RXWD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2327
•18 June 2020
RXWD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2327 (18 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2079
Re:RXWD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 June 2020
Date of written reasons: 15 July 2020
Place:Sydney
The decision of a delegate of the Respondent dated 27 March 2020 is set aside and, in substitution, the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa is revoked.
..............................[SGD]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – where offending very serious – where risk of recidivism – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – non-refoulement obligations – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
DOB18 v Minister for Home Affairs [2019] FCAFC 63
DFTD v Minister for Home Affairs [2020] FCA 859
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
15 July 2020
The applicant was born in 1997 in southern Sudan, into a world afflicted by famine and tribal and ethnic violence. His family is Dinka, of the Twic Mayaardit tribe. They are Christians. His mother’s birth village, Gogrial, is now part of the state of South Sudan, which seceded from Sudan in 2011 after a bloody civil war.
At three years of age, the applicant and his four siblings were taken by their mother to Egypt, where they found some safety in various displaced persons camps.
His father visited once, when the applicant was about six, but he did not stay for long. The family do not know what happened to him. Hundreds of thousands have died from war and famine in this poorest of African countries in past decades.
The applicant’s family were identified for resettlement by the Australian government, and in August 2010, they arrived in Sydney as refugees. The applicant was barely a teenager. At 23, he is now a young adult.
Upon arrival, he was granted a Global Special Humanitarian (Class XB) (Subclass 202) visa.[1]
[1] Exhibit R2, G10 at 78.
The applicant was placed in an ordinary school in western Sydney. His English was understandably poor.
There is no evidence before the Tribunal that he received any special education or special treatment relating to his early experiences in Africa.
There is a recent diagnosis of post-traumatic stress disorder before the Tribunal but an absence of evidence that he has received counselling or treatment for any stress related condition.[2]
[2] Exhibit A8, psychological report of Rosara Squirchuk dated 20 May 2020.
At 15, he started drinking, associating with the wrong crowd, and using cannabis. His record of offending started to grow. By the end of his seventeenth year, he had accumulated a non-trivial record in the local Children’s Court.
In 2015, when he was 18 years old, his family moved to Melbourne. He had planned to go with them, but he was in custody. When he was released, he remained in Sydney. He resided with his uncle. The arrangement soon fell apart, and he started couch surfing and sleeping in garages. He was effectively homeless.
He fathered a child, but did not sustain a relationship with the mother. He gave evidence that he hopes for reconciliation with her and to develop a strong relationship with his son. The boy is now two years old and, at 23, the applicant is still a young adult.
PRESENT PROCEEDINGS
On 4 October 2019, the applicant was sentenced to a term of imprisonment of 16 months commencing with a non-parole period of 10 months, for an offence of Demand property in company with menaces with intent to steal, committed on 31 December 2018. The sentence expired on 30 April 2020. The non-parole period expired on 30 October 2019 and he was then transferred to immigration detention.
On 25 October 2019, the Department of Home Affairs (the Department) cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
The Department informed the applicant that his visa was mandatorily cancelled by letter dated 25 October 2019. The Minister was satisfied that the applicant had a substantial criminal record and therefore did not pass the character test; and that he was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a State. Under s 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(4) the Minister may entertain an application by a person whose visa has been mandatorily cancelled to revoke the cancellation decision.
The applicant requested the Minister revoke the Mandatory Cancellation Decision (MCD). On 27 March 2020, the Minister’s delegate declined to do so.[3]
[3] Exhibit R2, G2.
On 7 April 2020, the applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[4]
[4] Exhibit R2, G1 at 1.
The Tribunal has jurisdiction to review a decision of a delegate not to revoke a MCD, by reason of s 500(1)(ba) of the Act.
THE HEARING
The matter was heard by the Tribunal on 9, 10 and 11 June 2020.
The applicant’s lawyer prepared the materials and submissions for the hearing but withdrew from the case before the hearing. The applicant said he had not been able to contact his lawyer.
I therefore adjourned the proceedings, to allow the applicant to see whether he could arrange representation.
The deadline for deciding the matter imposed by legislation (the 84 day requirement) was 23 June 2020.
There were no witnesses other than the applicant, and his brother Mr P., who gave evidence by telephone.
I made an order for confidentiality, because the applicant’s criminal record shows instances of offending as a minor.
The hearing resumed on 10 June. The applicant informed the Tribunal that he had not been able to contact his lawyer. He did not seek an adjournment.
EVIDENCE
Evidence before me at the hearing consisted of:
Applicant’s materials
·Statement of Issues, Facts and Contentions of the Applicant;
·Statutory Declaration; RXWD, dated 19/05/2020;
·Statutory Declaration; Mrs AM., dated 21/05/2020;
·Monitoring Review South Sudan; January – March 2020;
·Article; ‘“Deliberate starvation” tactics used in South Sudan could be a war crime’, dated 20/02/2020;
·Article; ‘South Sudan Famine Threat: UN food Security…’, dated 20/05/2020;
·UNHCR Position Paper on return to South Sudan;
·Psychological report by Rosara Diana Margaret Squirchuk, dated 20/05/2020;
·Resume; Rosara Diana Margaret Squirchuk;
·Witness Statement; Mr IR. And photo of passport, dated 20/05/2020;
·Witness Statement; Ms RR.;
·Joint Family Statement, dated 21/05/2020;
·Text message text; Mr TA.
Respondent’s materials
·Documents provided under s 501G(2) of the Act, ‘the G-documents’;
·A Tender Bundle;
·The Respondent’s Statement of Facts, Issues and Contentions
FINDING ON CHARACTER TEST
Under s 501(3A) of the Act, the Minister must cancel a non-citizen’s visa if the Minister is satisfied that the non-citizen does not pass the character test, because the person has a substantial criminal record, having received a sentence of imprisonment of 12 months or more; and the person is serving a sentence of imprisonment on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A decision under s 501(3A) is not reviewable by the Tribunal: s 500(4A)(c).
Under s 501CA(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 s 501); or (ii) that there is another reason why the original decision should be revoked.
