NDBR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4042
•28 November 2022
NDBR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4042 (28 November 2022)
Division:GENERAL DIVISION
File Number: 2018/7607
Re:NDBR
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Britten-Jones
Date:28 November 2022
Place:Melbourne
The Tribunal affirms the decision under review.
....[sgd]....................................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – refusal to grant visa on character grounds – whether discretion to refuse to grant a visa should be exercised – applicant committed a crime of a sexual nature against a child – applicant has been in detention for eight and a half years – primary considerations of protection and expectations of the Australian community – strong countervailing consideration of indefinite detention – weighing up all considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, Report (25 January 2022)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction no. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)REASONS FOR DECISION
Deputy President Britten-Jones
28 November 2022
Introduction
This case illustrates the difficulty decision makers have when weighing up factors for and against making a decision that impacts upon a person’s liberty. This case requires weighing up, amongst other things, the prospect of further detention of an indefinite length after the applicant has already spent eight and a half years in detention against the fact that the applicant committed a most awful crime of a sexual nature against a 14 year boy in a public place. If the applicant is successful, he will be released from detention (surely a good thing) and returned to the community where there is a real likelihood that he will commit further sexual offences (surely a bad thing). I have decided after considering all the relevant factors that the protection and expectations of the Australian community prevail over the other countervailing considerations. However, it must be said that more needs to be done to ensure that non-citizens exercising their lawful rights are not kept in detention for lengthy periods of time.
This hearing arises from orders made by the Full Federal Court on 20 September 2021[1] which set aside the decision of the Tribunal made on 8 March 2019 to affirm an earlier decision to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth).[2]
[1] NDBR v Minister for Home Affairs [2021] FCAFC 170.
[2] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia on 19 June 2012 as an illegal maritime arrival and was placed into detention. On 25 October 2012, the applicant was granted a Bridging E (Class WE) visa and released into the community.
On 12 November 2012, he made an application to the Department for a Protection (Class XA) visa.
On 1 February 2013, the applicant was granted a further Bridging E (Class WE) visa.
On 9 September 2013, the applicant was charged with common law assault and indecent treatment of a child under 16, which arose from an incident on 26 June 2013.
A delegate refused to grant the applicant the Protection (Class XA) visa on 27 September 2013. The applicant was placed into immigration detention on 11 April 2014. Upon seeking review of the refusal decision in the then Refugee Review Tribunal, the Tribunal remitted the matter to the Department for reconsideration on 19 September 2014 with a direction that the applicant satisfied s 36(2)(a) and is therefore a person to whom Australia has protection obligations.
On 6 May 2015, the applicant was convicted by a jury in the District Court of Queensland of one count of indecent treatment of a child. The applicant appealed. On 1 October 2015, the Queensland Court of Appeal set aside his conviction and ordered a retrial. A jury again found the applicant guilty of the charge on 25 May 2016 and he was sentenced to be of good behaviour for one year.
In or around June 2016, the Commonwealth and Immigration Ombudsman (Ombudsman) provided a report[3] regarding the ongoing detention of the applicant. The report noted with respect to the applicant’s health and welfare that the applicant had received specialist counselling and was monitored by the mental health team after he presented with behavioural concerns, low mood and aggression related to his detention. The applicant was placed on a behavioural management plan on two occasions following incidents of aggressive and abusive behaviour. In May 2015, the International Health and Medical Services (IHMS) advised that he was identified as vulnerable due to his criminal history and was at high risk of being assaulted by other detainees. The Ombudsman noted that the applicant had been held in restricted detention for a cumulative period of over two and a half years from first being detained on 19 June 2012. The Ombudsman recommended that priority is given to exploring options to enable the resolution of the applicant’s immigration status.
[3] Exhibit 1, G documents page 193 G37.
On 6 July 2016, the applicant was sent a notice of intention to consider refusal of the grant of a Temporary Protection (Class XD) visa under s 501(1). The notice stated that the Department held information about his criminal history which indicated that he may not pass the character test by virtue of s 501(6)(e).
On 8 December 2016, the Minister for Immigration and Border Protection (Minister) considered the matter personally and refused to grant a visa to the applicant. On 16 May 2017, the Federal Court quashed the Minister’s decision and remitted the matter to the Department for reconsideration.
On 13 November 2017, the applicant was involved in an incident at the Christmas Island detention centre as a result of which he was charged with one count of causing harm to a Commonwealth public official. He pleaded not guilty and stood trial in the Perth Magistrates Court. He was found guilty on 7 November 2018. His appeal against that conviction was unsuccessful.
