RZBB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3741

RZBB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3741 (7 November 2022)

Division:GENERAL DIVISION

File Number:2022/6668          

Re:RZBB  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member J Rau SC

Date:7 November 2022

Place:Adelaide

The decision under review is affirmed.

.........................[sgnd]...................................
            Senior Member J Rau SC

Catchwords

MIGRATION – mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa) under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 – Consideration of possibility of indeterminate detention if cancellation of visa not revoked- decision under review is affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, [2022] FCA 878

FYBR v Minister for Home Affairs [2019] FCA 500

GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4811

JVGD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2830

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132]

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

ZXXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2910

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member J Rau SC

7 November 2022

INTRODUCTION

1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 15 August 2022, not to revoke the mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian visa (“the Visa”). His visa was cancelled on 22 June 2017 under section 501(3A) on the basis that he did not pass the character test.

2. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to imprisonment for a term of 7 years and 3 months on 12 March 2015.[1]

   [1] Exhibit 3, G6, Attachment B, p 41.

3. The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.

4. The hearing was held on 19, 20 and 24 October 2022. The Applicant was represented by Mr Michael Doyle of Morning Star Legal and Migration Services and the Respondent was represented by Mr Aaron Taverniti of Sparke Helmore Lawyers.

5. The Applicant gave evidence by Microsoft teams from Christmas Island. The Applicant was a very unimpressive witness. He had things that he wanted to say, and he seemed determined to repeat them over and over, irrespective of the actual question that he was asked. I gained the impression that he thought that it was in his interest to do so at every opportunity. This did not convey authenticity, but rather the opposite. These statements included that he “took full responsibility”, that when he offended, he “was young and stupid”, that he was “remorseful”, that he had done a lot of “reflection” and that he is now a “better person”. He was, by way of contrast, often totally non-responsive to simple questions, sitting in prolonged silence, rather than attempting an answer. These occasions corresponded with him being asked questions, the provision of any answer to which, might not reflect well on him. He was frequently argumentative and evasive. He also engaged in hyperbole, particularly when describing his piety, or his level of engagement with relatives or connections in Australia. For example, he claimed that he spoke to his girlfriend, Ms K, “more than ten times per day”. He made similar implausible claims about his frequency of contact with relatives, cousins, nieces and nephews. He was a very poor historian, having seemingly no recall of dates or even approximate years. He did not know the ages or birthdays of any of the minor children, whose interests he claimed would be adversely impacted, by him not being granted a visa. He only recalled the existence of some of these children at all, after repeated probing by the Tribunal and the Respondent. He did not recall when he left Sierra Leone, or how long he was in Guinea. This stands in contrast to various documented, detailed histories given by him in the past. All of this is highly relevant to the Tribunal assessing the weight to be given to his evidence and his repeated assurances that he will never reoffend.

6. At a very high level, this case requires a balance to be struck between protecting the community from potentially very serious reoffending by the Applicant on the one hand, and the very serious adverse consequences to him (in particular, though not exclusively), if he is not granted a visa, on the other. It is in this context that his credibility, when assessing the risk of him reoffending, assumes major significance. It is trite to observe that if his assertion that he no longer presents any risk of reoffending were to be accepted, that balance may reasonably be struck in his favour. The critical issue is whether the Tribunal can be so persuaded.

7. There can be no guarantees or certainty about the Applicant’s future conduct. He would not, if released into the community, be subject to supervision by NSW community corrections, or anyone else. This Tribunal does not have the power to impose parole-like conditions, or to grant a conditional visa. If the Applicant is granted a visa, his liberty would be unconditional.

8. The Applicant called Dr Pusey, a psychologist. He gave evidence by Microsoft Teams. He was very helpful. His evidence is discussed at some length below. Dr Pusey’s evidence was particularly relevant in assisting the Tribunal in assessing the likely risk that the Applicant may present to the community if he were to be granted a visa. Dr Pusey had not been fully informed about all the relevant circumstances in this case, prior to him being cross-examined. He agreed that his report was based on incomplete information. This additional information, he readily accepted, changed his opinion from those expressed in his written report. He made appropriate concessions, in the light of what was to him, new information.

9. The Applicant also called Ms K. She gave evidence by Microsoft Teams. The Applicant plans to marry Ms K if he is released back into the community. According to her, they would live together and start a family. This is different to the Applicant’s evidence on this point, which was that he would live with his mother and care for her, until they marry, and then Ms K would move in with the Applicant and his mother.[2]

   [2] This is one of many instances of where the Applicant sought to impress the Tribunal with his commitment to caring for his mother.

10. The Applicant first met Ms K when she was a child, in 2011, but they only began their close relationship in about March of 2020. He was given her number by a mutual friend. The Applicant said that the relationship progressed quickly, and they “fell in love”. He suggested to Ms K that they should marry. He told the Tribunal that this did not take long “because of my religion”. They have been engaged since about March of 2021. She told the Tribunal that she is looking forward to him being released and to them starting a family. When asked what would happen if he was not released, she implied that she would reluctantly, have to move on.[3]

    [3] See Exhibit 1, Annexure 5.

11. It is important to note that the Applicant has not been in the community since 25 September 2014. It is also relevant to note that the Applicant had previously claimed to be in a relationship with and to be engaged to Ms T, between about 2014 and about February 2020.[4] The interval between Ms T leaving the scene and Ms K was entering is about one month. Interestingly, Ms T was in the company of the Applicant and the victim of his offending (Ms J) on the evening of 23 December 2012.

    [4] Exhibit 5, RTB10, Attachment W, pp 197-198.

12. The Applicant also called his mother Ms S. She gave evidence by phone. She has various health problems and says that she needs the Applicant to look after her, take her shopping and take her to medical appointments.[5] She said that there is a strong cultural responsibility resting on the Applicant, as the eldest son and in the absence of her deceased husband, to look after her. Apparently her other two sons, who do not live with her, do not help her very much. She became very emotional when pleading for the Applicant to be returned to the community. I have no doubt that if the Applicant were not to be granted a visa, she would be very distressed. I do note however that she has managed without the Applicant’s help since his incarceration on 25 September 2014.

    [5] Ibid, RTB10, Attachment K, pp 161-169, Attachment BB, pp 232-233, Attachment CC, pp 234-235, Attachment DD, pp 236-23, Attachment EE, pp 238-239, Attachment FF, pp 240 and Attachment GG, pp 241-243.

    Background Facts

13. The Applicant was born in Sierra Leone. He is a citizen of that country.

14. When the Applicant was about 15, war came to his country. He gave this account of what happened to his family, which is set out in the report of psychologist Mr Sam Borenstein dated 17 January 2015:

    “[RZBB] spent the first fifteen years of his life in Sierra Leone, where he attended a private school. His father was a well known journalist. [RZBB] states his life up until his father’s death was ideal, “the war in Sierra Leone changed everything”.

    I asked [RZBB] to describe the circumstances around his father’s death. At this point of the interview, [RZBB] bowed his head. He could not maintain eye contact with the examiner. He began to cry and buried his head as he began to recall those events that led to his father’s death. Through tears, [RZBB] offered a detailed account of that evening, “first they came to our house, they asked for my dad. Me and him, we escaped for the first time, and we hid in his office. They came back to the office that night banging on the door, they smashed the window. We escaped again.” [RZBB] says he and his father went to a house the family owned, “then later we went home. They came to our house at 3.00 a.m. they burned the house down. They put us all outside. I saw them beat my father to death.” [RZBB] sobbed as he recounted the events and took time to compose himself. [RZBB] has clearly been traumatised by circumstances leading up to and witnessing his father’s death. He was forced to escape Sierra Leone and take on the role as eldest male in his family to support his mother and younger brothers, “I’m the first born, everything is for the family. Everyone is looking up to me.”

    [RZBB] has not been party to any psychiatric or psychological counselling. He reports ongoing symptoms of post traumatic stress consequent to witnessing the burning of the family home, and the death/murder of his father. [RZBB] reports intrusive recollections, “when I have nothing to do, I start crying and it comes to me.” [RZBB] reports sleep disturbance, nightmares and walking in startle reaction. [RZBB] took some time to overcome symptoms of vigilance and wariness. He suffered compromised trust, “I feel safe here, but I still have this problem, I don’t know why.”

    ……”[6]

    [6] Exhibit 3, G8, Attachment C1, pp 61-63; Sam Borenstein pp 61-66 at p 63.

15. On 15 December 2009, the Applicant was granted a Class XB Subclass 202 Global Special Humanitarian visa.[7]

    [7] Ibid, G15, Attachment D2, p 99.

16. On 19 February 2010, the Applicant arrived in Australia, aged 20 years.[8] He came here with his mother and 2 younger brothers. He initially lived with his mother and brothers, but the house became overcrowded, and he moved in with his uncle, Mr Z. It is relevant to note that he had moved away from his mother, even before he was incarcerated. He has improved his English skills and gained qualifications in Business and a Certificate in Construction from Bankstown Senior College.[9] He has completed TAFE courses.[10] He worked as a baker and a process worker. Prior to his incarceration, he was a member of the Sierra Leone Community youth soccer team.[11]

    [8] Ibid, G8, Attachment C1, p 62 and G45, Attachment J, p 222.

    [9] Ibid, G8, Attachment C1, p 63 and G9 Attachment C2, pp 67-72.

    [10] Ibid, G10, Attachment C3, pp 67-83; Exhibit 5, RTB10, Attachment Y, pp 205-229, Attachment Z, p 230 and Attachment AA, p 231.

    [11] Ibid, G12, Attachment C5 and G25, Attachment E8, pp 140-141.