If the delegate of the Minister decides under s 501CA(4) not the revoke the cancellation, an application may be made to the Tribunal for review of the decision: s 500(1)(ba). The Tribunal is required to consider each of the limbs arising under subsection (4): first, whether the person passes the character test (as defined in s 501); and second, if the non-citizen does not pass the character test, whether there is ‘another reason’ why the original decision should be revoked.
The decision must be revoked if the Tribunal, standing in the Minister’s shoes, is satisfied either that the person passes the character test (as defined by s 501); or that there is another reason why the original decision should be revoked. In s 501CA(4), ‘may’ is to be interpreted as ‘must’.[5]
[5] If the conditions of s 501CA(4) are satisfied then the mandatory cancellation decision must be revoked: see YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, per Collier J at [31].
The question whether a person passes the character test is a matter upon which a finding of fact must be made by the Tribunal. However, as a matter of law, a person does not pass the character test if he or she has a ‘substantial criminal record’: s 501(6)(a); and a person has a ‘substantial criminal record’ if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7). Therefore, as a matter of law, a person sentenced to a term of imprisonment of 12 months or more has a substantial criminal record and does not pass the character test.
I mention in passing that, as a matter of construction, whether a person was wrongly convicted, or unduly sentenced, is not relevant to a determination of whether the person was in fact sentenced for 12 months or more.[6] That is not to say that matters of fact can never arise when dealing with the first limb relating to the character test. For example, it must be shown that the applicant is the person who stands convicted of the offence in question.[7]
[6] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per Colvin J at [193].
[7] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, at [58], [67].
In summary, the applicant does not pass the character test if he or she has a substantial criminal record by reason of being sentenced to 12 months or more for an offence.
The applicant does not dispute the fact that he was in fact sentenced on 4 October 2019 to a term of imprisonment of 16 months for the offence of demanding property with menaces.
I find that:
(a)The applicant was sentenced on 4 October 2019 to a term of imprisonment of 16 months for the offence of demanding property with menaces;
(b)He therefore has a substantial criminal record within the meaning of s 501(7)(c);
(c)He therefore fails the character test.
The question for the Tribunal to decide is whether there is ‘another reason’ why the mandatory cancellation should be revoked: s 501CA(4)(b)(ii).
A PRELIMINARY QUESTION
The evidence gives rise to a preliminary question. To which country would the applicant be returned in the event that the MCD is not revoked?
There is no direct evidence before the Tribunal of the applicant’s place of birth, such as a birth certificate. The respondent contends that the evidence before the Tribunal supports a finding that the applicant is entitled to South Sudanese citizenship, based upon his mother’s birthplace in Gogrial, which is now part of South Sudan; his ethnic status as Dinka; and his assertions contained in his Personal Circumstances Form and statutory declaration that he was born in southern Sudan.[8]
[8] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions at [49].
Unfortunately, the secondary material before the Tribunal does not clearly support the respondent’s contention. The Country of Origin (COI) information for South Sudan has been provided to the Tribunal.[9] The COI Report references a 2017 US Department of State report for Sudan with reference to rights to citizenship of the new state of South Sudan, which came into existence in 2011. This report suggests that eligibility for citizenship is determined according to parental birth or belonging to one of the ethnic communities of South Sudan. The applicant was born in southern Sudan 14 years prior to the establishment of South Sudan as an independent state.
[9] Exhibit R3, TB1 at 1-9.
The COI notes that ‘During the transitional period prior to South Sudan gaining independence on July 2011, South Sudan and Sudan failed to reach any agreement on attribution of citizenship.’[10]
[10] Exhibit R3, TB1 at 2.
A 2017 Report from the NGO Minority Rights Group International (MRGI), notes that Sudanese law allows for the automatic loss of Sudanese citizenship from those entitled, de jure or de facto, to South Sudanese citizenship. Such persons are not permitted to hold Sudanese citizenship. This has left many South Sudanese at the risk of statelessness.[11] The MRGI Report states:
The changes to the Sudanese Nationality Law providing for automatic loss of nationality to any person presumed to have acquired South Sudanese nationality left many at risk of statelessness. Those particularly affected were individuals of mixed parentage, and members of ethnic groups that straddle the border between north and south, as well as individuals belonging to ethnic groups perceived to be southern, but whose families had been resident in northern Sudan over many generations. A very substantial number of people resident in Sudan who, though perceived as ‘southern’ in origin, identified as Sudanese, spoke no language of South Sudan, and had no meaningful connection to South Sudan were also regarded as having acquired South Sudanese nationality, because of the extremely broad terms of the South Sudanese nationality law. They found themselves unable to obtain a Sudanese national identity card under a new system for civil registration introduced shortly after the secession of South Sudan. Even if these people had a theoretical right to South Sudanese nationality, many had no proof of a connection to South Sudan. Several hundred thousand people were arbitrarily deprived of Sudanese nationality in this way (based on UNHCR estimates of long-term displaced southerners remaining resident in the north), of which a substantial though unknown number also became stateless.
[11] Exhibit R3, TB1 at 3.
The COI Report also refers to a 2018 study funded by the UNHCR on statelessness in South Sudan.[12] The result of changes implemented by the newly constituted Republic of Sudan is that those who qualify for citizenship of South Sudan will automatically lose their Sudanese citizenship and this has led to a situation where many may become stateless.
[12] See ‘A Study of Statelessness in South Sudan 2017’ UN High Commissioner for Refugees, 29 May 2018, p. 2, CIS7B839411163 TB1/5 fn 25.
On the basis of this information, it is not possible to be confident that the applicant is a citizen of South Sudan.
If his visa is revoked the applicant may well spend a lengthy period of time in immigration detention while the issue of his citizenship status is resolved. This may involve a long period of uncertainty, perhaps even years of detention.
However, it appears that the risk of prolonged immigration detention is not a factor to be considered in exercising the discretion to revoke the MCD. In DFTD v Minister for Home Affairs [2020] FCA 859 at [54], Snaden J held that:
The prospect of the applicant’s being subjected to prolonged immigration detention was not a consideration of which the subject matter, scope or purpose of the Act (or the relevant parts of it) required that the Tribunal take account before declining to exercise its power under s 501CA(4) of the Act.
