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

[2023] AATA 2193

PKCJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2193 (25 July 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3069

Re:PKCJ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:25 July 2023

Place:Sydney

The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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

Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – mandatory visa cancellation – Refugee and Humanitarian (Class XB) (Subclass 202) visa – citizen of Iraq – detain person with intention to obtain advantage and sexual touch conviction – PTSD, trauma and use of alcohol as important factors – applicant as full-time carer for mother – decision under review set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

25 July 2023

1. The applicant is a man of 28 years who is a citizen of Iraq. He is of the Sabean Mandean Sect. The Sabean Mandean Sect is a minority sect in Iraq. His father (now deceased), mother and sister (kidnapped, whereabouts unknown) were also members of that sect.

2. The applicant arrived in Australia in May 2017 and then held a Refugee and Humanitarian (Class XB) (Subclass 202) visa.

3. In November 2020 the applicant was 25 years of age. On 3 November 2020 over a period of 40 minutes, in a public park in a Sydney suburb he detained with intention to obtain advantage and sexually touched a female person without consent, and the sentencing judge took into account six other matters, being related offences which occurred during the same 40 minute period.

4. On 6 November 2020 he was arrested and taken into custody.

5. In December 2021 he pleaded guilty and was convicted of the offences in question and the District Court judge imposed an aggregate sentence of three years and 2 months which expires on 5 January 2024, with a non-parole period of two years which expired on 5 January 2022. He then went into detention. Today, he has spent more than a year and three months in detention, since his case is Pearson-affected. He was at liberty from December 2022 until March 2023.

6. His visa was the subject of mandatory cancellation while he was imprisoned. The applicant made representations seeking the revocation of the cancellation of his visa and a delegate of the Minister refused to revoke the cancellation. The applicant sought review of the delegate’s decision in the Tribunal.

7. It is clear that the applicant does not pass the character test and the applicant concedes that fact. The issue in the proceedings is whether there is another reason to revoke the cancellation of the visa, in accordance with s 501CA(4)(b)(ii) of the Migration Act 1958 (the Act).

8. Direction No 99 (the Direction) made by the Minister under s 499 of the Act binds decision-makers under the Act, including the Tribunal. The terms of the Direction (G23) are published and I will not repeat their terms here. The Principles set out in cl 5.2 of the Direction provide a framework within which decision-makers should approach their task of deciding, inter alia, whether to revoke a mandatory cancellation, and I note their terms.

9. There are five primary considerations listed in cl 8 of the Direction, each of which is described in sub-clauses of cl 8. I will take them in turn. In accordance with cl 7, they should generally be given greater weight than the other considerations, and one or more of which may outweigh other primary considerations.

10. The factor of protection of the Australian community is described in cls 8.1, 8.1.1 and 8.1.2. Sexual crimes are viewed very seriously by the Australian government and the offending mentioned at [3] above was very serious. The sentencing remarks (G7) of the District Court Judge who sentenced the applicant contain a detailed account of the offending mentioned at [3] above and I adopt it. It was not contested by the applicant in evidence before me.

11. It was his first offence of such a nature, and was not repeated when the applicant was at liberty for several months until March 2023, when he was returned to detention as a result of the passing of the act which validated the mandatory cancellation of the applicant’s visa.

12. There were earlier motor vehicle offences, one of driving while not carrying a licence and one of driving with middle range PCA for which he was fined $800 and received a three month licence disqualification and ordered to participate in a 12 month alcohol interlock program. That disqualification was extended until 1 September 2025 because of non-compliance with the alcohol interlock program, as appears from S56 of the Respondent’s Supplementary Documents. There were other driving offences in 2018 for speeding and not stopping at a red arrow.