17. On 23 December 2012, the Applicant committed sexual offences under the Crimes Act 1900 (NSW). The victim, Ms J was 18 years of age at the time. The Applicant was 23.

18. Between 24 December 2012 and 6 February 2013 (45 days), the Applicant was in custody.[12] He was again taken into custody on 25 September 2014.[13] He has remained in prison or immigration detention since then.

    [12] Ibid, G6, Attachment B, p 55.

    [13] Ibid.

19. On 15 September 2014, The Applicant entered pleas of not guilty to an indictment containing 3 counts arising from events on the evening on 23 December 2012. His defence was essentially that there was consent. These counts were:

    “……

    Count 1 alleged attempted non-consensual sexual intercourse, namely attempted fellatio, pursuant to s 61I and 61P of the Crimes Act 1900 (NSW).

    Count 2 alleged non-consensual sexual intercourse, namely digital penetration pursuant to s 61I of the Crimes Act 1900 (NSW).

    Count 3 alleged non-consensual sexual intercourse, namely penile/vaginal penetration at which time actual bodily harm was recklessly inflicted pursuant to s 61J(1) of the Crimes Act 1900 (NSW).

    In the alternative, Count 3A as it came to referred, alleged non-consensual penile/vaginal penetration pursuant to s 61I of the Crimes Act 1900 (NSW)

    ……”[14]

    [14] Ibid, G6, Attachment B, p 41.

20. On 25 September 2014, the Applicant was found guilty on counts 3 and 3A (above) He was taken into custody.[15]

    [15] Ibid, G6, Attachment B, p 55.

21. On 17 January 2015, psychologist Mr Sam Borenstein produced a report based on an interview with the Applicant on the preceding day. In this report, he notes that the Applicant insisted that the sexual contact with his victim was consensual.[16]

    [16] Ibid, G8, Attachment C1, p 62, 64.

22. On 12 March 2015, the Applicant was sentenced by Her Honour, Judge Huggett, in the District Court of NSW Criminal Division to an aggregate period of 7 years and 3 months imprisonment, with a non-parole period of 3 years and 11 months to date from 8 August 2014 and to expire on 7 July 2018.[17]

    [17] Ibid, G6, Attachment B, p 56.

23. The circumstances of the offending set out in the sentencing remarks are as follows:

    “[Ms J] lived in Brighton Le Sands until 22 December 2012, however for reasons not presently relevant, by the morning of 23 December 2012 she had nowhere to stay. During that day of 23 December 2012 she worked and then spent time with [Ms T] and a person called [S] including being at Wiley Park Railway Station.

    She was hoping to stay at [Ms T’s] home that night. At some point [Ms T] messaged the offender and requested he collect herself and the complainant from Wiley Park Railway Station. By this time, the complainant had met the offender on some three prior occasions including at social functions for the African community held at Bankstown.

    The accused collected [Ms T] and the complainant and drove them to his [Ms T’s] residence. There [Ms T] alighted from the car. [Ms T] told the offender that the complainant needed a place to stay and the offender agreed she could stay overnight with him in his “spare room” (TS 31.6).

    The complainant travelled with the accused to, Bankstown, buying takeaway meals at a fast food outlet on the way. In the car on that trip, the offender told the complainant that he lived with some boys. At that time the complainant was wearing a fitted dress with a beach dress over the top and pyjama shorts with underwear underneath.

    On arrival at the house, the complainant saw three or four males in the living room area. She sat down and ate a small amount of the takeaway meal when the offender asked her if she would like to see the bedroom. She went with the offender towards a room and stood at the doorway whereupon the offender said “There was no spare room and he asked if it was okay if we had shared the bed which I said was okay” (TS 34.25).

    The offender then put his arms around the complainant’s waist and pulled her towards the bedroom, closed the door and switched off the lights (TS 34.46). He tried to kiss her but she turned her face away and told him “I’m not the kind of person to do this” to which he replied “It doesn’t matter” (TS 35.2). 

    The offender pushed the complainant onto the bed and held her arms down and tried to kiss her. She continued to turn her face away. The offender then said words to the effect “Just to do it quickly and he’ll just do it this one time and then it’ll, it’ll never ask me for it again” (TS 36.6).

    The complainant told the offender she was a lesbian which did not deter him. The offender was lying over the complainant and roughly pulled at her shorts. She could see he had removed his pants and his penis was exposed (TS 40). The offender then began to simulate sexual intercourse with the complainant as he rubbed his penis against her but without actual penetration (TS 40.12).

    At some point the complainant came to be on the floor with her head positioned against the door such that she was physically prevented from moving further away from the offender (TS 42. 48). The offender then put his left hand inside her pants and pulled her underwear to the side and thrust two fingers in and out of her vagina for “a couple of minutes” (TS 43). That conduct represents Count 2.

    The offender then removed the complainant’s underwear and used his knee to force her legs apart. He leant his bodyweight against her, lifted her right leg up and pushed it towards her chest. The offender then inserted his penis into the complainant’s vagina (TS 43. 48) and had sexual intercourse for “about 10 to 20 minutes” (TS 44.7). That conduct forms the basis of Count 3A.

    During the penile/vaginal intercourse, the complainant was crying and telling the offender to stop to which he replied he was almost finished and “just to enjoy it” (TS 44.19). The back of the complainant’s head was coming into contact with the door. Soon after, the offender ejaculated over the complainant (TS 45.30).

    The offender then cuddled the complainant for a short time before she told him she had to call her cousin. The offender allowed the complainant to leave the bedroom. The complainant in fact left the house and rang her cousin [Ms K L] and her former boyfriend [B H].

    Shortly thereafter police and ambulance attended the location. The complainant was examined by [Dr D] at Liverpool Hospital who observed a number of lacerations or tears to her genitalia and a semi-circular tear to the nipple on her right breast. After being examined by [Dr D] the complainant made a statement to police.
    

    [18] Ibid, G6, Attachment B, pp 44-47.

    ……”[18]

24. Her Honour addressed the seriousness of the Applicant’s offending in these terms:

    “……
    I turn now to consider the objective seriousness of Counts 2 and 3A.

    There is a range of conduct comprehended by the offences contemplated by s 611 of the Crimes Act 1900 (NSW). There is no hierarchy as to the seriousness of the various kinds of intercourse recognised by the law. Relevant factors include the nature of the intercourse and its duration.

    Count 2 involved digital penetration for a few minutes. Count 3A involved penile/vaginal penetration for a longer and relatively substantial period of time. The penile/vaginal intercourse occurred without the use of a condom.

    While the offender did not ejaculate inside the complainant thus the risk of pregnancy and/or sexually transmitted infections might have been reduced. He ejaculated over part of her body which was to my mind degrading and humiliating for her.

    Prior to Count 2, the complainant had indicated that she was “not the kind of person to do this” that is, to engage in at least the intimacy involved in kissing the offender, that being what was occurring at the time she said that. Thereafter she tried to turn her face away. In a further effort to deter the offender the complainant said she was a lesbian. At the time of Count 3A the complainant was on the floor with the offender on top of her and could not move away and she was crying and telling him to stop.

    In all the circumstances in relation to both counts, I am satisfied beyond reasonable doubt the offender had actual knowledge as to her lack of consent. That said, I do not consider the offences were planned or pre-meditated.

    The offender may well have taken the complainant to that home and to that bedroom hoping she would be mutually interested in intimate and sexual contact with him. But when she indicated to the contrary the offender then took advantage of the opportunity that she was in a bedroom alone with him.

    In the face of her resistance and with knowledge of that he proceeded to commit the offences. In that way, the offences are properly described as being spontaneous and/or opportunistic.

    The offender had agreed to let the complainant stay overnight. She was his guest at the premises. He knew she had nowhere to stay that night and needed “shelter”, to use his description in his ERISP (Trial Exhibit 4). He knew she was a friend of his friend Ms T. The complainant was entitled to a sense of safety and security (Montaro v R [2013] NSWCCA 214 [51]).

    I accept the offender did not display gratuitous violence towards the complainant nor did he issue any verbal threats of harm nor did he use aggressive nor offensive language, nor as [Mr L] submits did he cause the complainant to ingest any substance to enable the commission of the offences (which if present may well have made appropriate a different offence). Accepting there is an absence of such features in this case the context in which the present offences occurred must be kept in mind.

    The complainant was in a bedroom with a closed door at a home connected to the offender in an area unfamiliar to her and with the offender’s male friends close by. The offender pushed the complainant onto the bed, held her arms down, used his knee to force her legs apart and lay on top of her with his weight against her. This occurred while the complainant was doing and saying things to deter him. While I accept that the offender did not cause substantial harm to the complainant, some injury was in fact occasioned to her genitalia which I accept was not caused recklessly and to her right breast.

    Weighing all these factors, each offence is properly described as being serious, Count 3A being more serious.
    ……
    As I have said, the offender agreed to having sexual intercourse with the complainant but denied and apparently continues to deny that it was non-consensual. That was and remains his right. He has expressed feelings of shame stating that he does not normally have sexual intercourse with women he does not know well. The author of the Pre-Sentence Report stated that despite feeling ashamed, the offender appeared to lack an awareness of the seriousness of the offences nor to take full responsibility for his behaviour.

    Furthermore, he is reported as lacking insight into the considerable impact his actions would have had upon the complainant.

    While the offender is in no way to be punished for maintaining his innocence, there is no evidence before me that he is contrite or remorseful which if present might otherwise have acted in his favour.”[19]

    [19] Ibid, G6, Attachment B, pp 47-48 and 51.

1. The facts as found by the Judge were put to the Applicant in cross-examination. He denied some, though not all of them.