A SECOND PRELIMINARY QUESTION
A second preliminary question concerns the extent to which the Tribunal may consider evidence or make findings which contradict or detract from a sentence or conviction forming part of the applicant’s criminal history.
There is clear authority for an exclusionary rule that it is not permissible for the Tribunal to impugn the sentence for the offence upon which the jurisdiction of the Tribunal is founded.[13] Where the applicant seeks to adduce evidence for no purpose other than to impugn the sentence in respect of the jurisdictional offence, the Tribunal should decline to allow the evidence. This is so even though the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate: AAT Act, s 33(1)(c).
[13] Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Sheppard J at p. 468; per Fox J at p. 445; Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, Branson, Lindgren and Emmett JJ, at 244, [40]-[42]; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J at [45]; cited with approval in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, at [69]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, at [78]-[79] per Bromberg J; Minister for Home Affairs v Sharma [2019] FCA 597, per Anastassiou J; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF).
The justification for the exclusionary rule is founded on considerations of logic and policy. It is ‘illogical’ to allow the Tribunal to undercut the foundation of its own jurisdiction; and bad policy to allow convictions and sentences imposed by criminal courts to be challenged before an administrative tribunal.
The argument from logic is double barrelled. One explanation is that the Tribunal’s jurisdiction is based on a complex consisting of a number of elements: one of which is the mandatory cancellation of the visa by the Minister by reason of the sentence received (of 12 months or more) in a criminal court.[14] The Tribunal’s jurisdiction to review the decision not to revoke the mandatory cancellation at the request of the applicant assumes the sentence imposed as a factual precondition; and it would contradict the Tribunal’s jurisdiction to impugn it. Another explanation is that if the visa was mandatorily cancelled on the ground that the person does not pass the character test, having been sentenced to 12 months or more, the Tribunal, having been seized of the matter, cannot proceed to consider whether there is ‘another reason’ for revoking the original decision unless the Tribunal is satisfied that the applicant fails the character test. It is contradictory to entertain evidence at this second stage tending to show that the finding made at the first stage (without which the second stage should not have commenced) was incorrect.
[14] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, at [54], [55], [68].
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]-[79] Bromberg J[15], summarised the relevant principles as follows:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[15] Approved: Minister for Home Affairs v Sharma [2019] FCA 597 per Anastassiou J.
An appeal to the Full Federal Court was dismissed.[16] In dissent, Derrington J undertook an extensive review of the authorities. His Honour considered that whether or not the Tribunal’s jurisdiction was founded on the offence in question, the Tribunal was empowered to examine the facts upon which the conviction was based and receive evidence inconsistent with or which contradicted evidence relied upon by the criminal court when arriving at the conviction and sentence. His Honour rejected the bifurcated approach, and by implication, what I have referred to as the exclusionary rule.
[16] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
It is not hard to manufacture examples where strict application of the exclusionary rule will produce injustice. Evidence of the following kind would need to be excluded: the reappearance of the ‘victim’ of a proven homicide committed by the non-citizen;[17] the recovery of goods in perfect condition alleged at the trial to be damaged or destroyed; proof that an underage girl was not underage; the withdrawal and recanting of evidence critical to a conviction;[18] compelling alibi or DNA evidence not available at the criminal trial; or a clear misdirection of the jury by the trial judge.[19] Where a non-citizen faces imminent deportation, or administrative detention, and the Tribunal faces urgent deadlines, such as that imposed by the 84 day rule, it may be cold comfort that such matters can be put right by an appellate criminal court or a judicial inquiry.
[17] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per Derrington J at [149].
[18] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Fox J at 446.
[19] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234.
More recently, it has been suggested that the question of whether it is permitted to challenge a conviction consisting of a jurisdictional fact is essentially a question of statutory interpretation. In DOY17 v Minister for Immigration and Border Protection [2019] FCA 1592, DOY17 Steward J said:
In my view, it is a matter of statutory construction in each case to determine whether, for the purposes of exercising a particular power, Parliament intended that a decision-maker should be able to go behind a pre-existing criminal conviction.
His Honour also expressed doubt about the bifurcated approach, saying that he was reluctant to embrace it.[20]
[20] DOY17 v Minister for Immigration and Border Protection [2019] FCA 1592, per Steward J at [36].
My conclusion relating to the proper approach of the Tribunal when exercising the power of review under s 501CA(4) is as follows.
In relation to the offence upon which the jurisdiction of the Tribunal is founded, the conviction or sentence cannot be challenged or impeached in order to show that the applicant is not a person who does not pass the character test; or that there is ‘another reason’ why the original decision can be revoked.[21]
[21] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [68].
Subject to this exclusionary rule, there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, but the Tribunal must tread warily.[22] The consideration of irrelevant considerations may constitute jurisdictional error; no less than the failure to consider relevant considerations.
[22] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Sheppard J, at pp 468-469.
In assessing the likelihood or reoffending, the Tribunal is entitled to have regard to the entirety of the applicant’s conduct, including the nature and seriousness of conduct which led to convictions, and make its own assessment of the significance of such conduct.[23] However, it would not be appropriate for the Tribunal to express an opinion that the applicant was wrongly convicted of any of the offences contained within the record. The decision-maker is not entitled to reach or express a view that the person was wrongly convicted.[24]
[23] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, at [69], citing with approval Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J at [45].
[24] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J at [44].
I also note the distinction between cases where a conviction and sentence follows a contested criminal trial, and cases where there has been a plea of guilty. In the latter, there may be a further distinction between cases where the penalty imposed is based on an agreed statement of facts; and cases where the sentencing facts are contained in unquestioned police allegations. A finding of guilt following a criminal trial will place a heavy onus on the applicant who seeks to challenge the facts on which the conviction is based. The onus will, as a matter of logic, be more easily satisfied where there was a plea of guilty than where there was a contested factual hearing.[25] This practical consideration is amplified where the applicant was unrepresented at the criminal trial.
[25] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J at [43].
EXERCISING THE DISCRETION IN S 501CA(4)
The Minister may give written directions to a person or body having functions or powers under the Act if the directions are about exercising those functions or powers: s 499(1)(b).
