QDWQ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2012

QDWQ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2012 (11 July 2023)
Division:GENERAL DIVISION
File Number:2023/2626
Re:QDWQ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:11 July 2023
Place:Adelaide

The decision under review is affirmed.
..........................[sgnd]..................................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – Refusal of Protection (Class XA) visa on character grounds under section 501(1)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to grant the visa under section 501(1) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs [2019] FCA 50
GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4811
JVGD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2830
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZXXZ Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2910
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
11 July 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section or 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 17 April 2023, not to grant him a Protection (Class XA) visa (“the Visa”). His visa was refused on 17 April 2023, under section 501(1) of the Act, on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of having been sentenced to imprisonment for a period of five years on 18 April 2017.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is therefore whether the discretion should be exercised to refuse to grant his visa application pursuant to s 501(1) of the Act. In so doing, the Tribunal must have regard to Direction 99.[1]
[1] The current Direction under s 499 of the Act.
The hearing was held on 26 and 27 June 2023. The Applicant was represented by Dr Patricia Rushton of Beena Rezaee Legal and Migration and the Respondent was represented by Mr David Brown of Australian Government Solicitor.
The Applicant gave evidence in person. He was aided by the services of an interpreter. The practical consequence of the Applicant giving evidence through an interpreter was that he was generally not facing the Tribunal when he spoke. This made a normal assessment of his demeanour as a witness, language aside, very difficult. Even allowing for this, the Applicant frequently offered unresponsive answers. On multiple occasions, he offered what sounded like a memorised statement of remorse and a promise not to reoffend. Often this was added as a postscript to an otherwise responsive answer. His evidence was frequently inconsistent with other material, including some past statements made by him. Some examples are set out below.
There were many occasions when the Applicant changed his story as his evidence went on. It is difficult to assess the extent to which this was an impression created by his words being filtered through an interpreter. For example, he responded to questioning by the Tribunal regarding his marriage, saying that it was an “engagement”. Later, he agreed with the Respondent’s Counsel, that it was a religious “marriage”. He also gave a curious account of having provided information to all of his former legal representatives regarding his partner having had an abortion, just prior to his offending. This was a matter that would have been relevant to the Judge and jury in his District Court trial. It seems that it was not mentioned. I note that he did not give evidence there. However, this was mentioned in passing by Senior Member Manetta in one of the Applicant’s previous Tribunal matters (“AAT1”). The possibility of recent invention is contradicted by Senior Member Manetta’s remarks. However, it remains unknown whether the Applicant’s lawyers in his criminal trial in the District Court, were ever informed.
The Applicant admitted to having lied to police about his offending in the past. This included telling lies about his partner and her brothers. He injured himself with a knife, to manufacture false evidence of having been the victim of an attack. He apparently lied to his lawyers and instructed them to run a false alibi defence in the District Court. He persuaded two of his sisters and a friend to perjure themselves, to advance this lie in court. He sought to make his partner withdraw a serious complaint of family violence against him, using threats and force.
The Applicant was a poor historian.
The Applicant gave explanations for his conduct that were not credible. For example, one explanation given for his behaviour, was that he did not understand the law in Australia and that he assumed that the law and culture here, were similar to that in Iran. He conceded when asked by the Tribunal, that threatening to kill a person was not acceptable in Iran. He was asked whether trying to strangle someone with a rope was acceptable in Iran. His curious response was that it “did happen sometimes”. He also said that he lied to authorities in the past because he was “scared of going to prison”. One consequence of the Applicant not being successful in these proceedings, may be an indeterminate stay in immigration detention. Based on his past behaviour, an undoubted fear of this outcome, also casts doubt on the veracity of his evidence to the Tribunal.
Overall, a combination of his record for telling blatant lies to authority and his performance as a witness, left an unconvincing impression. I do not regard the Applicant as a reliable witness. To the extent that there is other independent material available, I generally prefer it.
The Applicant called Mr Abiyat, a psychologist. Mr Abiyat has had some 25 telephone sessions with the Applicant since 1 April 2022. He was able to communicate with him without an interpreter. He began treating the Applicant at his request. Mr Abiyat’s role was as a treating clinician, not as a forensic reporter. His evidence was helpful, but it was naturally based on what he had been told by the Applicant. As I have already observed, I do not regard this as reliable. Mr Abiyat had not been tasked with a risk assessment as such. He thought that the Applicant had learned a lot about how to manage his behaviour and that he had matured since 2013. He gave some helpful cultural insights regarding the dynamics in the Applicant’s family and the broader Afghan community. He had a limited understanding of the scope and seriousness of the Applicant’s offending.
The Applicant also called his younger sister F. She is 29 years old and studying to be a nurse. She gave her evidence very competently in English. The Applicant prevailed upon her in the past, to give false alibi evidence to the District Court. She gave the Tribunal the explanation that she had just said what her brother had told her to say, and that she did not at that time know that it was a lie. She only found out the truth, sometime later. One possible problem with this account, is that her evidence in the District Court case, if actually given as she suggested, would have been hearsay and inadmissible. In any event, she has, like the Applicant, engaged in dishonest conduct. In her case, presumably motivated by a desire to get her brother out of trouble.
All of that said, her evidence was helpful. She gave insight into her burden of studying, working and looking after her unwell parents. She gave some cultural insights. She has some help from her sister. The Applicant’s brother, who culturally should primarily assist in caring for his parents, does not help. She is engaged to be married. When she does marry, she will leave her parents and start her own life. She is very concerned about how they will manage when she leaves. They have some limited community supports, but they are isolated by poor health and a lack of English language skills. The effect of her evidence was that the Applicant would assume her current caring role. She became very emotional when talking about her parents. If the Applicant were in the community, he said that he would become their primary carer and work part-time. As previously observed, anything said by the Applicant must be regarded with some suspicion. I accept that the Applicant is close to his family and genuinely concerned for the welfare of his aging parents. His promise to look after his parents if he is released into the community carries some weight, given that he did assist with their care in the past. Whether that would continue if he were to find a partner in the future, is in the realms of speculation.
Background Facts
The Applicant is an Hazara Afghan national. He was born in Iran in 1990.[2] He is a Shi’a Muslim. On 29 October 2011, the Applicant arrived in Australia from Iran, on a Special Humanitarian Programme (Subclass 202) visa, sponsored by his older sister, who was already in Australia, having arrived in 2009. He was 21 years old.
[2] Exhibit 4, G4, Attachment M, p 225.
Prior to coming to Australia, the Applicant and his family were Afghan refugees, living in Iran. His mother, father, brother, four sisters, four nieces and one nephew all live in Australia.[3]
[3] Ibid, G4, Attachment I1, p 159.
The Applicant attended Thebarton Senior College to learn English. He met RI there. He left after about eight months because he wanted to work to save money so that he could rent or buy a house. He obtained a truck licence and a forklift licence.
On 3 November 2012, the Applicant participated in an Islamic ceremony called “Nikah”, before witnesses, with his partner, RI. This was not a marriage according to Australian law, but it was culturally adequate to mollify their respective parents sufficiently, to permit them to cohabit. The Applicant told the Tribunal that he was in a relationship with RI for about six months before November 2022. Both families, especially the fathers, were unhappy with their relationship because it was not arranged between the families. They initially lived in his family’s home, as his family were away. They then lived with friends for two to three months. They then secured their own home in Parafield Gardens.
He said that the pair were happy for the first six months. She fell pregnant and he was very happy. She then arranged for a termination. He was not consulted about this. He thought that she went to the hospital for a medical check-up. He was very upset about this. He told the Tribunal that they fought and argued after this. He presented this as a turning point in their relationship. I have already canvassed the question of the extent to which this was revealed to his previous lawyers, police and others. He said that he told everybody about it. I do not accept this. As can be seen from the report of Dr White,[4] it was not mentioned to him. It was apparently not mentioned to Mr Abiyat. It is difficult to imagine that the lawyers acting for him in his District Court criminal trial were told about this, and yet chose not to advise the Court of this potentially important contextual evidence. To the extent that RI has provided her independent account of the relationship history, for instance to police, I accept her version and reject the Applicant’s version, as being self-serving and unreliable.[5]
[4] For example, Exhibit 4, G4, Attachment I1, pp 158-175, Attachment I2, pp 176-179 and Attachment J, p 180.
[5] E.g. Exhibit 6, RTB1, pp 30-32, 77-78 and 101-103.
A very different account emerges from various police records. These are detailed below. These suggest that the Applicant was regularly demanding money from RI, which caused arguments. She was on Centrelink payments at the time, and he was a casual employee. He told the Tribunal that there were financial arguments, but he said they arose from her making demands for him to purchase a car and other household appliances that he could not afford. These accounts seem to be irreconcilable. I regard his account as unreliable.
On 7 November 2013, the Applicant was involved in an assault on RI. He was granted bail with a condition that he was not to contact the victim. A SAPOL report states:
“The accused in this matter is [the Applicant], born [redacted].
On Thursday, 7th of November 2013, at [redacted], the accused assaulted [RI], by slapping her multiple times to the face and kicking her twice in the legs.
**** VICTIM VERSION ****
The victim in this matter is [redacted], born of an address known to Police.
The victim supplied a statement to Police. The victim states that she is in a relationship with the accused. At about 7.00pm on 7th of November 2013, the victim was at her home address and the accused returned home from work.
The victim asked the accused where her first aid certificate was, because she needed it for her study. The accused stated "I don't have it, but if I do have it, I'm never going to give it to you". An argument occurred over the certificate.
The accused then struck the victim to the left hand side of her face with an open right hand, which caused pain and made the victims ear ring. The accused then slapped the victims face approximately 3 times and kicked her legs very hard, twice, causing pain.
The victim fell to the ground. The accused went to the toilet and the victim took her phone and called the Police. The victim did not give the accused any permission to assault her.
**** POLICE VERSION ****
At about 8.00pm on Thursday, 7th of November 2013, Police [D] / [H] were tasked to the premises of in relation to an assault matter.
Upon arrival, Police spoke to the victim who was visibly upset. Police [H] spoke to the accused and removed him from the house. Police [D] spoke with the victim who made an allegation of an assault matter.
At 8.40pm on Thursday, 7th of November 2013, the accused was arrested and conveyed to the ELIZABETH Police Cells.
Police [J] / [A] attended the scene and obtained a notebook statement from the victim.
At about 9.30pm, the accused was given his arrest rights and interviewed in the ELIZABETH Police Cells Interview room. These arrest rights and interview were conducted via the use of a Persian speaking interpreter. A copy of this recording has since been booked to the Police Property Management System.
The accused was charged and bailed at 11.30pm and was conveyed home by Police.
The accused’s identity was identified by South Australian drivers licence number [redacted]
**** ACCUSED VERSION ****
The accused in this matter is [the Applicant], born [redacted].
The accused stated that an argument happened at the house and the victim stated going crazy and tearing his clothing. The accused stated that the victim grabbed his hands and put them on her throat to 'set him up'.[6]
[6] Exhibit 6, RTB1, pp 4-5. This account is clearly false.
This episode was put to the Applicant. He said that he did not understand the law at that time and his English was poor. He stated that he had nobody to guide him and tell him what was right and wrong. He said that he did not discuss this with his family because they disapproved of the relationship. He suggested that he thought that the law here was like it was in Iran. His explanation given to police was a lie.
He told the Tribunal that they had argued, and he had pushed RI and slapped her once. This minimises the seriousness of his behaviour, when compared to the details in the police complaint[7] . She had insulted him, told him that he was” a coward, not like a normal husband”. She was “always provoking him.” I prefer the police record to the Applicant’s evidence.
[7] Above.
On 12 November 2013, the Applicant breached his bail conditions and committed another assault on the victim. He made false statements to police regarding this incident. A SAPOL report states:
“BRIEF OVERVIEW
(Count 1 - Breach of Bail)
On the 12th November 2013, at [redacted] the accused [the Applicant] failed to comply with a bail agreement by contacting the victim [redacted]. The agreement was entered into by the accused on 7^th November 2013 at Elizabeth Police Station for the original offence of Aggravated Assault.
(Count 2 - Aggravated Assault)
On the 12th November 2013, at [redacted] the accused [the Applicant] assaulted the victim [redacted] by threatening her while holding a knife.
The circumstances of aggravation are that the accused had possession of a weapon when committing the assault.
BAIL AUTHORITY
The bail authority in this matter is ELIZABETH Police Station.
The accused entered into an agreement with ELIZABETH Police Station on the 7^th November 2013 when they he was charged with Aggravated Assault to appear at the ELIZABETH Magistrates Court on Thursday 12th December 2013. Apprehension report number [redacted] refers.
Condition 2b of the bail condition for the accused states: I will not make contact with [redacted].
Police bail application number [redacted] refers.
VICTIM VERSION
(Breach of Bail & Aggravated Assault)
The victim in this matter is, [redacted], DOB of an address known to police. The victim is the wife of the accused.
The victim states that on at about 5.00 p.m. on Tuesday 12th November 2013 she was at her parent's house with her sister [redacted] and Mother [redacted] when the accused came knocking, banging and kicking the door shouting "Come out Come out or I will break the door".
The victim further stated that as he was doing this he had a knife in his right hand. The victim called police at which point the accused left. [Redacted] was in fear of being assaulted as he was in possession of a knife and due to the nature of the accused's behaviour.
The victim stated she did not give the accused permission to assault her. The victim provided a full statement to police.
WITNESS VERSION
Witness 1 - Breach of Bail
The witness in this incident is [redacted] DOB [redacted] of and address known to police. The witness states that at about 5.00 p.m. on Tuesday 12^th November 2013 she was at her home address along with the witness [redacted] and the victim when she heard a loud banging on the front door.
The witness further states that she observed the accused stand on the front porch of the property screaming and holding a knife, stating, "If you don't open the door I will break the door and kill you and myself".
The witness provided a full statement to police.
Witness 2 - Breach of Bail
The witness in this incident is [redacted], DOB [redacted] of and address known to police. The witness states that at about 5.00 p.m. on Tuesday 12^th November 2013 she was at her home address along with the witness [redacted] and the victim when she heard loud banging on the front door.
The witness further states that she observed the accused stand on the front porch of the property with his hands covered in blood. The witness provided a full statement to police.
POLICE VERSION
At about 5.50 p.m. on Tuesday 12th November 2013, Police ([S]/[C]) were on uniform mobile patrol when they attended at [redacted] in relation to a disturbance. Upon arrival they spoke to the victim and witnesses.
[S] and [C] obtained statements from the victim and witnesses in relation to the allegations, which were noted in police issue notebooks. The accused, [the Applicant] was later located on and subsequently conveyed to the Royal Adelaide Hospital as he was found with significant cuts to both his forearms.
At about 10:49 p.m. on Tuesday 12th November 2013, Police ([M]/[G]) attended the Royal Adelaide Hospital to relieve Police ([S]/[C]). At about 11:44 p.m. on the same date, Police ([M]) activated a video camera and informed the accused that he was under arrest for breaching his bail and an aggravated assault matter.
The accused was given his arrest rights, which was recorded on video. Police thereafter conveyed the accused to HOLDEN HILL Police Station.
At about 1:05 a.m. on Wednesday the 13th of November 2013, Police ([M]) conducted a video record of interview, with the assistance of a Persian translator [redacted]. The accused was thereafter charged with breach of bail and aggravated assault.
The accused was further issued with a Police Interim Intervention Order ([redacted] refers) at 3:40 a.m. on Wednesday the 13th of November 2013 and left in the care of cell staff.
The identity of the accused was confirmed by a TAFE student card, the picture on the card resembling that of the accused. Identification card number refers.
ACCUSED VERSION
The accused is [the Applicant] ([redacted]) of [redacted]. He was interviewed in the presence of Persian interpreter on video camera under Police caution. He stated his ex partner's brothers named and attacked him and forced his arms behind his back before cutting his forearms with a razor blade or a knife.
He denied confronting the victim at the witnesses' address at in breach of his bail conditions and further denied assaulting anyone with a knife.
When Police informed [the Applicant] about fresh blood being located at the crime scene he stated his attackers may have taken samples of his blood to leave at the house in order to make him look guilty. [The Applicant] insisted he was innocent and denied all allegations put to him.
……
***BRIEF OVERVIEW***
At about 3:40am on Wednesday 13th November, 2013 police Issued [the Applicant] [redacted] with a Police Interim Intervention Order (PIIO), number SAPOL [redacted] for the protection of [redacted].
***VICTIM VERSION***
The victim in this matter is [redacted] the wife of [the Applicant], the accused. The victim stated that on 12th November 2013 she was at her parent's house when the accused came knocking, banging and kicking the door shouting "Come out Come out or I will break the door." She added that as he was doing this he had a knife in his right hand. She stated that she called police and the suspect left. She added that she did not give him permission to assault her.
***WITNESS VERSION***
The victim in this matter is [redacted], the sister-in-law of the accused. The victim stated that on 12th November 2013 she was at her parent's house when the accused came knocking, banging and kicking the door shouting "If you don't open the door, I will break the door and kill you and myself" She added that she told her father not to let the accused in. She added that this caused her to fear for her own safety and that of her sister the victim.
***POLICE VERSION***
At about 5.50pm on Tuesday 11th November 2013, Police ([S]/[C]) attended [redacted] in relation to a call for police assistance. They spoke to the accused [the Applicant] and the victim [redacted] alleged the accused had attended her parent's address in breach of his bail. Police ([S]/[C]) subsequently attended another address in relation to an allegation of assault by the accused. He was taken to the Royal Adelaide Hospital. The accused was subsequently placed under arrest by [M] given his arrest rights and conveyed to Holden Hill Police Station. Police ([S]/[C]) took a report from the victim [redacted], in relation to a fail to comply with a bail agreement matter and police incident report [redacted] was generated with the accused, [the Applicant], named as the suspect. At Holden Hill Police Station the accused was formally interviewed in relation to the matter in company with a Persian Interpreter before being charged at 3:10am.
Identity of the accused was confirmed by the sighting of his photo on the offender management system. Police formed the opinion that there were grounds for the issuing of a police interim intervention order against the accused and it was appropriate to issue to prevent further abuse being committed against the victim.
Police ([M]) issued the accused with a Police Interim Intervention Order (PIIO) and explained all the conditions.
***ACCUSED VERSION***
The accused in this matter is [the Applicant] [redacted] of [redacted. He was interviewed in the presence of Persian interpreter [redacted] on video camera under Police caution. He stated his ex partner's brothers named [redacted] and [redacted] attacked him and forced his arms behind his back before cutting his forearms with a razor blade or a knife. He denied confronting the victim at the witnesses' address at [redacted] in breach of his bail conditions and further denied assaulting anyone with a knife.
When Police informed [the Applicant] about fresh blood being located at the crime scene he stated his attackers may have taken samples of his blood to leave at the house in order to make him look guilty.
[The Applicant] insisted he was innocent and denied all allegations put to him. Upon receiving the police interim intervention order the accused stated the he understood the conditions.[8]
[8] Exhibit 6, RTB1, pp 10-12 and 17-18.

