Okelo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2481
•10 May 2023
Okelo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2481 (10 May 2023)
GENERAL DIVISION
File Number(s): 2023/1170
Re:Workber Anjullu Okelo
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:10 May 2023
Date of written reasons: 8 August 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 February 2023 to not revoke the cancellation of the Applicant’s visa.
.........................[SGD]...................................
Member Lee Benjamin
Catchwords
MIGRATION – Mandatory visa cancellation – Ethiopian citizen – Class XB Subclass 200 refugee visa - s 501CA of the Migration Act 1958 (Cth) – failure to pass good character test – substantial criminal record – whether “another reason” exists for Tribunal to revoke mandatory cancellation of visa under s 501CA of the Migration Act 1958 (Cth) – Ministerial Direction No. 99 applied – Respondent’s delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1953 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Pau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 3385
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
International Covenant on Civil and Political Rights and its Second Optional Protocol
REASONS FOR DECISION
Member Lee Benjamin
8 August 2023
The Applicant arrived in Australia as a refugee visa[1] holder in November 2008 (aged around 15 years).[2] He commenced committing crimes in February 2012 (aged around 18 years).[3] Since then, he has been found guilty of over 40 offences, including assault occasioning bodily harm, serious assault of a police officer while armed, endangering the safety of a person in a vehicle with intent and wilful damage, among others.[4] His visa was mandatorily cancelled in April 2022 because he has a substantial criminal record.[5] He requested revocation of the decision[6] and it was refused.[7] In February 2023, the Applicant applied to the Tribunal for review of the Respondent’s decision[8] not to revoke his visa cancellation.[9] It is common ground between the parties that the Applicant fails the statutory character test for revocation.[10] Accordingly, the only question for the Tribunal to determine is whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[11] On balance, I find that the answer to this question is, no.
[1] Refugee Class XB Subclass 200.
[2] Exhibit Tr1, G39, p 1267.
[3] Exhibit R2, p 2; Exhibit Tr1, G4, p 32.
[4] Exhibit Tr1, G4, p 32-35; Exhibit R2, p 2-5.
[5] Subsection 501(3A) of the Migration Act 1953 (Cth) (Act) requires the Respondent to cancel a visa if the person does not pass the character test because they have a substantial criminal record. The phrase ‘substantial criminal record’ is defined in subsection 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: subsection 501(7)(c). On 3 August 2021, the Applicant was convicted in the Beenleigh Magistrates Court of two counts of enter premises and commit indictable offence and sentenced to a term of 12 months imprisonment for each offence (see Exhibit Tr1, G4, p 32-35 and Exhibit R2, TB2, p 3-4).
[6] Exhibit Tr1, G13, p 84.
[7] Subsection 501CA(4) the Act; Exhibit Tr1, G3, p 10-13.
[8] The Tribunal has jurisdiction to review the decision under subsection 500(1)(BA) of the Act.
[9] Exhibit Tr1, G2, p 4-9.
[10] Subsection 501CA(4)(b)(i) of the Act; Exhibit A1, p 8, para 60; Exhibit R1, p 5, para 19.
[11] Subsection 501CA(4)(b)(ii) of the Act; Exhibit A1, p 8, para 61; Exhibit R1, p 2, para 8.
The hearing in this matter took place on 26 April 2023 and 27 April 2023. I received oral evidence from the Applicant and others via an interpreter. The Tribunal also received the written submissions and evidence and that appears in the Exhibit List, in Annexure A.
LEGAL FRAMEWORK
When a visa is cancelled mandatorily pursuant to subsection 501(3A) of the Act (the original decision), subsection 501CA(3) provides that the Minister must give the person concerned written notice of the cancellation, setting out the original decision and particulars of the relevant information, and invite them to make representations about revocation of the original decision. The Applicant was invited to, and did, make detailed representations in support of the revocation of the cancellation of his visa.[12]
[12] Exhibit Tr1, G18, p 124.
Subsection 501CA(4) of the Act provides that if a Minister makes a decision under subsection 501(3A), they 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.
I have already indicated that there is no dispute between the parties that the Applicant fails the statutory character test for revocation in subsection 501CA(4). I am satisfied (and find) that the Applicant does not pass the character test because the Applicant has a “substantial criminal record”. He cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The central issue in this review is whether there is another reason why the cancellation decision should be revoked under subsection 501CA(4). I must “do over again” the task of the primary decision maker,[13] making my own findings of fact, based on the material before me, undertaking my own assessment against the statutory criteria. This requires a careful review of the Applicant’s representations and the evidence put forward in support of them.[14] Overall, I am required to examine the factors for and against revoking the cancellation.[15]
[13] Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [134] (Kiefel J).
[14] WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535 at [14].
[15] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38].
A determination under subsection 501CA(4) must be carried out in accordance with any directions given by the Respondent under subsection 499(1) of the Act.[16] In considering a request for revocation of a mandatory subsection 501(3A) cancellation, the decision-maker – here, the Tribunal – must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which was given by the Minister under subsection 499(1) and commenced on 3 March 2023.[17]
[16] Subsection 499(2A) of the Act.
[17] As of 14 February 2023, when the Applicant was notified of the decision to not revoke his visa cancellation, Direction 99 had not yet commenced and instead Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) was in place. There is no dispute between the parties that the Tribunal must now decide the matter on the basis of Direction 99, and disregard Direction 90.
Direction 99
Direction 99 lists six principles that provide the framework by which decision-makers should decide whether to revoke a mandatory cancellation under s 501CA:
(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.[18]
[18] Section 5.2 of the Direction.
A decision-maker must, informed by the foregoing principles, take into account the considerations identified in Section 8 – primary considerations and Section 9 – other considerations, where relevant to the decision.[19]
[19] Section 6 of the Direction.
Direction 99 provides that the primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.[20]
[20] Section 8 of the Direction.
The decision-maker must also take into account other considerations insofar as they are relevant. These include but are not limited to:
(a)legal consequences of the decision under section 501 or 501CA;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.[21]
[21] Section 9 of the Direction.
A decision-maker must, generally, give the primary considerations greater weight than the other considerations.[22] One or more primary considerations may outweigh other primary considerations.[23]
[22] Section 7(2) of the Direction.
[23] Section 7(3) of the Direction.
OFFENDING
The Applicant has an extensive criminal history in Australia, which is summarised in the table below.
Count Date of Offence Offence Sentence 1 of 1 24.11.2011 Commit Public Nuisance
Section 6 Summary Offences Act 2005 (Qld)Fined: $900.00
No conviction recorded1 of 1 24.11.2011 Assault or obstruct police officer
Subsection 790(1) Police Powers and Responsibilities Act 2000 (Qld)1 of 2 01.01.2014 Commit Public Nuisance
Subsection 6(1) Summary Offences Act 2005 (Qld)Fined: $650.00 2 of 2 01.01.2014 Assault or obstruct police officer
Subsection 790(1) Police Powers and Responsibilities Act 2000 (Qld)1-4 of 9
26.05.2017
14. Intentionally endangering the safety of a person travelling in a vehicle
15. Subsection 319(1) Criminal Code Act 1899 (Qld)
2 years imprisonment
5-8 of 9
26.05.2017
16. Assault occasioning bodily harm
17. Subsection 339(1) Criminal Code Act 1899 (Qld)
9 months imprisonment
9 of 9 26.05.2017 18. Wilful Damage
Subsection 469(1) Criminal Code Act 1899 (Qld)
2 months imprisonment 19.
1 of 8 29.05.2017
20. Unauthorised dealing with shop goods
21. Subsection 5(1)(c) Regulatory Offences Act 1985 (Qld)
Convicted and not further punished
2,3,4 of 8 22. Common Assault
23. Section 335 Criminal Code Act 1899 (Qld)
5 of 8 24. Commit Public Nuisance
25. Subsection 6(1) Summary Offences Act 2005 (Qld)
6 of 8 26. Serious Assault
27. Subsection 340(1)(b)&(a)(iii) Criminal Code Act 1899 (Qld)
7 of 8 28. Wilful Damage
29. Subsection 469(1) Criminal Code Act 1899 (Qld)
8 of 8 30. Common Assault
31. Section 335 Criminal Code Act 1899 (Qld)
1-8 23.07.2019 Enter Premises and Commit Indictable Offence
Criminal Code 1899 (Qld) subsection 421(2)
12 months imprisonment Commit Public Nuisance
Summary Offences Act 2005 (Qld) s 6(1)
Wilful Damage
Criminal Code 1899 (Qld) s 469(1)
Enter Premises and Commit Indictable Offence
Criminal Code 1899 (Qld) s 421(2)
Commit Public Nuisance
Summary Offences Act 2005 (Qld) s 6(1)
Obstruct Police Officer
Police Powers and Responsibilities Act 2000 (Qld) s 790(1)(b)
Contravene Direction or Requirement of Police
Police Powers and Responsibilities Act 2000 (Qld) s 791(2)
1 of 2 27.09.2019 Receiving Tainted Property
Criminal Code 1899 (Qld) s 433(1)
3 months imprisonment.
234 days pre-sentence custody declared.
2 of 2 Fraud – Dishonestly Gain Benefit/Advantage
Criminal Code 1899 (Qld) subsection 408C(1)(d)
4 months imprisonment. 1 of 2 25.09.2019 Failure to Appear in Accordance with Undertaking
32. Bail Act 1980 (Qld) subsection 33(1)
Fined $500.00
No conviction recorded.2 of 2 13.08.2019 1 of 1 30.10.2019 Fined $750.00 1 of 1 25.12.2019 33. Breach of Bail Condition
Bail Act 1980 (Qld) subsection 29(1)
1 month imprisonment 1 of 2 06.02.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) subsection 33(1)
1 month imprisonment 2 of 2 Between 28.01.2020 & 06.02.2020 Breach of Bail Condition
Bail Act 1980 (Qld) subsection 29(1)
1 month imprisonment 1 of 1 22.07.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) subsection 33(1)
1 month imprisonment 1 of 3 04.09.2020 Trespass – Entering or Remaining in Dwelling or Yard
Summary Offences Act (Qld) s 11(1)
2 months imprisonment 2 of 3 Wilful Damage
Criminal Code 1899 (Qld) s 469(1)
4 months imprisonment 3 of 3 Possessing Dangerous Drugs
Drugs Misuse Act 1986 (Qld) s 9(1)
1 month imprisonment 1 of 1 02.10.2020 Unlawful Use of Motor Vehicles Aircraft or Vessels – Use
Criminal Code 1899 (Qld) subsection 408A(1)(A)
9 months imprisonment 1 of 1 28.10.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) subsection 33(1)
1 month imprisonment 02.12.2020 1 of 1 14.02.2022 Possession of Knife in Public Place or School
Weapons Act 1990 (Qld) subsection 51(1)
Convicted and not further punished.
