PZZC and Minister for Home Affairs (Migration)

PZZC and Minister for Home Affairs (Migration) [2018] AATA 4125 (2 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4542
Re:PZZC
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:2 November 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant should not be refused a Safe Haven Enterprise (CLASS XE) Visa under s 501(1) of the Migration Act 1958 (Cth).
...............[sgd].........................................................
Ms Anna Burke, Member
MIGRATION – visa refusal – applicant is a stateless Palestinian born in Syria – applicant applied for a Safe Haven Enterprise (Class XE) visa – applicant does not pass
character test in s 501(6)(a) – applicant not of good character on account of substantial criminal record – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of re-offending – best interests of minor children in
Australia – international non-refoulement obligations – decision under review set aside
Legislation
Migration Act 1958 (Cth); ss 36(2)(aa) 195A, 197C, 499, 500, 501
Evidence Act 2008 (Vic); s 128
Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 567
NBMZ v Minister for immigration and Border Protection (2014) 220 FCR 1
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014
REASONS FOR DECISION
Ms Anna Burke, Member
2 November 2018

On 5 June 2018 a delegate of the Minister for Immigration and Border Protection (the Minister) issued a Notice of Intention to Consider Refusal of PZZC’s Safe Haven Enterprise (Class XE) visa application under s 501(1) of the Migration Act 1958 (Cth) (the Act). On 2 July 2018 PZZC’s legal representatives provided a response to the notice and requested that the discretion be exercised not to refuse the application.
On 10 August 2018 a delegate of the Minister made a decision to refuse PZZC’s application for a protection visa under s 501(1) of the Act. Notice of this decision was provided to PZZC on 13 August 2018. The delegate found that PZCC did not pass the character test, as set out in s 501(6) of the Act as he had a substantial criminal record after being convicted and sentenced on 23 December 2016 by the Children’s Court of Victoria to seven criminal offences resulting in custodial sentences of 26 months. The delegate found that PZZC’s offending was very serious, especially that of intentionally causing serious injury of a violent nature against a vulnerable member of the community. It represented an unacceptable risk of harm should he re-offend, such that the Australian community would expect his visa application to be refused. The delegate found no sufficient countervailing considerations in PZZC’s case to warrant the Australian community accepting any level of risk and decided to exercise the discretion to refuse the visa.
On 14 August 2018 PZZC lodged an application with the Administrative Appeals Tribunal under s 500(1)(b) of the Act seeking review of the decision to refuse to grant the visa. At the time, PZZC was being held at Yongah Hill Detention Centre (CIDC), and he was transferred to Melbourne to appear in person at the Tribunal. At the hearing of his application on 22 and 23 October 2018, PZZC was represented by Mr Andrew White of Counsel instructed by Mr Simon Bruck of the Refugee Advice & Casework Service. Mr David Brown, solicitor from Australian Government Solicitor, appeared for the Minister. The Tribunal and the parties were also assisted by interpreters in the Arabic language. The Minister lodged a set of paginated documents (the G-Documents) and a set of supplementary G-Documents. The applicant provided a number of written statements to support oral evidence, as well as several other documents. A full list of the documents tendered into evidence is appended to this decision.
BACKGROUND
PZZC is a 20-year-old stateless Palestinian born in Syria, who arrived in Australia as an Unlawful Maritime Arrival at Christmas Island in December 2013 aged 15, with his parents and three siblings. The background information has been compiled from statements tendered by PZZC’s representatives, and from information provided by the respondent. The information was not contested during the hearing and was additionally informed by the findings of the delegate in PZZC’s parents’ Safe Haven Visa application where the delegate found:
With the conflict in Syria in its fifth year, the humanitarian situation continues to deteriorate rapidly. The total number of people in need of humanitarian assistance and assistance inside Syria has reached 13.5 million up from 12.2 million in February 2015, including approximately 6.5 million internally displaced persons.
In 2015, violence continued to escalate inside Syria amid an absence of meaningful efforts to end the war or reduce abuses. The government and its allies carried out deliberate and indiscriminate attacks on civilians. Incommunicado detention and torture remains rampant in detention facilities. Non-state armed groups opposing the government also carried out serious abuses including attacking civilians, kidnapping, and torture. The armed extremist group Islamic State (also known as ISIS) and Al-Syria, Jabhat al-Nusra, were responsible for systematic and widespread violations, including targeting civilians, kidnappings, and executions. According to local Syrian groups, as of October 2015, the death toll in the conflict reached more than 250,000 people including over 100,000 civilians. According to local groups, more than 640,000 people live under long-term siege in Syria. The conflict has led to humanitarian crisis with an estimated 7.6 million internally displaced in 4.2 million refugees in neighbouring countries. Access to food, water and sanitation, housing, health care and education is severely affected by the cumulative effects of armed conflict and the related destruction of infrastructure, disruption of essential services and loss of livelihoods. All parties to the conflict are implicated in targeting vital services resulting in interruptions to the supply of safe drinking water and electricity.
UNHCR list Palestinian refugees in Syria as among the most vulnerable of the affected population groups in the country. It states that Palestine refugees in Syria are disproportionately affected by the conflict, due to poverty before the war, displacement along front lines, and a high risk of detention and refoulement when seeking refuge in neighbouring countries. Reports advised that Palestinian refugees in Syria are particularly vulnerable with 95% completely dependent on humanitarian assistance to meet their basic needs. The government reportedly cut off humanitarian aid and access to the predominantly Palestinian neighbourhood of Yarmouk in 2013, leaving 18,000 civilians without medical care at risk of starvation. Following ISIS incursion into the camp, humanitarian access to Yarmouk and environs worsened.
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In conclusion, I am satisfied that the applicant is a Palestinian refugee from Syria and a Sunni Muslim. I am satisfied that he is from Yarmouk in Syria. I accept he fled Syria to escape the escalating violence and the growing humanitarian crisis in the country. I also accept he fears his sons being forcibly conscripted by the military in Syria.
Prior to the commencement of the Syrian civil war PZZC and his family lived a comfortable life in the suburbs of Damascus. He attended a private multi-faith school where he experienced no tension or discrimination. He enjoyed his study and playing soccer with his friends. In 2011, when PZZC was 12 years of age, the war was omnipresent and there were daily events which were potentially life-threatening to PZZC and his family. In particular, three incidents horrified PZZC and have had a profound impact on PZZC’s psychology:
·In about February 2012, PZZC’s school was bombed, killing many of the students, nearly all of PZZC’s classmates, three of his best friends and a number of the teachers., PZZC suffered a shrapnel wound to the head which resulted in profuse bleeding and he was hospitalised after the incident. His brother was also injured in the attack. PZZC has recalled on numerous occasions seeing the parts of children bodies strewn around the school.
·On another occasion PZZC, his father, brother and neighbours were on the street in front of their home when a group of individuals (possibly militia) with guns came, demanding that they put their hands on the wall with one foot raised. They then commenced shooting at their feet. PZZC wet himself thinking he and the others were going to be killed. Following this incident, PZZC and his family left their home, relocating to the next town where his grandmother was living.
