QJTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 609
•23 March 2021
QJTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 609 (23 March 2021)
Division:GENERAL DIVISION
File Number: 2018/6933
Re:QJTT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:23 March 2021
Place:Perth
The Respondent’s delegate’s decision dated 21 November 2018 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Resolution of Status (subclass 851) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Act be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – decision of delegate not to revoke mandatory cancellation of visa – character test – whether there is another reason to revoke the mandatory cancellation – Direction 79 – primary and other considerations – Australia’s non-refoulement obligations – ITOA found there is a real chance the Applicant would suffer serious harm if returned to Afghanistan – consequences of non-revocation – what should Tribunal consider – Direction 79 paras 14.1(2), 14.1(6) – detention for indeterminate period – effect on mental health – reviewable decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) – ss 48A, 48B, 189, 195A, 198, 197C(1), 499(1), 499(2A), 500(1)(ba), 501, 501(7), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(ii), 501E(1)
CASES
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27
BDQ19 v Minister for Home Affairs [2019] FCA 1630
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CWGF v Minister for Home Affairs [2019] FCA 1802
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Home Affairs v HSKJ [2018] FCAFC 217
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Pinder and Minister for Home Affairs [2019] AATA 1398
QJTT and Minister for Home Affairs (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) – preamble, art 3
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5),13(2), 13(2)(a), 13.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14.1(6), 14.2, 14.4, 14.4(1), 14.5, 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
23 March 2021
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated 21 November 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Resolution of Status (subclass 851) visa.
The Applicant’s visa was cancelled because the Applicant did not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review, lodged with the Administrative Appeals Tribunal (AAT) on 28 November 2018, was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the AAT for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. I am satisfied that I have jurisdiction to review the decision.
ADMINISTRATIVE AND JUDICIAL HISTORY
On 5 May 2015 the Applicant’s visa was cancelled under s 501(3A) of the Act because the Applicant failed the character test and was, at that time, serving a full-time sentence of imprisonment.
In June 2015 the Applicant sought revocation of the mandatory cancellation decision of 5 May 2015. On 29 November 2016, the Assistant Minister personally decided not to revoke the cancellation of the Applicant’s visa.
The Assistant Minister’s decision of 29 November 2016 was set aside by a consent order of the Full Court of the Federal Court of Australia dated 23 February 2018 on the basis that the Assistant Minister’s decision was affected by the same jurisdictional error as that described in DMH16 v Minister for Immigration and Border Protection[1] (DMH16). The Full Court issued a writ of certiorari to quash the decision dated 29 November 2016 and a writ of mandamus directing the Respondent to determine the Applicant’s request for revocation of the decision under s 501(3A) according to law.
[1] (2017) 253 FCR 576.
After considering further representations made by the Applicant, on 21 November 2018 a delegate of the Minister decided not to revoke the cancellation decision dated 5 May 2015.
On 28 November 2018 the Applicant lodged an application in the AAT to review the decision of 21 November 2018.
The application was originally heard by a differently constituted Tribunal on 30 January 2019. By decision dated 13 February 2019 that Tribunal affirmed the delegate’s decision of 21 November 2018 not to revoke the cancellation of the Applicant’s visa (QJTT and Minister for Home Affairs [2019] AATA 152 (QJTT (1)).
The Applicant appealed that decision of the AAT to the Federal Court of Australia.
By orders made by Kerr J on 4 October 2019 (BDQ19 v Minister for Home Affairs)[2] (BDQ19) the original Tribunal’s decision was quashed and the matter was remitted to the AAT for determination according to law by a Tribunal differently constituted.
[2] [2019] FCA 1630.
BACKGROUND
The Applicant is a 40-year-old citizen of Afghanistan who has resided in Australia since March 2001. He initially held a Temporary Protection Visa before being granted his permanent Resolution of Status visa on 4 December 2008.
The Applicant has little or no formal education. In Australia he has worked in a number of industries involving labouring, construction and manufacturing.
In 2004 the Applicant commenced a long-term relationship with an Australian citizen and together they have had three children. The Applicant’s partner has a daughter from a previous relationship to whom the Applicant is stepfather.
As noted above, the Applicant’s visa was cancelled under s 501(3A) of the Act on 5 May 2015 while the Applicant was imprisoned. On 14 May 2015 the Applicant was released from prison and immediately taken into immigration detention. He has remained in immigration detention since.