Restitution: $363.64
1 of 3 27.02.2022 Wilful Damage
34. Criminal Code 1899 (Qld) subsection 469(1)
2 of 3 28.02.2022 Serious Assault Police Officer by Biting Spitting etc
Criminal Code 1899 (Qld) subsection 340(1)(b)&(a)(i)6 months imprisonment, wholly suspended, operational period of 2 years. 3 of 3 15 months imprisonment, wholly suspended, operational period of 2 years.
Based on the Applicant’s criminal history, I consider that the Applicant’s offending may be divided into several phases as set out below.
Initial offending phase (2011 – 2014)
In November 2011, the Applicant was arrested and later charged for committing public nuisance in a matter involving the Applicant yelling at, and uttering words like “fuck you” to police, while police were involved in an operation at Surfers Paradise, Queensland.[24] In what appears to be the same period, the Applicant was arrested and charged for committing assault or obstruct[ing of a] police officer. In February 2012, he was found guilty on both charges and fined in the Southport Magistrates Court. No convictions were recorded.[25]
[24] Exhibit R2, TB2, p 157.
[25] Exhibit Tr1, G4, p 35.
In January 2014, the Applicant was arrested and later charged for committing public nuisance and assault or obstruct[ing of a] police officer. The matter involving the Applicant participating in a fight of approximately 10-12 males in South Brisbane, Queensland, in which the Applicant “violently attack[ed] another male”.[26] According to the Queensland Police Service (QPS) Court Brief, the Applicant scuffled with police and had to be forcibly restrained and handcuffed.[27] In February 2014, the Applicant was found guilty and was convicted in the Brisbane Magistrates Court and fined.
[26] Exhibit R2, p 153.
[27] Exhibit R2, p 153.
Second offending phase (2017)
In May 2017, the Applicant committed a series of nine indictable offences and eight summary offences, involving at least 11 identified victims, over a four-day period.[28] The Applicant pled guilty to, and was convicted on, each offence in the Beenleigh District Court on 19 April 2018 and sentenced as follows:[29]
[28] Exhibit R2, p 163-166. The offence of Intentionally endangering the safety of a person travelling in a vehicle, on 26 May 2017, the complainant in that matter appears to be unknown (see Exhibit R2, p 163).
[29] Exhibit Tr1, G4, p 32-35; Exhibit R2, TB2, p 2-6. The Applicant was sentenced to a total effective sentence of two years imprisonment, with an order that he be released on parole after serving 325 days and a declaration that 325 days spent in pre-sentence custody was time served under the sentence.
Count Date of Offence Offence Sentence 1-4 26.05.2017 18. Intentionally endangering the safety of a person travelling in a vehicle
19. Section 319(1) Criminal Code Act 1899 (Qld)
20.
21. 2 years imprisonment for each count 5-8 26.05.2017 22. Assault occasioning bodily harm
23. Section 339(1) Criminal Code Act 1899 (Qld)
24. 9 months imprisonment for each count 9 26.05.2017 Wilful damage
Section 469(1) Criminal Code Act 1899 (Qld)
2 months imprisonment BCS 170 2039 742 29.05.2017 Unauthorised dealing with shop goods
Section 5(1)(c) Regulatory Offences Act 1985 (Qld)
Convicted and not further punished
25. BCS170 2039 823* 29.05.2017 Common assault
Section 335(1) Criminal Code Act 1899 (Old)
*Also covers BCS 170 2039 874 & BCS 170 2039 921
26. BCS170 2039 971 29.05.2017 Commit public nuisance
Section 6(1) Summary Offences Act 2005 (Qld)
27. BCS170 2040 015 29.05.2017 Serious assault
Section 340(1)(b)(a)(iii) Criminal Code Act 1899 (Qld)
28. BCS170 204 0112 29.05.2017 Wilful damage
29. Section 469(1) Criminal Code Act 1899 (Qld)
30. BCS170 204 0171 29.05.2017 Common assault
31. Section 335(1) Criminal Code Act 1899 (Qld)
In his sentencing remarks on 19 April 2018, his Honour Judge Chowdhury, noted that “the circumstances of the offending are very serious”.[30] His Honour saw it was necessary to, “[spend] some time going into detail of the offences simply to highlight the seriousness of them”[31]:
[30] Tr1, G10, p63, line 16.
[31] Tr1, G10, p65, lines 27-28.
…It seems that at about 8 pm on the 26th of May 2017, the first complainant, Mr [Redacted], was driving home in her Toyota [Redacted] along Railway Parade when you ran onto the road in front of her and threw a projectile at the driver’s side of the front windscreen, causing the bottom right side of the windshield to shatter and crack. The complainant managed to drive home. And she and her family reported the matter to police.
Half an hour later, at about 8.30 pm, Mr [Redacted] and his wife Ms [Redacted] were driving in their vehicle. They were also driving along Railway Parade when you and another male crossed the road in front of them. You stopped in the middle of the road. You had three glass bottles under your left arm. And you threw one of the bottles at the driver’s side of the front windscreen. This caused a circular crack in the bottom side of the windshield. Mr [Redacted] pulled the car over and stopped, and they both got out of the car. You then continued standing in the middle of the road, where you threw another glass bottle at another passing car, which relates to count 3. The people in that car stopped briefly but sensibly drove on.
You then threw another glass bottle at a car driven by Mr [Redacted], in respect of count 4. He was driving a white Ford [Redacted]. The bottle hit his car on the front passenger door, causing a dent. He pulled the car over and asked you, “What is your problem? What is your name?” You then lunged towards Mr [Redacted] and punched him once to his left cheek and eye area. Mr [Redacted] asked you again for your name. At this point Mr [Redacted] ran over to Mr [Redacted] to provide assistance, while his wife, Ms [Redacted], called the emergency number.
You punched Mr [Redacted] on the left side of his face, causing him to fall to the ground. You then heard Ms [Redacted] calling the police, so you walked over to her and kicked her in the left shin, causing her to fall to the ground onto her knees. And she therefore dropped her phone, which broke. She stood back up and asked you, “Why are you doing that?” You then swore at her and kicked her again on the thigh of her left leg. While this was happening, Mr [Redacted] took a photo of you and then left.
Mr [Redacted] ran over towards you and hit you with a stick in an effort to defend his wife. You then punched Mr [Redacted] in the head. He then ran away while you chased after him.
Mr [Redacted] ran to a passing car driven by Mr [Redacted]. Mr [Redacted] entered the front passenger door and asked for help. You approached Mr [Redacted] and punched him through the open car window. Mr [Redacted] asked, “Why did you hit me?” You said, “Your fault – because you let him go in your car.” You then punched Mr [Redacted]twice more through the window. You then caused some minor damage to the front of Mr [Redacted]’s car. Mr [Redacted]then drove off, with Mr [Redacted]still in the car. In the meantime, Ms [Redacted] returned to her car. And you yelled out to her, “Bitch, come here.” Mr – Ms [Redacted] ran away from you. And ultimately, police attended the scene shortly afterwards. When the police arrived, you were arrested, it seems a couple of hours after the incident. But you were too intoxicated to take part in an interview.
Ms [Redacted] attended Logan Hospital after the incident. She had a swollen foot and swelling and bruising to her left shin and thigh. Her leg was sore to walk on for a few days. Mr [Redacted] also went to the Logan Hospital. He had swelling to his forehead, scratch to his left cheek and redness over his left cheek. He also suffered from a headache, dizziness and a sore jaw. Mr [Redacted] also went to the Logan Hospital. He had a cut above his left eye and a scratch on the left side of his nose. His left eye was red with bruising and his eyelids were swollen.
This was all serious offending, of a significant antisocial nature. Throwing objects at cars is inherently dangerous. Could have caused significant collision with an oncoming car as the driver avoided to take action, could have disturbed significantly a driver in the safe control of the car, car could have gone onto the footpath and hit pedestrians: any number of serious eventualities. Your drunkenness, as I said, is in part an explanation; but there is simply no excuse. And what makes the whole thing worse is you then were violent towards the persons whose – cars had been hit by projectiles thrown by you. They were going about their lawful business, and they did not deserve to be assaulted by a criminal like you.
You were arrested and released on bail. And then you committed the summary offences for which I have to deal with. On the 29th of May 2017, you entered a bottle-shop at Logan [Redacted]. You picked up a one-litre bottle of vodka from the shelf which was behind the counter. The store attendant told you that you were not allowed behind the counter and that you had to pay for the vodka. You then raised the bottle and mimicked assaulting the store attendant with the bottle. You ultimately left the store without paying for the vodka.
Another man, Mr [Redacted], approached you and requested the bottle of vodka to be returned. You then raised the bottle above the head – your head in a threatening manner, saying, “Fuck you. What you are you going to do now?” At that point you were approached by another complainant, Mr [Redacted], who worked as a security officer at Logan [Redacted]. You again raised the bottle in a threatening manner and told him to “fucking shut up”. The complainant retreated a short distance, as understandably he was fearful of being hit by you. You then left the [Redacted].
When you left the Plaza, you kicked a freestanding sign next to a table where two women were sitting. You then engaged in a verbal altercation with one of the women before both women left the shopping centre. You then approached three people in the car park, and a physical altercation took place. You jumped and kicked at one of the males, connecting with his chest. You punched the same male to the face. Those three people were able to get away from you with the assistance of other shoppers.
At this point the police became involved. You were approached by Constable [Redacted], who was in a police car. You walked towards him, raising a fence paling in a threatening manner, and said to the police officer, “Get out of the car. I am going to kill you.” The fence paling was about 175 centimetres in length and had nails protruding from the end. You then spat at the police officer; however, fortunately, his window was up and the spittle landed on the window.
At this point, a second police car arrived, and Detective Sergeant [Redacted] came with – outside the car. You approached him with a fence paling raised and yelled, “I came to kill someone.” At this point, police in the first car went out of their car and attempted to take you into custody. Ultimately, you had to be subdued when they threatened to use their tasers.[32]
[32] Exhibit Tr1, G10, p 63, lines 19-46, p 64, lines 1-47, p 65, lines 1-26.
