QHVB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 5247
•13 October 2022
QHVB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 5247 (13 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6076
Re:QHVB
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date: 13 October 2022
Place:Sydney
The reviewable decision is set aside and in substitution it is decided that there is another reason why the decision to cancel the applicant’s via should be revoked pursuant to s 501(4)(b)(ii) of the Act.
................................[SGD]........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under s 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – reviewable decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW) s.32.
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123] per Kenny and Mortimer JJ.
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]
Ali v Minister for Home Affairs [2020] FCAFC 109 at [91].
SGTX and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2536
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
SECONDARY MATERIALS
Migration Regulations 1994 (Cth) Sch 2, reg 201.211(1)(a).
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Convention on Civil and Political Rights
Convention on the Rights of Persons with Disabilities
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
Introduction
The Applicant was born in Afghanistan. He is currently 33 years of age. He first arrived in Australia with his wife in January 2014 as the holder of a subclass 201 In-country Special Humanitarian visa. He has not departed Australia since his arrival.
On 5 July 2021, the Applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of the Act).
On 9 August 2021, the Applicant made representations under s 501CA(3)(b) of the Act as to why the original cancellation decision should be revoked.
On 21 July 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.
On 26 July 2022, the Applicant applied to the Tribunal for review of the non-revocation decision.
Issues
That the applicant does not pass the character test for the purpose of s 501CA(4)(b)(i) of the Act is not in dispute. He has a substantial criminal record because he has been sentenced a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c)) of the Act).
The issue to be decided is whether there is another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act having regard to the relevant policy made pursuant to s 499 of the Act, Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
Direction 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task, relevantly, in exercising powers under s 501CA of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
I only address the relevant considerations.
The Applicant’s criminal offending
The Applicant pleaded guilty to the following offences which were the reason for the visa cancellation:
·Stalk/intimidate intend fear physical etc. harm (domestic)
·Intentionally choke etc person with recklessness (DV)
·Contravene prohibition/restriction in AVO (Domestic);
Those offences were committed on 17 June 2019. The AVO had been issued the previous day. The Applicant was arrested on 17 June 2019 and remained in custody until the sentencing hearing on 23 June 2021 when he was sentenced to imprisonment for four and a half years ending on 16 December 2023 with a non-parole period of two and a half years ending on 16 December 2021. He was released on parole on 16 December 2021 and taken into immigration detention where he remains.
The Applicant’s National Police Clearance Certificate also lists convictions for ‘Drive motor vehicle whilst licence suspended – 1st off’ (25 January 2015) for which he was fined $300 and disqualified from driving for 12 months, and ‘Trespass’ (10 August 2016) for which he was fined $300.
In his remarks on 23 June 2021 about the 2019 offences, the sentencing judge said:
The offender has a very limited criminal history to the extent that, in my view, he is entitled to be considered as a person of prior good character up until the commission of these offences. In that respect, he is entitled to a degree of leniency and this also stands him in good stead in relation to positive assessments that can be made in relation to his prospects of rehabilitation and not reoffending, particularly as he is now 31 years of age.
The sentencing judge set out the following facts and findings in his sentencing remarks.
The Applicant and the victim, his wife, had been in a domestic relationship and married for seven years prior to the offence. There were no children of the relationship. On 16 June 2019 an Interim AVO was served on the Applicant which included conditions precluding him from living at the same address as his wife or assaulting or threatening her. On 17 June 2019, his wife was at the home of a female friend whose two young children were present.
At 4 pm, the Applicant attended the home and had shower. He then took his wife into a spare room and closed the door. He confronted her about having an affair with another man which she denied. He became angry and aggressive as she did not admit the allegations, grabbed her by the neck with his right hand and strangled her. As a consequence, she gargled and scratched at his neck and face.
Hearing the gargling, her friend opened the door and saw the Applicant choking his wife. He said to the friend ‘Don’t come near or I’ll stab you with a knife’. Fearful for her safety, the wife’s friend closed the door before calling her husband. The Applicant continued to strangle his wife until she lost consciousness and her body went limp. He stopped strangling her and placed a blanket over her face. He took her mobile phone and logged on to her Facebook profile and recorded one Facebook live video in which he said in Dari ‘Greetings to dear friends, we said out late afternoon prayers with our original love’ and explained that he was strangling his wife because he was very upset by the belief that she had committed adultery. He left the premises.
The wife’s friend went into the room to check the wife, saw the blanket over her face which she removed and saw that the wife was unconscious and unresponsive. She was terrified and scared for her children who were screaming and crying. She rang triple-0. After five minutes, the wife regained consciousness and the friend called triple-0. An ambulance arrived and conveyed the wife to hospital. Police arrived at the apartment where they located the Applicant who was placed under arrest and taken to a nearby police station where he was interviewed.
During the recorded police interview, the Applicant said that he was happily married until he suspected that his wife was having an affair. He admitted placing his hand on her neck and strangling her for about two to three minutes, up to five minutes, that he had held her by the neck for a couple of minutes, she was fighting back until she stopped breathing and went to sleep. He said she was still alive when he finished choking her as her muscles were shaking and her stomach was going up and down. He had strong religious beliefs and when he and the victim married in Afghanistan, they made a promise to Allah that they would be faithful to each other and if either party committed adultery there would be consequences.
His Honour referred to excerpts from other interviews with police in which the Applicant acknowledged choking her but demonstrated that the police had concerns that he may have been paranoid, which the defence contended was consistent with other evidence, including the June 2021 report from psychiatrist, who will be referred to as Dr F.
In determining the objective seriousness of the offence, the sentencing judge referred to the wife being rendered unconscious and incapable of resistance, that there was no provocation, the motive arising from a belief that she had committed adultery which appeared to have no substance. ‘Even if she had been, there no justification for him behaving in this way.’ She was assaulted by her husband, ‘the person in whom she was entitled to expect protection and trust from’. The circumstances she was confronted with would have been extremely terrifying. She would have genuinely feared for her life.
The Applicant released his hand from his wife’s throat when she lost consciousness. He made no attempt to revive her. The contents of the Facebook video underlined the deliberateness of his behaviour.
The offence fell above he mid-range of objective seriousness.
The offence against the wife’s friend was ‘quite serious’ because she had observed what the Applicant was capable of which would have led her to be ‘somewhat fearful’ in relation to his capacity to carry out the threatened offence of stabbing her. He found that that offence fell within the mid-range of objective seriousness.
Aggravating factors were that the offences against the wife and her friend occurred in a home where they were entitled to feel safe, and ‘to a limited extent’, that children were exposed to the consequences of what occurred and were frightened.
There was no evidence about the foundation for the AVO but the Applicant had clearly ignored it and acted in ‘utter disregard for the court order and a breach of that conditional liberty’ which led to the intentional violence of the strangling offence.
There were a number of mitigating factors.
The Applicant had a ‘very limited criminal history’ so that he was entitled to be considered a person of good character prior to the commission of the 2019 offences:
In that respect, he is entitled to a degree of leniency and this also stands him in good stead in relation to positive assessments that can be made in relation to his prospects of rehabilitation and not reoffending, particularly as he is now 31 years of age.