The Applicant has an extensive criminal record (see Annexure). He has been convicted of 42 offences in the period from January 2005 to January 2014. His convictions are:
(a)Offences involving violence: two counts of assault occasioning bodily harm (23 November 2005); two counts of common assault (8 December 2006); two counts of unlawfully wounded in circumstances of aggravation (15 January 2014);
(b)Driving and traffic offences: no motor driver’s licence, exceeding a blood alcohol content of .08 and failing to stop when called upon (13 May 2005); three counts of no motor driver’s licence – under suspension (27 July 2005); no motor driver’s licence – under suspension and driving an unlicensed vehicle (24 April 2006); exceed speed limit and no motor driver’s licence – under suspension (8 December 2006); no authority to drive – suspended (24 December 2008);
(c)Drug offences: possess a prohibited drug (24 February 2006); possess a smoking utensil (19 December 2008); possess a prohibited drug (methylamphetamine) (31 January 2014);
(d)Breaches of court imposed orders and police orders: breach of bail granted (13 May 2005); breach of suspended sentence (24 April 2006); three counts of breach of protective bail conditions (8 December 2006); breaches of police order (8 December 2006 and 22 February 2007); three counts of breach of police order (27 August 2012);
(e)Offences involving public officers and against public order: resist arrest (13 May 2005); fail to comply with request to give police personal details (23 June 2006); disorderly conduct (13 January 2005); disorderly behaviour in public (24 April 2006, 8 December 2006 and 20 December 2006);
(f)Other offences: possessed a controlled weapon (23 November 2005); carried an article with intent to injure (disable) (20 December 2006); left a public passenger transport service without valid ticket (23 June 2006); unlawful damage (8 December 2006); two counts of trespass (8 December 2006).
(dates cited are dates of court results.)
In BDQ19 Kerr J at [11] noted that a further relevant background circumstance was that on 6 October 2016 an International Treaties Obligations Assessment (ITOA) was completed. The assessor found that the Applicant had a well-founded fear of being persecuted for a Refugee Convention reason and was at real risk of suffering significant harm were he to be returned to Afghanistan. The ITOA, accordingly, concluded that Australia has non-refoulement obligations to the Applicant.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4) of the Act to revoke the decision under s 501(3A) to cancel the Applicant’s visa. That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and;
(b)if he does not, whether there is a ‘another reason’ why the decision to cancel the Applicant’s visa under s 501(3A) of the Act should be revoked (s 501CA(4)(b)(ii)).
THE HEARING
As noted at [9]–[11] above, this matter was originally heard on 30 January 2019 and subsequently remitted to the AAT by the Federal Court, pursuant to orders made on 4 October 2019.
The matter was heard in accordance with the Federal Court orders on 21 and 22 January 2021. The Applicant was represented by Mr O Ciolek and the Respondent was represented by Mr A Gerrard of the Australian Government Solicitor. Mr Ciolek appeared by video link and Mr Gerrard was present in the hearing room. The Applicant appeared by video link from the immigration detention centre. An interpreter, who was present throughout, appeared in person on the first day of the hearing and by telephone on the second day.
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Ms Carla Lechner;
(c)Dr Gosia Wojnarowska; and
(d)Dr Kym Jenkins.
The parties had agreed a 983-page tender bundle of what were described as “primary documents” which was admitted into evidence as Exhibit 1 (the Tender Bundle). In addition to the Tender Bundle the Applicant provided a paginated bundle of what were described as “secondary documents” (Secondary Documents).[3]
[3] pp 984–3256.
The parties also filed (among other things) the following documents in relation to the initial AAT hearing and the subsequent remittal by the Federal Court:
(a)Applicant’s Statement of Facts, Issues and Contentions filed 11 January 2019;
(b)Respondent’s Statement of Facts, Issues and Contentions filed 21 January 2019;
(c)Applicant’s Statement of Facts, Issues and Contentions filed 31 August 2020 (Applicant’s SFIC);
(d)Respondent’s Statement of Facts, Issues and Contentions filed 3 November 2020 (Respondent’s SFIC);
(e)Applicant’s Reply filed 20 November 2020;
(f)Further Submission of Applicant filed 27 January 2021;
(g)Further Submissions of Respondent filed 1 February 2021.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b)the person is 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 a Territory.
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)...
(b)...
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 501CA of the Act provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, called “Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is 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 a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in para 6.3, the decision-maker must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in para 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship.[4] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. This phrase, in turn is defined, relevant to this case, in ss 501(7)(c) and 501(7)(d) (see [25] above) which provide that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or two or more terms of imprisonment where the total of those terms is 12 months or more.
[4] [2009] AATA 47; (2009) 106 ALD 666 at [63]–[65].
In the present case the Applicant’s criminal record meets the requirements of both ss 501(7)(c) and 501(7)(d) and therefore the Applicant does not pass the character test (s 501(6) of the Act). That is conceded by the Applicant.[5] Therefore, the only issue for consideration is whether there is another reason to revoke the cancellation of the Applicant’s visa (s 501CA(4)(b)(ii)).
[5] Applicant’s SFIC para 3.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
As noted at [16], the Applicant has an extensive and serious criminal record with 42 convictions over a nine-year-period. The most serious of the Applicant’s offences are the two convictions for unlawful wounding in circumstances of aggravation for which he received sentences of imprisonment for 14 months and two months on 15 January 2014. In sentencing the Applicant, Magistrate Roth described the circumstances of the offences, which occurred in October 2012, as follows:
Both of these incidents occurred on the same evening, 9 October 2012, in the same premises and in the course of the same confrontation, for want of a better word.
The commencement of the trial, the defence indicated that they were not putting into issue the actual wounding, they were simply - the defence in this matter was relying on the basis of self-defence.