Third offending phase (2019-2020)
Between July 2019 and December 2020, the Applicant committed a series of eight indictable offences and 15 summary offences, involving at least four victims.[33] The Applicant pled guilty to, and was convicted on, each offence in the Beenleigh Magistrates Court across three separate court dates on 2 October 2019, 21 November 2019 and 3 August 2021, and sentenced as follows:[34]
[33] Exhibit R2, TB4, p 175-184.
[34] Exhibit Tr1, G4, p 32-35; Exhibit R2, p 2-6; Exhibit Tr1, G11, p 69-73. The Applicant was sentenced to a total effective sentence of 16 months imprisonment, with an order that he be released on parole immediately, with a declaration that 234 days spent in pre-sentence custody was time served under the sentence.
Count Date of Offence Offence Sentence 2 October 2019 Convictions 1-2 25.09.2019 & 13.08.2019 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
Fined $500.00
No conviction recorded.
21 November 2019 Convictions 1 30.10.2019 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
Fined $750.00 3 August 2021 Convictions 1 25.12.2019 Breach of Bail Condition
Bail Act 1980 (Qld) s 29(1)
1 month imprisonment 1-2
1-2
06.02.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
1 month imprisonment Between 28.01.2020 & 06.02.2020 Breach of Bail Condition
Bail Act 1980 (Qld) s 29(1)
1 month imprisonment 20. 1-8 23.07.2019
Enter Premises and Commit Indictable Offence
Criminal Code 1899 (Qld) s 421(2)
12 months imprisonment Commit Public Nuisance
Summary Offences Act 2005 (Qld) s 6(1)
Wilful Damage
Criminal Code 1899 (Qld) s 469(1)
Enter Premises and Commit Indictable Offence
Criminal Code 1899 (Qld) s 421(2)
Commit Public Nuisance
Summary Offences Act 2005 (Qld) s 6(1)
Obstruct Police Officer
Police Powers and Responsibilities Act 2000 (Qld) s 790(1)(b)
Contravene Direction or Requirement of Police
Police Powers and Responsibilities Act 2000 (Qld) s 791(2)
1 22.07.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
1 month imprisonment 1-3 04.09.2020 Trespass – Entering or Remaining in Dwelling or Yard
Summary Offences Act (Qld) s 11(1)
2 months imprisonment Wilful Damage
Criminal Code 1899 (Qld) s 469(1)
4 months imprisonment Possessing Dangerous Drugs
Drugs Misuse Act 1986 (Qld) s 9(1)
1 month imprisonment 1 02.10.2020 Unlawful Use of Motor Vehicles Aircraft or Vessels – Use
Criminal Code 1899 (Qld) s 408A(1)(A)
9 months imprisonment 1 28.10. 2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
1 month imprisonment 1 02.12.2020 Failure to Appear in Accordance with Undertaking
Bail Act 1980 (Qld) s 33(1)
1-2 27.09.2019 Receiving Tainting Property
Criminal Code 1899 (Qld) s 433(1)
3 months imprisonment.
234 days pre-sentence custody declared.
Fraud – Dishonestly Gain Benefit/Advantage
Criminal Code 1899 (Qld) s 408C(1)(d)
4 months imprisonment
In his sentencing remarks on 3 August 2021, his Honour Magistrate Duroux, noted that “sentences of imprisonment are both justified and appropriate”[35] for the Applicant, with the purpose, to a degree and in relation to some of his offending, to protect the Queensland community from the Applicant:
[35] Exhibit Tr1, G11, p 71, lines 7-8.
In relation to the offending which is before me today, a lot of it can probably be described as anti-social behaviour. That is the public nuisance type things. That is, the public nuisance, it relates to throwing stones. The wilful damage charge – the second on the schedule – relates to damage of a monitor, an EFTPOS machine and computer monitors. Holes in a door. Multiple broken chairs and smashing an electronic security pad. In my view that is clearly an example of a serious charge of wilful damage, in my view.
The public nuisance charge, six of eight, you threw a bottle of water at the informant and been yelling and screaming. Caused concerns for the victim. The obstruct on the 23rd of July, the police told you to basically get on the ground and don’t move. Regrettably, you continued to ignore and then it just escalated to the obstruct.
The contravene direction charge, eight of eight, it is what it is. Charge 1 of eight, the enter premises. It is when you went into the BP at [Redacted] and you caused damage. You jumped over the store counter as well. You kicked over a statue of a chef, which stood about four feet in height, causing damage to the item. You were you aggressively approached the female console operator behind the enclosed counter area. The console operator, on seeing your demeanour, feared for her safety and quickly ran into the manager’s office, locking the door. You jumped the counter and paced up and down behind the counter area. You collected your backpack and quickly decamped.
The public nuisance, 23rd of July, it’s sort of similar type facts in relation to that. The trespass on the 4th of September, there apparently was a disturbance, and a 75 year old victim observed you jump over his front locked gate. He called out to you, “What do you want?” And you said, “I want to speak to you.” The victim said, “I don’t want to speak to you, you are trespassing.” Eventually you did – you were told to leave and you eventually did leave.
The wilful damage on the 4th of September is smashing of a picture frame up against a filing cabinet, causing the glass to smash and the frame to break. The drug charge on the 4th of September, very small amount of cannabis, 1.21 grams. The receiving simply relates to the Xbox console. It wasn’t yours. The fraud relates to getting $80 from the pawnbrokers in relation to the Xbox.
The breach of bail condition, the 25th of December, is failing to report on bail. You said you were sick, but you didn’t provide a medical document. The 28th of January, 6th of February, again you had a reporting obligation. You did not comply. The fail to appears, essentially you do not turn up in Court. And police basically then spoke to you at the various times thereafter and you were arrested on those particular warrants.
The unlawful use on the 2nd of October, you were driving a vehicle. Your driving become known to police. I do note on that unlawful use, it is not articulated whether you are the driver or passenger. We have got to treat it as a passenger, because it doesn’t say anything to the contrary, but it is an unlawful use. And as I said, there is some other fail to appears.
In relation to the charges which are before me, there is a degree of gravamen – seriousness that is. The enter premises, the maximum penalty is 14 years. Public nuisance, maximum penalty is six months. Wilful damage is five years. The obstruct is six months. Contravene direction is a fine only type offence. The trespass is a one year offence. Another wilful damage. The receiving-type charge, maximum penalty is seven years. The fraud charge, the maximum penalty is five years. Breach of bail condition, maximum penalty two years. Failing to appear, maximum penalty is two years. Of course, there is a cumulative nature of the act which has to be considered as well. The unlawful use of motor vehicle, maximum penalty is seven years imprisonment in relation to those matters.
…
…In my view a custodial order is warranted today, but I also agree with your lawyer that are at least in some sort today is certainly warranted, having regard to the significant pre- sentence custody which is before me today.
I am mindful of the sentencing principles that sentences of imprisonment should only be imposed as a last resort, and a sentence that allows you to stay in the community is preferable. I have considered all guidelines and sections 9 and 11 of the Penalties and Sentences Act, including all available sentencing options. I am satisfied sentences of imprisonment are both justified and appropriate.
…
In relation to the prevalence of the offending which is before me, all of the offending is prevalent in any Court in South East Queensland and indeed Beenleigh. My reasons for sentences of imprisonment are to punish you to an extent or in a way that is just in all the circumstances, to deter you and others from committing the same or similar offences. To make it clear that the community, acting through the Court, denounces the sort of conduct in which you were involved. In relation to those enter premises, to a degree, to also protect the Queensland community from you.
You are convicted, sir, and convictions are recorded…[36]
[36] Exhibit Tr1, G11, p 69, lines 31-47, p 70, lines 1-42 & 45-46, p 71, lines 1-8 & 18-26.
Fourth offending phase (2022)
In February 2022, the Applicant committed a series of three indictable offences and one summary offence, involving at least two victims.[37] The Applicant pled guilty to, and was convicted on, each offence in the Beenleigh Magistrates Court on 29 July 2022, and sentenced as follows:[38]
[37] Exhibit R2, TB2, p 7-9, p 10-13, p 14-21.
[38] Exhibit R2, TB2, p 2-6; Exhibit Tr1, G12, p 81-83. The Applicant was sentenced to a total of 15 months imprisonment, wholly suspended for an operational period of two years.
Count Date of Offence Offence Sentence 1 of 1
14.02.2022
22. Possession of a Knife in a Public Place or a School
23. Weapons Act 1990 (Qld) s 51(1)
24. Convicted and not further punished.
25. Restitution: $363.64
1 of 3
27.02.2022
Wilful Damage
Criminal Code 1899 (Qld) s 469(1)
2 of 3
28.02.2022
Serious Assault Police Officer by Biting Spitting etc
Criminal Code 1899 (Qld) s 340(1)(b)&(a)(i)
6 months imprisonment, wholly suspended, operational period of 2 years.
3 of 3
28.02.2022
Serious Assault Police Officer by Biting Spitting etc
Criminal Code 1899 (Qld) s 340(1)(b)&(a)(i)
15 months imprisonment, wholly suspended, operational period of 2 years.
In the Beenleigh Magistrates Court on 29 July 2022, the QPS prosecutor described the matters underlying the Applicant’s offending[39] as follows:
In terms of some facts, your Honour will have a number of charges, four in total, that go date range 14 February through 28 February, so over a short two-week period. The first in time is the possess knife, where the police have received a call from a public phone box next to the Woodridge Train Station by a gentleman who said, “I’ve got a knife and I’m feeling violent.” Police have attended and found the defendant to be the person who’s made that call after utilising CCTV footage camera, and they located on his person a tactical army knife with a folding blade.
On the 27th, the wilful damage. This is the Department of Housing as the complainant. Effectively, the defendant’s in his residence. He’s being quite loud, noisy, and is told by a fellow neighbour to quiet down. This results in the defendant picking up a large rock and throwing it through the glass sliding door on the second storey where that informant was, which caused the sliding door to smash.
On the 28th, these are the two serious assault police. Effectively, on that date, the defendant was in custody in relation to other matters, presumably the matters of the day earlier. The victim officer was transporting the defendant in a police vehicle to the Beenleigh Watch-house. At the Beenleigh Watch-house, the victim officer has asked the – was speaking to the defendant whilst he was sitting in the rear of the police vehicle. The defendant was hurling abuse at the victim officer.