The Applicant’s plea of guilty resulted in a 10 per cent reduction in the sentence. Inherent in the plea was a degree of remorse but it was surprising that a plea of guilty had not been entered at the earlier stage in the Local Court, given the police interview and the Applicant’s Letter of Apology where he expressed deep remorse and understanding and empathy for his wife. The Sentencing Assessment Report said that the Applicant accepted responsibility for his actions, had reflected on ‘the adverse influence of his’ circle of friends who had told him his wife had been cheating on him and intended to stay away from anti-social peers’. He felt ashamed and disappointed, ‘stating that he has lost his wife and his future with her’. The Applicant had attended a number of domestic violence programs while in custody. He was remorseful and accepted responsibility for his offending behaviour.
Dr F summarised the Applicant’s life in Afghanistan and Australia. The Applicant described Afghanistan as an unsafe country, even before he joined the Australian Defence Force (the ADF) as an interpreter. He had witnessed numerous violent incidents when growing up and as an adult. He saw a number of people killed. He reported seeing images of deceased people two or three times a week. He suffers insomnia, has dreams and nightmares of picking up body parts when he was working for the ADF consistent with re-experiencing the phenomenon. He has had intrusive thoughts and memories of previous traumatic experiences in Afghanistan. He had been seeing a psychologist while in custody for two years and been diagnosed with Post Traumatic Stress Disorder. He said he did not really understand what it was. He was aware he was depressed and stressed and lost his appetite. He described hearing voices and talking to himself and becoming fearful of leaving his cell at one point. He still hears voices. Since being in custody he had been prescribed the anti-depressant Lexapro and is currently seeing a psychiatrist in Justice Health. He was married to his wife for seven years.
There was conflicting evidence before the sentence judge about when the Applicant had started taking drugs leading up to the commission of the offences. The sentencing judge concluded that it appeared that the Applicant was experiencing ‘some form of psychotic episode at the time and was still affected by it when police spoke to him when they became concerned’ that he was demonstrating symptoms of paranoia.
The trigger for him assaulting his wife, irrespective of the drugs that he had taken and its impact upon him, was the fact that he believed she had been unfaithful to him.
…
To some extent I am satisfied the psychotic symptoms he was experiencing at the time did impact upon him committing the offence. However, he was clearly aware it was wrong and the extent he had offended against his wife by being able to nominate to the police at the time that he had strangled her. I take it into account it to some extent mitigates against the seriousness of his offending behaviour but only in a limited way.
The sentencing judge was also asked to take PTSD into account.
Taking into account … PTSD and drug-induced psychosis, I accept to some limited extent it has an impact upon his moral culpability in the commission of the offence but not to the extent that it diminishes the need for some degree of general deterrence to be demonstrated in the sentence imposed. An acceptance it has some impact upon his moral culpability in the commission of the offence requires a further reduction in the objective seriousness.
The sentencing judge was satisfied that the Applicant had good prospects of rehabilitation and was unlikely to reoffend. In coming to those conclusions, he took into account the Applicant’s previous good character, including his work in Afghanistan with the ADF as an interpreter which would have placed him in a considerable degree of harm. He had letters of commendation from senior members of the Australian Army from that time and various certificates. His wife has returned to Afghanistan ‘and he has lost that relationship, which he has acknowledged in his letter to me’. He was 31, a relatively young man and had support in the Afghani community to provide him with accommodation and employment. He had previously been employed as a painter and should be able to obtain employment on release into the community. He had been diagnosed and prescribed medication for PTSD while in custody and was receiving psychiatric assistance. ‘Hopefully’ that treatment regime could be maintained in the community to manage his mental health issues.
There was no evidence that the Applicant had committed any breaches of Corrective Service regulations while in custody and had been employed for the entire time which demonstrated that he was regarded as a trusted prisoner.
He had voluntarily undertaken a number of domestic violence programs which demonstrated his willingness to address his behaviour. ‘He appears to have insight and is genuinely remorseful.’
When addressing sentencing principles, the sentencing judge referred to the protection of the community and said that he was not satisfied that the Applicant was a threat. He said that the sentence did need to denounce the Applicant’s behaviour, which ‘is abhorred by the community and I would regard as the more serious category for this type of offending’.
The offence against the wife’s friend was a “Form 1” offence. That means that the Applicant had indicated that he wanted the court to take the offence into account with which he had been charged but not convicted, when dealing with the principal choking offence.[1] The sentencing judge said:
The Form 1 offence is also a serious offence and it should be taken into account by some increment in the penalty imposed for the principal offence to recognise that seriousness.
[1] Crimes (Sentencing Procedure) Act 1999 (NSW) s.32.
In relation to the breach of the AVO, the Applicant was sentenced to a fixed term of six months to commence from 16 June 2019 and expire on 16 December 2019.
In relation to the choking offence and taking into account the Form 1 offence, the Applicant was sentenced to a non-parole period of two years to commence at the expiration of the fixed term and expire on 16 December 2021. An additional term was set of two years to commence on 17 December 2021 and expire on 16 December 2023.
Overall, the head sentence was four years and six months with a non-parole period of two years and six months.
Primary considerations
8.1 Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 of Direction 90 sets out the matters to which regard must be had when considering the nature and seriousness of the non-citizen’s criminal offending.
The strangling offence falls within each of the three types of crimes that are viewed very seriously by the Australian Government and the Australian community specified in paragraph 8.1.1(1)(a) of Direction 90:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children;
(iii)acts of family violence.
I consider that the ‘Stalk/intimidate intend fear physical etc. harm (domestic)’ is a crime of a violent nature against a woman and is viewed very seriously by the Australian Government and the Australian community.
Paragraph 8.1.1(1)(a)(iii) provides that acts of family violence are viewed very seriously ‘regardless of whether there is conviction for an offence and sentence imposed’. The Respondent set out in its Statement of Facts Issues and Contentions under the heading ‘Nature and seriousness of the conduct’ police narratives of what happened on 15 and 16 June 2019 but did not rely on that conduct in relation to this consideration. It did rely on it in relation to the separate consideration family violence committed by the Applicant. The Applicant referred to paragraph 8.1.1(1)(a)(iii) and objected to the use of such narratives. As the Respondent only relied on this conduct in relation to the separate consideration of family violence committed by the Applicant, it is appropriate that I do the same.
Paragraph 8.1.1(1)(c) of Direction 90 requires that the six month sentence imposed in relation to the breach of AVO offence be considered. A term of imprisonment is the last resort in the hierarchy of sentencing and reflects the objective seriousness of the offence.[2] That is particularly the case when it was the first such offence. This was a serious offence.
[2] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The Respondent submitted that there was a trend of increasing seriousness, taking into account the driving and trespass offences.[3] Despite lengthy cross-examination of the Applicant about those earlier offences, I do not consider that there has been a trend of increasing seriousness. The 2019 offences were of a different character to the driving and trespass offences. The Applicant offended in June 2019 because of an intense emotional response to being told that his wife had committed adultery, in the context of a drug induced psychosis and PTSD.
[3] Paragraph 8.1.1(1)(d) of Direction 90.
In relation to the driving while suspended offence, the Applicant acknowledged to the Tribunal that he tried to avoid police by pulling into a driveway when he saw police undertaking random breath-testing. He said that he did not know that his licence had been suspended, despite a few weeks before having been pulled up by police and told that it was suspended. He said that he was told that he would receive a letter and have to go to court and that he pulled into the driveway because he was not displaying his red P-plates. He was not charged with an offence for avoiding police. He used public transport while his licence was suspended.
