RWHZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 139
•2 February 2022
RWHZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 139 (2 February 2022)
Division:GENERAL DIVISION
File Number(s): 2019/8262
Re:RWHZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:2 February 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 November 2019 (notified to the Applicant on 4 December 2019).
.............................[SGD]..............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Woman at Risk (Class BA) (Subclass 204) visa - where Applicant does not pass the character test – substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – where Applicant a citizen of Croatia – international non-refoulement obligations – decision under review affirmed
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 336
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Table of Contents
DECISION
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
LEGISLATIVE BACKGROUND
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position - written material
The Respondent’s position - written material
The Applicant’s oral evidence
Evidence of Ms KT
Evidence of Chaplain JB
Evidence of Ms WD
Conclusions about risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Alleged family violence incident
18 December 2017
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The parties’ respective contentions
The Applicant’s Oral Evidence
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Conclusion: Primary Consideration 3
Primary Consideration 4: Expectations of the Australian Community
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(a) International non-refoulement obligations
Law
The Applicant’s claims - written
The Applicant’s claims – oral
A Contention from the Respondent
The Applicant’s stated fears of harm: analysis
Findings and Allocation of Weight to Other Consideration (a)
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
2 February 2022
INTRODUCTION AND BACKGROUND
RWHZ (“the Applicant”) is a 40-year-old male, born in Benkovac, a city within the former Yugoslavia, now within the Republic of Croatia. He arrived in Australia with his mother and brother in August 2001 at the age of 20.[1]
[1] G10, page 62.
On 2 August 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[2] On 27 August 2018, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 29 November 2019[4], the Respondent decided not to revoke the cancellation.[5]
[2] G2, page 13, para [4].
[3] Ibid, para [3].
[4] Notified to the Applicant by email undercover of a letter dated 4 December 2019 from the Respondent’s department containing the non-revocation decision under review.
[5] G2, page 12.
This matter has been previously ventilated before the Tribunal. That previous hearing culminated in a decision from this Tribunal on 21 February 2020.[6] The Tribunal’s decision was to remit the matter to the Respondent, with a direction that, the Respondent make further enquiries about certain matters. The Respondent appealed. On 8 October 2020, the Federal Court of Australia remitted the matter to this Tribunal for re-hearing.[7]
[6] Ibid, p2, para [4]; see also R2, TB19, pages [716]-[883] for the transcript of this earlier AAT hearing; see also R2, TB19, pages 716-783.
[7] R1, page 1, para [3].
The remittal hearing was held before me in this Tribunal on 6 July 2021, 7 July 2021, and 16 September 2021. The hearing received both written and oral evidence. The written evidence was particularised in an agreed Exhibit List, a true and correct copy off which is attached hereto and marked “Annexure A”. The hearing (before me) received oral evidence from: (1) the Applicant; (2) Ms KT (manager of a child protection response team in New South Wales); (3) Chaplain JB; and (4) Ms WD (acting team leader for the adult drug court counselling team).
LEGISLATIVE BACKGROUND
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]
[8] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9]
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 27 June 2005, the Applicant was sentenced to a term of imprisonment of 12 months.[10] In addition, on 16 May 2018, he was sentenced to four terms of imprisonment to be served concurrently which comprised a totality of custodial terms in the order of 21 months.[11] Nothing turns on whether the Applicant served a singular or aggregate amount of 12 months in actual custody. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[12]
[10] G4, page 31; suspended on the basis of the Applicant entering into a bond for a period of 12 months conditional upon him ‘(1) enter and remain in the Adele House Inc Program and (2) to go straight to the Adele House from custody’.
[11] Ibid, page 27.
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
In the Statement of Facts, Issues and Contentions (“SFIC”) filed on behalf of the Applicant there is a concession that he ‘…has been convicted of a number of criminal offences…’.[13] In that SFIC there is no contention in support of the Applicant not failing the character test and, instead, the commentary in that SFIC records the only issue before the Tribunal to be whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the delegate’s refusal to set aside the mandatory cancellation of the visa.
[13] A1, page 1, para [5].
Further, in written closing submissions filled on behalf of the Applicant, the following concession is made: ‘…It is not in dispute that [the Applicant] does not pass the character test.’[14] I am therefore of the view (and I find) that the Applicant has a “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[14] A23, page 2, para [7].
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[15] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
[15] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[16]
[16] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide the framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (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.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[17]
[17] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[18]
[18] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions.
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. This Applicant has compiled a very comprehensive offending history in Australia. The offending history runs for seven pages of single-spaced text.[19] There can be no cavilling with the proposition that this Applicant has consumed more than his fair share of Australia’s law enforcement and judicial sentencing apparatus.
[19] G4, pages 26-32.
With reference to its chronological length, it commences (in terms of sentencing episodes) on 11 August 2003 and runs to 9 July 2018 – a period spanning 15 years. In terms of sentencing episodes, the Applicant has found himself before lawful authority for sentencing for his crimes in this country on some 29 occasions. In terms of offences dealt with by the courts during those 29 sentencing episodes, the criminal history records entries totalling some 99 separate offences, resulting in 90 convictions – be they dealt with either as: (1) individual offences; (2) earlier offences ‘called up’ consequent upon subsequent offending; and (3) offences caused to be dealt with administratively such as, for example, instances where the Applicant initially filed an appeal against a first-instance sentence but then withdrew that appeal. Even if one ignores the categories numbered (2) and (3) in this paragraph, the sheer size and scope of the Applicant’s offending history is little other than extraordinary.
Paragraph 8.1.1(1)(a)(i)
The Applicant has committed offences which are viewed ‘very seriously’ by the Australian Government and the Australian community for the purposes of this sub-paragraph. He has committed crimes of violence against his brother (on 16 March 2003, sentenced at the Liverpool Local Court on 24 October 2003). While the sentence technically comprised a ‘dismissal’ of the relevant offence, it nevertheless requires the offence to be proven in circumstances where the sentencing court does not elect to record a conviction.[20]
[20] Note: This dismissal procedure refers to Section 10 of the Crimes (Sentencing Procedure) Act 1999. A Section 10 dismissal allows the sentencing Court to find an offender guilty of an offence but discharge the matter without recording a conviction.
The Applicant’s offending history also includes a conviction for assault occasioning actual bodily harm for which he was sentenced to a term of six months’ imprisonment.[21] The circumstances of the assault involved the Applicant physically attacking a ‘client’ of his then defacto spouse who was working as a sex-worker. The circumstances of the assault involved the Applicant aggressively and violently confronting and dealing with the client. It is described in the material thus:
[21] G4, page 28.
“…
8. The accused then barged through the door. As the door swung open, it clipped the victim on the right of the rib cage. The accused walked in through the door and yelled ’What is going on here’ and screaming ‘I bet you have a girlfriend’.
9. The victim saw a black whip in his right hand. The accused whipped the whip on the table and then whipped the victim on the right side of my rib cage. The victim felt a sting and was scared. A photo was taken of a reddish mark of the accused’s right side.
10. The accused then said ‘I bet you have a girlfriend. Where are you from?’. He then pressed the whip against the victim’s shoulder blades forcing him up against a wall and yelled “Pay her. Give her your money’. He then whipped the table again and yelled ‘I bet you’ve got a girlfriend’.
11. The victim reached inside his pocket while [the Applicant’s abovementioned then-defacto spouse][22] yelled ‘What are you doing, What is this?’ The victim took out four $50 notes from his wallet and threw them onto the table. He then ran from out the back door and attended Coffs Police Station.
[22] Later in these reasons referred to as ‘Ms GR’
…”[23]
[23] R2, TB8, page 228.
There can be no finding other than one that the violent crimes of this Applicant must, pursuant to this sub-paragraph 8.1.1(1)(a)(i) be found to be very serious.
Paragraph 8.1.1(1)(a)(ii)
The criminal history records convictions for crimes of a violent nature against women, and, accordingly, the provisions of this specific sub-paragraph are engaged. Those instances comprise:
(a)With further reference to the above incident on 16 March 2003, circumstances of that incident involved the applicant violently attacking his brother and threatened his mother.[24] The relevant conviction and sentence were imposed on 24 October 2003 at the Liverpool Local Court;
[24] R2, TB1, page 7.
(b)On 2 June 2014, the Applicant was convicted on one count of ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’. In essence, the conviction arose from conduct exhibited by the Applicant towards his former girlfriend involving him standing outside her home and sending her threatening text messages. It suffices to quote just the following short part of the text messaging quoted in the relevant NSW Police Facts Sheet:
“…LOOK I‘M HERE OPEN THE DOOR PLEASE I WILL WAIT OR COME OUTSIDE FRONT HOUSE. HIS CAR IT’S JUST ACROSS YOUR DRIVEWAY IF HE IS WITH YOU THERE, I WILL KILL YOU BOTH...”[25]
[25] R2, TB6, page 178
(c)On 7 September 2016, the Applicant was sentenced to three months’ imprisonment for maliciously damaging the property of his then partner, Ms GR. This is the above-mentioned incident that involved the Applicant confronting Ms GR about her work as a sex worker and then assaulting one of Ms GR’s clients. The offending against Ms GR involved the Applicant throwing a bedside table, causing damage to that item and to tiles on which it landed after he threw it.[26] When interviewed by police, it was noted that the Applicant had told Ms GR’s daughter that the Applicant would ‘kill her [i.e. Ms GR] and fuck her dead’.[27]
[26] R2, TB8, page 253.
[27] Ibid, page 232.
(d)On 19 December 2017, an apprehended violence order (‘AVO’) was imposed on the Applicant consequent upon the circumstances of a past domestic relationship he conducted with Ms D.[28] It is correct to find that the Applicant dealt with this AVO significantly more in the breach than in the observance. He breached it on 17 and 20 February 2018 by being in Ms D’s presence contrary to the terms of the AVO.[29] On 20 February 2018, at the Maitland Local Court he was sentenced for that breach. He breached the AVO again barely two weeks later on 4 March 2018 by again being in Ms D’s presence contrary to the terms of the AVO.[30] For this further breach, an aggregate term of 8 months’ imprisonment was imposed by the Central Local Court on 2 May 2018. There followed a further breach of this AVO because barely three days after the immediately proceeding breach of the AVO, the Applicant drove from Sydney to Port Macquarie with Ms D. On 16 May 2018, the Port Macquarie Local Court imposed a four-month term of imprisonment for this further breach.
[28] R2, TB10, page 273
[29] Ibid, pages 273-275
[30] Ibid, pages 283-284.
Taken in total, the four abovementioned instances of intimidation or violent offending against women – when analysed through the lens of paragraph 8.1.1 (1)(a)(ii) – clearly and obviously militate in favour of a finding that the Applicant’s offending has indeed been of a very serious nature.