·While staying at his grandmother’s house food was in short supply and one day they decided to go into the city to get some food items. The entire family drove to the city and on the way back there were ambushed by armed men. PZZC’s mother and father were pulled from the car and their children witnessed them being threatened and physically assaulted. PZZC’s father was hit on the back of his head with a gun; his mother’s hijab was pulled from her head with large chunks of her hair, she was thrown to the ground, and the men threatened to rape her. Both parents were on the ground outside the car bleeding, his mother was screaming and crying for help. PZZC and his siblings were crying and screaming, asking the men to stop. After some time, the men left PZZC’s family in the middle of nowhere, having stolen their food and all their belongings. PZZC’s parents, who were covered in blood, returned to the vehicle and called an uncle who drove them back to his grandmother’s place.
Following this incident and the further deterioration of the situation in Syria, the family concluded they had no choice but to flee the country. The family took an arduous route, first on bus to Lebanon. They then flew to Bangkok, Thailand, where they had understood they would be able to access help from the United Nations (UN). The family stayed in Thailand for about 10 months. The situation was precarious as they had no legal residency and had to work illegally to survive. PZZC’s mother found work in a factory and his father found security work in a nightclub. PZZC also worked at the nightclub preparing shishas. PZZC was exposed in this environment and at a young age to confronting sexual behaviour, violence, drug use and attempted sexual assault on himself. He described seeing bad stuff that no child should see.
As the family could see no positive outcome from the UN whilst in Thailand, they engaged a people smuggler to assist them to travel to Australia. They travelled first to Malaysia by bus, then to Indonesia by boat, and finally with 70 others on a small fishing boat, which took six days to reach Christmas Island. PZZC described the boat trip to Christmas Island as terrifying as the boat was overcrowded, they had no food, no toilets, and many people got ill. The family tied themselves together with a rope so they would survive or drown together. Eventually there were intercepted by the Royal Australian Navy and taken to Christmas Island, arriving in December 2013.
PZZC and his family were detained on Christmas Island for approximately four months. He described the conditions as trying; it was very hot, with limited ways to pass the time. He witnessed many detainees harming themselves. The family were further traumatised when his mother was removed from Christmas Island for medical attention. This had a particular effect on PZZC as he had never been separated from his mother before. During this period PZZC was diagnosed with post-traumatic stress disorder (PTSD) and suffered his first associative psychogenic seizure.
The family was then transferred to the detention centre in South Australia where they had a better time as they were housed in their own quarters, could cook their own meals, and the children could attend an external school. During this period PZZC’s mother gave birth to another son.
As the South Australia detention centre was closing down, the family was then transferred to Darwin. This again was a difficult period. It was very hot and they were unable to attend school, leaving PZZC with nothing to do. He again witnessed numerous people harming themselves.
In February 2015 the family were eventually released from detention and placed in community detention in Melbourne. While this was a much better situation, there were rules the family had to abide by including a code of conduct. They had to observe a 9 PM curfew; they could not engage in paid employment; and had to reside in the one house. This situation placed extreme stress on the family. They were concerned about the happenings in Syria; constantly worried about their protection visa application; and spending their time at home ruminating. This had an impact on PZCC. He stated that he was feeling sad and directionless at this time; he had numerous seizures, flashbacks to Syria, trouble sleeping and nightmares.
During this period PZZC commenced school, attending year 10 at the local college. He found this experience very difficult due to his mental health problems and cultural and language barriers. He reported being bullied and called a terrorist, with other students taunting him by saying he was a member of ISIS. This escalated after one instance where an app on his phone broadcast an automated call to prayer during class. PZZC was suffering numerous seizures during this period and was traumatised by students taunting him and filming him when he was in this unconscious state. He was subsequently transferred to another high school. However, his psychological state did not improve, which had a negative impact on his ability to study or feel secure in class. So he sought a medical exemption from school, which was granted.
In late 2015 PZZC’s behaviour was becoming very erratic and his parents described it as being uncontrollable. They were unsure of what to do and spoke to their caseworker. Their caseworker advised that if there were any problems at night to call 000 for help. One evening they called 000 seeking help for their son. They told the Tribunal they wanted the police to take their son to hospital to get treatment for his mental health condition. The police came but without an interpreter. The father stated during the hearing that the police came and wrote many things but the family were not scared of their son, they were scared for him. They told the Tribunal they were seeking help for their son but what transpired was them being taken to court in respect of an intervention order taken out against their son, that they did not need or want.
In November 2015 PZZC met his ex-girlfriend on Facebook. He responded to a post and they quickly developed a relationship, which resulted in her travelling from Sydney to Melbourne to meet him. Against his parents’ wishes, she moved into the family home. They spent all their time with each other. At the outset the relationship went well. However, in January 2016 she discovered she was pregnant; and in March things had deteriorated significantly, ending in PZZC stabbing her eight times causing significant injuries.
In November 2017 the Department of Home Affairs determined that PZZC’s parents were refugees, being satisfied that they were persons in respect of whom Australia has protections obligations. On 10 November 2017 PZZC was found to be refugee on the basis of his parent’s application. In April 2018 PZZC’s parents and siblings were granted a Safe Haven Enterprise (Class XE) visa.
ISSUES
In his Statement of Facts, Issues and Contentions filed on 2 October 2018, PZZC conceded that he did not pass the character test for the purposes of s 501(1) of the Act and this was confirmed by his Counsel at the hearing. The Tribunal is satisfied that PZZC does not satisfy the character test under s 501(6) because he received a sentence of imprisonment of 12 months or more, which s 501(7)(c) defines as constituting a substantial criminal record for the purposes of s 501(6)(a).
The primary issue for the Tribunal therefore is to determine whether, standing in the shoes of the Minister, it should exercise the discretion under s 501(1) to refuse PZZC’s protection visa. The Tribunal must take account of the relevant considerations in Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The criteria for satisfying the character test is outlined in section 501(6) of the Act. Relevantly for this matter, s 501(6) and (7) provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)…
...
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
If an applicant is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, such as the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). The Direction is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (para 6.1(4) of the Direction).
Paragraph 6.1 of the Direction outlines the Objectives of the Act and the Direction, stating in part:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
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Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
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(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction (para 6.3):
(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 to important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in Part B of the Direction. Paragraph 11(1) under Part B of the Direction provides that the primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
EVIDENCE
PZZC’s Criminal Offending
The following table has been derived from a Victoria Police Criminal Record dated 15 January 2017:

COURT

COURT DATE

OFFENCE

COURT RESULT

Melbourne
Children’s Court

23 December 2016

Unlawful assault
Assault in company
intentionally cause injury assault with weapon
make threat to kill
intentionally cause serious injury
aggravated burglary - person present
common-law assault
persistent contra family violence order

Effective total term imprisoned youth Justice Centre for 26 months

Melbourne Magistrates Court

29 June 2017

Criminal damage (intent damage/destroy)
Burglary
affray (common-law)

16 months imprisonment in youth Justice Centre

This was set aside on 14 December 2017 by the County Courts of appeals Victoria by a sentence of three months detention

The incidents alleged by his ex-girlfriend occurred over several weeks. At the children’s court in Melbourne PZCC pleaded guilty to all charges arising out of those incidents.,
In respect of the first offence, Mr Guy Coffey, clinical psychologist, prepared a pre-sentencing report for PZZC’s legal representatives. In it he describes the relationship and the events leading to the conviction of 23 December 2016 in the following terms:
[PZZC] and [his ex-girlfriend] met on Facebook. The relationship evolved quickly. Within a few days the couple had declared their love for one another.
[She] was 18 years old and living in Sydney; her parents were in Glenroy. After a week of contact through Facebook and phone calls [the ex-girlfriend] decided to come to Melbourne. [PZZC] gave the following account of their meeting. He said [his ex-girlfriend] rang from Melbourne airport and asked to be picked up. [PZZC] said he didn’t have a car. Instead he met her at Flinders Street Station. [PZZC] took [her] to his place. It was about 8pm when they arrive. His parents were surprised and displeased. He said he and his parents argued vociferously while [the ex-girlfriend] waited. His parents said that bringing a girl to the house was grossly disrespectful to his family, that it was presenting a shocking example to his younger brothers and sisters and that she had to leave. He and [his ex-girlfriend] were not persuaded; he said [the ex-girlfriend] had nowhere to go and should be allowed to stay. He threatened to harm himself if she was sent away. The argument went for an hour or more and finally the parents capitulated; he took [his ex-girlfriend] up to his bedroom where she slept. He said this was a novel experience for him – he had never had so much as a passing friendship with a girl and now we had one in his bed.
[PZZC] said he immediately formed an intense attachment to [her]. He said he thought she was sent by God to give him a better life after all he had been through. He said he was aware that he was stepping outside his family’s cultural norms. He said in Syria her family would never have allowed it; they would have come and dealt with him.
He said they spent all the time together from the moment they met. They passed most the time in his room and they would go for walks. They didn’t meet with other youths; [her] friends were in Sydney and [PZZC] withdrew from his friendships: he said he would have felt jealous and insecure if she had met them.
They began to argue within a month of meeting. The accounts of [PZZC] and [his [ex-girlfriend] differ substantially regarding the nature of the conflict.
[PZZC] said that [his ex-girlfriend] began demanding unreasonable things, for instance that they buy a house and a car for themselves. She would scream during arguments and when the parents told them off, she would threaten to go to the police, a threat that was very frightening because the family’s insecure residency status. He said she had contact with boys on the phone and this left him feeling angry and jealous; he said this made him feel he “wasn’t a man”. He said, “[i]n our culture, when the girl is with someone, she just can’t talk to anyone else”. He said he tried to have her delete the contact details of boys on the phone. He said when they argued they would be physically aggressive to one another. He recalled in early March 2016 [she] wanted to leave but he wouldn’t permit her to, because he said, he feared she would go to the police and the family could be re-detained.
[She] became pregnant in January 2016; it was unplanned. [PZZC] said he was taken aback: “I didn’t know you could get pregnant straight away”.
[The ex-girlfriend] described the commencement and course of their relationship somewhat differently. She said they met on Facebook and that [PZZC] came to Sydney to meet her where they spent some time together before they came to Melbourne. In Melbourne she lived with her parents and then moved in with [PZZC] at his family house. She said he seemed to be a good person but he soon became controlling. He began to lock her in his room whenever they argued; he would kick and slap her; he would call her a slut; he questioned the paternity of their unborn child and wanted her to terminate the pregnancy; he wouldn’t allow her to be by herself in public; and he deleted her phone’s contact numbers and took her cards and money.
On 8 March 2016 she made a statement to the police’ she described his controlling behaviour and reported that he had slapped her and tried to hit her with a glass. She went to live with parents in Glenroy. According to [her], [PZZC’s] family invited her back, and because of the pregnancy her family agreed and there was an attempt at reconciliation. She returned to live with [PZZC] after about two to three weeks and within a week of the index offence on 31 March 2016.
[She] reported than on the night of 27 March, after she refused to have sex with [PZZC] and wanted to contact her mother, he choked her; punched her in the stomach repeatedly saying he wanted to get rid of the baby; and threatened her with a knife. The next day, [she] and [PZZC’s] families were to meet in Geelong. [She] said she used the pretext of a family meeting to make contact with her parents. She informed her parents of the assault and that night she made a statement to police.
An uncontested interim family violence order was made against [PZZC] on 28 March 2016. The conditions of the order were explained to [PZZC] at [the local] Police Station on 29 March 2016.
[She] said [PZZC] responded to the separation by posting denigrating messages on Facebook, calling her slut and other abuse. On 30 March he began ringing her which persisted until the index offence. He also rang [her] father repeatedly. On the morning of the index offence he rang [her] continuously.
[She] described the index offence in the following terms. At about 12pm she was sitting in the lounge room by self at her parents’ house when [PZZC] ran in the front door and began stabbing her while holding her hair. He ran off when [her] mother arrived and called out to ring the police. An ambulance officer who attended [her] immediately after the offence stated that [she] told her that “she was cutting food and her ex-boyfriend walked in through the door which resulted in an argument … [he] grabbed the kitchen knife on the bench which he… used to stab [her]”.
On the day the offence police made telephone contact with [PZZC] at 9:30am and told him to attend the [local] Police Station at 1pm; they rang again at 2.00pm when he said he was on his way. [PZZC] made telephone contact at 4pm and was told to attend.
[PZZC] denied the offending during the police interview on the evening of 31 March 2016, some six hours after the commission of the offence. Instead he claimed he was the victim of an assault at Glenroy railway station during which his hand was cut with a knife. He gave a similar account to a family friend his house in Glenroy he went to immediately after the offence.
PZZC described the events relating to the first offence and his relationship with his ex-girlfriend in his statement to the Tribunal dated 2 October 2018, reproduced in full below:
In November 2015 I met [my ex-girlfriend] on Facebook. We started talking a lot over Facebook. She was older than me
She was living in Sydney and I was living in Melbourne. I told her everything about me and about community detention. [She] said she wanted to come and live with me. I explained to her about my family and my community.
A few days after we started talking, she said that she loved me. I was shocked.

I had not had a girlfriend before. As soon as she said that she loved me, I felt better. I felt like God had sent her to give me a better life, to get me out of the situation I was in.
About a week later she came to Melbourne. I did not know she was coming. In Mr Coffey’s report, he says that [she] alleges that I visited her in Sydney. This is not true. I have never been to Sydney.
She rang me and wanted me to pick up her from the airport. I said to her that I did not have a car, I could not pick her up. She yelled at me and hung up the phone.
Later, she called me back and said that I should meet her at Flinders Street Station. I went there and met here. She said to me that she really loved me and that she came to Melbourne for me. She said that she had no one but me. She said her family was abusive towards her and she could not stay with them.
I was still only 15 years old. (This was corrected at the hearing to 16). I felt like I had no choice but to let her come to my place. This was in breach of our community detention order, and I knew it could get us in to trouble. I did not want to do it, but I felt like I had no choice.
We went to my house. When we arrived, it was after curfew. My family said they were shocked. My parents asked me who she was and how I met her.
It was a risk my family and me because no one allowed to sleep in the house, aside from the family. There was a big fight. My family said that it was disrespectful to bring her to the house and it would set a bad example for my younger brothers and sisters. I said that she had nowhere to go. I said that I loved her and wanted her to stay. I said I would hurt myself if she was sent away. In the end, my parents let her stay and she slept in my room with me. This was the first time I had experienced any real form of contact with a girl, other than my sister.
After that, we spent all our time together. We did not spend much time with other people. For a while, things were okay. Then things started to change. [She] would get angry a lot and abuse me. She would scream and yell and hit me. Sometimes I would scream back at her asking her to stop sometimes saying “stop bitch”. She was teaching my younger brothers and sisters bad language. Sometime she would wake in the night screaming and hitting and slapping me. When she slapped me

I would push her arm away. I became scared of her, even though I loved her very much.
[She] talked to a lot of boys on her mobile phone. She sent them pictures of herself in the shower and told them she loved them. I was jealous of these other people. [She] took drugs in my house sometimes. I have never taken drugs.
[She] also tried to get me to steal. She said she wanted me to go shopping. I had no money to buy her things. When I told this, she got very angry and screamed and abused me. Sometime she would slap me. Then she asked for a car. I said “how would I get you a car?”. I felt bad and angry. I could not the things she wanted me to do. I felt like I was not a man.
Despite all this, I loved her a lot. I became very attached to her. I was going through how she was treating me badly, but really loved her a lot. I did not want her to leave me.
In January 2016, [she] said she was pregnant. I was shocked. I did not know you could get pregnant so quickly. I was only sixteen years old. (This was corrected at the hearing to 17).
…
One day, in early March 2016, the Police arrested me, and took me to the Police station. They said that [she] reported that I assaulted her and wanted me to go back to detention and that you are not supposed to have people sleep over in your house as it is community detention. I said that I did not assault her. I was not charged and they took me back to my house. It was the first time I was arrested. It was a bad experience for me, particularly as I was thinking of the violent police in Syria.
The next day [she] came with her father and the Police. She took all of her things. She did not come back to the house after that.
That is when I stayed in my room. I could not go out. I could not eat and I could not talk. One night in March, I got a big knife and said to my parents that I wanted to kill myself. I had nightmares if I fell asleep. I had poor sleep and found it hard to remember things. I was tired and irritable all of the time. All I could do is think about [her] and why she had left me and she said I was hurting her when I was not.
On 27 March 2016, [she] called me on the phone and said that her family is inviting my family for BBQ lunch in Geelong that day. I initially said I don’t want to talk to you but she started crying. I asked my family if they would go, my parents were worried, but we said yes. As soon as we got to Geelong, [she] started screaming and crying. Her parents came to the car and swore at us and told us to leave. We left straightaway.
The police came to our house again that evening. They took me to the police station without handcuffs. They said that I shook [her] and stole her wallet and punched her in the stomach and threatened to kill her. But she was not living with me at this time. I said to the Police that she was not even in the house. I did not do this. The police checked with my parents and a nearby camera and told me to ignore her. They also said to me if she makes false statements again they might press charges against her. I went home.
On the night of 27 March 2016 I deny that I attacked [her] by choking [sic] her, punching her or threatening her with a knife. [She] was not at my house on 27 March 2016.
On 28 March 2016, [she] got an interim family violence intervention order against me.
On 29 March 2016, I went to the Police station they told me about intervention order.
On 30 March 2016, I started calling [her] a lot. I rang her to ask why she was doing this. I was not thinking. I was very upset and depressed. I just wanted to know why she was making lies to the Police and telling them that I was doing stuff when she was not even in my house. I rang hundreds of times.
…
I called her father as well. I was calling her father to ask the same questions. I wanted her to stop making things up and telling the Police. She was not living in my house and I was being accused of things I had not done.
On 31 March 2016, I was in my room and I could not talk to anyone. I felt out of control.
I do not remember how I went to her house. I do not remember what I did to her. I have been told what I did, and I accept that I did it.
I remember that, afterwards, I felt like I had done something wrong, but I did not know what. I went to my friend’s house in Glenroy. I called my family to come and pick me up because my hand was injured. I did not know why my hand was injured.
The Police called me asked me to go to the Police station. I didn’t remember what had happened. I did not know what was going on. I was scared. I was charged.
Magistrate Levin in his sentencing remarks 23 December 2016 in the Melbourne’s Children’s Court stated:
This case involving [PZZC] is a tragic case, as everybody would understand.

