychiatrist, but the appointment was not kept.
Ms Costigan stated that the applicant had absconded from a detention centre. She considered the best solution was for the applicant to reside with other NDIS recipients with support workers provided by NDIS for 24 hours per day and that the public Guardian would seek funding for the care of the applicant. That is, Intensive Residential Support Accommodation was necessary and that if not provided by NDIS, she would escalate her request. She considered that the applicant required therapy such as behaviour support, psychology, occupational therapy, communication skills course and may need speech and exercise therapy and physiology. She said that in future a Specialist Intervention Behaviour Report would be prepared.
Ms Costigan believed that the applicant would require Restrictive Practices to be applied to the applicant, namely restraint. She considered that the applicant would benefit from developing skills for self-regulation and that restricted access to the community would be necessary, that is, there will be no access to the community without support. She believed that ultimately the applicant could live in a supported independent living environment. Ms Costigan stated that the Public Guardian maintained 24-hour access for emergency cases and if it was necessary to call the police or ambulance to assist the applicant, it could be arranged at short notice. She believed that the consumption of alcohol could be controlled if living in a controlled environment.
It is apparent from Ms Costigan’s evidence that the proposals for the future of the applicant are wholly dependent upon the funding of the applicant’s future needs, indefinitely, by NDIS. Further, the proposals are predicated upon the applicant accepting that he would be required to live under constraint indefinitely.
Although the Public Guardian maintains a health file on each of its protected persons, Ms Costigan considered that the principal responsibility for the health and welfare of the applicant lay with the medical facilities in the prisons and at the detention centres. She did not accept that the ultimate responsibility for the healthcare of the applicant rested with the Public Guardian. Accordingly, it is unclear which organisation would have the care of the medical and mental welfare of the applicant if he is not in detention and not in prison.
It is not apparent that the Public Guardian has arranged for a neurologist to ever examine and report on the condition of the applicant, nor have any medical reports been provided to the Public Guardian concerning the medical or mental health of the applicant.
Report of Jessica Massey
Ms Jessica Massey is a clinical neuro psychologist engaged by the NSW Government Health, Western District Local Health District at Westmead Hospital. She assessed the applicant the 27 and 28 November 2017 and provided a report dated 18th of December 2017. Her report is largely based upon medical records which, although summonsed from Westmead Hospital, were not produced to the Tribunal. Accordingly, the Tribunal is dependent upon the extracts provided by Ms Massey of medical reports.
Ms Massey referred to a report of a CT brain scan which she states indicated:
intraparenchymal haemorrhages in the frontal lobes and left frontal lobe, subdural haematomas (SDH) overlying the frontal lobes and left parietotemporal region with 4mm midline shift to the right as well as a subarachnoid haemorrhage (SAH) in the right Sylvian fissure. He also sustained fractures to bilateral nasal bones and sinuses extending to the occipital and right parietal bones. His acute admission was complicated by hyponatraemia, agitation and infection. He was transferred to the Brain Injury Unit (BIU) for specialist rehabilitation on 16 May 2017. Issues included agitation, impulsivity, disrupted sleep-wake cycle, poor balance with multiple falls and absconding.
The report states that the applicant was considered at high risk for absconding and also high risk of harm to himself and others if forced to remain in hospital against his will. The applicant was discharged from hospital on 15 July 2017 to live with his partner who was appointed his guardian for accommodation decisions.
The medical records recorded that the applicant was returned to hospital on 28 September 2017 after being found intoxicated in a garden with blood over his nose and chest and reportedly had sustained a scalp laceration and bilateral bone fractures but no acute intracranial injury was identified on the CT brain scan. The report continues:
[the applicant] has since engaged in the Centre for Addiction Medicine (CAM) to receive pharmacological treatment for alcohol use and he has continued to receive outpatient medical reviews and case management by the Westmead Brain Injury Rehabilitation Services (BIRS).