…
… It seems that Ms [X] was having a birthday. There was a gathering - for want of a better term - organised at [omitted], which is the premises of [omitted], who at the time was in a relationship with Ms [X]. There were a number of people who had gathered at that premises, some apparently to celebrate Ms [X] in celebrating her birthday. At least one of whom Mr [omitted] was apparently there just to see what was happening and the lot of them had been drinking through the course of the day, although each of them indicated that they were not intoxicated at the time that these events occurred.
Also present at … [the] premises was the accused's partner, whose name is [omitted] and I think there may have been three children present at that residence; all children of the accused in respect to this matter. The evidence is that the accused has come to [the] house, has not entered the yard on the first occasion that he was there. There had been words spoken and indication to him that he wasn't welcome at those premises and he moved on as requested and moved on up the street.
A few minutes later he returned back to the premises. There is some dispute in the evidence as to whether he came on to the premises immediately or whether he stood out in the street and made comments, but certainly by the end he was on the premises...
He entered into the premises as I've indicated and there was a confrontation between himself and Mr [A]. One way or another the accused ended up in possession of a knife, which has been described variously as a box cutter or a Stanley knife. A knife, which as I understand, has a handle and inside the handle is a blade and you slide the blade out. The blade was slid out. This knife was in the possession of the accused in this matter and was used to cause injury wounds to both Mr [A] and to Ms [X].[6]
[6] Tender Bundle at 286–7.
His Honour then referred to the Applicant having been engaged in an electronic record of interview with police the day following the incident. His Honour described the Applicant’s version of events as given in the electronic record of interview as being “pure fantasy” and being “made up for the purposes of the interview”.[7] His Honour’s view was that:
…it is clear that the accused in that electronic record of interview was doing everything that he could do in order to avoid culpability for his conduct on the day and was essentially inventing a story for the purposes of avoiding consequences which would have followed upon his action.
[7] Ibid at 290.
His Honour went on to refer to and prefer the evidence of various witnesses who were present on the day of the incident. Having done that, the magistrate then accepted the following as being the relevant facts:
… there was a strong consistency in the evidence and that was that it was the accused who was the aggressor in this matter and it was the accused who was armed. He does not - the defence has never denied that. Whether he picked the box cutter or Stanley knife, as the case may be, up off the lawn or whether he carried it in his back pocket, to my mind doesn't make a great deal of difference. The fact is that he armed himself in the circumstances and he armed himself with a weapon which he subsequently used. …
I accept the evidence of Mr [B] and various other witnesses that the accused in this matter was told prior to entering the premises that he was not welcome on the premises… Any licence or consent was specifically withdrawn.
…
… I accept beyond a reasonable doubt - that it was the accused who initiated physical contact with Mr [A] and that he did so after having come along to the property and challenged people on the property to have a fight or to become involved in physical violence with him.[8]
[8] Ibid at 293–4.
In relation to the seriousness of the offences, Magistrate Roth said:
… Unlawful wounding is always a serious offence and, in my view, this is a very serious example. Your counsel suggests it's perhaps above normal, as it were, or above the tariff I consider or above the average in terms of its severity, but I consider it to be some great deal above the norm and it's at the upper end of severity, in my view. The penalty in respect of each of these is a maximum of two year's imprisonment or $24,000. This is obviously not the worst case of unlawful wounding that can occur and it would not be appropriate for it to attract the maximum penalty in respect of the matter.
But it is, as I indicated, at the upper end. In my view, a fine would simply be an inadequate punishment in relation to the nature of the offence, in the severity of the offending and given the fact that you have previously been on pre-sentence orders, which you have breached. You have a habit of breaching protective bail conditions and police orders. It doesn't appear that you are a person who is prepared to comply with requirements that have been placed on you. And, accordingly, it doesn't seem to me that there's much to be served by way of a community based order. But, in any event, even if there was it seems to me that the seriousness of this offending is such that it would be inappropriate to impose such an order.
Your record reflects someone who is more than prepared to turn to violence when you consider it to be in your best interest to do so or for whatever reason. And your record offers you no mitigation whatsoever; it does not, in any way, aggravate the penalty but it does indicate that this is by no means out of character for you and that this sort of conduct is something which you are well accustomed to and which you are quite prepared to turn to in circumstances where you consider that the use of violence is appropriate. The only mitigating factor that I can find in relation to these matters is that you have not reoffended since these proceedings have been instituted.[9]
…
… Having heard all the facts in this matter and all of the evidence in respect to this matter, [Applicant], it can only be concluded that whatever drove you on that night, you went back to the premises with the intention of becoming violent towards someone. It may well have been that had your wife decided to come out and accompany you back to wherever it was you wanted her to go, perhaps this could have been avoided. But the fact that she didn't doesn't in any way explain or justify or any way mitigate your conduct on the night. Your wife is a human being, like the rest of us, she is entitled to do what she pleases.
You are not entitled to order or instruct her and you're certainly not entitled to use violence against others merely because she decides she does not want to comply with your requirements. The wound in relation to Ms [X], as I've indicated, is an extremely serious wound. It is obvious from the photograph she suffered. She had to go to Perth, apparently, to have an operation. There were those who were worried that internal organs would simply spill out of the wound, given the nature and the extent of the wounding. You used a box cutter or a Stanley knife, whichever one it may have been, to inflict these wounds and anybody using a sharp implement like that; it has got to be expected they are going to do very severe damage to someone.