His trespass offence was in relation to casino chips belonging to someone else.
The driving while suspended and trespass offences fall at the low end of objective seriousness and are minor offences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[4]
[4] Direction 90, Paragraph 8.1.2(1).
In this case, when assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, decision-makers must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct and the likelihood that he will do so.[5]
[5] Direction 90, Paragraph 8.1.2(2).
Driving while suspended demonstrates disregard for Australian law. Trespass in this case was the use of another’s property. The offences were committed in 2015 and 2016. It is unlikely that the Applicant will commit further offences of driving while suspended or trespass. The risk to the Australian community should the Applicant commit further such offences is low.
Any reoffending of a similar nature to the 2019 offending would result in serious physical harm to a woman and a woman fearing being physically harmed.
There was considerable evidence about the likelihood of the Applicant reoffending, that is, going to the risk of that occurring, and the rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[6]
[6] Direction 90, paragraph 8.1.2(2)(b).
The Applicant has spent no time in the community since 17 September 2019, more than three years ago.
The evidence of the Applicant and his wife is relevant to the likelihood of his reoffending, as well as to other considerations. The evidence of each was internally inconsistent and inconsistent with the evidence of the other.
The following summary of police narratives gives context to the Applicant’s offending on 17 June 2019. Contrary to the Applicant’s submission that the narratives should be given no weight, they were made contemporaneously by independent members of a government agency and include records of legally recorded interviews with both the Applicant and his wife who were assisted by a Dari interpreter.
On the evening of 15 June 2019, the Applicant put to his wife the allegation his friends had said that she was having a sexual relationship ‘with a few of his mates’ which she denied. He lashed out, grabbed her, kicked her in the stomach and continued to punch and kick her and wracked her all over her body with a piece of wood that had broken from the bed frame. He choked her throat with both hands until she almost could not breathe before letting go. She had blood in her mouth and some stomach acid in her throat. She felt she was going to die. Due to their cultural background, she felt that he had the right to assault her. They made up and went to bed. The morning of 16 June 2019, shortly after breakfast, the Applicant became angry and again raised the allegation. He continued to assault her as he had the previous evening. He eventually calmed down. His wife suggested getting some fresh air and going to a police station for advice about another matter. When they were at a railway station, the Applicant’s wife ran over to police. She appeared fearful of the Applicant and police separated her and the Applicant. Due to the language barrier, she showed police injuries to her neck and arms. Police could clearly see red marks and bruises. She pointed to the Applicant. The police took the Applicant to a police station and the wife to their home where she collected some personal belongings. Police noted that it appeared from the state of the apartment that there had been a struggle. There were broken items in numerous places. She went to the police station where she gave an electronically recorded interview with the assistance of a Dari interpreter about how she was assaulted. The wife was fearful for her safety and the welfare of the accused. She loves him and did not want anything to happen to him. Photographs were taken of her injuries. There was bruising, swelling and red marks all-over her body and scratch marks on her face and neck. The Applicant also participated in a similar interview with the assistance of the same interpreter. He denied all allegations and claimed that his wife self-harmed. He said that there was no problem at all and that they loved each other. The AVO was issued.
The Applicant’s evidence was in forms, statements to the police, statements provided for the purpose of these proceedings and oral evidence. When asked about telling the police that he and his wife had an agreement that if they committed adultery there would be consequences, the Applicant said that in his culture when he and his wife married, they made a promise to Allah to be faithful to each other. He did not know that the law in Australia was very harsh. He now understands that ‘I have done something wrong’. He explained that in his culture, the police do not intervene in domestic relationships. He had witnessed domestic violence in Afghanistan while growing up. It was a matter for the parties involved to resolve. He denied that he was entitled to beat his wife and said it was better to be separated and divorced because a promise is broken and there is no trust.
The Applicant admitted, denied, and did not remember, punching and kicking his wife in the stomach before the AVO was issued. He said that he was not in a good condition, and she wanted to harm herself. He slapped her. He was trying to stop her from beating herself. He said that the marks on her body on 16 June 2019 were caused by her self-harming. She became upset and angry again the next morning.
He gave various versions of when he took ice. His final evidence was that he took it before any of the incidents that occurred on and after 15 June 2019.
Contrary to his claim that he did not know the law when he committed the offences against his wife and her friend on 17 June 2019, the Applicant had been taken to a police station, interviewed, separated from his wife, and issued with an AVO the day before. He had had no such engagement with police before then. He understood what the AVO required. He said that he slept in a garage that night. As the sentencing judge said, the Applicant offended in ‘utter disregard’ of the court’s order imposing the AVO the previous day.
The AVO was not in evidence. The Applicant said, from memory, it ended in June 2021. The June 2021 Sentencing Assessment stated it was in force to protect his wife and witnesses to the offence. The Pre-release report dated 29 September 2021 referred to the AVO, that his wife had returned to Afghanistan since his incarceration ‘and they will not have future contact’.
The Applicant reported seeing a psychologist when he first went into prison and being diagnosed with PTSD and prescribed medication. He saw the psychologist many times who advised him to keep his mind and body busy, which he did. He was taught breathing exercises when feeling stressed, which he has found beneficial. He has seen in a psychiatrist since he was in detention who changed his medication.
The Applicant missed psychologist’s appointments on three days in May and June 2022. He explained that he missed some psychologist’s appointments in detention because he stayed up until 3 am or 4 am to speak to his wife and family in Afghanistan and then slept until noon or 1 pm. He changed his appointment until 2 pm and attended regularly. He sees different psychologists in detention which is hard because he has to explain everything to them from beginning to end.
He described the efforts he has made on the advice of psychologists to seek assistance from services when he is released from detention. He has had varying success. He is currently trying to access STARTTS for counselling. He had contacted Relationships Australia on 16 September 2022 about counselling to learn more about domestic violence and about having a healthy relationship with his wife. He was going to look for on-line courses about relationships and domestic violence that he can do at night or on weekends. He will go to a doctor and get a mental health plan and continue to get his medication. He and his wife can start relationship counselling when she returns to Australia. Doing that while she is in Afghanistan would be hard because of doing it by video and the time difference. They have no money, so they would have to find a free or low-cost service. When he starts working, he can afford to pay if the treatment is not too expensive.
He said that he had learned a lot from the courses he had done. Alcohol and drugs have dangerous effects, make you angry, aggressive and lose concentration.
Both the Applicant and his wife have expressed their longstanding love for each other and that they married for love, rather than entering into an arranged marriage. They both expressed the intention of living together in Australia if the visa cancellation is revoked and the Applicant returns to the community.
There is a practical barrier to that happening according to his wife. She has left her taskera, the essential identity document in Afghanistan, in Australia, in the Perth home of the Applicant’s friend where she resided before returning to Afghanistan. Her Afghanistan passport has expired. She requires the taskera to renew her passport. She said that the Applicant had to get her taskera and apply at the Embassy in Canberra. He knew what to do. She said that the Taliban would not renew her passport in Afghanistan. The reason seemed to be that she did not have her taskera. Her evidence about why she could not get the taskera sent to her in Afghanistan was unclear.