The Asylum Seeker Resource Centre provided submissions dated 22 December 2017 on behalf of the applicant in response to a notice of intention to consider refusal of his visa application. On 7 December 2018, a delegate of the Minister for Home Affairs refused to grant the visa under s 501(1).
On 21 December 2018, the applicant sought review of the delegate’s decision in this Tribunal. On 8 March 2019, the Tribunal affirmed the delegate’s decision. On 20 September 2021, the full Federal Court quashed the Tribunal’s decision and remitted the matter for reconsideration.
The matter was listed to be reheard by the Tribunal on 2 May 2022. On that day the applicant was represented and called two witnesses before giving evidence himself. On 3 May 2022, the cross examination of the applicant was to continue but a number of issues arose. First, the video link to Christmas Island was not operating. Second, the respondent advised that he wished to rely upon further detention records which would be provided shortly. Third, the applicant’s representative applied for an adjournment in order to obtain a medical report relating to a head injury sustained by the applicant in detention on 9 January 2021. The applicant’s representative referred to earlier medical reports of ‘impaired cognitive function’ and expressed concern that answers given by the applicant during cross examination may have been affected by that impairment. These issues together resulted in the hearing being adjourned.
On 7 July 2022, the respondent lodged supplementary G documents comprising detention incident reports and complaints.
Dr Karen Scally, a clinical neuropsychologist, conducted a joint forensic psychological and neuropsychological assessment of the applicant and provided a report dated 10 November 2022. That report raised her concerns about the applicant’s ability to comprehend questions put to him during complicated proceedings such as this matter. She considered that his condition would likely impact his ability to provide accurate responses to the Tribunal. She recommended for the hearing that questions be put to the applicant in very short simple sentences of no more than 10 words and that an interpreter be instructed to keep translations in that format.
At a directions hearing on 18 November 2022, convened for the purpose of considering the report, the applicant’s representative conveyed his instructions that the applicant wished to proceed with the hearing and to adopt the recommendations made by Dr Scally. I gave leave to the applicant’s representatives to put further questions in examination in chief to the applicant and I indicated that any further cross examination should comply with Dr Scally’s recommendations and that advance notice of topics of cross examination and any page references should be given.
The LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
…(6) For the purposes of this section, a person does not pass the character test if:
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
The applicant concedes that he does not pass the character test due to his conviction for the indecent treatment of a child offence and that the only issue for the Tribunal is whether to exercise a discretion to refuse to grant the visa having regard to the principles and considerations in Direction 90.[4]
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to refuse a non-citizen’s visa are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other 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 making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.[5]
[5] Direction 90 at paragraph 8.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but 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:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.[6]
[6] Direction 90 at paragraph 9.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[7]
CONSIDERATION
[7] Direction 90 at paragraph 7.
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. I give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant has been convicted of two offences since he arrived in Australia in June 2012. The first offence was the indecent treatment of a child. The second offence of causing harm to a Commonwealth public official occurred whilst he was in detention. The first offence has been the main focus of these proceedings, but I note that the second offence, because it was committed whilst in detention, is considered by the Australian government and community to be serious.[8]
[8] Direction 90 at 8.1.1(1)(b)(iv).
On 26 June 2013, the applicant was in the Ipswich City Library. The Judge who sentenced the applicant at his first trial described the offending as follows:
The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were in the vicinity. You shook hands with him and spoke to him and you touched your own crotch area at that time. You then left him, but returned a short time later.
At that time, you came up behind him and pressed yourself against him, and you placed your hands around his waist. You leaned your head into his neck. He thought you were trying to kiss him. And when he moved forward, you moved forward with him. He was, however, able to break away and leave the area quite quickly. It was, therefore, a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.[9]
[9] G documents, G9 page 80.
In relation to the sentence that was imposed on the applicant, the Judge notedthat:
If you had not served that time in detention, then the sentence that I would impose on you would be a sentence of imprisonment of nine months. The appropriate sentence, though, and the one that I will impose on you is that you be released upon you entering into an undertaking that you be of good behaviour for two years.[10]
[10] G documents, G9 page 81.
In sentencing the applicant at the retrial, the Judge observed:
On the last occasion that her Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate.[11]
[11] G documents, G12 page 99.
The applicant has been convicted of a sexually based offence involving a child. Such an offence is viewed very seriously by the Australian Government and community. The child was in a public library which should be a safe and secure environment of learning and reflection. The seriousness of the crime is reflected by the trial Judge’s statement that but for his period in detention he would have been sentenced to imprisonment for 9 months.
I take into account that this is the only offence of a sexual type committed by the applicant. There is, however, a second conviction. On 13 November 2017, the applicant was involved in an incident at the detention centre as a result of which he was charged with one count of causing harm to a Commonwealth public official.