I accept that it was not necessarily your intention to cause a wound to Ms [X], but in the circumstances in which you were swinging that knife around and the way that you did, it was an absolutely foreseeable result that somebody, be it Ms [X] or otherwise, was going to sustain a very serious injury as a result of the swinging of the knife. The use of the knife against Mr [A], in my view, was slightly different but the wound itself is not as severe as the wound in relation to Ms [X]. But it can only be said to be an intentional wounding by you; you used the knife, with the intent of causing that sort of injury to Mr [A].[10]
[9] Tender Bundle at 298–9.
[10] Tender Bundle at 297–8.
The Applicant’s evidence at the hearing on this incident was confused. The Applicant was asked in cross-examination whether he still claimed that the slashing of Ms X and Mr A was in self-defence, the argument that the Applicant had unsuccessfully run at his trial. His answer was:
Sir, now it’s been a long time since the incident. I still feel sorry for them. (Indistinct). Not worth it to hurt anybody - it doesn’t matter - let alone your friend. You know the lady get cut - she was a friend of mine - she was washing my clothes, she was cooking for me - I have a future and party with her, you know. She used to come to my house - I used to go to her house, you know. I don’t know why she get cut that day - I have no clue, Sir. But I’m going to regret whatever happened that day, you know.[11]
[11] Transcript at 68.
Counsel rephrased the question several times to elicit an answer to the question, unfortunately with little success. On each occasion the questions were translated. The following exchange took place, the Applicant responding through the interpreter:
MR GERRARD: Before the magistrate’s court you claimed that, you claimed that you were acting in self-defence. Before this tribunal, on the last occasion, you also claimed that you were acting in self-defence. Do you still claim that you were acting in self-defence?
APPLICANT: I could have left the problem and it could have been there at that place that I have made the mistake of staying there.
MR GERRARD: Let me put it to you this way - the court rejected as pure fantasy your claim to have been acting in self-defence and the court went to find that you went back to the premises with the intention of becoming violent toward someone. Do you accept that that is what happened?
APPLICANT: I do not accept that assessment. I’m not crazy to go among five people with the intention of injuring someone. That assessment doesn’t have any meaning.
MR GERRARD: The judge also went on to say - for the tribunal’s benefit this is on page 298 -
Agree that it was not necessarily your intention to cause a wound 30 to Miss [X] but in respect of Mr [A] he can only be said to be an intentional wounding by you. You used the knife with the intent of causing that sort of injury to Mr [A].
Do you accept that?
APPLICANT: The place that they were - the kids were - was not a good place for the kids to be because the people were using needles, they were drinking alcohol - so when I said to [A] to bring the kids he just started beating his hand and he came towards me saying bad words and he wanted to have a fight. I didn’t want to have a fight with [A] - I just went outside in the yard and they just kept following me. There are four to five people witnessed it so I didn’t go there to have a fight - they actually followed me to the yard and I didn’t have any beer or anything in my hand so there was a knife - a box cutter knife - in the yard where I was so just to defend myself - to stop them coming close to me - I just grabbed that box cutter knife and I was (indistinct) swishing it around and it hit his body and injured his hand. So that’s how it happened.[12]
[12] Transcript at 69–70.
It was then put to the Applicant that the Magistrate had rejected his arguments of self-defence and had found that it was the Applicant’s intention to cause a wound to at least Mr A. The following exchange then occurred, through the interpreter:
APPLICANT: Do you think I’m thick - that someone I’ve never met - I met him the first time - I just injure hand straight away - do you think that I am a thick person like that?
MR GERRARD: So you disagree with that. You still say it was self-defence.
APPLICANT: I’ve just told you exactly what happened there and you can make your own assessment. My intention was not to have a fight with anyone - I’m not a thick person to injure someone or anyone there. I have just explained exactly what happened there.[13]
[13] Ibid at 70.
I tried to get some clarity on that issue as follows:
TRIBUNAL: Yes, but I think it was laborious and interrupted by technical problems, but I actually understood your evidence to be, and your counsel will correct me if I’m wrong, that you claim that you were acting in self-defence when the two people were stabbed. Is that correct? Is that what---
APPLICANT: Sir – that sir, was case there in the court day – my lawyer said, you know? But I did not (indistinct) self-defence or it was – you know – defend yourself or – you know? But the thing is – the main thing is I know I did wrong thing, you know? It was not right thing to do, you know? That’s the main thing, sir. I’m not denying. I’m not denying too – I hurt two person there. I never deny, mate. You know? That happened there that day – that happened. You know?[14]
[14] Transcript at 90.
The Applicant’s counsel also sought to clarify the matter following my unsuccessful attempt as follows:
MR CIOLEK: - - -that incident now from your own memory and your own thoughts about the incident. Do you think now, that what you did was to protect yourself or do you think that you were not protecting yourself? Do you think there was a good reason for what you did? Or do you think there was no good reason for what you did?
APPLICANT: Sir, the whole thing was not good, mate. You know? The whole thing that was happened that day is not good. You know?
MR CIOLEK: But I’m asking about your reason, your motivation or the reason why you did what you did. Do you think you had a good reason? Or do you think you did not have a good reason?