2. The Applicant was imprisoned between 24 December 2012 and 6 February 2013. He has not been at liberty in the Australian community since 25 September 2014 (approximately 8 years and 1 month). The period between his arrival in Australia and his offending was approximately 34 months. He has now been in Australia for approximately 12 years and 8 months. This is relevant in general terms to the application of Direction 90.[20] It is also relevant to considerations of the practical nexus that the Applicant has made and/or maintained with members of the Australian community, including his extended family.[21]

   [20] For example, para 5.2(4) of Direction 90.

   [21] For example. See paras 8.3(4) (a) and 9.4 of Direction 90.

3. On 22 June 2017, the Applicant’s visa was cancelled under s 501(3A) of the Act.[22]

   [22] Exhibit 3, G44, Attachment I, pp 217-221.

4. On 17 October 2017, the Applicant prepared a statement requesting the revocation of his visa cancellation. The statement states:

   “I write this letter to provide more clarity and at the same time, to show remorse for the offences which led to my conviction and subsequent revocation of my humanitarian visa.

   I know and acknowledge that offences involving sexual assaults are serious and should be frown upon. I have seen the impact this behaviour can cause on its victims.

   Providing clarity and background of the offences in relation to this revocation decision, the victim and I were known to each other and in a relationship as I know. Unfortunately, she accused me of sexually assaulting her on the basis that were completely absurd and shocking. Without taking anything from the decision of the court, the accused admitted that she had met me three (3) to four (4) times at some events hosted by the Sierra Leonean community.

   What happened in my situation was unfortunate and I did not see it coming to be accused of sexually assaulting someone that I know is seriously damaging. But now, I have accepted the consequence of what has happened and also view it as a mistake that will never and ever repeat itself again. I respect every woman and every human in the same way. I accept that what happened was totally wrong and I never meant to cause harm to anybody.

   I am in a committed relationship now and I want to get married and focus on my family. This is the first time such thing has happened to me. Contained in my psychologist's report, it mentioned that I have nothing in my history which indicates I am likely to commit any sexual offence. The sentencing judge also indicated that I had good prospects of rehabilitation and a low risk of reoffending. Throughout my stay in prison, I have behaved well which my record can attest to that and I am focused on studying and have never broken any rules of the prison.
   I will live with my mother and my youngest brother if I am released. I want to be a good role model for my brother and take care of my mother.

   I have strong tie and connection to Australia. I have six (6) cousins living in Australia and I love spending time with them all, I also have my youngest brother who is now 16 years old and my baby nephew. I occasionally spent a lot of time with them. If I would finish work early I would pick them up from school and on weekends, I would take them to the park and we would play soccer and then I would drop them
   at home and go to work.

   Sometimes I would baby sit for my uncles and aunts, they worked very hard. I would cook for them, bathe them and put them to bed. I would tell them it's a school night, so they have to go to bed early to get enough sleep. I would also help them with their homework and assignments, at times for many hours. If I was not starting work early, I would help them to get ready for school in the morning and drop them off and go to work.

   Every Sunday we had a family day and I would take them to my Grandmother’s house for two hours and we would all spend time together. I would drive them home and get them Hungry Jacks on the way. I would tell them met it's bad for then, but I always gave in, they liked it so much.

   I think they missed my company so much. When I call them on the phone, they cry and tell me they miss me. We are very Important to each other. I can't express how they would feel if I had to leave Australia, I might never see them again.

   Minister, you may be aware that I am in Australia because of the mercy of God, Australis and the Australian people who took me and my family on a humanitarian visa (subclass 202). If I went back to Sierra Leone I think I would be killed. My father was a well-known journalist in Sierra Leone who was widely known. He was killed and we saw them beat him to death and burned down our home. Since then, I have been diagnosed with post-traumatic stress disorder.

   Some time prior to his death, these people would come looking for my father. They would raid the house and we would have to run for our lives. They came randomly. Sometimes we hid in me toilet for two to three nights. We would run and hide in his office, we would have to wait for hours and then escape out the back by claiming down the pipes. They would yell at us, threaten us and threaten to burn our house down. We moved house to avoid them but they found us.

   I think it was a Government troop, but the rebels and the Government troop wore the same uniform, so I can’t tell their difference. I don’t really know to this day who killed mu father and why. My Mother might have a clue but we don’t talk about it. I know it wasn’t anyone in the community. My father always spoke the truth no matter what, he published articles against the Government. So I think they might have been involved in his death. The Government does whatever they wish to do.

   The Government today is the same two parties as before. They know our background and they know I'm the eldest son of my father I am the heir of the family, as I am the eldest son. This means that I am a target for anyone who wanted to harm my father. This is why he always took me with him when he had to hide. If I am deported back to Sierra – Leone, I will surely be harmed or killed as my father.

   I came to Australia when I was 19 years old. We had been living in a refugee camp in the Republic of Guinea and then my uncle found a way for us to resettle in Australia. I have lived in this great country for 7 years. I see Australia as my only home now. I see my future nowhere but in Australia I feel safe and secure here In Australia and can reach my greatest potential in this great nation. I want to get married soon and focus on building my life and the life of my family, I appreciate living in Australia so much and I thank the Austrian Government and people for that.
   My family is here in Australia and if l have to be deported, it would very hard for them, especially my mother to settle. I am the eldest son and my father dead, I have the responsibility to take care of my mother, my brother and the rest of the family.

   I want to be able to help my mother financially, like I was doing prior to being sent to prison. I would buy her household items, food and groceries and provide other assistance in relation to her studies. I would help provide anything she needs.

   My mother heavily relies on me to drive her to places, especially appointments including medical appointments and shopping and to her university classes. She currently studies nursing at Western Sydney University. Whenever she needed me, I would stop whatever I was doing and pick her up if she called. I would also help other members of my family by driving them where they needed to go.

   My mother has nerve pain which is made worse from the stress of my legal problem. It is difficult fer her to get to doctor's appointments now that I am not available to assist her.

   I have a partner in Australia who is very supportive and has stayed with me through everything. I would like to get married to her and build a life for us in Australia.

   I completed Year 10 in Australia and then I started looking for a way to support my family. I enrolled in a TAFE curse to learn welding but there was a 6 month wait, so I started working with my uncle at Beak & Johnson (a meat processing factor near Bankstown). I worked there from 15 March, 2012 to 25 February, 2015. I only stopped because I went to prison. I can return to this job when I am released.

   I have a certificate II in Construction, a certificate II in general and vocational education and an English for Study course at Bankstown Senior College. I have also completed many TAFE courses while in Prison, but I can’t study right now because of my immigration status. Copies of my certificates will be provided by my migration agent.

   I have been an active member in my community. I played soccer with a club, and I volunteered with a Sierra Leone cultural organization for young people.

   I left Sierra Leone when I was about 15 years old and then lived in refugee camps. I don’t know anyone at Sierra Leone at this point in time. I met people from Sierra leone in the refugee camps, but I think they have all moved on now, some went to America. There is no one in Sierra Leone who could support me. I would find it very hard with all the threats against my family to live there.

   I don’t know how I would survive there is I am deported to that country. It is a dangerous place to live and people can form groups to attack other people for petty stuff and cost their lives. The Government can’t do anything about this. The Government of Australia needs to have mercy on me as it did when we were first granted visas to migration to Australia, by revoking the decision to cancel my visa.

   I do not have any safety in Sierra Leone. I am very worried about going to immigration detention. I spent four (4) years in refugee camps in Guinea, and I am scared that I have started feeling the same way I felt in that refugee camp, that those memories have been brought back to me again. My entire family is affected, and we all have been in refugee camps and they know how it is. My life will be terrible if I am sent to detention centre.

   Living in Guinea, out second safe country, it was very hard for us. Each time they had elections the Guineans would target the refugees from Sierra Leone. They would call us out to leave their country, destroy properties and blames us for their problems.

   I am sincerely asking the Minister for Immigration and Border Protection to kindly revoke the decision to cancel my visa as I do not have anywhere to go other than Australia. All my family are living in Australia and I do not have anyone living Sierra Leone at this point time and as the consequence on my father’s death, we are living in Australia as refugees under Australia’s protection. I am requesting the Minister to see reasons to allow me to stay with the family and what has happened will never repeat itself again. As a young person, I have learned my lessons and is committed to become a good person and contribute to the Australian community.

   Thank you for considering this letter and I hope you will use your discretion to allow me to stay in Australia.”[23]

   [23] Ibid, G14, Attachment D1, pp 95-98.

5. On 13 November 2017, representations on the Applicant’s behalf were forwarded to the Delegate of the Minister.[24] A letter of this date to the then Minister states:

   [24] Ibid, G13, Attachment D, pp 89-91, G14, Attachment D1, pp 95-98 and G15, Attachment D2, pp 99 -109.

   “We are instructed in this matter to make representations to the Minister on behalf of [RZBB] whose visa was cancelled on 22 June, 2017 pursuant to s.501 (3A) of the Migration Act 1958 (“the Act”) on the basis that [RZBB] was serving a sentence of imprisonment, on a full-time basis in a custodial in institution, for offences against the law of the Commonwealth or a state or territory pursuant to s.501(3A) (b) of the Act. It is established that on 12 March 2015, [RZBB] was convicted of the offences sexual intercourse without consent (two counts) and sentenced to seven (7) years and three (3) months imprisonment on aggregate by a NSW District Court.

   However, having regard to the NSW Department of Corrective Services record, the delegate of the Minister was satisfied under s 501 (3A) (b) to cancel the applicant’s humanitarian visa.