The report refers to the fact that the applicant reportedly experienced multiple traumas and violence since his childhood necessitating episode of psychiatric and psychological care. According to medical records, the medical history includes alcohol abuse and dependence, with regular alcohol intake report of the age of 13, episodes of inpatient and outpatient treatment since 2014, numerous emergency department presentations for abdominal pain in the context of alcohol ingestion dating back to at least 2009. The records also indicate a history of depression, suicide attempts, post-traumatic stress, brief drug-induced psychotic episode, liver disease, and untreated hepatitis C. There is also a suggestion that the applicant suffered a ‘minor heart attack’ at the age of 26, epilepsy and hypercholesterolaemia. Records show that in April 2017 he attended the emergency Department for facial injuries resulting from an alleged assault; September 2016 attendance for injuries due to a fall from a scaffold resulting in rib fractures; December 2013 brief admission with stabbing wounds; November 2007 headache, vomiting and diarrhoea and abdominal pain and dizziness.
Since his brain injury, it was reported that he would be able to use public transport independently. Since his injury he has had reductions in memory, ability to problem solve, increased impulsivity and anger according to the applicant’s then partner. The interview with the applicant took place over two days in sessions of 3 to 3.5 hours. Ms Massey considered that there were indications of inconsistent effort during the course of his assessment, for example, providing different answers to the same questions when the questions were repeated. She considered that the applicant’s test results were well below the normal range but he was able to demonstrate normal ability in tasks assessing world knowledge, visuospatial construction and delayed recall of verbal material that had been repeated. He also demonstrated capacity to plan and reason. He was able to attend to the second session without assistance.
Ms Massey concluded that the extent of the applicant’s brain injury is difficult to assess, being confounded by the fact of possible intoxication at the time of the injury, his background and limited literacy, potential pre-existing cognitive defects. She considered there was clear neuro imaging evidence that he sustained a significant TBI [traumatic brain injury]. His initial injury may have also been exacerbated further by additional physical trauma.
Concerning his pre-injury level of intellectual functioning:
It is difficult to accurately estimate [the applicants] pre-injury level of intellectual functioning. He presents with a number of pre-existing risks for cognitive impairment, including a potential history of complex trauma, long-standing psychiatric ill-health, significant alcohol intake since a young age, as well as possible previous brain injuries (although the latter do not appear to have been as significant as his injury on 5 May 2017). Given that he has been able to gain some employment for periods, it was expected that [the applicant) was at least in the normal (low average) range though specific cognitive deficits may have been present.
Ms Massey concluded:
Reliable participation in activities will be dependent on [the applicant’s] ability to abstain from alcohol and recommencement of pharmacological therapy appears to be important to facilitate this. Ongoing alcohol misuse and its consequences are expected to be the biggest barriers to him maintaining any regular activities. Underlying psychological issues may also compromise his participation and further investigation of this is warranted, however, [the applicant] has expressed motivation to be involved in more activities.
There is no other evidence, except for the reports of Professor Stevens, concerning the mental health of the applicant, and, as already mentioned, no neurological assessment by a neurologist has been made of the applicant’s brain injury.
The Tribunal notes that although a summons had been issued to Westmead Hospital requiring production of medical reports relating to the applicant, no records were produced. The Tribunal also notes that no neurological assessment by a qualified neurologist is available to the Tribunal. Nor is there any material placed before the Tribunal of any treatment ever prescribed for the applicant; nor of any current or ongoing treatment for his alleged mental disability.
Finding in respect of consideration D
Taking into account the applicant’s long criminal history, which predated any brain injury, and the continued offences after the brain injury, together with the applicant’s resistance to attempt to rehabilitate himself and the violence towards police officers and other officials, the Tribunal considers that the applicant poses an unacceptable risk to the community. There is no basis before the Tribunal upon which it could conclude that the offending by the applicant will not be repeated or is unlikely to be repeated. There is no evidence that the applicant has undergone rehabilitation. Whether this is due to his lack of understanding of English or his intellect or his mental state, is uncertain. In the circumstances this consideration weighs against revocation of the cancellation decision as is more fully discussed in the Observations hereunder [see para 153-162].
Other considerations
International non-refoulment obligations
The Tribunal is required to consider whether Australia’s international non-refoulment obligations arise on any of the submissions, materials or evidence before the Tribunal (See Paragraph 9.1 of the Direction No 90.)