Apart from that practical barrier to living together in Australia, the evidence about their ongoing commitment to each other and their intention to live together is inconsistent.
The Applicant’s wife said that she returned to Afghanistan about three months after the June 2019 offences. She went to court, but her concerns were not considered.
The Sentencing Assessment Report dated 3 June 2021 said that the Applicant stated that ‘he has lost his wife and his future with her’. That comment was repeated in the Pre-release report of 29 September 2021. During cross-examination, about such reports, the Applicant said that he had not spoken to his wife for two and a half years and suspected that she would not be waiting for him. It was very expensive. Now he is in detention he is in direct contact with his family and brothers but has no direct contact with his wife. Later, in response to a question, he said that he had spoken to his wife the week before when he called his mother. In re-examination he said that he had conversations with her through his family, sometimes weekly, since he was in immigration detention.
In his report dated 14 June 2021, Dr F said that the Applicant ‘was married to his wife for seven years and they remain married’ and that she had been ‘supportive of him over the last two years, apparently writing a letter/affidavit that it was a ‘marital argument’ and a ‘misunderstanding”’. The doctor reported that the Applicant was worried about his situation, including ‘the effect … on his marriage’.
On 23 June 2021, the sentencing judge said that the Applicant’s wife has returned to Afghanistan ‘and he has lost that relationship, which he has acknowledged in his letter to me’.
The Applicant was notified that his visa was cancelled on 5 July 2021.
In the Personal Circumstances Form dated 9 August 2021, the Applicant ticked the box to indicate that he was married ‘now’ and the date of marriage was 1 January 2013. His wife was in Afghanistan. They planned ‘to have children in the future and be together for ever’.
In response to the question about the current or likely impact on his spouse/partner, the Applicant wrote:
(His wife) does not have any family in Australia except me. She cannot speak English at all. She has permanent residency in Australia.
The Applicant told the Tribunal that his wife returned to Afghanistan to her family. They are first cousins on his mother’s side. She spent time with both her immediate family and his family before her family left for the United States when the Taliban took over in August 2021. Since then, she has lived with his family.
The Applicant’s wife provided statements dated 5 October 2021, 30 August 2022 and 19 September 2022 and gave evidence by video conference. Her mother-in-law was present in the room. Following is a summary of her evidence. The Applicant was a caring and attentive husband before the 2019 offences. She depended on him for everything. In the early years in Australia, they were friendly with some Afghan families of other interpreters, but she grew apart from the women for reasons she gave. She visited the Applicant in prison at least three times. He expressed remorse and apologised to her. Without the Applicant’s support, she could not survive on her own and returned to Afghanistan. She got a five-year visa at that time.
Her family got visas to live in the US. She already had her permanent visa for Australia at that time.
In her first statement, the Applicant’s wife said that she had been advised that there was an AVO that prevented the Applicant and her from speaking to each other except through lawyers. She did not know how long it was in place. She was considering having it replaced. After the incident, she told the police that she would return to Afghanistan if they let the Applicant out of prison ‘but they did not listen to me’. She stayed with the Applicant’s friend in Perth who assisted her to arrange to leave Australia.
She does not believe that the Applicant will hurt her again. He has learned a very hard lesson in prison. She thinks that counselling for her and the Applicant seems like a good idea and wishes the police had suggested that on 16 June 2019 when she went to them.
With the Taliban takeover and the Applicant’s ‘impending release’ she intended to return to Australia as soon as possible. On 1 September 2021, she registered her intention with the Department of Foreign Affairs and Trade but was advised that they had stopped all evacuation flights and she would need to wait to hear from them. She and the Applicant’s parents went to the airport about five weeks before 5 October 2021 to get on an Australian evacuation flight but there was a bomb blast at the airport on that day.
Since the Taliban takeover, the Taliban had come to the house and questioned the Applicant’s father about the Applicant’s whereabouts. He said that the Applicant had left the country a long time ago. He and the Applicant’s brother were beaten. The family has moved to another location but that does not mean that they are safe. Without the Applicant’s financial support, it is hard for her and his family to survive. His family cannot work without risking being identified by the Taliban.
The Applicant cannot return to Afghanistan because his life is in danger from the Taliban because of his work for the ADF. If he stayed in indefinite detention, that would have a devastating effect on her because they intend to resume their life together when he is released from prison. She cannot return to Australia because she would not have any support without the Applicant.
During cross-examination, her evidence about whether the Applicant had struck her before the choking incident on 17 June 2019 was inconsistent. She said that she and the Applicant had only had a verbal argument in their home but also said that he had slapped her once in their home. She said that she lied to police on 16 June 2019 when she told them he had beaten her. She wanted them to help the Applicant who was not behaving normally. She said that she was telling the truth. She did not want to go to the US but wanted to live with her husband. Her parents would believe that she was divorced and would not support her.
The Respondent referred to an incident in prison and two police reports of incidents in 2017 involving the Applicant but where no charges were laid in support of its submission that he continues to demonstrate a risk of violence and that the 2019 offences and incidents were not isolated.
On 22 July 2017 the Applicant and other Afghanis who had worked for the ADF arranged to meet to play soccer. The Applicant and the person who reported the incident to police engaged in a verbal argument which on the accounts of both men resulted in a physical altercation. On both their accounts, others separated them, however, the police took no further action as there was no evidence to support the other person’s version of events. The police did not notice any injury to the other person to substantiate his claim.
The incident on the worksite on 29 August 2017 resulted in the other person being conveyed to hospital by ambulance and undergoing surgery to his nose and lip under general anaesthetic. The Applicant was taken to hospital by police. He suffered fractures of the left maxillary sinus and left orbit. He was to undergo surgery on 15 September 2017 but he told the Tribunal he did not have the operation. No charges were laid.
The record of prison in incident on 20 June 2020, shows that there was a hearing on 23 June 2020 and the offence was Fight or Other Physical Combat (141) the sentence appeared to be “28d Good Behaviour”. The Applicant said that he was defending himself from a person who had mental health issues who punched and kicked him from the back. An officer separated them, and he was moved to another pod. The Pre-release report dated 29 September 2021 reported that a Custodial Officer described this as a minor altercation with no injury being suffered. That report also noted that the Applicant’s ‘overall response to the custodial environment has been positive with correctional staff reflecting on his good behaviour and positive attitude’.[7]
[7] A different name of the inmate is given, however, I infer that is an error.
Those three incidents show that the Applicant does not walk away from a physical fight. That there is only one incident since he has been in prison for two and a half years and immigration detention for eight months, does not support the Respondent’s submission, given the nature of the custodial environment as described by Dr F:
(which) is, unfortunately, often an environment where inmates are exposed to threats, intimidation and violence either amongst other inmates or directed towards them.
The two 2017 incidents fall into a different category to the domestic violence offences committed on 17 June 2019.
Dr F’s 14 June 2021 pre-sentence report has been referred to in some detail above. He referred to the Applicant experiencing drug induced psychosis during the offending and confirmed the PTSD diagnosis. He recommended that the Applicant’s medication be increased. Since then, the medication regime has changed. The Applicant is now taking Olanzapine and Mirtazapine. Dr F recommended that the Applicant engage with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and engage in therapies such as Cognitive Behaviour Therapy (CBT), mindfulness techniques and/or Eye-Movement Desensitization and Reprocessing (EMDR).