   Prior to the Department of Immigration and Border Protection’s (“the Department”) decision being made, the applicant [RZBB] was issued a Notice of Intention to consider visa cancellation on the 22 June 2017 which the applicant and personal representative (his mother) failed to consider within the time frame and the decision was made to cancel the visa. The applicant and his personal representative only reason for failure to file representations as to why the applicant's visa should not be cancelled was that they did not understand the nature of the document (the Department’s decision) and by the time they acted unapproached Legal Aid NSW for assistance, the officer in charge at Legal Aid did not make any genuine efforts to make those representations to reconsider cancellation. The applicant's representative approached us to assist in the matter and we then advise Legal Aid that we were taking over the matter.

   Despite his versions of events, the applicant [RZBB] has accepted the decision of the court and the Department and has decided to request revocation an make representations in respect of the Department's decision under s. 501CA of the Act and in accordance with the Direction the Minister has issued - Directions 65 (Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA) which are as follow:

   1.    Primary Consideration

   1.1Protection of the Australian community

   (1)  The applicant arrived in Australia as a young boy[25] who faced persecution in his home country (Sierra Leone) along with his family and has not had or been involved in any criminal activity whatsoever up to the point where he was accused of sexually assaulting the victim who subject of his conviction and visa cancellation.

   [25] This is untrue, he was 20 years old.

   Nature and seriousness of conduct

   (2)  Through applicant, [RZBB] having known the victim for quite some time while they were going out prior to the allegations being made, the applicant accepts the courts findings and decision and was prepared to live with it and reform himself for the better for the future. He understands that sexually assaulting women is extremely serious and the Governments of Australia are committed to protecting the Australian community from harm as a result of criminal activity like such. He recognises that entering and remaining in Australia is a privilege that Australia and its people provide and has reassured himself to the ultimate respect of the Australian community and its institutions

   The risk of re-offending

   (3)  The applicant blames himself for what happened and should have never let himself get into that situation where he would have made such terrible error of judgement. The applicant submits that he respects women and acknowledges that what happened was totally wrong and does not want to put himself in a position again to defend his behaviour before anyone. He submits that he never meant to cause the victim any harm but it happened.

   (4)  The applicant submits that he is in a committed relationship now and would want to get married and focus on his family. He submits that nothing of such has happened to him before. His psychologist’s report suggests that he is unlikely to commit such offence in the future and is committed to making that happen. Also, the sentencing judge said that he had good prospects of rehabilitation and a low risk of re-offending. The applicant submits he behaves very well in prison, concentrating on his studies and staying out of trouble and becoming a better person.

   (5)  The applicant intends to live with his family that is his mother and younger brother upon release. He intends to be a role model to that brother.

   Best interests of children

   (6)  The applicant submits that his family means everything to him and he is determined to take good care of them. The applicant has six (6) cousins residing in Australia and love spending time with them. He has a younger brother who is 16 years of age and a baby nephew. He submits that he spends a lot of time with them. He would finish work early and pick them up from school and drop them off at home. On the weekends he would then take them to the park and they would play soccer together.

   (7)  He also submits that he would babysit for his uncles and aunts who worked very hard. He would cook for his cousins, bathe them and put them to bed. He would make sure they were well looked after in the absence of their parents.

   (8)  The very existence of the fact that the applicant had good relationship with his cousins demonstrate that he is not abusive to children and in fact, he gets along with children.

   2.    Secondary considerations

   2.1Australia’s non-refoulement obligations

   (9)  The applicant arrived in Australia on a subclass 202 humanitarian visa from the West African nation of Sierra Leone. He immigrated with his mother and his younger brother, having been persecuted in that country longstanding civil war, as the consequence his father being brutally assassinated by unknown figure. Some suspected his father's murder by the regime at the time because of his active journalistic persuasions.

   (10)    He strongly holds the view that if he were to be deported, he would be killed. His father was a well-known journalist in Sierra Leone. Once upon a time, at about 3:00am in the year and month he could not recollect, they saw some people at their house in Freetown. They took them all outside of the house and burned down the house. The applicant saw his father beaten to death. Since then, as a young child, he was diagnosed with PTSD (Post Traumatic Stress Disorder).

   (11)    Those people who targeted his father used to come looking for his father. They would raid the entire house and would have to run and hide in places. They came randomly at times. Sometimes, they hid in the toilet pit and then escape out the back by climbing down pipes and hiding for a couple of days. The enemies would yell at them, threaten them.

   (12)    The applicant believes that it was Government troops who targeted them, but the rebels and the Government troops wore the same uniforms, so he can't tell who did it. The applicant does not know till this day who killed his father and the reason behind his assassination. What he can remember is that his father published articles and things about the Government at the time. So he believes that the government might have been involved. The applicant submits that now the government now is the same two parties before and they know his background and they know he is the oldest son of his father. He submits that he is the heir of the family as the oldest son. This means that, he submits, he is a target for anyone who wanted to harm his father. This is why his father always took him with him when he had to hide for his life. The applicant believes if he were to be deported, he would be a target again. 

   Ties to Australia

   (13)    The applicant arrived in Australia when he was 19 years of age. They had been living in a refugee camp in the Republic of Guinea when his uncle found them and applied to the Australian Government to bring them to Australia.

   (14)    The applicant has lived in Australia for seven (7) years including the time spent in incarceration and sees Australia as his only home. He feels safe in Australia: his future lies in Australia and would want to get married soon and focus on spending time with his family. He appreciates living in Australia so much and is so thankful to the Australian people.

   (15)    The applicant has all his family residing in Australia and has no one living in the West African nation of Sierra Leone.

   Family

   (16)    The applicant's entire family lives in Australia. If he forcibly has to leave Australia, it would be extremely difficult for his family, especially his mother. He is the oldest child and with his father dead, he has the responsibility to take care and look after his mother brother.

   (17)    He would like to help his mother financially, like he was doing prior to being accused and convicted of these offences. Applicant submits that his mother studies at university. He would buy her textbooks for her courses and movies tickets for his family and anything she would need.

   (18)    His mother also relies heavily on him to drive her to appointments because of her health issues and to shopping and to her university classes. His mother is studying a Bachelor of Nursing at Western Sydney University. He submits that he would stop whatever he was doing and attends to her if she rings him because it is his responsibility to take care of her. He would also help other members of the family by driving them around where they needed to go.

   (19)    The applicant submits that his mother has nerve pain which is made worse by the anxiety and stress of his imprisonment. It is difficult for her to get to the doctors’ appointments now that he is incarcerated

   (20)    The applicant submits that he has a partner who is supportive and has stayed with him through difficult times. He would like to get married to her and build a good life in Australia.

   Contribution to the community

   (21)    The applicant finished up to year 10 in school in Australia, then started to work to support his family. He enrolled in a TAFE course to learn joinery but owing to the 6-month waiting period, he found a job at a factory called Beak & Johnson in Bankstown, New South Wales. The applicant worked there from 15 March 2012 to 25 February 2015. He only ceased work when he encountered these problems and went to prison. He submits that he can return to work when released.

   (22)    The applicant has Certificate II in Construction, Certificate II in General and Vocational Education and English for Study course at Bankstown Senior College. He has also completed many courses while in prison.

   (23)    The applicant has been an active member of his community, the Sierra Leonean community in Sydney. He played soccer with a local club and he volunteered with the Sierra Leone cultural organisation for young people.

   (24)    These evidence prove that the applicant was a constant contributor to the community and has the potential to go further provided he is given a second chance to remain in Australia.

   (25)    Moreover, Australia is a signatory to many important international human rights instruments such as the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol referred to as the Refugees Convention; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Opinion Protocol (the ICCPR), all of which with Australia’s obligations under them protect the applicant against refoulement.

   Ties to Sierra Leone and Impediments if removed

   (26)    The applicants admits that he left his native Sierra Leone when he was about 15 years old and then lived in refugee camps. He does not know anyone in Sierra Leone. He met people from Sierra Leone in the refugee camps, but he thought they had all moved on now, some went to the United States via humanitarian programme. There is no one in his native Sierra Leone who he would ask for support. He would find it very hard to be all alone without his family.

   (27)    He has no idea how he would find a job to support himself, find a house to live in or any opportunity to study either. He submits that it is extremely dangerous there, and in addition to the threat of his life emanating from his father's death. People form gang groups to target aliens and other foreign people, most of the time leading to death or serious bodily injuries to those aliens or foreigners. The Government does not have any capacity to do anything to those gang groups and most of the time, the security officers are even behind some of those targets. The applicant submits he does not know how he would be able to keep himself safe. He does not want to go back to Sierra Leone for fear of his life.

   3.    Other considerations

   (28)    The applicant is extremely worried about being sent to immigration detention for an unlawful non-citizen. He spent four (4) years in refugee camps in Guinea; therefore, he is very scared that he will start feeling the same and bringing those memories back from the refugee days living in the camps. He feels that his entire family will be affected that they have all felt the trauma and psychology of being in refugee camps. The applicant feels that if he was to be poor in immigration detention, it would bring back those memories not only for him but also for his family and relatives and friends.

   (29)    The applicant submits that the trauma he suffered from the death of his father as the result of being diagnosed with PTSD is still haunting his life and would be severely worsened if he were to be sent to immigration detention upon his release from prison on parole.

   4.    Conclusion

   (30)    We submit on behalf of the applicant that he's very remorseful about his conduct relating to the substantive charges and has made significant strides in moving forward his life by engaging in positive activities in prison and staying out troubles. He has made that commitment by writing a letter of remorse to the minister about his remorse and his commitment to become a better an active member of the Australian community.

   (31)    The applicant has significant family tie in Australia including his mother, his younger brother and at least 8 cousins and nieces residing in Australia. There is no one from his family living in Sierra Leone at this point in time.