Paragraph 9.1(1) defines a ‘non-refoulment obligation’ and the source at obligation in international law:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
Paragraph 9.1(2) requires decision-makers to carefully weigh any non-refoulment obligation against the seriousness of an applicant’s criminal offending or other serious conduct as follows:
In making a decision under section 501 or 501 CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1 (2) refers to sections 198 and 197C of the Act which relate to the removal of unlawful non-citizens from Australia. These provisions have been clarified by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). The Revised Explanatory Memorandum for such act explains the effect the amendments. In summary, the effect of the amendments to section 197C is that a non-citizen cannot be removed from Australia if there are existing protection obligations which continue to be engaged. The effect of the amendments to section 198 of the Act is that if the Minister decides that those protection obligations are no longer engaged, the non-citizen can only be removed after the expiry of any appeal, if the appeal is withdrawn, or after the Minister’s decision is affirmed following merits review.
Nevertheless, paragraph 9.1(3) of Direction No.90 confirms that even though non-citizen cannot be removed if there are existing protection obligations which continue to be engaged, this does not preclude the cancellation or refusal of their visa because the Minister can consider other options, including granting another Visa or making a residence determination. Paragraph 9.1 (3) provides:
However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
A non-citizen may also raise protection claims that give rise to non-refoulment obligations, provided the protection claims may be clear from the facts of the matter. Paragraph 9.1(4) of Direction No.90 provides:
Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
Paragraph 9.1(5) of Direction No.90 provided if a visa refusal cancellation concerns a protection visa and the noncitizen does not raise the issue of non-refoulment for consideration, non—refoulment will generally be not relevant if the person is later able to apply for a protection visa. Paragraph 9.1 (5) of Direction No. 90 provides:
International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
Since the applicant’s visa under review is not a protection visa, paragraph 9.1 (5) Of Direction No.90 is not relevant.
Applicant’s claims
The applicant’s submissions that international non-refoulement obligations are owed is as follows:[3]
41.1discrimination against persons with disabilities in Nicaragua is widespread and health services are wholly inadequate;
41.2if the applicant were to return to Nicaragua, it is unlikely that he would be employed due to his TBI and he would have little to no access to adequate medical services;
41.3as a result, he would turn to a life of crime in order to subsist and would likely come to the attention of the police; and
41.4if arrested, he may suffer severe mistreatment at the hands of the police and experience life threatening conditions while in gaol.
[3] Respondent’s Statement of Facts Issues and Contentions dated 14 January 2022.
The applicant has referred the Tribunal to the following publications and particularly to the relevant paragraphs thereof as follows:
(a) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
Article 1:
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 3:
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
(b) International Covenant on Civil and Political Rights:
Article 7:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
(c) Universal Declaration of Human Rights
Article 3:
Everyone has the right to life, liberty and security of person.
In addition, the applicant has referred the Tribunal will to the following reports:
(a) Nicaraguan 2020 Human Rights Report
The relevant portions are stated to be the Prison and Detention Centre Conditions and especially the following passage:
Conditions in jails and temporary holding cells were also harsh. Most facilities were physically decrepit and infested with vermin; had inadequate ventilation, electricity or sewage system; and lacked potable water.
The government released 8,114 prisoners between January and September [unspecified year]. Many of the prisoners were released outside of lawfully prescribed procedures and were told their release was “thanks to the president.”
Arrest Procedures and Treatment of Detainees:
The law requires police to obtain a warrant from a judicial authority prior to detaining a suspect and notify family members of the detainee’s whereabouts within 24 hours, but this rarely happened in the context of arrests related to civil unrest.
Arbitrary Arrest:
According to the NGOs and other human rights groups, arbitrary arrests occurred regularly, including in, but not limited to the context of, prodemocracy protests.
Political Prisoners and Detainees:
Human rights NGOs characterised those detained in the context of prodemocracy protests as political prisoners. The government does not recognise political prisoners as an intimate category and considers all prisoners to be common criminals. According to human rights organisations, the government continued to hold 106 political prisoners as of December, nine of them in solitary confinement.