The Minister has given a direction in the form of Direction No. 79 in respect of the revocation of mandatory cancellation of a visa pursuant to s 501CA(4) of the Act.
Section 499(2A) of the Act states that a person to whom a direction is given must comply with the direction.
The Tribunal must therefore exercise the discretionary power to revoke an MCD within the framework of Direction No. 79.
DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of key principles. Briefly stated, they are as follows:
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia…;
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. …;
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. …;
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in Australia; and
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Direction No. 79, Part C, identifies the considerations relevant to determining whether to exercise the discretion in s 501CA(4)(b)(ii) to revoke the mandatory cancellation of a non-citizen’s visa.
Paragraph 7(1)(b) states that a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
Paragraph 13(1) provides that where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case (emphasis added).
Paragraph 13(2) refers to three primary considerations that the Tribunal must take into account and provides detailed guidance as to how they are to be assessed. The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 refers to five other considerations that must be taken into account where relevant. Paragraph 14 states that the list includes but is not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], Colvin J emphasised that the other considerations are not secondary or subordinate. His Honour stated:
…Direction 65 [now Direction No. 79] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. [Emphasis added]
Paragraph 8 contains three important rules about weightings.
1.First, both primary and other considerations may weigh in favour of, or against, revocation: 8(3).
2.Secondly, primary considerations should generally be given greater weight than the other considerations: 8(4).
(c)Thirdly, one or more primary considerations may outweigh other primary considerations: 8(5).
I turn to consider the primary and other considerations as required by Direction No. 79.
PRIMARY CONSIDERATION A (PC1) – THE PROTECTION OF THE AUSTRALIAN COMMUNUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT: 13.3
PC1 - Protection of the Australian community from criminal or other serious conduct
The applicant has an extensive criminal record, both as a juvenile and as a young adult. The Children’s Court records eight court appearances involving 19 offences committed between 18 March 2013 and 17 June 2015 when he was 16 and 17 years old.
I set out the applicant’s Offending Record as a minor at Appendix A.
The offending as a minor fell into the following categories:
·Shoplifting 1
·Goods in personal custody 1
·Break and enter 5
·Steal from person 2
·Refuse comply with direction 1
·Enter enclosed lands 2
·Possess prohibited drug 1
·Stalk intimidate 4
·Affray 2
The juvenile criminal history report covers offending between the ages of 15 and 18. In assessing the overall level of criminality involved, I note that report refers to 19 court entries relating to eight original offences and 11 associated bond breaches. Of the eight original offences, four were dismissed with caution.
The eight original offences break down into two offences against the person (affray, stalk/intimidate); two disorderly offences (minor possession, refuse to comply with direction); and five offences against property (break and enter, stealing, and suspected goods in possession).
Overall, this is a poor record but not a hopelessly poor record. It is suggestive of youthful waywardness, perhaps even delinquency, but it is not egregious. For example, there is no pattern of increasing violence.
I set out the applicant’s Offending Record as an adult at Appendix B.
In relation to the applicant’s record of adult offending, there are 27 entries, consisting of 22 ‘original’ offences, and five call ups relating to prior offending. Of the 22 offences, twelve arose from five incidents,[26] and three resulted in ‘conviction no penalty’.
[26] The reference numbers in parenthesis refer to numbering in Appendix B: (4,5); (11,12,13); (15,16); (17,18); (22,23,24).
Of the 22 original offences, there were: four property offences;[27] eight public order offences;[28] three driving offences arising from one incident;[29] three offences against the person;[30] and four offences involving police.[31]
[27] Demand property (27); Shoplifting (1); Destroy damage property (15); Larceny (10).
[28] State incorrect name (4); Travel without ticket (5, 7); Trespass (17, 19, 25); Attempt stalk (16); Offensive behaviour (26).
[29] Three driving offences (arising from a single instance); Negligent driving (11); PCA (12); Unlicensed driver (13).
[30] Common assault (6,18); Robbery in company (9).
[31] Assault or resist officer (14, 22, 23, 24).
ASSESSMENT
My primary finding that the applicant does not pass the character test requires me to consider whether there is ‘another reason’ why the original decision should be revoked.
The applicant has an extensive criminal record. He pleaded guilty to each offence of which he stands convicted. Therefore, in none of the cases were the sentencing facts tested in a contested criminal trial. The applicant said that the advice of his Legal Aid solicitor was to plead guilty. But he did not believe that he was guilty of some of the offending reported in the criminal record.
At the hearing before the Tribunal, the applicant was unrepresented. He was examined at length by the respondent about his record. In some cases he sought to minimise the extent of his offending and even disputed his guilt. In other cases he readily admitted his guilt. The respondent submits that the answers given by the applicant may be considered in assessing the likelihood of future offending; but the Tribunal should not assess for itself the facts upon which he was sentenced, for that would necessarily impugn the findings of the criminal court or go behind the convictions.
As I have discussed above, in relation to the offence which triggered the mandatory cancellation, and therefore the Tribunal’s jurisdiction, no challenge can be made to the factual basis underpinning the conviction.[32] To do so would be to question the legality upon which the Tribunal exercises jurisdiction. In this context the circumstances of the conviction may only be reviewed for a purpose other than impugning the conviction itself.
[32] See above, fn 13.
The G-documents contain statements of facts prepared by officers of the NSW Police. These statements are prepared for the purpose of judicial proceedings and used as a basis for deciding matters such as bail or sentence by the Magistrate. Some of the Fact Sheets contains annotations and amendments[33] and one is headed ‘amended facts’.[34] I proceed on the basis that these statements are a primary guide to the facts to which the applicant pleaded guilty; but they have not been tested by cross examination and at least some of them may be challenged in these proceedings.
[33] Exhibit R3, TB5 at 48.
[34] TB/54.
As noted above, the applicant pleaded guilty to each of the offences considered below. He also provided a statutory declaration in which he accepted responsibility for the various offences he had committed. This document was tendered to the Tribunal.[35] He was asked whether he had read the document. It was obvious from his responses that he had little understanding of the concept of a statutory declaration, and that he had difficulty reading it. He said that he had not read all of it, because he had some trouble reading. He said that his lawyer had not read it all to him, but he was willing to affirm its contents because he had read most of it.[36]
[35] Exhibit A2, RXWD statutory declaration dated 19 May 2020 at [9].