   (32)    The applicant has greater chance of rehabilitation as his pre-sentence report and the decision of the District Court can confirm. He has accepted his mistake and the decision of the court has repeated countlessly that this will never happen again. He has been orderly in prison.

   (33)    The psychologist’s report mentions that there is no antecedent for the applicant, and more importantly he does not drink alcohol, or smoke or use drugs. Therefore, the chance of repeating these offences is very slim. The report suggests that the applicant is a practising Muslim and adherents of that faith strongly preach against such impugned conduct.

   (34)    The applicant was employed prior to being sent to prison and has made it clear that he is welcome back to the same business he worked prior to his incarceration. Therefore, Australian business interests may be affected if this young man is removed. He worked and paid his tax and supported his mother and sibling and cousins by his earning. All these people will be impacted upon his removal.

   (35)    The applicant has no or minimal chance of succeeding in Sierra Leone if he were to be deported. He has no family living there, and the socio political and economic climate there is deplorable and the security incidents are over increasing. The chances of him being killed is extremely high not only from the security incidents but also it was never established actually and really who assassinated [RZBB] father and he would be the next target if he does return.

   (36)    We submit that the Australian people, through the Minister of Immigration and Border Protection, Hon Peter Dutton MP, give [RZBB] a second change to be a contributing member of the Australian community and his family.

   (37)    The benefits of [RZBB] remaining in Australia outweighs the detriments if he were to leave the country. He works and supports his mother and brother. He volunteers for his community and has a great chance of rehabilitation and being a positive impact in the community.”[26]

   [26] Exhibit 3, G15, Attachment D2, pp 100-107.

1. On 18 April 2019, the Applicant completed a personal circumstances form in support of his application to have his visa cancellation revoked. This states inter alia:

   Describe your relationship with each of the other minor child/ren, including how often you contact/see the child/ren and the role you play in their life.

   The bond between my brother and I is very strong and cordial. In our family tradition, when your brother has children, they are regarded as your own. My brother [MK] children were born while I was in custody, however, they regard me as their uncle and usually visit me two (2) to three (3) times a month. Therefore, my relationship with these children is quite strong and cordial, and I regard them as my children.

   Describe any current impact on the other minor children, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).

   My brother [MK] has two children, namely Child A and Child B. The impact of a non-revocation will be very and in a strongest possible term, devastating too me, the entire family and my brother's 3 year old son Because we have developed quite a remarkable relationship. He loves my company and does not want me to leave when he and his parents visit me. During their visit, play, wrestle and play ball. He often asks his parents to call me so that we can speak on the phone. 

   FAMILY DETAILS

   List all living parents, step-parents, brother, sisters, and adult children.

Full Name	Relationship to you	Date of birth	Nationality	Country of current residence
[BS]	Mother	1967	Australian	Australia
[MK]	Brother	1993	Sierra Leone	Australia
[MKT]	Brother	2001	Australian	Australia

List other close family members including in-laws, cousins, grandparents, uncles/aunts.

Full Name	Relationship to you	Date of birth	Nationality	Country of current residence
[AKD]	Cousin	1994	Sierra Leone	Australian
[MSS]	Cousin	-	Australian	Australian
[SMS]	Grandmother	1949	Australian	Australian
[ES]	Uncle	-	“              ”	“              ”
[ES]	Aunt	-	“              ”	“              ”
[SS]	Aunt	-	“              ”	“              ”
[MT]	Cousin	-	“              ”	“              ”

State how many other relatives you have in Australia or overseas

In Australia	Other country – specify
Number of uncles/aunts	15	2
Number of nieces/nephews	12	1
Number of cousins	16	0
Number of grandparents	2	0

Describe any current impact on family members, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).

As a humble and a genuine hearted person, he sacrifices himself for everyone. Whenever he is called upon, he is ready to assist. He has been a great supporter to his family, especially his mother, and grandparents and cousins. It would be a devastation in the event of s501 non-revocation.

CRIMINAL HISTORY AND RISK OF REOFFENDING

Outline any factors you believe help explain your offending that you want the decision-maker to take into account.

I want the decision-maker to consider foremost that the victim and I are were not strangers. We had been going out for a while, especially in African events. The decision to find me guilty which I accept and I am remorseful for. At the time, I was young and naive and did not fully understand the Australian culture. I have learned my lessons and I am prepared to start a new life given the chance again. I request the decision-maker to give me a second chance in life. I have been working full time and paying tax and supporting my family.

……

Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons.

I am in a strong position not to re-offend, mainly because I have learned the hardest lessons in life; the hardship my family has endured throughout my time in custody. My mother has been crying since I was first incarcerated and has continued to do so because there is no one to assist her both financially and taking her to her medical appointments.

……

List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. provide any references in support.

I helped form the Sierra Leone soccer team which I am a player and an organiser. I am also a member of the Sierra Leone youth group (SLYG) which promotes the Sierra Leonean culture and multiculturalism.

……

Do you have any concerns or fears about wat would happen to you if you were to return to your country of citizenship?

If yes, describe your concerns and what you think will happen to you if you return.

My father was a well-known journalist and a human rights activist who explored a lot of ills in the Sierra Leonean civil war. He was brutally killed in front of me and my mother. There are elements of the former junta government present who killed my father.

Are there any other problems you would face if you have to return to your country of citizenship? If so, please describe these.

If I were to be deported, I would be recognised, and tortured or killed because people would think that I came for revenge. Moreover, I do not have any family that would assist me. Unemployment is 90% and crime and violence is the order of the day.

ANY OTHER INFORMATION

Please outline or provide any other information you would like the decision-maker to consider when making their decision in relation to your case.

My father's house was burned down completely during the war. There will be nowhere for me to start. I do not have or know anyone in that country because I was a child when I left Freetown. I grew up in the refugee camp in Guinea, West Africa. Being deported back to Sierra Leone is a death sentence for me.[27]

[27] Ibid, G32, Attachment G, pp 172-186.

1. On 25 February 2020, the Applicant was advised that the Minister had decided not to revoke the original decision.[28]

   [28] Ibid, G46, Attachment K, pp 223-225.

2. In about March of 2020, as previously discussed, the Applicant commenced a relationship with Ms K. He was in Villawood detention centre at the time. He has since been moved to Perth and then to Christmas Island. They have regular communication by phone. They have plans to marry if he is released from detention.[29]

   [29] Ibid, G49, Attachment N, pp 276-277.

3. On 30 March 2020, the Applicant applied for a Class XA Subclass 866 Protection visa.

4. On 28 April 2020, the Applicant had a protection visa interview.[30]

   [30] Ibid, G50, Attachment O, p 281.

5. On 7 June 2021, the Federal Court of Australia quashed the Minister’s decision of 24 February 2020, not to revoke the visa cancellation. The matter was remitted for determination according to law. The Applicant was invited by letter dated 10 June 2022 to make any further submissions that he may wish to make.[31]

   [31] Ibid, G52, pp 305-307.

6. On 15 August 2022, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa.[32]

   [32] Ibid, G1, pp 1-4.

7. On 17 August 2022, the Applicant lodged an application for review that is now the subject of these proceedings.[33]

   [33] Ibid.

8. The Applicant has been diagnosed with mental health issues. In his report of 17 January 2015, Mr Sam Borenstein states:

   “……

   TEST RESULTS

   I administered the Depression Anxiety Stress Scale (DASS21). Results indicate severe symptoms of depression, severe anxiety symptoms, and severe symptoms of stress.

   I administered the Post Traumatic Stress Disorder Checklist, which confirmed [RZBB] suffers with PTSD symptomatology, namely intrusive recollections, nightmares, vigilance, wariness, startle reaction, depressed mood and a sense of foreshortened future. [RZBB’s] symptoms are specific to the evening of witnessing his father's death, “it burned in my memory, it's burned in my mind”.

   OBSERVATIONS ON EXAMINATION

   [RZBB] is of youthful appearance, dark skinned and dressed in prison greens. His mood is depressed an expression forlorn. His affect was flat. [RZBB’s] English skills were average. At times comprehension was limited, evident by the need to explain it test items.

   There was no suggestion of serious psychiatric disorder, e.g. psychosis or major depression. Thoughts for content and process a deemed to be normal. There is no evidence of perceptual disorder, e.g. delusions, hallucinations, ideas of reference or feelings of passivity.

   ……

   [RZBB] escaped war torn Sierra Leone with his family, at aged 15, not long after witnessing the murder of his father as detailed in the body of this report. [RZBB] Suffers with ongoing symptoms of Post Traumatic Stress Disorder consequent to witnessing his father's death undertaking the dangerous journey to escape Sierra Leone, spending four years in a refugee camp in Guinea, before coming to Australia in 2010.

   [RZBB] has not participated in any psychological treatment for his Post Traumatic Stress Disorder. [RZBB’s] current life circumstances has added to his stress load, an exacerbated PTSD symptomatology, evident on examination and confirmed by way of psychometric test results. A long term prison sentence will have the effect of exacerbated and worsening [RZBB’s] PTSD with increased risk of him developing Major Depressive Disorder.

   [RZBB] is psychologically vulnerable by virtue of his early history, i.e. witnessing his father's murder. Since the age of 15, [RZBB] has taken on roles as oldest male in his family, assisting in escaping Sierra Leone, spending four years in a refugee camp in Guinea before coming to Australia in 2010, and attempting to provide financial support to his family.

   Such traumatic beginnings had the effect of leaving [RZBB] vulnerable to the development of serious psychological disorder over and above his current PTSD.”[34]

   [34] Ibid, G8, Attachment C1, pp 64-65.