The applicant pleaded not guilty to that charge. On 7 November 2018, the applicant stood trial in the Perth Magistrates Court. On the same day he was found guilty of the charge. His appeal from that decision was dismissed. The reasons on the appeal[12] refer to the circumstances of the offending as follows:
[12] Exhibit 12.
[8] The 'Serco' group of companies is a well-known facility services management provider. Serco provides facility management services at the Christmas Island Detention Centre. Lewis Taikato was a Serco officer working at the detention centre in November 2017. On 13 November 2017, Mr Taikato told [the applicant] that he was to be relocated from one compound to another within the detention centre. [The applicant] expressed his opposition to the move. Mr Taikato then raised [the applicant]'s objection with his supervisor. Mr Taikato was told that the decision was final, and that [the applicant] was to be moved.
[9] Mr Taikato then went to inform [the applicant] of the final decision that he was to be moved. He went with another officer and four members of what was called the 'Emergency Response Team' (ERT) as Mr Taikato was concerned at the prospect of some difficulty, because, correctly as it happens, he thought [the applicant] might not respond well to the news. At that stage, [the applicant] was sitting in the dining area at a table next to another official.
[10] The learned magistrate heard evidence from the Serco officers involved and an officer of the Australian Federal Police; seven witnesses in total. The learned magistrate also reviewed CCTV footage of the incident and body-cam footage taken in the immediate aftermath of the incident. [The applicant] did not give evidence. However, his record of interview conducted through an interpreter was tendered in evidence.
[11] Having reviewed and considered the evidence, the learned magistrate found that as Mr Taikato was conveying the message to [the applicant], he was cut off mid‑sentence by [the applicant] who launched himself out of his seat and punched Mr Taikato in the face.
[12] In his record of interview, [the applicant] said he reacted to a threat of attack that he perceived by the group of Serco officers and the uniformed and gloved members of the ERT. …
[13] … [the applicant] defended the charge on the basis that he was acting in self-defence to a perceived threat.
[14] After hearing the evidence and reviewing the CCTV and body‑cam footage the learned magistrate's express findings included the following:
(a) the group of Serco officers approached [the applicant] in a manner that was entirely innocuous;
(b) the learned magistrate accepted Mr Taikato's denials that he approached [the applicant] in an aggressive way;
(c) the learned magistrate accepted Mr Taikato's denials that he said words to the effect of 'fucking [applicant]';
(d) there was no evidence from any other witness (that is, apart from the version in [the applicant]'s interview which the learned magistrate rejected) that any of the officials approached [the applicant] in an aggressive or untoward manner, or that [the applicant] was addressed in a discourteous manner;
(e) the group approached [the applicant] in a perfectly innocuous fashion and there was nothing in the way they approached or their body language which suggested anything untoward;
(f) the suggestion that the group approached aggressively or spoke discourteously or formed a perimeter around [the applicant], was incorrect;
(g) [the applicant] simply reacted violently to receiving the news of his move, and did so out of anger;
(h) all the Serco officers were in uniform, and [the applicant] must have been aware that they were there to convey to him the decision that he was required to move;
(i) it must have been apparent to [the applicant] that the Serco officers approached him to perform the duty of moving detainees;
(j) [the applicant] was aware that the officers were there to escort him from one place to another and that was their duty that they were entitled and authorised to discharge;
(k) [the applicant]'s version of events was not tenable;
(l) [the applicant] was aware that the officers were there to move him and that was a duty they were authorised to perform;
(m) [the applicant]'s account of what happened was not given on oath, not able to be tested in cross-examination and was in any event, an extremely vague account as to why he felt he was under attack or threatened;
(n) there were no grounds for [the applicant] to have the belief that he 'purported' to have held;
(o) [the applicant]'s account of the incident was 'wholly implausible';
(p) the suggestion that [the applicant] was going to be forcibly moved whether he cooperated or not was 'untenable'; and
(q) [the applicant]'s record of interview where it was suggested that he thought he was under attack, was self-serving and without foundation.
This violent attack on a public official is viewed very seriously by the Australian Government and community, in particular because it was committed against a public official in the course of the performance of his duties[13] and whilst he was in detention.[14] The officer acted appropriately and never aggressively or in an untoward manner, as alleged by the applicant.
[13] Direction 90 at 8.1.1(1)(b)(ii).
[14] Direction 90 at 8.1.1(1)(b)(iv).
There are no other convictions for violent behaviour but there are numerous reports of other incidents in detention when the applicant has been violent or abusive to the detention officers.
The applicant was cross examined with respect to nine incidents reported in detention.