Dr F addressed the Applicant’s prospects of rehabilitation:
[The Applicant] is multilingual, intelligent, is married and has a supportive wife, has no criminal antecedents, and, perhaps most importantly, served and supported the Australian Armed Forces in a hostile and unstable country, putting his own life at risk in the process, with the Taliban routinely killing such individuals, seen as ‘traitors’ by the Taliban. His actions in risking his own life to support Australian and global efforts to promote security and peace in Afghanistan reflect positively on his character, values and his prospects of being successfully rehabilitated.
The Sentencing Assessment dated 3 June 2021 reported that the Applicant worked as a pod sweeper, plumber and was employed for the past 18 months as a painter since being in custody. (It was submitted that that demonstrated that he was considered to be trustworthy and responsible.) He accepted responsibility for the harm he caused to his wife. The report found that the Applicant was suitable for community service and recommended referral to a domestic violence psychologist and engaging with a General Practitioner (GP) to manage his mental health. He was assessed at a low-medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
The Risk mitigation plan was assessed on 29 September 2021. It included referrals to a domestic violence program, a men’s behaviour program, to a Men’s shed for pro-social activities. It noted the offer of work and accommodation from the person who gave evidence to the Tribunal who said that only he would be living at the nominated address.The same person gave evidence to the Tribunal that the Applicant would be living with him, his wife and four children.
The Pre-release report dated 29 September 2021 included the following different or new information. The Applicant reported a history of social illicit substance use, namely synthetic cannabis. He had contact with Psychology on 23 July 2021 and subsequently with other services in relation to stressors linked to the political situation in Afghanistan and his concern for his family. After sentencing and being transferred to a different correctional facility, the Applicant worked in a timber mill. He was assessed as low-medium risk of reoffending according to the LSI-R. He was proposing to work when released and find his own accommodation. For the first six weeks of his release, the Applicant must have weekly contact with the parole officer, including a home visit in the first two weeks. He would then be required to have contact with a parole officer every six weeks. If the officer identified any concerns, the risk assessment and supervision level may be revised.
Supervision would comprise monitoring of his reintegration into the community via standard interviews and contact with his support networks and potential employer ‘if required’. Various services and programs were listed that he ‘can be referred to’.
Due to the serious nature of his offences, it was recommended that the Applicant be subject to conditions including abstinence from alcohol and illicit substances and no contact with victim/s. A parole order was recommended with conditions as described and including that if he were released from immigration detention or returned to Australia before the expiry of the Parole Order, he had to report to the parole authority within 7 days.
The Applicant was released on parole and taken into immigration detention on 16 December 2021.
While on remand, the Applicant attended six sessions on domestic violence and 13 on addiction (13) in the period 14 August 2020 to 1 February 2021.[8] Because of his low/medium risk assessment, he was unable to participate in the EQUIPS program suite and was unable to ‘participate in offence focused intervention strategies’.[9]
[8] G19 and G20.
[9] Pre-release report dated 29 September 2021, Supplementary G documents, p 79.
A clinical and forensic psychologist, who will be referred to as Dr D, prepared a report dated 19 September 2022, following a 2.5 hour interview with the Applicant by video-conference on 1 September 2022.
The general history he gave was generally consistent with that already referred to above. I refer to the most relevant details only.
Dr D commented that the Applicant’s insight and judgment into his past offending conduct ‘was somewhat limited’, however, his insight into is substance use and mental health ‘was appropriate’.
In addition to doing delivery work with a friend if he is released, the Applicant said that he would like to ‘start a new life’, support his wife and family overseas and have children.
While living in Afghanistan, he described being exposed to violence in his community, that is, to physical altercations, and witnessing domestic violence in his extended family and persisting conflict between his parents. During his employment with the ADF from 2011 to 2014, he described a number of traumatic incidents in which he was involved. He reported his symptoms but had not sought help until he was in custody.
The Applicant gave the following account of the 2019 offences.
On 13 June 2019 a friend he had known for eight to nine years told him that his wife was being unfaithful. The Applicant confronted her. She denied the allegations. He decided to attend a police station with his wife and spoke to an officer who suggested he ignore the rumours. Around 10 am on 14 June 2019 he was feeling depressed because of the allegations and met the same friend who offered him methamphetamine to ‘calm’ him. After about 15 minutes ‘something was talking to me like a ghost’ and he began to believe the allegation was true. He complained of increasing paranoia and being in a bad mood, and began arguing with his wife when he returned home.
On 16 June, his wife began ‘hitting herself and grabbed a knife’ to self-harm. She was hysterical. He attempted to ‘calm her down by slapping her neck’. He then suggested that they ‘go for a walk’. When they got to a railway station, his wife approached two police officers who were there to let them know that the Applicant had falsely accused her of infidelity and bashed her. He attended a police station where he was served with an AVO.
On 17 June 2019, he and his wife attended the home of the same friend. He and his wife argued about infidelity. He acknowledged ‘grabbing’ his wife ‘by the throat and dropping her down to the ground’. He did not disclose choking her to the point of unconsciousness, threatening the other woman, or that children were present.
The Applicant stated that he was drug affected and highly reactive to the rumours ‘and he demonstrated some justification and minimisation of his offending conduct in relation to the details’.
The Applicant reported a history of recreational drug and alcohol use since the age of 26/27 when he began using cannabis ‘a few times … four of (sic) five times’ with his friend, and alcohol socially.
Dr D undertook a psychometric assessment. She diagnosed the Applicant with PTSD as a result of his deployment with the US Army and the ADF and believed that at the time of offending, he suffered from untreated and severe PTSD symptoms and experienced a Substance Use (Methamphetamine) Psychotic Disorder.
Dr D reported that since his incarceration and being taken into immigration detention, the Applicant had sought and received ‘psychological and psychiatric treatment, group therapy, and psychoeducation in relation to his offending conduct and substance use’.
It appears that (the Applicant) has willingly engaged in various programs to improve his functioning, behaviours, and attitudes and has remained proactive in his therapeutic goals of rehabilitation.
Dr D noted that the Applicant emphasised that waitlists for counselling with a psychologist and psychiatrist were lengthy and mental health support is limited. Dr D referred to reports of an Australian government agency that expressed concerns about the availability of health and mental health care for certain detainees.
In Dr D’s opinion:
(The Applicant’s) risk of offending falls with the Moderate range due to his history of violence, drug use, severe mental health conditions, trauma, adverse childrearing experiences, exposure to community violence, current accommodation instability, previous non-compliance with supervision (breaching AVO), potential problems with his living and personal situation in the future, possible problems with his stress and coping in the future, and possible difficulties with affective, behavioural and cognitive instability.
However, although his risk of violence cannot be eliminated, it can be mitigated and contained through therapy, psychotropic medication, therapeutic supports, meaningful occupation, family support, religious faith, engagement in meaningful activities, fatherhood, healthy relationships, prosocial activities, abstinence from substance use, and regular violence risk assessments.
In addition to clinical interventions directed at improving mental health and substance abuse, psychosocial rehabilitation approaches aimed at improving domains of basic functioning and psychological well-being have been found to be effective in modifying risk and reducing violence among veterans.