13. The applicant had a traumatic background. When he was eight years old, his father was killed in the streets of Baghdad in 2003 when he was shopping for bread. The applicant went to Syria with his mother in 2003, also when he was eight, and sister. The applicant’s mother said that the men who killed him had their faces covered and that the rest of her family moved to Syria in the same year. In Syria, where they lived until 2017, his sister (then aged 16) was kidnapped and was never seen again. In Iraq and again Syria, he was a witness to violence and war. In Iraq, and in Syria, he witnessed terrorism. He recalled seeing several suicide bombings, raids, men, women and children dying in the streets, shootings, fires, buildings collapsing as well as blood spilling into the street. Ms Grujoska, psychologist, who prepared a report in December 2021 for the District Court, expressed the view that he was experiencing symptoms consistent with PTSD. That opinion was adopted by other medical professionals who gave evidence before the Tribunal, as discussed below.

14. As to recidivism, Ms Grujoska expressed the opinion that the applicant fell in the moderate-low risk which had a sexual recidivism rate of 6.6% over two years.

15. Ms Grujoska noted that the applicant reported that he could not recall the amount of alcohol he had drunk at the time of the offending and struggled to remember details of the offence, explaining that he was feeling “out of his mind” and “not present”. She said that he expressed remorse and regret for his actions, and stated that he would like to apologise to the victim. He remarked that he would be devastated if someone had done something of this nature to his sister.

16. Mr Watson-Munro, psychologist, interviewed the applicant audio-visually at Villawood Detention Centre in May 2023 on two occasions with an interpreter. He stated that the diagnosis of PTSD by Ms Grujoska was consistent with his own discussions with the applicant and his assessment of him. The applicant described a spectrum of symptoms reflective of PTSD, including flashbacks, a loss of trust in others, significant depression, hypervigilance to danger, anticipatory anxiety and diminished self-esteem. The applicant denied any fantasies of sexual abuse involving women and reported that he feels deep shame regarding his offending conduct. Mr Watson-Munro suggested that the degree of risk identified by Ms Gujoska is now diminishing, in the context of his prolonged period of being alcohol free, his maturation and his improved judgment and improved insight referable to his offending conduct and the drivers behind his alcoholism. The applicant also expressed considerable remorse. He stated that the applicant also has insight into the impact that his potential deportation will have upon his mother, who has suffered substantial loss in her life because of the loss of her husband and daughter. He believes that if he is deported to Iraq, his mother may well die. He also fears that if he is deported to Iraq he will be killed. In addition, the prospect of indefinite detention is weighing heavily upon his mind. These factors, Mr Watson-Munro said, are reinforcing his desire to seek help and not to reoffend. In his oral evidence he said that the applicant expressed a strong desire for treatment, which indicated to Mr Watson-Munro that he is highly motivated not to reoffend.

17. Mr Watson-Munro stated that the applicant would benefit from EMDR for his PTSD and cognitive behaviour therapy administered by an Arabic speaker, upon the issue of relapse prevention, in addition to supportive and motivational psychotherapy. When asked about the fact that Dr Mohammad had not in the two consultations he has had with the applicant yet gone into the detail of the applicant’s offending, he commented that it’s not necessarily something that you leap into straight away. He said that training to address his sexual offending should certainly be part of the treatment he undertakes. Treatment of the applicant in gaol has not been offered to him because his spoken English is poor.

18. Dr Mohammad next gave evidence before the Tribunal.

19. Dr Mohammad has the degree of PhD in occupational therapy, specialised in mental health and trauma from the University of Sydney. In Jordan he completed the degree of Bachelor of Nursing and became a registered nurse. After immigrating to Australia he did a second degree of Bachelor of Nursing, and is a registered nurse in this country. He first obtained a Master’s degree in Occupational Therapy and then undertook his doctoral studies. He is experienced in mental health nursing in this country, including work he does as a mental health nurse at Bankstown community centre. He communicated with the applicant in Arabic, which is very important for the applicant, and Dr Mohammad noticed that the applicant was very relieved to be able to communicate with him in Arabic.