The first incident occurred on 4 February 2016 when it was reported that the applicant raised his right fist and motioned to punch the detention officer in the back of the head and then engaged in foul and abusive language. The applicant said it was not true and that he did not recall the incident.
The second incident was on 14 February 2016 involving an iPhone. It was reported that the applicant became abusive and aggressive towards the detention officers and that he raised his fist and said “I will smash you”. The applicant remembered the incident and said that the phone had been snatched away from him and that he was not happy but that he was not abusive. The applicant said that it was the detention officers who treated the detainees inhumanely and committed atrocities towards them. He said that since 2018 the behaviour of the detention officers has been less abusive.
The third incident was on 18 March 2017 when it was reported that the applicant pushed another detainee against the wall and then raised his hand as if to strike him in the face. The applicant did not recall anything about this incident.
The fourth incident was on 26 April 2017 and involved a fight over a computer. It was reported that the applicant was recorded by CCTV footage assaulting another detainee by pushing him. The applicant said that he could not remember but that small things happen between detainees.
I interpose to note that the incident for which he was charged occurred on 13 November 2017.
The fifth incident was on 1 December 2017 when it was reported that the applicant became increasingly aggressive and vocal when being moved within the detention centre and that he struck a detention officer to the left cheek area with a closed fist with his right extended arm. The applicant said that it was ‘the opposite’ and that he was defending himself and that he was grabbed and suffered bleeding to the mouth.
The sixth incident was also on 1 December 2017 when it was reported that the applicant lent forward and slapped a detention officer in the back of the head swearing and calling him a “dog”. The applicant was then restrained but later tried to jump up and head-butt another detention officer. The applicant remembered this incident and said that the detention officers had taken him for the purpose of bashing him up. The applicant said that he was sexually assaulted and hurt by them.
The seventh incident was on 23 February 2018 and involved a female detention officer. It was reported that the applicant used foul and abusive language and said “you’re lucky you’re a woman”. Another detention officer stepped in and the applicant reacted by raising his right fist and saying “I will punch you in the face – fuck off”. The applicant denied the conduct.
The eighth incident was on 30 March 2021 when the applicant was being moved within the detention centre. It was reported that the applicant refused and became non-compliant and was stabilised by the use of mechanical restraints. When he was brought to his feet the applicant moved forward and kicked the detention officer in the groin and attempted to spit at him. The applicant said that the incident happened and that he was bashed up and then restrained. He said that he did not kick the officer.
The ninth incident was on 22 February 2022 when it was reported that the applicant kicked at the shield held by a detention officer whilst walking backwards down a stairwell and that due to this kick the detention officer landed in an awkward position and twisted his ankle. The applicant said it was an act of self-defence and that the detention officers twisted his finger and came after him.
With respect to the incident on 30 March 2021 the applicant was taken to the IHMS records in re-examination which recorded that the applicant had assaulted a detention officer and was taken by force into an isolated room. The applicant said that he remained in a locked room on the floor vomiting for about four hours until permission was given for medical treatment to be provided.
With respect to the incident on 1 December 2017 the applicant was taken to the IHMS records for 5 December 2017 which reported an allegation by the applicant that he was punched by a detention officer on 1 December 2017. The medical notes record no apparent wounds and minimal swelling where the applicant indicated he was hit and that the applicant had reduced rotation of his neck and abrasions to his wrist from the handcuffs. The injuries were said to not have been serious.
The applicant submitted that little weight should be given to these incident reports because the authors of them and detention officers involved were not made available for cross examination. I accept that less weight should be given to them. Further, the applicant submitted that insufficient advance notice was given with respect to the particular incidents which were to be the subject of cross examination. The applicant said that this was contrary to the recommendations made by Dr Scally. I accept that the respondent failed to comply with the recommendations in that regard and failed with respect to the duty to act as a model litigant, but the applicant told the Tribunal that he had been informed about these incidents before and, whilst he was unable to remember some of them, he was able to give positive evidence about others of them. I note that the incident on 30 March 2021 appears to have been the subject of numerous discussions reported in a “resolution letter” dated 14 April 2021 from the general manager at Christmas Island which refers to CCTV footage having being reviewed and a finding that there was no evidence to indicate that his claims were substantiated.
I accept the applicant’s submission insofar as care needs to be taken when making findings of fact based upon incident reports from detention. However, the Tribunal has the benefit of the findings made by the Magistrate with respect to the proved offence on 13 November 2017. That incident involved violence and abuse directed towards detention officers and false accusations that the applicant was the victim and was acting in self-defence. The incident reports record that the applicant acted violently on other occasions and claimed self-defence. I consider that there is sufficient evidence to find that the applicant has engaged in violent and abusive behaviour and made false accusations of self-defence on numerous occasions whilst in detention. The evidence from the applicant that he was “bashed up” or physically or sexually assaulted by detention officers is not corroborated by other evidence. It is likely that those allegations are untrue and were made up by the applicant to excuse his own behaviour.