APPLICANT: Yes, sir. That’s what I said. It was not good – any good reason there, mate.[15]
[15] Ibid at 92.
The Applicant was also cross-examined on the convictions in November 2005 on two counts of assault occasioning bodily harm and possession of a controlled weapon. His evidence was that he was sharing a house with two other people, a male and a female. While the Applicant was trying to sleep the other two started fighting and smashing things, including a window, first at about midnight, then again at about 2:00am and finally at about 3:00am. He says that he got up to tell them to be quiet as he had to work the next day. The male was drunk and aggressive and came at the Applicant with a piece of glass or a chair frame. The Applicant went to his bedroom and grabbed a samurai sword which he said he had for decoration. The Applicant’s evidence was that he hit the male on the hand to make him drop the piece of glass and when the male fell to the floor the Applicant kicked him. He said that he used “the blind side” of the sword, not the cutting edge. When asked by counsel whether he accepted that that was reckless, the Applicant’s response was:
Because they have no - there was no way to run away because the door was - I was trying to find a door and the window had a bar on it. Otherwise, I would not have stayed in that room. I know the guy was drunk.[16]
[16] Transcript at 67.
The Applicant did, however, agree that his action in hitting the male with the samurai sword was reckless.
The Applicant was also cross-examined on the conviction in December 2006 for carrying an article with intent to injure. His evidence was:
Sir, that time was in a nightclub in Northbridge, Sir. A couple of them might have a fight in the nightclub but once the fight finishes we come outside but one of them might have two balls in his hand. One a white ball, one a number eight ball. It was his hand - I grab it - it was my hand. Once the police come and search everybody they grab the ball and say what is it and I say it’s a ball, you know. That’s what I got charged for. I did not hit anything with that - I did not fight that night, you know. I just get charged because the ball was in my hand.[17]
[17] Ibid at 68.
The Applicant has also been convicted three times for breaching protective bail conditions and five times for breaching police restraining orders. A number of these convictions were for breaches of orders for the protection of the Applicant’s former partner. In sentencing the Applicant on the assault convictions in 2014, Magistrate Roth commented:
You have committed these offences in October of 2012, after having been placed on a suspended imprisonment sentence in August of 2008, so a little less than two months after the imposition of that suspended imprisonment sentence you have committed these violent offences. Those offences were not in their nature violent offences; they were breaches of police orders but, again, police orders arise out of the fact that there has been violence or threats of violence or misconduct on your part to such a nature that you have to be excluded. So, again, although those were not violence related offences, they do reflect violent personality or violent tendencies.[18]
[18] Tender Bundle at 299–300; see also transcript of previous hearing, Tender Bundle at 683–6.
In assessing the Applicant’s history of offending and other conduct against the considerations identified in para 13.1.1(1) of Direction 79, I observe that:
(a)(paragraph 13.1.1(1)(a)): the Applicant has multiple convictions for crimes of violence which must be viewed very seriously. I am concerned that the most serious of these convictions involved the use of weapons– a samurai sword and a Stanley knife which obviously have the potential to, and in one case did, inflict serious injuries on the victims;
(b)(paragraph 13.1.1(1)(b)): the most serious of the Applicant’s violent offences, the slashing of Ms X with the Stanley knife, was against a woman. I also note that at least some of the Applicant’s breaches of police restraining orders were in respect of the Applicant’s former partner;
(c)(paragraph 13.1.1(1)(c)): as far as I am aware, none of the Applicant’s offences was committed against vulnerable members of the community or officials carrying out their duties. I note the charges for failing to provide personal details upon request by police and resisting arrest do not come within para 13.1.1(1)(c) (BDQ19 at [135]);
(d)(paragraph 13.1.1(1)(d)): the longest term of imprisonment to which the Applicant has been sentenced is the 14 months for the unlawful wounding in circumstances of aggravation. The Applicant has also been sentenced on multiple occasions to terms of imprisonment (49 months in all– some suspended and some concurrent). The next longest term was for seven months (suspended).
(e)(paragraph 13.1.1(1)(e)); the Applicant’s offending has been frequent. He has been convicted of 42 offences over a period of nine years. There is, however, a period between December 2008 and August 2012 during which the Applicant was not convicted of any offence. The last offences of which the Applicant was convicted (except for a conviction for possession of methylamphetamine on 31 January 2014), namely the woundings in circumstances of aggravation, were the most serious of the Applicant’s offences, so in that sense there is a trend of increasing seriousness.
(f)(paragraph 13.1.1(1)((f)): the Applicant has 42 convictions over nine years. The sheer number of convictions must be taken to have a cumulative effect.
(g)(paragraphs 13.1.1(1)(g), 13.1.1(1)(h) and 13.1.1(1)(i)): these considerations are not applicable in the present case.
Overall, the nature and seriousness of the Applicant’s criminal offending and other conduct, taking into account the factors identified in para 13.1.1(1), weigh against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[19] (CZCV) summarised the task for the Tribunal as follows (at [56]):
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
.
[19] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[20] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[20] [2016] FCA 1181.
I agree with and adopt the approach taken in the above cases.