9. A later psychologist’s report from Dr Paul Pusey, dated 15 September 2022, relevantly states:

   “……

   [RZBB] asserted that “at the beginning of the process, I denied culpability because I was in shock. I took it to trial and was found guilty. I accepted then that I was guilty. The treatment programme that I undertook in gaol helped me realise the error on my part which led to this situation”.

   ……

   [RZBB] disclosed that during his episode of incarceration that he completed at the CUBIT sexual offender programme at Long Bay Correctional Centre. He described that this programme helped to change his perspective on his offending “from then to now”. When queried us too in addition to his treatment would reduce his risk of recidivism, he stated that “I've now found a girl I want to marry and my religious beliefs would prevent me from engaging in that behaviour I was convicted for or anything like it. My religious beliefs and my commitment to them are now at a higher level and is now the foundation of my decisions particularly because of what I've been through. I'm not in the same headspace as I was before”.

   ……

   [RZBB] reported that he is the oldest of three male children born into his family of origin. He described that both of his brothers currently reside in Sydney and that they live independently from their mother who also resides in Sydney.

   [RZBB] disclose that it is his view that he has supportive relationships with his brothers. He stated that “we talk every week. If I need anything, they'll get it. They are supportive of me”.

   [RZBB] noted that his brothers reside in close proximity to their mother. He identified that “they live close to each other (his brothers and his mother). They check up on each other's wellbeing”.

   [RZBB] acknowledged that he has a close relationship with his mother. He stated that “we're very close, and when I get out I'm going to live with her”. He described that his mother is experiencing both significant medical and psychiatric path patholog stating that “she's been sick and I'm going to look up to her. She has significant medical problems and depression. My situation is not helping with this”. [RZBB] noted that he maintains daily contact with his mother.

   ……

   [RZBB] disclosed that his current relationship is of 2.5 year duration and noted that it commenced after he left Villawood Immigration detention. [RZBB] reported that he and his partner were introduced by a mutual friend and denied that this relationship has produced any children.

   ……

   At this assessment, [RZBB] in relation to his physical health, [RZBB] denied having any significant concerns to the experience of any medical pathology. He denied that he was taking medication in relation to any medical pathology.

   ……

   [RZBB] denied that he has a history of engaging in mental health treatment in the community stating that “I had no need to see anyone in relation to my mental health”. He denied experience of any type of mental health pathology in the community. This statement is at odds with the disclosures Mr Borenstein asserts that [RZBB] made during his clinical interview with him. [RZBB] Is reported to have described experience of symptoms which led Mr Borenstein to suggest that [RZBB] would meet the diagnostic criterion for Post Traumatic Stress Disorder in relation to both his experiences of residing and subsequently fleeing from the war in Sierra Leone as well as witnessing the murder of his father.

   ……

   [RZBB] Acknowledged having that he experiences suicidal ideations, however he denied having any intention of acting on these thoughts.

   ……

   The BARR-2002R Is an actuarial risk scale for assessing general and violent (including sexual) recidivism among male sex offenders.

   …..

   Given that sex offenders are more likely to reoffend with a non-sexual crime, risk assessments of sex offenders should also include the assessment of risk for general and violent recidivism.

   ……

   [RZBB] score of 2 on the BARR-2002r suggests that he presents us having a below average risk of general and violent criminal recidivism.

   STATIC-2002r

   Static-2002r is an instrument designed to assist in the prediction of sexual and violent recidivism for sex offenders.

   The recidivism rate of sex offenders with the same score of 3 on the STATIC-2002r as [RZBB’ would be expected to be approximately the same as the recidivism rate of the typical sexual offender (defined as a median score of 3). His score places him in the low-moderate category of sexually based recidivism.

   ……

   It is my opinion based upon the information provided for the purposes of this assessment that it is likely that [RZBB] would potentially meet the diagnosis for at least two mental health diagnosis, one characterised by his prominent experience of mood pathology in relation to uncertainty associated with his immigration detention and more broadly his immigration status, and one characterised by the likely presence of trauma based symptoms relating to historical traumatic events he experienced as he described in Mr Borenstein’s report.

   ….It is therefore my opinion that gnosis of a Major Depressive Disorder would be appropriate in relation to explaining the psycho pathology which he currently describes experience of.

   An appropriate differential diagnosis worthy of consideration in relation to [RZBB’s] presentation as described by him during his clinical interview, and as observed by myself as the writer is one of a Persistent Depressive Disorder according to the DSM5.

   An additional diagnosis which appears to be congruent with the information provided in the background information reviewed during [RZBB] assessment process is one of Post Traumatic Stress Disorder.

   ……

   Based upon [RZBB’s] current presentation at his assessment in addition to a review of the background information provided, it is my view that his current risk of general or violent criminal recidivism is below average based upon the findings of the BARR-2002r, the background information reviewed and [RZBB’s] assertions made during his clinical interview.

   Based upon [RZBB’s] current presentation at his assessment in addition to a review of the background information provided, it is my view that his current risk of sexually based criminal recidivism is a low to moderate range based upon the findings of STATIC-2002r, the background information reviewed and [RZBB’s] assertions made during his clinical interview.

   ……

   It would be my recommendation that [RZBB] engages in psychological treatment both within detention and as part of a process of facilitating a return to the community if this is the decision of the AAT. His experience of ongoing indeterminate detention is significantly contributing to his current presenting pathology in a number of ways including impacting his ability to plan for his future, extending the duration of his separation from pro social roles and relationships, impacting his ability to develop and maintain a positive mood state , in addition to contributing to the psychopathology…”[35]

   [35] Exhibit 1, Annexure 1.

10. The Applicant is otherwise in good physical health. He is not taking any medication.

11. The Applicant has no connections to, or family now living in, Sierra Leone.

12. If the Applicant were to be released into the community, he plans to seek work with his former employer. He would like to live with his mother and ultimately, Ms K.  He would like to marry Ms K and start a family.  

13. The Applicant’s record of convictions is annexed hereto and marked “B”. There is just one very serious offence.

    LEGISLATIVE FRAMEWORK

    Does the Applicant Pass the Character Test?

14. The Applicant was sentenced by the NSW District Court Criminal Division to a term of imprisonment of 7 years and 3 month’s imprisonment.

15. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.

    Is there another reason why the original decision should be revoked under section 501CA(4)?

16. In considering whether to exercise this discretion, 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 (“the Direction”) has application.[36]

    [36] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

17. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

18. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.[37]

    (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.

    [37] The Applicant in this case offended less than 3 years after arriving in Australia as a 20 year old.

1. Paragraph 6 of the Direction provides that:

   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.

2. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they 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; and

   (4)expectations of the Australian community.

3. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

   a)international non-refoulement obligations;

   b)extent of impediments if removed;

   c)impact on victims; and

   d)links to the Australian community, including:

   i)strength, nature and duration of ties to Australia; and

   ii)impact on Australian business interests.

4. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[38]

   “…Direction 65 [now Direction 90] 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.”[39]

   [38] [2018] FCA 594.

   [39] Ibid, [23].

   offending HISTORY

5. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B. It is discussed in some detail above. He has committed one very serious offence.

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

6. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires 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 in 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.

7. In determining the weight applicable to 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.

   The Nature and Seriousness of the Applicant’s Conduct to Date

8. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.

9. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

10. The Applicant has been convicted of a very serious sexual offence. It involved injury to his victim. This is a very serious sexual crime against a woman. This is by any measure, very serious offending.

11. I have considered whether this amounts to “family violence” as defined in Direction 90. I do not consider that the facts in this case constitute “family violence” as defined; notwithstanding the Applicant’s claims that he was in a relationship with the victim. The Respondent does not contend otherwise.

12. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)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 (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

13. His conduct has been such that he does not pass the character test referred to in sub-paragraph (b) (iii) above. His offending is obviously serious.

14. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

15. The Applicant has been sentenced to a term of imprisonment of 7 years and 3 months. By any measure this is indicative of very serious offending.

16. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

17. There is no trend or pattern to the Applicant’s offending. There is just one very serious incidence of offending.

18. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

19. The effect of the offending on the Applicant’s victim was very serious. The sentencing remarks include the following:

    “……

    A large number of matters were common ground between the parties including agreement that certain acts of sexual intercourse did occur. The position of the offender was that the intercourse was limited to digital penetration and penile/vaginal penetration which was consensual and that Ms [J] provided no sign that she was not consenting and at all times appeared to be a willing Participant and was encouraging the activity.

    Ms [J] Stated in her evidence that she not consent to any of the sexual activity that occurred in gave evidence as to certain things she did and did which indicated her absence of consent.

    ……

    Thirdly, in relation to count 3, whether the reckless infliction of actual bodily harm, namely injury to the complainant's genital area, had been proved beyond reasonable doubt.

    ……”[40]

    [40] Exhibit 3, G6, Attachment B, p 43.

20. The Applicant has repeatedly stated that the interaction with the victim was consensual, a finding explicitly rejected by the court. He was cross-examined on this point. His answers to questions on this topic were evasive. Ultimately, he conceded that he knew that the victim was not consenting, but that he went ahead anyway, because he “was selfish”. This is further discussed below in the context of risk.

21. The Applicant has consumed considerable public resources in the many years of his incarceration and interaction with the criminal justice system. His time as a contributing member of society has been relatively brief.

22. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

23. There is no evidence of this conduct.

24. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

25. There is no evidence of this conduct.

26. I do not consider factors (d), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

27. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.

28. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (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 their 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.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

29. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

30. The harm that would be caused if the Applicant were to reoffend is very serious. Sexual crimes are explicitly categorised as such in Direction 90, both in Primary Considerations 1 and 4. This means that, in accordance with the Direction, the tolerance of a risk of such reoffending is very low.[41]

    [41] Also Direction 90, para 5.2(5) (supra).