Paragraph 8.1.1(1)(a)(iii)
An initial observation is that this specific sub-paragraph contemplates the inclusion of acts of family violence by an Applicant ‘…regardless of whether there is a conviction for an offence, or a sentence imposed...’.
The material contains reference to an incident between the Applicant and the abovementioned Ms D that took place on 18 December 2017.[31] He attended her residence and attempted to find certain medication. The relevant NSW Police Facts Sheet then records the following conduct by the Applicant:
[31] R2, TB7, pages 218-220.
“…Upon the victim [i.e. Ms D] approaching the front door, the accused [i.e. the Applicant] walked downstairs and pulled the victim through the front door by her hair where she ended up on the ground. The accused then proceeded to punch and kick the victim whilst she was on the ground. The victim managed to get up and went back outside. The accused went back upstairs and started to throw the victim’s belongings over the balcony. The accused returned downstairs and began to yell at the victim saying, ‘I’m going to kill you for putting me on show’…”[32]
[32] Ibid, pages 218-219.
As per the abovementioned NSW Police Facts Sheet, this particular incident was allocated police reference number H288863294. Further in the material, there is a document with the heading “Court Orders” which is signed by the relevant Magistrate and is dated 6 April 2018.[33] This document notes that the Applicant was ‘Not Convicted’ and that the relevant charge was ‘Withdrawn…Dismissed’. Even in the absence of a conviction for this conduct, the language of paragraph 8.1.1(1)(a)(iii) nevertheless permits this conduct to be viewed very seriously by the Tribunal regardless of whether any conviction or sentence was imposed for that conduct.
[33] Ibid, page 221.
Accordingly, I am of the view (and I find) that this conduct of the Applicant attracts the operative effect of this sub-paragraph such as to militate in favour of a finding that the totality of his offending conduct has been of a very serious nature.
Paragraph 8.1.1(1)(b)(i)
The next component of paragraph 8.1.1(1) of the direction refers to the range of conduct referable to an Applicant that may be regarded as ‘serious’. The first category of an Applicant’s such conduct involves an enquiry into whether it has caused a person to enter into or being party to a forced marriage, regardless of whether there is a conviction for such an offence or whether a sentence is imposed for it.
To the best of my understanding of the material, I cannot find any reference to any such conduct referable to this Applicant. This paragraph 8.1.1(1)(b)(i) is not relevant.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph involves an enquiry into whether the Applicant has committed crimes against either vulnerable members of the community or against government representatives or officials in the performance of their duties.
The offending history contains at least two entries that engage the language of this sub-paragraph. First, on 2 June 2014, at the Kogarah Local Court, the Applicant was convicted on one count of “Resist officer in execution of duty-T2”[34] for which a s 9 bond for an operative period of two years was imposed.[35]
[34] Ibid, TB6, page 173.
[35] Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This section empowers a court, following the conviction of an offender, to direct the offender to enter into a bond to be of good behaviour for a specified period. If an offender breached a condition of the bond, they could be re-sentenced for the original offence.
Second, on 16 May 2018, at the Port Macquarie Local Court, the Applicant was convicted on one count of “Prevent sample taker from taking of blood sample - 1st off”.[36] For this offence, the Applicant received a custodial term of imprisonment of seven months with a non-parole period of four months. In addition, he was disqualified from driving a motor vehicle for 18 months.
[36] R2, TB11, page 289.
I am of the view (and I find) that the Applicant’s abovementioned convictions arising from unlawful conduct against government representatives or officials in the performance of their duties is such as to militate in favour of a finding that this aspect of his offending can, at the least, be found to be serious.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph captures as conduct to be regarded as serious “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion”. The Respondent has not propounded this component of the Direction in its written material. I have also checked the Transcript. There is nothing propounded by either party about this specific sub-paragraph in any of the oral submissions. Accordingly, this sub-paragraph is not relevant.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph makes reference to a crime committed by a non-citizen while in immigration detention. It directs a decision-maker to regard that conduct as serious. In its SFIC the Respondent has helpfully identified at least one court outcome relating to an offence committed by the Applicant while in immigration detention.[37] On 23 May 2019, at the Liverpool Local Court, the Applicant was convicted of one count of “Affray-T1” for which he received a custodial term of imprisonment of 12 months with a nine-month non-parole period.[38] It is worth quoting the sentencing remarks of the learned sentencing Magistrate;
[37] R1, page 8, para [13].
[38] G31, page 248, lines 3-6.
“…HIS HONOUR: The three prisoners have all been convicted, two of which
have pleaded guilty, to assault occasioning actual bodily harm; [Offender P] and
[Offender T] and [the Applicant] was convicted after a hearing of an offence of affray
all involving the events of 25 October 2018 at the Villawood Immigration
Detention Centre where the victim was set upon by what can only be said to
be a cowardly gang picking on one small person.[Offender P] appeared to be the ringleader of the gang inviting the victim inside.
The victim was outside at the time. He asked him to come with him. The
victim had no suspicions at that point but when [Offender P] led him with
another offender in front, then the victim followed by two other offenders
behind him and he was led into a dormitory which was not his own he started
to panic. At that point in time he was pushed into the room. He was in the
room with four of the offenders, including [Offender P] and [Offender T], who all set
upon him according to the statement of facts tendered on the plea.He was kicked and punched, he was knocked to the ground, he was punched
at least 15 times to the head and body and he was kicked at least ten times to the head and body. This was not a person that was involved in anything that
remotely resembled a fair fight. I can see the three offenders in my Court
today each of which are of much bigger stature than the victim.The victim had been identified as being charged with sexual assault without
consent whilst he was an Uber driver. It made the news and for some reason
these offenders decided to hand out their own summary justice to him despite
the fact that he was only charged at that point in time and there had been no
proceedings convicting him of any offence. He was a little bit like them; he
was in detention but nothing to finality had been decided, yet they decided to
set upon him and I refer to the cowardly manner because he was
outnumbered, he was outsized and the violence included kicking him whilst he
was down. He was also choked to the point of nearly in his view feeling that
he could be killed and in fact he was threatened by one of the offenders that
they would kill him.Fortunately, he was able to escape and that is when he ran out of the room into
the hallway. The facts set all this out in detail and he was struck by [the Applicant]
once to the face. He then went to the ground and others joined in to kick and
stomp on him whilst again he was prone on the ground trying to protect
himself. This is a disgusting and deplorable form of violence. There is a very old saying that when the boot goes in, you go in…”[39][39]Ibid, page 245 (lines 34-50) and page 246 (lines 1-23).
42.It appears the Applicant appealed this sentence to the District Court of New South Wales and on 21 October 2019 the original sentence imposed upon him was varied such that the head custodial term was reduced from 12 to 10 months and the non-parole period was reduced from nine months to seven months.[40] To my mind, nothing turns on this for the purposes of applying the language of paragraph 8.1.1(1)(b)(iv) of the direction. It can be readily utilised to support a finding that the Applicant’s offending while in immigration detention militates a further finding that the totality of his offending conduct has been at least of a serious nature.
[40] R1, page 8, para [13]; see also R2, TB19, page 733, lines 6-9.
Paragraph 8.1.1(1)(c)
In applying the language of this particular sub-paragraph, I am precluded from taking into account the sentences imposed on the Applicant for (1) his violent offending against women,[41] (2) any sentence he received for acts of family violence,[42] and (3) any sentence relating to conduct whereby the Applicant caused a person to enter into (or being party to) a forced marriage.[43]
[41] Paragraph 8.1.1(1)(a)(ii)
[42] Paragraph 8.1.1(1)(a)(iii)
[43] Paragraph 8.1.1(1)(b)(i)
44.It is well established that terms of imprisonment are the last resort in the sentencing hierarchy and a sentencing court’s resort to the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offences being punished.[44] I have earlier referred to the approximate 99 number of entries in the Applicant’s offending history. The total number of entries relating to convictions for crimes of violence against women and/or acts of family violence amounts to approximately eight entries.
[44] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 [20].
45.The overwhelming number of remaining sentences appearing in the Applicant’s offending history do not relate to violent offending against women nor convictions for family violence, nor any convictions for him causing or being a party to a forced marriage. Put another way, virtually nine-tenths of the entries in his offending history relate to convictions and sentences for offending outside the three specific categories of offending precluded by this sub-paragraph.
46.There can be no other finding other than that the sentences imposed by the courts for the crimes of this Applicant across his almost decade and a half long period of offending is militative of a finding that his offending has been of a very serious nature.
Paragraph 8.1.1(1)(d)
47.This sub-paragraph compels an enquiry into the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. First, with reference to the frequency of the offending, I have earlier found that this Applicant’s criminal history (in terms of sentencing episodes) commenced in August 2003 and runs until approximately mid-2019, a period well exceeding 15 years. He has found himself before lawful authority for sentencing on some 30 occasions. The courts have dealt with some 101 separate offences, be they individual offences, ‘called-up’ offences and offences dealt with by way of appeal after initial sentencing at first instance, including instances where an appeal was withdrawn.
48.To my mind, the frequency of the Applicant’s offending can be assessed in one of two ways. He has been in Australia for something like two decades. He has found himself before lawful authority for sentencing on something like one and a half occasions for each year he has been here. The just over 100 entries in his offending history equates to five offences that have been dealt with by the courts for every year he has been here. The other way of assessing the frequency is by applying it across the length of the offending history. It runs from approximately mid-2003 to mid-2019 – a period of 16 years. In terms of sentencing episodes each of those 16 years have, on average, seen him before lawful authority on over five occasions per year. In terms of actual offences committed by the Applicant (or dealt with by the courts) that 16-year period has seen the Applicant dealt with by the courts for his offending on approximately six occasions per annum. There can be no finding other than that this Applicant’s offending has been of a frequent nature.
49.Second, is there an increasing trend of seriousness? Most often, offending histories tell a story of an offender whose early phase of offending has involved low-level summary or misdemeanour-type of offending that was punished by non-custodial terms such as the imposition of bonds and fines. I will repeat my observation that this Applicant’s history runs from approximately mid-2003 up until mid-2019. As early as 2004, the Applicant was receiving custodial terms for his offending. None of that offending so punished could be viewed as ‘minor’.
50.From its earliest phases, the offending rapidly escalated into very serious offending against the property of others and physical offending against individual victims. Running parallel and consistently throughout the offending history is a stubborn refusal to observe and submit to the requirements of lawful authority be they repeated failures to appear in accordance with a bail undertaking and/or repeated failures to observe the terms of an AVO. The impact of illicit drugs and alcohol on his demeanour has been such as to: (1) cause him to have multiple offences of operating a vehicle while under the influence of alcohol or illicit drugs; and (2) cause him to have few or no boundaries in relation to the property of others albeit in the form of an individual’s own property or trading stock kept by a retail business.