After a short time, the defendant, with clear intent, spat a large amount of saliva towards the victim officer, causing the victim officer to step back to avoid the defendant’s bodily fluid. So there’s no suggestion there that the spittle made contact with him other than the – obviously, the fact that he made that gesture towards the police officer or that act towards the police officer.
It’s this last charge, charge 3, that’s going to be the head sentence here today. Likewise, shortly after this, another victim officer was standing with the defendant. When the defendant spat towards him, the spit from the defendant hit the victim officer directly in the face at a distance of approximately 60 centimetres, going in his eyes and his mouth.[40]
[39] The background facts do not appear to have been contested by the defence solicitor.
[40] Exhibit Tr1, G12, p 76, lines 41-46, p 77, lines 1-27.
In his sentencing remarks, also on 29 July 2022, his Honour Magistrate Woodford took into account the serious nature of the offences, and in particular, the spitting offences:
The first spittle did not hit the officer. I take that into consideration. However, the second one was most serious, where you spat – it went into the person’s eyes and mouth and on – on the officer’s face like that. A very serious offence calls for periods of imprisonment. So on that particular charge, I have taken all the matters into account. I intend to put you on a wholly suspended period of imprisonment there.
In relation to the – what I will call the second charge, where you spat and the spittle went into his eyes and the mouth of the officer, on that charge, you will be convicted and sentenced to 15 months imprisonment. I order that the – that term of imprisonment be suspended. I declare an operational period of two years in relation to that particular charge. What that two years means that if, during the next two years, you come before any Court, be convicted of any offence which carries a period of imprisonment, then you can be taken to serve the 15 months I have imposed here today.
On the other charge of – of a serious assault, the first charge of a serious assault on a police officer, the spittle did not – did not make contact with the officer. Suspended sentence. You will be convicted and sentenced to six months imprisonment, and I will wholly suspend that period of imprisonment and set an operational period of two years on that charge there.[41]
[41] Exhibit Tr1, G12, p 82, lines 11-31.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:
(a) The nature and seriousness of the Applicant’s conduct to date; and
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
I will now consider each in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1 of the Direction:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)…
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) …;
(iv)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f)whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status…
The Respondent contends that the Applicant’s offending is very serious, and that such contention is “well supported by the evidence.”[42] In making this submission, the Respondent points out that the Applicant has been convicted of many violent crimes in Australia, as well as threatening to cause violence:[43]
On 19 April 2018, the applicant was convicted in the Beenleigh District Court of endangering the safety of a person in a vehicle with intent (four counts), assault occasioning bodily harm (four counts), wilful damage as well as other summary offences heard including common assault (four offences). He was sentenced to two years imprisonment for the endangering offences and lesser terms for the remaining offences. 325 days pre-sentence custody as declared as time served and he was released on parole immediately. The sentencing remarks are before the Tribunal and set out in detail the conduct that resulted in these convictions (G10). The sentencing judge described the circumstances of the offending as ‘very serious and bizarre’. In summary, the applicant ran onto the road in front of a car and threw a projectile at the windscreen causing it to shatter and crack. Thirty minutes later, the applicant and another person stopped in the middle of the road and threw a glass bottle at another car hitting the windscreen and causing it to crack. He also threw a glass bottle at further vehicle. The driver got out of his car and the applicant lunged at him and punched in him in the left cheek and eye. When a driver of one of the previous cars targeted by the applicant ran over to provide assistance to the victim, the applicant also punched him to the face causing him to fall the victim. The wife of the second victim was kicked which caused her to fall to her knees.
On 3 August 2021, the applicant was convicted in the Beenleigh Magistrates Court of 20 offences including two counts of enter premises and commit indictable offence and sentenced to a term of 12 months imprisonment for each offence. A sentencing schedule has been produced under summons by the Beenleigh Magistrates Court and which outlines the factual circumstances of the offending (TB4/175ff). On 23 July 2019, police were called to a petrol station because the applicant had damaged property and jumped over the counter in the store. It was reported that the applicant violently kicked over a figurine of a chef and aggressively approached the female console operator behind an enclosed area who feared for her safety and locked herself in the manager’s office.
Whilst the applicant was on bail for these offences, three days later, he attended a bottle shop and mimicked assaulting the store attendant with a bottle of vodka after she told him that he could not be behind the counter and had to pay for the alcohol. When another man approached, the applicant raised the bottle above his head in an aggressive manner. He then left and approached three people in a car park. He kicked and punched one of the males. When police arrived, he walked towards them raising a fence paling threatening to kill the officer and spat towards the officer.
The applicant was also convicted of three counts of commit public nuisance and obstruct police officer. On 23 July 2019, a man and a woman were walking their dog in a suburban street when the applicant threw a bottle of water at the man and yellow at both victims in an aggressive manner (G8). The applicant continued yelling abuse as the victims ran away in fear. When the police arrived, the applicant was continually ignoring them and puffed out his chest in an aggressive manner.
Most recently, on 29 July 2022, the applicant was convicted of two counts of serious assault police officer by biting spitting etc, wilful damage and possession of a knife in a public place or a school. He was sentenced to concurrent terms of imprisonment for each of the serious assault offences (15 months and six months imprisonment respectively). Police were called to attend a residence after the applicant threw a large rock at a glass sliding door causing to smash (TB2/12). After the applicant was arrested and transported to the watchhouse, the applicant spat at two police officers, one of whom the applicant spat at in the officer’s eyes and face (TB2/16). The sentencing Magistrate said that “I have taken into account the serious nature of the offences, and in particular, the spitting offences. The first spittle did not hit the officer. I take that into consideration. However, the second one was most serious, where you spat – it went into the person’s eyes and mouth and on – on the officer’s face like that. A very serious offence calls for periods of imprisonment” (G12/82).[44]
[42] Exhibit R3, p 2, para 3.
[43] Exhibit R1, p 6, para 22.
[44] Exhibit R1, p 6-8, para 22-27.
The Applicant concedes that some of his offending is very serious and meets necessary threshold of being “viewed very seriously” pursuant to para 8.1.1(1)(a) of Direction 99 because the conduct spans violent crimes and violent crimes again women.[45] In relation to the Applicant’s violent crimes against women, the Applicant identifies some of the offences for which he was sentenced in the Beenleigh District Court on 19 April 2018 as within this category.[46] However, the Applicant does not concede that all of the offenses identified by the Respondent as “crimes of a violent nature against women” are properly characterised as such:
The enter premises and commit indictable offence (namely, wilful damage) and commit public nuisance of 23 July 2019 at BP [Redacted], for which he was sentenced on 3 August 2021. The facts are in the Sentencing Schedule at TB4, pp 178 to 179. These are not offences involving violence, or threats of violence. An act of jumping over a counter is not violent, and in any event, the facts record that the female shop clerk was not at the counter at that time. There is no reason to interpret the use of the term ‘violence’ as including damage to property; it is clearly directed towards violence targeted at other humans.
Two commit public nuisance offences from 23 July 2019, for which he was sentenced on 3 August 2021. The facts are at TB4, pp 175 – 176 (no. 1 and 4). At Ross Street, the applicant threw a water bottle towards an ‘informant’ (gender unknown), and then yelled and screamed at the informant and a female in an aggressive manner. The commit public nuisance at the restaurant involved him throwing rocks/stones at members of the public eating dinner, with some hitting a female. In relation to the events at the restaurant, it is not suggested the applicant targeted female persons. In any event, he was not charged with an assault offence for any of this conduct and offences of commit public nuisance under s 6(1) of the Summary Offences Act 2005 (Qld) are directed at criminalising conduct that disturbs the peace of public areas, rather than acts of ‘violence’ as that term is used in Direction 99. [47]
[45] Exhibit A10, p 2, para 9.
[46] Exhibit A10, p 2, para 9.
[47] Exhibit A10, p 2, para 10.
In response to the Applicant’s submission, the Respondent says that the Tribunal ought to be satisfied that the offences committed by the Applicant on 23 July 2019, as described above, are crimes of a violent nature against women. The Respondent further contends that, it is well established that in order to engage paragraph 8.1.1(1)(a)(ii) of Direction 99, the crimes need not involve actual violence.[48] The Respondent submits that these crimes are of a such a nature:
[48] Pau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 3385; Exhibit R3, p 2, para 3.
In respect of the applicant’s offending at BP [Redacted]on 23 July 2019, this offence was described in the sentencing schedule, the content of which was not disputed by the applicant, as follows (TB/178):
…
Police attended the incident and spoke to the female console operator who stated that at approximately 4:30pm she observed a … male, aged about 25 years, walk quickly through the store and violently kick over the statue of a chef, which stood about four feet in height, causing damage to this item.
The … male then removed his backpack and aggressively approached the female console operator, behind the enclosed counter area. The console operator, on seeing the demeanour of the suspect feared for her safety and quickly ran into the manager’s office, locking the door.
Contrary to the applicant’s submission, the applicant’s conduct, by aggressively approaching the shopkeeper, was at best, an implicit threat that harm would befall her. That threat of harm was of sufficient gravity that the victim opted to lock herself in the manager’s office. This fear for her safety is unsurprising, given the applicant violently destroyed property within the store.
Much of the same can be said for the applicant’s conduct whereby he threw a water bottle at two persons walking their dog, one of whom was female, and proceeding to ‘yell and scream at the informant and female in an aggressive’ manner (TB/176). Such was the nature of this aggression, the victims of the offending ‘became fearful for their safety, causing them to run away from the defendant’, such that it can properly be described as an offence of a violent nature against a woman, despite not involving actual violence against that woman.
With respect to the final offence addressed by the applicant, it is difficult to conceive how an offence where the applicant has thrown rocks, and struck, a female member of the public, could be seen as anything other than violent, irrespective of the charge for which the applicant was convicted (TB/175).[49]
[49] Exhibit R3, p 2-3, para 3.1-3.4.
The Applicant contends that none of his acts of violence were premeditated,[50] and that his violent crimes against women were not intentionally targeted at women.[51] The Applicant’s purpose in making these submissions is, presumably, to invite me to view his offending less seriously compared to if his crimes were “premeditated” and “targeted”. Respectfully, I reject this invitation. Sub-paragraph 8.1.1(1)(a) requires me to consider the types of crimes committed, not the intention in committing the crimes. The Applicant pled guilty and was convicted of committing numerous violent crimes and crimes of a violent nature against women. The circumstances of the Applicant’s offending in these regards moved his Honour Judge Chowdhury to note the “very serious”[52] nature the Applicant’s conduct.