It is tragic because of the shocking assault on [PZZC’s] girlfriend, the victim in this case, and the ongoing impact upon her of the events through the relationship and, particularly, the stabbing, which has led [PZZC] to plead guilty to the most serious of all of the charges he is facing, the intentionally cause serious injury charge. It was a horrible, horrible event coming on top of previous assaults and then the deliberate refusal to comply with an intervention order preventing contact between [PZZC] and his former girlfriend, the victim in this case. It is important obviously to emphasise the impact on the victim – nothing can turn the clock back about all that. It is also obviously a very tragic case because of the serious consequential problems for [PZZC] particularly and, consequentially, his family of what is likely to happen in terms of the prospects of deportation…. And that of course is tragic because the family having escaped from the most horrible of circumstances in Syria and making desperate attempts to get to a land where they will feel and be able to settle have now got their plans in disarray. It is a very sad situation altogether for the family.
Clearly, [PZZC] has been impacted by the events that he was confronted with as a young child in Syria.
…
In approaching the sentencing, there are a number of things that I have taken into account…. I’ve taken into account the matters I have already talked about in terms of [PZZC’s] background. I’ve taken into account his youth and the fact that he comes to this court without any prior history of court appearance. I have taken into account his plea of guilty which is significant because it prevents the need for the victim particularly to have to give evidence in a contested hearing…. Of course I also have to take into account the degree of violence in the various charges to which [PZZC] has pleaded guilty particularly of course Charge 4, the intentionally cause serious injury charge, but I am particularly troubled also by Charge 2, the intentionally cause injury charge, which is about [PZZC’s] assaulting the victim only three days before the events of the 31^st of March. She was pregnant with their child and that he was assaulting the victim in ways which may not only have caused harm to the victim but also caused harm, but fortunately not so, to the now born child. And of course, that new child only adds to the trauma of all these matters and the absence of a father, amongst other things…

PZZC was involved in the Parkville riots which occurred over the 13 and 14 November 2016. He pleaded guilty to criminal damage, burglary and affray. The riot commenced in an adjustment unit and spread to where he was residing He was observed on CCTV footage engaging in riotous behaviour and causing property damage. During the riot he gained access to a telephone and attempted to call his mother three times. He surrendered to police at 4.55am (the first offender surrendered at 4.25am and the last at 6.30am).
PZZC described the riot in his statement:
Then, in November 2016, the riot happened. The riot was very bad. The riot did not start in my unit. It started in another unit. I was in a deep sleep. Another unit broke in to our unit. I was asleep. I heard a “bang” on the roof. I thought I was dreaming.