The Applicant was asked about this episode during the Tribunal hearing. He said that he went to see RI’s parents. He had no idea that she would be there. He wanted to ask them if they “knew all of the facts” and if “they were aware of the fighting”. He was intending to apologise and to persuade them to send RI back to him.
When asked why he had taken a knife, he said that “it was not a knife, but like a knife”. He told the Tribunal that the knife was to be used to threaten RI’s parents, to get them to send RI back. This was his planned next step, if the tactic of apology and persuasion did not achieve the desired result. He said that he “didn’t know what else to do. It was the only thing that came into my mind.” The Tribunal notes with concern that this was a premeditated crime. The Applicant told the Tribunal that “I didn’t know that was the wrong thing to do”, although he now knew that it was wrong. I do not accept that the Applicant was ever unaware that his conduct was wrong.
Even if he did not know that RI was in the house when he first arrived there, which I am inclined to think is untrue, he soon became aware that RI was in the house. He could have left then, but he didn’t. He told the Tribunal that he knew that he was breaching his bail, at least once he had discovered that RI was there. He said that he did not take the law seriously at that time.
The Applicant admitted banging on the door and making threats to kill them and himself. He did this “because I wanted to scare them so their daughter can come home”. He said that he cut himself to “get their sympathy”. He conceded that the people in the house were very scared. He admitted telling lies to police about his injuries. He said that he did this because he was scared. He then quickly gave a very different reason. He said that he had blamed RI’s brothers because he wanted to “make them scared of the police and send (RI) back”. In other words, as a form of blackmail.
On 13 November 2013, the Applicant was issued with a Police Interim Intervention Order (“PIIO”).[9]
[9] Ibid, RTB1, p 17 and pp 44-45.
On 11 December 2013, the Applicant again breached his bail conditions and the PIIO issued on 13 November 2013. A SAPOL report states:
*** BRIEF OVERVIEW ***
The accused in this matter is [the Applicant] [redacted].
COUNT 1
On Wednesday, 11th December 2013, at [redacted] the accused breached a condition of his Intervention Order by contacting the protected person via telephone.
COUNT 2
On Wednesday, 11th December 2013, at [redacted] the accused breached a condition of his bail by contacting the protected person via telephone.
*** VICTIM ***
The victim in this matter is the defendants wife, [redacted].
The victim will say that on Wednesday, 11th December 2013, at about 6.22pm she received a call on her mobile telephone from an unknown number. She answered the phone but the caller did not speak. She said, "Hello, who are you? Why are you calling me?" She then heard a male voice that she recognised as that of her husband. He said, "I'm [the Applicant]. Come back into my life. Don't send me to jail." She said "You've done bad things to me and I don't want you to do it again" and hung up the phone. She then attended Holden Hill Police Station to report.
*** POLICE ***
Count 1
At 4.14am on Wednesday, the 13th November 2013, Constable [PD] served [the Applicant] [redacted] with a Police Interim Intervention Order, [redacted], for the protection of [redacted] dob [redacted].
The defendant must not contact or communicate with the protected person(s) either directly or in any way (including phone, letter, cards, SMS, messages, Email, Facsimile etc) except with respect to contact and access to children pursuant to any order or direction of the Family Law Court or other Courts exercising jurisdiction under the Family Law Act
Count 2
At 3.10am on Wednesday, the 13th November 2013, the defendant was granted bail by Holden Hill Magistrates Court.
Bail condition 4 states:
I will not approach or communicate, either directly or indirectly, with [redacted].[10]
[10] Ibid, RTB1, p 23.
When asked about this, the Applicant initially denied the episode. When pressed, he conceded that he did make the call because he “wanted her to take her claim back”. He admitted that he knew that this was illegal, a breach of bail and a PIIO at the time. This was an attempt to interfere with a witness, who was also a victim.
On 27 January 2014, the Applicant again breached the conditions of his bail and the PIIO when he committed further offences against his former partner. He again made false statements to police. A SAPOL report states:
“*** BRIEF OVERVIEW ***
The accused in this matter is [the Applicant] (dob: [redacted]).
(Count 1 - Breach Intervention Order)
On the 27th of January 2014, at [redacted] it is alleged the accused breached a Police Interim Intervention Order of which he was the defendant by making contact with and threatening the protected person, [redacted].
(Count 2 - Aggravated Serious Criminal Trespass: Residential)
On the 27th of January 2014, at [redacted] it is alleged the accused entered a place of residence of [redacted] as a trespasser with the intention of committing an offence to which this section applies namely an offence against the person.
It is further alleged the offence is aggravated as the accused committed the offence when another person was present in the place of residence when the offence was committed and the accused knew of the person's presence or was reckless about whether anyone was in the place.
(Count 3 - Property Damage)
On the 27th of January 2014, at [redacted] it is alleged the accused without lawful excuse and intending to damage property, damaged a fly screen the property of [redacted] such damage amounting to not more than $2,500.
(Count 4 - Theft x 2)
On the 27th of January 2014, at [redacted] it is alleged the accused committed theft by taking property namely 2 x mobile phones, of a value involving $2,500 or less, the property of [redacted] and [redacted].
(Count 5 - Aggravated Assault x 2)
On the 27th of January 2014, at [redacted] it is alleged the accused assaulted [redacted] and [redacted].
It is further alleged the offence is aggravated as the accused used an offensive weapon in the offence, namely a knife.
(Count 6 - Aggravated Endanger Life)
On the 27th of January 2014, at [redacted] it is alleged the accused without lawful excuse strangled [redacted] with a rope knowing the act was likely to endanger her life, and intending to endanger her life or being recklessly indifferent as to whether her life was endangered.
It is further alleged the offence is aggravated as the accused used an offensive weapon in the offence, namely a knife.
(Count 7 - False Imprisonment x 2)
On the 27th of January 2014, at [redacted] it is alleged the accused repeatedly prevented [redacted] and [redacted] from leaving premises they were in and unlawfully detained them.
(Count 8 - Aggravated Indecent Assault)
On the 27th of January 2014, at [redacted] it is alleged the accused indecently assaulted [redacted].
It is further alleged the offence is aggravated as the victim of the offence was a former spouse.
*** VICTIM 1 VERSION ***
[Redacted] is a victim in this matter and states she met the accused in 2012 and he later became her husband but in November 2013 she took out an Intervention Order against the accused and they separated.
She states at about 2:00 p.m. on Monday the 27th of January 2014 she went with her sister, [redacted], Victim 2, to her home address in [redacted] to collect some clothes and check the mail at which time she noticed the accused was outside a window and was knocking on the window asking to come in. She told him to go away.
She states she saw the accused in possession of a knife which he used to cut the window security screen and then climb through the window. She states the accused then went to her and her sisters bags and grabbed their phones.
She states the accused while still in possession of the knife grabbed hold of her right arm and pulled her backwards to her bedroom where he put a red rope around her neck and pulled tightly on the rope saying "I will kill you" which caused her to have difficulty breathing. She states the accused then tried to undress her by lifting her top and tried to have sex with her
She states she did not give the accused permission to enter her house, damage the screen, place a rope around her neck, take her mobile phone or try to remove her clothing.
Victim provided a signed statement to Police.
*** VICTIM 2 VERSION ***
[Redacted] is a victim in this matter and states between 1:30 p.m. and 2:00 p.m. on Monday the 27th of January 2014 she went with her sister, [redacted]. Victim 1, to wash [redacted] clothes at her house in [redacted].
She states she was standing in the bathroom when she head [redacted] shout "What are you doing here, go away!" and when she went to see what was happening she saw [the Applicant], the accused, inside the house. She states she saw the accused holding a knife in one hand and a piece of red rope in the other. She states the accused threatened to kill her and her sister. She states she saw the accused put the rope around her sisters neck and pull it tight with two hands, which caused her sister to gasp for air and she thought her sister was going to die. She states when she tried to intervene the accused picked up the knife and pointed it directly at her and said "I will kill you if you don't shut up. It's not your business, stay away!"
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I provided this statement to Constable [B], [redacted], at about 7:30pm on Monday the 27th January 2014 at HOLDEN HILL.
I am from Afghanastan. I moved to Adelaide about seven (7) years ago with my family and my native language is Dari. I speak, read and understand English well.
My sister [redacted] is [redacted] was married to [the Applicant] for one (1) year and they separated about two (2) and a half months ago. They were living together at [redacted] but he moved out when he was arrested for assaulting [redacted]. [Redacted] now lives with us at [redacted] as she is too afraid to go back to her house in [redacted]. [Redacted] only goes back to her house to check mail and to clean the house.
[Redacted] picks me up every time she has an appointment or is going out as she is very afraid of [the Applicant]. [The Applicant] is not allowed to have contact with [redacted] after he was arrested for assaulting her.
Between 1:30pm and 2:00pm on Monday the 27th January 2014 [R] and I left our house in [redacted] to wash [redacted] clothes at her [redacted] house. [Redacted] drove her car to the house.
Shortly after we arrived at [redacted] house in [redacted]. We entered the house and [redacted] locked the front door. [Redacted] house at [redacted] is a two (2) bedroom house with one (1) living area. As you are looking at the house from the street, both bedrooms are on the left hand side, with [R’s] bedroom being at the back of the house before you enter the kitchen. The kitchen is connected with the living area and the laundry is on the right side of the house which leads outside. The living room has a sliding door which leads to the backyard.
[Redacted] washed her clothes by hand in the kitchen sink which took about fifteen (15) to twenty (20) minutes. When [redacted] finished washing her clothes she went outside to hang them out. When [redacted] had come back into the house she asked me to open the bathroom window to let air inside the house. I didn't see the time, but we had been at the house for about forty five (45) minutes.
I went into the bathroom and opened the sliding window. While I was standing in the bathroom I head [redacted] shout 'What are you doing here, go away!' I came to see what was happening and ran into [redacted] bedroom because I thought she was in there. [Redacted] came running into her bedroom and I saw [the Applicant] directly behind her. I was standing close to [redacted] inside the bedroom and [the Applicant] was standing at the door. Inside [redacted] bedroom is a double bed and drawers against the wall.
I saw [the Applicant] holding a big sharp knife in what I think was his left hand. The knife had a black handle and a silver coloured steel blade. The blade was straight and was about 15-25cm in length. In his other hand [the Applicant] was holding a piece of red rope which was wrapped around his hand. He was also holding red fabric in his hand. I wasn't understanding what was happening at that time and felt really dizzy.
[Redacted] was crying, saying 'Go away, go away!' [the Applicant] was really angry and shouted 'Shush otherwise I will kill you!' When he said this he was holding the knife by his side and it was pointed towards [redacted]. [The Applicant] put the knife on top of the drawers and stood next to [redacted] holding the red rope. [The Applicant] was really angry and put the rope around [redacted] neck. The rope was a bit less than 1cm thick and about 60cm long. [The Applicant] stood in front of [redacted] and pulled the rope tight with two hands. [Redacted] had tears coming from her eyes and couldn't shout as the rope was so tight around her neck. I could hear [redacted] gasping for air and I thought [the Applicant] was going to kill her. [The Applicant] was holding the rope really tight around [redacted] neck for about five (5) seconds. I saw [redacted] face turning red when he had the rope around her neck. [The Applicant] didn't say anything and he looked really angry.
I was crying and I was really scared. I tried to move [the Applicant’s] hands from the rope and I was telling him to leave [redacted] alone. [The Applicant] pushed me with one (1) hand to my left shoulder and he let go of the rope from [redacted] neck.
[The Applicant] picked up the knife from the top of the drawers and pointed it directly at me. He was standing directly in front of me, only about an arm's length away. [The Applicant] shouted at me 'I will kill you if you don't shut up. It's not your business, stay away!' I was scared and thought [the Applicant] would stab me. [Redacted] told [the Applicant] to go away. [The Applicant] told us to go into the living room with him. We went into the living room and [the Applicant] told us to sit on the floor.
[The Applicant] took my Iphone and [redacted] Iphone which were on the floor in the lounge room. [The Applicant] said he was taking our phones so that we couldn't call police. He put them behind him on the floor next to the wall and put the knife down next to the phones. I think the rope was still in the room as well as the fabric that he first had.
[The Applicant] had a conversation with us in the living room. [The Applicant] said to [redacted] 'Take your reports from police and come back in my life.' [The Applicant] was telling [redacted] his court dates and how much he had paid the lawyer and those things. [Redacted] told [the Applicant] there were cameras in the house and that police knew he was there. [The Applicant] said 'I have been to the house many times, I know there is no camera here. I have been outside your parents house and know what you guys are doing.'
[The Applicant] made us stay in the living room and we were unable to leave. We were unable to phone police for help as he took them from us. I felt that if we tried to leave [the Applicant] would kill us. He was really angry, I thought it was going to be our last day as [the Applicant] couldn't control himself.
[The Applicant] told [redacted] many times to take the reports from police, and kept asking her why she had done it. We were in the living room for a very long time, about one (1) hour, maybe more than that. During this time [the Applicant] was saying many things to us. He was saying things like; 'These things happen between husband and wife.' 'We have spent too much money on lawyers.' 'We will start our lives again and we will go to Brisbane.' He just wanted her to take the reports back and was forcing her. [The Applicant] was saying that he would not give [redacted] divorce.
[The Applicant] told [redacted] to go to her bedroom. I stood up and followed them because I wanted to help my sister. [The Applicant] had our phones and the knife which he put on top of the drawers. I went into the bedroom and [the Applicant] was really angry, shouting at me to go away. [The Applicant] said 'Leave the room otherwise I will kill you.' I stayed in the room and said 'Do whatever you want to do to me, I'm not going to leave the room.' He came near me and I thought he was going to hit me but [redacted] came in front of him.
[The Applicant] tried to close the door but couldn't as I was standing in the way. [The Applicant] then started hugging [redacted] while I was still in the room and started to take her head scarf off. [The Applicant] was holding [redacted] tight around her body and [redacted] was trying to push him away. [Redacted] started talking nicely to [the Applicant] and he let go of her. We told [the Applicant] to bring his parents to our house tonight and to put his hand on the holy book saying that he would not hit [redacted]. [Redacted] told [the Applicant] to bring his family and the priest to our house tonight because we just wanted to leave the house.
[The Applicant] said 'How can I trust you're not going to call police after?' [Redacted] said 'You have to trust me, I'm not going to do anything, everything will be ok.' After we had explained everything [the Applicant] told me to put the flyscreen in a bin. He had removed this flyscreen from the living room window. I saw that the wire had been cut and [the Applicant] had removed the wire from the frame. [The Applicant] told me to put the frame in the bin but I put it in the laundry and left it there Refer next OEL entry for further text.
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I am the above named person and I live at an address known to police. I provide this statement at about 7:20 pm on Monday 27th January 2014 at HOLDEN HILL.
I provide this statement in relation to my ex-husband [the Applicant] [redacted] who entered my house uninvited and attacked me and my sister [redacted].
I met [the Applicant]in 2012 at Thebarton Senior Collage as we were studying at the same collage. We were seeing each other at collage. Three to four months later [the Applicant] proposed to me. This proposal came as a shock. Initially I refused his advances. I did this because I was concentrating on my studies.
The marriage proposal caused me some problems at home, as culturally my parents expected to choose my partner for me. In my culture it is not normal for a girl to choose her boyfriend. Initially my father told me that if I wanted to be with the boy then I could not live at home.
[The Applicant] kept asking me to marry him and he told me that he would look after me and make me happy. I reluctantly agreed to his proposal and set about convincing my parents. [The Applicant] and his family came to our house and spoke with my family. On that occasion they did not agree to the marriage.
On 3rd November 2012 the Imam attended my parent's house in [redacted] so that we could have our Nikah which was the Islamic cultural marriage. This was the symbolic contact between [the Applicant] and I which we entered into of our own free will and from that point on in the eyes of our community we were married.
We did not have a civil marriage ceremony also but because my parents did not agree we did not have one. From that point on we lived together as husband and wife and were married in the eyes of our community.
Within the first month of the marriage the problems began to start. Firstly [the Applicant] wanted money from me. I would give him $100 per fortnight. He would state that he wanted more money. I didn't have any more money to give him as I was on a Centrelink payment.
He would demand more and more money as [the Applicant] was smoking and drinking alcohol this was not enough however as [the Applicant] would always want more. I borrowed $2500 from my brother so he could buy a car. He still kept demanding money. If I did not get it for him he would hit me. I was scared of him so I kept going to get more. In the end I told him I did not have any more money. I was paying all the rent and bills and still giving him $100. He would tell me that I was useless as I could not provide him money.
We lived with friends and [the Applicant’s] family from the time we got married until June 2013 when we moved into the house together in [redacted]. We lived there until November 2013 when another incident occurred with [the Applicant] and I got an intervention order.
[The Applicant’s] family were not happy with our relationship as he is from Iran and I am from Afghanistan.
At about 2:00 pm today being Monday 27th January 2014 I went to my home address in [redacted]. [Redacted] to collect some clothes and check the mail. I have done this about once a week since my Intervention Order was put in place as I have been living at my parent's house in [redacted]. I have done this because I have been too scared to live alone. I am scared of [the Applicant] and his family.
I got home let myself in locked the door behind me and went into the living room my sister [redacted] was with me. I go everywhere with my sister as I am scared of [the Applicant] and scared of what he might do to me.
I was sitting on rugs in the living room waiting for my sister as she went to the toilet. Whilst I was there I noticed [the Applicant] was outside the window. He was knocking on the window asking to come in. He was saying can you open the window or open the door. I said to him "No please go away."
I could see that he had a knife in his hand. I think it was in his left hand. The knife was very big. It was about the length of the tip of my finger to my elbow which is about 30 centimetres in total the blade was about 20 centimetres and the handle which was black 10 centimetres.
[The Applicant] then started to cut around the window's security screen with the knife. I did not see exactly how he did this as I was really scared. The window behind was open. I always open that window and the bedroom window as soon as I enter the house as I like to let the fresh air in.
[The Applicant] then climbed through the window. I immediately began to shout for my sister. [The Applicant] came into the living room. I got up and ran to the corridor. I was really scared. I was shouting and shouting for my sister. As I did this [the Applicant] went into both our bags and grabbed our phones. He said "Don't call the police." When I saw him I was trying to grab my phone from my bag so he saw where it was.
I was standing outside the living room between there and the toilet in the corridor when [the Applicant] came out. He was still holding the knife in his left hand. He grabbed hold of my right arm and pulled me backwards toward my bedroom. I was really scared, I was screaming for my sister. He said "if you don't go with me I will kill you!" He said this in farsi.
I believed what he was saying as he has previously held a knife to my throat. Because of this I went with him. He took me into the bedroom and closed the door. I then sat down on the floor because he took off my scarf.
My scarf is culturally significant to me as I wear it when I am around me who are not in my immediate family. As I no longer consider [the Applicant] my husband it is important for me to wear my scarf when he is around. By me not taking off my scarf [the Applicant] would know that I no longer consider him to be my husband.
My sister opened the door and came into the room as I was still screaming at him to stop and screaming for my sister. My sister said to [the Applicant] "don't do anything to [redacted]. She will listen to you don't do any wrong thing."
[The Applicant] then put a red rope around my neck and pulled tightly on the rope. He was saying "I will kill you." He shouted to my sister "Don't come near to your sister." My sister was crying. I was very scared now. I was struggling to breathe. This was because the rope was cutting into my neck. This lasted for about 25 seconds. He then let go because my sister told him "She will listen to you."
[The Applicant] tried to undress me. He lifted my top which was a simple white shirt. When I am at home alone I wear simple clothes. My shirt came down to the middle of my thighs. He lifted it up to reveal my stomach. I said to him "no don't do this you are not my husband anymore." He was saying "let me do it let me do it." I though he was going to try and have sex with me. I didn't want to as he is not my husband anymore.
[The Applicant] got up and pushed [redacted] my sister to the wall. He then waved the knife at her and said "Go away or I will kill you." My sister said "Do what you like to me I am not leaving my sister."
We were then all in the same room. [The Applicant] then said lets go to the living room, he was holding the knife so I was scared what he would do to both me and [redacted]. He had already said he was going to kill both of us. I believed him as I believe that he is capable of doing anything. [The Applicant] was very angry.
He was shouting at us to go to the living room. He didn't stop until we agreed to go. When we got to the living room we all sat down on rugs. I said to him "I want my divorce." He said "No first you have to pay me $5000." There are no cultural reasons for any demands to be made for money in order for a divorce to occur.
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Refer previous OEL entry for further text." We were in the room for about an hour with him trying to convince me to start again."
I did not want to do this as I believe that if I get back together with [the Applicant] that he will eventually kill me.
He then asked "Do you have any money." I said "I don't have any money, if you don't believe me you can check."
He then began trying to convince my sister to persuade me to withdraw my statement. "He said if you get your sister to withdraw her statement I will leave her alone and not do anything bad to her." I though he meant that he would leave alone.
I said to him "I will give you $5000 and withdraw my statement." I only said that to get rid of him. I thought if I didn't agree to this he would kill us both. At this time I didn't think about myself only my sister.
My sister said to him "Ok she will give you what you want. Come over to my parent's house tonight with the priest who did the nikah and we will sort it out."
[The Applicant] then said "Ok I will come tonight with my parents and the priest once the priest had finished at the mosque, I will come to you place."
He then left house through the front door. He gave our phones back to us. I said to my sister "let's call the police". She said not to as she was really scared and wanted to go to my parent's house first where she was safe. I changed my clothes as I don't wear short sleaves in front of my family and I felt embarrassed. We went to my parent's house and I called the police.
Police arrived and I informed the officers what had happened.
I did not give [the Applicant] permission to enter my house, damage the screen, place a rope around my neck take my mobile phone or try to remove my clothing.
I would describe my house as being a 2 bedroom unit. I pay $185 per fortnight rent. I got the house through community housing.
The house consists of a bedroom to the left of the front door as you enter an bathroom with toilet next to that and then the second bedroom which is my room behind that. My bedroom has a bed a built in wardrobe and a free standing wardrobe and a rug for sitting on. Culturally we sit on rugs placed on the floor. On the right side of the front door there is a laundry and a living room. At the back of the house there is a kitchen which is accessed through the living room. Each of the rooms with the exception of the living room and the kitchen has an individual door coming from the centre of the house. The living room has a window along the side of the house. This is the window is the one through which [the Applicant] entered. I have included a plan of my house which I exhibit as RAI/1.
Since the first incident happened I don't feel safe in my own house as I am always on edge and think that [the Applicant] is watching me”[11]
[11] Ibid, RTB1, pp 30-32, 77-78 and 101-103.