Nature of harm to individuals or the Australian community (para 13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal and other behaviour which he has in the past, is obvious and serious. The consequences of a repeat of the violent behaviour for which the Applicant was convicted on individuals who might be victims of such behaviour, as well as to the victims’ families and loved ones, and the broader community, are self-evident.
The Applicant has also shown a disregard for the law by his repeated breaches of bail conditions and breaches of restraining orders. Similarly, his repeated breaches of what could be described as public order laws (unlawful damage, trespass, disorderly behaviour, resisting arrest, refusing to provide details, traffic offences and minor drug offences) demonstrate a contempt for, or inability to conform to, the basic rules which govern our society. While the impact of this sort of offending on identifiable victims might not be considered to be particularly significant, the knock-on effects for the broader community because of the additional law enforcement, administration costs and potentially healthcare costs which this sort of offending causes, should not be ignored.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 13.1.2(1)(b))
The Applicant submits that he is not a risk of reoffending because:
(a)It has not been over six years since he was imprisoned and over five years since he was placed in immigration detention.
(b)He has used his time in prison and immigration detention productively and has reformed his attitudes through:
(i)316-hour, violent offenders program which has taught him better methods for handling confrontation, like refusing to engage and removing himself from the situation. His participation in and engagement with that course improved over time, demonstrating his commitment to self-improvement; and
(ii)in immigration detention the Applicant has completed a drug and alcohol course, an anger management course, and a course regarding conflict and violence in relationships.
(c)The Applicant is capable of making difficult changes in his life when he is committed to doing so, as demonstrated by his decision to quit oxycontin, a highly addictive opioid medication, after many years.
(d)The Applicant has demonstrated his ability to refrain from violence in immigration detention.
(e)In relation to claims that reports indicate that the Applicant’s behaviour while in detention shows that he has ongoing behavioural problems or violent tendencies, the Applicant accepts that he used offensive language towards Serco officers on a number of occasions and has also engaged in self-harm, the reports made by Serco officers are “merely unproven allegations”.[21] His conduct in detention must be understood in light of the fact that he has been detained in immigration detention for an extended and indefinite period and that he has diagnosed mental health conditions that are associated with the extreme stress of prolonged detention.
(f)None of the claimed incidents in detention has involve the applicant injuring anyone other than himself. He has not been charged with any offences while in detention.
(g)Recent reports of the Applicant’s behaviour in detention have been positive.[22] Also the Australian Border Force presented the Applicant with a certificate in December 2016 attesting to his having demonstrated “on-going positive behaviours in immigration detention” and as someone who has “contributed to the good order of the Christmas Island Detention Centre”.
(h)Key factors which contributed to the Applicant’s offending are now greatly reduced or eliminated. He has much guilt and remorse for his past actions and has learnt non-violent ways to deal with difficult situations. The Applicant accepts responsibility for his past actions and accepts that what he did was wrong. He has no thoughts of harming anyone in the future or any intent to recommit any further offences.
(i)The Applicant states that he plans to stay away from social circles involving drugs and lead a normal, peaceful life and that he intends to work and that he still has contacts who will help him to find work (for example, the Chairperson of the Australian Hazara Afghan Community of Western Australia).
[21] Applicant’s SFIC para 49(b).
[22] Individual Management Plan Review of 9 February 2020.
The Respondent argues that the Applicant is a high risk of reoffending because:[23]
(a)The Applicant has committed over 40 offences ranging from driving offences and disorderly behaviour to possession of drugs, assault and unlawful wounding. He has also failed, on a number of occasions, to comply with police orders, bail conditions and suspended sentences. This history of offending is significant and covers most of the Applicant’s period of residence in Australia.
(b)He has a demonstrated propensity for violence. Magistrate Roth in sentencing the Applicant for the unlawful wounding offences observed that “this sort of conduct is something which you are well accustomed to and which you are quite prepared to turn to in circumstances where you consider that the use of violence is appropriate”.[24]
(c)While the Applicant has attended courses in prison including Violent Offending, Understanding Anger and Relationship/Conflict, he does not appear to have formally addressed his underlying aggression or behavioural issues. The Violent Offender Treatment Program completion report reports what can only be regarded as modest gains following an initial unsatisfactory participation and shows that the Applicant has unmet treatment needs.[25]
(d)The Applicant’s behaviour in immigration detention has been poor. He has been involved in a number of incidents whilst in detention and is recorded as being aggressive and abusive towards staff.
(e)To the extent that the Applicant claims his alcohol or drug habits contributed to his offending, there is no evidence of any effective rehabilitation in this regard aside from one short course titled “Drug and Alcohol” in December 2016. Any claimed abstinence has not been tested in the community.
(f)The Applicant’s repeat offending and failure to comply with judicial orders shows a significant disregard for the law and indicates that he presents as a real risk of reoffending and thus the propensity of relapsing into criminal activity.
[23] Respondent’s SFIC in respect of the first Tribunal hearing para 28.
[24] Tender Bundle at 299.
[25] Ibid at 540–9.