51.There can be no finding other than that this Applicant’s offending has been serious virtually from its outset and has maintained an unacceptable level of seriousness throughout its duration. My respective findings about the frequency of the offending and the very early trend of seriousness inherent in the offending history and the maintenance of that level of seriousness throughout the history strongly militates in favour of a finding that the totality of this Applicant’s unlawful conduct in this country has been of a very serious nature.
Paragraph 8.1.1(1)(e)
52.It is possible to discern a number of cumulative affects resulting from this Applicant’s offending. First, he cannot cavil with a finding that the totality of his offending history is very strongly suggestive of a failure to display any measure of respect for lawful authority. He either does not understand, or refuses to accept, the lawful authority represented by: (1) the imposition of a bond or fine in lieu of actual custody; (2) the imposition of a suspended sentence; (3) the imposition of an AVO compelling him not to act against the interests of an aggrieved person named in that order; (4) the requirement to present himself in a court or other venue pursuant to a bail undertaking; (5) the laws and regulations governing the ownership, management and control of a motor vehicle on Australian carriageways and (6), any lawful direction or requirement issued to him by a person in lawful authority.
53.Second, he has failed to regulate his compulsion to physically impose himself in particular circumstances and has, as a consequence, directly and adversely, impacted the personal rights of others. Individual citizens have a right to go about their business in the community in a safe and uninterrupted way. They do so on the basis that their fellow citizens will observe the law as they do. Yet, this Applicant has little or no hesitation in physically imposing himself in situations where things are not turning out to his liking or where he otherwise seeks to convince someone into his way of thinking.
54.Third, people in the community work hard for, and accordingly value, their items of personal property. Whether it be in the form of trading stock owned by a retail business or property owned by individual people, ownership of such items does not pass to the Applicant until this occurs with the consent of the owner. This Applicant has not hesitated to arbitrarily apply destructive force to other people’s property on a wanton basis to merely make a point. Nor has he hesitated to unlawfully take the property of others as a means of financing his addiction to illicit substances.
55.Fourth, such is the extent of this Applicant’s engagement with the law enforcement and judicial process across almost two decades of offending that he must surely be regarded as having consumed more than his fair share of the community’s law enforcement and judicial apparatus. The cost to the community compelled by this Applicant’s offending must surely be both inordinate and extraordinary. It is not trite to say police resources could well have been diverted to other activities that may have better served the community but for the amount of time the police have spent in dealing with the Applicant. In a similar way, judicial resources could have been better applied to dealing with the endless backlogs and delays involving other cases rather than dealing with the sheer extent of this Applicant’s offending across something like two decades.
56.The abovementioned accumulative effects of the Applicant’s repeated offending do, to my mind, strongly militate in favour of a finding that the totality of his offending in this country has indeed been very serious.
Paragraph 8.1.1(1)(f)
57.The Applicant’s movement details appear in the material.[45] The only entry relates to his arrival in Australia on 24 August 2001. He does not appear to have ever left the territory of Australia. He has therefore never been compelled to complete something like, for example, an incoming passenger card requiring him to disclose any of his past offending. Similarly, I cannot find any other instance in the material whereby the Applicant has wrongly or falsely completed any other document that could lead to an adverse finding pursuant to this sub-paragraph. It is therefore not relevant.
[45] G23, page 140.
Paragraph 8.1.1(1)(g)
58.The material contains a letter from the Respondent Department addressed to the Applicant and dated 28 February 2008.[46] The letter was sent by Registered Mail and there is no suggestion that the Applicant did not either receive this letter or understand its content. It is worth quoting the salient parts of this letter for clarity:
[46] G22, page 136.
“…Dear Applicant,
FORMAL COUNSELLING LETTER
I am writing to you about your Class BA subclass 204 - Woman at risk visa.
It has come to this department's attention that you have a criminal record. As you have a criminal record, I would like to advise you of the operation of section 501 of the Migration Act 1958 (the Act).
Subsection 501 (2) states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.
The character test is defined at subsection 501(6) of the Act. There are a number of different ways, described in this subsection, in which a person does not meet the
character test. A copy of section 501 of the Act is attached for your information. It is
strongly recommended that you read this document carefully.No consideration is currently being given to cancelling your Class BA subclass 207 - Woman at risk visa, under section 501 of the Act. Your Class visa will therefore continue to provide you with permission to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any
other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act.I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
Victorian State Director of Department of Immigration and Citizenship, [name redacted], made the following remarks when deciding not to consider visa cancellation:
"[the Applicant] has a worrying trend developing with his criminal history. He needs to address this if he wishes to continue to live in Australia".
If you consider that the information in this letter regarding your criminal record is incorrect, please contact the National Character Cancellation Centre on [telephone number redacted].
Yours sincerely,
[name redacted]
State Director
Victoria28 February 2008”[47]
[47] G22, page 136-139.
59.Despite receiving this letter in 2008 the Applicant nevertheless went on to compile an extraordinary list of both offences and sentencing episodes. Following receipt of this letter, the extent of the Applicant’s offending was such as to see him before lawful authority for sentencing on at least 20 further occasions requiring the courts to deal with something in the order of 60-70 offences – as recorded in the offending history, be they offences at first instance, ‘called-up’ offences and/or successful, unsuccessful or withdrawn appeals.
60.I have little difficulty in reaching a finding that the language of this sub-paragraph, when applied to the circumstances and extent of this Applicant’s offending history post-dating his receipt of this “Formal Counselling Letter”, is strongly militative of a finding that the totality of his offending in Australia has been very serious.
Conclusion about the nature and seriousness of the Applicant’s conduct
61.I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction with particular reference to the relevant sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s offending can be characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
64.Sub-paragraph 8.1.2(2)(a) compels an enquiry into the level of risk to which the Australian community would be exposed were the Applicant to re-commit any or part of his very serious criminal conduct. There seems little to cavil with the proposition that were this Applicant to re-commit his offending pattern involving physical violence, victims of that offending could quite conceivably suffer physical harm and damage. Were he to again unlawfully interfere with other people’s ownership of their property, then victims of that offending would suffer material and measurable damage resulting from the loss of their property.
65.Were he to resume his now-familiar pattern of blithely ignoring the requirements and dictates of lawful authority, both the law enforcement and judicial resource apparatus of the community would again become heavily engaged in somehow trying to regulate his conduct. In a similar vein, were he to resume his offending conduct in the realm of operating a motor vehicle, other members of the community who use Australian carriageways would again be exposed to quite significant risk.
66.The Respondent makes this submission: “The nature of the harm if the applicant were to reoffend is very serious and would involve physical and psychological harm to members of the Australian community”.[48] I endorse and support this submission but would express it thus: were this Applicant to re-offend in the forms in which he has offended thus far, it would, more likely than not, result in physical, material, psychological and potentially catastrophic harm to members of the Australian community.
[48] R1, page 16, para [44].
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position - written material
67.In the SFIC filed on his behalf it is contended that “The Applicant is deeply remorseful for his actions and takes responsibility for his behaviour.”[49] We are reminded about the Applicant’s involvement with rehabilitation at Adele House during the period 2005-2015 together with treatment that he received for his substance abuse issues from Lake Macquarie Services.[50]
[49] A1, page 3, para [12].
[50] Ibid.
68.In his SFIC, there is an acknowledgement by the Applicant that “…his substance abuse is the root cause of his poor decision making and offending behaviour.”[51] There is reference to a purported “…consensus among health professionals that have treated the Applicant that continued access and participation in drug rehabilitation treatment programs will allow for his recovery.”[52] The SFIC makes reference to the report of the psychologist, Ms Yvonne Aiello, dating from 29 January 2020 to the effect that the Applicant “…is likely to benefit from specialised trauma counselling to help him address his trauma symptoms and build healthy and effective coping strategies.”[53]The SFIC propounds that the Applicant’s mother, brother, sister-in-law, nephew and niece comprise his “support system”.[54]
[51] Ibid, para [13].
[52] Ibid, para [14].
[53] Ibid, pages 3-4, para [15].
[54] Ibid, page 4, para [16].
69.In the written final submissions[55] filed on his behalf it is contended that “The applicant’s history of substance abuse has been the main reason for his offending.”[56] We are told “He has attended rehabilitation facility on around six occasions between 2005-2015.”[57] Importantly, the following concessions were made:
[55] A23.
[56] Ibid, page 3, para [16].
[57] Ibid.
“…Currently, the applicant’s sobriety hasn’t been tested in the community.
There is evidence before the tribunal that some level of rehabilitation has been achieved through the counselling and treatment provided by STARTTS. The applicant has demonstrated some maturity about his offending. Throughout the hearing the applicant was open about his offending, but we accept that he didn’t agree with all the police facts sheets put to him.
We concede that this primary consideration ways against the revocation of the visa cancellation.”[58]
[58] Ibid, pages 3-4, paras [17]-[19].
The Respondent’s position - written material
In the SFIC filed on behalf of the Respondent, reference is made to the Applicant’s claimed level of past involvement in the rehabilitation process at Adele House from 2005-2015 and Lake Macquarie Services.[59] Be that as it may, it is propounded by the Respondent that there is insufficient evidence before the Tribunal to demonstrate that the Applicant is anywhere near a satisfactory state of rehabilitation.[60] This primary contention is grounded in the following factors:
[59] R1.
[60] Ibid, page 17, para [46]-[47].
(a)There is said to be an insufficient level of independent expert evidence supportive of a conclusive finding that the Applicant’s substance abuse issues and mental health issues are under any sort of clinically verifiable level of diagnosis, treatment, management and control. The resulting contention (and to my mind a valid one) is that until such time as the Applicant squarely addresses these unresolved issues, his recidivist risk is not capable of being known and he thus continues to represent an unacceptable risk to the community;[61]
[61] Ibid, para [47(a)].
(b)While the Applicant may profess a level of involvement in drug rehabilitation, there is little or nothing to suggest that whatever sessions he attended, or treatment he received, at either or both Adele House and/or Lake Macquarie Services can now be said to have objectively served a purpose of causing him to be capable of re-integration into the Australian community as a productive member of it. This contention is further grounded on the reality that the Applicant has an inconsistent and unreliable of participation and completion of programs aimed at rehabilitating him;[62]
[62] Ibid, para [47(b)].
(c)While the Applicant may propound an acceptable level of rehabilitation, the stark reality remains that he has continued to offend – and in quite a violent manner – in the closed confines of immigration detention. The question thus becomes: if he is continuing to very seriously and violently offend while in the controlled environment of immigration detention, how can it safely be found that he will somehow refrain from offending upon a return to the completely unsupervised environment of the Australian community? As a corollary to this submission, the Respondent refers to the Applicant’s extraordinary number of offences and sentencing episodes compiled after his receipt of the abovementioned “Formal Counselling Letter” received from the Respondent’s department in 2008;[63]
[63] Ibid, para [47(c)].