[50] Exhibit A1, p 9, para 69.
[51] Exhibit A10, p 2, para 9.
[52] Tr1, G10, p 63, line 17.
In my view, the Applicant’s conduct clearly involves repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i) and is property characterised as “very serious”.
Separately, the following sub-paragraphs are also relevant in the instant case, reflecting that the Applicant’s offending has been of a “serious” nature.
Paragraph 8.1.1(1)(b) looks to crimes committed against vulnerable members of the community (such as the elderly) and government representatives or officials due to the position they hold, or in the performance of their public duties, is engaged because:
·on 3 August 2021, the Applicant was convicted on one count of trespass – entering or remaining in dwelling or yard in the Beenleigh Magistrates Court - the Applicant caused a disturbance at the home of a 75-year-old person; [53] and
·on 29 July 2022, the Applicant was convicted on two counts of serious assault police officer by biting spitting etc. in the Beenleigh Magistrates Court - the Applicant spat at two police officers, one of whom the Applicant spat had the Applicant’s spital land in the officer’s eyes and face – for which he was sentenced to terms of imprisonment for six months and 15 months.[54]
[53] Exhibit R2, p 2-6; Exhibit R2, p 77-79.
[54] Exhibit R2, p 2-6; Exhibit R2, p 15-17.
Paragraph 8.1.1(1)(c) looks to sentences for non-precluded violent and other crimes, is enlivened because the Applicant has received a multiplicity of sentences ranging from fines to imprisonment. I have already set out the Applicant’s sentencing history above but I will highlight that the Applicant has been sentenced to more than five terms of imprisonment, with at least one cumulative effective sentence of two years.[55] The Tribunal has over and over again found that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[56] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.[57]
[55] Exhibit R2, p 2-6; Exhibit A1, p 3, para 23.
[56] For example, see: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[57] Exhibit R1, p 8, para 28.
Paragraphs 8.1.1(1)(d) and (e) look to the frequency of the Applicant's offending and any trend of increasing seriousness, and the cumulative effect of the Applicant’s repeated offending, respectively:
·the Applicant's criminal history includes around 40 offences spanning the Applicant's adult life (from November 2011 to July 2022) and, despite periods of lawful behaviour, he has committed repeated crime sprees each of which had to be dealt with by judicial sentencing officers - there is an obvious and undeniable frequency to the Applicant’s offending;
·the offending has grown in seriousness, from, for example, public nuisance, to wilful damage, to assaults occasioning bodily harm, to endangering the safety of a person in a vehicle with intent, to serious assault of a police officer – the Applicant’s offending has become violent and brazen;
·the Applicant’s long offending career demonstrates several cumulative effects, including: (1) the Applicant’s failure to comply, and otherwise meet the requirements of lawful Australian authority, including his multiple convictions for failure to appear in accordance with an undertakings; (2) the Applicant’s failure to experience any deterrent or dissuading effect of the progressively more severe sentences - including terms of imprisonment - that have been imposed); (3) the Applicant’s long-term alcohol and drug (including methamphetamine) abuse has severely distorted his moral compass; (4) the Applicant’s crimes against other people’s property demonstrates a lack of respect for private property; and
·overall, I find that although the Applicant's offending is serious when viewed in isolation, it should be viewed as very serious when viewed cumulatively.
Conclusion about the nature and seriousness of the Applicant’s offending
I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the following three factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2(2)(a) - The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. On this consideration, the Respondent’s submission is configured thus:
If the Applicant were to reoffend by committing further violent offences, the nature of the harm that may result includes physical harm to members of the community. Offending of that nature may also have ongoing psychological consequences for the victims and others. It will also have broader financial and other consequences to the justice and health systems. If the applicant reoffends by committing further property offences, the nature of the harm that result includes financial harm to Australian citizens and businesses.[58]
[58] Exhibit R1, p 8-9, para 31.
In oral submissions at the hearing, the Respondent expanded their contentions in the following terms:
MR WEST: …the next aspect of this consideration which is risk and in considering the nature of the harm it’s not only the number, the different types of harm that could be caused by the applicant’s offending but that it could really be inflicted on any person who finds themselves in his general vicinity.
There’s no rhyme or reason to who might be the subject of an assault, who might be the subject of financial damage through having their property destroyed, who might be the subject of the psychological harm of having your life threatened with a glass bottle. And on that point around threats, Member, in my submission there’s a real risk of a greater harm than what is already been exemplified through the applicant’s offending because what you have are repeated threats to kill whilst the applicant is armed with one object or another.[59]
[59] Transcript, p 89, lines 38-47; p 90, lines 1-4.
The Applicant’s submission on sub-paragraph 8.1.2(2)(a) were limited to accepting that the Applicant poses some risk of violent offending:
MEMBER: And can you speak to the nature of the harm to individuals or the Australian community should the applicant engage in the type of offending that he has engaged in, in the past?
MR TESSMAN: I accept there’s a risk of further harm to the community, but I would just be careful not to overstate it.
MEMBER: Okay.
MR TESSMAN: Certainly the offending from May 2017 in the District Court, was violent offending. Nevertheless when he came back before the Magistrates Court in 2021 that was not for like violent offending. It was a series of various offences such as breaching bail conditions, public nuisance, possessing dangerous drugs, and (indistinct) offences. There is a risk should all that not - all that rehabilitation go to plan, I accept there’s some risk of violent offending...[60]
[60] Transcript, p 81, lines 27-42.
I find that if the Applicant were to reoffend, the nature of the harm to the Applicant's victims and/or the community at large would be serious (or even catastrophic) physical, mental or economic harm.
Paragraph 8.1.2(2)(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 Applicant reoffending
The Applicant says that the Tribunal should find that the Applicant’s risk of reoffending in a serious way is not high.[61]
[61] Exhibit A10, p 4, para 13.
The Applicant contends that, generally, his serious offending occurred in the context of intoxication and, on many occasions, drug-induced psychosis.[62] Indeed, the Applicant goes so far as to claim that, with some exceptions, he has not, generally, seriously offended whilst sober.[63] The Applicant particularised his drug abuse as involving alcohol and cannabis (from 2017)[64] and methamphetamine (from 2019),[65] including up to weekly use.[66]
[62] Transcript, p 77, lines 22-23.
[63] Transcript, p 77, lines 34-35.
[64] Transcript, p 26, lines 32-35; p 28, lines 30-37.
[65] Transcript, p 24, line 33.
[66] Transcript, p 28, lines 5-28.
That the Applicant’s substance abuse was central to his offending and his mental health challenges, was highlighted in both the Applicant’s evidence in chief and his cross examination:
MR TESSMANN: With some of the offences that happened in more recent years, what do you think were some of the contributors that led to that offending?
INTERPRETER: …what contributed to this recent problem is because I got drunk and also, I smoked, so that is what caused those issues. It is because of drinking and also smoking.
MR TESSMANN: And you accept you took illicit or illegal drugs?
INTERPRETER: Yes.
MR TESSMANN: And how did that affect your head or your mental health?
INTERPRETER: It affect my mental health... [67]
MEMBER: You have said in your statement, [Applicant], that in relation to your mental health…. You’ve said that you had struggled with your mental health for a long time, and you say, in your statement, that, “It started getting very bad around 2017, which is when I turned to drugs and alcohol more.” Is it the case that your mental health deteriorated or got worse after you started to take the drugs?
…
MEMBER:..What I am getting at is what’s the trigger point for your mental health getting worse. I am seeking to understand the trigger for that.
INTERPRETER: It is the cannabis and the alcohol.[68]
[67] Transcript, p 12, lines 42-47; p 13, lines 1-10.
[68] Transcript, p 27, lines 25-32, 37-40.
Separate from that question of what triggers the Applicant’s offending, he says he suffered from mental health problems at an early stage.[69] The non-psychosis mental health problem was particularised as diagnosed[70] post-traumatic stress disorder (PTSD)[71] associated with early life physical and emotional trauma. Additionally, the Applicant suggested that he may possibly have schizophrenia,[72] although this was not strongly propounded by the Applicant given the lack of a comprehensive and definitive diagnoses.[73]
At the hearing, the Applicant provided some colour around why he engaged in substance abuse, repeatedly blaming his friends for his drug use:
MR TESSMANN: And what about drugs and alcohol?
INTERPRETER: …what forced me to go and [drink] and also smoke is my bad friends. My friends forced me to drink and also take the drug…[74]
MR TESSMANN: Now just going back to your mother, what have you told her about your offending?
INTERPRETER: The first time I went to prison I informed her and also explain how the offending that I’ve done and also I explain to her that I got some bad friends that lead me to have drink and taking the drugs.[75]
[69] Transcript, p 76, lines 39-41.
[70] Transcript, p 72, lines 5-6.
[71] Transcript, p 75, lines 40-43.
[72] Transcript, p 72, lines 7-8.
[73] Transcript, p 73, lines 39-44.
[74] Transcript, p 13, lines 40-43.
[75] Transcript, p 23, lines 22-28.
The Applicant’s submissions about risk centre on the proposition that the Applicant has some risk of reoffending, with such risk lowered by the Applicant addressing, now and in the future, what he says are the underlying stresses, drug-use and mental health problems in which his offending is rooted:
If [the Applicant deals with his issues], the risk of him reoffending, particularly in a serious manner, is significantly lowered. [The Applicant] has commenced addressing those matters and is committed to continuing to do so. In particular:
(a) he is committed to living at home with his family;
(b) his family members will strongly support him;
(c) he has commenced counselling with [Queensland Program of Assistance to Survivors of Torture and Trauma], and will continue that counselling once in the community;
(d) he is now taking his medication;
(e) he has plans to keep himself occupied and away from drugs, through playing sport, volunteering at church and obtaining employment.
Given it is likely he will continue to address those matters, the risk to the Australian community is lowered. Overall, this consideration pulls less strongly against revocation than in cases where applicants have engaged in serious, premeditated conduct, and have little interest in reform.[76]
[76] Exhibit A1, p 9-10, paras 69 & 70.