[36] Transcript, Wednesday 10 June 2020 at 30.
Some of the evidence he gave to the Tribunal is inconsistent with the admissions contained within his statutory declaration; and on occasion inconsistent with his various guilty pleas. The applicant’s standard of education and low level of English proficiency may provide a partial explanation. His statutory declaration was prepared on his behalf by his lawyer. As noted above, his lawyer was not present at the hearing to represent him, and it is fair to say that he struggled as an unrepresented litigant.
At the hearing, considerable time was spent on these sentencing facts. The respondent’s solicitor was keen to probe the applicant’s level of remorse, as being no doubt relevant to the possibility of future offending.
Direction No. 79 does not explicitly refer to remorse as a consideration in visa cancellation matters. However, the Tribunal’s discretionary power to affirm or revoke the mandatory cancellation requires consideration of the safety of the Australian community, which involves assessing the likelihood of recidivism, and this may involve questions of acceptance and remorse. A lack of remorse points to moral indifference; and this may be associated with a higher risk of future offending.
However, with the caveat noted above relating to the jurisdictional offence, (that is, Demand Property with Intent to Steal: Hxxxxx228), the applicant is at liberty to challenge the accuracy of the sentencing facts. The Tribunal is required to weigh his evidence in assessing this primary consideration.
I propose to consider each offence in chronological order.
(a) Common Assault (Hxxxxx511)
On 17 August 2015, the applicant approached a person he did not know on a railway station and demanded cigarettes. It was alleged that he punched the person twice.
He was arrested shortly thereafter and charged with common assault. He was in custody until 3 December 2015, when he was sentenced to a term of imprisonment of 12 months.[37] The sentence was suspended,[38] partly because he had spent the intervening period in custody.[39] In sentencing the applicant, the Magistrate said:
“Mr [Applicant], do you understand what I’m doing for you today? I’m giving you a chance.”[40]
[37] Hxxxxx511
[38] Exhibit R2, G6 at 54.
[39] Exhibit R2, G6 at 54.
[40] Exhibit R2, G6 at 55.
The applicant was also fined $200 for travelling on a train without a ticket,[41] and $200 for giving a false name to an official.[42]
[41] Hxxxxx935
[42] Hxxxxx935
At the present hearing, the applicant was asked about the offence of assault. He said:
Question: It says that you punched the person twice. Where did you punch them?
Applicant: I don’t really remember to be honest. I blacked out at that moment.[43]
[43] Transcript, 10 June 2020 at 40.
The applicant did not question the correctness of this conviction or his sentence.
(b) Robbery in Company (Hxxxxx434)
On 1 January 2016, the applicant was arrested on a charge of robbery in company,[44] under s 97(1) of the Crimes Act 1900 (NSW), which provides:
Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,
robs, or assaults with intent to rob, any person, or
stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same,
shall be liable to imprisonment for twenty years.
[44] Exhibit R2, G5 at 37.
The Police tendered an Agreed Facts document, dated 13 September 2016.[45]
[45] Exhibit R3, TB6 at 73.
From this document it appears that on the last day of 2015, the applicant was hanging around Blacktown with some other African youths. He was shirtless.
Just before midnight, he accosted the complainant, a young man on his way home from work, and demanded cigarettes.
The Agreed Facts document records:
(d)The applicant struck the complainant to the left side of his face with his right hand (heel/palm of the hand) which detached the complainant’s head phones from his mobile phone in his right jean pocket;
a.The complainant took out a packet of cigarettes from his left jean pocket and handed them to [the Applicant], who took out a cigarette;
b.The applicant said to the complainant “you want him to pull out his knife”?;
c.The complainant feared that he was going to be robbed;
d.The applicant asked the complainant “what phone you got?” and reached into his right jean pocket.
The applicant then hugged the complainant and said “only kidding”. It seems that a car had stopped alongside them containing two police officers. The applicant told the police that they were friends with the complainant but the complainant shook his head. The applicant and his accomplice were arrested and taken to Blacktown police station.
The applicant was not charged with stealing or attempting to steal a mobile phone. It appears that the particulars of the charge related to the taking of cigarettes. This was pointed out by the applicant’s lawyer. The learned judge noted:
There was some discussion during the sentencing submissions in this that I would not be entitled to take into account that anything more than the cigarettes were stolen. They obviously are the items on the indictment pleaded. However, the reality is that police interrupted this robbery. It is my finding, which I am well and truly satisfied beyond reasonable doubt on the facts before me, is that inevitably they were also going to steal the phone from the victim of this robbery. I do not accept that the Crown have to separately indict an attempt robbery. The fact that the robbery was interrupted speaks for itself and that was ultimately, in my finding, what was going to occur.
The judge’s sentencing remarks suggest that the applicant was sentenced on the basis that the applicant intended to steal a phone, and it was the arrival of the police that prevented this from occurring.
On 12 December 2016, the applicant was sentenced to two years and four months with a non-parole period of 18 months. The sentence was backdated to commence on the date of the offence.[46]
[46] The 12 month suspended sentence was fully absorbed within the sentence for the robbery.
The applicant was released on parole on 30 June 2017.
At the hearing, the applicant was adamant that this was not a fair conviction, or sentence.
Question: I’ll read to you part of what the sentencing judge said and then ask you whether you agree with it or not …
Applicant: To be honest, I disagree to everything that happened in that trial because the way I look at things, you know, I never - I never - I never, like, wanted to rob the guy or anything, you know, and I never even robbed anyone. I only took two cigarettes off him which is only - that’s the only thing that I left the scene with, you know, before I even left the scene. And then the police were there, you know, and then once the police arrived, then from there they say stuff and everything and then the cigarette, they went and grabbed more cigarettes off the guy and chucked it on the ground, you know? Made it look like we took all of it, and I’m trying to go through his pocket, this and that, that’s what they were saying to me, you know. So from there, when I went to court my lawyers and the barrister, to be honest, like, it looks like they planned it, you know. They convinced me to plead guilty. Only just because I wanted to go home, you know what I mean? Which is why I pleaded guilty. If I take it back right now I won’t even plead guilty for that because I hadn’t done anything. I know that myself, you know.