At the time of offending, [the Applicant] had not accessed clinical interventions directed at improving his mental health which I believe precipitated his substance use and therefore violence.
Due to [the Applicant]’s current mental health needs and highly traumatic experiences whilst deployed, I believe that he still requires timely, regular, and long-term mental health support from a psychologist who specialises in PTSD.
Unfortunately, [the Applicant]’s mental health difficulties remain unresolved which will place him at risk of reoffending and further mental health deterioration if he does not receive appropriate and timely support.[10]
[10] Paragraph numbers and references omitted.
Dr D recommended that the Applicant engage in a weekly therapeutic regime for at least two years which will address his offending behaviour, attitudes towards women and violence, trauma, mental health symptomology, vulnerability to substance use and violence, and his future vocational goals.
Dr D wrote that risk is dynamic and changeable and depends on the balance of risk factors and protective factors that limit his risk of reoffending. Protective factors Dr D previously included were secure attachment in childhood with his mother, empathy, motivation for treatment, adherence to medication, interest in work and stable employment and accommodation, educational attainment, abstinence from drug and alcohol use, engagement in meaningful activity, and regular attendance for mental health treatment. Risk should be re-evaluated every six to 12 months to mitigate risk factors of violence.
Dr D stated that the Applicant’s psychological injuries of PTSD are permanent and resulted in his offending conduct.
This pathway was that of self-medication with the use of methamphetamines to avoid unwanted emotions which led to distorted beliefs and irrational, violent behaviours, typically observed in psychotic disorders.
Conclusion – protection of the Australian community
The Applicant submitted that the protection of the community should be given neutral weight. That submission relies on what were described as the Applicant’s strong prospects of mitigating the risk through rehabilitation such that there is a slight risk that he will commit further offences or engage in other serious conduct. I do not agree.
The offences against the Applicant’s wife and her friend were very serious. The breach of the AVO was a serious offence. The driving and trespass offences were at the low end of objective seriousness. The 2019 offences occurred because of the Applicant’s intense emotional response to being told that his wife had committed adultery, in the context of a drug induced psychosis and PTSD. The allegation went to the core of their marriage and their mutual trust. He believed his friend and not his wife.
There is no trend of increasing seriousness. The events over three days in June 2019 was relevantly one incident.
I accept Dr D’s assessment that the Applicant’s risk of re-offending falls within the moderate range for the reasons set out above. Her understanding of the Applicant’s circumstances, including of his offending, was more comprehensive than that of others who made such assessments including the sentencing judge, the writers of the Sentencing Report and Pre-release report, and Dr F.
The Applicant has spent no time in in the community since his offending in 2019. He attended courses while in prison and has had treatment for his mental health from psychiatrists and psychologists and claims to have benefited. The extent to which he has benefited, will only be apparent when he is living in a domestic relationship in the community.
Dr D recommended that the Applicant engage in a weekly therapeutic regime for at least two years which will address his offending behaviour, attitudes towards women and violence, trauma, mental health symptomology, vulnerability to substance use and violence, and his future vocational goals.
The Applicant submitted that he has not had assistance of a domestic violence specialist psychologist since being arrested on 17 January 2019 and revoking the visa cancellation would allow the Applicant to engage in further and more specialised mental health treatment to support his rehabilitation.
The Applicant has given evidence about his willingness to undertake treatment and counselling, including with his wife. However, as he said, neither he nor his wife has money. His wife has never worked outside the home, including while in Australia for five and a half years. He has plans and has taken steps to find low-cost or free assistance. His friend has promised him a full-time job paying $1,500 a week, short-term accommodation and assistance to find an apartment. Those are two of the protective factors Dr D referred to in relation to risk of reoffending.
There is no evidence about the cost or time required to undertake the treatment and counselling regime Dr D proposed. To what extent, if any, the Applicant will have the motivation, time, and financial capacity to undertake that regime when he is released into the community is uncertain. Whether the regime will be effective is uncertain.
The Applicant has had treatment for PTSD and undertaken some courses. He will be subject to parole until 16 December 2023 which would include some supervision and perhaps some assistance as referred to in the 2021 Pre-release report. He has expressed remorse. He and his wife say he has apologised for his actions.
Once the Applicant is released, they plan that she, the principal victim of his offending, will return to Australia to live with him, having lived apart and with little contact for at least three years. I do not make any adverse inference from that fact because they may have been complying with the AVO. If she does come to Australia, he will support both of them financially as well as financially assist his family in Afghanistan.
I am concerned about the degree of control the Applicant has had over his wife, in and out of Australia. She was very isolated in Australia. I accept that if she returns, she will be completely dependent upon him. In Afghanistan she is and has been under the control of his family, including during the hearing and the preparation of her evidence. At latest, her family moved to the US around August 2021 and she has lived full-time with his family since then. Her taskera is in the Perth home of his friend. Why she has not had it sent to her in Afghanistan is troubling. I cannot rely on her evidence about the relationship.
I am not confident that the Applicant’s evidence about the relationship is reliable. They may or may not resume their relationship, either in Australia or in Afghanistan. If they do not, the Applicant may enter a new relationship.
His claim that he will stay away from the friends he mixed with when he offended, who gave him drugs and poisoned his mind with the allegation that his wife had committed adultery, is untested. He does not have many other supporters in the community.
The risk factors Dr D identified: potential problems with his living and personal situation in the future, possible problems with his stress and coping in the future, and possible difficulties with affective, behavioural and cognitive instability, are relevant to the difficult circumstances he is likely to face if he returns to the community, including resuming work, finding permanent accommodation, undertaking treatment and counselling, reuniting and re-establishing his relationship with his wife, and staying away from his previous friends and avoiding drug taking.
The Australian community has a low tolerance for any risk of future harm of the kind suffered by the Applicant’s wife and her friend.
The protection of the Australian community weighs substantially against revocation of the visa cancellation decision.
8.2 Family violence committed by the Applicant
Paragraph 8.2 of Direction 90 defines family violence and sets out the factors to take into account to determine the seriousness to be attributed to it in a particular case.
The Applicant submitted that the consideration family violence committed by the Applicant be given neutral weight because the victim does not hold a present fear of him, he has an awareness of what he has to address, and a treatment plan which can be implemented when they are living together which will mitigate the risk of reoffending.
The strangulation offence is family violence.
The police narratives from 15 and 16 June 2019 are from an independent and authoritative source and indicate that the Applicant has been involved in perpetration of family violence on those days and he is being considered under s 501CA. He has been afforded procedural fairness.[11]
[11] Direction 90, [8.2(2)(b)].
Both the Applicant and his wife were assisted by a Dari interpreter during their police interviews on 16 June 2019. Their accounts are inconsistent. The other evidence of both the Applicant and his wife about what happened on those days, is inconsistent. It was given years later. The contemporaneous record of the injuries the wife suffered and the Applicant’s actions, particularly choking her, which is what he also did the next day, is persuasive. The police issued an AVO.
The Applicant’s wife sought protection for herself and assistance for her husband who was behaving as he had never behaved before. He was suffering the adverse effects of taking methamphetamine when dealing with the adultery allegations against his wife. He continued to suffer those effects when he committed the strangulation offence on 17 June 2019.