20. Dr Mohammad reported that he had seen the applicant on 25 January 2023 and 22 February 2023, and said that the applicant had been unable to keep his March appointment because he was returned to detention at that time. He said that if the applicant is released he would continue to seek supportive counselling to manage his symptoms, including cognitive behaviour therapy, with a primary focus on behavioural activation and coping mechanisms, including a culturally focused program and sex-offending focused therapy. During his oral evidence he was informed by counsel of details of the offending which he had not so far discussed in detail with the applicant. He said that he would send him to a proper sex-offenders program. It would be a program in the applicant’s area, perhaps located with the assistance of the applicant’s parole officer.

21. He expressed the opinion in his report that his offending is the direct expression of chaotic behaviour that reflects an underlying failure of self-regulation caused by his past trauma and complex presentation.

22. He said that the applicant shows a good degree of motivation to engage in counselling and acknowledged the need to address areas of difficulty.

23. Dr Mohammad has also treated the applicant’s mother since her arrival in Australia in 2017. He said that he has been treating her for mental health problems (trauma and anxiety) stemming from the loss of her husband and daughter, and that he is aware that she has multiple medical problems. She limps and uses walking aids. She has no car and does not drive. She needs help with domestic issues and shopping, and attending medical appointments.

    The applicant’s mother

24. The mother’s presence here is one of the protective factors to be taken into account in regard to cl 8.1 of the Direction.

25. The applicant arrived here with his mother in 2017. She gave evidence in the Tribunal through an interpreter. She has recently acquired Australian citizenship.

26. She described a close relationship with the applicant. She said that her son was assisting her by cleaning the house, with the floor, with the dishes, and with loading the washing machine, by way of example.

27. As to her medical problems, she said she has (high) blood pressure, (high) cholesterol, asthma, joint issues in her shoulder, numbness in half her body, and sometimes gets dizzy if she does not take her medication. She said her vision is poor, particularly in her right eye. She walked with a cane and appeared to me to be very frail.

28. Asked whether a neighbour is helping her while her son has been back in detention, she replied that the neighbours do not help her. Asked how things have been since her son went back into detention she said her situation is not that good.

29. She said she has a brother in Australia who lives interstate (four hours away by plane) and a sister who lives in New South Wales. She does not see her sister often because she is busy with her family, and that the sister has diabetes, blood pressure, joint problems as well and that she has cancer. The sister’s children are all adults.

30. She told me that she knew the applicant drank alcohol in Syria and that when he was home over three to four months until March 2023 he did not drink at all, and that he told her he would not be drinking any more.

31. It was clear to me that she badly needed assistance from the applicant. In his evidence the applicant stressed that he needs to care for his mother.

    The applicant’s drinking of alcohol and his other evidence

32. In Syria, the applicant commenced drinking alcohol to block out the trauma. The drinking continued in Australia up to and including 6 November 2020, when he was arrested for the offending referred to in [3] above. On the day of his offending, he consumed three quarters of a litre of whisky. Although the District Court judge who sentenced him the following year was not permitted to take the effects of alcohol into account in the sentence, it is in my opinion a matter of importance in this review. That is because he decided to cease drinking altogether on the day he was arrested, and has done so, not only in prison and in detention but also during the three to four months when he has been at liberty until March this year. His decision made in November 2020 was never to drink again.

33. He said that at the time of the offending he was drunk.

34. Another matter which affects his likely future is his concern for his mother. He was, until arrested in November 2020, a full-time carer for his mother, who does not work and is frail and ill. For a time, he worked as a car wash attendant and at a supermarket, but gave up those jobs in order to look after his mother. He was her carer for two years before his arrest. He has lived with his mother all his life and would love to have friends but feels that he is unable to establish these relationships due to his poor emotional state and lack of social skills.

35. He said that while he has been away from his mother’s home, including from Villawood, he checks on her three or four times a day by phone.

36. He told me, and I accept he believes, that if he is sent back to Iraq he will be killed there.

37. He attends church in Australia with his mother, which his mother confirmed to me.

38. The lack of treatment of the applicant to date while he has been in gaol and detention is because of his poor grasp of English. He could not be said to have so far received rehabilitative treatment.