Question: Did you plead guilty because your lawyers gave you advice to plead guilty?
Applicant: Yes, yes. That’s why I pleaded guilty.
Question: But you think that you didn’t commit a robbery offence?
Applicant: I haven’t, which is why I stayed 12 months in custody without pleading guilty.
…
Question: …The sentencing remarks say that you twice struck the victim to the left side of the face with your right hand, towards the bottom of page 38. Do you deny doing that?
Applicant: No, I haven’t striked him.
Question: You didn’t strike him?
Applicant: I haven’t. All I done like I had a hold of his shirt, you know what I mean, which I never - I should have done that, you know what I mean? I was just intoxicated, I didn’t know what I was doing in the (indistinct) you know. I had a hold of his shirt to sit.
Question: Did you say to the victim, pointing to your co-offender, “You want him to pull out his knife?”?
Applicant: No. There was no knife.
Despite the strenuous nature of the applicant’s denials, I have little difficulty in finding that his conduct on this occasion satisfied the requirements of robbery in company. The offence of robbery does not depend upon the specific identity or value of goods taken, although this may be relevant to the sentence imposed.
I do find it slightly troubling that the applicant was sentenced on the basis that he intended to steal the mobile phone, when this was not put by way of the particulars of the offence. I note the learned sentencing judge’s statement:
It is my finding, which I am well and truly satisfied beyond reasonable doubt on the facts before me, is that inevitably they were also going to steal the phone from the victim of this robbery.
The learned judge did not think this finding would make much difference. He said:
I do not think that much turns on such a finding. The seriousness of the offence here is two men ganging up on someone simply walking home from work, intimidating them, putting them in fear, exhibiting a level of violence to them in order to obtain what they want from them. As it turns out all they obtained was the cigarettes, but that was not the only intent of the particular robbery.
It is important to underline his Honour’s finding that the applicant intended to steal the phone and failed to do so because of the arrival of the police. Whether this was a proper exercise of the sentencing discretion on the facts as presented to the trial court in the indictment is not a matter before the Tribunal. I merely note that a conviction for robbery in company would require no more than the taking of some identifiable property, and a few cigarettes would suffice.
The judge also made findings in relation to rehabilitation and remorse. His Honour referred to a psychological report which outlined the applicant’s history of dispossession. He was unable to find that the applicant had strong prospects of rehabilitation, and was not confident that the applicant had true insight into his offending.
It is apparent from the evidence given by the applicant at the hearing that he has a strong sense of injustice about this conviction and sentence. He said that he had preferred to stay in prison for all of 2016 rather than plead guilty, but he was convinced to put in a plea of guilty in the hope that he would receive a suspended sentence.
I also note that the trial judge did not see this as a serious case of robbery or an offence involving significant violence. In terms of the level of violence involved, the learned judge stated:
The level of violence was not greatly significant… It was unplanned; it was spontaneous and in many ways exhibited an intention to intimidate as much as any genuine actual intent to get property. It had its heart really this dominance of individuals, annoyance of them and intimidation as a more impactable (sic) aspect than the stealing of property. So whilst not being as serious as a robbery in the Henry form[47] it was still a serious offence in the grand scheme of things.[48]
[47] The case is referred to without citation but is probably a reference to the decision in R v Henry [1999] NSWCCA 111; see also R v Henry [2007] NSWCCA 90.
[48] Exhibit R2, G5 at 40.
For present purposes, I am satisfied that the applicant committed this offence. I accept the judge’s finding, as I must, that it was not at the higher scale of this offence, although it was still a serious offence, and one that did not involve much if any actual physical violence. His Honour’s analysis is not entirely inconsistent with the applicant’s denial that he struck the victim during the course of this robbery.
I have considered this offence in some detail because it is, by reference to the maximum penalty of 20 years, the most serious offence charged against the applicant. The sentence actually imposed by the trial judge reflected that it was at the lower end of the spectrum for the offence.
(c) Driving offences (Hxxxxxx692)
On 12 November 2017, the applicant was involved in a motor vehicle accident. He was driving a car for the first time. The car he was driving rear-ended a car that had stopped at a junction. He was charged with the following three offences:
Hearing
Age
Offence
Penalty
27/03/2018
21
Negligent driving
$700
PCA
$1,000
Never licensed driver
$600
The following summary, put by the respondent at the hearing, was accepted by the applicant as a correct factual summary.
Question: You intended to slow down the vehicle, but instead of applying the brake you applied the clutch. Your vehicle collided with the back of another vehicle and stopped at the intersection. That vehicle pushed forward and collided with the back of another vehicle. Everyone exited from their vehicles and exchanged details. No persons were injured. Police attended a short time later.
The New South Wales Fire Brigade attended to clean fluid leaking from the vehicle. Everyone was breath tested. You returned a positive roadside breath test and were placed under arrest and taken to Blacktown Police Station. You said that you’d started drinking alcohol at the Star Casino at around 7 am on 12 November 2017 and stopped drinking at around 2.30. You didn’t eat any food during that time. You said that you’d consumed around five schooners of Bourbon, but were vague about the exact alcoholic beverage numbers and their quantity. You underwent a breath analysis and returned a reading of .105 grams of alcohol at 210 litres of breath and then, you were arrested. Is that a correct summary of the facts for those three driving charges?
Answer: Yes, it’s correct.
The applicant did not dispute his guilt in these matters.
The charges arising from this incident were all dealt with by way of fine. The degree of intoxication involved was not trivial and the fact that the applicant was never licensed, are obviously matters of concern.
This incident is the only offence involving a motor vehicle in the applicant’s criminal history.
(d) Resist arrest (Hxxxxxx993)
On 4 March 2018, the applicant was arrested in connection with suspicion of stealing, but it was later discovered that he was not involved in the stealing. He was handcuffed and resisted arrest. He was convicted of resisting officer and fined $300.[49]
[49] See exhibit R3, TB5 at 48.