I give less weight to these incidents in detention because they were not the subject of a conviction and because it is a very stressful environment to which the applicant has been subjected for approximately eight and a half years. The applicant was particularly vulnerable because of his history of sexual misconduct towards a child which put him at risk from other detainees. The applicant has not coped well in detention. Dr Scally reported that he was experiencing significant distress and that he has limited coping skills to manage this stress. He said that the applicant’s post-traumatic stress disorder (PTSD) and the detention environment exacerbates his mental health symptoms. He also noted that the applicant is highly reactive to being touched and tends to perceive such encounters as attacks, likely due to his PTSD symptoms which stem from the history of his persecution and exposure to multiple sources of trauma. Nevertheless, it is expected that detainees behave and respect those officers engaged as public officials in detention.
It was accepted as far back as June 2016 by the Ombudsman that the applicant’s behavioural concerns, low mood and aggression were related to his detention. It is very unfortunate that the concerns about ongoing detention expressed by the Ombudsman have not been acted upon and that six years after those concerns were formally expressed in a report the applicant remains in detention.
In conclusion with respect to the nature and seriousness of the applicant’s conduct, I find that his behaviour is most serious. The sexual offence of a 14 year old boy is deplorable and it is of great concern that he committed a further offence by violently attacking a public official whilst in detention. His other conduct in detention is also of concern and shows a disrespect for those detention officers who were subjected to abuse and violence whilst carrying out their duties as public officials.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[15] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. Direction 90 at paragraph 8.1.2(1) provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
[15] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be extremely serious because of the inherent nature of offending of a sexual nature towards a child. In addition, there is the harm to a public official acting appropriately in the course of duties.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The respondent contends that there is a real risk of the applicant re-offending. Dr Scally’s opinion is that he is in the moderate to low category in terms of risk of re-offending. Dr Scally conducted a thorough psychological and neuropsychological assessment and I give her findings significant weight because it is expert evidence from an independent and authoritative source.[16] Relevant to remorse and insight into his sexual offending, Dr Scally said as follows:
[27] When questioned about the conviction for indecent treatment of a child under 16 [the applicant] appeared to lack insight into his offending behaviour, conceding only that he perhaps accidentally touched the boy stating “maybe accidentally harm a kid, never harm a human, and can’t do such a thing with him. Maybe I touch him, but I haven’t noticed that… If that happened by mistake, I apologise to the boy and family.” [The applicant] remained quite defensive and fixated on his own suffering in his current circumstances.
…
[29] … At the interview it was revealed that [the applicant] had not disclosed his conviction for indecent treatment of a child under 16 to any of his family members or friends who shared his religious, ethnic, or national background but had shared this information with his former girlfriend who was from a different cultural background. When asked why he stated that his family and his kids would suffer from their association with him.
…
[75] … At the interview [the applicant] demonstrated difficulty with insight into his offending behaviour, such that he was unable to make a clear admission of guilt or accept full responsibility for his actions. He acknowledged that he may have accidentally touched victim and that this may have caused the victim harm. He expressed remorse for harm caused to the victim and the victim’s family because of his behaviour though he expressed great concern for his own predicament.… By the last session he displayed considerable shame and admitted to feeling both mentally disturbed by the incident and at times hating himself.… It appears that he is now able to admit to committing the act, albeit accidentally and expressing remorse and considerable shame the latter of which is strongly influenced by his religion and culture. A level of denial is still present and further offence-based therapy would be needed for him to develop insight into his own risk factors for further offending.
[16] Direction 90 at 7(1).
There is past evidence of denial and therefore a lack of remorse. In 2016, the applicant wrote that he got set up and that he was innocent. At the first Tribunal hearing on 28 February 2019 he said “I never done such thing in that library … I never been involved in such thing. I will never even think of such thing, like, to do to the minors”.[17] The respondent also relied upon the applicant’s evidence to the Tribunal on 2 May 2022 but I give no weight to the applicant’s evidence on the topic of his past offending because of the applicant’s cognitive impairment suffered in January 2021 and the concerns in that regard expressed by Dr Scally.
[17] Exhibit 2, TB2 p 69 transcript lines 10 to 18.