39. Having left school in Syria at a very young age, he is illiterate and his spoken English is very limited.

40. He has been in touch while at Villawood with Sandra from Odyssey House who told him that he is eligible for two courses from that institution. I understood that he wishes to do so. Asked whether he would attend a sex-offender’s course he said that he would so. He wishes to attend further treatment with Dr Mohammad.

41. He said that he is ashamed of his offending conduct. I am satisfied that his remorse is genuine.

42. Cross-examined by Ms Gutmann, who appeared for the respondent, about his understanding of the need for consent from a woman before any sexual relations may take place, he gave examples indicating that he did understand the need for consent and accurately described how consent would be signified, and accurately described how refusal of consent might be signified.

43. As Mr Watson-Munro and Dr Mohammad said, his motivation to be treated is strong, and it is to be expected that if released, he will seek such treatment. Part of his treatment described by Dr Mohammad includes the reinforcement of his avoidance of alcohol.

44. Returning to Direction No 99, the nature of the offending conduct of the applicant is properly characterised as very serious. It was conduct committed on one occasion, when he was not properly in control of himself, no doubt because of the alcohol consumed on the day of the offending. Any dependence on alcohol at this time appears to be in remission. As the learned judge said, his behaviour was impulsive. He has a strong motive to obtain treatment, treatment which at the time of his offending, he seems never to have had. His circumstances are now more propitious because of the protective factors which obtain, including the insight which he has now obtained, and his strong desire to obtain treatment to avoid any recidivism, and the availability to him of treatment from Dr Mohammad, who speaks Arabic.

45. If the offending were to be repeated there is no doubt that members of the community, particularly women, would be at risk of harm. The applicant frightened the victim, detained her for sexual gratification and sexually touched her over a 40 minute period. He left when the victim began to film him using her mobile phone.

46. The 2021 evidence of Ms Grujoska makes an estimate of the likelihood of recidivism, as moderate to low, and the 2023 evidence of Mr Watson-Munro suggests that the risk of recidivism at the present time is moderate trending to low, suggesting an improvement since 2021.

47. The protective factors are the applicant’s strong desire to look after his mother, which will be impossible if he is deported, the involvement to date and anticipated of Dr Mohammad, the fact that he will have the assistance of the parole authority until 5 January 2024, and importantly the fact that his alcohol dependence is in remission, and his evidence which I accept that he firmly intends never to drink again. In particular I take into account the matters mentioned in cl 8.1.2 of the Direction. The sentencing judge made a finding of reasonable prospects of rehabilitation, and the evidence of Mr Watson-Munro in particular reinforces that opinion as at this date.

48. All of the circumstances I have mentioned need to be taken into account and balanced against other matters mentioned below in determining the correct or preferable decision.

49. The factor in cl 8.2 relating to family violence has no application to this case.

50. The strength, nature and duration of ties to Australia relates particularly to the applicant’s mother. As the applicant said, he has lived with his mother all his life, and she has depended on him substantially. He has nobody in his life closer to him than his mother.

51. His mother is here for life and recently acquired Australian citizenship.

52. She has lost her husband and her daughter, so deporting her son would deprive her of the rest of her immediate family. The lady would be devastated if she were deprived of her son and so would the applicant be devastated if he could no longer look after her.

53. Cl 8.4 refers to the interests of minor children in Australia, a factor which is no relevance to this case.

54. Cl 8.5 refers to expectations of the Australian community, being deemed expectations of the government as articulated in the sub-clause. It does not favour revocation of the cancellation and its weight is a matter to be considered in the final balancing of the various matters to be taken into account in the particular facts and circumstances of the case.

    The expressly mentioned “other considerations”

    The legal consequences of the decision

1. Deportation of the applicant will follow unless protection obligations are found to be owed in respect of the applicant. The reviewable decision treats that question as a possibility, with some justification. It would not be fully investigated unless and until the applicant makes an application for a protection visa. Since no such application has been made to date the applicant would at the present time be liable for immediate removal.