During the hearing the applicant responded to questioning as follows:
Question: It says that on 4 March 2018, police were patrolling the Doonside area in relation to a stealing offence that had occurred at a BWS Liquor Store. Police were patrolling in Doonside when they had observed a male person as being involved in the earlier stealing offence. Police observed, walking with that person, a Sudanese male person, who was yourself. Police stopped their motor vehicle and spoke with both you and the other person and said that you were currently arrested for stealing. One of the police officers placed handcuffs on the other person, another one attempted to place handcuffs on you, however, you attempted to pull away from the (indistinct) and said, excuse my language, “I haven’t done fucking nothing wrong, you’re not taking me anywhere”.
Police struggled with you for a short time and you attempted to pull away from the police until they got handcuffs on you. You struggled with police after being handcuffed, where you then stood closer to the constable and said, “Take the handcuffs off me”. You continued to yell at police in a loud voice saying, excuse my language, “Fuck you dog cunts, I haven’t done anything” and again, attempted to pull away from the police. The police officer took you to the ground and then, attempted to secure you. Further investigations show that you were not involved in the stealing and the police attempted to inform you about it, however, when they attempted to speak with you, you would continue yelling and swearing and not listen to police.
You were conveyed to Blacktown Police Station and then were charged. Mr [applicant], is that a correct summary in relation to that resist officer offence?
Answer: Yes. That’s correct.
The applicant was fined $300.
(e) Offensive behaviour (Hxxxxx164)
On 16 June 2018, the applicant got into a fight with another male of African appearance on the concourse of Blacktown Railway station. The melee lasted four minutes. The applicant was subsequently identified from CCTV footage and charged with offensive behaviour.[50] At the hearing he was asked about this offence:
Question: Did you plead guilty to this behave in an offensive manner offence?
Answer: Yes, I plead guilty because that was the actually like, it wasn’t a good behaviour you know what I mean, on the railway station and that.
[50] Exhibit R3, TB5 at 60.
(f) Incident at a restaurant in Blacktown (Hxxxxx303)
On 18 September 2018, the applicant was involved in an incident at a restaurant in Blacktown. The applicant was with two friends. According to the police statement the applicant and his friends were disturbing patrons. The owner said “please stop disturbing my customers”. Words were exchanged involving colourful language and this led to an assault by the other men upon the owner. It is alleged that the applicant joined in and slapped the owner with his left hand.[51]
[51] Exhibit R3, TB5 at 56-7.
The applicant said in evidence that this incident arose because of a refusal by the restaurant owner to serve him because he was African. He said that they had paid for food but the owner did not want to serve them. He admitted to slapping the owner in the ensuing melee.
For this offence he was charged with common assault and received an intensive corrections order for nine months.
In evidence, the applicant said:
Question: You slapped the restaurant’s manager?
Answer: Yes, he didn’t want to serve us, that’s why I - I already - like, I already got the receipt, I paid money and everything. So, I was just waiting, you know. I was speaking to one of my aunties, that’s the one, her customer, basically, you know. Is my - she is my aunty, you know what I mean?
Question: Sorry, who was your aunty?
Answer: Her customer. The one that is saying, “Don’t disturb my customers”, that’s my aunty. I’m talking to my aunty. We should have said to him, “None of your business”, you know.
Senior Member: Mr [applicant], why did you slap Mr WWW?
Answer: To be honest, he actually, like, he got me mad, you know, because I’m waiting for my, what you call it, you know, for my service basically, you know what I mean? So, they gave me the receipt and everything; I paid money already.
Senior Member: You said your aunt was the customer?
Answer: Yes, because he tried to give me money and said, “Leave”. He gave me - he put the money on the table and he’s like, “Leave”. I was, like, “I don’t want the money, I came here to buy something, you know, to eat”. So, he just served me what I want and I’m leaving, you know. He said, “No, we can’t serve you, you got to leave”. “What for?”, like, “You’re disturbing my customers”, I said, “What customer am I disturbing? That’s my aunty, you know”. And that’s how everything started getting, you know I mean, into, how do you say, you know, like, everything start firing up, you know. He start saying words, I start saying words. Yes. And then, everything just got out of hand from there.
Question: Did you hit him?
Answer: No, I would have slapped him, that’s it.
Question: But you slapped him because he was saying words to you?
Answer: Yes, because basically, that’s being rude, you know.
Question: And is that something you think is acceptable, for you to - - -?
Answer: No, it is not. It’s not. I should have never done it, to be honest, you know, but I know, I wasn’t thinking right.
Question: Had you been to that restaurant before …..?
Answer: Many times.
Question: And on previous occasions, had he refused you service?
Answer: Not really, but we did have something in common, you know, so we had like arguments and that before. It’s not new, he knows me, you know. That’s why.
Question: Why do you think he refused your service tonight? Were you being very loud with your mates, with your friends?
Answer: I don’t know. I don’t know. I think he’s jealous, you know, because his girl’s there and I always go there and I speak to them, you know. And he’s always looking at me dirty, you know what I mean. I think he’s jealous. That’s the way I look at things.
The applicant accepted that he slapped the owner of the restaurant.
(g) Resist Officer, Assault Officer, Trespass (Hxxxxx573)
The Full Facts statement relating to various offences committed on 19 September 2018 has been tendered to the Tribunal.
It appears that at approximately 0500 the police were conducting “proactive” patrols in the area when they heard screaming sounds coming from the units at the address.[52] Six police walked into the underground car park area and noticed that the door to the garage was ajar. There were seven or eight people of an African appearance and one woman in the garage. Police woke several members of the group and were told that it was their cousin’s garage and that they were allowed to sleep there. Having been directed to a particular unit, the police inquired of the occupier whether this was so, and he said that no one was supposed to be in the garage. The police then ordered those present to leave. No one left the garage and all refused to obey the police direction. The police then set about obtaining details of each person present and while the majority were compliant the applicant was not.
[52] Exhibit R3, TB5 at 52.