31. The sentencing Judge assessed the Applicant’s risk of re-offending as low.[42]

    [42] Exhibit 3, G2, p 12.

32. Mr Borenstein did not find any evidence of “antisocial or criminogenic behaviour”.[43]

    [43] Ibid, G8, Attachment C1, p 65.

33. Dr Pusey, in his report dated 15 September 2022 assessed the Applicant’s risk of re-offending as “low-moderate”[44], however he felt that more information regarding his attendance at the CUBIT treatment programme would be of assistance.

    “……

    Associating with these peers often included socialising with women who were considered soccer groupies. Within that context, [RZBB] advised that he was engaging in casual sex with women, which he noted is against his religion. [RZBB] said there it was a culture of objectifying women among his teammates and they and they strongly encouraged others to act on the sexual advances of the groupies that attended the soccer games.

    In terms of offending, [RZBB] knew the victim through a female friend. On the night of the offences, the victim had been evicted from her accommodation Ann reportedly had nowhere to stay. [RZBB] offered her a bed at his residence, which he shared with friends. While showing her the bedroom, [RZBB] drew the conclusion that the victim was amenable to having sex with him, as, according to him, she removed her dress. It seems, based on file documentation, that she did so at [RZBB’s] request and in treatment he initially struggled to identify that this request of his may be problematic and contributed to the offending. [RZBB] Then approached the victim and tried to kiss her. Despite her reportedly refusing his advances and then asking him to stop, [RZBB] continued. It was evident during discussion with [RZBB] that he, firstly had a limited understanding of consent and he struggled to understand what behaviour he engaged in that constituted abuse. Secondly, he was unable to appreciate the victim’s possible perspective, namely any sense of fear she may have experienced being detained in a room with a man she was unfamiliar with and while his friends/housemates were sitting outside the bedroom door. Finally, his distorted perception about the situation and the ‘availability’ of women for sexual purposes appears to have influenced his decision making with regards to the offending conduct.[45]

    ……

    The risk of [RZBB’s] reoffending can be described by examining absolute rates of reoffending over a time period. Out of 100 individuals convicted of sexually motivated offences with the same risk profile as [RZBB], three and five would be expected to recidivate sexually over three and five years respectively. Conversely, 97 and 95 out of 100 would not recidivate with a sexually motivated offence after three and five years in the community respectively.”[46]

    ……

    Taking into account both static and dynamic risk factors their risk rating of average on the Static-99R is considered as over-representing [RZBB’s] current risk. There are few dynamic risk factors evident in [RZBB’s] case and those that were historically relevant have been mostly addressed”.[47]

    [44] Exhibit 1, Annexure 1, p 11.

    [45] Exhibit 5, RTB10, Attachment G, pp 123-124.

    [46] Ibid, RTB10, Attachment G, p 135, [51].

    [47] Ibid, RTB10, Attachment G, pp 135-136, [54].

34. In a statutory declaration sworn on 23 June 2020, the Applicant said:

    “……

    This was the third time that I picked [T] and victim from places where they needed help. I came with the victim on that night. We went to Hungry Jack on Canterbury Road drive through at Bankstown. I bought some food and we went to the boys’ house. The boys are [AD], [MK], and [JT]. We arrived at their apartment and I asked that the victim needed a place to stay for the night. They accepted their request. They all left the room for the victim to stay. While in the room, the victim removed her top by herself and when we were sitting on the bed conversing. She commented that it was hot and immediately after we started kissing and then the sexual encounter occurred. After the encounter, the victim left the room and went outside. Narrated by other friends she rang her ex-boyfriend who then contacted police that [J] had been sexually assaulted. The police came to the apartment and started to bang the door. The door could not open and I contacted my mother to explain the event, the following morning when she arrived, I then opened the door and the police arrested me for sexual assault.

    ……

    The jury found me guilty for the offences which I accepted, even though there was no evidence and the victim and I were known to each other for at least three (3) weeks where we went to parties, nightclubs and I occasionally picked them up with another friend from places and train stations.

    I was remorseful about my conduct and circumstances leading to the incident I had no intention to hurt the victim whatsoever.

    It was a misunderstanding which led to my conduct an offending behaviour. I completely understood and misread the body language of the victim which appeared that she was interested in the encounter because we had been friends for a period. I was sorry and I am still sorry for my conduct and I have learned my lesson as a young man and through with the therapy in custody, I learned thoroughly through the MISOP Medium Sexual Offending Program.”[48]

    [48] Ibid, RTB10, p 114, [4], [6], [7] and [8].

35. The Applicant told the Tribunal that the victim was “a friend” and that he” thought that (they) were in a relationship”. He had driven her (alone) somewhere in his car once in the past. He had never had sex with her but nevertheless, he thought that he “was her boyfriend”. He was unable to explain how this perception on his part, even if it was objectively correct, (which it was not), somehow negated the requirement of consent, on the part of his victim. His view that they were in a relationship was apparently based on having had some social interaction with her on 3 or 4 occasions in the past. The sentencing Judge found that his conduct on the day of the offences though not premeditated, was “opportunistic”. He accepted that he was aware that she was not consenting at the time of the offences. He then claimed to have “misunderstood” her protests and requests for him to stop. He also said that his behaviour was “cultural” but did not explain what this meant. He later conceded that he did not misunderstand and that he was just “selfish”. He also said that since doing a sex offender programme in 2019,[49] he had now learned about consent.

    [49] Ibid, RTB10, Attachment G, p 122.

36. Dr Pusey was cross-examined at length. Aspects of the sentencing Judge’s remarks and the Applicant’s evidence to the Tribunal were put to him. Dr Pusey made several very important observations in light of these additional facts. These included the following:

    “It sounds like he is minimising his offending……”

    “his learning (about consent in rehab programmes) is either not sustained, or in a different context, he may not have been able to sustain it….”

    “any reasonable person would question the extent that any insight gained (through rehab programmes) was sustained……”

    “…he has “fluctuating levels of insight into his offending…..”

37. Dr Pusey said that there was a “pressing” need for the Applicant to undertake ongoing psychological work to understand himself as an offender. He required at least 6-12 months of intervention on a fortnightly basis. If this was not done, irrespective of his scores in static and dynamic psychological tests, they will underestimate his risk of recidivism. Dr Pusey said that the Applicant was in the “low to moderate” range for risk of reoffending, but that he was tending towards the upper end of that range (i.e. Moderate).

1. This raises a different, but associated or consequential issue, being the possibility indefinite detention, if the Applicant’s visa were not to be restored.

2. The Tribunal is bound to apply Direction 90. I note paragraph 9.1(3) which says:

   “However, that does not mean the existence of a non-refoulment obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulment obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions……..”

3. If the Tribunal were to affirm the decision under review, the Tribunal cannot therefore conclude that Applicant would remain in immigration detention with no ‘chronologically fixed endpoint’ (“indefinite detention”).[55] His status could be changed by a range of possible events, for example, by Ministerial action.

   [55] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].

4. There is nothing before the Tribunal to suggest that the Applicant would be granted any other class of visa by the Minister.

5. I note the decision of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[56] it states:

   [56] [2022] FCA 878. See also GHSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4811, JVGD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2830 and ZXXZ Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2910.

   “……

   The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.

   It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.

   Proposition (c) above (indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party) is also contestable. In CWY20 the Acting Minister found that removal of the applicant in that case to Afghanistan would breach Australia’s international non-refoulement obligations. There is no equivalent finding in the present case that indefinite detention of the applicant (or, accurately, the prospect, in the sense of likelihood of, indefinite detention of the applicant) would be a breach of Australia’s international obligations. Nor is that manifestly correct.

   Article 9.1 of the ICCPR provides that:

   Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

   The UHDR provides that:

   Article 3

   Everyone has the right to life, liberty and the security of person.

   …

   Article 5

   No one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment.

   …

   Article 9

   No one shall be subjected to arbitrary arrest, detention or exile.

   Article 16 of the CAT provides that:

   Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

   I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.

   ……”[57]

   [57] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, [42]-[48].

6. Keeping the Applicant in indefinite detention may be contrary to Australia’s international obligations and hence, national interests. In this regard I note that in BNGP, Jagot J states:

   “……

   I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.

   The Minister submitted that CWY20 is not authority for the proposition that, in forming the state of satisfaction described in s 501A(2)(e), a failure by a decision-maker to have regard to Australia’s international non-refoulement obligations will result in that state of satisfaction not being attained reasonably. I agree. CWY20 is authority for the proposition only that such a decision may be legally unreasonable depending on the circumstances.

   The Minister submitted that the observations of Allsop CJ in CWY20 are not to be understood as saying that Australia’s international non-refoulement obligations are a mandatory relevant consideration in every decision under s 501A(2) of the Migration Act. Again, for the reasons already given, I agree.

   The Minister submitted that the better view is that CWY20 stands for the narrower proposition that, depending on the circumstances of the case, a failure to take Australia’s international non-refoulement obligations into account in forming the state of satisfaction in s 501A(2)(e) may supply the inference that the decision-maker did not attain that state of satisfaction reasonably. I agree other than that a conclusion of legal unreasonableness is not an inference – it is a legal conclusion. As such, the better view of CWY20 is that, depending on the circumstances, a failure to consider Australia’s international non-refoulement obligations (a non-mandatory consideration) may make a decision legally unreasonable.

   The Minister submitted that even if CWY20 remains good law following the High Court’s judgment in Plaintiff M1 (which the Minister disputes), it does not control the outcome of this case. Again, I agree for the reasons already given.