COVID
During the COVID-19 pandemic, government officials ordered medical staff not to wear personal protective equipment. In response to this and the lack of government response to the pandemic, 25 doctors signed a letter in July requesting that doctors be issued protective equipment and not be prosecuted for using it. The doctors were fired in retaliation. In November the Citizen’s Observatory reported that approximately 100 health workers had died of the virus.
(b) a publication of the Inter—American Commission on Human Rights 2020 report on Nicaragua entitled ‘Persons Deprived of Liberty in Nicaragua in Connection with the Human Rights Crisis that Began on April 18, 2018’.
No specific passage has been referred to which directly affects the applicant but the report includes observations in relation to detentions carried out in connection with the crisis in Nicaragua; Conditions of Detention, Response of the Justice System.
The applicant submits that the conditions in Nicaragua are such that the applicant, if returned to that country, has the likelihood of being imprisoned for commission of criminal offences and if so, would suffer significant hardships as outlined in the reports.
Country information
Information provided by the applicant’s representative relating to Nicaragua indicates very different systems of detainment compared to those existing in Australia, with political prisoners detained, permitting judges to deny jury trials, politically motivated reprisals, arbitrary or unlawful interference with privacy, family, home or correspondence and questions concerning civil liberties. Freedom of speech is restricted and violent and harassment towards journalists has allegedly occurred. It is submitted that since the applicant’s mother fled that country, it is possible that reprisals might be taken against the applicant if he were returned to Nicaragua.
Observations
The term ‘non-refoulment’ is derived from Article 33 (1) of the Convention Relating to the Status of Refugees which entered into force on 22nd of April 1954, as amended by the Protocol Relating to the Status of Refugees, which came into force on 4 October 1967. Article 33 provides:
Prohibition of Expulsion or Return (‘Refoulment’)
(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.
In PlaintiffM70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulment obligations, if it was to expel or return ‘in any manner whatsoever’ a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertain whether the person is a refugee.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK 19 (2021] FCAFC 153, the Full Federal Court considered whether the Tribunal had failed to ‘grapple with and decide the question of whether breach by Australia of its international law obligations was a reason to revoke the cancellation decision’ (see decision of Kerr and Mortimer JJ).
The Tribunal is mindful that the provisions of non-refoulment must be considered both with respect to the interests of the applicant and also the interests of Australia, namely its obligations in abiding by the Convention.
However, the Tribunal finds no evidence that there is any valid basis to consider that the applicant may be at risk for any Convention reason if he returned to Nicaragua.
The possibilities referred to by the applicant must be weighed up against the reality that the applicant’s mother fled the country prior to 1996. There is no evidence that either the applicant’s mother nor the applicant is wanted for any conduct in Nicaragua. Further, the eventualities that the applicant may suffer hardship will only arise in the event that he commits criminal offences. But this is not included in the Convention reasons for not returning the applicant to his country of birth.
It should also be noted that the articles relied upon by the applicant generally relate to political dissidents or those engaged in dissent rather than common criminals. However, the gaol conditions may be similar.
Accordingly, the Tribunal gives the consideration of non-refoulment little weight.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
The applicant is of working age and has developed skills as a concrete, labourer, and steel fixer. Accordingly, there is a range of skills which he could utilise in Nicaragua.
The applicant speaks Spanish and has lived in Nicaragua until he was 21 years of age. The material indicates that for much of this time, he was able to support himself even under difficult circumstances where his family provided him with little support.
There will no doubt be a lack of family support and social support and is expected that the standard public health care may be inferior to that in Australia. However, there is no real evidence that the family, namely his mother and daughter have provided any support to the applicant in the past whilst he has been in Australia.
The applicant's traumatic brain injury may not be treated. However, the applicant will be entitled to the same treatment as any other citizen. There is no evidence, in any event, that the applicant is undergoing any treatment in Australia for his brain injury. Further, the applicant has demonstrated a resistance to undertaking courses to rehabilitate himself from his alcohol addiction.
However, despite the above considerations, the Tribunal must thoroughly consider, as an impediment to removal from Australia, the applicant’s mental health.
The applicant is unable to care for himself because of his mental ill-health. This is evident from the successive guardianship orders that have been made. His mental condition is verified by the reports of Professor Stevens.