I saw my roof down. People with masks and weapons were asking me to go up to the roof. I said no I did not want to go. They said that if I did not go, they would hit me.
I was afraid and felt that I had to join them. I thought that if I didn’t join them they would call me a “dog”. I participated in the riot by breaking things. I don’t recall what things.
One boy lifted me up by force into the roof. It was dark in the roof and I fell through [sic] into another room.
A large boy came into the room with me. He tried to kiss me and then he put his hands down my pants and touched me. Then he pushed me back up to the roof. We came into a room and there were telephones. I called my mother three times. I spoke to her for about one minute. I was crying and saying that she should not worry and that I would be alright.
At one point during the riot, they used me as a hostage. One boy had a hammer and one had a handsaw. They were asking the Police to back up, and if they did not they would kill me. The Police put the big spotlight on me. The Police said that they would not come in.
When the boys left me, I ran away and surrendered myself. The Police took me to a secure place. I told them what had happened, including that I was sexually assaulted.
Oral Evidence
At the hearing PZZC, his mother, father and Mr Guy Coffey, clinical psychologist, provided oral evidence. Mr Coffey was taken through a series of reports he had produced following an assessment of PZZC over numerous years.
Counsel for the respondent cross-examined PZZC about the events which led to the police issuing an intervention order against him in respect of his family. PZZC was adamant that he had never damaged property at the family home, had not broken windows, or been violent towards his family members. He indicated that at this stage he was psychologically low and his father had called the police seeking to get him help. He stated: “I was nervous and agitated. I was going through a lot. I was confused, angry and screaming at my family.” He said he told them he was sick of getting bullied. He was young; his life had always been different; and that he wanted to be like normal people. His father had called the police seeking to get him help not because he had been violent or damaging the property. The police didn’t bring an interpreter, and after speaking to the family they issued an intervention order against him; but that was not his family’s wishes.
Counsel for the respondent next explored PZZC’s offending against his ex-girlfriend. The charges were in respect of numerous incidents which were recorded as being committed between 7 February and 7 March, 28 March and 31 March 2016. Again, PZCC indicated there had been confusion about the charges and that he had plead guilty to all charges as he believed they related to what he described as “the big incident”, which occurred on 31 March 2016. PZZC was adamant he had never fully understood or had all the charges explained to him by his Counsel at the time; and that at the time of the court hearing he had been on remand for 10 months and simply saw a list of charges. He had pled guilty to all the charges which he had assumed all related to the stabbing incident and he fully accepted that what he had done to his ex-girlfriend was terrible and unforgivable. He had no excuses for it and he should be punished for his sin.
PZZC advised the Tribunal that the police had spoken to him about the intervention order against his ex-girlfriend; but he had never been advised that he had been charged in respect of threatening her, imprisoning her, stealing from her, kicking her in the stomach, or attempting to choke her. He freely admitted that he had breached the intervention order, even though he fully understood that he was not to contact his ex-girlfriend or to be present in Glenroy.
PZCC advise the Tribunal:
…I loved her, I just wanted to talk to her… even though she was being really harsh on me but I really love the girl… I have a clean heart for her. So I was contacting [her saying] why is she going to the police. I was saying why are you doing this to me, what did I do to you...
. [I was] texting … and calling… I sent heaps [of texts] to be honest. I don’t remember how many but I sent heaps… I was sitting in my room just on my phone. I wanted just [to] talk to her…
I just said [to her parents] …“tell [her] to come back to me, I really love [her]”…
I was just thinking that I really want to speak to [her]… I became very attached to [her]… [I got] a few responses not to message me that’s it or I go police, and that’s when I get more stress and more upset and more sad… I locked myself in my room, I was very very upset … I was just on my phone, texting [her]… and when she tell me she doesn’t want to talk to me or leave me alone, I get more upset and I start more like, get more anxious and like sad and upset, angry…
PZZC continued to maintain to the Tribunal that he had absolutely no recollection of the stabbing incident. He stated he sincerely could not recall the incident to this day; but at the time he knew with his body and head that something had happened and that he had done something significant.
PZZC’s mother and father provided testimony to the hearing about their horrific experiences in Syria, the arduous journey to Australia, the exceptionally strong bonds between all family members (more so, as they had endured so much together) and that life in Australia had been difficult. However now that they were getting support and services, they were beginning to understand the Australian way of doing things. All the family members were finding it difficult being separated from PZZC, most particularly their youngest daughter, who is really suffering from the separation from her older brother. Both parents gave unequivocal assurances that they would do everything in their power to ensure that PZZC got the treatment he needed for his mental health conditions and to reduce the risk of his ever reoffending again. Both parents were adamant they had seen a maturity and growth in their son. They believed that he would make a great contribution to Australian society. PZZC’s mother told the Tribunal that being separated from PZZC “was as if I was separated from my soul”. Both parents were adamant that their son would face certain death if he was returned to Syria and it would be like he had died if he had to go into indefinite detention.
Mr Coffey was an exceptionally professional witness who provided a qualified assessment of PZZC’s risk of reoffending; stating the primary risk of his reoffending was rooted in his PTSD. His qualified report stated that without a comprehensive suite of psychological and pharmacological treatments for PZZC’s complex mental health issues he would be at low to moderate risk of reoffending. He indicated that PZZC, unlike other offenders, had a significant prospect of successful reintegration into the community because of his exceptional attachment to his family, his willingness to engage in treatment and no underlying antisocial behavioural traits.
THE DISCRETION
As PZZC does not pass the character test, the Tribunal must consider whether it should exercise its discretion to refuse the visa under s 501(1) of the Act. In doing so, it must have regard to the relevant primary and other considerations within Part B of the Direction which are applicable.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 11.1 of the Direction provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Paragraph 11.1.1 of the Direction relevantly states that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled),… are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including but not disclosing prior criminal offending;
………..
Counsel for PZZC argued strenuously that this was a case of tragedy compounding tragedy, that the family had been threatened with violence, rape and death, had witnessed horrific scenes in their native Syria, particularly the bombing of their son’s school; and had survived a perilous journey to Australia tying themselves together with rope to survive or die together. They have struggled with resettlement in Australia In the face of dislocation they have survived and survived as a unit. Now they are facing a different nightmare; the possibility of being separated from their son indefinitely.
Counsel for PZZC submitted that his offending should be understood in the context of his psychological state at the relevant times of his offending. He contended that considerable weight should be given to the fact that at the time he was extremely psychologically vulnerable, suffering from a severe and complex post-traumatic condition, suffering depression, was struggling to adapt to his new environment and culture and was very young. They referred to Mr Coffey psychological report of December 2016 which describes PZZC’s psychological state:
At the time of the offending [PZZC] suffered from a severe and complex post-traumatic condition. He met the diagnostic criteria for Post Traumatic Stress Disorder (DSM-5). He was also depressed to a degree which probably approached a Major Depressive Disorder (DSM-5). The effects of trauma, which began when he was 12 years old, pervaded his personality, his sense of self and his relations to other. Prolonged developmental trauma of the kind experienced by [PZZC] may produce intense, insecure and unstable attachments to partners, friends and family. The prospect of a separation may be met with frantic, desperate responses. Childhood trauma also produces vigilance to threat both physical or emotional and a readiness to perceive threat as existential rather than merely a challenge. The relationship with [his ex-girlfriend] had the characteristics of an intense, insecure attachment. When the relationship began to suffer the vicissitudes of ordinary adolescent courtship this invoked in [PZZC] feelings of rage and anxiety which were strongly coloured by his post traumatic condition. Perceiving that [his ex-girlfriend] was the source of such powerful emotions, he began trying to control her in order to control the slew of disturbing feelings within himself. The flood of anxiety he felt about her autonomy and therefore her ability, so he believed, to determine how he felt, led to cycles of increasing control and aggression.