The Applicant readily concedes, however, that there is a dearth of independent evidence before the Tribunal that speaks to his recidivist risk:
Even though there is no psychiatric or psychological report…providing an assessment of his future risk of offending, it is certainly not the case the Tribunal should assume that risk is high or otherwise not low. There is no onus of proof in the Tribunal [Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at 240]. The Tribunal can and must make a determination of his future risk based on the evidence before the Tribunal by considering the causes of his past offending, and what has and will be done to address those causes. Importantly, consideration of what has and will be done to address those causes requires consideration of:
(a) the steps taken towards rehabilitation by [The Applicant] so far;
(b) the availability of future programs and support for [The Applicant] if released;
(c) his plans to complete these programs, and to work, play sport and go to church, and the support that will be provided by his family and community in the future.[77]
[77] Exhibit A10, p 3, para 11.
Further to the foregoing matters, the Applicant’s post hearing closing submissions highlight his future treatment plan:
Mr Anjullu Okelo will have available to him ongoing, trauma-based counselling with QPASTT, a psychiatric assessment and potential treatment available by Dr White, and potential drug and alcohol rehabilitation programs from Lives Lived Well and/or Centacare.
He is taking daily medication even though not on a Treatment Authority and will keep taking medication while in the community.[78]
[78] Exhibit A10, p 3-4, para 12.
The Respondent’s submissions on the likelihood of the Applicant engaging in further criminal or other serious conduct present a very different proposition compared to the Applicant’s position. The Respondent contends that there remains an ongoing and unacceptable risk of the Applicant reoffending for the following reasons:
There is no psychological opinion providing any professional risk assessment of the applicant’s likelihood of reoffending.
The applicant has a lengthy criminal history in Australia and a concerning theme is apparent from his criminal history in committing violent offences, towards innocent members of the Australian community as well as police officers going about their ordinary duties, and threatening to commit violence with glass objects. Previous sentences imposed by judicial officers, including serving almost one year in custody between May 2017 and April 2018, did not deter him from reoffending. Instead, within one year of being released, he was reoffending.
The applicant has a long-standing problem with drug and alcohol addiction. The District Court sentencing judge in 2018 said that ‘there was no question that you were grossly intoxicated at the time, which is in part an explanation for your conduct but certainly not an excuse’ (G10/63). It appears that the applicant’s substance abuse issues are linked with trauma endured early in life.
The applicant has past diagnoses of post traumatic stress disorder and drug induced psychosis. The applicant submitted that he first needed assistance from mental health professionals in 2009 after reporting auditory hallucinations. He has also provided a mental health fitness and soundness assessment report which concluded that in July and August 2019 he was likely suffering acute symptoms of drug induced psychosis. That report also identified that the applicant had intermittently engaged with mental health services in the past but was also using drugs. Importantly, there is no independent medical or other evidence before the Tribunal to support a conclusion that the applicant’s mental health conditions are presently under control and will be well managed if he is released into the community, especially given his intermittent history in the past of engaging with mental health treatment.[79]
[79] Exhibit R1, p 9-10, para 32.1-32.4.
Separately, the Tribunal received lay evidence from the Applicant’s family and others, including:
·a support letter from Ariet Peter Deng - the Applicant’s aunt;[80]
·a support letter from Kuwot Chapari Didumu - a “community elder”;[81]
·a support letter from Pwoch Okwier Oletho - a Church Pastor;[82]
·a support letter from Nyuthi Ojulu Ochala - the Applicant’s sister;[83]
·a statutory declaration from - Nyuthi Ojulu Ochala - the Applicant’s sister;[84]
·a statutory declaration from Ariet Peter Deng - the Applicant’s aunt,;[85]
·a statutory declaration from Ajullu Ojoo Owar - the Applicant’s cousin ;[86]
·oral evidence from Ariet Peter Deng - the Applicant’s aunt;[87]
·oral evidence of from Ajullu Ojoo Owar - the Applicant’s cousin;[88]
·oral evidence from, Nyuthi Ojulu Ochala - the Applicant’s sister.[89]
[80] Exhibit Tr1, G38, p 1260-1261.
[81] Exhibit Tr1, G38, p 1263.
[82] Exhibit Tr1, G38, p 1264.
[83] Exhibit Tr1, G38, p 1265-1266.
[84] Exhibit A3.
[85] Exhibit A4.
[86] Exhibit A6.
[87] Transcript, p 40 - 44.
[88] Transcript, p 49 - 51.
[89] Transcript, p 60 - 63.
The central themes running through this evidence include, relevantly: (1) the Applicant has experienced early life trauma arising from the death of his parents and violence in Ethiopia; (2) the Applicant has suffered from mental health challenges for many years; and (3) the Applicant has a supportive family network and some community support available to him if he were to remain in Australia. Generally, the witnesses appeared to be aware of some of the Applicant’s offending but not the full nature and extent. The same can be said in relation to the Applicant’s drug use and abuse. Generally, the lay evidence does not address the Applicant’s reoffending risk. Accordingly, I give this evidence limited weight in relation to the same.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
The Applicant offered little in the way of independent expert clinical evidence about the extent to which he has achieved rehabilitation by the time of this decision. The Applicant concedes that he is at an early stage of his rehabilitation journey:
MEMBER: So there’s a concession that the applicant has a problem with drugs or has had a problem with drugs. There’s been some rehabilitation, but it’s - it remains at its early stages…
…
MR TESSMAN: The submission is that he’s taken positive steps towards his rehabilitation. It’s certainly not completed or at late stages, but for some several months, if not many months, he’s taken steps in that direction.
MEMBER: Okay. But it’s still in an early stage?
MR TESSMAN: If the rehabilitation certainly seems a several year long process, where he needs to remain free from alcohol and drugs while in the community, yes.[90]
[90] Transcript, p 79, lines 36-38, p 80, lines 4-12.
Instead, the Applicant pointed to evidence of what he had done, and planned to do, as a part of his rehabilitation journey:
MEMBER: … the direction requires me to consider evidence of rehabilitation achieved by the time of the decision. That is, by the time the decision is pronounced. Would you - what do you say about the extent of the applicant’s rehabilitation within those parameters?
MR TESSMAN: Yes. He has, in my submission, taken some not insignificant steps towards rehabilitation. The first is at A7, which is the exhibit A7, the drug and alcohol abuse certificate, which is an online course.
MEMBER: So perhaps the first one is he’s identified that he’s got a problem.
MR TESSMAN: Yes.
MEMBER: Right.
MR TESSMAN: I think that’s reflected in his statement as well, but he certainly - sorry, I’ll step back. The first step is he makes no excuse, nor denies any offending. It’s fully accepted and fully recognised that he’s done the wrong thing, which is consistent with his evidence
MR TESSMAN: … He’s recognised the issues that contribute to that. He’s certainly spoken of peer group influence. Also obviously alcohol and illicit drug use.
MEMBER: So there’s some insight into the fact that he has a problem. He’s identified himself as having a problem, and in your submission he’s commenced a rehabilitation journey.
MR TESSMAN: Yes.
MEMBER: And part of the evidence of that commencement is the fact that he’s done a course whilst in immigration detention.
MR TESSMAN: Yes, that is one thing. So, in my submission, it’s certainly gone beyond simply insight and recognition, to taking steps to rehabilitate himself. The first is that course.
MEMBER: Yes.
MR TESSMAN: The second is 85, which is the letter from Fiona Perry from QPASTT. This is the counselling that he’s engaged in that he, in particular, he was referred in August 2022, remained on the waitlist until allocated a QPASTT counsellor in February 2023. And has completed three sessions at the time of writing that letter, which is dated 5 April 2023.
MEMBER: Yes.
MR TESSMAN: And she gives some brief insight, that he’s an active client, has engaged in all offered counselling sessions, and identifies as being motivated to continue engaging in fortnightly sessions. And then some further information about what he’s discussed. And [the Applicant] has expressed his desire to the tribunal to continue the counselling and support once he’s given a chance to return to the Australian community. Those would be the primary steps in rehabilitation that have been taken so far.
The third, I should mention, is A8, which is an email chain. An email from Fiona Perry, 19 April 2023 which indicates his treatment authority was revoked on 24 February 2023, that his mental health state was settled. And there are some notes there from that - essentially to the effect there was no longer a need for him to be treated under the Mental Health Act, and the medication that he was taking - and notes he’s agreeable to regular mental state reviews whilst doing this. And he’s given oral evidence of taking medication daily.
MEMBER: But perhaps this substantiates that it’s the drug-induced psychosis that is the genesis of the mental health issue, and if the applicant’s off drugs then his mental health stabilises. But there is or will be, by the time of the decision though - it’s still in its infancy. It’s still - the rehabilitation journey is surely at its infancy. It’s at its early infancy; isn’t it?
MR TESSMAN: I’d say that it’s in its early stages. It’s perhaps not at the earliest in the sense that multiple sessions of counselling have been undertaken, but that largely seems to have been due to being on a waiting list for quite some time.
MEMBER: Understood.
MR TESSMAN: Perhaps the willingness certainly is not in its infancy.
MEMBER: So there’s a willingness. There’s an identification of the issue. There’s a reaching out for support. There’s obtaining some support. There’s proper engagement with that support. But it’s still at an early stage.
MR TESSMAN: Yes.[91]
[91] Transcript, p 77, lines 45-46, p 78, lines 1-47; p 79, lines 1-34.
(iii) Conclusions about risk
Based on the relevant information before me, I draw the following conclusions:
·this is a case in which the risk of harm is so serious that any risk of reoffending is unacceptable – if the Applicant were to reoffend, the nature of the harm to the Applicant's victims and/or the community at large would be serious (or even catastrophic) physical, mental or economic harm;
·the Applicant’s claim that his risk of reoffending in a serious way is not high is not credible. The Applicant readily accepts that substance abuse was central to his very serious offending and to his related non-PTSD mental health challenges. The Applicant has taken very preliminary steps in the form of, among other things, a single online course and early engagement with a professional councillor – in a controlled environment. He aspires to future rehabilitation work. He has some family support for these efforts. While these things are commendable, they do not constitute evidence of durable rehabilitation;
·the Applicant clearly has non-substance abuse related mental health challenges, including diagnosed PTSD, stemming from his traumatic early life. Again, there have been preliminary steps to address these issues but there is limited evidence as to their efficacy in terms of reoffending risk and rehabilitation; and
·in the absence of the Applicant having engaged in a structured and comprehensive rehabilitation journey, to address his seemingly complex recidivist risks and substance abuse recovery needs (including the triggers for his serious offending), he likely remains a presently serious, and unacceptably high risk of reoffending.