There is no material before the Tribunal which indicates that mental health facilities in Nicaragua are available to treat illness such as that from which the applicant suffers. The evidence of Ms Costigan indicates that there are no equivalent facilities to those provided by the Public Guardian of NSW. In the circumstances, the Tribunal is left to speculate whether the applicant’s mental illness will be treated if he were returned to Nicaragua. The applicant has shown that he is has been resistant to courses to rehabilitate himself or to address his alcohol addiction. If returned to Nicaragua, it is highly likely that such conduct will continue and that he will commit offences with the result of incarceration. Such a result would condemn the applicant to a hopeless future.
In Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2985 (‘Edwards’), an application concerning an applicant suffering from schizophrenia, the Tribunal observed at [117]:
The Federal Court has made it clear that it is one of the responsibilities of a decision-maker in cases such as this to address potential health consequences of returning an applicant to a country with significantly lesser or inadequate provision of necessary health services, where the absence of which might have serious deleterious impacts.
This issue raises the complex question as was stated in Edwards at [132]:
the Tribunal must consider the balance between protecting the Australian community (and its expectations) with the fundamental human right of an individual not to be punished merely because they suffer from a mental illness, is one of the hardest tasks imposed upon a decision-maker.
In Edwards, the Tribunal continued [136-139]:
On a number of occasions it has been put to the Tribunal that where an Applicant has been clinically diagnosed with schizophrenia and where there is evidence that that mental illness was a primary cause of the offending behaviour, the Tribunal should give this serious consideration when making its final determination.
In the vast majority of cases which the Tribunal has been able to identify, where issues of schizophrenia have been considered in detail by the Tribunal and the Minister’s decision not to revoke the cancellation has been affirmed, the principal factors in the Tribunal’s determination seem to have been:
·that in terms of the protection of the Australian community, the applicant poses a high or unacceptable risk of reoffending. (Ince and Minister for Immigration and Multicultural & Indigenous Affairs [2005] AATA 92; Vazquez and Minister for Immigration, Local Government & Ethnic Affairs [1989] AATA 165; Toia and Minister for Immigration & Citizenship [2007] AATA 2078; QGMJ and Minister for Immigration & Border Protection (Migration) [2017] AATA 1537; Ausage and Minister for Immigration & Citizenship [2010] AATA 794; Bou and Minister for Immigration & Border Protection (Migration) [2017] AATA 2781);
·that a combination of the need to protect the Australian community from the risk of reoffending and the “necessary” weighing of the expectations of the Australian community against an applicant (Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2055; LKQD and Minister for Immigration and Border Protection [2018] AATA 2710; RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1000; BQNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1186; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421; Lesuma and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4587; Fonoti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 866; DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1520; VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045; MMWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 364; Aciek and Minister for Home Affairs [2018] AATA 2755; PYDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1138; Turanga and Minister for Home Affairs [2018] AATA 871; Batson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2343; FYBR and Minister for Home Affairs [2018] AATA 4281; Lansdowne and Minister for Home Affairs [2019] AATA 2448; Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4; Vural and Minister for Home Affairs [2019] AATA 579; Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1853; Hamm and Minister for Home Affairs [2018] AATA 3975; PTHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 543; Downes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1037);
·that the applicant has been given and ignored multiple official warnings about their offending (Zaoui and Minister for Immigration & Citizenship [2011] AATA 515; Ali and Minister for Immigration and Citizenship [2011] AATA 780; Lesuma and Minister for Immigration & Citizenship [2007] AATA 1731);
·that the nature of the offences were particularly serious involving serious violence or sexual violence against minors (Thompson and Minister for Immigration & Border Protection (Migration) [2017] AATA 1245; Ashnarayan and Minister for Immigration & Citizenship [2011] AATA 667).