In a plea to the Minister for Ministerial intervention Refugee Legal argued on behalf of PZZC that prolonged periods of detention in Australia, prior to the family’s release into community detention have compounded his psychological problems. The submissions argued that the duration and nature of close detention after arrival were contributing factors to the later offending, in conjunction with PZZC’s mental health on arrival. This situation was exacerbated by the family’s inability to secure appropriate psychological support for their son during this critical stage of his settlement in Australia.
The advocate for the respondent contended that PZZC’s violent offending is of a very serious nature and disturbingly Mr Coffey’s report of December 2016 indicated that PZZC was cognisant of his actions at the time of his offending and their consequences. The respondent’s representative indicated it was also of great concern that PZZC denied numerous offences to which he had eventually pled guilty.
PZZC, with the assistance of Counsel, entered a consolidated guilty plea at the Melbourne Children’s Court for numerous offences committed against his ex-partner. There appeared to be numerous and serious inconsistencies between PZZC’s and his ex-girlfriend’s accounts of the events surrounding the offending. However, it is not open to the Tribunal to look behind the facts found by the sentencing judge, as noted in the decision of Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, where Branson, Lingren and Emmet JJ stated that:
[I]t is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by sentencing judge in the course of his or her deliberations concerning sentencing and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence… There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for administrative decisions to be based on considerations inconsistent with the conviction or sentence imposed.
The Tribunal accepts that PZZC was an extremely traumatised, vulnerable, young, and naive man when he offended. However, whilst these factors may help explain his actions, they do not excuse his conduct; nor do they mitigate the obvious seriousness of his violent crime against a vulnerable member of the community.
Risk to the Australian community
Paragraph 11.1.2 of the Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In the delegate’s decision to refuse PZZC’s visa he gave considerable weight to the very serious nature of the crimes committed by PZZC, especially that of intentionally causing serious injury; a crime of a violent nature and against a vulnerable member of the community (a pregnant woman). The delegate therefore found that PZZC should expect to forfeit the right to remain in Australia.
In respect of the first offence, Mr Guy Coffey, the clinical psychologist, prepared a pre-sentencing report dated 15 December 2016 for PZZC’s legal representatives. In it he addresses the risk of recidivism:
….[PZZC] does not possess characteristics which frequently underlined violent offending. He does not have anti-social traits; he does not abuse alcohol or illicit drugs; he does not have criminal associates; he does not generally hold criminogenic attitudes; he does not have a history of offending; and there was no conduct disorder present in his childhood or adolescence. His post traumatic condition is still present but has shown itself responsive to treatment. [PZZC] held ambivalent and possibly permissive views about the acceptability of partner violence at the time of the offending. He now claims to repudiate these views: when interviewed he said that he had learnt a lesson that violence in a relationship is unacceptable. His apparent change in belief may be genuine that it is also inchoate.
Both his psychological disorder and his problematic attitudes partner violence have begun to be addressed. With ongoing effective treatment and guidance it should be possible for PZZC to reach a point where there is a low risk of him harming a partner. He is not and has never presented a risk of violent offending more generally.
Mr Coffey subsequently prepared a report dated 16 October 2018 for this Tribunal, in which he states:
While I generally continue to adhere to his opinion, it now requires a caveat. Contrary to the more optimistic view I then had, it is now evident that [PZZC’s] complex PTSD has not responded substantially to treatment; this is largely because the detention environment has proves to be antithetical to his recovery. It is therefore likely that the risk of future violent offending is heightened as a consequence of the continued presence of his post-traumatic symptoms. While it should be acknowledged that the stressors in detention have been intense, and unlikely to be replicated in the community, he has responded to them at times with verbal threats and aggression. On one occasion he struggled with and struck a detention officer; on other occasions he has had physical altercations with detainees and damage property. Despite his asseverations to the contrary, he has not been able to conform to his commitment to nonviolence. He continues at times to experience intense fear or anger when feeling insecure and threatened.
While he has not been charged for any of the incidents in detention, some of these incidents involve aggressive misconduct and must be weighed when considering the risk of future offending. I have done this while also taking into account my experience that misconduct in detention by psychological vulnerable detainees does not accurately predict behaviour in the community, in part because the stressors in the detention environment are very particular.
The assessment of [PZZC’s] risk of recidivism is assisted by the standardized risk assessment instrument, the HCR-20 (3^rd Version). I continue to believe, consistent with my previous opined cited above… that [PZZC] does not possess a large number of characteristics predictive of recidivism. I believe in particular that he does not generally demonstrate anti-social attitudes. He now disavows the acceptability of violence towards women in any circumstances, and says he has worked on reforming his beliefs during treatment while in youth detention and at Foundation House and through his own reflection. He does not entertain persistent thoughts of harming others and does not generally display hostility or antipathy to people. Unlike some young offenders he is not alienated from his family and affiliated with peers inclined to crime. Instead he has a very strong, stable attachment to his family and is not attracted to associating with offending peers. He is capable of forming strong therapeutic relationships. He does not have any anti-social personality disorder or psychopathic traits. He acknowledges he has psychological problems that require treatment and his commitment to receiving that treatment appears to be genuine and realistic.
However in my opinion a simple summation of risk factors tends to underestimate the likelihood of recidivism in [PZZC’s] case. This is because I would weigh his mental instability and poor ability to cope with stressors as making a particularly significant contributions the chance of recidivism. In the absence of adequate treatment and supervision, I would estimate there is a low to moderate risk that [PZZC] will commit a further offence of violence. If further offences were to occur it is unlikely that the violence would involve offending of the gravity previously perpetrated, but might involve, for example threats of violence or a physical altercation in the context of conflict with other young adults.
Owing to my view have his lack of more general criminogenic characteristics, I believe offending would most likely occur only in the context of him feeling threatened and emotionally overwhelmed. I believe that he is not at risk of offending in diverse ways, for example, of committing property crimes or crimes of deceit and dishonesty.
…
The actual likelihood of recidivism turns on the treatment and support he receives in the community. He will require a comprehensive suite of psychological and pharmacological treatments if significant improvements in his mental health are to be achieved. He will require evidence based psychological treatment for complex PTSD at least weekly (which should include trauma focused Cognitive Behaviour Therapy and Dialectical Behaviour Therapy). He will also require psychological intervention from a forensics psychologist directed at offence specific behaviour and monitoring of risk. Integral to his treatment should be additional education in how to enact gender equality in his relationships. He should receive regular psychiatric reviews of these pharmacotherapy and mental state; the medication should be directed at reducing the intensity of his affective instability and the frequency of his psychogenic seizures. The involvement of a case manager to assist with addressing practical problems in his daily life and to coordinate service delivery is important. [PZZC] wishes to live with his family for the foreseeable future. It is essential that his family is educated about his condition, is made aware of how to identify any deterioration in his mental state and accompanying increased risk, and is supported in their care of him. The necessary treatment and support should continue for at least two to three years and until his mental health has substantially improved and the psychological characteristics heighteneing risk have been resolved.
It is my opinion that should [PZZC] receive the comprehensive range of treatment and support that I have outlined, the probability of him reoffending would be significantly mitigated and that in those circumstances the risk he would pose to the community would be both manageable and low.
In consequence of the strong connection between the prevention of recidivism and the measures that are put in place in the community, the thoroughness with which these measures are implemented are inseparable from the risk of reoffending.