The circumstances of this offending were put to him. He said that he broke in through the window because “I thought that she may not open the door”. He came prepared to threaten RI with a knife and a rope to suffocate her, should that be required. He understood at the time that this was in breach of his bail conditions and the PIIO. He admitted to not taking either his bail conditions or the PIIO seriously.
His plan was to talk to RI and to get the two families together to “solve our problem”. The “problem” in his mind at that time, seemed to be focused on getting RI to withdraw her police complaint. He also wanted her to return to live with him.
If persuasion failed, he would try to scare her with threats. There is little if any evidence to suggest that the Applicant tried persuasion at all. He quite deliberately brought a knife with him, to assist with making his threats more credible. The threats did not achieve the desired effect.
He told the Tribunal that there was a heated conversation and he threatened RI with the knife. She still refused to agree to his demands. He then said to RI, “if you don’t come I will strangle you”. He put the rope around her neck. He initially told the Tribunal that he did not choke her, but later conceded that she was having trouble breathing. He agreed that he was intending to force RI to comply. He conceded that he threatened to kill her but said that this was not actually his intention. He did not recall having tried to undress her. He did concede that he threatened RI’s sister with the knife.
The Applicant told the Tribunal that he left because he went to see his family, to get them to talk to RI’s family. The notion that such a family gathering was possible, let alone likely to produce a happy outcome, especially after the Applicant’s threatening conduct, is transparently absurd. A more credible explanation is that he did not want to risk being arrested again for family violence, or that he thought that his threats and violence had achieved the desired purpose.
The next day, the police interviewed the Applicant. He lied to them, claiming to having been elsewhere at the time. He told them that RI was making this all up to get him into trouble. He prevailed upon his friend and sisters to lie to the police and the District Court of South Australia, to support his bogus alibi. He explained to the Tribunal that this was because he was “really scared of going to prison”. He was apparently not scared enough to have avoided breaching bail and the PIIO in the first place. He agreed that he did not think about the consequences for RI and her sister, who were put through the ordeal of a trial. He did not consider the consequences of prevailing upon his friend and his sisters to commit perjury. Given his alibi at trial, he obviously lied to his lawyers as well.
To the extent that the Applicant’s account and that of his victims differs, I reject his account and accept theirs. This is set out in the police records of interview with the victims, above and in the findings of the District and Supreme Courts. The Applicant was prepared to use threats and violence, to pervert the course of justice and to attempt to extort $5000 in cash. He was prepared to lie to police and to the courts. He prevailed upon others to perjure themselves.
Department for Correctional Services (“DCS”) records dated 19 April 2014, state:
“Assault Non-Serious (No Physical Injury) Prisoner Fighting.”[12]
[12] Exhibit 4, G4, Attachment E, p 84.
On 1 October 2014, the Applicant was before the Elizabeth Magistrate’s Court, charged with “commit assault-basic offence”. No conviction was recorded, and the Applicant was placed on a six month good behaviour bond.[13]
[13] Ibid, G4, Attachment A, p 38.
On 17 April 2015, the Applicant breached his bail agreement. A SAPOL report states:
***Brief Overview***
The accused in this matter is [the Applicant] [redacted] of [redacted]
Count 1 - Breach of bail
On Thursday the 18th of December 2014 the accused entered into a bail agreement with the District Court of South Australia to abide by certain conditions. Condition 6 of the bail agreement states that "I will remain at [redacted] throughout the period of home detention and must not leave that address at any time unless I have had the prior permission of an assigned Community Corrections Officer to be absent for a particular purpose, or to avert the risk of injury or death to myself or others, or to obtain urgent essential medical treatment and will not, except with the specific permission of a Community Corrections officer, travel South of Grand Junction Road.
On Friday the 17th April 2015 the accused left his home address and attended businesses in SALISBURY and finally a residential address at [redacted] without permission.
***Witness Version***
The witness in this matter is [redacted] of the Department of Correctional Services. The witness is an approved person to speak on behalf of the matter.
The witness states that she currently works with the Department of Correctional Services as a Community Corrections Officer. One of her roles is to supervise persons who are subject to home detention.
The witness states that she is responsible for the supervision of [the Applicant] the accused in this matter. The accused was granted bail on Thursday the 18th of December 2014 after he had been arrested for Serious Criminal Trespass, aggravated assault, false imprisonment and threat to cause harm to another.
Condition 6 of the accused bail states that "I will remain at [redacted], throughout the period of home detention and must not leave that address at any time unless I have had the prior permission of an assigned Community Corrections Officer to be absent for a particular purpose, or to avert the risk of injury or death to myself or others, or to obtain urgent essential medical treatment and will not, except with the specific permission of a Community Corrections officer, travel South of grand Junction Road."
The witness states that on Friday the 17th of April 2015 she gave the accused permission to leave his home address between the hours of 11.00am and 2.00pm to attend the Parabanks Shopping centre and the Salisbury TAFE Campus. The accused did not have permission to attend any other located.
Between the hours of 12.03pm and 2.46pm the witness states the electronic monitoring equipment shows that the accused attended the Parabanks Shopping centre along with numerous other locations around the Salisbury Shopping precinct.
The accused has then attended a private residence at [redacted] between the hours of 2.20pm and 2.40pm.
The accused had no permission to attend any private residence hence breaching.[14]
[14] Exhibit 6, RTB1, p 38.
On 4 December 2015, the Applicant was before the Elizabeth Magistrate’s Court charged with “fail to comply with bail agreement.” The Applicant told the Tribunal that he went to an unauthorised place to look at a car. He was convicted in respect of his breach of bail and discharged without penalty.[15]
[15] Exhibit 4, G4, Attachment A, p 38.
On 24 January 2017, clinical psychologist, Damien McInerney, prepared a report for the Applicant’s previous lawyers. This relevantly states:
“[The Applicant] was referred to me at Migrant Health Service for psychological assessment and therapeutic intervention for his psychological distress in March 2012. He did not engage in therapy at that time. He re-presented in September 2014 and attended four sessions of psychological therapy. At the time he was being held in home detention. He had been held in remand and for more than three months before being granted home detention. He reports that his experience of being held in prison was extremely distressing and traumatising for him. He was 24 years old at the time and had no previous experience of incarceration. He felt constantly unsafe, threatened and intimidated during his time in remand and was traumatised by the experience. He was then referred to me by his GP Dr Saad Jaber in November 2016 for further assessment and therapeutic support. His father and mother were also referred to me at that time for assessment and therapeutic intervention for their psychological distress.
Clinical assessment in September 2014 indicated that [the Applicant] suffered a severe depressive condition an high levels of emotional stress and anxiety. His symptom patterns suggested a post traumatic stress syndrome, which he casually related to his experience of imprisonment on remand prior to his release into home detention. On initial presentation, he identified the other dominant cause of his psychological distress as his worries about the court case that he was facing. His condition was characterised by persistent negative moods: depressed, stressed and anxious, irritable and frustrated. His cognitive functions were disrupted by ruminant intrusive anxious thoughts about his future. His ability to concentrate was disturbed and his memory function disrupted. His sleep was also exceedingly disturbed. He had much difficulty in falling asleep and he often had nightmares. He found the restrictions of home detention to be very stressful, but was determined to comply with them. He attended for four therapy sessions at that time.
[The Applicant] re-presented to my private psychological practise in November 2016. Clinical assessment at that time indicated that he was again severely depressed and highly anxious. The dominant causal factor at this time was the guilty verdict of his court case, with the possibility of a custodial sentence, which in turn could lead to deportation from Australia in his case. He was also very concerned about how his possible incarceration and the possibility of deportation would affect his parents, both of whom were heavily dependent on him for support in their everyday living activities. He, again, reports severe mood disturbance, depressed stressed, fearful and worried moods. He experiences cognitive problems impacting on his concentration and memory functions. He continues to have a severely disrupted sleep pattern. He is currently prescribed Axit (Mirtazapine) antidepressant medication.
[The Applicant] Was administered though DAAS-21 inventory on 24th January. The DASS-21 Is a reliable and valid assessment instrument for the presence an intensity of depression, anxiety and psychological distress. [The Applicant’s] scores on the DASS-21 Indicate that, in all domains - Depression, Anxiety and Stress, he is located in the Extremely Severe Range.
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(2) [The Applicant’s] Current mental health conditions and prognosis. [The Applicant] Suffers a severe depressive disorder and high levels of psychological stress and anxiety. Although he continues to maintain employment, his symptom pattern adversely impacts on his well being.
(3) The likely effect on [the Applicant’s] psychological well being if he's deported. If [the Applicant] were to be deported, it would impact on him in a severely adverse way. [The Applicant] was born in Iran, but has no rights of residence there. It is highly unlikely that he could settle there. He is, by birth, an Afghani national but has never lived there. He reports that he has no family there, no connections of any kind and would not be able to support himself there. All his family (his parents, sisters and brother) live permanently in Australia an enforced separation from them would cause him extreme distress.
(4) the likely effect on [the Applicant] Of serving a custodial sentence exceeding 12 months given his psychological and personal background.
A custodial sentence would be extremely distressing for [the Applicant]. he currently suffers from depression anxiety. The experience of prison life is highly likely to exasperate his psychological distress. He reports that he feels a strong sense of shame and guilt at the distress that he has caused his parents an upset at the thought of their further distress in the event of his imprisonment.
(6) [The Applicant’s] Role in relation to his parents and family and the likely negative psychological effects on [the Applicant’s] parents if he is separated from them due to his incarceration.
Both [the Applicant’s] parents (particularly his father) I heavily dependent on [the Applicant] for their everyday living needs. They present as older than their years and significantly limited in their capacity to attend to their daily needs. They report that [the Applicant] takes all the responsibility for maintaining their home. [The Applicant’s] Younger sister does all the cooking for the family and [the Applicant] attend to all the maintenance of the family home. He is also heavily involved in the daily care of his father, who needs care and support for most of his daily tasks, including bathing, grooming and dressing.
(7) The likelihood of [the Applicant] re offending and complying with any conditions of a suspended sentence bond or sentence subject to home detention conditions.
[The Applicant] Has already spent 3 years in home detention an on bail. During that time, he has complied with all the conditions imposed on him by the justice system. He currently maintains full time employment and makes a strong financial contribution to his family. He demonstrates a high level of responsibility towards his work and towards his family, who are heavily reliant on him the offences of which he has been found guilty are alleged to have taken place within the framework of deteriorating marital relationship. It is my clinical opinion that [the Applicant] is highly likely to be compliant with any conditions that are imposed on him in terms of suspended sentence or home detention. It is also my clinical opinion that it custodial sentence exceeding 12 months, which carries the possibility of deportation would impose on unjust an intolerable burden, not only on [the Applicant] but on his family, particularly his parents.”[16]
[16] Ibid, G4, Attachment I1, pp 176-179.
On 18 April 2017, the Applicant was convicted in the District Court of South Australia of various offences arising from his conduct on 27 January 2014.[17] These were, serious criminal trespass-residence unoccupied-aggravated, two counts of threaten to cause harm to another (aggravated offence), and threaten to kill or endanger life-aggravated offence. His end release date was set at 17 April 2022. His conditional release date was 17 April 2019. As of 15 April 2021, his request for parole had been refused by the parole board.[18]
[17] Ibid, G4, Attachment A, p 38.
[18] Ibid, G4, Attachment E, p 80.
In her sentencing remarks Judge Davidson said:
[The Applicant], you have been found guilty by the jury of the offences of aggravated serious criminal trespass in a place of residence, the maximum penalty for which is life imprisonment; two counts of aggravated threatening harm, the maximum penalty for each is seven years imprisonment, and aggravated threatening life, the maximum penalty for which is 12 years
imprisonment. To date you have spent three months and 10 days in custody, before you were granted bail with home detention conditions. You have now been on home detention for about two years and 11 months.
The offences in this case occurred on 27 January 2014, the victim of your offending is your ex-partner, RB. You met RB when you were both studying at the Thebarton Senior College: you married in late 2012 in an Islamic ceremony. She gave evidence in the trial that she chose to marry you because her parents wanted her to stay home after she had finished year 12 and not to go on to any further study. She essentially wanted to be away from them. During the course of your marriage there were incidents that occurred of a violent nature.