   As noted, the conclusions in ENT19 involved a statutory context (the absence of s 197C(3) of the Migration Act) and facts different from the present case. In particular, in ENT19 the Full Court characterised the applicant’s grievance as that he “would be refouled, regardless of his wishes”, and this reflected the relevant statutory provisions in that case (which did not include s 197C(3)): [56]. But, as also discussed, the reasoning of the Full Court in ENT19 also proceeded on a broader basis, that the legal consequences of the Minister’s decision included either refoulement in breach of Australia’s international obligations or indefinite detention, and that in evaluating the national interest, it was legally unreasonable for the Minister not to consider those legal consequences.

   This reasoning in ENT19 appears to have assumed that continued detention (as required by ss 189 and 196), if the person could not be removed due to Australia’s international non-refoulement obligations, would be indefinite detention in breach of Australia’s international obligations. The reasoning in ENT19 also appears to have assumed that such continuing detention would be lawful under Australian law, despite the detention (arguably) not being for the purpose of removal or assessment. In this regard I note that in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562, also decided before the insertion of s 197C(3) into the Migration Act, the High Court said at [26]:

   The correctness of the constitutional holding in Al‑Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562], that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future, does not arise for consideration in the present case.

   This critical question arises (but, insofar as I am aware, remains unanswered, particularly in the context of the operation of s 197C(3) of the Migration Act) because of the principle from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374] per Gageler J that:

   deriving from Ch III of the Constitution, …a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.

   In support of this proposition, his Honour cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 33; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [138]–[140]; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [25]–[29].

   This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.[58]

   [58] Ibid [51]-[60].

7. There is no doubt that prolonged detention would have a very adverse impact on the Applicant. It may be detrimental to his mental health, and it would probably lead to a termination of his relationship with Ms K. He could be of no direct assistance to his mother, Ms K, his nephews, his brothers, his cousins, or his other extended family and friends.

8. Other consideration (a) is neutral, however, the associated prospect of detention for an indeterminate period, weighs heavily in favour of revocation.[59]

   [59] Exhibit 5, RTB10, p89.

   (b) Extent of Impediments if Removed

9. As a guide for exercising the discretion, 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.

10. In Exhibit 2, the Respondent noted that:

    “The applicant's claim that he would suffer significant harm as a result of his return to Sierra Leone has been addressed under ‘non refoulement obligations’ above an would impact the circumstances he faces upon his return to that country. However, as noted, the applicant would not be removed to Sierra Leone due to Australia’s non refoulement obligations. It follows that any impediments faced by the applicant in Sierra Leone would not eventuate as he would not be removed there. This being so, this consideration should be given no material weight, as there is no realistic prospect of his involuntary removal to Sierra Leone in the foreseeable future.”[60]

    [60] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, p 13, [62].

11. I accept this submission.

12. This consideration is neutral.

    (c) Impact on victims

13. This Other Consideration (c) requires that decision-makers must consider the impact of the 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.

14. There is no evidence concerning this other consideration.

15. This Other Consideration (c) is neutral

    (d)     Links to the Australian Community

16. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

17. The Applicant has significant ties to Australia. He has lived here since he was a 20-year-old in 2010. There are strong connections to the Sierra Leone community in Sydney. His mother, grandparents, fiancé, brothers, nephews, cousins and extended family are in Australia.[61] Also, I note the decision of the delegate of 15 August 2022 says:

    “[RZBB] has other ties to Australia, being two grandparents, 15 aunts/uncles, 12 nieces/nephews and 16 cousins as well as friends and community links.”[62]

    [61] There is also mention in the materials of his grandmother [MS]. See Exhibit 1, Annexure 8, Exhibit 3, G32, Attachment G1, p 181 and G40, Attachment G9, p 203 and Exhibit 5, RTB 10, Attachment K, p 169 and Attachment O, p 179

    [62] Exhibit 5, RTB10, p 88.

18. There is no evidence to suggest that he has ties to any other country. There are many witness statements of support for the Applicant in evidence.[63] The Respondent accepted that these representations should be taken at face value. I agree. His mother in particular says that she is emotionally and financially dependent on the Applicant. He has culturally based obligations towards her, as her eldest son.

    [63] Exhibit 1, Annexures 3-9; Exhibit 3, G32, Attachment G1, pp 172-186, G33, Attachment G2, pp 187-191, G34, Attachment G3, pp 192-193, G35, Attachment G4, pp 194-196, G36, Attachment G5, pp 197, G37, Attachment G6, pp 198-199, G38, Attachment G7, p 200, G39, Attachment G8, p 201-202, G40, Attachment G9, p 203-204, G41, Attachment G10, pp 205-209, G42, Attachment G11, pp 210-213, G49, Attachment N, pp 276-280; Exhibit 5, RTB10, Attachment L pp 174-175, Attachment M, p 176, Attachment N, pp 177-178, Attachment O, p 179, Attachment P, pp 180-181, Attachment Q, pp 182-184, Attachment R, pp 185-186, Attachment S, p 187-188, Attachment T, pp 189-190, Attachment U, pp 191-195, Attachment V, p 196, Attachment W, pp 197-198 and Attachment X, p 199-204.

19. There is no doubt that if the Applicant were not to be returned to the community his mother, his extended family and fiancé in particular, would suffer serious emotional hardship. There may also be financial hardship, especially for Ms K and his mother.

20. It is unclear on the evidence before the Tribunal how many of the people who are connected with the Applicant are Australian citizens or have a permanent right to remain here. In the absence of evidence to the contrary however, I am in no position to make a finding that excludes any of these individuals from this other consideration.

21. On the other hand, as set out above, the Applicant offended within 3 years of his arrival in this country and has been incarcerated, or in detention since 25 September 2014. He stopped living with his mother well before he offended.  By reason of his incarceration, the Applicant has spent less than 3 of his 12 years in this country making any positive contribution. For most of his time here, he has been a burden on society through the NSW corrections system and immigration detention. These factors serve to reduce the weight that might otherwise have been given to this other consideration in the Applicant’s favour.[64]

    [64] See para 9.4.1 (2)(a) of Direction 90.

22. This Other Consideration (d), paragraph 9.4.1 of the Direction, nevertheless weighs in favour of revocation of the Applicant’s visa cancellation.

    Impact on Australian business interests

1. There was no evidence on this topic, so this consideration is neutral.

2. This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral.

   Findings: Other Considerations

3. The application of the Other Considerations in the present matter can be summarised as follows:

   (a)international non-refoulement obligations: neutral, but the prospect of indeterminate detention weighs heavily in favour of revocation of his visa cancellation.

   (b)extent of impediments if removed: weighs neutral

   (c)impact on victims: neutral

   (d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and

   (e)the impact on Australian business interests: neutral

   CONCLUSION

4. It is necessary to weigh up all of the primary and other considerations.

5. Primary consideration 1 weighs heavily against revocation.

6. Primary consideration 2 is neutral.

7. Primary consideration 3 weighs moderately in favour of revocation.

8. Primary consideration 4 weighs heavily against revocation.

9. Other considerations, (a), (b) and (c) are neutral.

10. Other consideration (d) weighs in favour of revocation.

11. The possibility of indeterminate detention weighs heavily in favour of revocation.

12. As set out in paragraph 6 above, at a high level, this case primarily involves a very difficult balancing exercise between weighty considerations of community safety on the one hand and the possibility of indeterminate detention on the other.[65]

    [65] To be clear, all of the considerations discussed are of course relevant.

13. In striking this balance, the Tribunal must be guided by Direction 90. It is clear from Direction 90 that crimes against women and sexual crimes in particular, are deemed to be very serious.[66]

    [66] See para 8.1.1(1) and para 8.4(2)(c) of Direction 90.

14. The principles set out in Direction 90, point to a lower tolerance for offenders who, like the Applicant, have only been contributors to the Australian community for a relatively short time.[67]

    [67] See para 5.2(4) of Direction 90.

15. The Direction also states that in the case of very serious offending, even if “the non-citizen does not pose a measurable risk” of causing harm, even “strong countervailing considerations” may not be enough to warrant revoking a visa cancellation. In this context specific mention of paragraph 8 .4(2) is made, as an example of very serious offending.[68]

    [68] See para 5.2 (5) and para 8.4(3) of Direction 90.

16. The Applicant’s offending is very serious. He continues to struggle with a sustained understanding of consent. He has been assessed, by his own expert Dr Pusey, as presenting a low- moderate (“closer to the upper range”) risk of reoffending. In the absence of community-based treatment if released, the risk is probably greater. There is no such treatment regime in place. He would not, if released, be subject to any mandatory community-based supervision by NSW corrections, or anyone else. In terms of Direction 90, I am of the view that the Applicant does at least “pose a measurable risk”, if not more, of reoffending.

17. In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

    Decision

18. The decision under review is affirmed.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

........................[sgnd].......................................

Legal Associate  

Dated:   7 November 2022

Date of hearing:	19, 20 & 24 October 2022
Advocate for the Applicant:	Mr Michael John Doyle Morning Star Legal and Migration Services
Advocate for the Respondent:	Mr Aaron Taverniti Sparke Helmore Lawyers

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions and associated annexures filed 16 September 2022
2	Respondent	Statement of Facts, Issues and Contentions filed 4 October 2022
3	Respondent	G-Documents filed 29 August 2022
4	Applicant	Psychological Assessment from Dr Paul Pusey filed 13 October 2022
5	Respondent	Tender Bundle filed 4 October 2022

Annexure B – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Downing Centre District Court	12/03/2015	Sexual intercourse without consent-SI	Imprisonment (Aggregate): 7 years and 3 months
Downing Centre District Court	12/03/2015	Sexual intercourse without consent-SI	Imprisonment (Aggregate): 7 years and 3 months