The advocate for the respondent argued strenuously that PZZC’s violent conduct over the last two and half years was very serious and that his persistent minimisation of incidents reflected negatively on him and his unwillingness to discuss his offending pointed to limited rehabilitative prospects. He contended that there remains a more than remote chance that PZZC would reoffend if released into the community and that serious harm would be caused to one or a number of members of the Australian community. Therefore, the protection of the Australian community should strongly weigh in favour of affirming the delegate’s decision to refuse to grant his visa application.
The advocate for the respondent in his final submission to the Tribunal stated the Minister did not resile from the fact that PZZC had had a difficult time in detention because of his youth and that his acting out was in part due to his unfamiliar circumstances. However, his offences were very serious and had cause serious harm and lasting consequences to a vulnerable member of the community, that his denial of events was of a significant cause for concern as it indicated an unwillingness to deal with his offending behaviour. The Respondent’s representative referred to a report by the Youth Health Rehabilitation Service written by a psychologist on 22 May 2017 which stated:
[PZZC] refused to partake in any session he perceived as related to or correcting his offending, and this included a refusal to do any psychometric testing. As [PZZC’s] placement appeared uncertain, the assumption was he may be in the Youth Justice system longer term, and therefore, we would establish a robust rapport and slowly come to the chromogenic issues as he gains further insight and trust. In the short time [PZZC] engaged with the service we were able to challenge to a limited degree gender issues and some mail entitlement beliefs.
[PZZC] also had an underlying predominant narrative which emphasized the external locus of control for any negative events, thus avoiding personal responsibility taking… [i]t is hoped that [PZZC] will become motivated to allow full criminogenic exploration of his offending, which to date he speaks of in terms of a mistake he has made and now he has learned from it.
The respondent’s advocate contended that it was sadly unrealistic to postulate PZZC would undertake treatment as recommended by Mr Coffey to ensure he was of minimal risk of reoffending; that the degree of optimism expressed by his family was simply unrealistic; that PZZC had not learned how to regulate his emotions; and that he presented a risk of harm that would be unacceptable to the Australian community. As such, he submitted that significant weight should be given to this factor to affirm the delegate’s decision to refuse his visa application
Counsel for PZZC argued that his prospects for rehabilitation were good, particularly if the comprehensive suite of psychological and pharmacological treatments outlined by Mr Coffey was provided to PZZC in the community. He reiterated Mr Coffey’s view that PZCC did not possess characteristics which frequently underline violent offending, as he did not have antisocial traits, abuse alcohol or illicit drugs, did not associate with criminals, had a supportive family to whom he was close, and was receptive to treatment. Counsel for PZZC argued he presented a minimal risk to the Australian community as his likelihood of reoffending was low.
Counsel for PZZC argued considerable weight should be given to the fact that PZZC had learned techniques to deal with stressful adverse situations by practising meditation and breathing techniques, and had undertaken numerous courses in how to walk away from situations and to adopt nonviolent responses. Counsel stressed PZZC had displayed remorse and deep regret for his actions; that he had learned from them; that he was now older and more mature; and that he could deal more appropriately with relationships. Counsel also stressed that PZZC and his family were committed to ensuring he received all the treatment he needed to deal with his mental health issues and his offending behaviour.
Counsel for PZZC indicated that even if the Tribunal could not be satisfied that PZZC presented a low risk to the Australian community the Tribunal’s task in exercising the residual discretions under sec 501(1) required the balancing of relevant considerations under the Direction; and that significant compelling personal circumstances, as in this case, may outweigh concerns surrounding risk of harm.
In assessing the competing views relating to PZZC’s risk of reoffending, the Tribunal acknowledges that a person who has committed offences always presents some risk of re-offending, as the psychological evaluation of Mr Coffey acknowledged. PZZC’s offences were committed during a period of great personal turmoil, when he was still a child who was struggling with settlement and complex and significant mental health issues. However, his offending was appallingly serious, against a person he claimed to love and his unborn child. And whilst he has shown remorse and concern for his victim, he has not shown great insight or understanding into his offending which would have given the Tribunal comfort that he presented no risk of reoffending.
While the Australian community expects that people will be given a chance to redeem themselves and that youth detention offers a chance for rehabilitation, it has a low tolerance for individuals who show no respect for our laws and values. Sadly, PZZC has not shown exemplary behaviour since being in youth and immigration detention, even though he has undertaken numerous courses and psychological treatment. His prospect of being a low to moderate risk of reoffending lies with his ability to receive a range of complex supports in the community. Counsel for PZZC has argued that these supports are there and his family and he are willing and able to access all services needed. The Tribunal has no power to enforce such an undertaking, nor does it have complete faith that these services will be available or accessed by PZZC. PZZC has not had the opportunity to be tested on his behaviour in the wider community. Nor has his ability to address his PTSD, which Mr Coffey argues is the route of his offending, been tested.
On one hand, it does appear PZZC has matured, has significant support and may pose a low risk of reoffending. But on the other hand, his record of re-offending (albeit over the short period of time), his lack of insight and his significant mental health issues militate against an optimistic view that he will never offend again. In assessing the risk to the Australian community, contrary views of PZZC’s likelihood of reoffending were presented to the Tribunal. The Tribunal was greatly assisted by the view of Mr Coffey who indicated a low to moderate risk of PZZC’s risk of recidivism, and the Tribunal found as such.
Having regard to the nature and seriousness of PZZC’s conduct as well as the risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs against the cancellation of the delegate’s decision to refuse his visa.
Best interest of minor children in Australia affected by the decision
Paragraph 11.2 of the Direction relevantly provides that:
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
…
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to main contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Delegate in his determination to refuse PZZC’s visa found the best interest of his son would be served if his visa was not refused. However, the effect of the refusal on his son would be limited as he has had no contact with the child to date. Additionally, the Delegate found that PZZC had a close relationship with his younger siblings and it was not in their best interests for his visa to be refused.
The advocate for the respondent argued the Tribunal should find the best interests of PZZC’s son might be served by not having his visa application refused. However, this should be given limited weight as he is yet to meet his son, and his ex-partner is resistant to him doing so.
Additionally, the advocate for the respondent argued that some weight should be given to the best interests of PZZC’s younger siblings, as he has a close relationship with them and a refusal of his visa will have a detrimental impact on them. However, again, limited weight should be given to this aspect as he is not performing a parental role in respect of the children.
Counsel for PZZC argued strongly that the best interests of the children weighed strongly in favour of a decision not to refuse PZZC’s visa as he came from a tightknit family unit; that all the members of the family were suffering from some form of PTSD (except the youngest son who was born in Australia); and that his absence was having a profound detrimental impact upon all of their well-being. Most particularly, Counsel and PZZC’s parents referred to the impact of his separation on his younger sister. A statement from the child’s counsellor at Foundation House dated 21 September 2018 stated:
In light of [W’s] presentation, it is inevitable then that [PZZC’s] ongoing separation from the family has elicited a strong anxiety reaction from [W]. Indeed much of her current anxiety is channelled [sic] into an obsessive worry and fear for his well-being. [Her parents] reported that at the end of visits to Maribyrnong Detention Centre [W] would become clingy and emotional, resisting separation from [PZZC] and crying for him to come home with them.
[W] describes a caring relationship with her brother [PZZC], and in session she consistently expresses how much she misses him. In therapy she recalled that when on the boat [PZZC] gave her water to drink, cupping his hand to her mouth; demonstrating that she thinks of him very much as a caregiver. During therapy, [W] wrote a letter to [PZZC] asking questions about his wellbeing such as whether he is being mistreated, where he is eating, whether he is allowed outside and how is his sleep.
[W] has shown some extreme responses to her brother’s relocation to Perth; drawing a picture of herself jumping for a building with her parents watching on and crying. This level of distress and trauma is unusual for a 7 year old and can be interpreted as an expression of hopelessness, despair and loss, rather than in terms of suicidality.
Counsel for PZZC argued that it was in the best interests of his infant son for PZZC to be granted a visa to be allowed to stay in Australia so he can one day form a relationship with his child; and that this would be impossible if he were not granted a visa. During the hearing, PZZC gave one of his most insightful answers to the question of whether he wanted to be part of his son’s life, having never met the child, as the child has been born whilst PZZC was serving his prison sentence. He indicated that he wanted to meet the child to be part of his life and to assist with his upkeep. However, he recognised it was probably not the best time now to do this. He stated:
…I would love to see my son. I want to see my son… probably [ex-girlfriend] is still angry at me…at the moment I want to just leave it like that, she is probably going through a lot… I want to let her be… and I don’t want her to be affect[ed] anymore… What I did affected her in a very bad way and I don’t want to affect her anymore. I want everything to settle down. Down the track hopefully when my son grow[s] up a little bit, I will be able to see him and have a good relationship with him but at the moment probably still not the best time for that…
The Tribunal accepts that should PZZC be refused a visa he would lose any hope of establishing a meaningful relationship with his son. Furthermore, the Tribunal accepts that the impact on separation from his younger siblings would have a detrimental impact on their development. The evidence supports a finding that the primary consideration of the best interests of minor children weighs heavily in favour of not refusing PZZC a visa.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 a visa. Decision-makers should have due regard to the Government’s views in this respect.
The advocate for the respondent strongly contended that the Australian community would expect PZZC not to be given the right to remain in Australia. The respondent highlighted that the community rightly expects non-citizens to obey the laws of Australia and respect its institutions. He submitted that PZZC’s offending, involving attacking and seriously injuring his pregnant former girlfriend, was fundamentally incompatible with the values and expectations of the Australian community.
The advocate for the respondent did concede that PZZC’s history of traumatic experiences in his childhood in Syria, coupled with his journey to Australia, which had resulted in complex PTSD, had likely attributed to his offending and may elicit some sympathy within the community. However, he submitted that the Australian community will be of the view that PZZC’s visa should be cancelled given the nature, seriousness and impact of his criminal conduct and his lack of respect for this country’s judicial institutions.
Counsel for PZCC argued that members of the community rightly expect non-citizens to obey Australian laws However, the community would also show compassion to individuals, particularly children, who were victims of civil war and had experienced horrors beyond their years; and had subsequently developed complex PTSD. It was also necessary to consider the devastating impact PZZC’s indefinite detention, should his visa be refused, would have on this vulnerable young man, his family and the impacted minor children.
Counsel for PZZC also argued that refusing his visa application on the basis of the assumption that he is prone to criminality due to his underlying mental health issues was not in line with Australian community expectations. He argued that the community would expect people suffering from mental illnesses to receive appropriate medical care and support for their recovery.
However, this had to be tempered by the fact that PZCC has caused serious harm to a vulnerable member of the community. The Tribunal relies on the view expressed by Deputy President Block about the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
In the more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie noted that determining the expectations of the Australian community is “…ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence…” (at [72]). In assessing the expectations of the Australian community, the Tribunal has regard to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (paragraph 6.2(1)).
The Direction, at paragraph 11.3, clearly states: ’Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.’ PZZC’s offending is such that, in accordance with the Direction, the community would expect such a person not to be granted a visa. The Tribunal finds that the primary consideration of expectations of the Australian community weighs in favour of refusing PZZC his visa under s 501(1) of the Act. However, the Tribunal is also of the view that many in the community would feel that Australia does owe a duty of care to this vulnerable young individual
OTHER CONSIDERATIONS
International non-refoulement obligations
Paragraph 12.1 of the Direction provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia 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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