2. That raises the question of impediments if removed referred to in cl 9.2 of the Direction. As the respondent fairly concedes in his Statement of Facts, Issues and Contentions, there are relevant reports that the overall quality and availability of healthcare in Iraq is low, and, in particular that mental health care services are inadequate. That would affect the applicant quite significantly in his current situation, in that his PTSD and depression has not yet been treated in this country, and the services he needs are inadequate in Iraq. Discrimination against Sabean Mandeans may also affect the ability of the applicant, if he is removed, to obtain such treatment as he needs. That factor needs to be put in the balance against other factors mentioned above.

3. If the applicant applies for a protection visa, he will be detained for a period, perhaps a long period while that claim is determined. If he succeeds in such a claim, then s 197C of the Act will lead to his indefinite detention, unless the Minister takes action in his favour under

   
   

   s 195A or s 197AB of the Act, and there is no evidence that such a matter will be considered or is under consideration.

4. Indefinite detention will cause the mental health of the applicant to worsen. See the applicant’s Statement of Facts, Issues and Contentions at paragraphs 70-74, including the research quoted in paragraph 72, footnote 39 and the Joint Committee Immigration Detention Report cited at footnote 40.

   An “other consideration” not expressly mentioned in the Direction

5. It seems to me that humanitarian considerations call for attention in this matter.

6. The applicant left school early to assist his mother and sister by working in Syria. He is illiterate and his command of English is limited. It seems that the report of Ms Grojuska of 2021 is the first formal diagnosis of his mental health, now confirmed by others in 2023. He may not have understood that the trauma and loss he experienced made his mental health in need of treatment. He in fact received no treatment before his offending and his limited English meant that in gaol, where treatment was available, was not offered to him. His alcohol addiction is presently in remission, and he has taken a firm decision to stay away from alcohol in the future. Treatment for that purpose is readily available in our community. Alcohol was plainly a significant factor in his offending, as was his loneliness and the lack of a relationship of his own, and the lack of friends here. Sending him to Iraq will largely deprive him of the treatment he strongly desires to undergo. He is young man, without a history of bad behaviour in the community, apart from the offending for which he was imprisoned. His relative youth suggests that with proper treatment, he may derive benefit from his time in Australia that he has not enjoyed since his arrival here in 2017. Having lost his father and his sister, the prospect of the applicant now losing contact with his mother and being unable to look after her, and being instead sent back to Iraq which he left 20 years ago at the age of 8 years, and where he has no relatives and knows nobody, would multiply the misfortunes he has faced. It would also devastate his mother.

   Balancing the factors

7. The cl 8.1 factors weigh against the applicant, with some qualifications. The applicant has what the District Court judge described as reasonable prospects of rehabilitation. The evidence of M Watson-Munro and Dr Mohammad suggest that with anticipated treatment his prospects of being rehabilitated are quite good. I note in particular the proposed treatment of his alcohol dependency and his intention to attend a sex-offender’s program. The applicant’s clear desire to remain of assistance to his mother will also serve as an additional protective factor, and the fact that he will be under the control of the parole authorities for the next five months is an additional protective factor.

8. The factor of the expectations of the Australian community counts against the applicant.

9. The factor of the strength, nature and duration of ties to Australia, involving the applicant’s mother weighs in favour of the revocation of the cancellation of the visa, as does the extent of impediments if removed, and the humanitarian consideration I have mentioned.

10. Balancing each of those considerations in the light of the others, in my opinion the correct or preferable decision is to revoke the cancellation of the applicant’s visa under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 25 July 2023

Date(s) of hearing:	10 & 11 July 2023
Counsel for the Applicant:	Mr D Bhutani
Solicitors for the Applicant:	Ms J Schulman, Legal Aid NSW
Solicitors for the Respondent:	Ms G Gutmann, MinterEllison