(d)The Respondent takes issue with the Applicant’s claim that a supportive family network in Australia will, in future, facilitate a lower recidivist risk. Later in these reasons, I will summarise the oral evidence given by and on behalf of the Applicant. However, none of the family members now claimed to represent some type of supportive family network for him in Australia gave evidence on his behalf. Indeed, at the hearing before me each of the Applicant’s brother, sister-in-law and a family friend were scheduled to give evidence. It transpired during the hearing that none of them wanted to be involved as oral witnesses. To the extent that propounded “supportive family network” may have previously provided written statements, none of them were cross-examined at the hearing which is something that does not bode well for the Applicant. The obvious and, to my mind, valid contention made by the Respondent is that this same “supportive family network” was around the Applicant in the past and had little or no affect in curbing his propensity to very seriously offend.[64]
[64] Ibid, page 18, para [47(d)].
71.Further in its SFIC, the Respondent makes reference to “numerous opportunities” afforded to the Applicant in a genuine effort to cause him to ameliorate his offending pattern, all of which he seems to have either ignored or failed to accept.[65] First, there is reference to the Paramatta Drug Court providing him with an opportunity to attend drug rehabilitation programs, yet he failed to complete them or to otherwise meet the requirements of those programs on something like 21 occasions.[66] During a court appearance in March 2010 the observation was made that, although having been ordered to undertake a certain program of rehabilitation in lieu of more severe punishment, the Applicant’s poor level of compliance with that program was noted to mean that he “…had no potential to progress and that there was too great a risk to the community of re-offending if permitted to remain on the program.”[67]
[65] Ibid, para [48].
[66] R3, TB1, page 45.
[67] R3, TB2, page 137, lines 48-50.
72.Second, the Respondent says the Applicant’s wonton and brazen ignorance of the abovementioned “Formal Counselling Letter” is a further example of his refusal to take note or advantage of an opportunity afforded to him. As noted in this letter, the Applicant’s conduct was rendering an impression on external observers – as early as 2008 – that his conduct displayed “…a worrying trend developing with his criminal history…” and that he had to do something about it “…if he wishes to continue to live in Australia”.[68] The resulting contention (and, to my mind, a valid one) made by the Respondent is this: if the Applicant has received these sorts of warnings and opportunities as early as 2008-2010 but ignored them and continued to very seriously offend, how can it now safely be found that his offending pattern and recidivist risk will be any different were he to be returned to the Australian community?
[68] G22, pages 136-137.
73.The Respondent takes issue with the Applicant’s claimed level of insight into his offending together with his claimed levels of remorse.[69] The Respondent’s contention is grounded on the following:
[69] R1, page 19, para [50].
(a)Certain pre-sentence reports dating from as far back as November 2013 and June 2014 note that the Applicant lacked the necessary capacity to take advice and support as a means of preventing a relapse of symptoms that had previously predisposed him to the commission of very serious offences;[70]
[70] Ibid, para [50(a)].
(b)The observation of a pre-sentence report writer, as recently as May 2018, noted the Applicant’s poor attitude with reference to domestic violence offending and the nature and purpose of why courts issue AVO’s;[71]
[71] Ibid, para [50(b)].
(c)The observation of a staff member of the Grafton Community Corrections Centre referring to the Applicant’s “limited insight towards the importance of complying with…” an AVO;[72]
[72] Ibid, para [50(c)].
(d)With reference to the Applicant’s most recent conviction for Affray the Respondent referred to the relevant case note report from the NSW Department of Corrective Services which said:
“Attitudes:
Offending
Displayed no regret or remorse, minimised the offence and stated "I am not a murderer or rapist". Stated if he wanted to bash the victim he would have jumped in with the other offenders.
Minimal insight into the impact on the victim. Justified the offence as he was a child sex offender. Concerned more for self. Understands impact on mother as he is her carer.
Minimised the offence. Has previous offences which are aggressive in nature. Charge in custody for intimidation.”[73]
[73] R2, TB14, page 563.
74.In its written reply to the Applicant’s written closing submissions the Respondent takes issue with the suggestion that the Applicant’s substance abuse “has been the main reason for his offending.” [74] The Respondent counters this suggestion thus:
[74] R4, page 1, para [2(a)].
“…The evidence does not support a conclusion that substance abuse is the main reason for the applicant’s violent offending. For example, that cannot explain the applicant’s violent offending while in detention in 2019 (TB 298ff) nor the incident in Coffs Harbour in 2016 (TB 277) where the applicant claims to have been drug free at both times…”[75]
[75] Ibid, page 2, para [3].
The Applicant’s oral evidence
At the commencement of this cross-examination, certain basic propositions were put to the Applicant. He was asked whether he was currently a drug addict and rejected the suggestion by answering in the past tense: “I was a drug addict”.[76] He refused to accept the proposition that he is currently on the methadone program because he is still clinically regarded as a drug addict.[77]
[76] Transcript, page 17, line 17.
[77] See generally Transcript, page 17, lines 19-36.
76.He was invited to agree that he appeared to enjoy violence. He rejected that suggestion.[78] He was invited to agree that he is manipulative and dishonest. He answered thus:
[78] Ibid, line 38.
“Ms Francois: Would you agree that you are manipulative and dishonest?
Applicant: There was times that I have been dishonest in my life, and for that I'm very sorry and I am dealing with some circumstances through my life that I have to address, but I wouldn't say that I am manipulative or a dishonest person”.[79]
[79] Ibid, lines 40-43.
It was also suggested to him that he had known about his post-traumatic stress disorder since shortly arriving in Australia but chose to do very little to address it. He responded thus:
“Yes and no, like, I - during the lack of my English language barriers, there was lots of barriers there that have stopped me to address my issues, and the medical issues and mental issues”.[80]
[80] Ibid, page 17, (line 47) and page 18, (lines 1-2).
He was then taken to the circumstances of the affray incident that took place in immigration detention on 25 October 2018. It was pointed out to him that at the time he committed this offence he claimed to be illegal drug free.[81] He agreed with that proposition and with the resulting proposition that this affray incident represented at least one instance in his offending history where he could not blame his addiction to illicit drugs for his conduct.[82]
[81] Ibid, page 18, lines 7-8.
[82] Ibid, lines 4-11.
The Applicant was reminded of the evidence that he gave to the previous Tribunal hearing of this matter where he sought to obfuscate the level and nature of his conduct in that incident. The following exchange occurred between the Applicant and counsel for the Respondent:
“Ms Francois: Do you recall giving that evidence?
Applicant: Yes.
…
Ms Francois: …you were seeking…to convey to the Tribunal that you had done nothing wrong. and this person had run into you in the hallway, and he'd come speeding towards you, and you just put up your hand because he was coming towards you. That's what you were trying to convey, wasn't it?
Applicant: No, I was - I expressed myself as what happened, and it was not that - my intention was to express myself or show to the court or to the law that I didn't do nothing wrong. It was just under the circumstances that there was video footage there that shows clearly as in place that where we are and we're living and being detained in every day is like walking on egg shells. I don't know what to expect and security in this place it doesn't represent such - much, so it's literally like a - I can say a virtual jail, so if therefore your Honour would and Ms Rachel, if you (indistinct) the footage you can clearly see there in the footage that I didn't want to do nothing to this person. Perhaps I didn't want to - like, to be honest with you, I didn't want this person as - it was a relief to me his crime and such circumstances why he was detained and why he's in the same place as me. Like ---"[83]
[83] Ibid, page 19, line 35 and page 20 lines 18-35.
As the cross-examination evolved, the Applicant’s purported explanation, or more correctly, amelioration of his conduct in this incident became increasingly implausible.
“Ms Francois: Because what happened is on the night of the incident you'd been watching television with other detainees and saw the news report about this victim. Do you recall that?
Applicant: Yes.
Ms Francois: And the video footage shows you becoming very agitated when you saw that news report and pointing at the television and waving your arms around. Do you recall that?
Applicant: Yes.
Ms Francois: And then two of the people you were with went out, found the victim, and took him to this room. Do you recall that?
Applicant: There was a few people, not just two persons.
Ms Francois: And you paced outside that room waiting for your chance to inflict violence on him, didn't you?
Applicant: No, because there was nothing stopping me to go in that room or to place the violence as he come running out of that room in my personal space. Like there was nothing on me to - if I wanted to bash that person or to inflict violence on this person I could do that in the hallway, back then when he was running towards my personal space, but I didn't. I didn't want to - like I said, I had enough violence and I'm a victim of violence through all my life.”[84]
[84] Ibid, page 21, lines 14-32.
81.The Applicant then purported to deny the circumstances of the attack on the victim in the context of suggesting that he was somehow concerned for his own safety and that the confined space in which he found himself with the victim was somehow a factor contributing to the incident:
“Ms Francois: Now, Mr Applicant, the video, according to the police facts, says you struck him to the left side of his jaw with such force that the victim collapsed on the floor, and that's what happened, isn't it, and you wanted to do that to this man because of the crime you had witnessed on the news?
Applicant:No, I didn't. Like how I said I didn't want to do any violence to this person, and I was concerned about my - particularly my safety at the particular point of time, because when a person comes running out of the room, there was the two metres and it's a small - in small - it's very short period of time, like, very - it happened very quick. I didn't know what to do, what to expect when he bumped out of the room running and coming towards me I opened my hands not to let him - to come in my place as I'm demonstrating right now like that with open hand if - and then run away from that place, run away from there.”[85]
[85] Ibid, page 22, lines 1-12.
The Applicant accepted that his own counsel representing him at the sentencing hearing for this offence conceded that his conduct did amount to common assault and could not be construed as self-defence.
“Ms Francois: And do you recall that your counsel conceded to the District Court that your actions amounted to common assault and could not be self-defence?
Applicant: Yes.
Ms Francois: And you're just trying this on the tribunal to see what you can get away with, aren't you?
Applicant: Like I said, I'm very sorry to be at particular point and particular situation as a part of this - no kind of - that you can resist to such a placement, but I'm not happy that that happened, and certainly I don't - there's nothing there to hide or I'm not trying to manipulate or trying to twist or turn something, because there's everything on the video footage and clearly you can see there that if therefore I wanted - if I wanted to bash this person or to do him harm, like, I would go there, I would go in that room, I would bash in the room, or I would bash him while the other people bashed him after I ran away from that hallway, after that person.”[86]
[86] Ibid, lines 20-32.