Expert reports
Reports were provided by:
(a)Dr Kym Jenkins, consultant psychiatrist, dated 17 July 2018;[26]
(b)Dr Jenkins dated 24 August 2020;[27]
(c)Dr Jillian Spencer, psychiatrist, dated 5 September 2020;[28]
(d)Dr Jenkins dated 15 September 2020;[29]
(e)Dr Gosia Wojnarowska, forensic consultant psychiatrist, dated 23 September 2020;[30]
(f)Dr Wojnarowska dated 3 November 2020 (risk assessment);[31]
(g)Carla Lechner, clinical psychologist, dated 27 November 2020;[32] and
(h)Dr Jenkins dated 13 December 2020.[33]
[26] Tender Bundle at 477–481.
[27] Ibid at 915–921.
[28] Ibid at 922–930.
[29] Ibid at 963–7.
[30] Ibid at 931–940.
[31] Ibid at 941–8.
[32] Ibid at 950–962.
[33] Ibid at 968–972.
Dr Jenkins
Report dated 17 July 2018
Dr Jenkins reported that she interviewed the Applicant on two occasions by telephone (the Applicant was on Christmas Island). She reported that the Applicant had a good command of English and appeared to understand and be able to answer Dr Jenkins’ questions.
The Applicant had been in a de facto relationship with an Australian woman since 2004 with whom he has four children, all living in Perth. He was concerned for his children. He had been able to see them twice a week while he was in prison but since being shifted to Christmas Island had not seen the children.
He admitted to drinking about a six-pack of beer plus two to three whiskeys a couple of times a month and using marijuana when in Afghanistan but denied using drugs since coming to Australia. He does not regard marijuana as a drug. He reported symptoms of depression.
Dr Jenkins’ diagnosis was major depression with significant anxiety and some pose-traumatic stress disorder symptoms. In her opinion, the Applicant’s “mental health problems have not only been exacerbated by his time in detention but have been caused by it”.[34] He showed remorse for his past offending.
[34] Tender Bundle at 481.
Dr Jenkins’ view was that, wherever the Applicant was residing, he would require further assessment and treatment for his mental needs. His mental health issues were unlikely to be short-lived and Dr Jenkins advised “most strongly that he needs ongoing psychiatric care”.
Report dated 24 August 2020
Dr Jenkins conducted the interview with the Applicant by telephone on 20 August 2020. The Applicant was in Yongah Hill Immigration Detention Centre. The interview lasted about one hour.
Dr Jenkins reports the Applicant as telling her that:
(a)He has three sisters and one brother. He is in the middle of the sibship. He says some of his family are in Kabul and Pakistan. He has spoken recently to one of his sisters whose husband died of a heart attack five to six years ago.
(b)He said he came to Australia to avoid the war against the Taliban. He says his father was a war lord who had sustained many injuries, including a grenade blowing off his hand. The Applicant believes he would be killed if he were to go back to Afghanistan because he is Shia even though he is a non-practicing Muslim. He feels he is not a good Muslim because he likes going to parties and drinking alcohol. He still has two sisters who are in the military back in Afghanistan.
(c)He met his partner in Perth in 2002. He does not know if the relationship is still continuing or not, however, she is the mother of all four of his children.
(d)The Applicant expresses much guilt and remorse about his past forensic history and has no thoughts of harming anyone in the future.
Dr Jenkins’ diagnosis was major depression. Her prognosis was that:
Major depression is a treatable condition.
It requires biological treatments, psychological treatments and social treatments.
[the Applicant] needs ongoing psychiatric assessment and a review of any medications he is taking in order to find the optimal ones for him. He needs psychological support in the way of counselling and psychotherapy to help him address his anxiety, and fears. [The Applicant] would benefit from a full neuropsychological assessment to evaluate his apparent cognitive deficits .[35]
[35] Tender Bundle at 920.
Report dated 15 September 2020
Dr Jenkins referred to her previous reports and to the fact that she had been provided with Serco records including risk assessments and incident reports, IHMS records and other records relating to the Applicant’s detention. She noted conflicts between the IHMS records and the Serco records relating to incidents of self-harm.