Conclusion: Primary Consideration 1
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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 cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following relevant kind:
..
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this 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;
…[121]
[121] Paragraph 8.5(2) of the Direction.
In relation to the expectations of the Australian community, the Applicant contends that:
·Paragraph 8.5(1) of Direction 99 sets only a ‘norm’, not an inflexible rule - the Applicant experienced a terrible childhood and thus presents with a background of deprivation, and his moral culpability ought to be regarded as lowered. It follows that, and in all the circumstances of this matter, his case ought be regarded as sitting outside the norm of this expectation; and
·Paragraph 8.5(2) applies only to a limited number of the Applicant’s offences - while it is accepted that para 8.5(2) results in the ‘Expectations of the Australian Community’ factor weighing against revocation of the visa cancellation, this factor should be afforded less weight given para 8.5(2) does not apply to most of his offending.[122]
[122] Exhibit A10, p 4, para 14.
In reply, the Respondent submits the Applicant’s contention is an attempt on the part of the Applicant to do exactly what it is that Charlesworth J cautioned against in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”…[123]
[123] Exhibit R3, p 5, para 7.
The Respondent says that the purpose of paragraph 8.5 of Direction 99 is to set out the expectations of the Australian Community, as is to be applied by a decision-maker, and these deemed expectations should not be cast aside and individually assessed by the Tribunal.[124]
[124] Exhibit R3, p 5, para 8.
On the Applicant’s submission that only a limited number of his offences fall into paragraph 8.5(2), the Respondent contends that this is a “strained” reading of Direction 99:
There is nothing which suggests that all, or most, of a person’s offending needs to be of the nature of those described in paragraph 8.5(2) of Direction 99, for the applicant’s conduct to raise serious character concerns of a kind that the Australian Community would expect that non-revocation can and should be the outcome in this case. Rather the fact that the applicant has committed multiple offences of this kind, underscores the gravity of the character concerns he causes and the very heavy weight to be ascribed to this consideration.[125]
[125] Exhibit R3, p 5, para 9.
The Applicant also articulates that there is a further relevant factor or other consideration separate to the factors in Direction 99 that the Tribunal must consider:
This factor is that given [the Applicant’s] traumatic background, his offending, while serious, is not of a kind which reasonable people would expect to result in returning a refugee to a country of origin in which they have virtually no connection or support. Given this is a consideration separate from Direction 99, it is submitted that paragraph 8.5(4) does not prevent the Tribunal assessing what a reasonable person would consider on this matter. This further consideration weighs in favour of revocation.[126]
[126] Exhibit A10, p 4, para 15.
The Respondent sees the Applicant’s submission as an attempt to circumvent paragraph 8.5(4) of Direction 99:
[The Applicant’s position]..is in truth, not an ‘other consideration’ at all, but rather an effort to simply replace the ‘community’s expectations’ with that of a ‘reasonable person’ and have the consideration weigh in the applicant’s favour. Such an absurd submission should not be accepted by the Tribunal, particularly given that the substantive issues the applicant seeks to ventilate, being balancing of the severity of the applicant’s offending against the impediments to his return to Ethiopia, will ultimately occur in the course of the Tribunal weighing the relevant Direction 99 considerations.[127]
[127] Exhibit R3, p 6, para 11.
I am not attracted to the Applicant’s approach or submissions on this Primary Consideration 5 for the reasons enunciated by the Respondent. FYBR v Minister for Home Affairs is clear that the relevant provisions in this primary consideration (albeit in an earlier iteration) operate to deem the expectations of the Australian community and require decision-makers to view conduct within this compass. Accordingly, I am of the view (and I find):
·the Applicant has breached the Australian community’s expectations by his lengthy criminal record, evidencing repeated breaches of Australian laws. Therefore, the Australian community, “as a norm” expects the Australian government not to allow him to remain in Australia;[128] and
·the Applicant’s conduct engages the principle in paragraph 8.5(2), because he has committed serious violent crimes against women and elderly members of the community, and has committed crimes against police in the performance of their duties. The Australian community expects that the Australian government can and should cancel the Applicant’s visa.
[128] I have considered the guidance provided by Principles 5.2(2), (3) and (4) of Direction 99 in reaching this conclusion.
Conclusion: Primary Consideration 5
In weighing the applicable factors, I find that Primary Consideration 5 weighs heavily against revoking the decision to mandatorily cancel the Applicant’s visa.
OTHER CONSIDERATIONS
In making a decision under subsection 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Other Consideration (a): Legal consequences of decision under section 501 or 501CA
Direction 99 provides that decision-makers must “be mindful” that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention.[129] Accordingly, the Tribunal is required to have regard to these legal consequences in reviewing an application. The Direction sets up guidance regimes for decision-makers depending on whether an applicant is under a protection finding. There does not appear to be any suggestion that the Applicant is covered by a protection finding.[130] As such, and the parties agree,[131] I must consider paragraph 9.1.2 of Direction 99.
[129] Paragraph 9.1(1) of Direction 99; Exhibit R1, p 12, para 45.
[130] Exhibit R1, p 12, para 45.
[131] Transcript, p 83, lines 28-29.
Under paragraph 9.1.2(1) of Direction 99, where an applicant makes representations about international non-refoulement obligations, such claims “must be considered”. The Applicant has duly made representations about the same (addressed below). The Respondent acknowledges that the Applicant’s non-refoulement claims have the potential to engage Australia’s non-refoulement obligations.[132]
[132] Exhibit R3, p 12, para 46.
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. That interpretation is found in section 36 of the Act (and the relevant definition provisions).
The Applicant submits that he is owed non-refoulement obligations under each of:
·international law, namely the Refugees Convention (articles 1 and 33); and
·domestic law, namely subsections 36(2)(a) and (aa) of the Act.[133]
[133] Exhibit A10, p 5, para 16.
The Applicant also says that Australia would breach its obligations under both domestic law and international law if he was returned to Ethiopia.[134]
[134] Transcript, p 83, lines 29-32.
The parties referred me to Plaintiff M1/2021 v Minister for Home Affairs,[135] in which the majority (Kiefel CJ, Keane, Gordon and Steward JJ) stated that, in respect of claims by an applicant that they are owed non-refoulement obligations under unenacted international law and under domestic law, the decision-maker is permitted, but generally not required, to consider those claims as part of the request for revocation of the mandatory cancellation if the applicant can still apply for a protection visa.
[135] (2022) 400 ALR 417.
The Applicant submits it is appropriate for the Tribunal to consider these matters in this proceeding given they also coincide and overlap with another consideration under Direction 99, namely, extent of impediments. The Applicant also says that it is convenient to consider these claims in circumstances where other matters in this application, such as the Applicant’s PTSD, appear to relate to matters which caused him and his family to flee Ethiopia in 2003.[136]
[136] Exhibit A10, p 5, para 17.
The Applicant claims that he would be at real risk of serious or significant harm if he were to be removed to Ethiopia:
[he has]…a well-founded fear of persecution if returned to Ethiopia, and/or there is a substantial risk he will suffer significant harm if returned to Ethiopia, due to, at least, his Anuak (also known as Anyuak or Anywaa) ethnicity. He left Ethiopia at a time when the Anuak people were being killed in the Gambela region. There continues to be ongoing violence in the Gambela region against Anuak people, and thus there is a real risk of deprivation of his life.
There is a real chance this persecution relates to all areas of Ethiopia. Mr Anjullu Okelo will likely face violence and/or discrimination because he is Anuak even if he lives elsewhere in Ethiopia. In any event, there was no evidence that Mr Anjullu Okelo knows areas of Ethiopia outside of the Gambela region. While he speaks Anuak language, that language is spoken by few people in Ethiopia (and presumably mostly by Anuak people). The Ethiopian government cannot provide effective measures against this persecution and discrimination given its nature, and that the violence does at times also come from government officials.
Further, given it is recognised that people with mental illness in Ethiopia face harm and discrimination, he is also at risk of cruel or inhuman treatment, or degrading treatment or punishment, on the basis of his mental health symptoms and imputed disability.[137]
[137] Exhibit A10, p 5, paras 18-20.
On the question of what evidence supports the Applicant’s contentions for Ethiopia being an unsafe environment for the Applicant to return to, I was directed, first, to the witness evidence:
[MR TESSMAN]: …The first is – and as high as I can take it – is the evidence given by [the Applicant] and his family members. From their communication with people there. His sister, this morning, gave evidence of ongoing violence there, and they accept they have certainly Ariet Peter Deng gave evidence of the people she speaks to there. I accept none of them are direct witnesses but that is, in my submission, it is none-the-less evidence which, in my submission, there’s no reason to question that they were relaying the information, they understood to be the case, accurately.[138]
[138] Transcript, p 84, lines 46-47; p 85, lines 1-7.
Some of the witness evidence was, however, not exactly credible. For example, the Applicant’s sister, Nyuthi Ojulu Ochala, gave evidence about the weekly killing of Anyuak people:
…mostly every week we’ll hearing like okay this person get killed so the life back in Ethiopia for a Anyuak person it’s not safe because either from there’s like a genocide was happening every few weeks or so each week we will hear okay we got this many got killed either by the Ethiopian government or by the neighbouring countries so because they’re trying to invade into Ethiopia and because we’re like the region we lived in it’s in the border so it’s easy to get through...[139]
[139] Transcript, p 63, lines 2-9.
In addition to the statutory declarations,[140] the Applicant also relies on the following documentary evidence in particular in support of this claim:
·Exhibit Tr1, G31: a 2021 Discussion Paper by the German Development Institute entitled Refugees and Local Power Dynamics: The Case of the Gambella Region of Ethiopia, at pp 1164, 1168-1170, 1176-1180 and 1188-1189.
·Exhibit Tr1, G32: the DFAT Country Information Report Ethiopia (12 Aug 2020), at pp 1214 [3.1], 1230 [3.83], 1239 [5.31].
·Exhibit Tr1, G33: a profile on the Anuak in Minority Group International, at p 1247.
·Exhibit Tr1, G19: The Indigenous World 2019, at pp 587 to 589.
·Exhibit Tr1, G20: UK Home Office Country Policy and Information Note on Ethiopia (Sept 2020), at pp 836 [3.4], 841 [4.1.7].[141]
[140] Exhibit Tr1, G37, p 1253-1261.