He was then taken to the incident in March 2016 involving his conviction for assault occasioning bodily harm against a client of the Applicant’s former defacto partner who was then working as a sex worker (the previously mentioned ‘Ms GR’). He was specifically taken to the evidence he gave at the previous Tribunal hearing in this matter where he sought to explain the circumstances of his assault on the client on the basis of the Applicant stepping in to protect her from an apparently unruly client who, according to the Applicant, was trying to force her into doing some kind of sexual or other act Ms GR did not want to do. At the hearing before me, a different scenario and rational for the offending was put to the Applicant which he unconvincingly rejected.
“Ms Francois: Now, that evidence to the tribunal was false, wasn't it?
Applicant: No, it wasn't.
Ms Francois: Because what in fact happened you were breaching the AVO by visiting [Ms GR] very early in the morning because you were jealous of her sex work. Do you recall that?
Applicant: No, that's not true.
Ms Francois: And when this man came to her as a customer you became upset, came back into the house and assaulted him. That's what occurred, isn't it?
Applicant: My intentions was not purposely to assault this person, because I know [Ms GR] for quite a while now, and back then [Ms GR] was working as escort services, escort service doing the pleasure work in private brothel, and I was in very a close relationship with [Ms GR], and also with the other girls that live there. As a working place I was employed actually as a driver, like, escorting girls to the place where they got the job. That was a private job that in the morning come - this - the drunk person come and he wanted to have a job. She was - [Ms GR], she was completely - we had that understanding therefore because, like, that was, like, a private job in the garage under the house, so she - back then we had an understanding if therefore, like, she needs help or something she calls me, I come in and I escort the person outside.”[87]
[87] Transcript, page 23, lines 28-47.
The next phase of the cross-examination involved the Applicant being asked about the nature of his evidence to the Tribunal about his claimed levels of remorse and insight into his offending. The initial exchanges between counsel for the Respondent and the Applicant transpired thus:
“Ms Francois: Now, you've given false evidence to this tribunal and the previous tribunal because you have no remorse or insight into your offending. Do you agree with that?
Applicant: No.
Ms Francois: Now, your evidence to the previous tribunal about your other violent offences for which you've been convicted and your having ceased to use drugs after 2015 was also false, wasn't it?
Applicant: No.”[88]
[88] Transcript, page 24, lines 23-29.
The Respondent’s representative then took the Applicant through a review of his history with trauma counselling. He agreed that relatively shortly after arriving in Australia he had some counselling sessions with the organisation known as STARTTS. He attributes only having one counselling session with STARTTS and not continuing with any further sessions “…because of lack of my English and back then that was in 2003.”[89] The implausibility of this reason for a failure to properly engage with the counselling offered by STARTTS was put to the Applicant:
[89] Transcript, page 25, lines 2-4.
“Applicant: …but back then my - that was certainly why I didn't continue with the sessions, like, STARTTS counselling sessions it's mostly because of my lack of the English back then.
Ms Francois: Surely they had translators, Mr Applicant?
Applicant: Indeed they did, but if - at any point, however, that if I could do to invest any change or anything that would benefit for my behaviour or benefit to my health I would. I was skiing (indistinct) [sic] but there’s also – I also had a lot of barriers through my life that I couldn’t face everything and deal with everything at that point in time.”[90]
[90] Transcript, page 25, lines 10-19.
The Applicant was then taken to an “Assessment Report” prepared by the South Western Sydney Area Health Service whose purpose was to assess the Applicant’s suitability for placement in the MERIT rehabilitative program.[91] He agreed with the social history recorded by this report such that after migrating to Australia, he began socialising with other Serbian people and because the majority of those people were involved in crime and/or illicit substance abuse, he too quickly became involved in such activities.[92] He also agreed with the drug history recorded in this report which stated he commenced using illicit substances at the age of 21 which rapidly increased following his re-settlement into the Australian community. He accepted that at the age of approximately 23 to 24, he commenced using heroin intravenously.[93] With further reference to this ‘Assessment Report’ he was taken to the following portion:
[91] See R2, TB1, pages 23-24.
[92] Transcript, page 25, lines 30-34.
[93]Transcript, page 25, lines 36-45.
“HEALTH / MENTAL HEALTH
[The Applicant] denies any health/mental health problems, including suicidal thoughts. [the Applicant] informs that he occasionally has thoughts regarding the war in Yugoslavia, however does not wish to address such thoughts at this stage.”[94][94] R2, TB1, page 24.
87.Given the Applicant’s propounded issues about trauma he says resulted from his exposure to the war in Yugoslavia, he sought to explain why it was that he told the author of this “Assessment Report” that he did not wish to address such thoughts at this stage”.[95] He responded in the following unconvincing and obfuscatory terms.
[95] Ibid.
“Ms Francois: The next sentence says that you informed them that you occasionally have thoughts regarding the war in Yugoslavia, but you did not wish to address such thoughts at this stage. Does that sound right?
Applicant: I would say today there’s like a – back then, like I was – priority for me was to address the drugs, the drug issue because I recognised – I started seeing – like, I recognised myself – I recognised back then myself start becoming an addiction that I didn’t even know what addiction was back at that point in time. Like, I never before – like, how I said before I was 24, I never used the drugs. I tried cannabis when I was 21 on a party or something like that but, like, I’d never used drugs. I was – I had – I didn’t – I didn’t address a lot of issues that happened through my past and during circumstances through my childhood years. Those – it’s a lot of – there’s a lot of damage and a lot of pain there that, you know, I can address today and I’m not able to actually process this stuff. Maybe, like how I said – maybe my – back then maybe my maturity or my wisdom was not – I didn’t allow myself to actually address this and maybe that’s how I see it.”[96]
[96] Transcript, page 26, lines 9-24.
The Applicant was then taken to a further document in the material post-dating the abovementioned “Assessment Report”. This document bears the title “Probation and Parole Service Pre Sentence Report” and is dated 3 November 2004.[97] He agreed that in this further report he told the author about his apparently experiencing a history of an unstable and violent childhood. It was put to him that he has been aware since 2004 about a possible link with family violence and trauma in his childhood to his offending:
[97] R2, TB1, pages 19-22.
“Ms Francois: So you were aware from 2004 of the link with family violence and trauma potentially to your offending. Would you agree with that?
Applicant: That I was victim?
Ms Francois: That you were aware that some of your trauma might have a link to your offending or do you not agree with that?
Applicant: I can’t answer that. Like - - -
Ms Francois: So you – do you disagree that there’s a link between the trauma and your offending?
Applicant: There is a – in some points, yes.”[98]
[98] Transcript, page 27, lines 8-16.
With further reference to this second report, the Applicant was taken to a portion of it wherein he is recorded as telling the author of an intention to cease using drugs and to participate in programs and counselling to overcome his addiction.[99] To my mind, the Applicant failed to adequately explain or respond to the contention put to him to the affect that his now claimed level of insight into his offending is little or no different to what he was telling experts as early as 2004:
[99] R2, TB1, page 20.
“Ms Francois: If you turn over to page 20, under the heading, factors relating to the offending, it then identifies that you didn’t engage well with the MERIT program and that you had been on a substitute called (indistinct) program since midway through July. So at that point you were given – prescribed medication to try and help you with your addiction. Do you agree with that?
Applicant: Yes.
Ms Francois: You’ll see on the bottom of the page that you tell the people preparing the pre-sentence report that you’re motivated to cease using drugs and willing to participate in programs and counselling to help overcome your addiction and that you had self-referred to see alcohol and other drug workers since coming into custody?
Applicant: Yes.
Ms Francois: So would you agree that the insight that you claim you have right now to the tribunal, you have been claiming to have had since 2004?
Applicant: What was that? Claiming to have?
Ms Francois: I’ll repeat it. You claim you now have insight into your offending and your trauma and you want to address those and not offend again. Do you recall that that’s the type of evidence you’ve given the tribunal?
Applicant: Yes.
Ms Francois: You’ve been making that claim since 2004, haven’t you?
Applicant: Since – yes. That’s from 2004. That’s when I start first time using opiates and recognising addiction as a problem. It was the start of addressing.”[100]
[100] Transcript, page 27, lines 18-41.
The gradually self-serving nature of the Applicant’s purported insight into the causative factors behind his offending can be seen in a further document to which he was referred. This particular document comprised a “Case Note Report” from the NSW Department of Corrective Services which is dated 25 March 2010, and which appears in the material.[101] On this occasion the Applicant sought to attribute his difficulties with illicit drugs to intra-family pressures. In particular, he was taken to this particular passage of this case note report:
[101] R3, TB1, page 47.
“[The Applicant] attributed much of his drug use to pressures within his family. He claimed he is acting as the carer for his ill mother. It is noted [The Applicant] resided in Wayback supported accommodation program house in Blacktown. His mother resided in a rented 2 bedroom unit in Cabramatta. She resides in one room and [The Applicant’s] brother, his wife and baby in the other room”[102]
[102] Ibid.
When this portion of this further report was put to the Applicant he unconvincingly responded thus:
“Ms Francois: Okay. So in 2010 is it correct that you attributed your taking of illegal drugs to pressures within your family?
Applicant: If I couldn’t clearly express my subconscious at some point of time through my past, I would rather do that without any harm to myself or the community or self-medicating or self-sabotaging or sabotaging any surrounding of anyone and doing any harm. But maybe at that point in time I said – in family that I was feeling probably that I was under a lot of stress and as my family was under a lot of stress during the circumstances that I was – that accelerated back then and, you know, I wanted to address – but every time I wanted to address my drugs, my drug using and my addiction.”[103]
[103] Transcript, page 28, lines 39-46 and page 29, lines 1-2.
The next document to which the Applicant was taken was a relatively short report prepared by Ms Lisa Spencer, Consultant Psychologist, that is dated 30 May 2012, and which appears in the material.[104] In her report, Ms Spencer confirms she works as a consultant psychologist for the Salvation Army. She notes that the Applicant presented to her with the following symptoms: “substance dependency, depression, anxiety (social and PTSD symptoms), low self-esteem and mood swings (possible bipolar disorder).”[105] The Applicant was then taken to the following specific words of Ms Spencer in her report:
[104] G17, page 93.
[105] Ibid.
“…He is open to getting everything out of our Bridge programme so that he can become a healthy, well man and give back to society by being the best person he can be. [The Applicant] is a pleasant and compliant man who is appreciative of this new life he has been afforded…I look forward to continue working with him while he is in our program…”[106]
[106] Ibid.
When questioned about the extent of his engagement in the treatment program with Ms Spencer, his evidence became inconsistent, unreliable and obfuscatory. For example, he was inconsistent and unclear about whether he actually completed the 12-month program with Ms Spencer:
“Ms Francois: How many sessions did you attend with Ms Spencer after the two she describes in this letter?
Applicant: I done – complete (indistinct) program which was for 12 months and I’d stay after that clean for altogether three years and after three years I had the relapse. That was first time after three years – of three decades of my living that I kind of find within myself spirituality and addressing greater remorse to other circumstances when it comes to my addiction all accelerated crime that happened. Salvation Army is a Christian -it's a program that – it’s pretty much based on spirituality and living skills program.