The Applicant committed family violence over three days in June 2019, culminating in the offence on 17 June 2019. The seriousness increased over that time. The conduct resulted from his intense emotional reaction to the adultery allegation, using methamphetamine and suffering from PTSD. It was the first time he had behaved in that way. He has been in custody and detention ever since.
The consideration and assessment of the information and evidence about the Applicant’s risk of re-offending and his rehabilitation has been set out in detail in the previous section of this decision. The Applicant says that he is remorseful, accepts responsibility for his conduct and understands the impact on his wife. As Dr D found, and I agree, his insight and judgment into his past offending conduct ‘was somewhat limited’. That also applies to his understanding of the impact on his wife.
The Applicant has undertaken courses and been treated for his PTSD and has plans for future treatment and courses to assist him and his wife. I agree with Dr D that his insight into is substance use and mental health ‘was appropriate’.
The family violence committed by the Applicant weighs substantially against revocation of the visa cancellation decision.
8.4 Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Direction 90 further states that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
The Full Court of the Federal Court of Australia considered clause 11.3 of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
The question for the decision-maker is the weight to be attached to this consideration.
The applicant has breached the trust of the Australian community,
In accordance with Direction 90, paragraph 8.4(2)(a) and (c), the Australian community expects that the Australian Government should cancel the Applicant’s visa if they raise serious character concerns through acts of family violence and commission of serious crimes against women.
Those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Applicant submitted that this consideration should not be given weight taking into account the Applicant’s trauma and consequent mental health issues and need for treatment arising from his service for the ADF for which he was commended, which is relevant to his impugned conduct, his victim’s expressed view that she forgives, and wants to live, with him, that he will return to a country where he faces a real chance of persecution, and he has good prospects of rehabilitation.
The consideration, expectations of the Australian community, weighs substantially against the revocation of the visa cancellation decision.
Other considerations
The other considerations listed at paragraph 9 of the Direction are not exhaustive, they ‘include (but are not limited to)’ those listed. In this case, the relevant listed considerations are international non-refoulement obligations, the extent of impediments if removed from Australia, impact on victims and links to the Australian community. Paragraph 7(2) of Direction 90 states the primary considerations should generally be given greater weight than other considerations.
9.1 International non-refoulement obligations
The Applicant submitted that there are two relevant and distinct considerations, which support this consideration being given heavy weight in the assessment:
(a) The harm to the Applicant arising from him being returned to Afghanistan in breach of international law, or being detained indefinitely in Australia;
(b) The impact on Australia’s reputational interests and standing in the global community arising from contravention of international obligations through refoulement or indefinite detention.[12]
[12] Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]; Ali v Minister for Home Affairs [2020] FCAFC 109 at [91].
The respondent contended that no weight should attach to international non-refoulement obligation consideration in favour of the applicant. It contended that I was entitled to defer consideration of this consideration following the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The matter can be adequately dealt with by the applicant applying for a protection visa, which he said he would do when it was raised with him at the hearing. He said that he was unaware of that possibility before then.
Where an applicant/plaintiff made representations seeking revocation of a cancellation decision under s 501(3A) of the Act which raised a potential breach of Australia’s international non-refoulement obligations, the first answer given by the High Court in Plaintiff M1/2021 sets out the consideration required when deciding whether there was ‘another reason’ to revoke the visa cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act where the plaintiff/applicant remained free to apply for a protection visa under the Act:
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;
(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
At [37] and [39], the plurality said:
… For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff’s claim) in the same manner, or to the same extent as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision‑maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.
The High Court considered s 501(CA)(4)(b)(ii) in the context of Direction 65 which has been revoked but its consideration applies to a decision made under that provision when Direction 90 applies.[13]
[13] SGTX and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2536.
In summary, the Applicant submitted that he is owed protection obligations on the basis of his profile arising from his work as an interpreter for the ADF. He will be imputed to be a ‘traitor’ of Afghanistan and someone who is sympathetic to western countries. He will face a real risk of persecution from both the Taliban government and Islamic State in Khorasan Province (ISKP) if he is returned to Afghanistan.
The harm he claimed he would face was phrased in various ways and did not refer specifically to the provisions of the Act that set out the criteria to be satisfied for a protection visa. In brief, the Applicant claims that he will suffer serious or significant harm including arbitrary deprivation of life as a necessary and foreseeable consequence of being remove to Afghanistan.
I do not propose to defer consideration of the Applicant’s claim that he is owed non-refoulement obligations because he can apply for a protection visa as the Respondent contended. This is a case where it is not possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. It is an appropriate case to assume in his favour that the claimed harm will occur and make a decision on that basis.[14] The country information provided is compelling and is consistent with the claims made by the Applicant and his wife. The various certificates he received while in the ADF prove that he did serve as he claimed. He was granted a sub-class 201 visa.[15] One of the criteria for that visa is that the person is subject to persecution in the person’s home country. It is highly likely that the Applicant is owed non-refoulement obligations under domestic law.
[14] Direction 90 [9.1(6)].
[15] Migration Regulations 1994 (Cth) Sch 2, reg 201.211(1)(a).
The Applicant submitted, and the Respondent accepted, that the consequence would be that the Applicant would be subject to indefinite detention, as discussed in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [123]:[16]
As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
[16] [2021] FCAFC 55 at [123] per Kenny and Mortimer JJ.
That period would include the period the Applicant would have to wait for a protection visa application to be finally determined if he made an application. Given the party’s consensus, it is unnecessary for the purposes of this decision to detail the relevant provisions of the Act that may apply in the future relating to the exercise of personal powers of the Minister, the grant of other visas or third country resettlement.
I accept the Applicant’s submission that his mental health would be adversely affected by indefinite detention. Dr F’s opinion was that PTSD made the Applicant vulnerable in a custodial setting because anxiety, stress and re-experiencing symptoms are generally exacerbated by stressful circumstances, exposure to violence and potential threats of violence. Although that opinion related to a prison environment, I infer that it also applies to immigration detention. While in detention he will not be able to access the extent of treatment that he could if he was in the community, including in relation to domestic violence.
I accept that the Applicant will apply for a protection visa if the cancellation decision is not revoked.
The Applicant submitted that indefinite detention may see Australia breach international obligations under the International Convention on Civil and Political Rights (ICCPR) and the Convention on the Rights of Persons with Disabilities (CRPD), to which Australia is a party for the following reasons.
The right to liberty is enshrined in article 9 of the ICCPR. Article 15 of the CRPD provides that persons with disabilities have the right to freedom from cruel, inhuman or degrading treatment or punishment and States parties are obliged to ‘take all effective legislative, administrative, judicial or other measures’ to prevent persons with disabilities being subjected to such treatment or punishment. The UN Human Rights Committee has found that finding of the UN Human Rights Committee that indefinite detention of refugees on grounds of adverse security assessments was in breach of article 9(1) of the ICCPR. In some cases, the circumstances and conditions of detention were found to constitute treatment contrary to article 7, inflicting ‘serious psychological harm’. In reviewing the legislation amending s 197C of the Act, the Parliamentary Joint Committee on Human Rights expressed concern about compliance with these obligations.