In November 2013 you committed an offence of assault against her. You were dealt in the Elizabeth Magistrates Court in October 2014 without conviction and placed on a bond to be of good behaviour for six months. In his sentencing remarks on 1 October 2014, Magistrate McLeod referred to the circumstances of the assault, as an argument in which it appeared “as though you and the victim were both giving as good as you were getting.” It was said that you reacted as many males do in a physical way by pushing your partner away and that you came before that court as contrite, remorseful and apologetic. It is not clear whether Mr McLeod was aware, at that time, that you had been charged with these more serious offences.
After you and the complainant separated there was an intervention order in place. RB got a house at [redacted]. She was scared to live at the house and scared of what you might do. She went to the house regularly to clean it. On 27 January 2014, she was there with her sister. You broke in through a window. You had a big knife and cut through the flyscreen. You had a rope in your hand and you were threatening towards your ex-wife. You wanted her to take back the report that she had made to the police but she was not going to do that. You pushed her into the bedroom, saying that you would kill her. Her sister was trying to intervene. Eventually you threatened her and put a rope around her neck and pulled on it. She said in evidence she had difficulty breathing. You pushed her to the ground and tried to undress her. Her sister was trying to stop you. You threatened her sister and said you would hurt her. You wanted RB to withdraw the complaint that she had made to the police. Eventually you left the
house and RB and her sister went home. The police were called and an ambulance conveyed her to hospital. She had red marks on her neck.
During the course of the trial you did not give evidence. Your sisters [F] and [Z] gave evidence and [QF] gave evidence providing an alibi for you. The evidence of these witnesses was rejected by the jury and rightly so, the evidence in particular of [QF] and [Z] was patently false.
I have received victim impact statements from RB and RZ. RB is still in fear and shock, she fears for her life and that of her family members because she regards you as a very dangerous man who has used force against her and threatened to kill her again if she told anyone about the domestic violence that was occurring. Her sister has been in shock and fear for her own life and that of RB and other family members. She said in her victim impact statement that, psychologically, she's very affected because now she feels scared and terrified of you.
Mr [J] made extensive submissions on your behalf. He said you are 27 years old and you come from a family with one brother and four sisters. Your parents were born in Afghanistan, you were born in Iran. Your parents moved to Iran, from Afghanistan as a result of unrest in Afghanistan that resulted in your father being wounded. Mr [J] took me through the history, that is a very sad one, in relation to the exile of your family from Afghanistan. The living conditions for your family in Iran were very difficult. You were not recognised as people, it was said, in Iran because of your Afghani citizenship. Under Iranian law you were not able to attend school, because Afghani people were required to pay for school in their country. No Afghani had the right to work in Iran so, effectively, your family had to work behind the scenes secretly.
From the submissions that were made to me, it is clear and I accept that your family 's life in Iran was very difficult. It seems that there was not enough money to meet your daily living expenses, and life, it was said, was pointless.
In 2008 your mother's eldest sister became a widow and could no longer support her children. She was accepted into Australia as a refugee. In 2011 she sponsored your family to move to Australia, which you did, as refugees with a permanent residence visa. As might be expected the change from living in Iran to Australia was remarkable. When you first arrived you did not speak any English, so were required to learn English. You took your first opportunity to do that at the Thebarton Senior College. You then went on to the Salisbury TAFE and achieved certificates one and two in English and also obtained your truck licence, a forklift licence and a rigid truck licence in 2015. You have been working full-time since you arrived, working at a fruit company as a forklift truck driver and doing other tasks. I accept that you are an active member of the Afghani community being a member of the football team and doing voluntary work as a translator. You have a number of medical conditions for which you are taking medication. I was told and accept that you suffer from depression and stress, that results from your time in Iran. I accept that you regard your life in Australia as though you were living the dream. I have received a number of letters that were written on your behalf, your brother [MT] says that you were never the type of person to do anything that caused your parents any significant disappointment. He says you have led a positive lifestyle and you were generous towards other people from your country.
Mr [B] is a close friend of your father's, he says he regards you as a role model child as you were always helping your family out, dropping your parents off and taking them shopping. He said that he has come to the conclusion that you are a role model citizen who wants to be independent, asks and listens to advice and has a smile on your face. He says he has always admired you and wishes everybody was like you, taking into consideration that you are a hardworking, independent and caring person. He goes on to say that the criminal charges do not change his opinion of you as he has always seen you as a good example of a citizen. Even making allowances for the language barrier that may exist in relation to this letter, it is surprising that Mr [B] does not appear to have come to terms with the fact that not only were you found guilty of the offences by the jury, but that you pleaded guilty to the offence before Magistrate McLeod.
I have also received a letter from the operations manager where you work. He says you are a valued member of the workforce who undertakes an important role. He regards you as a diligent, reliable, respectful and hardworking employee. He considers you have a number of skills. He obviously values you as an employee. I will take his views into account in sentencing you.
Mr [H] has also written a reference for you. He has known you since you went into his travel agency shop and booked tickets for your family to travel to Iran in December 2012. Since then you have helped him in relation to a number of Persian customers and he obviously values your assistance. Whilst you have been on home detention he visits you at your home and is sad that you cannot participate in activities outside the home because of the restrictions. He expresses his disappointment that you have been found guilty of the charges as they have had a damaging impact upon your positive personality, attitude and future. As I said earlier even making allowances for any language issues, there appears to be no recognition by Mr [H] of your offending even the offending to which you have admitted.
The submission was made to me by Mr [J], that your parents would suffer greatly if you were not there to assist them or if you were imprisoned with the result that you may be liable to deportation. It was suggested that in those circumstances I should consider a sentence that is less than 12 months and suspended, as it may not trigger the provisions of the Migration Act. Although it was conceded that your offending is serious, it was suggested that I fashion a sentence that may accommodate this. In the circumstances I do not consider that these are appropriate considerations to take into account. It is my duty to sentence you on the basis of the objective seriousness of the offending, taking into account the purpose of sentence and where I can, tempering it with mercy.
I accept that your parents have suffered greatly. I accept that as the STTARS letters suggest they have been deeply affected by their time in Afghanistan and Iran, and they both have chronic PTSD with depression. I accept that these conditions may be made worse by their concern and worry about you and what may become of you if you are sentenced to a term of imprisonment.
I have had regard to a lengthy report from the psychologist Mr McInerney in relation to you. You were referred to the Migrant Health Service for psychological assessment in March 2012, but did not engage in therapy at that time. You re-presented in September 2014 after the commission of these offences. By that stage you had been held in custody for some time. You told Mr McInerney that you felt unsafe, threatened and intimidated whilst on remand. The clinical assessment of you suggested that you suffered from a major depressive condition and had high levels of emotional stress and anxiety in September 2014. In 2016 you were again assessed and found to be severely depressed and highly anxious. The predominant cause of this was said to be the guilty verdicts in this court, and the possibility of a custodial sentence that could in turn lead to deportation. In addition to this, you were concerned about your
parents. Mr McInerney outlines the issues in relation to both of your parents. As I said, I accept that both have significant issues.
Mr McInerney also suggests that people from a Middle Eastern background suffer significant racial vilification in gaol. It's not really plain to me exactly what he bases this assertion on, other than as he says his clinical experience. I have no doubt that the spectre of deportation is a source of great anxiety. This anxiety must extend beyond you to those who care about you.
Your offending is very serious. The sentence that I impose must have a significant degree of deterrence associated with it. It cannot be overlooked that you committed the offences for which you were found guilty by the jury, after you committed the offence of assault and were subject to an intervention order. To date you have shown no remorse and there is no acknowledgement of your offending. Whilst I accept that you have not reoffended whilst you have been on home detention, it cannot be said that rehabilitation has occurred, nor can it be
said that you have any recognition of the domestic violence issues that have arisen in relation to you and your ex-partner. In recent times the serious issue of domestic violence and how to address it has been publicly debated. It is well known to all of us that the issues in relation to domestic violence have wide ranging ramifications. The law is very clear, that in relation to such issues, deterrence plays an important role. This deterrence is not just directed towards
you as personal deterrence but to the wider community who are minded to commit offences such as this.
The law has always been concerned to protect the vulnerable. This is especially so when events occur behind closed doors such as occurred in this case. Your attitude towards your ex-partner was controlling and violent. You were in effect attempting to silence her from proceeding with what was a proper complaint that she had made to the police, on an earlier occasion in relation to your violence. You should have been well aware at that stage that the system would not tolerate behaviour such as an assault against your ex-partner.
You entered the home in which she had sought refuge with a knife and a piece of rope. You attempted to choke her with the rope and threatened her and her sister with the knife. You have shown no remorse in relation to your behaviour. You have shown no insight in relation to your behaviour towards your wife.
Each of the reports that I have received in relation to you and your family speak only of the consequences upon you of your behaviour. Nowhere has there been a moments contrition from you or a recognition it seems by your family of the seriousness of your conduct and the fact that this conduct will not be tolerated in our community.
Can you stand please?
In sentencing you today, I take into account that you are still a young man, you have a consistent work history, a medical condition, and a degree of uncertainty about your future. In addition to this your parents depend upon you to some extent. They are not well and are deeply anxious about your fate, not just in this court but beyond that. I also take into account the need for the sentence to reflect the serious nature of your offending, the need to give proper effect to deterrence in order that the public may be protected from behaviours such as this, and the need for this sentence to deter others who think they can commit offences such as this.
I am going to proceed pursuant to s.18A of the Criminal Law (Sentencing) Act, in respect of your offending against RB, on counts 1, 2 and 3. For these counts I impose a term of imprisonment of five years. In respect of your offending in relation to RZ, I impose a term of imprisonment of 18 months. There will be some partial concurrency in relation to these sentence that reflects the fact that they all occurred within one course of conduct, but they were quite separate in their commission.
One year of the sentence will be concurrent. That leaves a head sentence of five and a half years. In relation to the non-parole period, I consider that your relative youth, your previous good history, the consequences of your mental health issues and those of your family, and your conduct whilst have you been on home detention, warrant a lower than usual non-parole period. In the circumstances I consider a non-parole period of two and a half years is appropriate.
From both the head sentence and the non-parole period, I deduct the time that you have spent in custody, and an allowance for your time on home detention. I reduce both sentences by six months. The resultant sentence is a term of imprisonment of five years with a non-parole period of two years.
I have given consideration as to whether this sentence can be suspended. I recognise that you are still a young man. I take into account that you have mental health issues as do your parents and there is obvious concern in relation to your deportation.
However as no submissions have been made to me that you would be deported from this country, I cannot proceed on that basis, as there is much uncertainty as to what would happen to a person such as you who may or may not be returned to a country that is still in conflict.
Against these issues I must balance the fact that you are not a first offender and you cannot expect the leniency of this court in relation to this offending. You have not shown any remorse or contrition for your offending and the offences are of a very serious nature. In the circumstances I cannot find good reason to suspend the term of imprisonment I have imposed.
Home detention pursuant to s.33BB of the Criminal Law (Sentencing) Act, is an option in this case. You are a person who is a suitable candidate given your history. However in the circumstances I consider that the element of deterrence in relation to your offending must play a significant role. To date there has been no recognition of your offending that gives me confidence that you have or will embark upon a course of rehabilitation.
As I said earlier, these offences are serious offences of their type. They show a persistence in relation to your attitude towards your ex-wife such that you would breach an existing intervention order, in order to commit the offences and to breach the bail that you were on.
In the circumstances I do not consider that home detention is appropriate.
The sentence that I have imposed will be served and commences today.
HER HONOUR: Mr [W], anything further.
MR [W]: No thank you.
MR [J]: No thank you.[19]
[19] Ibid, G4, Attachment B, pp 39-45.