Ms Francois: So does that mean you’ve received a complete program for trauma counselling previously and you then relapsed. Is that the evidence you’re giving?
Applicant: No.
Ms Francois: Well you say you completed this bridge program with Ms Spencer, is that right?
Applicant: That’s – Ms Spencer was a counsellor at rehabilitation program that was one of the services that is in the program that people can address. The program goes for 12 months which one of the services is that you can have a counselling at a point in time.”[107]
[107] Transcript, page 30, lines 5-23.
His evidence became even more inconsistent and unreliable when he was challenged about his evidence that he remained drug free for three years after his engagement with Ms Spencer in 2012. I agree with the following contention put by the Respondent’s representative to the Applicant: his evidence seemed to be oriented towards him saying virtually anything that he thought sounded convincing and that otherwise might assist him:
“Ms Francois: Now you say after this period of time you were drug free for three years, is that right?
Applicant: Close enough. I’m not pretty clear – exactly sure how long but close to – close to indicated three years. Something.
Ms Francois: So does that mean that the offending that we can see in your criminal record from 2013, 2014 and 2015 wasn’t drug related?
Applicant: No, because I – 2015 – what particular charge that was 2015 that you indicating to - - -
Ms Francois: No, Mr Applicant, you just gave evidence that after this counselling in 2012, you were drug free for three years. Do you want to take that evidence back?
Applicant: No. I said close to the three years.
Ms Francois: Okay. But you want to potentially change that evidence if I show you some of your criminal convictions from 2013 and 2014, is that correct?
Applicant: No.
Ms Francois: Okay. So if we look at your convictions, for example in June 2013 of resisting an officer, shoplifting and entering enclosed premises, that’s offending where you’re not effected by drugs. Is that your evidence?
Applicant: Like I – how I said after those two or three years of the clean time, I did – after that I had a relapse. A relapse and had a relapse after that time.
Ms Francois: Mr Applicant, you’ll say anything that you think will help you, won’t you? The Applicant: No, it’s just what I remember and what I think that was true.”[108]
The Applicant was then taken to a further document in the material titled ‘Pre-sentence Report Sentencing Options Assessment’.[109] This document appears in the material and it was prepared in late 2013. He agreed that this report correctly noted that he has a history of chronic heroin, cannabis and Valium use since 2005.[110] He also agreed that this further report correctly noted that he had been a resident at the Salvation Army’s Lake Macquarie Recovery Centre earlier in 2013. In particular, he was taken to the portion of this report that noted “He had returned to drug use by May this year [i.e. 2013] following what he described as ‘stressful life events’”.[111] He purported to explain the circumstances of his relapsing into the abuse of illicit drugs on certain aspects of a past relationship then-current in his life:
“Ms Francois: So was it correct that after you had finished your Salvation Army program, you returned to drug use in May 2013?
Applicant: Like I said, I did have a relapse back then. It’s quite some time from, you know, from then to now but like, I did say that I had a relapse back then. Yes, I did relapse back then. I’m not sure what exactly (indistinct) exactly but I – as I remember and how I indicated and express myself in a letter that I did have some time clean, I did complete a program during the circumstances back that as I was charged for the breaching (indistinct) and mental harm, that charge has been dismissed which I did start (indistinct) with the – my ex-partner back then and we did have a – we are going through a lot again as I remember. She was going through divorce and I just complete the rehab and I move with my ex-partner that she got three siblings and she was going through divorce. Her husband didn’t live at the place – at their place – their own place, she asked me to move in with which I did and was (indistinct) for me back then and of course happening for her too. As she did go through divorce and lot of stuff that was – lots of stress there for me so I did (indistinct) back then and I think I did have a lapse.”[112]
96.With further reference to this report, the Applicant was taken to the following passage from it:
“When discussing his most recent relapse, the offender’s account appeared to lack the level of detail and personal responsibility required to ensure he does not relapse again under similar circumstances. It is noted he has completed a number of residential programs having retuned to drugs within two years of his discharge from each.”[113]
[108] Transcript, page 30, lines 25-47.
[109] R2, TB14, pages 572-574.
[110] Ibid, page 573.
[111] Ibid.
[112] Transcript, page 31, lines 21-37.
[113] R2, TB14, page 573.
By this stage of the Applicant’s cross-examination, the opaqueness and artificiality of his evidence about claimed fears of harm was something I took up with him. All too often in these matters, claimed fears of harm are expressed with a very broad brush, often with reference to historic, out of date and biased reporting about individual incidents which an Applicant in a matter like this then co-opts into “a claim of a fear of harm” upon return to their country of citizenship. There is very often – as in this case – little or nothing before the Tribunal about how, on a day-to-day basis, someone like this Applicant would suffer cruel and degrading treatment upon a return to a country like Croatia. Croatia is not a segregated community in any way similar to, for example, Apartheid South Africa or the USA’s antebellum South. The lack of particularity, the implausibility and sheer lack of credibility in this Applicant’s asserted ‘claims’ of a fear of harm are redolent in the following exchange between me and him at the hearing:
“Senior Member: Mr Applicant, I want to ask you something?
Applicant: Yes.
Senior Member: If you go back to Croatia and you land in Zagreb at the airport, is it your evidence that the extremists, the patriots and the hooligans are going to be waiting for you in the airport carpark with machine guns to attack you once you get back to Croatia? Is that what you’re telling us?
Applicant: No.
Senior Member: Obviously no. Obviously no, right? So that’s the first thing. Next question is, if you go back to Croatia and you resettle in Zagreb or another town in Croatia, where do you think these extremists, patriots and hooligans are going to catch up with you. Where do you think they’ll find you and what do you think they’ll do to you?
Applicant: I don’t know what to think after the circumstances of how I’ve been living. I – we experience and being bombed by Croatian army for five years. I live at first front line which is (indistinct) - - -
Senior Member: Your father – no. No. No. No. Just wait a minute. Your father fought and died for Croatia. Your father fought and died for Croatia in a war. Why would extremists, patriots and hooligans in Croatia be angry with you? Why would they be? Your father died for the country?
Applicant: Yes and my father, he did die for the country. He also want to kill and end the life of his wife and the kids which is me and my brother and also that my father was from the first front line established by Croatian side whereas my mum from the first front line established from the Serbian side which we suffered for five years of heavy bombing and being bombed every day.
Senior Member: But that’s in the past. That’s in the past. That doesn’t happen anymore. We’ve seen Croatia in travel brochures and advertisements on TV. It looks like a great place for a holiday. Nice beaches, lots of sunny weather and lots of wind surfing. It doesn’t look too bad to me. Lots of people go to Croatia for holidays?
Applicant: Croatia is certainly a beautiful country. The way of mentality of – the way and mentality of the people and under circumstances for we witness through our lives, circumstances do not let you even have a thought about living in Croatia - - -
Senior Member: All right. Now, let me just ask you this if I can. Let me stop you there. Belgrade is the capital of Serbia, isn’t it?
Applicant: Yes.
Senior Member: The main religion in Serbia is Christian Orthodox, Eastern Orthodox religion. That’s what it is, isn’t it?
Applicant: Yes.
Senior Member: But there’s surely Catholic churches in Belgrade. Surely?
Applicant: Surely there are.
Senior Member: Okay. The primary religion in Croatia is Catholicism or Catholic and the main number of churches in Zagreb are Catholic churches, aren’t they?
Applicant: Yes.
Senior Member: But there’s also Orthodox churches in Zagreb, surely?
Applicant: Yes.
Senior Member: Do the hooligans and - - - ?
Applicant: No, I never been in Zagreb actually - - -
Senior Member: After Orthodox church services in Zagreb, when the people are coming out of the Orthodox church in Zagreb, are the extremists, patriots and hooligans lining up with machine guns to kill them when they’re coming out of their Orthodox churches? Yes or no? Probably not?
Applicant: I would say no, yes, of course. I would say no.”[202]
A Contention from the Respondent
[202] Ibid, page 36, lines 6-46 and page 37, lines 1-15.
In written closing submissions filed on behalf of the Respondent,[203] it is noted:
(1) The Applicant is not of Serbian ethnicity and that his father was Croatian and, although his mother had Serbian ancestry, she was born in Croatia, spoke with a Croatian accent and was from a long line of Croatians;
(2) With reference to the Applicant’s claimed affiliation with the Orthodox Christian religion, his previous solicitor told the earlier ventilation of this matter in this Tribunal that the Applicant did not in fact practice either religion (Catholic or Orthodox). The Applicant sought to reject this earlier submission at the second hearing before me; and
(3) Even if the Applicant were accepted to be a practitioner of what he described as the “Christian Catholic and Orthodox faith”, there is nothing before the Tribunal referring to any unlawful attack on Serbian churches in Croatia or that the Applicant would be persecuted as a result of being seen to belong to the Orthodox faith.[204]
The Applicant’s stated fears of harm: analysis
[203] R4.
[204] Ibid, see generally pages 2-3, paragraphs [9]-[11].
As a starting point, I note that a non-refoulement obligation, as defined in Direction 90, is “an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.” Direction 90 goes on to list a number of international instruments which contain “specific types of harm” which can give rise to international non-refoulement obligations.
To my mind, one of the fundamental difficulties with the Applicant’s claimed fear(s) of harm seems to be that he has conflated an understandable apprehension about being returned to a country he has not seen or been in for over two decades with the necessary level of fear required by the Direction relating to actual harm or degrading treatment he may suffer upon a return to Croatia, such as to engage the language of Paragraph 9.1 of the Direction. Unfamiliarity with a region or locality and a lack of contacts at that place does not equate to or rise to the level of a fear of harm or of cruel and/or degrading treatment at that place.
I am not convinced that this Applicant will, upon any return to Croatia, be regarded as some kind of “outsider” or person vulnerable to marginalisation due to his ethnic history. He has clear and obvious connections to Croatia on his father’s side and to a similarly substantial extent on his mother’s side. The only plausible element to any claimed fear of marginalisation and consequent harm can only derive from his asserted affiliation with the Orthodox religion, which, of course, is the religious minority in Croatia. But even this part of the Applicant’s case is opaque. We cannot be sure that he actually does belong to the Orthodox faith because he has spoken of belonging to the “Christian Catholic and Orthodox faith” in the past.[205]
[205] G20, page 122.
When cross-examined at the hearing before me, he spoke of “religious is everything in my life that I can rely on…” One wonders where this apparent level of religious faith was at the time he was very seriously offending in Australia and why, for example, he has not mentioned the role of religion as a tempering or guiding part of his life to anyone. A similar observation can be made about what he has told people regarding his psychological symptoms. He is prepared to say almost anything that suits him at any particular phase of his life.