In my view, the most reliable evidence as to insight comes from Dr Scally who noted that the applicant appeared to lack insight into his offending behaviour and was unable to make a clear admission of guilt or accept full responsibility for his actions. It appears that the applicant made some progress in the sense of his understanding and insight into his wrongful behaviour during the time he spent with Dr Scally in September, October and November 2022; but I am required to consider the evidence of rehabilitation as at the time of my decision.[18] In this regard, Dr Scally said that a level of denial was still present and that further therapy would be needed for him to develop insight into his own risk factors for further offending.
[18] Direction 90 at 8.1.2(2)(b)(ii).
The applicant has not undertaken the necessary “offence-based therapy”. He has engaged in some rehabilitative courses which are helpful on their own and indicate a desire to continue to engage in the rehabilitative process. The applicant’s self-improvement courses from 2016 to 2020[19] and his recent engagement whilst in detention in courses of anger management and behaviour management[20] are evidence of his continuing progress of rehabilitation. However, I am not satisfied that he is sufficiently rehabilitated. When asked in cross examination about the availability of sex offender courses in detention, the applicant said that he had declined to ask because of the negativity associated with it. This is consistent with what Dr Scally reported.[21] My conclusion is that the applicant still remains a real risk to the community. I consider that a moderate to low risk of further sexual misconduct of a child is an unacceptable risk.
[19] Exhibit 7, applicant statutory declaration.
[20] Exhibit 10.
[21] Exhibit 8 at [29].
I take into account the applicant’s statutory declaration given on 11 April 2022 in which he acknowledged the seriousness of the conviction of an offence of indecent treatment of a child and said that he felt ashamed and guilty about how he treated the victim. He acknowledged the pain and suffering of the parents of the child. He said that he would like to return to working in the community so that he could contribute to society and provide his family with financial support. He wants to undergo further education and start his own business. He has the support of a friend who came with him from Pakistan. The friend provided a positive statutory declaration about the applicant and said that he would support him including through accommodation and employment.[22] The applicant also has support from the director of the Islamic Shia Council of Queensland who also provided a positive statutory declaration in favour of the applicant. This promised support would assist the applicant to transition from life in detention to life in the community were he to be released.
[22] Exhibit 6, statutory declaration.
Conclusion as to protection of the Australian community
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[23] The applicant engaged in a serious sexual offence against a child and has failed to satisfy me that he is sufficiently rehabilitated. The risk of his re-offending is unacceptable.
[23] Direction 90 at 8.1(1).
I take into account that the applicant has only one conviction for sexual offending but that it occurred soon after he entered the community in Australia. The violent offence against the detention officer is also serious, although to a lesser degree and the difficulties faced by the applicant in detention need to be taken into account. My conclusion as to the protection of the Australian community is that it is a factor that weighs very heavily in favour of refusing to grant the visa.
Family violence – 8.2 of Direction 90
The applicant has not engaged in family violence or any other type of violence and hence this consideration is not relevant to the decision-making task.
Best interests of minor children – 8.3 of Direction 90
There are no minor children of relevance to this factor.
Expectations of the Australian community – 8.4 of Direction 90
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 to not allow such a non-citizen to enter or remain in Australia.[24]
[24] Direction 90 at 8.4(1).
In addition, visa refusal may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa.[25] In particular, the Australian community expects that the Australian government would refuse a visa to a person who committed a serious crime of a sexual nature against a child[26] and who committed a crime against a government official whilst performing duties.[27] The fact that the applicant has committed these two offences specifically mentioned in Direction 90 means very significant weight should be given to the expectations of the Australian community.
[25] Direction 90 at 8.4(2).
[26] Direction 90 at 8.4(2)(c).
[27] Direction 90 at 8.4(2)(d).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[28] remain apposite to the expectations of the Australian community under Direction 90:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[28] (2019) 272 FCR 454; [2019] FCAFC 185.
I find that the character concerns arising from the applicant’s criminal conduct and his behaviour in detention are such that the Australian community would not expect the applicant to be granted a visa. I note that this expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.[29] However, in this case there is a very real risk that the applicant will cause physical harm to the Australian community if he is released. My conclusion as to the expectations of the Australian community is that it is a factor that weighs very heavily in favour of refusing to grant the visa.
[29] Direction 90 at 5.2(3).
Other considerations
In deciding whether to grant the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[30]
[30] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
The applicant has articulated a risk of harm if returned to Pakistan. I am required to give separate consideration to this claim and I do so below under the heading of non-refoulement obligations.
International non-refoulement obligations – 9.1 of Direction 90
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.[31]
[31] Direction 90 at 9.1(1).