On the other hand, where the Tribunal has decided to set aside the visa revocation it has, in all instances, judged that the applicant’s risk of reoffending was low; that the mental illness was a major contributing factor in the offending behaviour reducing the applicant’s culpability; that setting aside the revocation was necessary in order to allow the applicant to access treatment and support to deal with their mental health issues or that the impact of removal on victims or family members should offset any other considerations. (Rowe v Minister for Home Affairs [2018] AATA 2708; TVCA and Minister for Immigration & Citizenship [2013] AATA 309; re Baharestan and Department of Immigration and Citizenship [2011] 122 ALD 219; Cutugno and Minister for Immigration & Multicultural Affairs [2006] AATA 1098; Drollet and Minister for Immigration & Citizenship [2010] AATA 854; Lavea and Minister for Immigration & Citizenship [2008] AATA 966; Paenga and Minister for Immigration & Citizenship [2010] AATA 814; Ozer and Minister for Immigration & Border Protection (Migration) [2017] AATA 956; MAH and Minister for Immigration and Border Protection [2018] AATA 416; Wytrwal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5830; KMJM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2232; JDDM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2020) AATA 2472; Nguyen and Minister for Home Affairs [2018] AATA 3726; JL and Minister for Immigration and Border Protection [2018] AATA 754).
In August 2017 all Australian governments signed-off on the Fifth National Health and Suicide Prevention Plan part of which pledges to review the National Mental Health Policy 2008. Inter alia the Plan states:
“The majority of action taken to reduce stigma and discrimination against people living with mental illness has focused on people with mild to moderate mental illness, such as depression and anxiety. While there has been some improvement in community understanding of mental illness, there is still widespread misunderstanding and ignorance. Severe mental illness, such as schizophrenia and bipolar disorder, tends to be poorly understood, and attitudes towards people with severe mental illness are less positive.”
The Tribunal cannot find, in the absence of evidence, that the applicant would have any suitable treatment available to him in Nicaragua, nor that there is any facility equivalent to guardianship. In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, the Full Court, in allowing an appeal, found that there was no rational or probative evidence to support a conclusion that the applicant’s emotional and psychological hardship would be short term (see [44]). Further, the findings of fact that the applicant might experience some emotional and psychological hardship and short-term hardship if removed to New Zealand and would be capable of settling in New Zealand without undue difficulty, were findings of fact ‘simply incapable of being reasonably made by a decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker’.
A similar observation may be made in the matter now before the Tribunal: there is no evidence whatsoever of medical treatment that may be available to the applicant in Nicaragua and with the applicant’s propensity to commit crimes, it might reasonably be expected that he will be incarcerated in a prison where treatment facilities may not be available. The only material provided enables the Tribunal to draw the inference that the Nicaraguan prison system is unlikely to have such facilities. Certainly, the Tribunal would err if it found that such facilities were in fact available. Where a Tribunal makes a finding in the absence of evidence, and the finding is a critical step in its ultimate conclusion, such course may constitute jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 7; as referred to in Mukiza v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503 at [75]; see also Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at [36] – [40].
In exercising its discretion, the Tribunal must have regard to the human consequences of its findings. Such a consideration was simply stated by Allsop CJ in Hands v Minister for Immigration and Border Protection where his Honour said, at [3]:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that 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.[4]
[4] [2018] FCAFC 225 (emphasis in original).
This is a factor which must be given great weight in determining ‘the whole human consequences of the decision’.[5]
[5] Ibid [47].
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is evidence that the stranger, a train passenger who was attacked and indecently assaulted by the applicant suffered considerable distress. There is evidence that the victims of the domestic assaults were also distressed by the conduct of the applicant. There is also evidence that bank staff were fearful when the applicant became belligerent and violent in his verbal attack upon staff which resulted in the police being called to remove the applicant. However, there is no recent evidence concerning any adverse impact on any victim.
The Tribunal finds that this consideration weighs slightly in the Applicant’s favour.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 30 years. According to the medical reports, he has not made friends, possibly due to his alcoholism and, since 2017, due to his brain injury.