[141] Exhibit A10, p 6, para 21.
The Respondent’s position is that consideration of any non-refoulment obligations should be deferred until such time as the Applicant applies for a protection visa. This, the Respondent says, is underscored by the fact that some of the country information relied upon by the applicant above is somewhat dated. The Respondent says that is not a cogent basis upon which the Tribunal can determine if protection obligations are owed, particularly where the delegate assessing any protection visa application will have the benefit of contemporaneous country information.[142]
[142] Exhibit R3, p 7, para 13.
Based on what is before me, I do not consider that the Tribunal is not in an optimal position to make a finding about whether the Applicant is in need of complementary protection. The Applicant is not precluded from applying for a protection visa. If he does, then his claims can be more comprehensively assessed in that process, and I am of the view that that is the appropriate course.
The Applicant cannot be removed while a protection visa application is being processed, and the grant of a protection visa would obviously entitle him to return to the wider community. He could be found to be in need of complementary protection but disqualified from being granted a protection visa because of character, community safety or security concerns.[143] If a protection finding[144] were made in the course of considering a protection visa application made by the Applicant (and not quashed or overridden), then section 198 of the Act would not require or authorise his removal.[145] He would be detained in immigration detention as required by section 189 of the Act for an indefinite period.
[143] Subsections 36(1B), (1C) and (2C) of the Act; subsection 501(1) of the Act.
[144] As defined by section 197C of the Act.
[145] Subsection 197C(3) of the Act.
There is a theoretical possibility that the Applicant could be removed to an alternative country, or the Respondent could exercise his/her personal discretion under section 195A of the Act to grant another visa or under section 197AB of the Act to make a residence determination to enable the Applicant to reside at a specified place in the community, subject to appropriate conditions. However, there is no evidence regarding the likelihood of these powers being exercised, and the Respondent’s current position is that the Applicant should not have a visa.
There is a real possibility that a non-revocation decision will result in the indefinite detention of the Applicant, which will mean continued physical separation from his family and limited access to the psychological treatment he needs. An alternative to indefinite detention is removal to Ethiopia. That would occur if the Applicant were not considered to be at real risk of persecution or significant harm specific to him (to put it simplistically). However dire the possible legal consequences of an adverse decision may be for the Applicant, this cannot be determinative: it hardly needs to be pointed out that a risk of serious harm in one’s home country is not a license to perpetrate harm in the Australian community. It is difficult to quantify the weight Other Consideration (a) carries based on possibilities. However, when balancing all the mandatory considerations, I am cognisant that an adverse decision will likely result in either removal to Ethiopia (addressed below in Other Consideration (b)) or indefinite detention.
In my view, it follows that Other Consideration (a) carries neutral weight in the instant case.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction guides a decision-maker to take into account the extent of any impediments that the non-citizen 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant contends that he would experience significant detriment if returned to Ethiopia, beyond the danger to his life and physical safety outlined in relation to Other Consideration (a) above:[146]
Ethiopia has very limited supports for persons with disabilities or mental health conditions. Despite suffering from mental health conditions, it is highly unlikely the Applicant will be able to access treatment and support. It is apparent it will be difficult for him maintain a normal, healthy life without ongoing medication and support. He has a plan to access support and medication in Australia. He will likely have neither in Ethiopia.
Moreover, he is at risk of discrimination and stigmatisation due to his stutter.
While he has a brother and uncle in Ethiopia, neither will be able to support him if he is returned to Ethiopia. His brother clearly has his own problems requiring support.
He faces significant impediments to accessing and maintaining basic and stable living standards in Ethiopia. This weighs heavily in favour of granting revocation.[147]
[146] Exhibit A1, p 13, para 98.
[147] Exhibit A1, p 13, paras 99-102.
At the hearing, the Applicant made submissions to the effect that given his PTSD diagnosis and his traumatic early life, requires counselling and mental health support and that this would not be easily available in Ethiopia:
[Obtaining this support] this will be difficult, if not impossible, to access without significant cost in Ethiopia. There are also cultural barriers to accessing such help in Ethiopia which compound those difficulties. Even if [the Applicant] does not have any physical impairments, his inability to access treatment for his mental health conditions means there will be significant impediments to accessing and maintaining basic and stable living standards in Ethiopia. Compounding this, he is at risk of discrimination and stigmatisation due to his stutter. Moreover again, he does not proficiently speak Ethiopian languages other than Anuak, nor is there evidence of deep affinity with Ethiopian cultures, given he left at the age of 10 after witnessing horrific violence.[148]
[148] Exhibit A10, p 6, para 22.
The Applicant also contended that if the Tribunal decides it is not going to consider the effect of visa cancellation on Australia’s domestic and international non-refoulement obligations during this process, then the likely harm the Applicant will suffer due to his Anuak ethnicity must still nonetheless be considered as part of other consideration (b). The Applicant says that a serious risk of violence and/or persecution is clearly an ‘impediment’ to establishing oneself and maintaining basic living standards.[149]
[149] Exhibit A10, p 6, para 23.
The Respondent points out that the Applicant lived in Ethiopia until he was 10 years of age and contends that he would unlikely endure significant cultural and language barriers if returned to Ethiopia.[150] The Respondent also says that although the Applicant would have access to the same social, medical and economic support available to other citizens of Ethiopia, they also acknowledge that the same would not be of the standard available in Australia .[151] The Respondent furthermore says that the Applicant has a brother and uncle who are living in Ethiopia,[152] although the Applicant’s evidence was that he has not spoken with these family members for many years.[153] That being said, the Applicant also gave evidence that he would reach out to his brother and uncle if he was returned to Ethiopia,[154] even though his brother is someone unable to “look after” him as he is homeless and has mental health problems of his own.[155]
[150] Exhibit R1, p 14, para 54.
[151] Exhibit R1, p 15, para 55.
[152] Exhibit R1, p 15, para 55.
[153] Transcript, p 19, lines 36-41; p 20, lines 1-5.
[154] Transcript, p 20, lines 7-24.
[155] Transcript, p 16, lines 11-23.
Based on the parties’ submissions, I am of the view that:
·Sub-paragraph 9.2(1)(a): the Applicant’s age (30 years old) is not an impediment to him re-establishing himself in Ethiopia. The evidence before the Tribunal indicates that the Applicant has suffered long-term mental (including substance abuse induced psychosis and PTSD) and other health issues. This is obviously a significant medium to long-term obstacle for the Applicant in maintaining basic living standards in Ethiopia. I do not consider that the Applicant’s mental and health conditions can be adequately managed over time in Ethiopia (noting the non-comparable levels of healthcare available to the Applicant in that country). I consider (and find) that significant health-related resettlement impediments will likely persist for this Applicant in the medium to long-term.
·Sub-paragraph 9.2(1)(b): the Applicant was born in Ethiopia and arrived in Australia on a permanent basis in 2008, aged around 15 years. As the Applicant has spent around one-third of his life in Ethiopia, it is difficult to assert that the Applicant will be confronted with insurmountable or significant cultural barries were he returned to that country. Evidently, the Applicant maintains a sound Anuak language capacity. Anuak is the language of the Anuak people and is widely spoken in the western part of Ethiopia. Accordingly, I am not persuaded that this will impede his return and re-settlement to Ethiopia.
·Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will present significant impediments upon return and resettlement in Ethiopia. I have also earlier found that Ethiopia has non-comparable levels of healthcare to Australia. A similar finding can be made with reference to government-related economic supports available to the Applicant in Ethiopia. Moreover, the Applicant does not appear to have durable social and family support in Ethiopia, and this will obviously impede his short and medium-term re-settlement.
Overall, I am of the view (and find) that Other Consideration (b) confers very heavy, but not determinative, weight in favour of revocation of the decision under review.
Other Consideration (c): Impact on victims
There is no evidence from any victims of the Applicant’s offending as to the impact the decision would have on them. Overall, I find that this consideration is of neutral weight.
Other Consideration (d): Impact on Australian business interests
The parties did not propound anything of substance in relation to Other Consideration (d). Overall, I find that this consideration is of neutral weight.
Findings: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations relevant to the present matter:
(a)legal consequences of the decision: neutral weight;
(b)extent of impediments if removed: very heavy, but not determinative, weight in favour of revocation;
(c)impact on victims: neutral weight; and
(d)impact on Australian business interests: neutral weight.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under subsection 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by subsection 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy weight against revocation;
·Primary Consideration 2: carries neutral weight;
·Primary Consideration 3: carries a moderate, but not determinative, weight in favour of revocation;
·Primary Consideration 4: carries a moderate, but not determinative, weight in favour of revocation;
·Primary Consideration 5: carries a very heavy weight against revocation;
·I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1 and 5 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Consideration 3 and 4, and Other Consideration (b), respectively; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 February 2023 to not revoke the cancellation of the Applicant’s visa.
I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
..............[SGD].....................
Associate
Dated: 8 August 2023
ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED Tr1
Section 37 T-Documents (1322 pages)
R
-
06/03/2023
A1
Applicant’s Statement of Facts, Issues and Contentions (13 pages)
A
28/03/2023
28/03/2023
A2
Statutory Declaration of Workber Anjullu Okelo (5 pages)
A
28/03/2023
28/03/2023
A3
Statutory Declaration of Nyuthi Ojulu Ochala (4 pages)
A
27/03/2023
28/03/2023
A4
Statutory Declaration of Ariet Peter Deng (4 pages)
A
27/03/2023
28/03/2023
A5
Letter from Anna Perry (Statement of Engagement) (2 pages)
A
05/04/2023
17/04/2023
A6
Statutory Declaration of Ajullu Ojoo Owar (4 pages)
A
19/04/2023
20/04/2023
A7
Drug and Alcohol Abuse 101 Certificate of Completion (1 page)
A
02/04/2023
19/04/2023
A8
Email chain regarding the Applicant’s mental state (5 pages)
A
-
19/04/2023
A9
Support Letter from Dr Paul White (2 pages)
A
20/04/2023
20/04/2023
A10
Applicant’s Closing Submissions (6 pages)
A
02/05/2023
02/05/2023
R1
Respondent’s Statement of Facts, Issues and Contentions (15 pages)
R
11/04/2023
11/04/2023
R2
Respondent’s Tender Bundle (201 pages)
R
-
11/04/2023
R3
Respondent’s Closing Submissions (7 pages)
R
05/05/2023
05/05/2023
0
9
0