As set out in the background section above, the applicant made an application for a protection visa not long after his arrival in Australia. On review of the decision refusing that visa, the Refugee Review Tribunal considered his claims including a fear of being killed by the Taliban if returned to Pakistan. The Refugee Review Tribunal concluded that the applicant had a well-founded fear of persecution and that he was a person in respect of whom Australia had protection obligations.[32] The applicant said in his statutory declaration dated 11 April 2022 that in early 2012 he became fearful for his life after bomb blasts directed against the Shia community. He took two badly injured persons to the hospital. I have considered recent country information[33] which confirms that there has been no relevant change in the situation in Pakistan. In fact, the situation appears to have worsened. I note paragraph 9.1(6) of Direction 90 provides that it may not be possible at the section 501 stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. In this case, those issues were thoroughly considered by the Refugee Review Tribunal in 2014 and having considered those reasons and the current country information I am prepared to accept the applicant’s contention that he is still owed non-refoulement obligations.
[32] Refugee Review Tribunal decision dated 19 September 2014 at [58] and [59], Exhibit 1, page 125.
[33] Exhibit 3, Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, Report (25 January 2022).
Further, with respect to risk of harm, I note paragraph 9.1(6) of Direction 90 provides that a decision-maker making a decision under s 501 is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis. I consider it is appropriate in this case to assume in the applicant’s favour that he will face harm as claimed if he is returned to Pakistan.
The consequences of indefinite detention
I now have regard to the legal consequences of a decision to refuse the applicant’s visa,[34] bearing in mind my determination that the applicant is a person to whom non-refoulement obligations are owed.
[34] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
Sections 197C is relevant:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
The respondent acknowledges that a protection finding has been made by the Refugee Review Tribunal for the purposes of s 197C(3). Further, none of the circumstances in s 197C(3)(c) have arisen. It follows that unless the applicant requests in writing to be removed to Pakistan, he will remain in detention if I affirm the decision under review.
I refer to WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, in which Kenny and Mortimer JJ made the following comments which are apposite to this case:[35]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[35] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
There was no evidence before the Tribunal that consideration has been given to removal to another country, nor is there any realistic prospect that the Minister would exercise a personal discretion in favour of the applicant in circumstances where the applicant has been refused a visa and the respondent contends that there is an unacceptable risk to the Australian community that the applicant will engage in serious criminal conduct in the future.[36] I note that the applicant has been in detention since April 2014 and the Minister has not intervened to release him.
[36] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [56].
Given the length of time already spent in detention and the adverse impact on his mental health, further detention of an indefinite nature would have severe consequences adverse to the applicant.
The applicant raised a separate contention that I should take into account, as a legal consequence, that indefinite detention breaches Australia’s international legal obligations. I reject this contention for the reasons given by Jagot J (as she then was) in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878:
[51] … the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.
Conclusion as to Consequences
In considering all of the circumstances referred to above, I conclude that the most likely consequence of a decision to refuse the visa would be indefinite detention. Given that the applicant has already spent eight and a half years in detention and because he does not cope well with detention and has mental health concerns, this consequence would be seriously detrimental to the applicant. Consequently, I give it significant weight.
Consideration of Direction 90 – 9.1(2) and (3)
Direction 90 at 9.1(2) and 9.1(3) states:
(2) In making a decision under section 501 or 501CA, 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 noncitizens 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.
(3) 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 noncitizen 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 noncitizen, or alternatively, consider exercising his/her personal discretion under section 197AB 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.
I am required to weigh the existence of non-refoulement obligations against the seriousness of the criminal offending. Paragraph 9.1(3) of Direction 90 makes it clear that the existence of a non-refoulement obligation does not preclude refusal of the visa. As part of the ultimate weighing up exercise required by Direction 90, it may be appropriate to refuse a visa because the existence of the non-refoulement obligation is outweighed by the seriousness of the applicant’s criminal offending, seen in the context of a proper consideration of all of the relevant factors in accordance with Direction 90. The existence of a non-refoulement obligation is not always determinative of the issue as to whether to refuse a visa. This is particularly so when s 197C applies such that the applicant will not be returned to Pakistan and Australia will therefore not breach its non-refoulement obligations. However, non-refoulement is an “other consideration” which must be taken into account by a decision maker. I will return to this weighing up exercise later in my reasons.