The applicant was amongst those sleeping the garage. The garage was apparently owned by the Housing Commission of NSW. It was assigned to one of the units in the complex. The six police present tried to convince the applicant to leave but he refused and swore at them. At one point the applicant chose to stop listening to the police and lay back on the floor. Police restrained him and escorted him out of the garage. He continued to resist and swung punches at the police and two constables received strikes to the body, one to the head, chest and arms. Police then wrestled the accused. He got up, whereupon the police applied an approved leg sweep technique to the accused’s legs forcing him to the ground. He was then put in the back of a cage truck and taken to Blacktown Police Station.
A June 2020 report of the United States Department of State (USDOS) states:
We are deeply concerned at the increased levels of violence across South Sudan. This causes immense suffering for the people of South Sudan, puts in jeopardy any gains that have been made, and has implications across the region. In Jonglei, the vacuum created by the lack of governance has exacerbated cycles of intercommunal violence. In Central Equatoria, the ceasefire signed in January between the government and non-signatory groups has broken down and we have seen heavy fighting between forces in recent weeks, with villages destroyed and their communities displaced. Shocking reports of sexual violence against women and girls continue. We are concerned with the impact of the fighting on humanitarian access. [79]
[79] The Troika Calls on the Government of South Sudan to Appoint Governors, Media Note, office of the Spokesman, USDOS, June 2020
<>
OC5 weighs heavily in favour of revocation of the MCD. I note especially the statement quoted above, that the situation in South Sudan is so bad that it is not safe for anyone to return to South Sudan.
The security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of safe and dignified return for any person originating from South Sudan, whether or not the individual is found to be in need of international protection.[80]
[80] See UNHCR Position on Returns to South Sudan, Update II, UNHCR, 14 April 2019: THE FACTORS
My conclusions with respect to Direction No. 79 are as follows:
Considerations favouring non-revocation of the mandatory cancellation
oPC1 (Protection of the Australian community) and PC3 (Expectations of the Australian community) weigh in favour of non-revocation of the MCD; but they are not decisive in the circumstances of this case.
Considerations favouring revocation of the mandatory cancellation
oPC2 (Best interests of minor children in Australia).
oOC2 (Strength, nature and duration of ties)
oOC5 (Extent of impediments if removed)
Considerations that are neutral
oOC1 (International non-refoulement obligations);
oOC3 (Impact on Australian business interests);
oand OC4 (Impact on victims)
I note that under Direction No. 79 ‘other considerations’ such as the extent of impediments if removed are not subordinate to ‘primary considerations’. Primary considerations should generally be given greater weight than the other considerations: 8(4). This formulation makes it clear that in a particular case other considerations may be accorded greater weight than a primary consideration.
In this case there are two primary considerations in favour of non-revocation, and one primary consideration against. But this is not simply a matter of counting considerations, but of weighing them. This is essentially a matter of intuitive synthesis, taking all relevant considerations into account, and discounting any irrelevant considerations. My finding is that the aggregate effect of those considerations favouring revocation (PC2; OC2; OC5) outweighs those considerations favouring non-revocation (PC1; PC3).
CONCLUSION
I have found that the applicant fails the character test. The protection of the Australian community, and the expectations of the Australian community, favour non-revocation of the mandatory cancellation; however, I find that, in the particular circumstances of this case, they are not decisive. I find that there are other reasons why the mandatory cancellation decision should be revoked.
I am therefore satisfied that the correct or preferable decision is to set aside the decision under review, being the decision of a delegate of the Respondent dated 27 March 2020, and in substitution, revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa.
I certify that the preceding 274 (two hundred and seventy -four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.............................[SGD]...........................................
Associate
Dated: 15 July 2020
Date(s) of hearing: 9-11 June 2020 Applicant: In person Solicitors for the Respondent: J Kyranis, Sparke Helmore
APPENDIX A- CRIMINAL RECORD AS A MINOR IN CHILDREN’S COURT
Arial
Age
Offence
Penalty
18/03/2013
16
Goods in custody suspected on being stolen
Dismissed with caution
Shoplifting
Dismissed with Caution
Possess prohibited Drug
Dismissed with Caution
Break & Enter
Dismissed with Caution
18/06/2013
16
Stalk intimidate
Bond 12 months
Trespass
Bond 9 months
6/09/2013
16
Break & Enter
Bond 9 months
25/10/13
16
Affray
Control Order; Suspended sentence 12 months
25/03/2014
17
Steal
Probation 12 months
Steal
Control Order
Affray
Control Order
B&E
Call Up
Stalk
Bond 6 months
19/09/2014
Refuse to comply directions
$150
28/01/2015
17
B&E
12 months
Trespass
6 months
Stalk
Probation 9 months
17/06/2015
18
B&E
Control Order
18
Stalk
Control Order
APPENDIX B - CRIMINAL RECORD AS AN ADULT
Hearing Age Offence Penalty 1 7/05/2015 18 Shoplifting Bond 2 17/06/2015 18 B&E Control order 3 Stalk Control Order 4 3/12/2015 18 State incorrect name $200 5 Travel without ticket $200 6 Common Assault 12 months suspended 7 20/01/16 18 Travel or attempt travel without ticket $300 8 7/12/2016 19 Common assault Suspended sentence revoked 9 12/12/2016 19 Robbery in company Imprisonment 28 months; NP 18 months 10 28/02/2018 21 Larceny $250 11 27/03/2018 21 Negligent driving $700 12 PCA $1,000 13 Never licensed driver $600 14 22/05/2018 21 Resist officer $300 15 22/08/2018 21 Destroy damage property Bond, required to attend counselling 16 Attempt stalk/intimidate Bond required to attend counselling Son born 9/10/2018.
17 13/12/2018 21 Trespass Conviction no penalty 18 Common assault Intensive Correction Order (ICO) 19 Trespass Conviction no penalty 20 Attempt stalk/intimidate Community Correction Order (CCO) 21 Destroy damage property CCO 22 Resist officer ICO 23 Assault Officer ICO 24 Assault Officer ICO 25 Trespass Conviction no penalty 26 18/12/2018 21 Offensive behaviour CCO, 18 months 27 4/10/2019 22 Demand property with menaces 16 months imprisonment ending 30/04/2020; 10 months non-parole period ending 30/10/2019
0
15
0