To the extent the Applicant’s fears may stem from a perceived shortfall or insufficiency with reference to the capacity of Croatia to afford him publicly available care for his illicit drug abuse issues and mental health symptomatology, these are elements that are more appropriately addressed in the componentry of the Direction relating to impediments. A similar observation can be made with regard to any fear he may have arising from a shortfall or insufficiency in the provision of government/social security benefits in Croatia relative to Australia.
Findings and Allocation of Weight to Other Consideration (a)
I do not think the Applicant has sufficiently articulated and consequently propounded any precisely identifiable or understandable fears of harm he may hold consequent upon a return to Croatia. I am consequently of the view that those purported claims are not sufficiently advanced to reach the threshold of engaging Australia’s non-refoulement obligations.
Overall, I am of the view (and I find) that the actual or possible cruel and/or degrading treatment the Applicant may experience on a return to Croatia are factors that attract a certain, but not determinative, level of weight in favour of revocation. This weight is outweighed by the combined very heavy weights I have attributed to Primary Considerations 1 and 4.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent makes the following concession:
“Accordingly, while this factor weights in favour of the revocation due to the fact that the physical separation from the applicant’s family will cause him significant
emotional harm given his mental health issues and may impact upon his rehabilitation prospects (such as they are), this factor does not outweigh the other factors.”[206]
[206] R1, page 26, [89].
211.Sub-paragraph (a): the Applicant is 40 years old, turning 41 this month. He has a diagnosed mental health symptomatology, with uncertainty as to future rehabilitative prospects. His difficulties with mental health seem to have their derivation in his unresolved issues with illicit drug abuse and/or claimed past trauma. On repeated occasions, he has been offered, urged and repeatedly asked to properly submit himself to the rehabilitative process but has failed to do so. On occasions where there has been a level of involvement with rehabilitation, he has subsequently relapsed into abusing those substances and to very seriously offending. The Applicant otherwise seems in a reasonably robust state of physical health. The only reference I can find to any physiological symptoms is in the respective STARTTS reports of Ms Aiello and Ms Clancy.
212.The former records the Applicant telling her that he was experiencing “tightness in his chest or a sensation akin to ‘cramps in my heart’, shakiness when reminded of traumatic memories, weakness in his body and increased headaches. He also spoke about recently having difficulty breathing at times.”[207] The latter recorded that in terms of physiological symptoms, the Applicant “explained he often experiences feelings of nervousness and weakness, as well as a racing heart, trembling, headaches and restlessness.”[208]
[207] A19, page 9.
[208] A20, page 8.
Sub-paragraph (b): the Applicant was born in Croatia and came to Australia when he was 20 years old. He has lived the last two decades of his life in Australia. He has never returned to Croatia over that time. It is inevitable that he will face some cultural barriers. The extent to which those impediments will be substantial can be, to an extent, moderated by (1) he spent the first half of his life in Croatia and (2) he was raised in a household with a Croatian-speaking mother and brother. It is thus reasonable to infer that he would have surely received some measure of exposure to Croatian cultural norms as a young child and adolescent in Croatia and subsequently in Australia. He made it plain in his oral evidence that he speaks Croatian with a Croatian accent.[209]
[209] Transcript, page 34, lines 5-9.
Sub-paragraph (c): I have earlier outlined the nature and extent of the mental health issues confronting the Applicant. While I appreciate the contentions made on behalf of the Applicant about the state of availability of social security resources for individuals with mental health or other disabilities in Croatia, it would seem the Applicant will not be entirely without both public health services support and the equivalent of social security support in Croatia.
While it can be accepted that the Applicant will face a level of emotional hardship if returned to Croatia, any difficulty in him reintegrating into the Croatian community is tempered by the reality that he will have an entitlement to social, medical and economic support that is currently available to other citizens of Croatia. It is clear from the material that the Croatian social security system provides a range of benefits relating to support for a family, support for a person’s health, support for citizens who are incapacitated and who are living with a disability, support for citizens of advanced years in the form of an old-age pension, together with what is known as a “Survivor’s pension”, social welfare benefits and services for people in need, including unemployment benefits.[210] This range of benefits is similar to what the Applicant will know from his time in Australia. Of course, it is not possible to reliably estimate the standard of living the Applicant will have in receipt of such benefits relative to the standard of life such benefits would afford him in Australia.
[210] R2, TB24, page 958-1010.
In addition, and with reference to his mental health symptomatology, there is reference in the material to Croatia having a specific Department of Mental Health and Addictive Prevention[211], a strategy on combating drug abuse[212] and fully implemented mental health legislation.[213] There is also methadone treatments available at public drug treatment centres and primary healthcare facilities.[214] These findings about resources and facilities available to the Applicant in Croatia to deal with his mental health must be dependent upon his determination to become connected with those facilities in Croatia. He has a less than exemplary record of doing so in Australia.
[211] Ibid, TB27, page 1052.
[212] Ibid, TB25, pages 1011-1048.
[213] Ibid, TB28, page 1054.
[214] See generally R2, TB25, pages 1011-1048.
Overall, this Other Consideration (b) is of a certain, but not determinative, weight in favour of the revocation of the mandatory cancellation of his visa.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Until recently, the orthodox approach towards an analysis of weight allocable to this Other Consideration (c) required an examination of the material to ascertain whether it included any victim impact statements (or the like) from victims who would be adversely affected in the event the Applicant was entitled to remain in Australia. In the absence of such evidence, the approach towards this Other Consideration had been to render it of neutral weight because the evidence did not disclose the views of victims about any adverse impact they would experience if the Applicant were to remain in Australia. My best understanding of the evidence before the Tribunal is that there is no such evidence – in the form of victim impact statements (or otherwise) – from any of the victims of the Applicant’s offending.
What we do have, however, is a statement from Ms AD who, it will be recalled, was the victim of an appalling family violence attack by the Applicant on 18 December 2017. I have previously detailed the circumstances of that very serious conduct. Read in a particular way, this statement from Ms AD – written a year after the Applicant’s attack on her – could be construed on the basis that although he has perpetrated an appalling act of domestic violence on her, she is either favourably disposed to him staying here or, in the alternative, she has little or no difficulty with him remaining here.
“From: [Name and email address deleted]
Date: Thursday, 13 December 2018 7:25 PM
To: [Recipient’s email address deleted]
Subject: [The Applicant’s] support Letter from [Ms AD]
I [Ms AD], [Residential address and mobile phone number deleted]
Myself and [the Applicant] are friends for a long time now [the Applicant] has come to Australia looking to have happiness [the Applicant] had seen so much of he’s families killing each other he lost dad sister and brother [the Applicant] is a good person he don’t need to go back to Croatia he had lots so much there [the Applicant] friends and families are here in Australia it would be like sending [the Applicant] to he’s death if he was to leave hes family and friends. in march of 2016 [the Applicant] was rushed to Sydney from coffs harbour with head injury someone has hit and run on him [the Applicant] was in Sydney hospital on pain releaf for weeks [the Applicant] was sent home pain medicine and was still on it until he got sent to jail and he got sent on breach of avo and driven under pain medicine the police put the AVO on us we did not know it was on us I did not want the AVO because [the Applicant] is a nice person and want hurt anyone me and [the Applicant] was still together .[the Applicant] did not like seeing people in trouble he would help when he can any one [the Applicant] is a loving and caring person I think [the Applicant] would kill himself if he didn’t get kill by war like he’s families that he lost in Croatia he just need to be with he’s family and friends that love him and that he loves
[Ms AD] please call if you have any question.”[215]
[215] G21, page 131.
[Errors in original]
I am mindful of Kerr J’s comments in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to this effect:
“[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.”[216]
[216] [2021] FCA 1235 (“PGDX”).
I have found that Ms AD has been the victim of the Applicant’s family violence conduct. Despite that, she has provided whatever indications can be gleamed about the Applicant’s ongoing presence in Australia. It is clear from her statement that in her view, the Applicant ‘…is a good person he don’t need to go back to Croatia he had lots…friends and families are here in Australia…’.
In the final analysis, while there could, on the authority of PGDX be said to be a certain, albeit miniscule, level of weight allocable to Ms AD’s views, I am of the view that such weight should be diminished in circumstances where the Applicant has so violently offended against her. I am satisfied that:
·this approach of limiting the weight of Ms AD’s evidence on this issue is possible because she is the victim of domestically violent conduct by the Applicant;[217]
[217] See Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 336 [68].
·this is a case falling into Kerr J’s category of cases where the impact on victims of the Applicant’s conduct weighs in favour of, albeit it slightly, visa restoration;[218]
[218] PGDX, [56]-[59].
·it should also be remembered that Ms AD did not give oral evidence at the hearing and whatever she said (or purported to say) in her statement was not the subject of further ventilation in evidence-in-chief, nor the subject of any testing and/or verification during cross-examination.
This Other Consideration (c) is of only marginal assistance to the Applicant. It is of slight weight in favour of revocation of the mandatory cancellation of his visa.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family comprise:
(a)his brother;
(b)his sister-in-law.
As mentioned earlier, the Applicant’s mother (who passed away shortly prior to the commencement of this hearing), his brother and his sister-in-law had each had provided written statements in support of the Applicant. As also mentioned earlier, each of the Applicant’s brother and his sister-in-law withdrew their evidence after the hearing commenced. They did not give oral evidence and the Tribunal was requested by the Applicant’s representative to delete their respective statements from the Exhibit List.[219]
[219] See Transcript, page 55, lines 16-39.
Time and circumstances have, to a significant extent, overtaken the Applicant’s capacity to claim a measure of strength and duration to his immediate family ties in Australia. His SFIC says this:
“The Applicant’s [sic] has close family in Australia including his mother, brother, sister-in-law, nephew and niece. The Applicant is also responsible for caring for his elderly mother who is 70 years old. Prior to the Applicant’s detention, he was the carer for his mother and received a Centrelink payment.”[220]
[220] A1, page 5, para [21].
The Applicant’s mother, as mentioned, has passed away. His brother and sister-in-law have withdrawn their evidence. I have dealt with any weight allocable to the nephew and niece as part of my consideration of Primary Consideration 2. There has been a concession by the Applicant that were the Applicant to be removed, his brother would have been left with the sole responsibility of caring for their mother without the prospect of any assistance from the Applicant. On this basis, the Respondent conceded that “some weight” should be allocated to this factor.[221] That concession is no longer necessary in circumstances where the mother has passed away and the brothers appear to be estranged.
[221] R1, page 24, para [74].
Having regard to the state of the evidence and circumstances surrounding the Applicant’s late mother, his brother and sister-in-law, I am of the view (and I find) that the strength, nature and duration of the Applicant’s ties to his immediate family members carries a slight level of weight in favour of revocation.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. He arrived in Australia as a 19-year-old. He has exclusively resided in Australia since the time of his first arrival some 20 years ago. Indeed, the movement records indicate he has never left Australian shores.