Conclusion as to non-refoulement under 9.1 of Direction 90
My findings that the applicant is owed non-refoulement obligations and would be at risk of harm if returned to Pakistan weigh in favour of setting aside the decision to refuse a visa. However, minimal weight should be given to these factors because, if the decision is affirmed, the applicant will likely face indefinite detention and not a return to Pakistan. There remains the possibility that the applicant would be returned if he requested that outcome. The applicant would face the awful choice of having to remain in detention or being returned to a country where he fears for his life. I should not speculate about what the applicant may do but, because a return to Pakistan remains a possibility, I give risk of harm and non-refoulement obligations some limited weight. It follows that this is a factor that weighs in favour of setting aside the decision to refuse the visa.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Pakistan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The most significant impediments are those which arose for consideration by the Refugee Review Tribunal and which remain relevant today. As a Shia Muslim and an educated person, he would face discrimination and danger from the Taliban. The applicant has numerous health issues summarised in an IHMS report dated 20 October 2021 which would make matters worse for him. In particular, his situation would be exacerbated by his mental health condition that is characterised by anxiety. The DFAT Country Information Report dated 22 January 2022 says that options for treatment of mental health disorders are limited.
The applicant would face very significant impediments which would prevent him from establishing himself and maintaining basic living standards if returned to Pakistan. However, I do not that his immediate family remains in Pakistan and that some social and family support would likely be available. This is a factor that weighs in favour of setting aside the visa refusal decision but I give it limited weight in circumstances where it is unlikely that he will be returned to Pakistan.
Impact on victims – 9.3 of Direction 90
There was no evidence in relation to the impact on victims of a decision to grant the visa. Consequently, this consideration neither weighs for nor against the granting of a visa.
Links to the Australian community – 9.4 of Direction 90
The applicant has limited links to the Australian community because he has only been in the community from October 2012 to April 2014. He committed his sexual offence on 26 June 2013 which was soon after his arrival.
When the applicant fled from Pakistan, he left behind his two wives, two sons and his elderly parents. They remain in Pakistan. The applicant does have some family in Australia but he did not refer to them in his statutory declaration dated 11 April 2022. There was a reference to a cousin living in Sydney and some people from his village during the first hearing before the Tribunal.[37] I conclude that there are no immediate family members in Australia.
[37] Exhibit 2, TB2 at page 56.
In terms of other ties to the Australian community, the applicant was employed in various capacities including a cleaner, labourer and security guard upon his release from detention in October 2012. Between November 2013 and April 2014 he worked in an abattoir. When not working he was involved with the Shia community. He took free English classes and cleaned a library occasionally on a voluntary basis. He attended the local Islamic Centre and provided voluntary work by cleaning and cooking. This represents a period of positive contribution to the Australian community but it is not a long period and I give it less weight because he began offending soon after his arrival in Australia.
The applicant has strong ties to his friend who came from Pakistan with him and with whom he could live if released. The applicant also has ties with the Shia community and has support from the Director of the Islamic Shia Council of Queensland.
The applicant’s links to the Australian community weigh in favour of setting aside the decision to refuse a visa but I do not give this factor very much weight because the applicant’s immediate family live in Pakistan and because was only in the Australian community for about 18 months and he committed his first offence within about 9 months of leaving detention after his arrival in Australia.
Conclusion as to whether to exercise the discretion to refuse the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to refuse to grant a visa to the applicant.
The primary considerations of the protection and expectations of the Australian community both weigh heavily in favour of refusing to grant a visa. I have given significant weight to these considerations because the applicant’s sexual misconduct towards a child, he was violent towards a detention officer and has not engaged in sufficient rehabilitation. He would be an unacceptable risk to the Australian community if released. The most significant countervailing factor is the prospect of indefinite detention after already spending eight and a half years in detention. This is a very unfortunate consequence of my decision and I would hope that the respondent adopts the Ombudsman’s recommendation to explore options to resolve his immigration status without any further delay (noting that this recommendation was made in June 2016).
I have given minimal weight to the extent of impediments if removed, non-refoulement obligations and risk of harm because it is unlikely that the applicant will be returned to Pakistan. I also note that the applicant has limited ties to the Australian community and that his immediate family remains in Pakistan.
In making my decision I have applied the principle at paragraph 5.2(5) of Direction 90 because I consider that the applicant’s conduct and the harm that would be caused if it were repeated are so serious that even the strong countervailing consideration of indefinite decision is insufficient to justify not refusing the visa. The inherent nature of child sex offences warrants this outcome in all of the circumstances.
DECISION
I conclude that the correct or preferable decision is to refuse to grant the visa to the applicant. The decision of the Tribunal is to affirm the decision under review.
100. I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
...[sgd].....................................................................
Associate
Dated: 28 November 2022
Dates of hearing: 2 & 3 May, 24 & 25 November 2022 Advocate for the Applicant: A Battisson Solicitors for the Applicant: Human Rights for All Pty Ltd Advocate for the Respondent: J Barrington Solicitors for the Respondent: Sparke Helmore Lawyers
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