The sentencing judge commented that the Applicant’s PTSD was likely to make a custodial sentence more harsh for him than for others who did not suffer from PTSD. Various about studies demonstrate that prolonged detention, particularly immigration detention, has an adverse impact on a person’s mental health and particularly on a vulnerable person such as the Applicant who has an existing mental health condition.
The Respondent relied on what was said in Plaintiff M1 at [34] to argue that I do not have to consider this submission. I disagree. In that paragraph, the plurality were commenting on a case where a decision-maker defers assessment of a person’s claim to non-refoulement. I have not done that.
The Respondent also argued that in the likely event the Applicant applied for a protection visa, he will not be removed from Australia as a consequence of a non-revocation order, and therefore no international obligations will be breached.
The nonrefoulement obligation will not be breached, but the argument based on indefinite detention is a different argument.
Following are my conclusions on the above arguments.
If I affirm the decision not to revoke the visa, it is likely that the Applicant will apply for a protection visa and will not be returned to Afghanistan in the foreseeable future contrary to Australia’s international nonrefoulement obligations. I give this consideration no weight.
Being in indefinite detention may exacerbate the Applicant’s PTSD or mental health more generally but I am not persuaded that it will breach either the CCPR or CRPD or consequently damage Australia’s reputational interests and standing in the global community. I give this consideration no weight.
The Applicant’s third argument under this heading is the harm that the Applicant will suffer from being in indefinite detention. His mental health is likely to deteriorate and he will not have access to the same level of mental health care as he would have if he were in the Australian community. I give this consideration significant weight.
9.2 Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is 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, and sets out matters relevant to that consideration.
The Applicant is 32 years old. He suffers from PTSD and requires ongoing treatment. He will have no substantial language barriers. In terms of cultural barriers, he will be regarded as a traitor by the ruling Taliban and the ISKP and will risk serious harm, including death.
The Respondent accepted that the security, political and economic situation in Afghanistan ‘will present significant challenges’ for the Application but he would have access to the same level of social, medical and economic support as what is generally available to other citizens of Afghanistan.
I do not agree. The Applicant will be in danger of his life. He will have to hide from the ruling Taliban. He will not have access to the same level of social, medical and economic support as what is generally available to other citizens of Afghanistan. The availability of treatment for mental health issues is very limited.
The Applicant submitted that if I accepted that there are non-refoulement obligations, as I have, I give neutral weight to this consideration. As I have found that it is likely rather than certain that the Applicant will apply for a protection visa and will not be removed from Australia in the foreseeable future as a consequence of a decision not to revoke the cancellation visa, I give this consideration little weight rather than neutral weight.
9.3 Impact on victims
The Applicant’s case in relation to the impact on victims is that his wife has forgiven him and wants to re-join him in Australia and she cannot return to Australia unless he can take care of her as he did before and pay for her fare. She was completely dependent upon him. In addition to the Taliban’s takeover of power and the generally poor economic situation in Afghanistan, she is in danger from the Taliban and I infer from the ISKP, because of her association with the Applicant. It is in her interests to return to Australia to live with the Applicant.
The Respondent submitted that as she is the Applicant’s wife and victim of his offending, the Tribunal should consider her evidence under other considerations such as the strength, nature and duration of ties to Australia and the impediments of removal. Several cases were referred to. I do not accept that those cases prevent me from considering the evidence of the Applicant’s wife in relation to this consideration. If that conclusion is wrong, I consider it as an ‘Other’ consideration which is not a mandatory consideration under Direction 90.
Whether the Applicant’s wife could leave Afghanistan if the Applicant was in the community and able to help her is uncertain. Her passport has expired and must be renewed. Whether the Taliban regime will renew it, either in Afghanistan or in Australia, is uncertain given the claims for protection the Applicant has made and his wife’s evidence about being at risk of the Taliban because of his work with the ADF. If she does get a passport, she then has to be permitted to leave by Taliban authorities at the airport or get to a third country.
She will be safer and economically more secure if she does arrive in Australia and the Applicant supports her, subject to the qualification that there is a risk that she may suffer family violence. She does have a visa which allows her to return without his assistance, but she has no financial resources to allow her to do that. I am uncertain whether the relationship between the Applicant and his wife is as they claim or exists at all. I am uncertain whether the Applicant would assist her to return.
Despite the uncertainties I have identified, this consideration weighs very heavily in favour of revoking the visa cancellation decision. The Applicant’s wife is at risk of serious or significant harm, including death, if she remains in Afghanistan. Revoking the visa cancellation decision is her best chance of living safely and securely in Australia.
9.4 Links to the Australian community
The consideration links to the Australian community has two limbs.[17]
i) strength, nature, and duration of ties to Australia.
ii) impact on Australian business interests.
[17] Direction 90, paragraph 9.4.
The Applicant was aged 23 when he arrived in Australia. He spent less than five and a half years in the Australian community before his arrest. He has been in custody or immigration detention for over three years.
However, he made a positive contribution to the Australian community before he came to Australia through his very important work for the ADF from 2011 to 2014 in Afghanistan. He has also made a positive contribution since he has been in Australia through his work as a painter, delivery driver and on at least one construction site.
The letters and certificates from the ADF do not support a finding that he has ongoing ties to the ADF community in Australia. The most recent was from the then Chief of the Defence force dated 30 June 2014 welcoming him to Australia and thanking him for his significant contribution to the ADF mission, encouraging him to remain in contact with ADF members and inviting him to participate in a national parade on 21 March 2015.
His wife and family are in Afghanistan. I do not accept that he has a strong network of friends in Australia. He has a couple of friends, one of whom, who gave evidence, has been very supportive and states that he will be if the Applicant returns to the community. The Applicant’s group of friends in Australia for some years before he was taken into custody caused his offending. He claims to have no ongoing association with them.
The Applicant had claimed that there will be an impact on Australian business interests if the visa is revoked because of his employment, skills and work ethic, however it was not relied upon. That was appropriate because there is no impact on the delivery of a major project or important service for Australia (paragraph 9.4.2).
The consideration links to the Australian community weighs heavily in favour of revoking the visa cancellation decision.
Conclusion
I have to weigh all ‘primary’ and ‘other’ considerations set out in Direction 90. ‘Other considerations’ should not be necessarily given less weight in all cases; it is a case-by-case consideration.[18]
[18] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
The primary considerations protection of the Australian community, family violence, and the expectations of the Australian community weigh substantially in favour of not revoking the decision to cancel the applicant’s visa.
‘Other’ considerations weighing in favour of revoking that decision are the harm he will suffer in indefinite detention, the extent of impediments if returned to Afghanistan, his links to the Australian community and impact on the victim.
For the reasons already given, I give little weight to the considerations breaching international non-refoulement obligations, and no weight to breaching either or both the CCPR or CRPD and consequential damage to Australia’s reputational interests and standing in the global community.
The Other considerations weighing in favour of revoking the visa cancellation decision outweigh the primary considerations which weigh against doing so.
There is another reason why the decision to cancel the applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.
Decision
The reviewable decision is set aside and in substitution it is decided that there is another reason why the decision to cancel the applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.
.............................[SDG].......................................
Associate
Dated: 13 October 2022
Dates of hearing: 23 and 26 September 2022 Solicitors for the Applicant: Stephanie Blaker, Legal Aid Solicitors for the Respondent: Harry McLaurin, MinterEllison
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