The Applicant appealed against his conviction and sentence.
DCS records dated 8 May 2017 state:
“08/05/2017 YLP:B:TW:526 [MW]/P-YLP Education
[The Applicant] was assessed for numeracy, literacy and employment readiness skills(NLERDT), and determined priority 1.[The Applicant] speaks and understands English sufficiently well to complete personal details, communicate everyday needs, and maintain simple conversation, but attempts to communicate the purpose of the assessment and complete the interview process were laboured and met with limited success.
Repetition and continual rephrasing in simple terms produced some results, but E.S.L consideration would be required for [the Applicant] to effectively participate in a criminogenic programme, with a mentor approach to learning preferred, frequent questioning to determine the level of understanding and identify gaps in the learning and oral assessment recommended.”[20]
[20] Ibid, G4, Attachment E, p 82.
DCS records dated 31 May 2017 state:
“31/05/2017 YLP:B:TW:526 [KP]/P-YLP Education
Education Assessment completed 29-5-17. [The Applicant] has limited spoken English skills and cannot read or write in English. He has a poor understanding of very basic maths concepts. He had little schooling and completed up to yr. 5. He does not have an employment readiness need. He does not have the skills to undertake a Criminogenic program.”[21]
[21] Ibid.
DCS records dated 28 June 2017 state:
“Assault No-Serious (Physical Injury) Prisoner on prisoner assault”[22]
[22] Ibid, G4, Attachment E, p 84.
On 2 August 2017, the South Australian Court of Criminal Appeal dismissed his conviction appeal.[23] I note that Vanstone J, who wrote a decision with which Parker and Lovell JJ agreed, said “The guilty verdict indicated an acceptance of V’s evidence that a rope was put around her neck and that amounted to an offence of aggravated threatening life.”[24]
[23] Ibid, G4, Attachment C, pp 46-62.
[24] Ibid, G4, Attachment C, p 56 at [48].
On 29 August 2017, the Applicant was before the Elizabeth Magistrate’s Court charged with” Intervention programs-contravene term of intervention order”. The Applicant was convicted of further offences arising from the events of 27 January 2014, and discharged without penalty.[25]
[25] Ibid, G4, Attachment A, p 38.
On 8 September 2017, the South Australian Court of Criminal Appeal dismissed his sentence appeal.[26]
[26] Ibid, G4, Attachment D, pp 63-79.
A DCS report dated 17 November 2017 states:
“This treatment summary was completed with reference to information available on the Justice Information System (JIS), ORNI-R, Police Apprehension (AP) reports and a face to face interview with [the Applicant].
[The Applicant] was sentenced on 18/04/2017 for the offences, Serious Criminal Trespass-Residence Unoccupied-Aggravated, Threaten To Cause Harm to Another x2 (Aggravated Offence) and Threaten To Kill Or Endanger Life – Aggravated Offence. [The Applicant] received a head sentence of 5 years with a non-parole period of 2 years due to end on 17/04/2019. His full sentence was due to expire on 17/04/2022.
[The Applicant] had no prior history of non-domestic violence offending in record and no prior history of domestic violence offending other than his index offence. It is reported that [the Applicant’s] offending was against [redacted] (his former wife). [Redacted] report details that [redacted]. It is reported that on separate occasion [the Applicant] breached his Interim Police Intervention Order by making and threatening [redacted].
……
[The Applicant] is the subject of a current Intervention Order and the protected person being [redacted].
[The Applicant] was referred to the DFVIP and a subsequent ODARA risk assessment was conducted where he scored [redacted] making him eligible for assessment interview. ODARA norms indicate that 94% per cent of men with a police report of domestic violence obtain lower scored than [the Applicant]. Additionally, 74% of men who score [redacted] commit a new physical assault against a female domestic partner/former partner with an average of five years (this statistic should be considered in the context of the high number of unreported incidences and other forms of non-physical violence).
[The Applicant] was assessed for the DFVIP on 17/11/2017 at Port Augusta Prison, where he presented as a 27 year old man of Afghan heritage. He was a talkative person who’s English is not very fluent but understandable, his ability to speak English appeared well; however he seemed to have difficulty comprehending and needed further explanation throughout the assessment. He was polite and engaged in the assessment well, although he tended to evade some discussions, choosing to explain his version of the events related to the index offence. [The Applicant] was motivated to engage in the DFVIP and stated that he is looking to better his general knowledge and education, and was happy to have the opportunity to participate in the program. He stated this will also help improve his literacy. [The Applicant] stated that he is not considering perusing a relationship with Ms [I] and when he is released he will be focusing on his education and employment.
During the assessment, [the Applicant] described his marriage to [redacted] as being good for the first 8 months. [The Applicant] stated after the 8 months [redacted] family became involved in their marriage and that they were not happy to [redacted] being married to him. He stated that he “never hit her” and that he loved her. He stated that she is “lying” about what happened (the offending). [The Applicant] denied having attended [redacted] and remarked “I have no knife, rope; she is lying”. [The Applicant] stated that [redacted] he stated that when she told him about [redacted] he became very upset with her, however, when questioned about his behaviour he stated that he was calm and did not behave in a violent manner. He stated that he called [redacted] brother and informed him of the [redacted] and when her brother arrived to their house her brother became very angry with her. [The Applicant] denied that he caused [redacted] harm and fear, he stated that he is the victim on this matter and that “she is ok working and still with her family”. [The Applicant] became upset and stated that he made a mistake when he went to [redacted] and that he is “sorry for being in jail” and that he only pleaded guilty to the offence due to his lawyers’ advice. [The Applicant’s] marriage to [redacted] ended in 2014.
Based on his presentation at the assessment, [the Applicant] appeared to accept minimal responsibility for his domestic violence behaviour, he tended to deny the incidents and his role as the primary person responsible for his behaviour. He attempted to justify his behaviour by shifting blame onto the victim for his choices, he stated that he did not understand the Australian law and due to him not being able to speak English, and [redacted], being his translator, he was manipulated by [redacted[ as a result.
[The Applicant] presented as considering pursuing becoming a safe non-violent partner in the future.
[The Applicant] expressed a consideration of the need to develop alternatives to his past use of violent behaviour.
[The Applicant] verbalised a lack of understanding of the impact that his violent and abusive behaviour had on his former wife.
[The Applicant] was assessed on 17/11/17 and on the basis of an ODARA and an assessment interview [the Applicant] was estimated to be a high risk of domestic violence re-offending and therefore was found suitable for participation in the Domestic and Family Violence Intervention Program. It is recommended that he:
·Engage in the Domestic and Family Violence Intervention Program
Specialist Assessment Report Summary
On assessment, [the Applicant] was found to be at high risk of domestic violence re-offending. [The Applicant] was therefore suitable for participation in the DFVIP. To enhance [the Applicant’s] ability to engage in safe and respectful relationships and maintain a pro-social offence free lifestyle upon his release, it was suggested that the above recommendations be considered.”[27]
[27] Exhibit 6, RTB2, pp 593-596.
DCS records dated 24 December 2017 state:
“Property Damage (Including Motor Vehicle Accidents) Prisoner [the Applicant], cause property damage to Cell 14. Greenbush Unit 1”.[28]
[28]Exhibit 4, Attachment E, p 84; Also noting Exhibit 6, RTB2, pp 780 and 783.
Between 9 January 2017 and 20 March 2018, the Applicant participated in the Domestic and Family Violence Intervention Program (“DFVIP”), facilitated by Port Augusta prison.
On 4 April 2018, a post treatment summary report was prepared Mr Iaman Hafiz and Mr Greg Fuller from DCS’s Rehabilitation Programs Branch. The report relevantly states:
“……
Responsibility Taking
At his pre-treatment assessment [the Applicant] demonstrated willingness to discuss his understanding in relation to Responsibility Taking an accepted minimal responsibility for his domestically violent and abusive behaviour. At post treatment [the Applicant] was deemed to have continued to accept responsibility for his past use of violence and abuse. He stated that doing the programme helped him gain a better understanding of what is considered domestically violent behaviour and admitted that he perpetrated such behaviours against his former wife including pushing her, hitting her and having breached the intervention order during their marriage. He stated that “my eyes have opened” that domestic violence had significant impact on his life and that “it is not going to fix problems in future”. [The Applicant] offered strategies such, remain calm, focus on the problem and talk about it and to explore alternative solutions to address issues in the future.
……
Dangerous Thinking
At his pre-treatment assessment [the Applicant] demonstrated limited understanding In relation to dangerous thinking. At post treatment however, he was deemed to have shifted his position on this topic. He demonstrated better understanding an verbalised strategies for future situations, including “don't make assumption, cheque with my partner and talk about the issue”, he also stated “don't believe what people say and not to react with judgement”. [The Applicant] demonstrated better understanding of this topic than he did at pre-treatment assessment. However he continues to demonstrate limitations in this area partly due to his lack of English proficiency which has limited his ability to fully understand and engage with the programme content.
……
Attitude Towards Former Wife
At his pre-treatment assessment [the Applicant] Demonstrated unhelpful attitudes towards his former wife, he tended to shift blame onto her and stated that she was the main person responsible for the issues they had experienced in their marriage. However at post treatment assessment his attitude was deemed to have shifted which may be attributed to his increased awareness of domestically violent behaviours. It may be worth noting that he stated having done the programme, he feels better informed and equipped to deal with situations better in future relationships. [The Applicant] Is currently divorced from his former wife and stated that he has no intentions of reconciling that relationship or to seek a new relationship when released; but rather focus on improving his literacy and self development.
It is important to acknowledge the limitations of the programme due to its short duration, in being able to provide sufficient time for participants to work through content in depth. Changing long standing behaviour can be challenging and so in order to achieve this [the Applicant] will need to be dedicated to actively managing himself and prioritising his future partner’s safety.”[29]
[29] Exhibit 6, RTB2, pp 587-590.
On 17 May 2018, the Applicant’s visa (Subclass 155 Resident Return) was mandatorily cancelled under section 501(3A) of the Act.[30]
[30] Exhibit 4, G4, Attachment F, p 88.
On 13 June and 25 July 2018, the Applicant made representations seeking revocation of the visa cancellation.[31]
[31] Ibid, G4, Attachment F, pp 88-89.
DCS records dated 8 July 2018 state:
“Prohibited Item – Other [The Applicant] – False Urine Sample, Prohibited Items”[32]
[32] Ibid, Attachment E, p 84; Also noting Exhibit 6, RTB2, pp 804-805.
On 20 August 2018, the delegate decided not to revoke the mandatory cancellation under section 501CA(4) of the Act.[33] The Applicant sought review of that decision by this Tribunal.
[33] Ibid, Attachment F, pp 88-90.
In 2018, the Applicant completed a domestic violence course in prison. He also did a TAFE English course.[34]
[34] Ibid, G4, Attachment H2, pp 156.
On 15 March 2019 psychologist Dr Jack White prepared a report on the Applicant at the request of his previous solicitors. This includes the following observations:
“……
He and his family were Afghan refugeed, residing unlawfully in Iran prior to his migration.
……
2.1 Family Background
[The Applicant] stated that he was born in Iran on 3rd April 1990 and at the time of the assessment was aged 28 years. He said he was Hazara and a Shia Muslim. He said in 1997 the Taliban tortured his father and the family fled illegally to Afghanistan to escape. They subsequently travelled to Australia as refugees in 2011 (when he was aged 21 years). Living in Afghanistan they had no papers and were regarded as "homeless people". They could not return to Iran because they would be killed.
[The Applicant] said that his parents were both alive and were now living in Adelaide. He said his mother was aged in her fifties and was a wonderful person. He said that she had some ongoing health problems related to her heart and also diabetes. He said she was not working. He said his relationship with her was "very close" and he last saw her the previous weekend during a visit. He said he last spoke with his mother a few days earlier by telephone.
He said his mother had a heart operation in 2013.
[The Applicant] said his father was now aged in his sixties and was a "good and gentle man". He said his father was retired having worked on a farm and was multiskilled. He said his father now had some significant mental health problems (depression, stress and anxiety) and [the Applicant] indicated he had been his father's carer. He said his father was also forgetting things more constantly. He said their relationship was close and that he last had contact with him the previous weekend. [The Applicant] said that much of his memory in childhood was limited and is happiest memories were being with his family. He said his saddest memory was being homeless in Afghanistan. [The Applicant] said that he had five siblings that included:
·31 year-old brother, "[M]" who was living in Adelaide. He said he was married with no children and he had a good relationship with him, and last saw him one month previous.
·37 year old sister ,"[Z1]" who lived in Adelaide and was single (widowed) with two children. [The Applicant] said he had a good relationship with her and last saw her one week previous.
·34 year old sister "[Z2]" who lived in Adelaide and was married with two children. [The Applicant] said his relationship with her was "good" and he last spoke with her by telephone one week previous, and last saw her four months previous.
·39-year-old sister "[K]" who lived in Adelaide and was married with one child. [The Applicant] said his relationship with her was "good" and that he last saw her two months previous, and spoke with her by telephone one month previous.
·25-year-old sister "[F]" who lived in Adelaide and was single with no children. [The Applicant] said his relationship with her was "good" and that he last spoke with her the previous weekend.
[The Applicant] said that he was currently single, and had previously been involved in one significant relationship with partner "[RI]" (2013 - 2014). [The Applicant] said that initially the relationship was "good, but then it changed". He said fundamentally there was conflict between himself and her family. [The Applicant] described his former partner as "not normal". He said the relationship ended because "/ come to jail", and that it did not have a good effect on him.[35]
[35] This is at best misleading, if not a fabrication.