I now make specific reference to the two tempering sub-elements in paragraph 9.4.1(2)(a). With reference to the first of those tempering sub-elements, I note that the Applicant’s earliest conviction in Australia dates from 11 August 2003 when he was aged about 22 years. This is barely 2 years after his arrival. It is thus safe to find that he began offending “soon after arriving in Australia”. It is thus possible to apply this tempering sub-element against the Applicant, or put another way, it does not assist him.
With reference to the second tempering sub-element, I am required to ascertain the extent of the Applicant’s positive contributions to the Australian community. I have already found he has not had a steady work history in Australia. As mentioned earlier, there are two PCF’s. In the first one (dating from 2012), the Applicant says he has performed “warehouse duties, painting and rendering” during the periods 2002-2004 and 2006-2007.[222] In his second PCF (dating from 2018), there is no reference to any employment history either in the main body of the PCF document or in the accompanying submission. The Applicant has not parented Australian citizen children. I am hard-pressed to find anything in the material of any significance that may be referable to any contributions he has made to the Australian community. I am likewise not convinced that were he returned to the Australian community, he would play any meaningful role in the lives of his nieces and nephews. The Applicant is not assisted by this second tempering sub-element.
[222] G26, page 157.
To my mind, neither of these two sub-elements facilitate or otherwise temper in the Applicant’s favour any weight he may attain pursuant to this Other Consideration (d) on the basis of how long he has resided in Australia.
3. Strength, nature and duration of “other ties” – family and other social links
In his most recent PCF (dating from 2018), the Applicant made reference to his immediate family as comprising his late mother and his brother. There is no reference to any extended family members.[223] In his earlier PCF (dating from 2012), the Applicant made reference to the same two people as immediate family but listed the following numbers of people as extended family members in Australia:
[223] G10, page 67.
“Number of uncles/aunts: 1 uncle, 1 aunt
Number of nieces/nephews: 4 nephews, 6 nieces
Number of cousins: 5 cousins”.[224]
[224] G26, page 160.
Due to an absence of evidence from the above extended family members, I am not in a position to safely allocate any weight to the extent of the Applicant’s strength, nature and duration of ties with those people.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a slight level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a slight level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which very heavily weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: carries a certain, but not determinative, weight in favour of revocation;
(b)extent of impediments if removed: carries a certain, but not determinative, weight in favour of revocation;
(c)impact on victims: carries a slight level of weight in favour of revocation; and
(d)links to the Australian community: carries a slight level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a very heavy level of weight against revocation;
·Primary Consideration 2 weighs moderately, but not on its own, determinatively against revocation;
·Primary Consideration 3 weighs, at best, slightly in favour of revocation;
·Primary Consideration 4 carries a very heavy weight against revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of weight attributable to the relevant Other Considerations (a), (b), (c) and (d), even when combined with the slight weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative heavy weights we have attributed to Primary Considerations 1 and 4 plus the moderate weight I have allocated to Primary Consideration 2;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 November 2019 (notified to the Applicant on 4 December 2019) to not revoke the cancellation of the Applicant’s visa.
I certify that the preceding 244 (two-hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.................................[SGD]................................
Associate
Dated: 2 February 2022
Date of hearing: 6 & 7 July and 16 September 2021 Solicitor for the Applicant:
Ms Marta Mamarot
South West Migration & Legal Services
Counsel for the Respondent: Ms Rachel Francois
Instructed by Sparke Helmore
Annexure A – List of Exhibits
Ex./MFI DESCRIPTION DATE OF DOCUMENT DATE RECEIVED G Section 501 G-Documents
(paged 1–293)- 22 Dec 2020 R1 Respondent’s Updated Statement of Facts, Issues and Contentions (paged 1–27) 20 Apr 2021 23 Apr 2021 R2 Respondent's Tender Bundle (2 volumes) comprising:
· Volume One (paged 1–521)
· Volume Two (paged 522–1054)
- 20 Apr 2021 R3 Respondent’s Further Tender Bundle
(paged 1–139)- 23 Apr 2021 R4 Respondent’s Reply to Applicant’s Closing Submissions (paged 1–3) 8 Oct 2021 8 Oct 2021 A1 Applicant’s Statement of Facts, Issues and Contentions (paged 1–5) - 29 Jan 2021 A2 Applicant's Submissions (paged 1–23) 28 Apr 2021 28 Apr 2021 MFI (A3) Statements from the Applicant:
· Letter dated 27 August 2018.
· Letter dated 2 March 2020
· Letter dated 5 March 2020
· Letter dated 6 July 2020
· Letter dated 21 October 2020
· Letter dated 16 April 2021
Various 29 January 2021 MFI (A4) Email (1 page) covering:
· screenshots of images of Applicant’s Refugee Identification from Croatia
(2 pages).- 29 Jan 2021 MFI (A5) Applicant’s Family’s Refugee Identification documents from Croatia (5 pages) - 29 Jan 2021 MFI (A6) Various academic and news articles:
· Australian Institute of Family Studies – Children's exposure to domestic and family violence (12 pages)
· Balkan Investigative Reporting Network (‘BIRN’) – Croatia: 2019 Blighted by Anti-Serb Hatred (6 pages)
· BIRN – ‘Increase in Threats, Hate Speech’ Against Croatia’s Serbs
(2 pages)· BIRN – Croatian Serbs Attacked by Masked Assailants in Two Bars
(3 pages)· BIRN – Croatian Veterans ‘Need Care for Post-War Stress’ (3 pages)
· BIRN – Croatian War Crimes Prosecutions ‘Stagnating’, Warns Report (3 pages)
· European Journal of Psycho-traumatology – Offending behaviour: the role of trauma and PTSD (paged 1–4)
· European Journal of Public Health – Early recognition of mental health problems in Croatia
(extract – paged 594)· Family Court of Australia – Exposure to family violence and effect on children
(2 pages)· France24 – Croatia charges 5 with hate crimes for attack on Serb bar
(3 pages – illegible)· Impact of parents substance misuse on children an update (paged 108–117)
· Int’l Society for Traumatic Stress Studies – Traumatic Stress and Substance Abuse Problems
(paged 1–5)· Inter University Centre Dubrovnik – Segregation from an early age
(13 pages)· Psychiatric Times – Depressive Symptoms Associated With Aggression (9 pages)
· The Conversation – Complex trauma - how abuse and neglect can have life-long effects (4 pages)
· The Formative Years: UNICEF’s work on measuring early childhood development (4 pages)
· The role of the family in child wellbeing (paged 1–15)
· Times of Israel – Croatia Must Live Up to Its Heavy Holocaust Guilt (4 pages)
· Total Croatia News – Drug Abuse on the Rise in Croatia (7 pages)
·Wikipedia – Association of Croatian Orthodox Believers (2 pages)Various 17 Feb 2020;
29 Jan 2021;
28 Apr 2021A7 Letter from Adele House (2 pages) 20 Aug 2018 29 Jan 2021 A8 Letter from Mr BM (2 pages) 14 Jan 2021 29 Jan 2021 A9 Letter from Chaplain JB (1 page) 13 Jan 2021 29 Jan 2021 A10 Letter from Ms KT (1 page) 8 Jan 2020 29 Jan 2021 A11 Photographs of the Applicant and his family
(7 photographs spread through 4 PDF files)- 29 Jan 2021 A12 Letter from Serbian Orthodox Church (1 page) 21 Sep 2018 29 Jan 2021 A13 Letter from MM (Senior Case Manager - Adele House) (1 page) 20 Aug 2018 29 Jan 2021 A14 Letter from Ms MZ (family friend of Applicant) (1 page) 6 Feb 2020 29 Jan 2021 A15 Letter from Ms MZ (family friend of Applicant) (1 page) 2 Mar 2020 29 Jan 2021 A16Letter from Ms NJ (1 page)2 Mar 202029 Jan 2021A17Letter from Ms NJ (1 page)
25 Jan 202129 Jan 2021MFI (A18)
Letters from Mr VJ:
· 7 February 2020 (2 pages)
· 13 February 2020 (1 page)
· 21 October 2020 (1 page)
· 25 January 2021 (1 page)Various29 Jan 2021A19 Psychologist Report by Yvette Aiello, Clinical Psychologist
(paged 1–13)29 Jan 2020 29 Jan 2021 A20 Psychologist Report by Elizabeth Clancy, Psychologist
(paged 1–13)11 Feb 2021 9 Mar 2021 A21 Letter from Ms WD, Adult Drug Court Counsellor (1 page) 11 Feb 2021 11 Feb 2021 MFI (A22) Emails from Ms SJ (Applicant’s mother):
· email dated 7 February 2021 (2 pages);
· email dated 5 March 2021 (1 page);
· email dated 25 January 2021 (1 page).
Various 10 Feb 2020;
29 Jan 2021A23 Applicant’s Final Submissions 20 Sep 2021 24 Sep 2021 SUSPECTED DUPLICATES / DOCUMENTS WHICH ARE NO LONGER CURRENT MFI Applicant’s Reply to Respondent’s 2020 SFIC
(17 pages)30 January 2020 30 Jan 2020 MFI Immigration Detention Records relating to the Applicant (paged 1–39) - 4 Feb 2020 MFI Applicant’s Submissions on Best Interests of Minor Children in Australia for the 2020 hearing (3 pages) 14 Feb 2020 14 Feb 2020 MFI Respondent’s Closing Submissions following 2020 hearing (10 pages) 17 Feb 2020 17 Feb 2020 MFI Statutes, Treaties and Policy relating to citizenship in the Republic of Serbia, the Socialist Republic of Serbia, and Croatia comprising:
· ‘Citizenship: Application for Acquiring Croatian Citizenship’ (5 pages);
· Citizenship Act of the Socialist Republic of Serbia (8 pages);
· ‘Citizenship’ web page dated 13 February 2020 sourced from Serbian Government web-page (4 pages);
· Croatian Citizenship Act (reproduced at TB20);
· Law on Citizenship of the Republic of Serbia (14 pages);
· Nationality Act of 1977 of the Socialist Republic of Croatia (7 pages);
· Procedure instructions – determination of Croatian citizenship (4 pages).
Various Various MFI Croatia country information:
· United States Department of State ‘Croatia 2015 Human Rights Report’
(22 pages);· United States Department of State ‘Croatia 2018 Human Rights Report’
(20 pages);· Freedom in the World 2018 – Croatia (6 pages);
· UNHRC – Citizenship and Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia (26 pages).
Various Various Note: At the hearing, the Applicant’s representative withdrew exhibits numbered A16, A17, and A18 (series of four letters): see Transcript, page 55, lines 16-39.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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