The applicant has familial ties only in Australia. The applicant’s mother, daughter, granddaughter and brother all reside in Australia. There is no evidence of continuous association between the applicant and his mother nor brother. The communication with his daughter appears to have been on occasional visits to a shopping centre. However, the applicant’s daughter wishes him to remain in Australia so that he can develop a relationship with his granddaughter, and the applicant’s daughter stated that she would very much like to establish a relationship with him. The applicant’s mother also supports the applicant remaining in Australia. It is an important factor that the applicant’s mother and sister have indicated their support, as the applicant has no family in Nicaragua who might be able to provide him with support. Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh heavily in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
OBSERVATIONS
The applicant’s visa was cancelled on 18 May 2018. Thereupon, the applicant made submissions to the Department. By letter dated 20 September 2019 the Department issued a Notification of decision to revoke visa cancellation under section 501CA (4) of the Migration Act 1958. The applicant continued to offend after the cancellation of his visa was revoked.
There is no material before the Tribunal concerning the applicant’s living circumstances prior to him becoming under the care of the Public Guardian and there is negligible evidence of his living conditions since that time. There is no material before the Tribunal of any government organisations in Nicaragua similar to those prevailing in Australia for assistance to persons who may need care, of the type provided by the Public Guardian.
During the 15 years that the applicant has resided in Australia however, he has committed approximately 43 offences and has made no contribution to the Australian community. His criminal offending commenced four months after his arrival. However, in exercising the discretion under section 501, the Tribunal must consider the future, rather than the past: see Buchanan J in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [192]. Further, the Minister cannot regard a visa cancellation ‘as a form of punishment for past events’: see Pigone J in Folau v Minister for Immigration and Border Protection [2016) FCA 1149 at [11].
During the Tribunal hearing, the applicant became agitated. He explained through his interpreter that the police were criminals and that he wanted to get ‘even’ with the police. He also alleged that the female superintendent of the detention centre from which he absconded had provided untruthful accounts against him.
According to the psychologist’s evidence, the applicant’s offending has probably resulted from PTSD arising from his childhood experiences in Nicaragua and horrific experiences he witnessed during his teenage years when conscripted as a soldier and possibly compounded by his 2017 brain injury. The material establishes that the applicant needs treatment.
Senior Member Chris Puplick AM encompassed the situation confronting the Tribunal in Edwards in his concluding remarks at [150] as follows:
While the offences in Egan were much more odious and serious than in this case, the principle of being able to judge whether or not the public interest is best served by allowing a person to remain and perhaps benefit from treatment and supervision or be rendered into a situation where no support might be assessable and the chances of reoffending increased, remains on foot.
Conclusions
The Tribunal finds in summary in respect of the Primary considerations under Direction 90:
(a) protection of the Australian community (8.1): weighing against revocation
(b) family violence (8.2): weighing against revocation;
(c) expectations of the Australian community – necessarily weighing against revocation
(d) best interests of minor children (8.3): weighing slightly in favour of revocation
The Public Guardian is fully aware of the applicant’s condition and it will be a matter for that agency to provide all assistance to the applicant in seeking treatment; finding a suitable residence and hopefully guiding him to be a worthwhile citizen. Whilst the applicant may offend again, and may be resistant to treatment, the Tribunal considers that the factor of the impediment to removal, although not a primary consideration, is sufficient to outweigh all other considerations. Realistically, the Tribunal considers that if the applicant were returned to Nicaragua, it would be equivalent to a condemnation of his life.
The Primary Considerations contained in Direction 90 should generally be given greater weight than other considerations: however, circumstances may arise in which the Tribunal concludes that the specific circumstances of another consideration should be given weight equivalent to or greater than a primary consideration: see FYBR v Minister for Home Affairs [2019] FCAFC 185; Sulieman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28]; see also Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57].
Due to the applicant’s mental health, and his Guardianship, the Tribunal finds that the impediment to removal prevails over all other considerations. Accordingly, there is ‘another reason’ under section 501CA (4)(b)(ii) why the decision to cancel a visa should be revoked.
DECISION
The Tribunal is satisfied that there is another reason why the Minister’ decision to cancel the applicant’s visa should be revoked. As such the decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s Class BO Subclass 115 – Remaining Relative Visa.
I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
.....................................[sgd]...................................
Associate
Dated: 22 February 2022
Dates of hearing: 20 & 21 January 2022 Counsel for the Applicant: Mr L. Karp Solicitors for the Applicant: Legal Aid NSW Solicitors for the Respondent: Mr K. Sypott, Australian Government Solicitor
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