[The Applicant] said he had now been in custody since 2014, and prior to that was living in Adelaide in a three-bedroom rented house with his parents, sister and himself. He said he had lived there for 5 years and was happy there.
2.2 Education History
[The Applicant] stated that he had completed 5 years of schooling in Iran. He said that his education was very basic; because of not having "legal papers" it meant there was no funding for his education. [The Applicant] said that on arriving in Australia he attended TAFE SA where he completed a 5 month 'English Language' program (2011 - 2012). [The Applicant] said that in 2018 and 2019 he engaged in further 'English language' studies at the Port Augusta prison.
It is noted from his prison file details in relation to "education" that
"[The Applicant] speaks and understands English sufficiently well to complete personal details communicate every day needs, and maintain simple conversation, but attempts to communicate the purpose of the assessment and complete the interview process were laboured and met with limited success. Repetition and continual rephrasing in simple terms produced some results, but English as a second language consideration would be required for [the Applicant] to effectively participate in a criminal program, with a mental or approach to learning preferred, frequent questioning to determine the level of understanding and identify gaps in the learning and oral assessment recommended." (TW YLP-B, dated 8-5-17)
2.3 Vocational History
[The Applicant] said that he had worked in Australia as a forklift driver and truck driver for "Premium Fresh Food". He said he was employed full-time casual, and last worked in 2017.
2.4 Health History
[The Applicant] indicated that his physical health was "ok". [The Applicant] stated he had injured his left shoulder exercising and was prescribed medication for the associated pain. He said that he had not had any major accidents, illnesses or head injuries, and his general practitioner was Dr Jaber, through the Norton Health Clinic. He said he had been diagnosed with "high cholesterol" and "high blood pressure", and was prescribed medication for those conditions. [The Applicant] rated his current physical health at 7/10. He said that the best his physical health had been was 9/10, the worst 5/10.
2.5 Mental Health History
2.5.1 Current Mental Health
[The Applicant] indicated that his mental health was "bad". [The Applicant] said his main stress was "worrying about my future and being deported". He stated he had a past history of "depression and anxiety" but has not been treated for that condition. He said he currently felt "depressed" and said his mood was "unstable". He said in relation to "anger" - he tried to avoid situations by exercising. He said in the past he had been physically abused (in jail) and emotionally abused (racial comments) in jail. He said he had never been sexually abused, and had never attempted to hurt himself or take his own life. [The Applicant] rated his current mental health at 6/10. He said that the best his mental health had been was 9/10, the worst 4/10.
2.5.2 Previous Mental Health Treatment
In March 2012 [the Applicant] was referred to psychologist, Damien Mcinerney by Migrant Health Services for an assessment and therapeutic intervention for his "psychological distress". Mr Mcinerney said that [the Applicant] did not engage in therapy at that time, but returned for treatment in September 2014, where he subsequently engaged in 4 treatment sessions. He reported that [the Applicant] had told him he had found his time in prison "extremely distressing and traumatising".
He was again referred to Mr Mcinerney by [the Applicant’s] GP (Dr Jaber) in November 2016 under a MHCP for further therapeutic support. Mr Mcinerney diagnosed [the Applicant] is having "severe depressive condition and high levels of emotional stress and anxiety" in addition to "a post-traumatic stress syndrome". He attributed [the Applicant’s] condition to "his time in prison".
Formal assessment by Mr Mcinerney indicated that [the Applicant] was within the "extremely severe" range on scales of depression, anxiety and stress. In a further report by counsellor, Melanie McGuigan (27 January 2017) she stated:
"[The Applicant] has suffered trauma in his home country of Iran. Even though he was born in I ran, he was subject to discrimination due to being of Afghan descent His current levels of stress triggers flashbacks of his life in his home country. He and his family lived without basic rights and in constant fear. When anyone in his family left their home, they did not know if they would make it back alive. Due to his experiences, [the Applicant’s] main worry is the we/I-being of his parents." ... "[The Applicant] is suffering from any symptoms of depression and anxiety. He has difficulty sleeping due to intrusive thinking and experiences nightmares regularly. He has very poor memory and trouble concentrating. He also suffers somatic pain, and his mood and energy are low. His symptoms are exacerbated by his recent verdict and living with uncertainty regarding his future and the future of his family."
……
The Kaufman Brief Intelligence Test indicated that [the Applicant] was in the 'Intellectual Disability' (i.e. IQ<70) range of 'intelligence' and around the 1^st percentile of the age equivalent population. His general problem-solving skills were very poor and equivalent to those of an average 7 year old child. His English skills were limited and equivalent to those of an average 9 year old child.
……
Such a personality profile indicated that [the Applicant] was emotionally stable and able to deal with most of life stresses. He perceived he had good control over his emotions. He was a very friendly and warm person who preferred the company of a few rather than many and lacked assertiveness. [The Applicant] was closed about his feelings and conservative with his ideas and values. He had limited trust in other people and was generally compliant and tender minded. He did not see himself as being overly competent nor disciplined.
……
[The Applicant]’s PAI 'clinical' profile indicated he was elevated on measures of: Physiological-Anxiety, Affective-Depression, Thought Disorder and Antisocial Behaviour.
[The Applicant] experienced significant unhappiness, moodiness and tension. Although he was quite distressed and acutely aware of his need for help, his low energy level, passivity, and withdrawal made it difficult for him to engage in treatment. [The Applicant’s] self-esteem was low, and he viewed himself as ineffectual and powerless to change his life direction. Life disruptions had left him uncertain about goals and priorities, and tense and pessimistic about what the future may hold. [The Applicant] had difficulty concentrating and making decisions, and the combination of hopelessness; agitation, confusion and stress apparent in his scores placed him at increased risk for self-harm.
[The Applicant] PAI treatment profile was significantly elevated on 'Non-support'. Such a profile indicated that [the Applicant] was not an angry person indeed his responses suggested he was inclined to being very passive. He did not express suicidal thoughts and experience moderately elevated levels of stress. He perceived he had very limited support from his family and friends.
On the interpersonal scales (i.e. the way that a person relates to others) tThe Applicant] was high on the 'Dominance' scale and average on the 'Warmth' scale. [The Applicant’s] interpersonal style was best characterised as that of a person who was self assured, confident and dominant. Although [the Applicant] was not unfriendly, others may see him as being ambitious and having a leader-like demeanour. While [The Applicant] was generally comfortable in social settings, he was not likely to mix indiscriminately, preferring to interact with others in situations over which he could exercise some measure of control.
3.5 Violence Risk Assessment
Morey (1996) noted that, according to the research literature, estimates of short-term risk of violence for a given individual was often very unreliable. In order to develop a more reliable instrument, Morey identified 20 independent factors that were congruent with the available evidence for the prediction of dangerousness. These measures were operationally define utilising PAI variables, and the 'Violence Potential Index' (VPI) subsequently was developed and validated using samples of violent offender groups convicted for crimes of assault, rape and antisocial behaviour.
The feature of the VPI was that it provided a very subtle measure that was not obvious to the respondee, and was empirically based which allowed for critical thresholds to be determined.
T-scores could then be calculated using both community and clinical norms to determine an individual's level of "risk".
As [the Applicant’s] past history of violence was considered a significant issue, the 'PAI Violence Potential Index' (SPI) scale was applied to assess his level of acute risk.
[The Applicant’s] score (VPl=3 /20) indicated that compared with the 'community' sample he was "moderately high risk" (43< T score <75) and for the 'clinical' norm sample was in the "low risk" (39< T score <57).
4.1 [The Applicant’s] summarised history
[The Applicant’s] background history indicated that he was born in Iran but has no rights of residence in that country, and was regarded as an Afghani national. His parents escaped from Afghanistan due to the war in that country prior to [the Applicant’s] birth, and lived in Iran illegally.
[The Applicant] said that he was "Hazara and a Shia Muslim" and that "Hazaras were persecuted in Afghanistan". [The Applicant’s] father joined the Hazara people to protect his land, but was captured and released, only when he surrendered his land. [The Applicant] said his father would be killed if he returned to Afghanistan, and that same threat would hold for him. [The Applicant] immigrated to Australia with his family in 2011 as a political refugee. He stated that his parents and 5 siblings all resided in Adelaide. [The Applicant] indicated that he had married in 2013, but in 2014 he experienced much conflict in the relationship, which led to a domestic violence scenario where [the Applicant] was subsequently convicted and received a 5 ½ year prison sentence with a non-parole period of 2 ½ years.
[The Applicant] stated that his general education in Iran was very limited, and that he had attempted to participate in the education program within the prison system, but his abilities were very poor and his capacity to engage was minimal.
[The Applicant] indicated that he had a forklift licence and a truck driving licence and had previous worked in mainstream employment. [The Applicant] reported that his general health was reasonable although he suffered from a shoulder injury, had high blood pressure and high cholesterol. He reported that he had previously been treated by psychologist Damien
Mcinerney who indicated that [the Applicant] "suffered a severe depressive disorder and high levels of psychological stress and anxiety." (24 January 2017). STI ARS Counsellor, Melanie McGuigan (27 January 2017) stated that [the Applicant] has suffered trauma in Iran, and that his stress had triggered flashbacks of his life in Iran where he was in constant fear. She said he suffered depression, anxiety, and difficulty sleeping due to intrusive thinking and nightmares. He has very poor memory and trouble concentrating. He also suffers somatic pain, and his mood and energy are low. [The Applicant] said that he had experienced some conflict in the jail from other prisoners and had also been racially abused. He denied any history of substance use, nor any gambling history. He denied any prior offending history.
4.2 [The Applicant’s] psychometric profile
The preliminary neuropsychological screening suggested that there was no evidence of executive planning dysfunction. The intellectual assessment indicated that [the Applicant] was in the 'Intellectual Disability' (i.e. IQ<70) range of 'intelligence' and around the I" percentile of the age equivalent population.
……
4.3 [The Applicant’s] DSM-5 diagnostic status
Based on data provided by [the Applicant’s] background history and the psychological testing, he satisfied a number of DSM-5 (Diagnostic and Statistical Manual of Mental Disorders (5th Edition)) diagnoses that included:
·Intellectual Disability (IQ<70), (refer DSM-5, pp. 33-41)[36]
·Adjustment Disorder with mixed Anxiety & Depressed mood (refer DSM-5, pp. 286-289)
·Antisocial Personality traits (refer DSM-5, pp. 659-663)
[36] The Applicant did not give the impression of having such a very low IQ during his evidence to the Tribunal. Both Counsel for the Applicant and the Respondent made submissions to this effect.
4.4 What is the effectiveness of [the Applicant’s] rehabilitation to date?
The current assessment indicated that [the Applicant’s] intellectual skills were very limited, and this was based around a measure that was not biased by language. His problem-solving capacity was found to be equivalent to that of an average 7 year old child. This combined with his limited language skills would make it likely that [the Applicant] would struggle with formal rehabilitation programmes. It is noteworthy, however, that he did report undergoing a domestic violence program through the Port Augusta prison which he said went for 2 ½ months and involved two daily sessions a week.
It was also noteworthy that [the Applicant] reported he had obtained his truck driving licence in addition to his forklift driving licence. These qualifications in the past have enabled him to find employment when living in the community.
In my opinion, [the Applicant] has probably exceeded my expectation of his capacity to engage in rehabilitation. Were he to continue in future rehabilitation programs, it is recommended they be at a very basic level and not assuming literacy skills.
4.5 What rehabilitation is recommended to reduce [the Applicant’s] risk of reoffending?
The current assessment indicated that [the Applicant] was experiencing problems in the areas of: Mental Health and Violence Prevention.
It is therefore recommended that [the Applicant] be referred to the following programs (assuming they are available):
4.5.1 Mental Health Treatment
The assessment indicated [the Applicant] had psychological problems in areas of Intellectual disability, anxiety, depression, and traumatic stress.
It is therefore recommended that [the Applicant] be referred to an appropriate Mental Health professional (psychologist / psychiatrist) to address these mental health issues. Such referral is likely either through the Department of Community Corrections or [the Applicant’s] General Practitioner.
4.5.2 Domestic Violence Programmes
[The Applicant] has indicated an awareness of domestic violence issues. It is therefore recommended he be referred to a relevant "Domestic Violence Program" that may be available either through the Department of Community Corrections, or the Department of Corrections.
4.6 What is [the Applicant’s] risk of reoffending in the future should he be released into the Australian community?
The current assessment did not suggest that [the Applicant] was by nature a violent person, and that his offending would appear to be very much out of character. [The Applicant] reports considerable remorse for his offending behaviour, and perhaps it is more understandable given his intellectual function which is very low.
In my opinion, his violence directed at his former wife, was that of a person who has seen violence as a way of control, and has adopted that for his own ends. With the support of his family in Australia [the Applicant’s] risk of future offending would likely to be relatively low. Were he to be deported, in my opinion, his capacity to survive would be questionable.
Thank you for referring [the Applicant] for assessment. I trust this report is of assistance. Should you have any matters relating to this report that require further explanation or elaboration, please let me know and I would be happy to discuss them with you.”[37]
[37] Exhibit 4, G4, Attachment I1, pp 167-173.

Primary consideration 5 weighs heavily against granting the visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a)Legal consequence of the decision;
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will 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 - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
The Respondent accepts that the Applicant is owed non-refoulment obligations. There is a protection finding in his favour. This raises a different, but associated or consequential issue, being the possibility of detention for an indeterminate period, if the Applicant’s visa application were not to be granted.
If the Tribunal were to affirm the decision under review, the Tribunal cannot conclude that Applicant would remain in immigration detention with no ‘chronologically fixed endpoint’ (“indefinite detention”).[74] His status could be changed by a range of possible events, for example, by Ministerial action.
[74] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
There is nothing before the Tribunal to suggest that the Applicant would be granted any other class of visa by the Minister.
I note the decision of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[75] it states:
[75] [2022] FCA 878. See also GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4811, JVGD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2830 and ZXXZ Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2910.
“……
The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.
It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.
Proposition (c) above (indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party) is also contestable. In CWY20 the Acting Minister found that removal of the applicant in that case to Afghanistan would breach Australia’s international non-refoulement obligations. There is no equivalent finding in the present case that indefinite detention of the applicant (or, accurately, the prospect, in the sense of likelihood of, indefinite detention of the applicant) would be a breach of Australia’s international obligations. Nor is that manifestly correct.
Article 9.1 of the ICCPR provides that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The UHDR provides that:
Article 3
Everyone has the right to life, liberty and the security of person.
…
Article 5
No one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment.
…
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 16 of the CAT provides that:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.”[76]
[76] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, [42]-[48].
Keeping the Applicant in indefinite detention may be contrary to Australia’s international obligations and hence, national interests. In this regard I note that in BNGP, Jagot J states:
“……
I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.
The Minister submitted that CWY20 is not authority for the proposition that, in forming the state of satisfaction described in s 501A(2)(e), a failure by a decision-maker to have regard to Australia’s international non-refoulement obligations will result in that state of satisfaction not being attained reasonably. I agree. CWY20 is authority for the proposition only that such a decision may be legally unreasonable depending on the circumstances.
The Minister submitted that the observations of Allsop CJ in CWY20 are not to be understood as saying that Australia’s international non-refoulement obligations are a mandatory relevant consideration in every decision under s 501A(2) of the Migration Act. Again, for the reasons already given, I agree.
The Minister submitted that the better view is that CWY20 stands for the narrower proposition that, depending on the circumstances of the case, a failure to take Australia’s international non-refoulement obligations into account in forming the state of satisfaction in s 501A(2)(e) may supply the inference that the decision-maker did not attain that state of satisfaction reasonably. I agree other than that a conclusion of legal unreasonableness is not an inference – it is a legal conclusion. As such, the better view of CWY20 is that, depending on the circumstances, a failure to consider Australia’s international non-refoulement obligations (a non-mandatory consideration) may make a decision legally unreasonable.
The Minister submitted that even if CWY20 remains good law following the High Court’s judgment in Plaintiff M1 (which the Minister disputes), it does not control the outcome of this case. Again, I agree for the reasons already given.
As noted, the conclusions in ENT19 involved a statutory context (the absence of s 197C(3) of the Migration Act) and facts different from the present case. In particular, in ENT19 the Full Court characterised the applicant’s grievance as that he “would be refouled, regardless of his wishes”, and this reflected the relevant statutory provisions in that case (which did not include s 197C(3)): [56]. But, as also discussed, the reasoning of the Full Court in ENT19 also proceeded on a broader basis, that the legal consequences of the Minister’s decision included either refoulement in breach of Australia’s international obligations or indefinite detention, and that in evaluating the national interest, it was legally unreasonable for the Minister not to consider those legal consequences.
This reasoning in ENT19 appears to have assumed that continued detention (as required by ss 189 and 196), if the person could not be removed due to Australia’s international non-refoulement obligations, would be indefinite detention in breach of Australia’s international obligations. The reasoning in ENT19 also appears to have assumed that such continuing detention would be lawful under Australian law, despite the detention (arguably) not being for the purpose of removal or assessment. In this regard I note that in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562, also decided before the insertion of s 197C(3) into the Migration Act, the High Court said at [26]:
The correctness of the constitutional holding in Al‑Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562], that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future, does not arise for consideration in the present case.
This critical question arises (but, insofar as I am aware, remains unanswered, particularly in the context of the operation of s 197C(3) of the Migration Act) because of the principle from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374] per Gageler J that:
deriving from Ch III of the Constitution, …a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.
In support of this proposition, his Honour cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 33; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [138]–[140]; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [25]–[29].
This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.[77]
[77] Ibid [51]-[60].
There is no doubt that prolonged detention would have a very adverse impact on the Applicant. It may be very detrimental to his mental health, in particular. He could be of no direct assistance to his family and friends. His family would be very distressed by his continued detention. He could not support his parents.
Other consideration (a) is neutral, however, the associated prospect of detention for an indeterminate period, weighs very heavily in favour of granting the visa.
(b) Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Non-refoulement obligations are engaged in relation to the Applicant. He will not be removed to Afghanistan.
This consideration is neutral.
(c) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA of the Act decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence on this topic.
This Other Consideration C is neutral.
(d)Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence on this topic.
This Other Consideration (d), paragraph 9.4 of the Direction, is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequence of decision under s501 or s501CA: weighs very heavily in favour of granting the visa.
(b)extent of impediments if removed is neutral.
(c)Impact on victims is neutral.
(d)The impact on Australian business interests is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary Consideration 1 weighs heavily against granting the visa.
Primary Consideration 2 weighs heavily against granting the visa.
Primary Consideration 3 weighs in favour of granting the visa.
Primary Consideration 4 weighs slightly in favour of granting the visa.
Primary consideration 5 weighs heavily against granting the visa.
In this case, Primary Considerations 1, 2 and 5 cumulatively weigh overwhelmingly against granting the visa. This remains so, even when balanced against Primary Considerations 3 and 4. But for Other Consideration (a), the determination of this matter against the Applicant would, on the evidence, be relatively clear.

Other Consideration (a) however, introduces the prospect of indeterminate detention into the equation. The practical consequence of the interplay between a protection finding in the Applicant’s favour, and the application of the Direction 99, creates a terrible dilemma. Although very serious, the Applicant’s offending is confined to a period of a few months during 2013-2014. The Applicant has already served his sentence for his crimes. He has also spent considerable time on home detention, on remand or in immigration detention. The details of this are as follows:
“

198.

Date

Event

Source

11. 2011

The applicant arrived in Australia as the holder of a Special Humanitarian Program (Subclass 202) visa.

Decision of DP Britten Jones and SM Manetta – AAT2019/5310 at G documents p 87.

07.11.2013

The applicant committed an assault on his then partner. The applicant was granted bail. The applicant had no convicted recorded on 1 October 2014 and was placed on a good behaviour bond for 6 months.

Decision of DP Britten Jones and SM Manetta – AAT2019/5310 at G documents p91 [17], [19].

13.11.2013

The applicant was issued with a Police Interim Intervention Order

Decision of DP Britten Jones and SM Manetta – AAT2019/5310 at G documents p91 [19].

27.01.2014

The applicant committed the following offences:

·     serious criminal trespass – residence unoccupied (aggravated offence)

·     2 counts of threaten to cause harm to another (aggravated offence)

·     threaten to kill or endanger life (aggravated offence)

The applicant was also convicted of contravene term of intervention order and fail to comply with bail agreement, committed at the same time as the above offences (discharged without penalty on 29 August 2017).

G documents p38; Sentencing remarks of her Honour Judge Davison at G documents pp39-45.

28.01.2014

The applicant was arrested and taken into custody for 3 months and 10 days

Sentencing remarks of her Honour Judge Davison at G documents p39.

07.05.2014

The applicant was granted home detention bail for 2 years 11 months and 10 days

Sentencing remarks of her Honour Judge Davison at G documents p39.

17.04.2015

The applicant committed the offence of 17 April 2015 while he was on home detention bail for the 2014 offending. He was discharged without penalty on 4 December 2015.

G documents p38; G documents p93 [26]-[27].

18.04.2017

The applicant was sentenced to 5 years imprisonment and was remanded to Yatala Labour Prison. The applicant served 4 years, 10 months, 26 days in custody.

Sentencing remarks of her Honour Judge Davison at G documents pp39-45; Tender Bundle pp556.

16.03.2022

The applicant was released from custody and was detained in immigration detention. He remains in immigration detention to date.

Tender Bundle p495, 883

”[78]
[78] Exhibit 8.

The harm that may result if the Applicant were to reoffend is potentially extremely serious. The evidence suggests that there is at least a moderate risk of the Applicant reoffending with another partner or partners, if released into the community. This weighs heavily against him.
The prospect of indeterminate detention, which weighs very heavily in favour of granting the visa, together with Primary Considerations 3 and 4, is however, insufficient to outweigh Primary Considerations 1, 2 and 5. In my view, the proper application of the Direction favours the Tribunal refusing to grant the Applicant’s Visa.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

...........................[sgnd]...............................
Legal Administrative Assistant

Dated: 11 July 2023

Date of hearing: 26 and 27 June 2023

Advocate for the Applicant:

Dr Patricia Rushton
Beena Rezaee Legal and Migration

Advocate for the Respondent:
Mr David Brown
Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions filed 29 May 2023

2

Respondent

Statement of Facts, Issues and Contentions filed 13 June 2023

3

Applicant

Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions filed 20 June 2023

4

Respondent

G-Documents filed 5 May 2023

5

Applicant

5.1 Statement of Applicant (15.05.2022)

5.2 Statement of Applicant’s sister (25.05.2023)

5.3 Statement of Psychologist, Mehdi Abiyat, (22.05.2023)

6

Respondent

Tender Bundle filed 13 June 2023

7

Respondent

Supplementary Tender Bundle filed 20 June 2023

8

Respondent

Chronology of Events filed 27 June 2023

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Elizabeth Magistrates Court

01/10/2014

Commit assault – basic offence

Without conviction Good behaviour bond $500 6 months

Elizabeth Magistrates Court

04/12/2015

Fail to comply with bail agreement

Convicted Discharged without penalty

District Court of South Australia

18/04/2017

1. Serious criminal trespass – resident unoccupied - aggravated

Threaten to cause harm to another (aggravated offence)
Threaten to kill or endanger life – aggravated offence

2. Threaten to cause harm to another (aggravated offence)

1. Sentenced to 5 years imprisonment

2. Sentenced to 18 months imprisonment concurrent

Head Sentence 5 years imprisonment

Non parole period 2 years

Elizabeth Magistrates Court

29/08/2017

Intervention programs – contravene term of intervention order

Fail to comply with bail agreement

Convicted Discharged without penalty

Date of hearing:	26 and 27 June 2023
Advocate for the Applicant:	Dr Patricia Rushton Beena Rezaee Legal and Migration
Advocate for the Respondent:	Mr David Brown Australian Government Solicitor

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions filed 29 May 2023
2	Respondent	Statement of Facts, Issues and Contentions filed 13 June 2023
3	Applicant	Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions filed 20 June 2023
4	Respondent	G-Documents filed 5 May 2023
5	Applicant	5.1 Statement of Applicant (15.05.2022) 5.2 Statement of Applicant’s sister (25.05.2023) 5.3 Statement of Psychologist, Mehdi Abiyat, (22.05.2023)
6	Respondent	Tender Bundle filed 13 June 2023
7	Respondent	Supplementary Tender Bundle filed 20 June 2023
8	Respondent	Chronology of Events filed 27 June 2023

Court	Court Date	Offence	Court Result
Elizabeth Magistrates Court	01/10/2014	Commit assault – basic offence	Without conviction Good behaviour bond $500 6 months
Elizabeth Magistrates Court	04/12/2015	Fail to comply with bail agreement	Convicted Discharged without penalty
District Court of South Australia	18/04/2017	1. Serious criminal trespass – resident unoccupied - aggravated Threaten to cause harm to another (aggravated offence) Threaten to kill or endanger life – aggravated offence 2. Threaten to cause harm to another (aggravated offence)	1. Sentenced to 5 years imprisonment 2. Sentenced to 18 months imprisonment concurrent Head Sentence 5 years imprisonment Non parole period 2 years
Elizabeth Magistrates Court	29/08/2017	Intervention programs – contravene term of intervention order Fail to comply with bail agreement	Convicted Discharged without penalty