ANNEXURE
| Offence Date | Offence | Court | Result Date | Result |
| Unknown | Disorderly conduct | Perth Court of Petty Sessions | 13 January 2005 | $200 fine |
| 1 October 2004 | Breach of bail | Perth Magistrates Court | 13 May 2005 | $500 fine |
| Resist arrest | Perth Magistrates Court | 13 May 2005 | $500 fine | |
| Excess 0.08%; >=0.11% but <0.12% | Perth Magistrates Court | 13 May 2005 | $800 fine; motor driver’s licence disqualified for 8 months | |
| Fail to stop when called upon | Perth Magistrates Court | 13 May 2005 | $1000 fine; motor driver’s licence disqualified for 6 months (concurrent) | |
| No Motor Drivers Licence | Perth Magistrates Court | 13 May 2005 | $300 fine | |
| Unknown | Assault occasioning actual bodily harm | Midland Magistrates Court | 23 November 2005 | $3,000 fine |
| Assault occasioning actual bodily harm | Midland Magistrates Court | 23 November 2005 | $3,000 fine | |
| 04 March 2005 | Possessed a controlled weapon | Midland Magistrates Court | 23 November 2005 | $100 fine |
| 17 June 2005 | No motor drivers licence - under suspension | Gingin Magistrates Court | 27 July 2005 | $1,000 fine; motor driver’s licence disqualified for 12 months (cumulative) |
| No motor drivers licence - under suspension | Gingin Magistrates Court | 27 July 2005 | $1,000 fine; motor driver’s licence disqualified for 12 months (cumulative) | |
| No motor drivers licence - under suspension | Gingin Magistrates Court | 27 July 2005 | $500 fine; motor driver’s licence disqualified for 9 months (cumulative) to be served concurrently | |
| 28 September 2005 | No motor drivers licence - under suspension | Midland Magistrates Court | 8 December 2006 | 1 month imprisonment (handed down 22.2.07); motor driver’s licence disqualified for 9 months (concurrent) |
| Exceed the speed limit by 10–19 kilometres per hour | Midland Magistrates Court | 8 December 2006 | $100 fine | |
| 21 February 2006 | Fail to comply with request to give police personal details | Joondalup Magistrates Court | 23 June 2006 | $200 fine |
| Left a public passenger transport service without a valid ticket | Joondalup Magistrates Court | 23 June 2006 | $50 fine | |
| Possess a prohibited drug | Joondalup Magistrates Court | 24 February 2006 | $400 fine | |
| Disorderly behaviour in public place | Northam Magistrates Court | 24 April 2006 | $600 fine (global) | |
| 17 April 2006 | No motor drivers licence - under suspension | Northam Magistrates Court | 24 April 2006 | Five months imprisonment; motor driver’s licence disqualified for 12 months (cumulative) |
| Unlicensed vehicle | Northam Magistrates Court | 24 April 2006 | $600 fine | |
| Breach of suspended imprisonment sentence | Northam Magistrates Court | 24 April 2006 | Seven months imprisonment (suspended 12 months to imprisonment for five months) | |
| 5 June 2006 | Common assault | Midland Magistrates Court | 8 December 2006 | Two months imprisonment (cumulative from 27 November 2006) |
| 5 June 2006 | Unlawful damage | Midland Magistrates Court | 8 December 2006 | One month imprisonment (concurrent from 27 November 2006) |
| 9 June 2006 | Breach of protective bail conditions | Midland Magistrates Court | 8 December 2006 | One month imprisonment (cumulative from 27 November 2006) |
| 09 June 2006 | Trespass | Midland Magistrates Court | 8 December 2006 | One month imprisonment (concurrent from 27 November 2006) |
| 10 July 2006 | Trespass | Midland Magistrates Court | 8 December 2006 | One month imprisonment (concurrent from 27 November 2006) |
| 13 August 2006 | Breach of protective bail conditions | Midland Magistrates Court | 8 December 2006 | One month imprisonment (cumulative from 27 November 2006) |
| 21 July 2006 | Breach of protective bail conditions | Midland Magistrates Court | 8 December 2006 | One month imprisonment (cumulative from 27 November 2006) |
| 13 August 2006 | Carried an article with intent to injure (disable) | Perth Magistrates Court | 20 December 2006 | $500 fine |
| 02 September 2006 | Disorderly behaviour in public place | Perth Magistrates Court | 20 December 2006 | $800 fine |
| 19 September 2006 | Breach of police order | Midland Magistrates Court | 8 December 2006 | One month imprisonment (concurrent from 27 November 2006) |
| Common assault | Midland Magistrates Court | 8 December 2006 | two months imprisonment (cumulative from 27 November 2006) | |
| 21 September 2006 | Disorderly behaviour in public place | Midland Magistrates Court | 8 December 2006 | $500 fine |
| 27 January 2007 | Breach of police order | Midland Magistrates Court | 22 February 2007 | One month imprisonment (cumulative from 27 November 2006) |
| 16 October 2008 | No authority to drive - suspended | Midland Magistrates Court | 24 December 2008 | $1,400; motor driver’s licence disqualified for 12 months (cumulative) |
| 11 November 2008 | Possess a smoking utensil | Fremantle Magistrates Court | 19 December 2008 | $300 fine |
| 1 July 2012 | Breach of police order | Northam Magistrates Court | 27 August 2012 | One month suspended imprisonment order (cumulative) suspended for 12 months from 27 August 2012 |
| 2 July 2012 | Breach of police order | Northam Magistrates Court | 27 August 2012 | Four month suspended imprisonment order (cumulative) suspended for 12 months from 27 August 2012 |
| Breach of police order | Northam Magistrates Court | 27 August 2012 | Two month suspended imprisonment order (cumulative) suspended for 12 months from 27 August 2012 | |
| 19 October 2012 | Unlawfully wounded in circumstances of aggravation | Northam Magistrates Court | 15 January 2014 | Two months imprisonment (cumulative) from 15 January 2014 |
| Unlawfully wounded in circumstances of aggravation | Northam Magistrates Court | 15 January 2014 | 14 months imprisonment (cumulative) from 15 January 2014 | |
| 19 June 2013 | Possess a prohibited drug (Methylamphetamine) | Midland Magistrates Court | 31 January 2014 | One month imprisonment (concurrent) from 31 January 2014 |
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