Section 197C of the Act states:
Division 8—Removal of unlawful non‑citizens etc.
Subdivision A—Removal
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
Section 195A of the Act gives the Minister the power to grant a visa to an applicant if it is deemed to be in the national interest. However, the Minister is under no obligation to exercise this power:
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b)if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Delegate in his determination to refuse PZZC’s visa, accepted that the Department had found PZZC is a person in respect of whom Australia has non-refoulement obligations.
The advocate for the respondent stated that the Minister accepts that international non-refoulement obligation considerations weigh in favour of setting aside the Delegate’s decision and remitting it for reconsideration. He stated that the Tribunal should also take into account that a decision to affirm the Delegate’s decision will mean that the applicant will be liable to be held in immigration detention for a further discrete, but potentially extended, period of time, unless the Minister exercises his non-compellable power under section 195A of the act to grant PZZC a visa. He argued it was open to the Tribunal to give some weight to this other consideration in favour of setting the decision aside.
The advocate for the respondent advised the Tribunal in his closing submission that the Minister submits it is not practicable for PZZC to be returned to Syria.
Counsel for PZZC argued that the Minister’s acknowledgement of Australia’s non-refoulement obligations which precluded PZZC’s removal to Syria would result in a significant likelihood of open-ended and very long-term detention if the refusal of his visa was upheld. He argued that the impact on the health and well-being of people subjected to protracted and open-ended detention are severe and widely documented. Indeed PZZC had seen the impact of detention on numerous individuals during his time on Christmas Island and in the Darwin detention centre, where he had witnessed individual self-harming. He strenuously argued that the prospect of indefinite detention was an unacceptable risk that would have a significant and perverse impact on PZZC’s health and well-being.
In his sentencing remarks at PZZC’s appeal, in respect of his sentence for his involvement in the Parkville riot, in the County Court on 14 December 2017 the judge stated:
… But one would hope that the Minister or is delegate, will consider the fact that your client has extreme post-traumatic stress disorder and that’s why his behaviour is as it is, plainly.
…
So him being shuffled around as you say, through Youth Justice and Immigration detention is obviously compounding his mental state, making it worse.
…
All right. Well, look, I’m happy to given him three months but my main concern at the moment is the service delivery to him. He’s got to get mental health service delivered to him. I mean he is profoundly unwell.
…
You can tell by just looking at him for a start. I mean no disrespect to him of course but it’s obvious from Mr Coffey’s reports. I mean he’s – the report, most recent report, which is just a few days ago – I mean he’s suffering from severe post-traumatic stress disorder, dis-associate seizures, intensely disturbing re-experiencing of events in Syria.
The Tribunal finds that the ongoing indefinite detention of PZZC would have a substantial deleterious effect on his already fragile mental health; and any hopes of his recovery from his PTSD would be impossible in these circumstances. The Tribunal finds that the prospect of indefinite detention weighs strongly against the refusal of the visa under section 501CA(4) of the Act.
Impact on family members
Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
The Delegate in his determination to refuse PZZC’s visa accepted that the refusal of his visa would have adverse effects on his family members.
The advocate for the respondent accepted that PZZC’s parents and four siblings will suffer a severe impact by his visa being refused. The respondent’s representative acknowledged that each family member had suffered and witnessed horrific trauma in Syria, and that his mother and younger sister had been particularly adversely affected by PZZC’s mental health issues in his continued deterioration. He conceded that this factor weighed in favour of setting aside the decision.
Counsel for PZZC reiterated the incredibly tight bond of this family unit and the distress that PZZC’s absence from the family was already creating. This distress had a negative impact on their ability to heal from their own trauma. He contended that the refusal of his visa would compound this distress, causing undue harm to PZZC’s parents and siblings. This factor should be given great weight in favour of granting the visa to PZZC.
PZZC’s mother and father presented at the Tribunal as genuine, caring individuals, who are extremely distraught at the predicament their son finds himself in. They were not attempting to downplay his criminal behaviour but stressed he was an unwell man who had experienced much and needed support to make a better life.
PZZC’s mother wrote in her statement and reiterated in her testimony at the Tribunal that: because of war and danger “we came to the country for a peaceful life, I and all my family plead to you are a great condolence because of the things committed by our son and I hope you can appreciate me, and my family, want my son out of detention because he is my whole life.”
PZZC’s father wrote: “[m]y family are missing him a lot, we wish he is back to us. We do not think [he] is any danger to us. His siblings and parents are crying for him, especially [W] and we all want him to return to us.”
PZZC spoke at the hearing of his strong attachment to his family; and that they were the main source of support and stability in his life. He said that he was missing them greatly; that having being removed to Perth and being away from them was very difficult; that thinking of his family made him emotional; that he missed their affection; and that he wanted to make his family proud of him.
The Tribunal finds that the impact on PZZC’s family members weighs strongly against the refusal of the visa under section 501CA(4) of the Act.
Impact on victims
Paragraph 12.3 of the Direction provides that the Tribunal must have regard to the:
(1) Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;
The respondent indicated there was no direct evidence of the impact of a decision on PZZC’s victim, his ex-girlfriend, if his visa was granted. The respondent contented this factor should be given no weight either for or against the exercise of the Tribunal’s discretion.
PZZC advised the Tribunal that he was very remorseful for his actions. He said:
It’s a huge mistake, a huge sin I committed and I confessed and no excuse can change or remedy the mistake I did. I hope I can change the past or change what I have done. I couldn’t really believe myself, I couldn’t deal with the people, couldn’t deal with the issue raised…
I loved the girl so much... I can’t forgive myself. I confessed that I was a bad sinner. I apologise for her, for the community, for her family and for my family that I let them down. I am sincerely sorry.
…
No one deserves to be stabbed. Not anyone. I can’t give reasons. I can’t give excuses. No excuse or reason justifies what I did; no one deserves to be stabbed.
….
During the last three years, I learn a lot, I met many people, I learnt many things. I became aware of how to deal with people. I’ve met doctors and specialists and they told me how to behave, how to confront trouble or issues, walk away if there is any argument that might escalate further beyond talking… Man and woman are equal. If someone doesn’t want me to contact them, I have to stop contacting them, I have to respect their wish...
When I become angry or frustrated or maybe upset, I learnt how to help myself... I do all the meditation remedy to make me able to confront things… I learnt how to control my emotions. Sometimes I used my hand writing to vent out my feelings and things. Sometimes I have to train my brain how to relax. Sometimes I have to contact my family or the councils. When I was 16 and 17 I was not aware of this remedy but now I am.
There is no evidence, one way or the other, that identifies what effect, if any, the granting of PZZC’s visa would have on his victim. There were no victim impact statements amongst the materials. However, it is apparent to the Tribunal that PZZC’s attack on his ex-girlfriend will have a lasting and devastating impact upon her. Violence perpetrated against women is abhorrent and is not tolerated by the Australian community. The Tribunal finds that this consideration cannot be weighed in the balance of refusing of PZZC’s visa under s 501CA(4) of the Act.
Impact on Australian business interests
Paragraph 12.4 of Direction provides that the Tribunal must have regard to the:
(1)Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
The respondent argued this consideration was not enlivened by the evidence before the Tribunal, as PZZC has never worked in Australia and is therefore not involved in the delivery of a major project or delivering an important service in Australia; nor has he ever been.
In light of the evidence, there will be no impact upon business interests in Australia should PZZC’s visa not be granted and this consideration has no bearing upon the consideration of whether to refuse PZZC a visa.
CONCLUSION
Having regard to all of these matters, the Tribunal decides that the decision of the Delegate of the Minister should be set aside. In reaching that decision, the Tribunal acknowledges that PZZC has experienced significant trauma in his young life. The Tribunal believes that the Australian community, if appraised of his whole circumstances, would be willing to afford him a second chance, to prove he is worthy of this country’s protection and care.
PZZC’s parents attest to the fact that he has matured; and if allowed to stay in Australia, he will receive all the treatment he requires; and he will be able to study, to be busy, and to eventually make a positive contribution to his adopted country.
PZZC reiterated to the Tribunal that he respectfully pleaded for a second chance to start a new life in Australia. He promised if he was given a second chance it would not be a mistake; that he had a stable environment to return to; that he wanted to complete year 12 and go to university to study to be a doctor as he wants to help others; that he wanted to continue with his counselling to be in a good state of mind; that he plans to keep himself busy by getting a part-time job and learning new skills; that he would go to the gym with his brother to keep fit and healthy; that maybe he would take up AFL which he admired; and that he wanted to become a part of the community. He had an enormous desire to be reunited with his family as he had found it difficult being separated from them. He said he was afraid that if he was to go back to Syria he would be killed or forced to join the Army or recruited by ISIS. Finally, he said that the prospect of indefinite detention was too much to bear.
The Tribunal notes that if PZZC does not take this last chance, he will not go back to prison; it will be to indefinite detention.
At the heart of the policy underpinning s 501(1) is the protection of the Australian community. Many in the community would believe PZZC’s visa should not be granted. Others, apprised of his difficult life story, would afford him the opportunity to stay in Australia – to find the peace his family sought when they fled their war-torn homeland – as his final chance. PZZC’s behaviour soon after his arrival in Australia has led to significant harm to a member of the community, which has led to the refusal of his visa. However, the best interests of the minor children, the impact on his family, the prospect of indefinite detention, and his moderate risk of reoffending outweigh the risk that he may bring harm to other members of the Australian community.
Overall, the Tribunal finds that, having regard to all of the primary and other relevant considerations which the Direction requires be taken into consideration by the Tribunal, the correct and preferable decision is not to refuse PZZC’s application for a Safe Haven Enterprise (CLASS XE) Visa.
PZZC undoubtedly committed a serious offence. However, the Tribunal considers that he committed this offence at a young age, does not have an ongoing history of criminal behaviour and was (and is) suffering from a severe mental health condition. He has access to an incredibly supportive family environment if released back into the community; he will have access to appropriate services and supports he has shown remorse and has matured since being detained. Whilst the risk that he will re-offend and cause harm to the Australian community is low to moderate, the consideration that Australia owes protection to this young vulnerable man weighs in favour of his visa not being refused.
The Australian community, if apprised of all the facts, would on the whole be inclined to not refuse PZZC’s visa. Finally, the Tribunal finds that Australia’s obligation to not return PZZC to Syria where he faces potential death, and the consequences of being subjected to indefinite detention are of such significance that these factors weigh heavily in favour of the visa not being refused.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Safe Haven Enterprise (Class XE) visa under s 501(1) of the Act.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

...................[sgd]...............................
Dated: 2 November 2018

Dates of hearing: 22 & 23 October 2018

Counsel for the Applicant: Mr Andrew White

Advocate for the Applicant: Mr Simon Bruck

Solicitors for the Applicant: Refugee Advice & Casework Service

Advocate for the Respondent: Mr David Brown

Solicitors for the Respondent: Australian Government Solicitor
ATTACHMENT
Applicant
A1Supplementary documents with annexures (a) to (k) lodged with the Tribunal on 17 October 2018.
A2Applicant's Statement of Facts, Issues and Contentions with annexures (a) to (m) lodged with the Tribunal on 2 October 2018.

Respondent
R1G-Documents lodged with the Tribunal on 29 August 2018.
Supplementary Relevant Documents (Volumes 1-5) lodged with the Tribunal on 16 October 2018.

[2018] AATA 4125

2 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	22 & 23 October 2018
Counsel for the Applicant:	Mr Andrew White
Advocate for the Applicant:	Mr Simon Bruck
Solicitors for the Applicant:	Refugee Advice & Casework Service
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor